School Board of the City of Charlottesville, Virginia v. Allen Appendix on Behalf of Appellants

    APPENDIX ON BEHALF OF APPELLANTS

United States Court of Appeals 
for the Fourth Circuit

No. 7303

T H E  SCH OOL BO ARD  OF T H E  C ITY  OF C H A R ­
LO TT E SV ILL E , V IR G IN IA , and FE N D A LL R. 

ELLIS, D ivision Superintendent of Schools 
of the City of Charlottesville, V irginia,

Appellants
v.

DORIS M A R IE  ALLE N , et al.,
Appellees

Appeal from tlie United States District Court for the 
Western District of Virginia, at Charlottesville

Jo h n  S. Battle
Court Square Building 
Charlottesville, Virginia

Jo h n  S. B attle , Je .
Court Square Building 
Charlottesville, Virginia

Attorneys for Appellants

J. L indsay  A lm ond , Je.
Supreme Court Building 
Richmond, Virginia 

Attorney General of Virginia
H enry  T . W ic k h a m

1407 State-Planters Bank Bldg. 
Richmond, Virginia 

Special Assistant to the 
Attorney General



TABLE OF CONTENTS
Page

I. Complaint ...................................................................................-  1

II. Answer ........... .............. .................................. ............................  8

III. Order of District C ourt..... ........................................................ 11

IV. Opinion of District Court ....................................... ................  13

V. A. Motion to Dismiss Fendall R. E llis ...........................-...... 23
B. Denial of Motion to Dismiss Fendall R. E llis ..............—. 23
C. Motion to Dismiss on Ground That State Has Not Con­

sented to Be Sued...... ................... ..................................— 24

D. Denial of Motion to Dismiss on Ground That State Has
Not Consented to Be Sued .............. .............. — ...... -...... 25

VI. A. Plaintiffs’ Exhibit “ A ”— Petition to School B oard ....... 26
B. Plaintiffs’ Exhibit “ B”— Reply to Petition ...............  30

V II. A. Plaintiffs’ Witness George R. Ferguson ............ ...... — 32
B. Plaintiffs’ Adverse Witness Fendall R. Ellis ................  35

V III. A. Motion to Dismiss for Lack of Evidence in Support of
Complaint .................................................................   46

B. Denial of Motion to Dismiss for Lack of Evidence-----  47

IX . A. Defendants’ Exhibit No. 2— Deposition of Fendall R.
Ellis ......................................................    49

B. Defendants’ Exhibit No. 3— Deposition of James H. 
Michael, Jr...................................................    53

X . Testimony of Fendall R. Ellis on Cross, Redirect and Re- 
cross-Examination .........................  55

X I. Testimony of James H. Michael, Jr. on Cross-Examination 72



United States Court of Appeals 
for the Fourth Circuit

No. 7303

T H E  SCH OOL BO ARD  OF T H E  C ITY  OF C H A R ­
LO TTE SV ILLE , V IR G IN IA , and FE N D A LL R. 

ELLIS, D ivision Superintendent of Schools 
of the City of Charlottesville, V irginia,

Appellants
v.

DORIS M AR IE  A LLE N , et al.,
Appellees

Appeal from the United States District Court for the 
Western District of Virginia, at Charlottesville

APPENDIX ON BEHALF OF APPELLANTS

APPENDIX I

CO M PLAIN T

1. (a ) The jurisdiction o f this Court is invoked under 
Title 28, United States Code, Section 1331. This action 
arises under the Fourteenth Amendment of the Constitution 
of the United States, Section 1, and the Act of May 31, 1870, 
Chapter 114, Section 16, 16 Stat. 144 (Title 42, United 
States Code, Section 1981), as hereinafter more fully ap­
pears. The matter in controversy exceeds, exclusive of 
interest and costs, the sum or value of Three Thousand 
($3,000.00) Dollars.



2

(b ) The jurisdiction o f this Court is also invoked under 
Title 28, United States Code, Section 1343. This action is 
authorized by the Act of April 20, 1871, Chapter 22, Sec­
tion 1, 17 Stat. 13 (Title 42, United States Code, Section 
1983), to be commenced by any citizen of the United States 
or other person within the jurisdiction thereof to redress the 
deprivation, under color o f a state law, statute, ordinance, 
regulation, custom or usage, of rights, privileges and im­
munities secured by the Fourteenth Amendment of the Con­
stitution of the United States, Section 1, and by the Act of 
May 31, 1870, Chapter 114, Section 16, 16 Stat. 144 (Title 
42, United States Code, Section 1981), providing for the 
equal rights of citizens and of all persons within the juris­
diction of the United States, as herein after more fully 
appears.

2. Infant plaintiffs are Negroes, are citizens o f the 
United States and of the Commonwealth of Virginia, and 
are residents o f and domiciled in the City of Charlottesville, 
Virginia. They are within the statutory age limits o f eli­
gibility to attend the public schools of said City, and possess 
all qualifications and satisfy all requirements for admission 
thereto, and are in fact attending public schools o f said City 
operated by defendants.

3. Adult plaintiffs are Negroes, are citizens of the 
United States and of the Commonwealth of Virginia, and 
are residents of and domiciled in the City of Charlottesville, 
Virginia. They are parents or guardians o f the infant plain­
tiffs, and are taxpayers o f the United States and of said 
Commonwealth and City. All adult plaintiffs having control 
or charge of any unexempted child who has reached the 
seventh birthday and has not passed the sixteenth birthday 
are required to send said child to attend school or receive



3

instruction (Code of Virginia, 1950, Title 22, Chapter 12, 
Article 4, Sections 22-251 to 22-256).

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 the public 
schools in the City of Charlottesville, Virginia, and their 
respective parents and guardians, similarly situated and 
affected with reference 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, bring this action pursuant to 
Rule 23 (a ) of the Federal Rules of Civil Procedure, as a 
class action, also on behalf o f all other Negro children at­
tending the public schools in the City of Charlottesville, 
Virginia, and their respective parents and guardians, simi­
larly situated and affected wdth reference to the matters here 
involved.

5. Defendant The School Board of the City of Char­
lottesville, Virginia, exists pursuant to the Constitution and 
laws of the Commonwealth of Virginia as an administrative 
department of the Commonwealth of Virginia discharging 
governmental functions (Constitution of Virginia, Article 
IX , Section 133, Code of Virginia, 1950, Title 22, Chapter 1, 
Sections 22-1, 22-2, 22-5 to 22-9.3, Chapter 6, Article 1, 
Sections 22-45 to 22-58, Chapter 6, Article 4, Sections 22-89 
to 22-99, Chapters 7 to 15, Sections 22-101 to 22-330) ; and 
is declared by law to be a body corporate ( Code of Virginia, 
1950, Chapter 6, Article 4, Section 22-94).

6. Defendant Fendall R. Ellis is Division Superintend­
ent of Schools o f the City o f Charlottesville, Virginia. He 
holds office pursuant to the Constitution and laws of the 
Commonwealth of Virginia as an administrative officer of



4

the public free school system o f Virginia (Constitution of 
Virginia, Article IX , Section 133; Code of Virginia, 1950, 
Title 22, Chapter 1, Sections 22-1, 22-2, 22-5 to 22-9.3, 
Chapter 4, Sections 22-31 to 22-40, Chapters 6 to 15, Sec­
tions 22-45 to 22-330). He is under the authority, super­
vision and control of, and acts pursuant to, the orders, poli­
cies, practices, customs and usages of defendant The School 
Board of the City of Charlottesville, Virginia. He is made 
a defendant herein in his official capacity.

7. The Commonwealth o f Virginia has declared public 
education a state function. The Constitution o f Virginia, 
Article IX, Section 129, provides:

“ Free schools to be maintained. The General Assem­
bly shall establish and maintain an efficient system of 
public free schools throughout the State.”

Pursuant to this mandate, the General Assembly of Virginia 
has established a system of free public schools in the Com­
monwealth of Virginia according to a plan set out in Title 
22, Chapters 1 to 15, inclusive, of the Code of Virginia of 
1950. The establishment, maintenance and administration 
o f the public school system of Virginia is vested in a State 
Board of Education, a Superintendent o f Public Instruc­
tion, Division Superintendents of Schools, and County, City 
and Town School Boards (Constitution of Virginia, Article 
IX , Sections 130-133; Code of Virginia, 1950, Title 22, 
Chapter 1, Section 22-2).

8. The public schools o f the City of Charlottesville, V ir­
ginia, are under the control and supervision o f defendants, 
acting as an administrative department or division of the 
Commonwealth of Virginia (Code of Virginia, 1950, Title 
22, Chapter 1, Sections 22-1, 22-2). Defendant The School



5

Board of the City of Charlottesville, Virginia, is empowered 
and required to establish and maintain an efficient system of 
public free schools in said City (Code of Virginia, 1950, 
Title 22, Chapter 1, Sections 22-1, 22-5); to provide suit­
able and proper school buildings, furniture and equipment, 
and to maintain, manage and control the same (Code of V ir­
ginia, 1950, Title 22, Chapter 1, Article 1, Section 22-97) : 
to determine the studies to be pursued, the methods of teach­
ing, and the government to be employed in the schools (Code 
of Virginia, 1950, Title 22, Chapter 6, Article 4, Section 
22-97, Chapter 12, Article 2, Sections 22-233 to 22-240.1) ; 
to employ teachers ( Code of Virginia, 1950, Chapter 6, 
Article 4, Section 22-97, Chapter 11, Section 22-203); to 
provide for the transportation of pupils (Code of Virginia, 
1950, Title 22, Chapter 13, Articles 1 and 2, Sections 22- 
276 to 22-294); to enforce the school laws (Code of V ir­
ginia, 1950, Title 22, Chapter 6, Article 4, Section 22-97); 
and to perform the numerous other duties, activities and 
functions essential to the establishment, maintenance and 
operation of the schools o f said City ( Code of Virginia, 
1950, Title 22, Chapter 1, Sections 22-1 to 22-10, Chapters 
4 to 5, Sections 22-30 to 22-44, Chapter 6, Article 1, Sec­
tions 22-45 to 22-58, Article 4, Sections 22-89 to 22-100, 
Chapters 7 to 15, Sections 22-101 to 22-330).

9. Defendants, and each of them, and their agents and 
employees, maintain and operate separate public schools for 
Negro and white children, respectively, and deny infant 
plaintiffs and all other Negro children, because of their race 
or color, admission to and education in any public school 
operated for white children, and compel infant plaintiffs 
and all other Negro children, because of their race or color, 
to attend public schools set apart and operated exclusively 
for Negro children, pursuant to a policy, practice, custom



6

and usage of segregating, on the basis o f race or color, all 
children attending the public schools of said city.

10. The aforesaid action o f defendants denies infant 
plaintiffs, and each of them, their liberty without due process 
of law and the equal protection o f the laws secured by the 
Fourteenth Amendment of the Constitution of the United 
States, Section 1, and the rights secured by Title 42, United 
States Code, Section 1981.

11. On May 17, 1954, the Supreme Court o f the United 
States declared the principle that state-imposed racial segre­
gation in public education is violative of the Fourteenth 
Amendment of the Constitution of the United States. A  
formal demand has heretofore been made on behalf of plain­
tiffs and all other persons similarly situated that defendants 
conform to said decision and desist from the policy, practice, 
custom and usage specified in paragraph 9 hereof. Notwith­
standing, defendants, and each of them, refuse to act favor­
ably upon this demand and purposefully, wilfully and delib­
erately continue to enforce and pursue said policy, practice, 
custom and usage against infant plaintiffs and all other 
Negro children.

12. Defendants will continue to pursue against plaintiffs, 
and all other Negro children similarly situated, the policy, 
practice, custom and usage specified in paragraph 9 hereof, 
and will continue to deny them admission, enrollment or 
education to and in any public school operated for children 
residing in said City who are not Negroes, unless restrained 
and enjoined by this Court from so doing.

13. Plaintiffs, and those similarly situated and affected, 
are suffering irreparable injury and are threatened with ir­
reparable injury in the future by reason of the policy, prac­
tice, custom and usage and the actions of the defendants



7

herein complained of. They have no plain, adequate or com­
plete remedy to redress the wrong's 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 remitted would be attended by such uncer­
tainties and delays as would deny substantial relief, would 
involve a multiplicity of suits, and would cause further irrep­
arable injury and occasion damage, vexation and inconven­
ience.

14. As a consequence o f the purposeful, wilful and delib­
erate action o f defendants, in continuing, in violation of 
their legal duty to plaintiffs, to segregate infant plaintiffs 
and other Negro children on the basis o f their race or color, 
plaintiffs are required to employ attorneys and undergo great 
trouble, inconvenience and expense to litigate a vindication 
of their constitutional rights.

