Walker v. Englewood New Jersey Board of Education Brief on Behalf of Complaintants

    STATE OF NEW  JERSEY

Hpjmrfumtt nf
DIVISION AGAINST DISCRIMINATION

On the complaint of
M A R Y  W A L K E R ,

vs.
Complainant,

B O A R D  OF ED U CATIO N  OF T H E  BO RO U G H  OF 
EN G LEW O O D , N E W  JERSEY,

Respondent,
AND

On the complaint of 
SUSANNE A N D ERSO N ,

vs.
Complainant,

B O A R D  OF E D U CATIO N  OF TH E  BO RO U G H  OF 
EN G LEW O O D , N E W  JERSEY,

Respondent.

BRIEF ON BEHALF OF COMPLAINANTS

G rover C. R ichman, Jr .,
Attorney General of New Jersey,

State House Annex,
Trenton, New Jersey,

By T homas P. Cook,
Deputy Attorney General,

AND
L eonard W illiams,

143 East State Street,
Trenton 8, New Jersey,

Constance B. M otley,
Jack G reenberg,

1 07 West 43rd Street,
New York 6, New York.

Attorneys for Complainants, Mary Walker 
and Susanne Anderson.

Adams Press Corp., 11 Commerce Street, Newark, N. J.— Market 3-8611



TABLE OF CONTENTS

PAGE

S tatem en t  ......................................................................................  1

T h e  E vidence .............................................................................  3

A. The Englewood Schools and Their Racial Con­
stituencies ..........................................................  3

B. The Board’s Act of June 28,1954 Establishing
New Attendance Z on es....................................  6

C. The Expert Testimony as to School Boundary
L in es...................................................................  8

D. The Evil Effects of Segregation........................  12
E. Specific Incidences of Discrimination in En­

glewood ..............................................................  14
F. The Defense.......................................................... 20

S u m m a r y  op A rg u m en t  ..........................................................  23

P oint  I— The Respondent unlawfully discriminated 
against all Negro children who were being obliged 
to attend Lincoln Elementary School during the 
school year 1953-1954 ..................................................  25
A. The Responsibilities of a Board of Education .. 25
B. Permitting Unnecessary Segregation is Discrim­

ination .......................................................................  29
C. Segregation at Lincoln Can Be Eliminated . . . .  33

P o in t  II—The Respondent unlawfully discriminated 
against the Complainant Walker’s child and others 
similarly situated when it established a new attend­
ance zone line between the Lincoln and Liberty Dis­
trict so as to enlarge and extend Lincoln Elemen­
tary as an almost exclusively Negro school...........  35

P o in t  III—The Respondent unlawfully discriminated 
against members of the Negro race by maintaining 
a separate and virtually all Negro junior high



11 TABLE OF CONTENTS

PAGE
school for children residing in Lincoln District, 
while sending pupils from all other elementary dis­
tricts to Engle Street Junior High School, the stu­
dent body of which has been predominantly white. . 38
C onclusion  as to P oints I, II and  III— T h e  P ower 

and  D u ty  op th e  Co m m is s io n e r ...................................  40

P oint  IV— The Respondent unlawfully discriminated 
against the Complainant Anderson’s child and other 
Negroes similarly situated by sending them to Lin­
coln Elementary School, while white children from
the same zone were sent to Liberty School............  42

C o n c l u s io n ......................................................................................  46

Exhibit S -5 ...................................................................... 48

Cases Cited

Blackman v. lies, 4 N. J. 82 (1950) ............................  29
Bolling v. Sharpe, 347 U. S. 497 (1954) ..................... 27
Brown v. Board of Education, 347 U. S. 483 (1954). . .27, 29
Como Farms v. Foran, 6 N. J. Super. 306, 71 A. 2d 201 

(App. Div., 1950) ....................................................... 41
Doremus v. Board of Education of Hawthorne, 5 N. J.

435 (1950) .................................................................... 29
Federal Trade Commission v. Goodyear T. & R. Co.,

304 U. S. 257 (1938) ................................................... 45
Fornarotto v. Board of Public Utility Commissioners,

105 N. J. L. 28, 143 A. 458 (Sup. Ct., 1928) ...........  41
Gaine v. Burnett, 122 N. J. L. 39, 4 A. 2d 37 (Sup. Ct., 

1939), aff’d 123 N. J. L. 317, 8 A. 2d 604 (E. & A.,
1939) ............................................................................  41

J. I. Case Co. v. N. L. R. B., 321 U. S. 322 (1944) . . . .  45
Mendez v. "Westminister School District, 64 F. Supp.

544 (D. C. Cal., 1946) .............................................  .40,44



PAGE
Perma-Maid Go. v. F. T. C., 121 Fed. 2d 282 (C. C. A.

6, 1941) ....................................................................... 45,46
United States v. Fawcett, 115 Fed. 2d 764 ( 0. 0. A.

3d, 1940) .....................................................................   43

New Jersey Constitution Cited
Article 1, par. 5 ......................................................   27

Statutes Cited
N.J.S.A. 18:25-1 et seq..................................................  1
N.J.S.A. 18:25-5(j) ........................................................ 27
N.J.S.A. 18:25-6 ............................................................  40
N.J.S.A. 18:25-ll(f) ..................................................... 40
N.J.S.A. 18:25-12 ..........................................................  23
N.J.S.A. 18:25-12(f) ..................................................... 26
N.J.S.A. 18:25-15 ..........................................................  2
N.J.S.A. 18:25-16 ..........................................................  2
N.J.S.A. 18:25-17 ..........................................................  46
P.L. 1945, Ch. 169 .....................................................  26
E.S. 18:11-1 ...................................................................25,31
R.S. 18:14-2 ..................................................................  27
R.S. 18:14-5 to 18:14-9 ................................................... 26

Rule Cited
R.E. 4:15-2 ................................................................1 fn, 3 fn

Texts Cited
Ashmore, The Negro and the Schools (1954), pp.76-77 30
McQuillin, Municipal Corporations (3rd Ed.), Sec­

tions 53.65, 53.27, 53.69 ...............................................  44
Wigmore, Code of Evidence (3d Ed. 1942) Rule 69, 

pp. 104-106 ..................................................................

TA B L E  OF CONTENTS 111

43



Statement

This brief is submitted on behalf of the Complainants 
in each of the above entitled proceedings.

The case of Susanne Anderson against the Board of Ed­
ucation of the Borough of Englewood, New Jersey, arose 
upon an amended complaint signed by Mrs. Anderson 
charging the Respondent with an unlawful practice within 
the meaning of subsection “ f ”  of Section 11 of the Law 
Against Discrimination (N.J.S.A. 18:25-1 et seq.) in that 
her son, James, entered Liberty School in Englewood in 
September 1950,* but because she is a member of the Negro 
race, the boy was transferred about a month later to the 
Lincoln School, although her residence was within the 
district from which white children were sent to the Liberty 
School. She charged that this action by the Respondent 
was part of a consistent scheme and plan to discriminate 
against Negroes by excluding them from the integrated 
Liberty School and obliging them to attend the segregated 
Lincoln School.

The case of Mary Walker against the same Respondent 
arose on her complaint charging a violation of the same 
section of the law in that her son, Theodore Walker, was 
obliged to attend the Lincoln School kindergarten at the 
opening of school in September 1954 because of a new boun­
dary line between Lincoln and Liberty Schools for attend­
ance at kindergarten. This was alleged to result in an 
extension of segregation in the Lincoln School, also pur­
suant to a consistent scheme and plan to discriminate 
against members of the Negro race.

The answer filed by the Respondent in each case denied 
the charges of discrimination. The answer in the Anderson

* By consent of counsel for the Respondent, the complaint is 
deemed amended by changing the year 1950 to 1949, in order to con­
form with the evidence received at the hearing. Cf. R.R. 4:15-2.



2

ease further alleged that the incident related in that com­
plaint resulted from a mistake or inadvertence on the part 
of someone in the school system, and that the mistake was 
corrected as soon as it came to the attention of the Board 
of Education. In the Walker case, the answer denied that 
the boundary lines resulted in a segregation of the Lincoln 
School area or that discrimination against any race was 
thereby accomplished or intended. The Respondent further 
alleged that it had fixed the boundary lines in the exercise 
of its sound discretion to relieve congestion in certain 
schools and to utilize classrooms in some schools which had 
previously been unoccupied.

Pursuant to notice of hearing duly given in accordance 
with the statute (N.J.S.A. 18:25-15), a public hearing was 
held before the Commissioner of Education on October 20, 
October 26, and November 1, 1954. The stenographic tran­
script of the testimony ran to 412 pages, and 20 exhibits 
were received, 17 offered by the Complainants, and 3 by the 
Respondent. The case for the Complainants was presented 
by the Attorney General, through Deputy Attorney Gen­
eral Thomas P. Cook. The Complainants and certain other 
witnesses were examined by Mrs. Constance B. Motley, of 
the New York Bar, who had been granted leave to inter­
vene in these cases, pursuant to N.J.S.A. 18:25-16. The 
Complainants were also represented by Leonard Williams, 
Esq., of the New Jersey Bar, and Jack Greenberg, Esq., of 
the New York Bar, who had similarly been granted leave 
to intervene. The case for the Respondent was presented 
by Hon. Thomas J. Brogan, assisted by Henry P. Wolff, 
Jr., Esq. and Leroy B. Huckin, Esq., the latter being at­
torney of record.

The Commissioner of Education presided at the hear­
ing, since the Assistant Commissioner John P. Milligan, 
as head of the Division Against Discrimination, had par­
ticipated in the investigation of the complaints and in 
efforts at conciliation.



3

By a stipulation entered into between counsel for the 
parties prior to the hearing, it was agreed that the two 
complaints should be consolidated for the purposes of the 
hearing. It was further stipulated that the issues to be de­
termined at the hearing were as follows:

(a) Did the Respondent engage in an unlawful dis­
crimination as alleged in the complaint of Susanne 
Anderson?

(b) Did the Respondent engage in an unlawful dis­
crimination as alleged in the complaint of Mary 
Walker?

(c) Did the Respondent unlawfully discriminate 
against any persons of the Negro race by the estab­
lishment of school zone or attendance district lines as 
they existed during the school year 1953-1954?

(d) Did the Respondent unlawfully discriminate 
against any persons of the Negro race by the estab­
lishment of new attendance district lines as of Sep­
tember 1, 1954, for kindergarten in the Lincoln and 
Liberty Schools and for kindergarten and first grade 
in other schools?

(e) Has the Respondent, between September 1949* 
and the present time, followed a consistent plan, 
scheme or policy of discrimination against Negroes in 
the admission of pupils to its schools?

The Evidence
A. The Englewood Schools and Their Racial Constituencies.

The Borough of Englewood, which had a population of 
23,145 as of the 1950 census and embraces an area roughly 
two miles square, has since 1939 been operating five ele­

* The date originally stipulated (Exhibit S-l.) was September 
1950, but by consent of counsel for the Respondent, the year was 
changed to 1949 in order to conform the pre-hearing stipulation to 
the evidence regarding the Anderson Complaint. Cf. R.R. 4:15-2.



