Jones v. The School Board of the City of Alexandria, Virginia Brief for Appellants

    I n  t h e

States (Enurt uf Appra lz
F ob t h e  F ourth  C ircuit  

No. 7897

Otis E. J ones, et al.,
Appellants,

T h e  S chool B oard of th e  City  of A lexandria, V irginia , a body 
corporate, and T. C. W illiam s , Division Superintendent of 
Schools of the City of Alexandria, Virginia,

Appellees.

appeal  from  t h e  united  states district court for th e
EASTERN DISTRICT of VIRGINIA, ALEXANDRIA DIVISION

BRIEF FOR APPELLANTS

F rank  D. R eeves
473 Florida Ave., N.W. 
Washington 1, D. C.

Oliver W. H ill
118 East Leigh Street 
Richmond 19, Virginia

Otto L. T ucker
901 Princess Street 
Alexandria, Virginia

Spottswood W. R obinson , III 
623 N. Third Street 
Richmond 19, Virginia

Counsel for Appellants

J ames M. N abrit, III  
of Counsel



TABLE OF CONTENTS

Statement of the Case.......... ..................... ...... ............

Question Presented ...................... .................... ..... .........

Statement of F ac ts........ ..... ............ ..............................

A r g u m e n t :

I. Appellees’ adoption and use of their assignment 
plan fails to satisfy the constitutional mandate and 
the specific order of the court below to eliminate 
race as the basis for determining eligibility for 
admission and enrollment in the Alexandria public 
schools ....... ............................................................

II. Appellees’ adoption and use of their “assignment 
plan” with reference to appellants’ applications 
is racial discrimination in contravention of appel­
lants’ constitutionally guaranteed rights to due 
process and equal protection of the laws ..............
A. In the attempted exercise of their right to

enjoy educational opportunities provided by 
appellees, appellants were subjected to terms 
and conditions not similarly applied to other 
pupils admitted and enrolled in the schools 
appellants sought to enter................................

B. The difference between the treatment accorded
appellants and others similarly situated, based 
upon race alone, invokes the condemnation of 
the due process and equal protection guaran­
tees of the Fourteenth Amendment.................



11

C. The failure of the court below to recognize 
and condemn the patent discrimination in the 
method by which appellees acted upon appel­
lants’ applications is inconsistent with eases 
in other areas in which State action has been 
pierced and found to represent a stratagem 
or device resorted to for purposes of preserv­
ing racial discrimination ................................ 24

III. The court below erroneously considered appellees’ 
rejection of appellants’ applications for admission, 
enrollment and education in designated ‘‘'white” 
schools as “administrative determinations” to be 
reviewed pursuant to the “substantial evidence” 
doctrine and, having thus limited its scope of in­
quiry, failed to discharge its obligation to make an 
independent evaluation and determination of the 
facts decisive of appellants’ constitutional claim 
that their exclusion from said schools was because

PAGE

of race or color.......................................................  25
A. Appellees’ action was not such an “administra­

tive determination” as would justify applica­
tion of the “substantial evidence” doctrine..... 25

B. Moreover, appellants’ claim that appellees had 
excluded them from the schools to which they 
applied, on account of their race or color, in 
violation of constitutionally guaranteed rights, 
obligated the court below to make an indepen­
dent evaluation and determination of the fac­
tual issues decisive of appellants’ claim..........  27



I l l

IV. Review and consideration of the available and 
pertinent evidence compels the conclusion that the 
reasons advanced by appellees for their rejection 
of appellants’ applications for admission, enroll­
ment and education in “white” schools were based 
upon considerations of race or color in contraven­
tion of appellants’ constitutionally guaranteed 
rights of due process and equal protection and in 
violation of the prior orders of the court „............  30
A. The “geographical location” criterion, as ap­

plied and. approved by the court below, denies 
to appellants the equal protection of the laws
as guaranteed by the Fourteenth Amendment 30

B. The uncontroverted evidence with respect to 
the “academic achievement and mental ma­
turity” criterion conclusively demonstrates 
that this is an attempted justification for con­

PAGE

tinued racial segregation ................. ..............  34

Conclusion .............................. .....................................  37

T a b l e  o e  C a s e s :

Aaron v. Cooper, 261 F. 2d 97 (8th Cir. 1958) ......... -..24, 33

Baltimore & Ohio R.R. Co. v. United States, 298 U. S.
349 (1936) ......................................................... ..........  28

Bolling v. Sharpe, 347 U. S. 497 (1954) ........................  22
Brown v. Board of Education, 347 U. S. 483 (1954),

349 U. S. 294 (1955) ....... .................... 14,16, 21, 22, 33, 36
Buchanan v. Warley, 245 U. S. 60 (1917) ..............22, 24, 36

Cassell v. Texas, 339 U. S. 282 (1950) 
Cooper v. Aaron, 358 U. S. 1 (1958) . 14,15, 22, 33