Wherefore, plaintiffs respectfully pray that, upon the fil­
ing of this complaint, as may appear proper and convenient, 
this Court advance this action on the docket and order a 
speedy hearing o f this action according to law and, and upon 
such hearing:

(a ) This Court enter a preliminary injunction and/or a 
permanent injunction restraining and enjoining defendants, 
and each of them, their successors in office, and their agents 
and employees, forthwith, from enforcing or pursuing 
against infant plaintiffs and other Negro children similarly 
situated the policy, practice, custom and usage specified in 
paragraph 9 hereof, and/or any other policy, practice, cus­
tom or usage of the same or similar purport, and/or any 
action whether or not pursuant to said policy, practice, cus­
tom or usage which precludes, on the basis of race or color, 
the admission, enrollment or education of infant plaintiffs



8

or any other Negro child similarly situated to and in any 
public school operated by defendants at the same time, and 
under the same terms and conditions, and with the same 
treatment, that similarly situated children o f any other race, 
color or group are admitted, enrolled, educated or given 
therein, upon the ground that any such policy, practice, cus­
tom, usage, or action denies infant plaintiffs, and other 
Negro children similarly situated, their liberty without due 
process of law and the equal protection of the laws, secured 
by the Fourteenth Amendment of the Constitution of the 
United States, Section 1, and the rights secured by Title 42, 
United States Code, Section 1981, and is for these reasons 
unconstitutional and void.

(b ) This Court allow plaintiffs their costs herein, and 
reasonable attorneys’ fees for their counsel, and grant such 
further, other, additional or alternative relief as may appear 
to the Court to be equitable and just in the premises.

APPENDIX II

ANSW ER

In answer to the complaint heretofore filed in this action, 
defendants say:

1. Defendants deny the jurisdiction of the Court as set 
forth in the allegations of Paragraph 1(a) of the complaint. 
As to the allegations o f Paragraph 1 (b ) o f the complaint, 
the defendants allege that the Court does not have jurisdic­
tion in this action because the complaint does not state a case 
or controversy upon which relief can be granted.

2. Defendants are not advised as to the truth o f the 
allegations o f Paragraph 2 of the complaint and call for 
strict proof o f all such allegations.



9

3. Defendants are not advised as to the truth of the alle­
gations of Paragraph 3 of the complaint and call for strict 
proof of all such allegations, except that defendants admit 
the allegation of Paragraph 3 regarding the compulsory 
school attendance law of Virginia.

4. Defendants deny the allegations of fact and the con­
clusions of law contained in Paragraph 4 of the complaint, 
and with respect to the allegations of said Paragraph 4 de­
fendants state that if this be a class action as contended by 
the plaintiffs, the only persons coming within said class are 
Negro citizens of the United States residing in the Common­
wealth of Virginia who are otherwise duly qualified for ad­
mission to the public schools of Charlottesville, Virginia, 
and who have applied for and been denied such admission.

5. Defendants admit the allegations of Paragraph 5 of 
the complaint.

6. Defendants admit that Fendall R. Ellis is Division 
Superintendent of Schools in the City o f Charlottesville, 
Virginia, and that he holds office pursuant to the Constitu­
tion and laws o f the Commonwealth of Virginia. Defend­
ants deny all other allegations of Paragraph 6 of the com­
plaint.

7. Defendants admit the allegations of Paragraph 7 of 
the complaint.

8. Defendants admit that the administration of the public 
school system of Charlottesville, Virginia, is administered 
by them. The defendant Fendall R. Ellis denies that said 
public schools are under his control and the defendant. The 
School Board of the City of Charlottesville, Virginia, denies 
that it is empowered and required to establish and maintain 
an efficient system of public free schools in said City. The



10

defendants admit that their powers and duties are prescribed 
by Title 22, o f the Code of Virginia but all other allegations 
of fact contained in Paragraph 8 of the complaint are denied.

9. Defendants admit they are following state policy and 
laws requiring the maintenance of separate schools for white 
and Negro children, and assert that such state policy and 
laws are valid and not repugnant to the Constitution of the 
United States but to the contrary are within the police pow­
ers o f the state. Defendants deny all other allegations of 
Paragraph 9 of the complaint.

10. Defendants deny all the allegations of Paragraph 10 
o f the complaint.

11. Defendants admit that on .May 17, 1954, the Su­
preme Court of the United States held in the case of Brown 
v. Board of Education of Topeka, 347 U. S. 483, and com­
panion cases, that state-imposed racial segregation in public 
education violates the Fourteenth Amendment of the Con­
stitution but allege that such decisions in those cases are not 
binding on this Court under the facts as they shall be dis­
closed by the evidence in this case. Defendants further 
assert that even under the aforesaid cases they are not re­
quired to integrate the public schools of Charlottesville, V ir­
ginia, and therefore the relief sought in the complaint should 
be denied. Defendants deny the remaining allegations of 
Paragraph 11 of the complaint.

12. Defendants deny that they are pursuing, or will pur­
sue, a policy or practice in denial o f the rights of the plain­
tiffs in this case.

13. Defendants deny all o f the allegations o f Paragraph 
13 of the complaint.



11

14. Defendants deny all o f the allegations of Paragraph 
14 of the complaint.

15. Defendants deny all o f the allegations in the com­
plaint which are not specifically admitted in this Answer and 
deny that the plaintiffs are entitled to the relief sought in the 
complaint.

Defendants move that this action he dismissed upon the 
following grounds:

(a ) Defendants allege that this action should be dis­
missed on the ground of lack of jurisdiction and 
assert that this proceeding involves no case or con­
troversy upon which relief should be granted:

( b ) The defendant the School Board of the City of 
Charlottesville, Virginia, alleges that this action 
should be dismissed as to it on the ground of lack 
of jurisdiction over this party since the School 
Board of the City of Charlottesville is an agency 
of the State of Virginia and the state has not given 
its consent to be sued in this action.

(c )  The defendant Fendall R. Ellis alleges that as to 
him the complaint should be dismissed for failure 
to state a claim against him upon which relief can 
be granted.

APPENDIX III

ORDER OF DISTRICT COURT

This action having come on to be heard on July 12, 1956, 
upon the complaint, the answer, and evidence offered by 
the plaintiffs and the defendants, and the arguments of 
counsel.

Upon consideration whereof, the court being of opinion



12

that the plaintiffs are entitled to the relief sought in their 
complaint, and having set forth the reasons for its conclu­
sions in a written opinion this day filed and made a part of 
the record,

It is accordingly Adjudged, Ordered and Decreed

1. That the defendants, and each of them, their succes­
sors in office, and their agents and employees, be, and they 
hereby are, restrained and enjoined from any and all action 
that regulates or affects, on the basis of race or color, the 
admission, enrollment or education of the infant plaintiffs, 
or any other Negro child similarly situated, to and in any 
public school operated by the defendants.

2. That this injunction become effective at the commence­
ment of the school term commencing in September, 1956.

3. That the plaintiffs recover from defendants their costs 
in this action.

And the plaintiffs having moved the court that the defend­
ants be required to pay the attorneys’ fees of counsel for the 
plaintiffs in this action.

Now, therefore, upon consideration of said motion, the 
same is denied, to which action o f the court counsel for the 
plaintiffs except.

It is further Ordered

that this action remain upon the docket of the court and that 
the court retain jurisdiction o f the same for such future 
action, if any, as may be necessary therein.

The clerk of this court will send an attested copy of this 
order to each of the following:



13

Mr. Spottswood W . Robinson, III, 
Attorney at Law,
623 North Third Street,
Richmond, Virginia.

Mr. Oliver W . Hill,
Attorney at Law,
118 East Leigh Street,
Richmond, Virginia.

Honorable J. Lindsay Almond, Jr., 
Attorney General of Virginia, 
Richmond, Virginia.

Honorable John S. Battle, 
Attorney at Law,
Charlottesville, Virginia.

(s) John Paul 
District Judge

APPENDIX IV

OPINION OF DISTRICT COURT

This suit is an outgrowth of the decision o f the Supreme 
Court o f the United States in a group of cases in which 
challenge was made to the laws of those states which require 
that, in the operation o f the public school system, separate 
schools be maintained for white and for Negro children. 
On May 17, 1954, the Supreme Court handed down its 
opinion under the style o f Brown, et al. v. Board o f Educa­
tion of Topeka, et al. (reported in 347 U. S. 483) in which 
it held that state laws which require the segregation of white 
and Negro children in the public schools o f the state solely 
on the basis of race were in violation of the Constitution of



14

the United States, in that they denied to Negro children the 
equal protection of the laws guaranteed by the Fourteenth 
Amendment. Included in the group of cases covered by the 
opinion in Brown v. Board of Education of Topeka was one 
arising in Virginia under the style of Davis, et al. v. County 
School Board of Prince Edward County.

Following the rendition of the opinion above mentioned 
the Court retained the cases on its docket for further con­
sideration of the terms of such decrees as would be appro­
priate to carrying out the holdings of the Court. After full 
consideration, which included the hearing of argument of 
all parties concerned, The Supreme Court on May 31, 1955, 
handed down its further opinion in these cases. In this opin­
ion the Court recognized that the variation in local condi­
tions involved differences in the problems arising in apply­
ing the principles enunciated by it and that it would be im­
practicable to fix a definite date on which segregation in all 
schools affected by its decision should cease. It made no 
attempt to fix such a date. However it did state that, after 
giving due consideration to the local conditions involved, 
“ the courts will require that the defendants make a prompt 
and reasonable start toward full compliance with our May 
17, 1954 ruling.” The defendants in the instant case were 
not parties to the litigation above referred to but the prin­
ciples settled by that case are, of course, o f universal appli­
cation.

In the instant case the plaintiffs are some forty three chil­
dren of the Negro race who sue by their parents or guardians 
as next friend and with whom these parents or guardians 
have joined as plaintiffs in their individual capacities. The 
complaint sets out that the suit is brought by the plaintiffs 
in their own behalf and on behalf o f all other Negro children 
attending the public schools in Charlottesville. The defend­
ants are the School Board o f the City of Charlottesville and



15

Fendall R. Ellis, Superintendent of Schools o f that city.
Jurisdiction of this court is invoked under the Fourteenth 

Amendment to the Constitution, the Act o f Congress of 
May 31, 1870 (16 Stat. 144; 42 U. S. C. 1981) and under 
Title 2'8 U. S. C. Section 1343. Without going into a dis­
cussion of the several constitutional and statutory provisions 
under which jurisdiction is alleged and without excluding 
the applicability o f any of them, it is sufficient to say that 
the provisions o f Title 28. Sect. 1343, plainly support juris­
diction in this court. The decision of the Supreme Court in 
Brown v. Board of Education o f Topeka, Supra, established 
the right o f Negro children not to be discriminated against 
on account of their race in admission to the public schools, 
and the purpose of this action, as shown by the complaint, 
is to redress the deprivation of that right. See 28 U. S. C. 
1343 (3 ). The prayer of the complaint in brief substance is 
that the defendants and their successors in office be enjoined 
from enforcing the practice which has heretofore compelled 
that Negro children and white children be educated in sepa­
rate schools.

The case came on to be heard on the complaint and the 
answer thereto, and on the testimony in open court from 
several witnesses offered by each side. But neither the plead­
ings nor the testimony of the witnesses present any sub­
stantial issues of fact in the case. The answer of defend­
ants admits that the policy and the law of the State of 
Virginia require the maintenance o f separate schools for 
white and Negro children and that they, the defendants, are 
following that policy in the operation of the public schools in 
Charlottesville. Defendants admit that they have taken no 
steps whatever toward the abandonment or modification of 
this policy. Such matters of defense as are presented in the 
answer involve legal questions. To these the court has given



16

full consideration and has found none of them to offer a bar 
to the relief sought by the plaintiffs.

The defendants first assert that the laws of Virginia 
which require segregation in the public schools are not re­
pugnant to the Constitution of the United States but are 
within the police power of the state. This is merely a re­
assertion of the contention which the Supreme Court struck 
down in the case of Brown v. Board of Education. That the 
defendants recognize this is indicated by the fact that they 
do not press the subject in argument.

The answer embodies a motion to dismiss the action on 
several stated grounds. The first o f these is a brief allega­
tion that the court is without jurisdiction and that the pro­
ceeding involves no controversy upon which relief should be 
granted. This point was not argued and in my opinion, as 
previously indicated herein, is without merit.