4

mentary schools, two junior high schools and one senior 
high school (S-2, S-6, R-l, pp. 6, 24).* ** Each elementary 
school takes pupils from kindergarten through the sixth 
grade; each junior high school comprises grades seven 
through nine, and the senior high school takes the tenth 
through twelfth grades.

The controversy in this case centers around the so-called 
Lincoln schools, which consist of an elementary and a 
junior high school, all located in the same building (R-l, 
pp. 20, 21, 24). In the school year 1953-1954 there was only 
one white child in the Lincoln Elementary School out of a 
total enrollment of 331. All the other pupils in the ele­
mentary, and all 142 students in Lincoln Junior High, were 
Negro (38,*# S-ll, S-10, S-8). In fact, for the past 15 years 
Lincoln’s population has been mostly Negro (394).

The Lincoln school building is located on the north side 
of Englewood Avenue between William and Humphrey 
Streets (S-2, S-5). It stands one block south and two blocks 
west of the central point of the Borough, where Palisade 
Avenue, the main east-west thoroughfare, is bisected by 
the tracks of a branch of the Erie Railroad. Two blocks 
east and one-half block north of that point lie the Frank­
lin Elementary School and the Engle Street Junior High 
School. Two blocks west and one block north from the 
Lincoln school, on the north side of Palisade Avenue, is the 
Liberty Elementary School. The Senior High School and 
the Cleveland Elementary School are situated in the north­
west part of the city, Avhile the Roosevelt Elementary 
School serves the southeast section (S-2, S-3).

* Exhibits introduced by the Complainants have numbers beginning 
with S and exhibits introduced by Respondent have numbers begin­
ning with R.

For the convenience o f the reader, a copy of Exhibit S-5, a map 
o f Englewood showing Negro residential areas, is attached to this 
Brief.

** Numbers refer to pages o f the transcript o f testimony, unless 
otherwise indicated.



5

Lincoln is located in the Fourth Ward of the city, which 
consists of substantially the southwest quarter. The 
Fourth Ward is bounded on the north by Palisade Avenue 
and on the east by the Erie Railroad tracks (S-2). At the 
time of the hearing, there were no Negroes living in the 
houses on the south side of Palisade Avenue, but begin­
ning in the rear of those houses the residents are mostly 
colored (62-64; S-5). According to estimates by Mr. Glatt, 
investigator for the Division against Discrimination, which 
were not disputed at the hearing, the greater part of the 
Fourth Ward is 100% Negro but for a few scattered wThite 
families. Along Englewood Avenue and the Fourth Ward 
Park, however, the distribution is approximately 60% 
Negro and 40% white, while in the northwest part of the 
Fourth Ward up to a line along the rear of the houses on 
the south side of Palisade Avenue, the colored population 
was estimated at 75% to 80% and the white at 20% to 
25% (S-5). Mr. Glatt estimated the population of Negroes 
in the Fourth Ward as “ roughly from 85% to 90%”  (64). 
Mr. Fitzpatrick, President of the Board of Education, con­
firmed that estimate by testifying that the Fourth Ward 
was “ now populated generally by members of the Negro 
race and their families”  (392).

The zones for attendance as between Lincoln and the 
neighboring elementary schools in the district had until 
1954 evidently been unchanged for many years. Lincoln 
had been zoned to take care of all children from kinder­
garten through sixth grade residing in roughly the south­
east half of the Fourth Ward. The northerly boundary of 
the zone ran westerly from the railroad tracks along the 
rear of the buildings on the south side of Palisade Avenue, 
then south along Armory Street to Englewood Avenue, 
southwest across the park to Lafayette Place at Franklin 
Road, and south on Lafayette Place to the boundary of the 
municipality (S-2, S-4). Children in the Fourth Ward 
north and west of the line just described were supposed to 
attend Liberty School.



6

Until 1938, all junior high school children, including 
those graduating from Lincoln Elementary, attended the 
Engle Street Junior High School. In 1938 and 1939, how­
ever, Lincoln Junior High School was opened to take care 
of grades seven through nine for children residing in the 
Lincoln Elementary district (362; R-l, p. 24). After Lin­
coln Junior High was established, children from all the 
other elementary districts in the municipality continued to 
attend the Engle Street Junior High (R-l, p. 24).

The racial constituency of the various schools for the 
year 1953-1954, according to estimates furnished by Dr. 
Harry L. Stearns, Superintendent of Schools in Englewood 
(S-10), was as follows:

No. of Grade Present % Teachers
School Classrooms Level Enrollment Negro Negro White

Dwight Morrow High . . .  32 10-12 888 13% 1 44
Engle St. Jr. High.........  23 7-9 558 10% 28
Cleveland School ...........  19 K-6 701 0 24
Franklin S ch ool..............  14 K-6 306 4% 13
Liberty School ................  16 K-6 429 43% 14
Lincoln School ...............  26 K-9 494 99% 8 13
Roosevelt School ............. 13 K-6 437 8% 15

B. The Board’s Act of June 28, 1954 Establishing New 
Attendance Zones.

With the previously described situation facing them, the 
Board of Education in the winter of 1954 tackled the prob­
lem of overcrowding at Cleveland School and the need for 
new facilities in the district generally. Simultaneously, 
while the Board was considering these matters, the issue of 
segregation in the Lincoln schools was receiving much at­
tention in Englewood. All through the winter it was the 
subject of numerous articles in the local press (S-16). A 
number of citizens brought it up at one or more Board 
meetings (381). It was also specifically raised in one of the 
minority reports of the Citizens Review Committee (R-3), 
a group of citizens appointed by the Board of Education to



7

study the situation, and report to the Board (302-308). 
The three authors of that minority report, dated March 29, 
1954, said:

“ The peculiar residential pattern existing in Engle­
wood has unwittingly thrown upon the Board of Edu­
cation a segregated area to administer. Although we 
realize that building a school on Lafayette Place would 
not eliminate the problem of segregation, it is better to 
face up rather than delay a decision. * * * It is not an 
impossible task to eliminate segregation if a commu­
nity and its leaders have matured to the point where 
it can recognize the unhealthy aspect of the problem, 
and do something constructive about it.”

Nevertheless, purportedly in order to relieve overcrowd­
ing in the Cleveland School (300), the Board on June 28, 
1954 resolved to redraw the line between Liberty and Lin­
coln zones in regard to kindergarten attendance only (leav­
ing the other grades as between those schools unaffected 
temporarily), thereby zoning back into Lincoln kindergarten 
a large number of Negro families, including that of the 
Complainant Walker, who lived in the northwest sector of 
the Fourth Ward. The new line was a westerly extension 
of the old north boundary of the Lincoln zone, which ran 
along the rear line of lots on the south side of Palisade 
Avenue; the change extended this line westerly all the way 
to the west end of town (313; S-3). A concurrent reloca­
tion of the north line of the Liberty district zoned into the 
latter a number of kindergarten and first grade children 
who under the old line would have gone to Cleveland 
School, and thus Cleveland was relieved to that extent 
from its crowded condition (310-314; S-3).

The changes, however, only aggravated the racial prob­
lem. In the school year 1953 to 1954 Liberty School had 
had three kindergarten sections of about 30 pupils each, 
of whom approximately one-third were Negroes. After the 
new zoning, Liberty had only two kindergarten sections, of



8

about 27 each, with not a single Negro among them (325-6; 
S -ll). On the other hand, with the kindergarten popula­
tion of Lincoln increased from 52 to 102 (S-8, S-9), only 
two of those children were white (S -ll).

C. The Expert Testimony as to School Boundary Lines.

Two expert witnesses called by the Complainants testi­
fied that the new boundary between Liberty and Lincoln 
kindergartens was not the best solution to the problem of 
overcrowding at Cleveland, and that it would be possible to 
solve the problem in other ways which would at the same 
time reduce the present predominance of Negro students in 
the Lincoln schools.

The first such witness was Dr. John P. Milligan, the 
Assistant Commissioner of Education in charge of the Di­
vision Against Discrimination since December 1953. As for 
his qualifications, he had been a school principal in the 
New Jersey school system for 7 years, Professor of Edu­
cation in State Teachers’ Colleges in New Jersey for 9 
years, including 6 years at the Jersey City State Teachers’ 
College, of which he was Dean; Superintendent of Schools 
at Glen Ridge and at Atlantic City for a total of 7% years; 
and consultant in school integration problems in St. Louis, 
Washington, D. C., and Wilmington, Delaware (66). He 
testified that when a board of education provides school 
facilities for pupils in a given community, the factors to 
be considered by the board, aside from any question of 
racial segregation, include convenience of access to the 
schools by the pupils, traffic arteries, vacancy of class­
rooms and other facilities, the size of the classes, and the 
economic and efficient use of the facilities of the school 
system (67). Apart from any question of segregation, it 
was his opinion that the zones of attendance in effect as of 
June 1954, as shown on Exhibit S-2, present “ grave ques­
tions”  as to their reasonableness (68). It would be un­
reasonable, he said, even if the community were all white, 
to have two junior high schools, with 133 students attend­



9

ing the Lincoln Junior High School, and 558 attending the 
Engle Street Junior High, because (70) “ it is generally 
agreed among administrators who understand these prob­
lems that facilities up to a thousand pupils at least are the 
best and most efficient use of such facilities in one junior 
high school, elementary school or high school.”  Dr. Milli­
gan further stated that it was more economical and more 
desirable administratively to have a single junior high 
school for Englewood, and that the smaller junior high at 
Lincoln could provide the same courses of study as Engle 
Street only at a much greater cost than if the two schools 
were combined.

In Dr. Milligan’s opinion, it was also unreasonable to 
have the northerly boundary line of the Lincoln district 
drawn in the rear of the houses on the north side of Pali­
sade Avenue, as shown on Exhibit S-2, when, as of October 
1, 1953, the average classes at the Lincoln elementary ran 
24 pupils per teacher, while Liberty had 30 pupils per 
teacher (S-8), and yet the pupils living on the south side 
of Palisade Avenue were compelled to cross that heavily 
traveled artery to get to the more crowded Liberty school 
(73-74). There was no valid reason for making the boun­
dary line run along the rear line of the houses on the south 
side of Palisade Avenue instead of down the center of the 
avenue (79).

According to the Assistant Commissioner, it would be 
advisable, as a temporary expedient (177-8, 197), to abol­
ish the separate Lincoln Junior High School and to com­
bine all junior high pupils in one school, either in the 
Lincoln building or at Engle Street, and concurrently to 
relocate the elementary pupils whose places would be taken 
by the junior high school students (75, 107-108). Although 
traffic arteries are “ important”  factors to be considered, 
they would not constitute a barrier to the unification of 
the junior high schools, since police protection could be 
and is now being provided for all other pupils crossing 
certain heavily traveled streets to get to their assigned 
school (76-77, 79).



