School Board of the City of Charlottesville, Virginia v. Allen Appendix on Behalf of Appellants
Public Court Documents
January 1, 1956

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Brief Collection, LDF Court Filings. School Board of the City of Charlottesville, Virginia v. Allen Appendix on Behalf of Appellants, 1956. cb29694f-ad9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/2ddf47d7-235d-456a-bb4f-bbf996e031ca/school-board-of-the-city-of-charlottesville-virginia-v-allen-appendix-on-behalf-of-appellants. Accessed July 13, 2025.
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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.