It is further moved on behalf of the defendant, School 
Board of the City of Charlottesville, that the action be dis­
missed as to it on the ground that the School Board is an 
agency of the State of Virginia and the state has not 
given its consent to be sued in this action. The Code of 
Virginia, Sect. 22-94, provides :

“ The school trustees of each city shall be a body 
corporate under the name and style o f ‘The School
Board of the City of ----- --------- ’ , by which name it
may sue and be sued, contract and be contracted with, 
and purchase, take, hold, lease, and convey school prop­
erty, both real and personal. * * * ”

Counsel for defendants urge that this statute granting 
permission to sue a School Board is intended to apply only 
to actions in the courts o f the state. However the statute 
itself contains no such limitation. Its terms are compre­



17

hensive in that it makes a School Board suable without lim­
itation as to the forum in which or the persons by which it 
may be sued. Nor does there appear to be any other statu­
tory provisions or any decision o f the courts of the state 
which impose on Sect. 22-94 the limitations now suggested. 
In support o f their position defendants rely upon certain 
expressions in the opinion in the case of O ’Neill v. Early, 
208 Fed. (2d) 286, which arose in this Circuit and in which 
the opinion was written by Parker, Chief judge. This was a 
case in which a public school teacher sued a superintendent 
of schools and a School Board for damages for breach of 
contract for failure to re-employ the plaintiff as a teacher. 
In affirming dismissal of the action by the District Court 
the Circuit Court did so on the ground that no jurisdiction 
existed in the Federal Court, in that the purpose of the action 
was to establish liability against the state payable out of 
public funds, and was plainly a suit against the state. In the 
course of the opinion this language is used, and is apparently 
that on which defendants rely:

“ The fact that the state has authorized the defendant 
school board to sue and be sued is immaterial, since it 
has not consented to suit in the federal court. (Citing 
cases) Even if it had consented to be sued in the federal 
court, jurisdiction is lacking since no federal question 
is involved and there is no diversity o f citizenship in a 
suit which, although nominally against state officers, is 
in reality a suit against a state.” ( Citing cases )

Examination of the opinion from which the above quota­
tion is taken seems to make it clear that because the remedy 
sought was a money judgment, which would have had to be 
paid from state funds, the Court considered the action to be 
one against the state. But the case in all its aspects is so 
far different from that before this court as to give it no



18

applicability here. It is certain that the court did not mean 
to say that a state school board could not be sued in a federal 
court under any circumstances. In fact the same court with 
the same judges sitting and in an opinion also written by 
Parker, Chief Judge, upheld a suit against a school board 
where the plaintiff charged a violation of his constitutional 
rights. Alston v. School Board of City of Norfolk, 112 Fed. 
(2d) 992. Also in Corbin v. School Board of Pulaski 
County, 177 Fed. (2d) 924, and in Carter v. School Board 
of Arlington County, 182 Fed. (2d) 531, this same Circuit 
Court entertained suits against local school boards where 
violation o f constitutional rights were charged.

It is true that it does not appear that there was raised in 
any of these cases the point now urged upon this court, 
namely, that the suit is one against the state and that there­
fore the court is without jurisdiction. Neither does it appear 
that this defense was offered in any of the four cases de­
cided by the Supreme Court under the reported title of 
Brown v. Board of Education, supra, including the case of 
Davis v. School Board of Prince Edward County. Consid­
ering the strenuous nature o f the defenses offered in these 
cases it seems strange that this defense, which if valid would 
have been a complete defense, was overlooked. However 
this may be it seems clear that the contention made is with­
out merit. It has long been settled that suits against state 
officers to restrain the enforcement of state laws which con­
travene the Federal Constitution are not suits against the 
state. See Dobie on Federal Procedure, Sect. 133, where in 
treatment of this subject it is said:

“ Such suits are treated as suits against the officers, 
not against the state; so they do not come within the 
prohibition o f the Eleventh Amendment. This princi­
ple, applied by the Supreme Court in a long series of



19

decisions, is now well established.” ( Citing numerous 
cases)

And, of course, where the subject matter of a suit is the 
protection of rights secured by the Constitution of the 
United States the federal courts have jurisdiction. In 
Sterling v. Constantin, 287 U. S. 378, suit was brought 
against several officials o f the State of Texas including the 
governor of the state. The Supreme Court held that even 
the governor of a state was subject to the process of the 
federal courts for the relief of private persons when by his 
acts under color o f state authority he invades rights secured 
to them by the Federal Constitution, and that the suit was 
not one against the state ; the Court, speaking through Chief 
Justice Hughes, saying (p. 393) :

“ The District Court had jurisdiction. The suit is not 
against the state. The applicable principle is that where 
state officials, purporting to act under state authority, 
invade rights secured by the Federal constitution, they 
are subject to the process of the federal courts in order 
that the persons injured may have appropriate relief.” 
citing Ex parte Young, 209 U. S. 123, 155, 156, and 
other cases.

In Looney v. Crane Co., 245 U. S. 178, which was a suit 
against the Secretary of State and the Attorney General of 
the State of Texas to enjoin the enforcement of a taxing 
statute alleged to be in violation of the Constitution of the 
United States, the Supreme Court closes its opinion (by 
Chief Justice White) with this paragraph (p. 191).

“ There is a contention to which we have hitherto 
postponed referring, that the court below was without 
jurisdiction because the suit against the state officers to 
enjoin them from enforcing the statutes in the dis­



20

charge of duties resting upon them was in substance 
and effect a suit against the State within the meaning 
of the Eleventh Amendment. But the unsoundness of 
the contention has been so completely established that 
we need only refer to the leading authorities. Ex parte 
Young, 209 U. S. 123; Western Union Telegraph Co. 
v. Andrews, 216 U. S. 165; Home Telephone & Tele­
graph Co. v. Los Angeles, 227 U. S. 278”

The answer also includes a motion to dismiss the action 
as to Fendall R. Ellis, Superintendent o f Schools of the City 
of Charlottesville, who is a named defendant. This motion 
also must be denied. The court takes notice of the fact that 
the Division Superintendent of Schools, whether in a city 
or county, exercises a greater influence over the operation 
o f the schools than anyone else, including the School Board. 
The powers and duties o f the Division Superintendent, 
which are fixed by the State Board of Education, are broad 
and extend to almost every detail in the management of the 
schools. To dismiss this official as a defendant might well 
nullify, or certainly lessen, the effectiveness of any decree 
that is entered here by making it non-applicable to the per­
son having a large share in the responsibility for carrying it 
out.

Finally the defendants have moved that the action be dis­
missed on the ground that plaintiffs have not made a case 
appropriate to the relief sought, in that no evidence has been 
introduced showing that the school authorities o f Charlottes­
ville have ever denied the application of any Negro child for 
admission to any school in the city or that such an applica­
tion has been made by any Negro. This motion rests on the 
tenuous support of the failure of any individual Negro child 
to file a formal application for admission to a school hereto­



21

fore reserved for white children. Under the pleadings and 
the evidence in the case it is plain that the motion to dismiss 
on this ground is without merit and must be denied.

The evidence shows that in October, 1955, the plaintiffs 
in this case, through their attorneys, addressed a communi­
cation to the School Board of Charlottesville and to Mr. 
Ellis, the Superintendent of Schools, in which they referred 
to the ruling of the Supreme Court in its opinions of May 17, 
1954, and May 31, 1955, and then said:

"'‘W e therefore call upon you to take immediate steps 
to reorganize the public schools under your jurisdiction 
so that children may attend them without regard to 
their race or color. * * * As we interpret the (Supreme 
Court) decision, you are duty bound to take immediate 
concrete steps leading to early elimination of segrega­
tion in the public schools. * * * W e further request that 
you will give us an early reply setting forth your initial 
plans for desegregation.”

Several weeks later the School Board made its reply in 
a communication which, while giving no direct answer to 
plaintiff’s requests, made it clear that it intended to pursue 
the policy of segregation for the school session of 1955-56; 
and as to the future it gave no assurance whatever. In fact 
the School Board’s reply, while plainly evasive, nevertheless 
gave the distinct impression that it was making no plans to 
discard the policy of segregation at any time. This is con­
firmed by the admissions made at the hearing o f the case 
that no steps whatever have been taken to this time to com­
ply with the ruling of the Supreme Court. The prayer of the 
complaint is in substance that the defendants be enjoined 
from continuing to maintain segregated schools. The de­



22

fendants have refused to agree to abandon the practice of 
segregation and have made it plain that they intend, if pos­
sible, to continue it. Under this state of facts the plaintiffs 
are undoubtedly entitled to maintain this action and to have 
the relief prayed for.

It only remains to be determined as to the time when an 
injunction restraining defendants from maintaining segre­
gated schools shall become effective. The original decision 
o f the Supreme Court was over two years ago. Its supple­
mentary opinion directing that a prompt and reasonable 
start be made toward desegregation was handed down four­
teen months ago. Defendants admit that they have taken no 
steps toward compliance with the ruling of the Supreme 
Court. They have not requested that the effective date of 
any action taken by this court be deferred to some future 
time or some future school year. They have not asked for 
any extension o f time within which to embark on a program 
o f desegregation. On the contrary the defense has been one 
of seeking to avoid any integration of the schools in either 
the near or distant future. They have given no evidence of 
any willingness to comply with the ruling o f the Supreme 
Court at any time. In view of all these circumstances it is 
not seen where any good can be accomplished by deferring 
the effective date of the court’s decree beyond the beginning 
of the school session opening this Autumn. Even though 
the time be limited it is not impossible that, at the school ses­
sion opening in September of this-year, a reasonable start be 
made toward complying with the decision of the Supreme 
Court.

D istrict Judge

August 6, 1956



23

APPENDIX V

A.

M OTION TO DISMISS FENDALL R. ELLIS 
(Tr. pp. 6-7)

Mr. A lmond : Thank you, Sir.
On behalf o f this defendant, the Division Superintendent, 

we move, as to him, that the complaint be dismissed for 
failure to state a claim against him upon which appropriate 
relief could be granted; also that he is not a proper party 
to this proceedings, and if the Court should hold that he is 
a proper party, certainly he is not a necessary party, which 
latter phase o f the argument, as I understand it, would ad­
dress itself to the sound discretion of the Court.

B.

DENIAL OF M OTION TO DISMISS 
FENDALL R. ELLIS 

(Tr. pp. 14-15)

T he Court: Mr. Attorney General, I think your motion 
will have to be denied.

I don’t know too much about the operation of the school 
system but I know the school board is made up of citizens 
selected for their public spirit, who meet occasionally and 
go over the school budget and make recommendations to the 
City Council and lay out certain policies.

But at the head of any school in any city is the County 
Superintendent o f Schools. I f  he has nothing to do with 
admission of pupils in one school or the other, then he cannot 
run any danger whatever o f any violation o f any decree that 
this Court should enter, if it should enter one.

But the purpose o f this Act is to reach the persons who 
might be influential in having determination over what



24

children shall enter what schools and to restrain them from 
the exercise of discrimination on account of race; and 
I do know enough about the school system to know that the 
Division Superintendent, County and City Superintendents, 
are the most influential persons in the conduct of the schools 
either in any county, or city, and that the intimate knowledge 
of the schools, of what is going on in the schools, is not 
ordinarily possessed by the average school board; and I 
think the injunction, if one should be granted, should reach 
every person who might have any influence or power in the 
determination of the assignment, or refusal, of children to 
particular schools.

As I said a minute ago : if the City Superintendent does 
not have such influence, does not take any such part, does 
not attempt to do so, then he runs no risk of having violated 
any injunction. That would be a question of fact.

I don’t know exactly how they run the city schools in 
Charlottesville or to what extent the City Superintendent 
is influential, but judging from my own observation, par­
ticularly in my own locality, the City Superintendent is the 
real power behind the schools.

So he won’t be hurt, if he is retained as a party, if he 
does not violate any injunction which might be granted.

I think I might keep him in.

C.

M OTION TO DISMISS ON GROUND THAT STATE 
HAS NOT CONSENTED TO BE SUED 

(Tr. p. 16)

Mr. Battle : Your Honor please: This petition was filed 
by certain persons against “ The School Board of The City 
of Charlottesville, Virginia; and Fendall R. Ellis, Division



25

Superintendent of Schools o f the City o f Charlottesville, 
Virginia.”

The petition alleges that the School Board is an admin­
istrative arm of the Commonwealth of Virginia, in the 
operation of the schools.

Substantially the same allegation is made with reference 
to the Superintendent of Schools; and I understand that 
process was served upon the Superintendent and upon the 
Chairman of the School Board.

W e wish to move the Court to dismiss this action as being, 
in effect, a suit by individuals against the Commonwealth of 
Virginia, in contravention of the Eleventh Amendment to 
the Constitution.

D.