10

The establishment of a single junior high school for the 
entire district is one way, in Dr. Milligan’s opinion, in 
which a greater degree of integration could well be brought 
about without undue violence to the physical factors in­
volved (77, 107-8). It would also be feasible to reduce seg­
regation and still make a reasonable use of existing school 
facilities by establishing other attendance district lines for 
the elementary schools (76). Although Dr. Milligan could 
not assume to dictate to the Board just how the problem 
should be solved, since that is the Board’s responsibility 
under the law (82, 105, 199-202), he suggested taking pu­
pils from north and east of the old Lincoln district, and 
additional police protection at traffic crossings, if necessary 
(76). The taking of additional white pupils into Lincoln 
School in this manner would also utilize some six available 
classrooms in that building (79-80). The Board might also 
make use of the so-called “ Princeton Plan”  (105, 162-165), 
which would eliminate segregation and accomplish integra­
tion through combining Lincoln Elementary and Liberty 
into one district and dividing up the seven elementary 
grades (including kindergarten) between the two school 
buildings (164-5). This action would bring about a racial 
distribution in the two schools of approximately 27% white 
and 73% Negro children in each building (180).

In conclusion, Dr. Milligan testified (81):
“ I believe it would be possible to achieve, with due 

consideration of the physical factors, greater integra­
tion of students than has been done either under the 
former boundary lines or the present boundary lines 
and it would be possible to eliminate a racially segre­
gated school in the Lincoln School.”

Dr. H. Ii. Giles, Professor of Education and Director of 
the Center for Human Relation Studies at New York Uni­
versity, also testified as an expert on the subject of pos­
sible methods of integrating the racial segments in the 
Englewood schools. His previous experience had included



11

service as a consultant to the school systems of several 
large cities, both in the North and South, on inter-group 
and racial relations (118-119). After a six-year study of 
the problem in Englewood, where Dr. Giles has resided 
since 1915 (118, 120), he concluded that

“ the Board of Education in Englewood could, in ac­
cordance with accepted educational practice and poli­
cies, distribute the school population in Englewood in 
such a way as to make the best possible use of present 
school facilities and at the same time reduce the pres­
ent predominance of Negro students in the Lincoln 
schools.”  (123)

He concurred in Dr. Milligan’s suggestion that one pos­
sible way would be the “ Princeton Plan” , whereby “ the 
present Lincoln School district and the present Liberty 
School district would constitute a single school district 
with a redistribution of classes, perhaps from kindergarten 
to the third grade to go to the Liberty School and the 
fourth to the sixth grades to go to the Lincoln School”  
(124-). Another possibility, he said, would be “ to abolish 
the Lincoln School and redistribute its present population 
among other schools in the city” , with some provision per­
haps for transportation (124). This would be, of course, a 
long range plan, involving new construction (126).

Neither the old school zone lines (S-2) nor the new lines 
which went into effect September 1, 1954 (S-3) made the 
best possible distribution of students from the racial point 
of view, according to Dr. Giles (124-125). His views have 
been made known to the Superintendent and to the Board 
of Education and to the executives of the Urban League, 
by whom he had been asked to consider the problem (125- 
126) .

On cross-examination, Dr. Giles elaborated the reasons 
for his suggestion of the Princeton Plan, as follows (130):

“ Q. In other words, in these two school districts the 
older children would go to the Lincoln School and the



12

younger children would go to the Liberty School1? A. 
They might.

Q. What do you think that would accomplish! A. I 
think it would accomplish two or three things, in my 
judgment which would be feasible. The first of these, 
I believe I would mention, is a reduction of the present 
situation at Lincoln School in the figures, as I have 
seen listed at 99 plus per cent Negro. It would not 
mean a larg*e reduction but I believe it would mean a 
reduction of perhaps to something like 80 per cent 
but it would mean a substantial reduction over what 
now obtains in that school. The second possibility I 
would say in this move would be a greater use of the 
shops and equipment, especially at Lincoln School, 
as would be natural with the older children. ’ ’

Dr. Giles also emphasized that under his second pro­
posal, he would eliminate the Lincoln School “ in order to 
place these children in other parts of the city in schools 
which would not draw from the heavily populated Negro 
ward”  (131).

At the end of his cross-examination, Dr. Giles recom­
mended as an authoritative work in this field, the publica­
tion, “ They Learn What They Live” , of which Mrs. Helen 
Trager wTas co-author.

D. The Evil Effects of Segregation.

The Complainants then called Mrs. Trager, a mem­
ber of the staff of the Teacher Education Department at 
Brooklyn College in New York and an expert in the field 
of education and personality development of children (205- 
208). She gave convincing testimony as to the harmful 
effect of racial separation on the development of Negro 
children in a school which is predominantly colored. She 
described in detail a scientific study of the subject which 
had been conducted in Philadelphia from 1945 to 1948 
(208) where the separation of the races was not brought



13

about by law but rather by the residential location of the 
Negro community (216), Her conclusions appear in the 
following portions of her testimony (214-215; 216):

“ Q. Now I want to ask you this question. As a re­
sult of the study you made in Philadelphia and these 
conclusions which you have just reported about the 
race attitude of the Negro and white children in the 
kindergarten, first and second grades with relation to 
segregation, would you say these conclusions indicate 
that racial segregation causes irreparable injury to 
the personality and development of Negro children in 
contrast to that of the white children? A. I would say 
yes to that. The Negro children get a distorted view, 
that will follow them into adult life, of a lack of com­
petency; that their inability to attain good social re­
lations with the white children must be due to some 
inherent inadequacy or incompetency. The hurt to the 
personality of the Negro child is very definite and it 
exists because the Negro child cannot develop the kind 
of self-regard that is necessary for a balanced person­
ality. The Negro child does not feel he is accepted by 
other people, and therefore, how can he feel a sense of 
self-reliance and adequacy and as they grow up, they 
feel they are second-class citizens, so to speak.

Q. Does that situation have an effect on the ability 
of a Negro child to learn? A. You mean in the public 
schools ?

Q. Yes. A. Very definitely for the reason that in 
order to be able to learn, there must be energy—mental 
energy, if you will, and if that energy is diverted into 
feelings due to inadequacy and fear, it makes it less 
likely that the child who feels this inadequacy and this 
fear, will be able to cope with the problem of learning 
to his fullest capacity and that would be true with any 
child beset by such handicaps.”  * * *

“ Q. Now, based on your study in Philadelphia, 
would you say that in any northern community which is



14

similar—that is, where there are public schools which 
are in fact segregated where Negroes are in a minor­
ity or are a minority group in the community, that the 
effect of such segregation of children in public schools 
would be to adversely affect the personality develop­
ment and ability to learn of the Negro ? A. I think that 
is generally the case where such segregation exists. ’ ’

Mrs. Trager observed finally that the integration of the 
races in the schools was essential to the wholesome per­
sonality development of all the children, and particularly 
to enable the Negro children to overcome the misconcep­
tion of their inferiority which they derived from being 
separated from the white children. Specifically, she stated 
(218) :

“ In the case of the all-Negro school we had to bring 
them to the white school so they could learn that they 
were not less good and to show them that these chil­
dren would play with them and thus try to correct this 
misconception. ’ ’

E. Specific Incidences of Discrimination in Englewood.

In addition to the foregoing evidence regarding the 
general problem of the segregated schools at Lincoln, a 
number of individual witnesses testified to specific inci­
dents tending to show discrimination against Negroes in 
the admission of children of their race to other schools in 
Englewood.

Mrs. Susanne Anderson, one of the Negro Complainants, 
testified that for the past thirteen years she had been 
living at 34 Armory Street, which was on the West side of 
that street and, therefore, in the Liberty school zone (229, 
230, 225). (At page 225 of the transcript of testimony, 
the name “ Olney”  Street was a typographical error and 
should read “ Armory”  Street.) Her son, James, was ac­
cordingly taken to the Liberty School to register when he 
started in 1949, but after about a month, was transferred



15

to Lincoln where he has been ever since (228, 229). Mrs. 
Anderson explained that although she thought it was wrong 
to transfer the boy to Lincoln, she did nothing until filing 
her complaint in 1954 because she had to work six days a 
week, her husband had been sick all during this period, 
and she, therefore, did not have the time to do anything 
about the situation (229, 234). She further testified that 
there was a white family named Rivera living a couple of 
doors away from her on the same side of Armory Street, 
who went to Liberty School, while a colored family named 
Hartley upstairs were going to Lincoln during the same 
period (230-231).

On cross-examination, Mrs. Anderson emphasized that 
the children from her side of the street going to Liberty 
School were white and not Negro (234).

Another instance of the same kind was testified to by 
Mrs. Hattie Tuck, a Negro, who lived on the West side of 
Armory Street in 1950, when her girl, Eileen, started in 
school. The girl was registered at Liberty School in Sep­
tember 1950, but half an hour later, the Registrar called up 
and said, “ She was sorry, but my little girl could not go to 
Liberty School because * * * Armory Street was not listed 
on the map for the Liberty School”  (243-244). Accord­
ingly, the child was taken to Lincoln. Mrs. Tuck, like Mrs. 
Anderson, thought that her child belonged at Liberty be­
cause the “ white children that lived up the street, they went 
to Liberty School”  (244). The white children included the 
Riveras and at least one other family who lived on the 
West side of Armory Street (244). Mrs. Tuck likewise 
confirmed that while there were not many colored people 
living on the West side of Armory Street in 1950, those 
who had resided there attended Lincoln School (245).

On cross-examination, Mrs. Tuck further testified that all 
children living in her block up through the sixth grade 
were supposed to attend Liberty. The following excerpt 
from her testimony puts the matter very succinctly (247) :



16

‘ ‘ Q. How many people had children going to Liberty 
School in your block? A. Two.

Q. Your child was not accepted in Liberty School? 
A. No.

Q. Were the children in your block who were ac­
cepted, white? A. Yes.

Q. No Negro children in your block in the Liberty 
School? A. No.”

Mrs. Larrine Clark, a Negro, living at 243 Lafayette 
Place, which is on the East side of that Street, testified 
that she had three children all attending Lincoln School. 
In 1949, when she took her oldest child to Liberty School 
to register, the Registrar told her that since she lived on 
the East side of the street, the child had to go to Lincoln 
School (252). She did not take the Registrar’s word for 
it, because she thought that the Lafayette Street area was 
an optional zone (253), and she knew of some white children 
living in the apartment house on the East side of Lafayette 
Street at the corner of Third Street, who were going to 
Liberty School, also a girl down on Second Street who 
was going to Liberty (253), so she took up the matter with 
her councilman, Mr. Marston, who advised her as follows 
(252) :

“ He said: 41 know people that have tried to get 
their kids in Liberty School and it didn’t do no good 
and it won’t do no good even for money, you can’t get 
her into Liberty School.’ So I took his word and took 
her down to Lincoln School and that’s where she has 
been since.

Q. And your other children also went to Lincoln 
School? A. Yes.”

On cross-examination it was brought out that Mrs. Clark 
received a letter from Dr. Stearns on October 8, 1954, tell­
ing her that there was no reason why she should not have 
her child in the Liberty School (R-2). She did not receive



17

the letter, however, until after she had filed a complaint 
with the Division Against Discrimination (257).

Mrs. Sara Williams, another colored resident on the 
east side of Lafayette Place, testified that when she first 
took her son in 1951 to Liberty School to register him in 
the kindergarten, the Registrar said that he had to go to 
Lincoln School, and that everyone below Third Street on 
the East side of Lafayette Street had to go to Lincoln 
(273). That same year there were white children from that 
side of the street from the apartment on Third and 
Lafayette attending Liberty, and Mrs. Williams under­
stood that she also could choose Liberty (273). She went 
to Miss Griggs, the Principal of Liberty, who also told her 
that her son would have to go to Lincoln (274). There­
after, Mrs. Williams got in touch with Dr. Stearns, who said 
that the Registrar and Miss Griggs “ were wrong”  and that 
her son might go to Liberty, which he thereafter attended 
(274-275).

Five other Negro mothers residing in the northwest 
sector of the 4th Ward, including the Complainant Walker, 
gave testimony complaining of the change-over from 
Liberty to Lincoln kindergarten in so far as their young 
children were concerned.

Additional evidence was adduced tending to show that 
the specific incidents related by Mrs. Anderson, Mrs. Tuck, 
Mrs. Clark and Mrs. Williams were not a series of unin­
tentional mistakes, but were part of a pattern of dis­
crimination which had been fostered by successive school 
administrations over a long period of years. Among this 
evidence was the following*:

(a) The uncertainty which prevailed as to whether the 
boundary between Lincoln and Liberty ran down the center 
of Armory Street, as shown on the maps prepared by Dr. 
Stearns (S-2 and R -l), or down behind the houses on the 
west side of that street, as stated in the “ interpretation”  
given out by him (S-4). Dr. Stearns testified (361):



18

“ Now apparently there was confusion along Armory 
Street which I didn’t know about until quite recently.”

(b) Vagueness as to whether or not a zone of choice 
existed on the east side of Lafayette Place. Dr. Stearns 
testified that when he came to Englewood, the matter was 
“ controversial”  (355) and in a state of “ confusion”  (356, 
357); that there was no record to show that such an area 
of choice had ever been officially established by the Board
(357) ; that he “ assumed”  that the people knew all about it
(358) ; and that he “ finally arrived at my own decision”  
that it was an optional zone (356).

(c) The “ common practice”  before Dr. Stearns’ time 
of allowing exceptions to the boundary lines so that children 
residing in one district might go to school in another. In 
the case of graduates of Lincoln Elementary being allowed 
to attend Engle Street Junior High, a few Negroes were 
given the benefit of such exceptions, but most of them were 
made in favor of white children until Dr. Stearns’ regime 
began in 1944 (359; S-17).

Questions regarding the Board’s good faith in dealing 
with the segregation problem are similarly implicit in the 
history of its relations with the Division against Dis­
crimination. After the Anderson complaint was filed, the 
Division conducted an extensive investigation. Thereupon 
it notified Dr. Stearns, by a letter of May 7, 1954 that there 
was probable cause to credit the allegations of the com­
plaints against the Board, expressed the hope that it could 
assist the Board in establishing policies which would elimi­
nate the probability of future complaints, and requested a 
conference to this end (S-15). That letter led to an in­
formal conference between Dr. Stearns and Dr. Milligan, 
which was followed by another letter to Dr. Stearns from 
the Division, dated May 21, 1954, requesting a conference 
with the Board for the purpose of adjusting the com­
plaints, if possible (S-12).

Pursuant to this letter a conference between the Board 
and the Division was held on June 8, and the next day Dr.



19

Milligan again wrote to Dr. Stearns expressing the feeling 
that great progress had been made and that he understood 
that the following agreement among others had been 
reached (S-13):

“ 1. The Englewood Board of Education will estab­
lish and make a matter of official record the school 
district lines to become effective in September 1954. 
The Board may wish to consult representatives of this 
Division although it is understood that the responsi­
bility of establishing the district lines is that of the 
Board of Education. We are accepting in good faith 
the Board’s statement that these lines will be estab­
lished so that there will be no discrimination against 
students because of race, creed or color.”

The story from there on was testified to by Dr. Milligan 
as follows (99-101):

“ In other words, I had accepted in good faith the 
declaration of the Board on June 8th, that they would 
not establish any new lines that would be established in 
a way that would be discriminatory. Now, in my 
letter of July 9th, which was a month later, I had to 
request—the line, change had been established by the 
Board in an official meeting on June 28, 1953* and the 
only information I had on that was by reading- it in a 
newspaper clipping—and I then requested in my letter 
of July 9th that the official action on these changes be 
transmitted to the Division. On July 22, 1954, I pre­
pared a full summary of my conferences with Dr. 
Stearns and the members of the Board, and our at­
tempts at conciliation up to July 22nd, 1922.* A new 
complaint was received from Mrs. Mary Walker and 
on August 4th I was able to confirm a meeting with 
the Board on August 10th, for conciliation purposes. 
We could not make a thorough investigation to de­
termine whether there was discrimination at that time. 
Subsequently, on August 19th I summarized the August

* Should read “ 1954” .



20

10th meeting, where the Board refused to conciliate 
the matter and I expressed the deepest regret that
there would have to be a public meeting on the matter.
# # #

Q. Would you tell me what you mean by the Board 
refusing to conciliate the matter? A. Yes, sir. I had 
pointed out to the Board that it would be wise to wait 
just one month—this was in the meeting of August 
10th—that I would like to have them wait one month 
because the lateness of the Board’s declaration of the 
new lines did not give our Division time to evaluate 
the effects of these new lines in terms of segregation 
of students and also advised that a number of my men 
were away on vacation. I also pointed out that it 
seemed to me that these lines as established for the 
kindergarten and first grade, if continued, would re­
sult in even greater segregation than had heretofore 
existed and I asked the doctor if they could not find 
some way to hold the status quo and if that could not 
be done, to allow students who had formerly attended 
kindergarten in Liberty school to continue their at­
tendance there, so that the complainants would be 
satisfied and thereafter work out a fair and equitable 
solution or plan. The Board refused to rescind its 
action and contended these were the only practical lines 
that could be drawn and so, after conferences with my 
assistants and other Assistant Commissioners of Edu­
cation, I recommended a public hearing.”

F. The Defense.

Harry L. Stearns, Superintendent of Schools in Engle­
wood, called as a witness on behalf of the Respondent, tes­
tified that the new line between the Lincoln and Liberty 
districts for kindergarten purposes had been drawn by him 
pursuant to instructions of the Board of Education to find 
the best method of relieving overcrowded conditions in 
Cleveland School and utilizing available space in Lincoln



21

(309). Since the Liberty School lay between the two, the 
plan devised was to move northward the boundary of the 
Liberty School to take in children from the former Cleve­
land district, and to take into Lincoln some pupils who 
would otherwise have gone to Liberty (S-3; 308-313, 320). 
He denied that in any of his conferences with the Board 
concerning this matter the idea of segregation ever entered 
into his thinking or discussions (309-310).

On cross-examination, howTever, Dr. Stearns admitted that 
he had no reason to doubt that, as shown in Exhibits S-7 
and S-ll, only 2 out of 102 children in Lincoln kindergarten 
were white and only 1 of the elementary pupils and 1 of 
the Junior High School pupils at Lincoln were white (323- 
324). He also admitted that he had not made any inquiry 
as to the number of Negro and white pupils in Liberty 
kindergarten and Lincoln kindergarten under the new lines 
(325-326). He acknowledged that it “ may be”  true that the 
new line makes an approximate division between the white 
and colored sections of the Fourth Ward, as shown on 
Exhibit S-5, there being no Negro families that he knew 
of living on the south side of Palisade Avenue (332-333).

The following excerpt from Dr. Steam’s testimony sig­
nificantly shows the failure of either himself or the Board to 
consider what result the new lines would have on the racial 
situation in Lincoln and Liberty Schools (334-335):

“ Now doctor, isn’t it a fact that the existence of 
this old line on the south side of Palisade Avenue and 
the extension of that line westerly to the western bor­
der of the city, as shown on Exhibit S-3, had the prac­
tical effect of removing all Negro children from Lib­
erty kindergarten this year and sending them to Lin­
coln kindergarten—wasn’t that the practical effect of 
that action! A. The figures would seem to indicate 
that, but that was not known at that time.

Q. At what time! A. At the time the lines were 
drawn.



22

Q. But it did accomplish that fact, did it not, Dr. 
Stearns'? A. Yes.

Q. Did you make any inquiry as to what the result 
of drawing that line would be, at the time the line was 
so drawn? A. I did not.

Q. Did any member of the Board, in any Board meet­
ing you attended, raise any question as to what would 
be the result racially insofar as the Lincoln School was 
concerned? A. No sir, I don’t recall that the question 
was ever raised at any of the Board Meetings I at­
tended on that subject—that is, the subject of drawing 
new lines.

Q. And it was never discussed by you with any of 
the members of the Board? A. No.”

Board President Fitzpatrick (394) and two other Board 
members—Mr. Cramer (271-2) and Mrs. Wolpert (386), 
also denied that the subject of segregation had ever been 
discussed, formally or informally, at any Board meeting 
attended by them. However, another Board member, Gen­
eral Stratton, admitted that at least in respect to the Junior 
High School the Board had considered the problem of the 
racial make-up of Lincoln “ as a general one in our com­
munity”  (263).

Whether or not the Board discussed the subject of segre­
gation at Lincoln Elementary, they were well aware of 
the problem. Dr. Stearns frankly admitted it, thus cor­
roborating Complainant’s evidence on this point. After 
conceding that a number of citizens had appeared at a 
Board meeting and talked about the racial situation at Lin­
coln (381), Dr. Stearns testified (382-383):

Q. * # * Did any Board member, at any particular 
meeting, discuss or mention the fact that Lincoln was 
a particularly (should be “ practically” ) all-Negro 
school? A. Board members had been generally con­
scious of the fact that due to the nature of the area, 
which they had no control over, largely Negro children 
go to that school and that it is largely a Negro school.



23

This has been recognized at one of the meetings but 
I cannot tell you the date of the meeting when it was 
discussed.

Q. But the Board members have been generally con­
scious that this is nearly an all-Negro school! A. 
Yes.”

The Superintendent also acknowledged that he and mem­
bers of the Board had discussed the proposals of both Dr. 
Milligan and Dr. Giles for bringing about de-segregation 
(383).

In short, the Respondent’s own evidence shows that the 
Board and Dr. Stearns had been fully conscious of the 
racial problem in the Lincoln Schools when the new line 
between Lincoln and Liberty kindergartens was determined 
upon in June 1954 (271, 263, 382, 394).