DENIAL OF M O T IO N  TO  DISMISS ON  GROUND 
TH A T STATE HAS N O T CONSENTED TO  BE SUED

(Tr. pp. 36-37)

T he Court: I have read this Answer and I saw that 
defense drawn up. I was surprised, certainly, that that 
question, if it had any validity it would not have been raised 
in the Supreme Court; and assuming that it had, it is evi­
dent the decision of the Supreme Court held it to be of no 
merit.

In addition to that, I recalled— and which I looked up, 
again— the statute which makes the school board a corpo­
rate entity, with the right to sue and be sued; and I also 
recall that, within the past year, several lawyers, Members 
of the Legislature, had advocated repeal of the Statute per­
mitting the school board to be sued, as one of the methods 
of evading compliance with the Supreme Court decision.

So I began to look into the question, myself, and I came 
to the ‘tentative’— of course— conclusion that there was no



26

validity to that defense. O f course, I came to that ‘tentative,’ 
as I say, conclusion, without hearing argument. But I have 
heard the arguments of you Gentlemen this morning and I 
am, still, of that opinion that I reached previously: that the 
defense is without merit.

This is not a suit against the State.
The policy of the State has been fixed by the decision of 

the Supreme Court, policy of segregation decision o f the 
Supreme Court.

This is merely a suit against a group of the local School 
Board to prevent them from discriminating against these 
plaintiffs in the exercise of certain rights which the Supreme 
Court decision granted to them; similarly, the suits on what 
is called the “ Civil Rights Act,” and I have never heard they 
have been considered to be suits against the State, where 
local officers have been sued for violation o f the civil rights 
of the defendants, to be a suit against the State.

This is a suit very similar, of a very similar nature, if not 
o f an exact nature.

The motion to dismiss on that ground will be denied.

APPENDIX VI

A.

PLAINTIFFS’ EXHIBIT “A”
(Tr. pp. 39-42)

PE TITIO N

T O : The School Board of the City of Charlottesville, 
Virginia, and Mr. Fendall R. Ellis, Division 
Superintendent of Schools:

W e represent the following named children, their parents 
or guardians. These children are o f school age and attend,



27

or are eligible to attend, public elementary or secondary 
schools under your jurisdiction:

Doris Marie Allen and Shirley Elizabeth Allen, infants, by 
Mason C. Allen and Mary Allen, their father and mother, 
respectively, and next friend,

Linda E. Arnett, an infant, by Bennie M. Arnett, her mother 
and next friend,
Cynthia Cooper, an infant, by Granville Cooper and Bertha 
Cooper, her father and mother, respectively, and next friend,

Carolyn M. Dobson, an infant, by Sarah B. Brooks, her 
guardian and next friend,

Robert L. Drakeford, an infant, by Robert C. Drakeford, 
his father and next friend,

Olivia L. Ferguson, an infant, by George R. Ferguson, her 
father and next friend,

Charles D. Fowler, III, an infant, by Charles D. Fowler, Jr., 
his father and next friend,

Marshall H. Garrett, Paul C. Garrett and Russell K. Gar­
rett, infants, by Marshall T. Garrett, their father and next 
friend,
Gloria Hamilton and Melvina Hamilton, infants, by Ger­
trude Hamilton, their mother and next friend,

Jacqueline Harris and June Harris, infants, by Alois Har­
ris, their mother and next friend,

Jasper Jones, Jr., an infant, by Ruth P. Jones, his mother 
and next friend,
William Ware Jones, an infant, by Lucille W . Jones, his 
mother and next friend,



28

Alfred Martin, John J. Martin, Donald Martin and Kenneth 
Martin, infants, by Julia Martin, their mother and next 
friend,

Nathaniel T. Maupin, an infant, by Moses C. Maupin, his 
father and next friend,

Reginald Moss, Jr., Jacqueline Moss and Patricia Moss, in­
fants, by Reginald R. Moss and Hazel Moss, father and 
mother, respectively, and next friend,

Katheryne Robinson, Roberta Robinson and Rodney Robin­
son, infants, by Rodney L. Robinson, their father and next 
friend,
Alfred Saunders and Judy Saunders, infants, by Alfred 
Saunders and Mary Saunders, their father and mother, re­
spectively, and next friend,

Joyce A. Smith, Carolyn E. Smith, infants, by William M. 
Smith, their father and next friend,

Rudolph Taylor, Louise L. Taylor, Dorothea A. Taylor, 
Morris E. Taylor and Lamilla Taylor, infants, by Louise 
Taylor, their mother and next friend,

Marvin L. Townsend, an infant, by Thelma Townsend, his 
mother and next friend,

Roberta Whitlock, an infant, by Robert C. Whitlock, her 
father and next friend,

Sherman R. White, an infant, by Randolph L. White, his 
father and next friend,

Robert S. Wicks, Jr., an infant, by Robert S. Wicks, Sr., 
his father and next friend,

Roland T. W oodfolk and Ronald E. Woodfolk, infants, by 
Mary A. W oodfolk, their mother and next friend,



29

Roland H. Young, an infant, by Howard Barnes, his guard­
ian and next friend.

On May 17, 1954, the Supreme Court o f the United 
States ruled that racial segregation in public school is a vio­
lation of the Constitution of the United States, The Su­
preme Court reaffirmed that principle on May 31, 1955, and 
directed “ good faith compliance at the earliest practicable 
date.”  You have the responsibility o f reorganizing the 
school system under your jurisdiction so that children of 
school age attending and entitled to attend public schools will 
not be denied admission to any school or be assigned to a 
particular school solely because of race or color.

W e, therefore, call upon you to take immediate steps to 
reorganize the public schools under your jurisdiction so that 
children may attend them without regard to their race or 
color.

The May 31st decision of the Supreme Court, to us, means 
that the time for delay, evasion or procrastination is past. 
Whatever the difficulties in according our clients their con­
stitutional rights, it is clear that the school board must meet 
and seek a solution to that question in accordance with the 
law of the land. As we interpret the decision, you are duty 
bound to take immediate concrete steps leading to early 
elimination of segregation in the public schools.

Please rest assured o f our willingness to serve in any way 
we can to aid you in dealing with this question. W e further 
request that you will give us an early reply setting forth your 
initial plans for desegregation.

Respectfully submitted,

(s ) Oliver W . Hill
Oliver W . Hill, o f Counsel



30

B.

PLAINTIFFS’ EXHIBIT “B”
(Tr. pp. 43-45)

C H A R LO TT E SV ILL E  PU BLIC SCHOOLS 
406 Fourteenth Street 

Charlottesville, V irginia

October 17, 1955

Mr. Oliver Hill 
Hill, Martin and Robinson 
623 North Third Street 
Richmond 19, Virginia

Dear Mr. H ill:

I am enclosing a Resolution adopted by the School Board 
of the City of Charlottesville at its regular meeting on Oc­
tober 8 in reply to a Petition received from you on October 6, 
1955.

Very truly yours,

(s ) Fendall R. Ellis 
Fendall R. Ellis, 
Superintendent.

FR E/ds
Enclosure.

Whereas, the School Board of the City of Charlottesville 
has received a Petition from Hill, Martin and Robinson, 
counsel for “ certain children, their parents and guardians” 
listed in said Petition “ requesting an early reply.”

Now, therefore, be it resolved, That the Board submit the 
following reply:



31

The School Board believes that it was not the intent of 
the Supreme Court’s decision of May 17, 1954, and subse­
quent decrees o f May 31, 1955, to disrupt a system of public 
education. Therefore, the problem confronting the Board is 
to find a solution which will conform to the Supreme Court’s 
interpretation of the law and be acceptable to parents and 
taxpayers who use and support the public schools. Such a 
solution can be found only after sober reflection over a 
period o f time.

The position of the School Board with reference to this 
problem is stated in the following Resolution adopted by the 
Board on July 8, 1955 :

“ Whereas, It is the policy o f the State Board o f Educa­
tion that the public schools o f the Commonwealth open and 
operate throughout the coming school session as heretofore,

“ Be it further resolved, That this Board constitute itself 
a committee of the whole to begin promptly a study o f the 
future operation of the City’s public school system in the 
light of the Supreme Court decrees o f May 31, 1955 and 
such other decisions and decrees as may affect future opera­
tions of the public schools.”

And he it further resolved, That the Petition aforesaid 
be, and it hereby is, referred to the Committee of the Whole 
for consideration and study, with such recommendations as 
the Committee may have to be made as a part o f its Report 
to this Board.

October 13,1955.



32

APPENDIX VII

A.

PLAINTIFFS’ WITNESS GEORGE R. FERGUSON 
(Tr. pp. 47-51)

George R. Ferguson, called as a witness on behalf o f the 
plaintiffs herein, being first duly sworn, testified as follows:

DIRECT EXAM INATION

By M r. H il l :
Q Will you state your name, address and occupation, 

please?
A  George R. Ferguson, 908 Page Street. Mortician.

Q Mr. Ferguson, what country are you a citizen of ?
A  The United States of America.

Q O f what racial identity ?
A  Negro.

Q Do you have a child ?
A  One child.

Q What is the age of the child ?
A  14.

Q Does the child attend the public schools o f Charlottes­
ville ?

A  Yes.

Q Or did she attend the public schools o f Charlottesville 
for the school session, 1955-1956?

A  She did.

Q State the name of your child, please?
A  Olivia Louise Ferguson.



33

Q And you and she were one o f the petitioners to the 
School Board ?

A  Yes.

Q And one o f the complainants in this case ?
A  Yes.

Q Will you state what school your child attended during 
the school session, 1955-1956?

A  Burley High School.

Q And in the years prior to that, what school or schools 
did your child attend ?

A  Jefferson Elementary School.

Q Was last year the first year she attended high school?
A  Second year.

Q Prior to going to Burley, she attended the Jefferson 
High School? I mean, Jefferson Elementary School.

A  First seven grades.

Q And both of those schools are located in the City of 
Charlottesville and come under the jurisdiction of The 
School Board o f the City o f Charlottesville ?

A  Jefferson under the jurisdiction of the Charlottesville 
Board; Burley, joint Board, Albemarle County and City of 
Charlottesville.

Q Was there, during the school year o f 1955-1956, and 
school year o f 1954-1955, any other high school to which 
your child would have been permitted to attend ?

A  No.

Q Will you state your address, Mr. Ferguson?
A  I gave my business address. My residence address is 

702 Redd Street.



34

Q Where is that?
A  In the southwest section of the City.

Q O f Charlottesville?
A  That is right.

Q Now, the Burley High School, where your child 
attended last year, what is the racial designation o f pupils 
who attend there, or do you know the racial designation of 
pupils who attend there ?

A  Negro.

Q Do any white children attend that school ?
A  Not that I know of.

Q And the Jefferson High School, what is the racial 
designation o f the children who attend that school? The 
Jefferson Elementary School?

A  Negro.

Q Now, are you familiar with some of the other plain­
tiffs in this suit ?

A  Yes, I am.

Mr. H il l : I guess the simplest thing would be just to 
call their names and ask you whether or not you know them.

Q Do you know Mason Allen and Mary Allen ?
A  Yes, Ido.

Q Do you know their children ?
A  Yes.

Q Will you state their racial designation ?
A  Negroes.

Mr. A lmond: W e will admit all of them are Negroes, 
referring to the complaint.



35

Mr. H il l : Defendants admit that the complainants are 
all Negroes.

Q (By Mr. Hill, continuing) I will ask you, Mr. Fer­
guson, if you have seen these names ?

A  Yes, I have.

Q And all o f these people are residents of the City o f 
Charlottesville ?

A  Yes.

M r. A lmond : W e will admit that, too.

Mr. H il l : The only other question: whether or not the 
defense admits these parents have children eligible to attend 
school ?

Mr. Battle : I think you had better go ahead and prove 
your case.

Mr. H il l : Will you admit these children are eligible to 
attend the public schools o f Charlottesville ?

Mr. Battle : As far as we know. W e don’t controvert 
that.

Mr. H ill : All right.

Mr. H il l : That is all. You may cross-examine.

Mr. A lmond: No questions, Your Honor.

B.

PLAINTIFFS’ ADVERSE WITNESS 
FENDALL R. ELLIS 

(Tr. pp. 52-66)

Fendall R. Ellis, called as an adverse witness, under Rule 
40, being first duly sworn, testified as follows:



36

CROSS-EXAMINATION

By Mr. H il l :
Q W ill you state your name, address and occupation?
A  My name is Fendall R. Ellis. I live at 1505 Rutland 

Avenue, Charlottesville, Virginia. My occupation is Super­
intendent o f Schools of the City of Charlottesville, Virginia.

Q And you are one of the defendants in this suit ?
A  I am.

Q Now directing your attention, Mr. Ellis, to early in 
October 1955, I will ask you whether or not you and the 
School Board did not receive this Petition? (Handing docu­
ment to the witness)

A  W e received it.