Summary of Argument

The testimony and exhibits established beyond question 
that between September 1949 and the present time, in viola­
tion of Section 11(f) of the Law Against Discrimination 
(N.J.S.A. 18:25-12) and pursuant to a persistent plan and 
scheme, the Respondent has unlawfully discriminated 
against members of the Negro race in the admission of 
pupils to its schools by:

I. Maintaining without just cause the Lincoln Elemen­
tary School as a substantially all-Negro school, thereby 
unlawfully discriminating against all colored children, in­
cluding the Complainant Anderson’s child, who were obliged 
to attend that school;

II. Establishing a new attendance zone line between 
the Lincoln and Liberty districts so as to enlarge and ex­
tend Lincoln Elementary as an almost exclusively Negro 
school, thus discriminating against the Complainant Walk­
er’s child and others similarly situated;



24

III. Maintaining without just cause a separate and vir­
tually all-Negro Junior High School for students residing 
in Lincoln District, while sending students from all other 
elementary districts to Engle Street Junior High School, 
the student body of which is predominantly white;

IV. Causing Negro children to attend the Lincoln 
schools, while white persons similarly situated were sent 
to Liberty or Engle Street Schools, through such devices 
as maintaining indefiniteness as to zone lines, allowing 
exceptions to the lines as established, and giving a choice 
of schools to white persons but not to Negroes similarly 
situated; and specifically, sending the Complainant Ander­
son’s child and other Negroes similarly situated to Lin­
coln Elementary School, while white children from the 
same zone were sent to the Liberty School.

Each of the foregoing violations will be treated under a 
separate Point, in the order above listed.

Point I involves essentially the question whether pass­
ively permitting a substantially all-Negro school to exist, 
when it can by reasonable measures be avoided, constitutes 
unlawful discrimination. Point II involves a positive act 
by the Board which resulted in enlarging and extending 
an almost exclusively Negro school, while Point III con­
cerns the maintaining of a colored school which resulted 
from deliberate and intentional segregation by a predeces­
sor board or boards. Points II and III can be decided in fa­
vor of the Complainants without a favorable decision on 
Point I. We take the latter Point first because, if it is de­
cided in favor of the Complainants, it would necessarily 
carry Points II and III along with it, and would sustain the 
principle of compulsory de-segregation of minority racial 
groups in our public schools.

Point IY deals with particular acts of discrimination 
against certain individuals rather than with the general 
problem of school districting.



25

P O I N T  I

The Respondent unlawfully discriminated against 
all Negro children who were being obliged to attend 
Lincoln Elementary School during the school year 
1953- 1954.

The undisputed evidence at the hearing showed that as 
of the school year 1953-1954 there was only one white 
child in the Lincoln Elementary School out of a total 
enrollment of 331. It also appeared that the old line of 
demarcation between Lincoln and Liberty Elementary Dis­
tricts had been in existence for many years, and there 
was little evidence that the line as originally drawn was 
discriminatory. We may assume for the purposes of this 
Point that the Negro character of this school was brought 
about primarily through the influx of Negro residents and 
the removal of whites from that zone, and not because of 
any actions taken by the Board (although, as we shall later 
show, the allowance of exceptions and irregularities by 
earlier boards may have accelerated the segregation pro­
cess). Such a state of separation of school children along 
racial lines we may term “ segregation-in-fact” , denoting 
the actual situation regardless of how it was brought about.

The question posed by this Point I is whether the seg­
regation of school children in fact, when it can by reason­
able measures be avoided, constitutes unlawful discrimina­
tion where it has occurred as a result of events not par­
ticipated in or contributed to by the school authorities. 
We submit that the answer to this question should be in 
the affirmative.

A. The Responsibilities of a Board of Education

The authority of a school board to establish separate 
schools within the district and to fix the zones of attend­
ance for each school is found in Section 18:11-1 of the 
Revised Statutes, which reads as follows:



26

“ Each school district shall provide suitable school 
facilities and accommodations for all children who re­
side in the district and desire to attend the public 
schools therein. Such facilities and accommodations 
shall include proper school buildings, together with 
furniture and equipment, convenience of access thereto, 
and courses of study suited to the ages and attain­
ments of all pupils between the ages of five and twenty 
years. Such facilties and accommodations may be pro­
vided either in schools within the district convenient 
of access to the pupils, or as provided in sections 18:14- 
5 to 18:14-9 of this title.”

Sections 18:14-5 to 18:14-9 deal with attendance of pupils 
in an adjoining district because of remoteness from school, 
and with transportation of pupils to and from school. These 
statutes are not pertinent to the present discussion.

In determining where to locate schools within the district 
and what pupils to send to them, it is proper for the Board 
of Education to consider such factors as convenience of 
access to the respective schools as determined by distance 
to be traveled from home, the topography of the country, 
the condition of roads, and the like; the necessity of cross­
ing highways, railroads or other facilities vdiich might 
involve danger to children and require police protection; 
the availability of space in existing or proposed buildings, 
and the crowded condition of classrooms; the cost of new 
facilities, transportation and similar factors. For the sake 
of convenience, the items just enumerated may be termed 
the physical factors which the Board should consider in 
drawing the lines betvTeen zones of attendance.

In addition, however, the Law against Discrimination 
(Chapter 169, P.L. 1945, as amended) prohibits discrimina­
tion in the admission of pupils to any public school on ac­
count of race. Section 11 of the law (N.J.S.A. 18:25-12(f)) 
makes it an unlawful discrimination for the owner or op­
erator of “ any place of public accommodation” , in extend­
ing the privileges and facilities thereof, to discriminate



27

against any person on account of race, creed, color, national 
origin, or ancestry. The term “ place of public accommo­
dation”  is defined in the law (N.J.S.A. 18:25-5(j)) as in­
cluding “ any kindergarten, primary and secondary school, 
trade or business school, high school, academy, college and 
university, or any educational institution under the super­
vision of the State Board of Education, or the Commis­
sioner of Education of the State of New Jersey.”

The New Jersey Education Law has also long provided 
that “ no child # * shall be excluded from any public
school on account of his religion, nationality, or color.”  
B.S. 18:14-2.

One form of discrimination on account of race or color is 
deliberate segregation, even though the physical facilities 
in a segregated school may be equally as good as those of 
any other school in the district. The Law against Discrimi­
nation must be so construed when read, as it has to be, in 
the light of the New Jersey Constitution, Article 1, para­
graph 5. That paragraph expressly provides that:

“ No person shall be denied the enjoyment of any civil 
or military right, nor be discriminated against in the 
exercise of any civil or military right, nor be segre­
gated in the militia or in the public schools, because 
of religious principles, race, color, ancestry or national 
origin. ’ ’

The statute must also be read in the light of the recent 
decisions of the United States Supreme Court in Brown v. 
Board of Education, 347 IT . S. 483; and Bolling v. Sharpe, 
347 U. S. 497, both decided in 1954. In holding that state 
laws requiring or permitting segregation of children in 
public schools solely on the basis of race is a violation of 
both the equal protection clause and the due process clauses 
of the United States Constitution, the Court said in the 
Brown case (pp. 493-495):

“ In Sweatt v. Painter, supra, (339 U. S. 629), in find­
ing that a segregated law school for Negroes could not



28

provide them equal educational opportunities, this 
court relied in large part on ‘ those qualities which are 
incapable of objective measurement but which make 
for greatness in a law school.’ In McLaurin v. Okla­
homa State Regents, supra, (339 U. S. 637), the court, 
in requiring that a Negro admitted to a white graduate 
school be treated like all other students, again resorted 
to intangible considerations; * * *‘ his ability to study, 
engage in discussions and exchange views with other 
students, and in general, to learn his profession.’

Such considerations apply with added force to chil­
dren in grade and high schools. To separate them from 
others of similar age and qualifications solely because 
of their race generates a feeling of inferiority as to 
their status in the community that may affect their 
hearts and minds in a way unlikely ever to be undone. 
The effect of this separation on their educational op­
portunities was well stated by a finding in the Kansas 
case by a court which nevertheless felt compelled to 
rule against the Negro plaintiffs:

‘ Segregation of white and colored children in public 
schools has a detrimental effect upon the colored chil­
dren. The impact is greater when it has the sanction 
of the law; for the policy of separating the races is 
usually interpreted as denoting the inferiority of the 
Negro group. A sense of inferiority affects the motiva- 
ation of a child to learn. Segregation with the sanction 
of law, therefore, has a tendency to retard the educa­
tional and mental development of Negro children and 
to deprive them of some of the benefits they would 
receive in a racially integrated school system.’ * * *

“ We conclude that in the field of public education 
the doctrine of ‘ separate but equal’ has no place. Sepa­
rate educational facilities are inherently unequal.”  
# # *

It thus seems incontrovertible that deliberate segrega­
tion “ because of race”  within the meaning of the New Jer-



29

sey Constitution and within the prohibition of the Federal 
Constitution, is also a violation of the Law against Dis­
crimination.

With this principle established, the question arises 
whether the Law goes further and prohibits a board of 
education from permitting the existence of segregation-in- 
fact when it can reasonably be eliminated. We believe that 
the Law against Discrimination should be so construed.

B. Permitting Unnecessary Segregation is Discrimination

In determining the meaning of a statute, we must look 
to the mischief which the law is designed to overcome. 
Blackman v. lies, 4 N. J. 82, 89 (1950); Doremus v. Board 
of Education of Hawthorne, 5 N. J. 435, 453 (1950). As 
the New Jersey Supreme Court said in the last cited case 
(p. 453):

“ It is a cardinal rule in the construction of consti­
tutional and statutory enactments that the provision 
made by way of remedy shall be studied in the light 
of the evil against which the remedy was erected. ’ ’

The nature of the evil of segregation-in-fact was well- 
expounded by Mrs. Trager in her convincing testimony at 
the hearing, where she explained, as hereinbefore noted, 
that by being separated from their white contemporaries, 
the Negro children come to feel inadequate or incompetent, 
which in turn makes it less likely that they will be able to 
cope with the problems of learning and of achieving a sat­
isfactory personality development. The effect of such sepa­
ration is bad, she said, whether or not it has been brought 
about by law (216).

This same harmful effect of segregation-in-fact was also 
implicit in the reasoning of the U. S. Supreme Court in 
the Brown case, as above noted, where the court referred 
to several authorities on the psychological effect of such 
separation on the Negro pupils. The court noted that the



30

impact of the segregation was “ greater when it has the 
sanction of law” ; but by the same token, when it has the 
sanction of the agency charged with administering the law, 
the impact on the pupils involved would be at least as dam­
aging.

It is immaterial that the racial composition of a segre­
gated school may have been caused solely by residential 
concentration of Negroes. As in Englewood, there are 
many communities where residential segregation is the 
order of the day. Negroes in such communities are gen­
erally compelled by social and economic factors to live in 
one or more well-defined areas which tend to become solely 
Negro, while at the same time other areas tend to remain 
almost exclusively white. See Ashmore, The Negro and 
the Schools (1954), especially pages 76-77. If the bound­
aries of attendance districts are drawn on a purely physi­
cal basis, the evil of separation of races in the schools, as 
well as in residence, will be perpetuated as a matter of 
course.

In view of the evil at which the anti-segregation laws are 
directed, we submit that they require the Board of Educa­
tion to do more than merely draw the zone lines according 
to the physical and economic factors alone. The Board 
must take cognizance of the racial situation, and take all 
reasonable steps to avoid separation of the races and to 
bring about integration in the schools under its jurisdic­
tion. To allow segregation-in-fact to persist in the schools 
merely because of residential factors would be to thwart 
the purposes of the New Jersey Constitutional provision 
and of the equal protection and due process clauses of the 
United States Constitution as interpreted by the Supreme 
Court. The interpretation and application of the principle 
of non-segregation must take into account the actual con­
ditions in which the principle is to operate and the harm 
which it is designed to avoid.