Mr. H il l : May it please the Court, Governor Battle 
wants this —

T he Court: (Interrupting) Did you identify the Peti­
tion?

Q (By Mr. Hill, continuing) Did you receive this 
Petition from the named citizens of the City of Charlottes­
ville, who are also complainants in this present action, is that 
correct ?

A  Yes.

T he Court : What is the substance of it ?

Q This was a Petition, was it not, Sir— I will ask you 
to read the prayer of the Petition to the Court.

A  After the listing o f certain names, the prayer of the 
Petition seems to be :

“ We, therefore, call upon you to take immediate steps to 
reorganize the public schools under your jurisdiction so that



37

children may attend them without regard to their race or 
color.”

T he Court : Let me see that.

Mr. H il l : W e would like to have this marked “ Plain­
tiffs’ Exhibit ‘A ’ ”  and then move its admission.

Reporter’s Note : Plaintiffs’ Exhibit A  was filed, (Page 
38) and fully set forth (Page 39) herein.

Mr. H il l : (Repeating) Now, may it please the Court, 
I move the admission of this document, Plaintiffs’ Exhibit 
A, in evidence in this case.

T he Court: All right.

Mr. H ill : Simultaneously, I would like to ask to with­
draw this and substitute a copy.

Q (By Mr. Hill, continuing) Mr. Ellis, how long have 
you been Division Superintendent of the Charlottesville 
Public Schools, o f Charlottesville, Virginia?

A  In the City o f Charlottesville ?

Q Yes, Charlottesville?
A  Since July 1st, 1953.

Q And where else have you been ?
A  Wythe County, Virginia, July 1, 1945 to June 31, 

1953.

Q Since you have been Superintendent of Schools in 
Charlottesville, what has been the practice of the adminis­
tration and school board in the City of Charlottesville so far 
as placing students, with respect to their racial identity ?

A  At the present time, we have six elementary schools, 
five of which are attended by white children and one of 
which is attended by negro children: we have a high school,



38

which is attended by white children, and a high school, 
jointly owned and operated by the City o f Charlottesville 
and County o f Albemarle, which is attended by negro chil­
dren.

Q At any time since you have been Superintendent, from 
1953 up to the end of the last school year here in June of 
1956, would a negro child, upon application, have been ad­
mitted to any school in the City of Charlottesville, otherwise 
qualified to attend a school in the City of Charlottesville ?

M r. Battle: W e object.

T he Court : I don’t think he has completed the question, 
yet.

Mr. Battle : I beg your pardon.

Q (By Mr. Hill, continuing) Restating the question, 
I will ask you, again, if at any time since you have been 
Superintendent of Schools, in the City of Charlottesville, if 
a negro child of parents residing here in the City of Char­
lottesville, within the age limits, who applied for admission 
to a school, would that child have been admitted to any school 
in the City of Charlottesville, regardless whether elementary 
or high school ?

Mr. A lmond: We object.

T he Court: What is your objection, Mr. Almond?

Mr. A lmond: During the time o f Counsel’s question, 
the policy now contended against, was conducted under sanc­
tion of law, well settled, even by the Supreme Court o f the 
United States. That is one ground of our objection, as to 
the propriety and relevance of the question. The other is, it is 
not what “ has been done,”  in the past: the question is, as 
to the policy that would be invoked or used for a session of



39

school, that is not in session but that will be in session, in 
all probability, in September.

T he Court: Mr. Attorney General, the answer to the 
question is perfectly obvious, and a harmless one. W e all 
know negroes have been compelled to attend negro schools in 
Virginia, in pursuance to statutory law of the State, which 
was the statutory law of the State until nullified by the 
Supreme Court decision.

W e also, all know that local school authorities have not 
felt free to follow the Supreme Court decision, themselves, 
without some direction from State authorities, or something 
of that sort; and that the policy of segregation still exists 
generally over the State.

Don’t we all know that ?
In fact, the very purpose of this suit is to bring about a 

change in that situation, isn’t it ?

Mr. Battle: If Your Honor please, but this witness—  
if I may express my thought?— this witness is being asked 
to answer “ What would have been the situation had a cer­
tain thing occurred ?” and this witness—

T he Court: (Interrupting) During what period of
time?

Mr. Battle : During the period of time indicated in the 
past.

Mr. H ill : From 1953 up to last June.

Mr. Battle: W e submit that the witness is not compe­
tent to answer that question. He has no discretion over the 
question of admission of pupils.

T he Court : Oh, that is your objection ? You are not ad­
mitting he has anything to do with the admission o f school 
children?



40

M r. Battle: Yes.

Mr. H ill : I asked, by whose order it was done. I asked, 
what was the fact ?

Mr. Battle: Y ou asked “ what would have happened, if 
a certain thing happened ?”

T he Court: He may answer. If he doesn’t know what 
happened, he can say he doesn’t know.

Q (B y Mr. Hill, continuing) Answer the question, 
please.

A  What is the question ?

Mr. H ill : Read the question, please.

T he Reporter reads the question.

Q (By Mr. Hill, continuing) Now the letter merely is 
a covering letter, sending the resolutions, was it not, Sir ?

A  Yes.

Q Will you read, for the benefit o f the Court, the reso­
lution? and that resolution, Sir, was in response to this 
Petition referred to as Plaintiffs’ Exhibit A, is that correct?

A  Yes.
(Reading) “ Whereas, The School Board o f the City of 

Charlottesville has received a Petition from Hill, Martin and 
Robinson, counsel for ‘certain children, their parents and 
guardians’ listed in said Petition ‘requesting an early reply.’

“Now, therefore, he it resolved, That the Board submit 
the following reply:

“ The School Board believes that it was not the intent of 
the Supreme Court’s decision of May 17, 1954 and subse­
quent decrees of May 31, 1955 to disrupt a system o f public 
education. Therefore, the problem confronting the Board 
is to find a solution which will conform to the Supreme



41

Court’s interpretation of the law and be acceptable to par­
ents and taxpayers who use and support the public schools. 
Such a solution can be found only after sober reflection over 
a period of time.

“ The position of the School Board with reference to this 
problem is stated in the following Resolution adopted by the 
Board on July 8,1955 ;

“ Whereas, It is the policy of the State Board of Education 
that the public schools o f the Commonwealth open and op­
erate throughout the coming school session as heretofore,

“Be it resolved, That the School Board of the City of 
Charlottesville operate the public schools of the City for 
the school year 1955-56 on the same basis as heretofore, and

“ Be it further resolved, That this Board constitute itself 
a committee o f the whole to begin promptly a study of the 
future operation of the City’s public school system in the 
light of the Supreme Court decrees of May 31, 1955 and 
such other decisions and decrees as may affect future opera­
tions of the public schools.”

“And he it further resolved, That the Petition aforesaid 
be, and it hereby is, referred to the Committee of the Whole 
for consideration and study, with such recommendations as 
the Committee may have to be made as a part of its Report 
to this Board.

“ October 13, 1955.”

Q (By Mr. Hill, continuing) Now pursuant to law, 
under your supervision, a budget is submitted to the City 
Council for the operation o f the public schools in the school 
year, 1956-1957, and which is submitted in about March, is 
that not right, Sir?

A  It is required, by law, to be submitted before April 
1st; ordinarily, it is submitted well before that.



42

Q And in pursuance o f your duties and functions, you 
and the School Board made your proper plans for the en­
suing year, and prepared your budget, did you not ?

A  A  budget was prepared, with the advice and counsel 
of the School Board, as required by law: was submitted to 
the City Council, for 1956-1957, and has been approved.

Q And necessarily, you formulated your plans for the 
conduct of the schools for the session, 1956-1957, did you 
not?

A  What do you mean by that ?

Q Well, I mean that, by the time you submitted your 
budget, you pretty well knew what you proposed to do, as 
far as operation of the schools for 1956-1957, did you not? 
I mean, you project your plans into the future and you base 
your budget and everything under the proposed operation 
of your schools for the coming year, is that correct ?

A  That is true: the budget is based on the number of 
teachers you expect to have and other considerations.

Q And the general plan of operation for the coming 
year, and that is one reason for having a “ budget,”  so you 
could plan ?

A  I think so.

Q And you did do that, did you not ?
A  Yes.

Q Well, on or about April 6, 1955, you received a letter 
from me, did you not ?

A  Yes.

Q Asking you, generally —  referring to this previous 
communication with you— and asking you what you pro­



43

posed to do concerning the school year, 1956-1957, with 
respect to desegregation of schools, is that correct ?

A  Yes.

Mr. H il l : If the Court please, Counsel had planned to 
produce the copy but was unable to find it, so we will just 
handle it in this manner:

Q (By Mr. Hill, continuing) I will show you a letter 
dated April 13th, written on the stationery of the School 
Board of the City of Charlottesville, and signed by you, and 
ask you : Is that not the reply that you sent in response to 
my inquiry of April 6th, 1956?

A  Yes.

Q And this is the response, that was signed by you ?
A  Yes.
Q And it was the response made by the School Board ?
A  This gives the action of the School Board, in compli­

ance with your request.

Mr. H il l : Now I ask that this be marked Plaintiffs’ 
Exhibit C, and I will offer it in evidence.

Plaintiff’s Exhibit C, last above referred to, filed.

Q (By Mr. Hill, continuing) Now Mr. Ellis, I will ask 
you to read Plaintiffs’ Exhibit C, which has been offered in 
evidence, to the Court, please.

A  (Reading)
“ School Board of the City of Charlottesville 
“ Office o f the Superintendent 
“ Charlottesville, Virginia 
“ 406 Fourteenth Street 
“ April 13, 1956



44

“ Mr. Oliver W . Hill 
Hill, Martin and Olphin 
118 East Leigh Street 
Richmond 19, Virginia

“ Dear Mr. H ill:

“ In reply to your letter o f April 6, I wish to advise that 
the School Board at a meeting on April 12 passed the follow­
ing Resolution:

“ On motion duly made and carried, the Board instructed 
the Superintendent to notify Mr. Hill that no action had been 
taken in this matter beyond that about which he had been 
previously notified.

“ Very truly yours,

“ (s)  Fendall R. Ellis 
Fendall R. Ellis, 
Superintendent”

FR E/ds

Q (By Mr. Hill, continuing) Now the sum and sub­
stance of that is : the situation is just as it was in October, 
when we first petitioned, is that correct ?

A  (N o reply)

Mr. Battle : He didn’t say.

Mr. H ill : But I asked him about it.
A  “ The situation” is a very broad term. I don’t know 

just what you mean by it?

Q All right, Sir. I will ask you this: does the School 
Board of the City of Charlottesville plan, at this time, to 
desegregate the City School for the school term 1956-1957?

A  No.



45

Q Or any other period foreseeable, in the foreseeable 
future that you know o f ?

A  No plan has been approved, as indicated in that letter 
■— resolution.

M r. H ill : That is all, Sir.

T h e  Court : Just a minute, Mr. Ellis.

E X A M IN A T IO N  B Y  T H E  CO U R T:

Q Mr. Ellis, —-
T he Court: (Interrupting) First, do you Gentlemen 

have any examination?

Mr. A lmond : W e may put him on, in chief, Your Honor.

T he Court : All right.

Q (By The Court, continuing) What is the school pop­
ulation of the City of Charlottesville ?

A  The school population at the last session, 4350 chil­
dren.

Q Which includes white and negro children ?
A  Both white and negro children.

Q In what proportions ?
A  In elementary, approximately 2450 white and 750 

negro.

Q And you said the total was, how much ?
A  About 4350.

Mr. Battle : I have the exact figures. Maybe Mr. Ellis 
— if he can refer to them ?



46

T he Court: Yes. I will be glad to have him do so.

Mr. Battle : ( Hands document to the witness )
A  (Referring to document) 2436 white children.

Q (By the Court, continuing) In the grade schools?
A  Elementary grades, first seven grades; and 761 negro, 

enrolled in elementary school: 897 white, 281 negro children 
in the high schools. (Returning document to Mr. Battle)

Q That was for the last session ?
A  Yes, sir.

T he Court : That is all I wanted to ask the witness. 

(Witness excused)

Mr. H ill : Plaintiffs rest. Your Honor.

APPENDIX VIII

A.

M OTION TO DISMISS FOR LACK OF EVIDENCE 
IN SUPPORT OF COMPLAINT 

(Tr. p. 66)

Mr. A lmond : At this stage o f the proceedings, Plain­
tiffs having rested, put on their case in chief, we ask the 
Court to entertain a motion to dismiss the complaint as on 
the evidence introduced in support thereof, they have not 
made a case, under the law and the evidence, appropriate to 
the relief sought: * * *



47

B.