We conclude, therefore, that the term “ discrimination on 
account of race”  as used in the Law against Discrimination,



31

and the term ‘ ‘ segregation because of race ’ ’ as used in the 
New Jersey Constitution, should not be narrowly confined 
to cases where a harmful division of the races has resulted 
from a deliberate purpose or intent to bring it about. Those 
terms must be construed in the light of the statutory re­
sponsibility of the Board, under R.S. 18:11-1, to furnish 
suitable educational facilities for all public school children 
in the district, and in the further light of the constitutional 
responsibility of the Board to provide such facilities to all 
children on an equal basis, psychological as well as physical, 
so far as reasonably possible. We submit that the failure 
of the Board to perform these statutory and constitutional 
obligations, either knowing or having reason to know that 
such neglect of duty will result in substantial racial segrega­
tion in one or more of its schools, constitutes “ Discrimina­
tion on account of race”  and “ Segregation because of 
race”  within the meaning of those phrases in the Law 
against Discrimination and the State Constitution, re­
spectively. To put it another way, segregation “ on account 
of race”  or “ because of race”  means causing or permitting 
children of one race to be set apart in the school system 
from those of another race where it would be feasible to 
avoid such a division.

We do not maintain here that complete integration must 
be achieved at all costs, so that in every school the pupils 
would represent a fair cross section of all races in the 
district. Financial, transportation and other problems in­
volved in such a program might be insuperable. We do not 
believe that the constitutional requirement of de-segrega­
tion necessitates a disregard of physical and financial con­
ditions in the school district.

The guiding principle, we submit, is that the Board of 
Education should establish, and where necessary alter, 
zones of attendance in such a manner as to eliminate racial 
segregation so far as possible consistently with due regard 
for physical and economic factors. This principle requires



32

the Board to act whenever necessary to prevent segrega- 
tion-in-fact from becoming entrenched; and it further de­
mands that whenever the Board does take any action to 
construct new schools, change attendance zones, or other­
wise to determine where children shall go to school, such 
action must be taken in accordance with the de-segregation 
objective.

The application of these basic rules to any particular 
case involves the determination of how far the predomin­
ance of Negroes in a school may be allowed to progress 
before the due to de-segregate arises. For example, must 
the Board act after the ratio of colored to white is more 
than one-half! Or more than 80 percent?

The solution to this problem would seem to be this: 
The Board must act whenever, under the particular cir­
cumstances, the ratio has become such that the Negro 
children are being denied educational facilities which are 
equal, intangibly as well as tangibly, with those afforded 
to the whites. The controlling object is always to provide 
all children with the best possible opportunity for psycho­
logical and personality development. Just when the injuries 
of racial segregation begin to be inflicted is a question 
which, in the first instance, must be decided by the Board 
in each case in the honest exercise of reasonable judgment, 
with the help of such expert advice as may be available. So 
long as reasonable men might differ in judging a particular 
situation, the discretion of the Board should not be dis­
turbed.

Where, however, a school has become all Negro but for 
one or two children, while there are other schools nearby 
which are predominantly white, the harmful effect on the 
pupils of the colored school can no longer be disputed. 
Furthermore, where the State authorities have advised the 
Board that the racial segregation in its schools is unreason­
able and should be remedied, the Board should abide by 
the judgment of the State authorities unless it proves that



33

the State is wrong. In the case of Englewood, therefore, 
one can no longer doubt the Board’s duty to remedy the 
situation if at all possible.

C. Segregation at Lincoln Can Be Eliminated

As we have already seen, both Dr. Milligan and Dr. 
Giles testified that the problem of segregation at Lincoln 
Elementary could be solved.

Both of these experts recommended the Princeton Plan 
as one possible solution, for the time being at least. Under 
this plan, Liberty and Lincoln Elementary Schools would 
be consolidated into one district, with the lower grades 
going to Liberty and the upper to Lincoln (124). The only 
excuse that Dr. Stearns could give for not adopting this 
Plan was “ the traffic problem in Palisade Avenue”  (321). 
He admitted, however, that Palisade Avenue west of the 
monument at Liberty School was a residential street -with­
out much traffic (338), and that children coming up from 
the south side of the street could and did safely cross to 
Liberty under police protection at the monument (338). 
Under police protection, some six or seven children who 
live on the south side of Palisade Avenue and east of 
Lafayette Avenue already cross one of those heavily trav­
eled arteries in order to go to Liberty School (338). It 
is true that the heavy traffic on Palisade Avenue east 
of the monument comes in via Englewood Avenue and 
Lafayette Avenue (342). However, under the new zone 
line between Lincoln and Liberty, children from the Fourth 
Ward north and west of those traffic arteries would be 
obliged to cross them to travel to and from Lincoln School. 
If such east-west travel by children going to Lincoln was 
not a sufficiently serious obstacle to the establishment of 
the new boundary line, it could hardly be a serious objec­
tion to similar travel by children in the southeast sector 
of the Fourth Ward going up to Liberty.



34

Dr. Milligan also suggested taking pupils from north 
and east of the old Lincoln District, with additional police 
protection at traffic crossings if necessary (76). Here 
again, Dr. Stearns’ reasoning was reduced on cross exam­
ination to the assertion that Dr. Milligan’s plan would 
aggravate the problem of traffic jams, there having been 
little trouble getting police protection (344). A  visit to 
Palisade Avenue, however, will disclose that there are 
traffic stop lights at the intersections of that avenue with 
Grand Avenue, Dean Street and West Street. In any event, 
moreover, north-south traffic must be stopped at intervals 
to make way for east-west traffic, and vice versa. The cross­
ing of children while traffic was thus stopped would ob­
viously make little or no difference in the time that traffic 
was held up.

Finally, even if there would be minor increases in traffic 
congestion problems if one of the plans suggested by the 
experts were adopted, that is not a sufficient reason for dis­
carding attempts at de-segregation. It would require in­
deed a distorted sense of values to maintain the position 
that the mental and emotional development of a large 
segment of our youth is to be sacrificed for the sake of 
a few minutes of automobile traveling time.

Also available to the Board was Dr. Giles’ recommenda­
tion, as a long range plan, to discontinue Lincoln Elemen­
tary and to absorb its population in other schools, possibly 
with transportation being provided (124). We have no 
doubt, furthermore, that the Respondent could devise other 
plans of its own which would achieve a satisfactory degree 
of de-segregation.

For the foregoing reasons, it is submitted that the Board 
must not be permitted to maintain the Lincoln Elementary 
School with its present racial segregation, but must take 
appropriate steps to integrate its population with the 
remainder of the school community in one or more of the 
various methods that are available for the purpose.



35

P O I N T  I I

The Respondent unlawfully discriminated against 
the Complainant Walker’s child and others similarly 
situated when it established a new attendance zone 
line between the Lincoln and Liberty District so as to 
enlarge and extend Lincoln Elementary as an almost 
exclusively Negro school.

As contrasted with Point I, which involved failure by 
the Respondent to act, this Point concerns a positive act 
by which segregation in fact at Lincoln Elementary was 
expanded and its continuance practically assured. Thus, 
even if the Board were not legally required to change any 
zone line which was not discriminatory in its origin, it cer­
tainly ran afoul of the Law against Discrimination when 
it actually redrew the boundary with the effects herein­
before described.

Even though the new kindergarten line between Lincoln 
and Liberty may have indirectly relieved overcrowding in 
Cleveland School, it was perfectly calculated to result 
within the next five years in the virtual elimination of 
Negroes from Liberty School and the zoning of almost all 
Negro pupils in Englewood back into Lincoln.

The uncontested evidence shows that this line coincides 
with the general dividing line between the “ white”  and the 
“ colored”  residential sections, the latter meaning that sec­
tion within which Negroes are accepted generally as owners 
or tenants. The few exceptional instances of Negroes living 
elsewhere in the city only point up the predominant pattern 
of residential segregation in Englewood. As Mr. Fitz­
patrick testified, the colored population has been moving 
increasingly into the northwest part of the 4th Ward; if 
nature takes its course, the percentage of white people 
living in that section will probably dwindle to a negligible 
number. Whether the population of the new Liberty dis­
trict will remain mostly white is a matter of conjecture only;



36

but whatever the future may bring, the present situation 
is the one in the light of which the Board’s action must be 
judged.

Although at the time of the hearing the Board had 
fixed the line for only one year, Dr. Stearns testified that 
the line was designed “ in anticipation of the possibility 
that the children now in the Lincoln kindergarten will con­
tinue in the Lincoln School all the way through”  (344, 
320). All indications thus point to the enlargement of 
Lincoln as purely Negro school, through zoning into Lin­
coln those colored families in the northwest sector of the 
4th Ward who would have gone to Liberty if the line had 
not been changed.

Such violence to the interests of racial integration could 
be justified only by a showing that there was no other 
feasible solution to the problem of overcrowding at Cleve­
land. Not only was no such showing made by Respondent 
at the hearing but the evidence adduced by the Complain­
ants proved the contrary. This evidence has already been 
alluded to under Point I, in connection with our exposition 
of the various alternatives open to the Board for the 
purpose of integrating the Negroes of the old Lincoln 
District with other school children in the community.

In order to establish that unlawful segregation lias taken 
place, the complainants need not prove a conscious intent 
or purpose on the part of the Board to discriminate. It 
suffices to show that the Board has taken action, which 
it knows, or should know, will tend to result in the separa­
tion of colored pupils into one school and white pupils into 
another, thus inducing the evils above explained. A Board 
of Education should not be color-blind in determining at­
tendance zones.

Here, with full awareness of the racial situation, the 
Board and Dr. Stearns completely ignored it at best, when 
drawing the new boundary between Lincoln and Liberty 
kindergarten. As the Superintendent testified (384-385):



37

“ Q. Now, Dr. Stearns, when yon proposed to the 
Board this new line down the south side of Palisade 
Avenue, did you make any attempt to ascertain what 
the result would be so far as the racial make-up of the 
Lincoln school was concerned! A. No, no positive at­
tempt. That was not the problem the Board asked me 
to meet.

Q. You didn’t make any attempt to ascertain that? 
A. No positive attempt.

Q. Did the Board ask you what the result would be? 
A. No sir.

Q. Then the Board went ahead and approved this 
new line without inquiring what the probable result 
would be so far as the racial make-up of Lincoln School 
is concerned? A. That’s about right.”

When a Board of Education, well knowing that an un­
desirable racial distribution exists in its schools, takes 
action to alter the attendance zones without even bothering 
to inquire as to its probable effect on the racial situation, 
and such action does in fact result in a further separation 
of white from colored children and zoning of the latter into 
an already Negro school, an act of unlawful segregation 
has been committed. Such a conscious disregard of the 
educational problems of the Negro, leading only to a deep­
ening of the gulf between children of the two races, is all 
that is needed to constitute a violation of the Law against 
Discrimination. It also deprives the Negro children of the 
equal protection of the laws guaranteed by the Federal 
Constitution, and constitutes segregation in schools because 
of race within the meaning of the New Jersey Constitution. 
Where, as here, a Board cannot help but foresee the segre­
gation-in-fact if it bothers to make the necessary investiga­
tion, its reckless disregard of the racial consequences must 
be held to be the equivalent, in law, of segregation because 
of race.

Furthermore, if an actual and conscious purpose to 
segregate were necessary to a breach of the law, we submit



38

that such intent may well he inferred from the evidence, re­
gardless of the protests of Board members and Dr. Stearns 
to the contrary. The perfect coincidence between the new 
line and the boundary of the colored residential district; 
that the effect of the new line will soon be to zone all 4th 
Ward Negroes back into Lincoln, so that Liberty will then 
be mostly white; the disregard of traffic jams and dangers 
to children crossing Englewood Avenue and Lafayette 
Avenue to go to Lincoln, while pleading these factors as 
an excuse not to take children into Lincoln from elsewhere; 
that there were other and better ways in which the over­
crowding at Cleveland could be relieved; and the manner 
in which the Board summarily put the new lines into effect 
without even consulting Dr. Milligan; all these, and many 
other factors in the case, furnish ample basis for a finding 
that the segregation effected by the new line was intentional 
and deliberate.

P O I N T  I I I

The Respondent unlawfully discriminated against 
members of the Negro race by maintaining a separate 
and virtually all Negro junior high school for children 
residing in Lincoln District, while sending pupils from 
all other elementary districts to Engle Street Junior 
High School, the student body of which has been pre­
dominantly white.

The review of tbe evidence which we have previously 
given on this point proves that prior to 1938 all Junior 
High School children in Englewood had been attending the 
integrated junior high school at Engle Street; that in 1938 
and 1939 the Board of Education established the Lincoln 
Junior High for children residing in Lincoln Elementary 
District; that at that time the population of Lincoln Dis­
trict was heavily Negro; and that the Board must have 
then known—and indeed intended—that the new Lincoln



39

School would he attended almost entirely by Negroes, who 
would otherwise enjoy the advantages of a much larger 
and integrated junior high school at Engle Street.

That such was the actual intention of the school authori­
ties is graphically corroborated by Exhibit S-17, a table 
prepared by Mr. G-latt from the school register, showing 
the race of the students attending Engle Street Junior 
High beginning with the year 1939-40. Prom this table it 
appears that, excluding persons who resided on the west 
side of Armory Street, there were in attendance at Engle 
Street from the Lincoln District in the year 1939-40 thirty- 
five Negroes and thirteen whites. Since at that time almost 
all of those Negroes were in the 9th grade, it is apparent 
that the 7th and 8th grades had already as of that year 
been put into operation at Lincoln Junior High (362). The 
next year, the attendance at Engle Street from Lincoln Dis­
trict, excluding the west side of Armory Street, was ten 
white students and two Negro. For the year 1941-42 the 
figures were 17 white and 2 Negro; in 1942-43, 10 white and 
4 Negro, and in 1943-44, 7 white and 3 Negro. These ex­
ceptions obviously hastened the process of segregation of 
the races, so that in a short space of time Lincoln Junior 
High became an almost all-Negro school, and has remained 
such for the past fifteen years (394).

A conscious intent and purpose to segregate may also be 
inferred from the fact that there was no other sufficient 
reason for establishing or maintaining Lincoln Junior High. 
As Dr. Milligan testified, it was not justifiable from an 
educator’s point of view to maintain one junior high with 
133 students only five blocks away from a junior high with 
558. Superintendent Stearns likewise admitted that main­
taining Lincoln Junior High was inefficient and uneco­
nomical. Indeed, Board member Stratton all but admitted 
on the witness stand that racial segregation there was one 
of the factors which induced the Board to plan for a. dis­
continuance of that school (263). As he stated, the Board 
itself recognized the lack of reason in continuing this



40

separate junior high school when it came to the conclusion 
that, “ on many grounds” , it should be abandoned (263; 
S-6; R -l).

Under these circumstances, the school must be held a 
segregated one within the meaning of our anti-segregation 
laws, and the Respondent must be held to have violated 
those laws by maintaining the school as practically 100% 
colored during the years 1949 to 1954—the period in issue 
here.

Even though the present Board did not establish Lincoln 
Junior High School, it must assume the responsibility for 
the situation which it has inherited. Discrimination by 
segregation is a continuing wrong, and each successive 
Board which maintains one or more segregated schools be­
comes a party to the continuance of that wrong*. It was so 
held in Mendez v. Westminister School District, 64 F. Supp. 
544 (D. C. Cal. 1946), where several Boards of Education 
had inherited a school system where by ‘ ‘ admitted practice 
and long established custom” , separate schools had been 
maintained for children of Mexican descent, even though 
the laws of California prohibited segregation. An injunc­
tion in that case was issued by the court against each Board 
to compel it to discontinue the segregated institutions to 
which each had fallen heir. The Mendez case is precisely in 
point here.

Conclusion as to Points 1, II and III— The Power 
and Duty of the Commissioner

The New Jersey Anti-Discrimination Law has the stated 
purpose “ to prevent and eliminate”  practices of discrimi­
nation against persons because of race. N. J. $. A. 18:25-6. 
To that end it creates the Division Against Discrimination 
with “ power * * * to take # # * action against direct or in­
direct discrimination”  (N. J. S. A. 18:25 -ll(f)). If the Com­
missioner finds that the Respondent has engaged in an



41

unlawful discrimination, “ the commissioner shall make 
findings of fact and issue * * * an order requiring such 
respondent to cease and desist from such * * # unlawful 
discrimination and to take such affirmative action, includ­
ing, hut not limited to * * * extending full and equal ac­
commodations, advantages, facilities and privileges to all 
persons as, in the judgment of the commissioner, will ef­
fectuate the purpose of this act.”

The very words of the statute grant the Commissioner 
the broad power normally vested in administrative agencies 
to find facts and issue orders to effectuate the purposes of 
an act. (See for example the duty imposed upon the 
Director of the Office of Milk Industry to take measures 
which may be necessary to control or prevent unjust, de­
structive or demoralizing practices which may demoralize 
agricultural interests in New Jersey; Como Farms v. For an, 
6 N. J. Super. 306, 71 A. 2d 201 (App. Div. 1950); powers 
of the Board of Public Utilities Commissioners to enforce 
a standard of public convenience and necessity; Fbrnarotto 
v. Board of Public Utility Commissioners, 105 N. J. L. 
28, 32, 143 A. 458 (Sup. Ct. 1928); duty of the Commis­
sioner of Alcoholic Beverage Control to administer the 
law “ in such a way as to promote temperance and elimi­
nate the racketeer and bootlegger” ; Game v. Burnett, 122 
N. J. L. 39, 4 A. 2d 37 (Sup. Ct. 1939), aff’d 123 N. J. L. 
317, 8 A. 2d 604 (E. & A. 1939).)

The Complainants submit that in accordance with his 
duty and power to “ prevent”  and “ eliminate”  discrimina­
tion, the Commissioner should find as a fact here that the 
district lines for the Lincoln Schools were drawn so as to 
result in segregated schools, that they might reasonably 
have been drawn to reduce or eliminate segregation, and 
that such segregation was therefore discrimination within 
the meaning of the statute.

To find otherwise would frustrate the remedial and pre­
ventative purposes of the act; for school administrators



42

would then have such wide discretion as to districting with 
regard to physical factors that these could almost always be 
made to serve as a cloak for intentional but unexpressed 
segregation.

P O I N T  I V

The Respondent unlawfully discriminated against 
the Complainant Anderson’s child and other Negroes 
similarly situated by sending them to Lincoln Elemen­
tary School, while white children from the same zone 
were sent to Liberty School.

By the testimony of Mrs. Anderson, corroborated by 
that of Mrs. Tuck, it was established beyond dispute that 
in September 1949, James Anderson was registered at 
Liberty School, and about a month later was transferred 
to Lincoln, where he has been ever since. At the same 
time, according to the undisputed testimony of Mrs. Ander­
son and Mrs. Tuck, white children from two other families 
living on the west side of Armory Street, the same as Mrs. 
Anderson and Mrs. Tuck, went to Liberty School.

The Respondent admitted these facts in its answer and 
at the hearing. Its defense was that the transfer of James 
Anderson to Lincoln was the result of “ a mistake or in­
advertence on the part of someone in the school system” , 
for which the Board of Education made amends as soon as 
the matter came to its attention.

The Complainants submit that according to the great 
weight of the evidence, the Anderson incident did not re­
sult merely from mistake or inadvertence, but from a pat­
tern of discrimination that had long existed in Englewood 
as a part of a consistent scheme and plan to segregate 
Negroes in the Lincoln Schools as far as possible.

First of all, the similar instance in the case of Eileen 
Tuck is strong evidence to refute the claim of mistake and



43

to sustain the Complainants’ contention of intent, or of a 
scheme and plan, to discriminate. Wigmore, Code of Evi­
dence (3d Ed. 1942) Rule 69, pp, 104-106; United States v. 
Fawcett, 115 Fed. 2d 764, 768 (C. C. A. 3d, 1940).

As further evidence of a pattern of segregation in 
Englewood, we have the eases of Mrs. Clark and Mrs. 
Williams, whose children were sent by the Liberty School 
authorities to Lincoln School when white children residing 
on the same side of Lafayette Place were given the choice 
of going to Liberty. Mrs. Clark’s testimony portrays very 
clearly the general understanding among the Negroes on 
Lafayette Place that the choice of schools, which was 
recently promulgated by Dr. Stearns, was for white children 
only. It is also plain from Mrs. Williams’ testimony that 
at least until 1951 the Liberty School authorities did not 
recognize the existence of that zone of choice. Dr. Stearns 
admitted that the matter had been in a state of confusion, 
that the Board had never established an area of choice on 
Lafayette Place, and that Dr. Stearns eventually took it 
upon himself to eliminate some of the vagueness which had 
surrounded the matter.

We have also alluded previously to the uncertainty which 
prevailed over the location of the boundary between Lin­
coln and Liberty along Armory Street, which Dr. Stearns 
admitted was likewise confused; and the common practice 
before Dr. Stearns’ time of allowing exceptions to the 
boundary lines so that children residing in one district 
might go to school in another. As already pointed out, 
most of these exceptions in respect to graduates of Lincoln 
Elementary being allowed to attend Engle Street Junior 
High School were made in favor of white children until Dr. 
Stearns’ regime began in 1944.

Vagueness and inconsistencies in the administration of 
zone lines and the allowance of exceptions which generally 
favor one racial group are commonly used means of bring­
ing about racial segregation in a school system. Indeed,



44

the allowance of exceptions on a racial basis has been 
specifically held to constitute discrimination against the 
race or races which were not given the same privileges in 
this respect as were allowed to white children. Mendez v. 
Westminister School District, supra, 64 F. Supp. 544.