DENIAL OF M OTION TO DISMISS 
FOR LACK OF EVIDENCE 

(Tr. pp. 73-76)

Mr. H ill : May it please the Court —

T he Court: (Interrupting) Nevermind.
Mr. Attorney General, I don’t think it is a matter of 

material importance as to whether or not each child has 
made application to a school.

This group has made, filed with the School Board, what 
they call a “ Petition,”  asking them to adopt the policy of 
desegregating the schools under the Supreme Court decision. 
If they had, the School Board had replied in the affirmative 
to that request, then there would have been the question o f 
admission of the children to particular schools, no child to 
certain schools they had not, heretofore, been allowed to 
enter and the question of individual applications might arise.

But the Board refused to state that they would adopt a 
policy of desegregation. If I heard correctly their answer 
to these Petitioners, it was that they intended, for the pres­
ent, to continue the policies which they had followed in 
years past.

Well, that being the case, of course there was no room for 
application or reason for individual applications to the 
School Board. They presented the question to the School 
Board and the School Board said, in effect, they intended 
to continue segregation in the public schools o f this City, and 
I think that was a sufficient basis for the suit.

I agree with you that, if these plaintiffs succeed in getting 
a favorable decree, it doesn’t mean that every school door 
is going to be thrown open to everybody that is going to 
rush into it. It may be that certain schools are already



48

crowded; and while other schools have adequate facilities, it 
may be that certain applicants for admission to the high 
school will be found not to be qualified for admission to the 
high school.

There are various valid reasons why a particular child, 
negro child, might not be allowed to enter any particular 
school that it desired, but that reason must not be because 
he is a Negro. It must be some valid reason, o f a different 
sort.

Now 1 agree with you on that.
And I don’t think any decree would be sweeping enough 

to say to “all” o f the negro children in Charlottesville: “ You 
can go— next September, you can go to whatever school you 
want to.”  It might be that there were reasons, say, of resi­
dence : they may want to go to a school distant— in a distant 
part o f the City, from where they reside, where another 
school is available to them; and it might be the policy of the 
City to have children, at particular points of the City to go 
to particular schools.

I understand them to say there are five white schools in 
the City, and one elementary school. It might have been the 
policy for years,— I don’t know whether it is required by 
City Ordinance or not; I am not certain of that, but it has 
been the policy for a great many years to designate certain 
areas o f the City— north or east o f certain areas, and cer­
tain residents to attend certain schools— and that will keep 
them from flocking into the newest school and crowding 
into one particular school. They try to equalize the facilities 
o f the schools, as much as they can.

But those are reasonable discriminations.
That is an example, and I cite that as an example. The 

qualification of a pupil for high school or any other school, 
is a legitimate reason— considering the application.



49

And then, a decree would not mean there is a free choice 
o f every negro, or white child, to go to a school their par­
ticular fancy might dictate.

But first, the policy of discontinuing the segregated 
schools has been proposed here to the School Board and as 
I understand it, they answered they intended to continue, 
for the present, segregated schools in accordance with their 
past policy, and I think that was a sufficient basis for the 
suit, and I think, in that respect, the plaintiffs have proven 
their case. So,—

I cannot grant your motion to dismiss.

APPENDIX IX  

A.

DEFENDANTS’ EXH IBIT No. 2 — DEPOSITION  
OF FENDALL R. ELLIS 

(Tr. pp. 87-92)

Fendall R. Ellis, being first duly sworn, deposes and says:

(1 ) I was born in Chesterfield County, Virginia, on 
March 5, 1910, and have resided in Virginia all my life. I 
was educated in the public schools o f Chesterfield County, 
received a Bachelor o f Arts degree from the College of W il­
liam and Mary in 1931, and a Master of Arts degree from 
the University of Virginia in 1935. I have been connected 
with the public school system of Virginia for 22 years. From 
1945 to 1953 I served as Superintendent of Schools1 in 
Wythe County, Virginia, and since July, 1953, have been 
Superintendent of Schools in the City of Charlottesville, in 
which position I am now serving.

(2 ) In accordance with the provision of Virginia law



so
that the school budget for the ensuing year shall be prepared 
by the Superintendent, with the advice and approval o f the 
School Board, and submitted to the City Council on or be­
fore April 1, the 1956-57 school budget for the operation of 
the Charlottesville public schools was submitted to City 
Council on March 26, 1956, and approved by City Council 
on April 16, 1956. The approval of the school budget well 
in advance o f the beginning of the next school session is 
necessary in order to give time in which to make plans and 
preparations for the operation of the schools during the 
ensuing year. O f necessity, neither the School Board nor 
the Superintendent could make any plans for the operation 
of the schools except on the basis on which they heretofore 
have been operating.

(3 ) Preparations for the operation of the schools begin­
ning in September have been completed. Teacher contracts 
have been entered into and decisions have been made con­
cerning the assignment of teachers to schools, classrooms, 
and the grades and subjects they are to teach. Teacher loads 
with reference to the number of pupils to be assigned to a 
teacher of specific subjects and classes have been determined. 
This embraces the utilization of all classroom space avail­
able for the accommodation of the eligible school population 
of the City o f Charlottesville. Formulation of these plans 
annually is one of the principal duties required of me in 
order to set up and follow through with an orderly pro­
cedure in administering the public school system. This plan­
ning requires much time and thought, as well as consultation 
with principals of the various schools and the teachers there­
in. A  sudden change o f these plans would not only occasion 
great difficulty, but would be most disruptive and impracti­
cal, considering the small amount o f time available be­
tween now and the opening of the schools in September.



51

(4 ) The assignment o f pupils to grades and sections of 
grades in the elementary schools and subjects and sections 
of subjects in the high school is an important and compli­
cated process in the Charlottesville schools. Assignments 
are not made simply on the basis o f a certain number of 
pupils to each classroom but, rather, on the basis o f the needs 
of the individual child. The child’s records, his special inter­
ests, and his academic strengths and weaknesses are among 
the factors considered in his placement. Teachers and prin­
cipals confer on this matter and frequently the Director of 
Instruction and Visiting Teachers are consulted. At times 
the Superintendent o f Schools participates personally in 
these decisions.

(5 ) This important responsibility has been executed for 
the coming session. The assignment of pupils in the elemen­
tary schools was made at the close o f the 1955-56 session in 
such a way as to make full use of all regular classrooms 
available in the city schools. The assignment of high school 
pupils to subjects and sections of subjects was started during 
the month of May, 1956, with registration of pupils entering 
the eighth grade, which is the first year o f high school.

(6 ) Most o f the teachers and some o f the other person­
nel who participate in the assignment of pupils are not avail­
able for consultation relative to any change o f plans which 
would be occasioned by court decree and to a large extent 
would not be available for the cooperation and assistance 
necessary prior to the opening of schools in September.

(7 ) I am convinced from my years o f experience in 
school administration that any sudden change of plans 
which would involve the transfer o f children at this time 
from one class to another class or from one school to another 
school would be most disruptive of orderly procedure and



52

prove of harmful effect in the administration of the public 
school system.

(8 ) I am naturally deeply concerned not only over the 
administrative effects o f such transfers but over the feelings 
and reactions of the patrons of the public school system rela­
tive to this subject. In my judgment, many patrons would 
withdraw their children from the public school system in the 
event that any plan for integration was sought to be put into 
effect without thorough and comprehensive exploration and 
consideration of all the difficulties involved by the School 
Board, the administrative and instructional staff, and the 
patrons themselves. I am convinced also that requests for 
transfers from areas or divisions of the public school system 
where integration would take effect to those areas or divi­
sions, if any, not so affected would create an administrative 
problem making it impractical and, in my judgment, impos­
sible to accommodate the facilities available to the exigencies 
of the situation which would arise in such event. Transfers 
from one school to another without ample time for essential 
planning and preparation would, in my judgment, create a 
situation of imbalance not only with reference to pupil load 
per teacher but would produce, in all probability, the neces­
sity of engaging a larger teaching staff. The latter would 
create considerable embarrassment relative to budgetary 
matters and to appropriations already made for the coming 
session.

I have read the affidavits o f Mayor Weinburg, Mr. Good­
man, Chairman of the School Board, and Mr. Michael, a 
member of the School Board and subscribe to the statements 
therein contained.

(s ) Fendall R. Ellis 
Fendall R. Ellis



53

B.

DEFENDANTS’ EXH IBIT No, 3 —  DEPOSITION 
OF JAMES H. M ICHAEL, JR.

(Tr. pp. 118-121)

James H. Michael, Jr., being first duly sworn, deposes and 
says:

(1 )  I was born in Charlottesville, Virginia, in 1918, and 
have lived in Virginia throughout my life. I am a practicing 
attorney and a member of the Charlottesville Bar and for 
approximately four years I have been a member of the 
School Board for the City of Charlottesville. I have a wide 
acquaintance in the City and feel that I am thoroughly con­
versant with public opinion and sentiment therein. As a 
member of the School Board, I have been deeply concerned 
over the situation relative to the efficient administration and 
functioning of the public school system in the City of Char­
lottesville.

(2 ) It is my conviction that the problems arising as a 
result of the decision o f the Supreme Court o f the United 
States in the school segregation cases are of such magnitude 
and complexity as to invoke the best constructive thought 
of which the school administration officials are capable in 
order to preserve, as far as possible, an efficient administra­
tion of public education for the benefit o f the people and all 
of the children within the jurisdiction of the school division 
here concerned.

(3 ) The budget for the school year to begin in Septem­
ber, 1956, has been prepared and submitted by the Division 
Superintendent pursuant to State law and procedure and 
approved by the Council for the City of Charlottesville.



54

(4 ) The essential administrative steps and procedures 
relative to the opening of the schools in September have 
been worked out, pupil assignments have been made, teacher 
contracts have been entered into, registration of pupils for 
high school instruction for the ensuing year have been com­
pleted, the facilities available have been utilized on the basis 
o f pupil needs and requirements and I am convinced that a 
disruption of the plans already made would under the neces­
sities o f the situation be productive of confusion, and would 
seriously militate against orderly and efficient administration 
o f the educational process to the lasting detriment of the 
school children of the City of Charlottesville.

(5 ) The administrative problems set out in the affidavit 
o f the Superintendent of Schools are, in my opinion, prob­
lems o f first magnitude requiring for their solution intimate 
contact with the parents and pupils involved in the City 
school system and the time necessary to determine with rea­
sonable accuracy the shifts of pupil population from one 
school to another. This raises the question of the distribu­
tion of teachers and the number o f teachers required, the 
matter of available space in the various individual schools 
and curriculum adjustments, the solution to all of which will 
require, in my judgment, many months of careful consid-' 
eration.

(6 ) From the beginning I have been seriously concerned 
about the question of public support for our school system, 
which question is to me the basic question involved in this 
issue. I consider that the function of our School Board is 
to provide the best education possible consonant with the 
support which we receive and I am gravely fearful o f any 
substantial diminution of that public support. In my opinion 
the effect in the City of Charlottesville of integration of the 
school system would unquestionably be to diminish severely



55

the support the population o f Charlottesville is presently 
willing to afford to its school system. Such a lessening of 
public support to the degree which I believe to be inevitable 
if integration be ordered would result in our operating a 
third or fourth class school system.

(7 ) I have read the affidavits o f Mayor Weinburg, Mr. 
Ellis, Superintendent of Schools, and Mr. Goodman, Chair­
man of the School Board, and subscribe to the statements 
therein contained.

(s ) James H. Michael, Jr.
James H. Michael, Jr.

APPENDIX X

TESTIMONY OF FEND ALL R. ELLIS ON CROSS, 
REDIRECT AND RECROSS-EXAMINATION  

(Tr. pp. 93-116)

CROSS-EXAMINATION
By Mr. H il l :

Q Now Mr. Ellis,—  ?
Mr. H il l : (Interrupting) May it please the Court, o f 

course we object to all of the parts o f the Affidavit which 
deals with anything other than purely administrative mat­
ters. W e regard that entirely as irrelevant to the proceed­
ings.

Q (By Mr. Hill, continuing) Mr. Ellis, at the present 
time, under your present operations contemplated for 1956, 
do you assign pupils to schools, say, the McGuffey School ?

A  On the basis o f geographical location of their resi­
dences.

Q As a matter of fact, the City of Charlottesville is di­



56

vided into five geographical areas, for elementary school 
pupils ?

A  That is correct,

Q And the children living within any of these particular 
geographical areas attend that particular elementary school, 
do they not?

A  They do.

Q Now at the present time, this only applies to white 
children, is that correct ?

A  That is correct, in practice.

Q And negro children from all over the City attend the 
one elementary school and the one white school ?

A  I didn’t get —  ?

Q (Interrupting) I say, the City is regarded as a one 
single unit for admission o f negro elementary school chil­
dren, to the Jefferson School, is that correct?

A  It has so operated.

Q And unless something is done about it, that is the way 
it will operate in September, is that correct ?

A  That is correct.

Q And the same thing is true with respect to the Burley 
School ?

A  Yes.

Q As to high school pupils ?
A  That is true.

Q Now up to the present time, in your contemplated 
operation in September, the City is regarded as one single 
unit for the admission o f white children to the Lane High 
School, is that correct ?



57

A  All white children at high school level, who wish to 
attend a public school, are attending Lane.

Q And your proposed operation in September, all white 
children to Lane and all negro children to Burley, is that 
correct ?

A  I would presume so, yes.

Q Now what is so difficult about the change o f operation 
for the same number of pupils, to permit negro children liv­
ing in the Venable School District to go to that School ? Why 
is that so complicated a procedure ?

A  The matter of pupil assignments has been made and, 
as stated in my Affidavit, the placement of children involves 
the consultation with and agreement of a number of people 
involved, who are not presently available. And I have stated, 
that the disruption of what has been planned, with the sub­
stitution of something else, would be a difficult administra­
tive matter.

Q What we want to get at, Mr. Ellis, is— what is so 
difficult, administratively, about admitting all the children 
who live in the Venable area, as that is the only school in 
that area as it now, presently, is districted— that is the only 
school over there ?

A  It is the only school in that district.

Q Well, what is so difficult, administratively, about per­
mitting those children to go to that school ?

A  What do you mean by “ those children ?”

Q The children living in this geographical district that 
you have already set up ?

A  In the matter of classrooms in the schools, as present­
ly set up, all available classrooms will be occupied and if 
some other system of assignment were initiated at this time,



58

there would have to be some restudy o f physical accommoda­
tions and the effect on them of any change in assignments.

Q There are not going to be any more children, regard­
less o f what plan you use, there are not going to be any 
more children ?

A No more in the total enrollment.

Q And you are not going to have any more classrooms ?
A  Well, there would be no more in the total in number. 

I think there might be fewer. I don’t know.

Q All right, Sir. And if some children are taken from 
one school, there would be room in the other school, and the 
thing will equalize itself over the City, don’t you think ?

A  If you think of it as dealing with a certain number 
of things that can be placed in one place or another place, 
I concur with what you say; but if you think in terms o f the 
welfare of particular individuals, who are placed some place 
for a particular reason, or reasons, it appears to be another 
matter.

Q The only thing you take into consideration at the 
present time is placing white children in a particular school 
district, in the particular geographical area they live ?

A  Unless they are sent to some special class, for a spe­
cial reason, outside the district.

Q The majority of the children there, attend? and the 
particular school depends on the geographical district in 
which they live, whether they be highly intelligent or very 
stupid, is that correct?

A  That is, generally, correct.

Q I am talking about the “ white”  children at the pres­
ent. What I am trying to find out: you say it is going to be



59

such a big problem. What is this “ big problem,” adminis­
tratively ?

A  Is it permissible to read you, again, the statement I 
made?

Q Yes, sir. You mean, you want to refer to your state­
ment?

A  I think it is covered in that statement.

Mr. Battle, Junior: (Hands document to the witness, 
Defendants’ Exhibit No. 2)

(Intermission, while the witness examines Exhibit)
A  Will you repeat your question ?

T he Reporter reads the question.

A  One of the several phases of it, one phase is, as I 
have indicated, the accommodation o f available space to the 
children to be served. I have stated that, in our arrange­
ments in planning for next year in the placement of children 
in the grades, in the elementary schools, and in the subjects 
and sections of subjects in high schools, that we have made 
full use of the teaching staff, which we anticipated we 
needed and which have been employed; and full use of all 
classrooms; and I am saying that the re-doing of that would 
be a large task, administratively.

Now, I indicated, on the assignment of children, why they 
were assigned to particular grades or sections of grades and 
subjects and sections of subjects, and indicated there is con­
siderable consultation and study on the part of teachers, who 
have taught the children; and visiting teachers, who work 
with them and the Superintendent on the assignment of 
those children.

Q May I interrupt you a moment? You are speaking 
about the elementary school children, there ?



60

A  I am speaking of both.

Q With reference to the elementary school children, in 
spite of all that, still the fact remains that, up to this time, 
these children were sent to the one school in this district, is 
that correct ?

A  That is correct.

Q So, up to this time, all these factors have not been re­
garded as too relevant, have they ?

A  They have. There are many sections, at the particu­
lar grade school you are referring to, with five sections of 
the First Grade, last year. It is not a matter of just assign­
ing a child to a grade, but a “ section”  o f a grade.

Q Let’s take the Second Grade: gives you an oppor­
tunity to have experience with the children, the same evalu­
ations are made of the white and negro children in the 
schools ?

A  Yes.

Q So you know, whatever these particular factors are 
you take into consideration, you know those in regard to all 
Second Grade children, negro as well as white, at the pres­
ent time, do you not ?

A  That basic information I think you refer to, I would 
say “ Yes”  to that.

Q Then what would be so difficult about assigning the 
children on the basis of the same factors that you know 
about, all of them in the respective schools ? That is what I 
am trying to find out.

A  Well, one factor, and a very important factor, is the 
matter that teacher-contracts have been entered into and 
plans for the operation of the schools are completed, on the 
same basis on which they have heretofore operated; and if



61

we, at this time, made a radical departure from that plan of 
operation, I am not all sure that we have the correct number 
of teachers to take care o f it, because of factors which might 
arise over which the School Board, itself, and Superintend­
ent, would have no control. So we may have, for such op­
eration, either too many or too few teachers.

M r. A lmond : Have you finished, Mr. Ellis?
He keeps cutting you off.

M r. H ill : I don’t mean to cut you off.

Q (By Mr. Hill, continuing) You merely employ teach­
ers under contract by the School Board to teach, is that 
correct ?

In other words, if you employ “ Mary Jones,” who last 
year taught the Second Grade at McGuffey’s School, but 
this year, for reasons you deem sufficient, you want to send 
“ Mary Jones” to the Burley School to teach the Third Grade, 
there is nothing in your contract with teachers to prevent 
you?

A  Nothing in our contract to prevent us from trans­
ferring a teacher from one assignment to another. How­
ever, it has been my practice not to make such transfer with­
out, first, talking to the teachers and securing their approval 
or agreement on such transfer.

Q All I am getting a t: administratively, there is noth­
ing to prevent you from doing it ?

A  (N o reply)

Q What is your answer ?
A  My position is, it would be exceedingly difficult to do 

it. I don’t know that you can say it is “ impossible”  to do 
anything, but I say, this involves great difficulty.

Q Now boiling it down, is it not a fact you just don’t



62

want to put negro children in schools with white children? 
Isn’t that the whole basis o f your “ problem,” your “ big 
problem ?”

A  The basis o f the problem is public reaction to it, of 
course, which I think you hit on.

Q And that is your “ major problem,” is it not? what 
you put in here as:

“ I am naturally deeply concerned not only over the admin­
istrative effects o f such transfers but over the feelings and 
reactions o f the patrons of the public school system relative 
to this subject.”

That is the problem, is it not ?
A  I say that that is the basic problem, because “ Public 

Schools”  are supported by the “ Public,”  and must therefore 
conform to the general wishes o f those people who support 
them.

Q And if you regarded the climate of opinion for the 
admission of negro and white children in the same school is 
to be favorable, it would be no “ problem,”  administratively, 
is that not true, Mr. Ellis ?

A  No, that is not true.

Q Wouldn’t be any great problem?
A  There are two problems that we are talking about and 

the existence of one negates the existence of another.

Q Well then, assume the elimination of one in order that 
we can concentrate on the other ?

A  But I have not agreed to the elimination of it.

Q I say, assuming the climate o f public opinion was 
favorable to the integration of negroes in the schools, you 
would have no great administrative problem, isn’t that true ?



63

A  Are you talking about “ next September ?”

Q I am talking about “ September 1956.”
A  The climate of opinion, although I think is the most 

important factor in this problem, whether it be in Charlottes­
ville or anywhere else, does not rule out the administrative 
problems we have been talking about, if you expected those 
administrative problems to be taken care of in a very short 
time.

Q You say, “ could be taken care of in a very short 
time?”

Mr. Battle : You said that.

Mr. A lmond : W e object, Your Honor, as misleading.

Mr. H il l : This is cross-examination, Your Honor.

Q (B y Mr. Hill, continuing) I say, isn’t it true, Mr. 
Ellis, these administrative problems wouldn’t be of any great 
moment, they could be solved by your present Staff, in a 
reasonably short period o f time, if you regarded the public 
feeling as being favorable?

A  I would say the administrative problems would con­
tinue to be substantial, regardless, if you are thinking in 
terms of “ September 1956” . I would say the administrative 
problems would continue to be substantial problems, if they 
are to be solved over such a short period o f time, regardless 
of public opinion, because we don’t know, and I don’t know 
of no way in which we would know the number involved in 
this situation.

Q Mr. Ellis, how long would it take you— it wouldn’t 
take you very long to find out the number of these children, 
who reside in the respective geographical districts that have 
already been laid out? As a matter of fact, in a day or so



64

you could determine where each child in the City o f Char­
lottesville lives, in respect to its geographical district ?

A  I could determine, within a reasonable time, the resi­
dence of any children now attending school.

Q And you would know how many children were avail­
able for any particular school in a reasonable length of time, 
and you know the capacity of the school, so there would be 
nothing of great moment there, to make a decision about 
that, is there ?

A  There is, in this sense: you seem to be assuming that 
we would— we have districts, as you have said, for the five 
white schools, and we do not— and all negroes presently are 
attending the negro elementary school— but from your ques­
tion, you evidently assume we will close the negro school 
and that they will go to all five districts presently set out.

Q No, sir, I do not. I assume that you will utilize all 
six o f your schools, in the future as you have in the past, 
except race would not be a factor for admission to any 
school.

A  If we have five zones now, involving five schools, the 
problem would be a six-zone situation, would it not? instead 
o f finding out who lives in the five zones ?

Q Would there be any great problem there ?
A  I think it would require the adjustment of all the 

zones in the City.

O How long would it take you to re-zone the City, to 
increase the Zones from five to six, how long would it take 
you, do you think ?

A  When we built two additional schools and entered 
them, in 1953, we spent about a year on re-zoning, from 
three schools to five schools, for the white children.



65

Q Well, you have had nearly two years, knowing some- 
ing was going to take a year, and nine months certainly since 
you got our Petition. What have you done with reference to 
thinking about re-zoning the schools in that period of time ?

A  W e have not re-zoned.

Q Have you made any plans for re-zoning?
A  No definite plans.

Q You have made some “ tentative”  plans ?
A  No. The Board and I have felt that, in the absence 

o f any State policy in this matter, that it was not possible 
for us to evolve a formal plan for meeting this problem, 
without some guidance and direction and policy from the 
State.

Q Well, Mr. Ellis, irrespective of what the State does 
about it, so far as formulating a plan, announcing a plan, 
you are not going to have any more schools, immediately, 
are you ?

A  Any more schools in Charlottesville ?

Q In Charlottesville?
A  W e have no plans for any— no immediate plans for 

building additional school buildings.

Q So in any consideration you have given this matter 
you must have considered using the existing six schools, did 
you not ?

A  That would be correct, yes.

Q And so, any tentative plans you made, involved the 
use of these schools, did it not ?

A  I have not said we made “ tentative plans.”

Q I understood you to say you hadn’t made any “ formal 
plans.”  I said “ tentative plans.” But during the past year,



66

you haven’t made “ any”  plans for the elimination of segre­
gation, is that correct ?

A  In the schools— that is substantially correct. So far 
as evolving a formal plan is concerned, the School Board, 
as I have said, has been concerned about it but has felt, in 
the absence of State action, it was not in a position to evolve 
a formal plan.

Q One final question: Here, in the latter part of your 
Affidavit, on page 4, you make much of the fact that some 
of the “ patrons”  will ask for transfers from one school to 
another— and I assume you are talking about “ white pa­
trons.” As a school administrator, you know in any number 
of communities school boards make very definite and fixed 
plans as to “ no transfer,” isn’t that correct ?

A  They may make such a regulation, if they want it, 
yes.

Q And if such regulation were put into effect, that you 
had to go to school in your geographical district, you would 
have no problem of people asking for transfer from one 
school to another ?

A  No. But the other side o f that problem is the side 
that worries us. W e are not interested in getting into a sit­
uation, if we can help it, which will cause a large number of 
parents to withdraw their children from school.