The record does indicate that after Dr. Stearns came to 
Englewood, he made some effort to eliminate boundary line 
exceptions, to dissipate the confusion which had existed as 
to Armory Street and Lafayette Place, and to eliminate the 
segregated Junior High School at Lincoln. As testified by 
Mrs. Williams, for instance, in the case of her child, Dr. 
Stearns corrected Miss Griggs and the Registrar at Liberty 
who had taken white children from the east side of Lafay­
ette Place while refusing colored children such as Clark 
and Williams. Nevertheless, the fact these incidents were 
still occurring as late as 1954 in the cases of Anderson and 
Clark shows how deep-rooted had become the habit of the 
Liberty School authorities in sending Negroes, but not 
whites, to Lincoln if they resided in one of these doubtful 
areas. Obviously this pattern would not have become estab­
lished or have persisted unless earlier Boards of Educa­
tion had deliberately fostered it and later Boards including 
the Respondent had at least neglected the matter.

Whether or not it knew of the specific instances of dis­
crimination in the Anderson and similar cases, the Board 
of Education is responsible for these acts of its agents, 
since they were acting in those cases within the scope of the 
duties given to them by the Board. McQuillin, Municipal 
Corporations (3rd Ed.), Sections 53.65, 53.27, 53.69.

Finally, apart from all the other indices of discriminatory 
intent, we point to the unmistakable evidence of intent to 
segregate in connection with the creation and maintenance 
of Lincoln Junior High School as practically all Negro; 
the establishment of the new boundary between Lincoln and 
Liberty to zone all remaining Negroes in the Fourth Ward 
back into Lincoln; the fact that of nine colored teachers in 
the school system, only one taught outside of Lincoln School



45

(S-10); the full awareness of the Board members and Dr. 
Stearns of the racial situation at the Lincoln Schools and 
in the Fourth Ward; and as testified to by Dr. Milligan, the 
lack of good faith on the part of the School Board in deal­
ing with the Division Against Discrimination.

The Respondent pleaded, among other things, that, the 
Anderson complaint was now moot, because the error had 
been remedied as far as the Division Against Discrimina­
tion would permit. The Complainants insist, however, that 
a complaint of discrimination pursuant to a consistent 
scheme and plan does not become moot when one or two 
specific instances have been corrected. So long as the pat­
tern, scheme or plan of discrimination or segregation per­
sist in any form, the basic wrong complained of is a con­
tinuing one. If this were not so, the Complainants’ remedy 
would be most inadequate because the Board could con­
tinue with its policy of segregation in all cases except those 
which were made the subject of a complaint to the Division 
Against Discrimination.

This type of case is similar to those of unfair labor 
practices prohibited by the Taft-LIartley Law, or unlawful 
trade practices which may be enjoined at the suit of the 
Federal Trade Commission.

In J. I. Case Co. v. N.L.R.B., 321 IT. S. 322 (1944), where 
an employer had refused to bargain with a union on the 
ground that contracts with individual employees pre­
cluded it from doing so, the fact that the individual con­
tracts had expired and that a collective agreement had been 
negotiated after the employer had been directed to cease 
and desist from its wrongful acts, did not render the case 
moot on appeal to the United States Supreme Court, in 
view of the continuing obligation imposed by the law and 
by the order of the National Labor Relations Board.

Likewise, in Federal Trade Commission v. Goodyear 
T. & R. Co., 304 U. S. 257, 260 (1938), and Perma-Maid Co.



46

v. F. T. C., 121 Fed. 2d 282 (C. C. A. 6, 1941) it was held 
that abandonment of unlawful trade practices, even if 
proved, did not render the controversy moot, since there 
was no guarantee that the practices complained of would 
not be resumed. The duty of the Federal Trade Commis­
sion, as the court stated, was to prevent, as well as to elimi­
nate, unlawful trade practices.

So, in the case at bar, the Board has a continuing duty 
not to discriminate, and the Division Against Discrimina­
tion has a duty not only to eliminate existing discrimina­
tion, but also to prevent its recurrence. Under N.J.S.A. 
18:25-17, it seems clear that if the Commissioner finds that 
“ the respondent has engaged in any * * * unlawful dis­
crimination” , whether or not that discrimination still con­
tinues, the Commissioner should issue an order requiring 
the Respondent to cease and desist from such unlawful dis­
crimination.

CONCLUSION

In view of the past and present wrongs committed by 
the Respondent and its predecessors, the Board of Educa­
tion of the Borough of Englewood should be ordered by 
the Commissioner:

1. To cease and desist from unlawful discrimination 
against children of the Negro race in the admission of 
pupils to its elementary and junior high schools.

2. Beginning with the school year 1955-1956, to dis­
establish the Lincoln Junior High School as a separate 
school and to integrate its student body with that of the 
Engle Street Junior High School.



47

3. Beginning with the school year 1955-1956, to dis­
establish the existing attendance zone lines for every 
grade in the Lincoln Elementary School, including kinder­
garten, and to recreate the zones of attendance as between 
Lincoln Elementary and other schools in the district in 
such a manner as to bring about the maximum degree of 
racial integration in all such schools consistent with due 
regard for the physical and economic factors involved.

Respectfully submitted,

G rover C. R ic k m a n , J r .,
Attorney General of New Jersey, 

By T hom as P. C ook,
Deputy Attorney General,
AND

L eonard W illiam s ,
C onstance B. M otley ,

(of the New York Bar),
J ack  Greenberg .

(of the New York Bar),
Attorneys for Complainants.

[E x h ib it  S-5, R eferred to at p p . 4, 5 and 21, 
S upra , F ollows]



48

Exhibit S-5

(Opposite) W



A W

TENAFLY

r t P '

\ j 3 > /
h < P y

\
\

V

STREET INDEX

ALDEN PL

ARCH RD. 
ARMORY ST
ATLANTIC ST 
AUDUBON RD.

6ANCKCR ST E 7
BA R LIN G  ST B 1

e  SEECH RD. 0  5
D  BELM ONT ST B 36

B E N N E TT R0-. C 5
BERGEN ST E 4
BtLMAR PL. 8  3
B O O T H  AV£ £ 3
BORDEN ST H 7
BRATTON ST F 4
8RINCKERHCFF CT F 4  
S R 0A D  AV£. F ft
SHOOK AVE- C3
BROOMSIOC AYE. t «
BROOKWAY AVE, C 5
iR -O W N rS  TER. D 2
BURLINGTON S T  H 7

CAMBRIDGE AVE. 8 2 
CAMDEN ST H 7
CAPE MAY ST H 7
CEDAR ST E 3

©  CEDAR LANE D «
CENTRAL AVE- C3»C 4 
CHARLES 5T, D 4
CHESTER PL. E 5  
CHESTNUT ST £3*G 3  
CHURCH ST E 4
CLEVELAND ST C 4  
■COLUMBUS AVE. D6 
CONCORD ST D I
CONRAD RD. B2
CO O U06E AyE. C 7 
COTTAGE PL C5
COTTONWOOD PL. E I 
CROSS ST 8 4
CULVER ST C 8
CUMBERLAND ST G7 
CURRY AVE D2
C LU B HOUSE RD. 0 8  
ORESCENT OT. A 3  
DANA PL. F 5

7  DAVISON PL. E2
DEAN ST NORTH D 44-C I

ME

T#

AVEN UE

WARD ST

200\ vay

PEL

HAMILTON AVE.
HENRY ST 
HERZOG PL. 8 4
H IG H LA N D  S T  C 2
M IGHVIEW  RD. f Z
HIGHWOOD AVE. C 2
HSLLCREST RD G 2
HILLS ID E AVE. E 4
H iR L IM A N  RD. B 6
HONECK ST E 7
HOWARD PL E 5
HO W ELL RD B 4
HOWLAND AVE. B 5
HU DSO N AVE. D !
HUGUENOT AVE. E6
HUM PHREY ST D 5
HU M PHR EY ST SOUTH D 7 
H U TC H IN S O N  RD F 6
H O LLA N D  LANE

ILLIN G W O R TH  AVE 
IR V IN G  AVE.
IVY LA N E

3S3\ W ■ A  VC.

— aa&_-

_3QZ

JACKSON ST 
JAM ES ST 
JAN E ST 
JAY ST

JO HN ST 
JO HNSO N AVE.

MAP SHOWING LOCATION OF ENGLEWOOD 
NEGRO POPULATION - ~  SPRING j .95k.

L e g e n d ;

WHITE

N E G R O

mon

F A C T O R I E S  -  S T O R E  
( s o m e  v a c a n t  l a n d )

6 0 ?  N E G R O  )
I M  W H I T E  )  ‘  p r o x *

F 7 5 - S O ?  N E G R O  )  
20-25? WHITE )

a p p r o x *

TA LLM AN  PL 
T IE TJE N  AVE. 
TENAFLY RD. 
T H IR D  ST 
THOM SON AVE 
THORNTON RD. 
TRACEY PL. 
TRYO N AVE. 
TWISBY PL

VALLEY PL. D l
VALLEY VIEW RD. B 2
VAN BRUNT ST NORTH D 4 
VAN BRUNT ST. S O U T H D 7 
VAN NOSTRAND AVE. E 7
VERMILYE ST. B I
VOORHEES ST. A 3

WALDO PL. D3
WALKERS ALLEY D 3
WALNUT ST F 4
WALTON ST F 7
WARREN ST C 6 -
WASHINGTON PL. B5
WEBSTER AVE. D6
WEST END AVE C 4
W EST ST D 4
WEST VIEW AVE H 9
WHITE ST. 0 3
WHITEWOOD RD. E I8
WILBUR ST C 5
W ILLIA M  ST D 6
WINDSOR RD. A 3
W INTHROP PL E 3
WOOD ST B 5
WOODLAND ST NORTH G 4  
WOODLAND ST SOUTH G 5  
WALNUT CT. F 4

i f T © i

1®Is
4.313 l l f l e

1  '

1  !niT R  !
. I Z a y e i

T 5 ? r-  - .............1 j

\ \ i  6

WARD

iZSj |T3Z~ 
N«------ -liy \££_

wrom
H IG H W A Y37

LftiY

ZEHIXESZ

103

w~ uve.

LEONIA

ELECTION DISTRICT
NUMBER MAP

5W+

BOROUGH OF

N o t e ;  S o u t h  s i d e  o f  W e s t  P a l i s a d e s  A v e . 
f r o »  r a i l r o a d  w e s t  t o  B e n n e t t  R d .  
h a s  s t o r e s  w i t h  l i v i n g  q u a r t e r s  
a b o v e •

L i b e r t y  S c h o o l *
L i n c o l n  S c h o o l .

P r e p a r e d  1 0 / 1 1 / 5 1 *  —  C a r l  W .  G l a t t

C IT Y ENGLEWOOD
SCALE ELMER A. E. BLACKWELL 

CITY ENGINEER

600 900
FEET

D

-APRIL 1938-
REV IS E D  M AY 1940  
R EVISED  J A N . 1 9 4 2  
R E V tS y ?  MAR. 1947

NOTE

STREET NUMBERS SHOWN ARE 
THOSE NEAREST THE CORNER

REVISED JA N . 1949  
REVISED FEB. 1953  
REVISED A U & . 1 9 5 4 H

FO
FT

T 
LE

E®
.