O f course, that is just an assumption on your part, that 
“ a large number o f parents will withdraw their children 
from school.”

All I am trying to find out from you is: there is easily 
available to you and the School Board a method by which 
you don’t have to be confronted by a lot of problems in trans­
ferring one child from one school to another, because you 
say that is easily possible by putting in a “ no transfer rule ?”



67

A  It is what you are after—-if you are not going to have 
transfers you are not going to have the problem of transfer, 
but you may be more interested in maintaining the schools 
than with not dealing with the problem of transfer.

Mr. H ill : That is all.

REDIRECT EXAM INATION
By Mr. A lmond :

Q This was referred to in your Affidavit. I don’t know 
but I assume you are familiar with the situation. Therefore, 
I will ask you a few questions along this line:

I understand that the high school which is attended by 
the negroes is the Jackson Burley High School?

A  That is correct.

Q Is that a high school o f recent or old construction ?
A  That high school was built in 1950; so it is, relatively, 

a new school.

Q How many negroes, negro pupils from the City of 
Charlottesville attend the Jackson Burley School, if you 
know, or as near as you can approximate ?

A  281, last Session, if my memory is correct, which I 
think it is.

Q Is that facility owned by the City o f Charlottesville ?
A  Owned jointly by the City of Charlottesville and the 

County of Albemarle.

Q Is it located within the City limits, or within the 
County ?

A  Within the City limits.

Q And is it, or not operated under a joint agreement 
between the County of Albemarle and the City of Char­
lottesville ?



68

A  It is.

Q May I ask you to state, if you know, whether or not 
the City has a substantial investment in that school ?

A  The City has an investment o f about $600,000.00 in it 
and the County a similar amount.

Q I am not asking you about the quality o f the facilities 
but state whether or not it is superior to any other school in 
operation, in which the City o f Charlottesville participates—  
or does it approximate superiority? I am talking about the 
facilities and other things furnished there, educational op­
portunities and physical facilities o f the plant, itself ?

A  Its facilities, physical and educational, are comparable 
and equivalent to any school operation we have in Charlottes­
ville, in my opinion.

Q If you desired to do so, or were under compulsion to 
do so, could the City of Charlottesville operate that facility 
on an integrated basis, without due reference to and consid­
eration of the agreement which it has with its mutual opera­
tor, the County of Albemarle ?

A  It seems to me we are involved in that: my answer is 
“ No.”

Q Let’s assume, therefore, there would be a migration 
o f— what did you say ?

A  281.

Q (Continuing) — of 281 pupils from that school to 
other schools in the City of Charlottesville —  to the Lane 
High School, which is the only high school for white chil­
dren in Charlottesville— assume a migration o f that pop­
ulation, at Burley, could you— since arrangements have al­
ready been made, assignments made— could you possibly



69

accommodate that population, added to what you have in the 
Lane School, Lane High School, now?

A  No.

Mr. A lmond: That is all.

RECROSS-EXAMINATION
By Mr. H ill :

Q You tell this Court, Mr. Ellis, if 281 white children 
came in the City of Charlottesville, between now and Sep­
tember, they wouldn’t be accommodated in the High School 
of Charlottesville?

A  That is not the question.

Q But I am asking you : if 281 white children came in 
the City of Charlottesville, between now and September, 
they would not be accommodated in the high schools in 
Charlottesville ?

A  There are not physical facilities sufficient in scope to 
accommodate them; if you want to accommodate them with 
adequate space and facilities, the space wouldn’t be avail­
able to accommodate that many more children at the Lane 
High School.

Q The fact is, if 281 white children migrate to Char­
lottesville, eligible to attend high school, wouldn’t you and 
the School Board make accommodations for them ?

A  W e have not had that problem.

Q But you would, if confronted with it ?
A  (N o reply)

Q You haven’t had the problem of 281 negro children 
migrating to the high school ?

A  Repeat your question.



70

Q You haven’t had the problem of 281 negro children 
requesting admission to the Lane High School? But you 
answered the question.

A  My answer was “ No,” for 281 additional, whether 
they be white or colored, 281 additional, at the Lane High 
School.

Q Now what, in your contract— or what would stop you 
from sending white children to the Burley High School, if 
the administration o f the Charlottesville Schools require it?

A  What ? In whose contract ? My contract ?

Q Whatever contract ?
A  You mean, the contract between the County of Albe­

marle and the City of Charlottesville ?

Q That is right, or whoever it is with?
A  Well, the agreement for the operation of the Jackson 

P. Burley High School is a joint agreement. The building 
was built, jointly, by the County of Albemarle and the City 
of Charlottesville. The school now is operated jointly by 
the two Boards. In view of the County’s financial interest 
in it, in view of the fact they pay half o f the cost o f it and 
the City half of it, I can’t see how you could take an action 
regarding the operation of the Burley High School, one 
party to the agreement, without consultation and under­
standing with the other party to the agreement.

T he Court : Is there anything in the contract that says 
that school shall be used exclusively for white children ?

A  No, sir.

T he Court: Doesn’t the City of Charlottesville have as 
much to do with that school as the County does ?

A  If I may answer your first question? There is, in the 
Minutes, in the planning o f this school building, that it is a



71

building provided for “negro” children. I think you said 
“ white,” inadvertently.

T he Court: I did say “ white.” That is correct. It was 
an inadvertence on my part.

But what I am getting at, is there any basis for this as­
sumption that you have made, that all o f those 281 students 
who now reside in. the City of Charlottesville and go to this 
high school, would be dispossessed from that school and go 
over to the white school ?

A  I have made no “ assumption”  on that. I merely an­
swered the question: if 281 came, could we take care of 
them? and I said “ No.”

T he Court: Then maybe the assumption wasn’t yours; 
maybe it was Counsel’s.

Q (B y Mr. Hill, continuing) All I was trying to bring 
out, Mr. Ellis, is that you merely made an agreement with 
Albemarle County to take care o f certain Charlottesville 
school children, under the existing laws at that time, is that 
correct ?

A  I think that is correct ?

Q And the continuance o f that policy, o f taking care of 
part of the Charlottesville Public School children at Burley, 
in nowise violates the contract ? The only difference between 
before, some white and some might be negro?

A  (N o reply)

Q In other words, you are not changing your contract, 
you are merely educating children in a school— and that is 
what you agreed to do— jointly, is it not?

A  It is a jointly operated school.

Q And what you agreed to do was to educate some of 
the City of Charlottesville people in a jointly operated school ?



72

A  Yes.

Q And if you send some white children over there, you 
are doing the same thing ?

A  You would still be educating children, I would think. 

Mr. H il l : That is all, Sir.

(Witness excused)

APPENDIX XI

TESTIMONY OF JAMES H. MICHAEL, JR.
ON CROSS-EXAMINATION  

(Tr. pp. 123-129)

CROSS-EXAMINATION

By M r. Carter :
Q I think that you say, in Paragraph (2 ) o f your affi­

davit, Mr. Michael, that the decision— I will read it (Read­
ing)

“ It is my conviction that the problems arising as a result 
o f the decision o f the Supreme Court o f the United States 
in the school segregation cases are o f such magnitude and 
complexity as to invoke the best constructive thought of 
which the school administration officials are capable in order 
to preserve, as far as possible * * *”

et cetera. May I ask you just what the School Board has 
done, what “ constructive thought”  has the School Board 
given to this problem ?

A  W e have felt, and feel, that deriving approximately 
30 per cent o f our support from State funds, we must op­
erate in accordance with State policy. W e have done so, and 
are doing so at this point.



73

Q In other words, you have given no “ constructive 
thought”  to it, because the State has not decided to change 
its policy, is that your answer ?

A  I refer you to the record, there.

Q Now what plans on “ constructive thought,”  what 
plans, specifically, has the School Board made to comply 
with the Supreme Court’s decision, if anything ?

A  W e have made no specific plan to comply with the 
Supreme Court’s decision.

Q And what has the School Board done in regard to the 
budget, on the question o f your compliance with the Su­
preme Court’s decision, and the fact that the budget has 
already been made ?

A  It has this to do with it : the budget provides funds 
for the overall operation of the schools, the school system; 
particularly, it provides funds for the employment o f teach­
ers : those teachers are employed in terms of a distribution 
of pupils, which has been worked out and against which the 
listing of teachers was prepared. A  change in that distri­
bution of pupils might very well mean that we would need 
more money in order to operate the same school system dur­
ing the coming year.

Q And might not, might it not ?
A  It might not.

Q You don’t know what it is going to do until you 
attempt to make a plan, do you ?

A  One assumption is as valid as the other.

Q I agree with you. But let’s go into the “ other:” I 
think you deal, in your Paragraph (4 ), with pupil assign­
ments, registration o f pupils and teacher contracts, facilities, 
and that sort of thing. In your opinion, couldn’t you reas­



74

sign the pupils, redistrict your City, reassign them teachers, 
in order to effect compliance with the Supreme Court de­
cision ?

A  In the sense that lines might be drawn on a map of 
the City, converting it into six districts, with some consid­
eration to the location of students, which matter would have 
to be determined, it could be done; but it would not, in my 
judgment, be in the interest of, in the better interest of any 
school child in the City of Charlottesville.

Q W hy?
A  Because these pupils have been assigned, in terms of 

their needs, in terms o f the particular qualifications which 
teachers of given sections have, and reassigning on an un­
considered basis might very well rob a particular child, or 
particular children of the benefits which we have tried to 
work out with the present assignment.

Q Let’s go back to this reassignment basis— reassign­
ment, on basis o f needs, Mr. Michael: children who are 
going to your Jefferson School, elementary school for ne­
groes, they are assigned from Grades 1 to 2. What consid­
eration have you given to their needs, other than the fact they 
are colored ?

A  I don’t understand your question.

Q What needs have you taken into consideration in the 
assignment to negro schools,— to Jefferson, other than the 
fact they are colored ?

A  I think a great many needs have been taken into con­
sideration.

Q What other ? There are no other schools for negroes 
to go to ? Where else could they go ?

A  Either I don’t understand your question or you don’t 
understand my answer. What I am saying is this: there



75

are sections, in the Jefferson School, in various— in the vari­
ous grades: pupils are assigned to those grades, in a par­
ticular section, because of the benefit one section may have 
for the particular pupil. If that particular pupil were to be 
hastily reassigned to another school, we don’t know whether 
we could get him into the same section of another school, into 
a section affording him the same benefits. Those are the 
things I refer to as being part o f the administrative diffi­
culties.

Q But the difficulty with that, Mr. Michael, is that you 
have made no effort even to see whether these are problems 
or not problems, so far as you are concerned you have not 
even looked at the facts to see what you could do with the 
assignments, say, o f negroes from Jefferson to Venable—• 
so how can you make that assertion on behalf o f the school 
administration, since you haven’t even considered the prob­
lem?

A  First, I am scarcely a “ school administrator.”  I am 
a member o f the School Board. Secondly, in answer to your 
question, we are subject to the State’s policy in this matter.

Q All right. One (I  hope) final question: I am now 
dealing with Paragraph (6),  and when you talk about “ dimi­
nution o f public support,”  you say “ that is the basic question 
involved,” would you explain that, please?

A  I say, that is the basic question involved, to me. I 
don’t know whether other people share my opinion, but to 
me, the basic question in this whole issue, and I gather that 
possibly the Court does not concur, but the basic question is 
whether or not we will continue to have the willing public 
support for our public school system that we now have, and 
I don’t want to diminish, in any way, that willing public 
support.

Q Mr. Michael, what have you done to— or have you



76

done anything at all, to find out what the public sentiment is ? 
Have you done anything to try to educate the public in the 
community to accept the Supreme Court’s decision, or what 
has the School Board done ?

A  W e have not taken any steps towards educating the 
people of Charlottesville in this matter. I believe I am com­
petent to say, from my knowledge of the people o f Char­
lottesville, however, that integration in the public schools of 
this City, would gravely diminish the present willing public 
support of that school system.

Q Well, as a lawyer, I assume that you will, you and 
the members of the School Board and public officials— that 
the School Board will, eventually, follow the law, and this 
raises the question of— if you are concerned that desegre­
gation will diminish public support— are you making “any” 
plans to educate the public? You should realize you must, 
eventually, desegregate the schools. What plans are you 
making for doing something about educating the public in 
desegregating the schools, or anything else?

A  W e have made no plans towards educating the public 
W e don’t feel that that is a function of the local School 
Board.

Q Well, when do you think you will be in a position to 
make plans to desegregate the schools ?

A  I think that position will come when we have a State 
policy that will permit our freedom of action, we do not 
presently have.

Mr. Carter : All right.
Thank you very much.

(Witness excused)

M r. A lmond : That concludes the presentation of the 
defense, Your Honor.