Ex parte Endo, 323 U. S. 283 (1944)  ..........................  21

Feiner v. New York, 340 U. S. 315 (1951) ..................... 29

Hamm v. County School Board of Arlington County,
Virginia, 264 F. 2d 945 (4th Cir. 1959) .......... ....... . 20

Hill v. Texas, 316 U. S. 400 (1942) ............................... . 23

Lane v. Wilson, 307 U. S. 268 (1939) ..................... 15, 21, 23

McLaurin v. Oklahoma State Regents, 339 U. S. 637
(1950) ...........    21

Morgan v. United States, 304 U. S. 1 (1938) .................. 26

Napue v. Illinois, —— U. S .---- , 3 L. ed. 2d 1217, 1222-
1223 (1959) .........      29

Ng Fung Ho v. White, 259 U. S. 276 (1922) .................  28
Niemotko v. Maryland, 340 U. S. 268 (1951) .............. 29
Nixon v. Herndon, 273 U. S. 536 (1927) --------------- - 21
Norris v. Alabama, 294 U. S. 587 (1935) ..................... 28

Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S.
287 (1920) ..........................   27-28

Perry v. Cyphers, 186 F. 2d 608 (5th Cir. 1951) ..........  24
Pierre v. Louisiana, 306 U. S. 354 (1939) — ................  29

Rice v. Elmore, 165 F. 2d 387 (4th Cir. 1947), cert, 
den. 333 U. S. 875 (1948) ........................................... 24

Shelley v. Kraemer, 334 U. S. 1 (1948) ........ ......... ...... 23
Sipuel v. Board of Regents, 332 U. S. 631 (1948) ......  21
Skinner v. Oklahoma, 316 U. S. 535 (1942) .................  21
Smith v. Allwright, 321 U. S. 649 (1944)........................  24
Smith v. Cahoon, 283 U. S. 553 (1931) ............... ......... 21
Smith v. Texas, 311 U. S. 128 (1940) ..... ......................  23

i v
PAGE



V

Southern Garment Mfrs. Assn. v. Fleming, 122 F. 2d
622 (D. C. Cir. 1941) _______ _______ _______ _ 26

Spano v. New York,-----U. S .------ , 3 L. ed. 2d 1265,
1267 (1959) .... ................... ...................... ................... 29

St. Joseph Stock Yards Co. v. United States, 298 U. S.

PAGE

38 (1936) ............. ............ .......... .................................  28
Sweatt v. Painter, 339 U. S. 629 (1950) .......................  21

Terry v. Adams, 345 U. S. 461 (1953) ....................... . 24
Thompson v. County School Board of Arlington 

County, Virginia, 159 F. Supp. 567 (E. D. Va. 1957), 
affirmed 252 F. 2d 929 (4th Cir. 1958) ...... .................. 23

Watts v. Indiana, 338 U. S. 49 (1949) .................... ........ 28

Yick Wo v. Hopkins, 118 U. S. 356 (1886)  ........ .......22,35



I n  t h e

United States (&xmxt of Appals
F oe  t h e  F o u r t h  O ie c u it

No. 7897

O t is  E. J o n e s , et al.,
Appellants,

T h e  S c h o o l  B oard oe t h e  C it y  o p  A l e x a n d r ia , V ir g in ia , 
a body corporate, and T . C. W il l ia m s , Division Super­
intendent of Schools of the City of Alexandria, Virginia,

Appellees.

a p p e a l  p r o m  t h e  u n it e d  s ta tes  d is t r ic t  c o u r t  po r  t h e

EASTERN DISTRICT OP VIRGINIA, ALEXANDRIA DIVISION

BRIEF FOR APPELLANTS

Statem ent o f  the Case

On 23 January 1959 the court below entered an Order 
G-ranting Injunction, restraining and enjoining appellees 
from refusing on account of race or color to admit, enroll 
and educate in any school under their operation, control, 
direction or supervision (i.e. the public schools of the City 
of Alexandria, Virginia) any child otherwise qualified. The 
appellees were ordered to report, on or before 26 January 
1959, their action upon the pending applications of infant 
plaintiffs, including the appellants here, for admission and 
enrollment in designated “white” schools.



2

On 26 January 1959 appellees filed their Report, denying 
each of the applications and stating their reasons therefor. 
Appellants thereupon filed a Motion for Further Relief. 
Following a hearing at which evidence was taken with 
reference to appellants’ objections to appellees’ Report, on 
15 April 1959, the court below, in an Amended Order on 
Motion for Further Relief, based upon Findings of Fact 
and Conclusions of Law filed 4 February 1959, denied the 
motion as to the appellants.1

This appeal is from the said Amended Order on Motion 
for Further Relief.

Q uestions P resented

The questions presented on this appeal are as follows:
1. Whether the court below erred in failing and refusing 

to sustain appellants’ contention that the appellees could 
not formulate and apply to appellants’ applications criteria 
not similarly used as the basis for determining admission 
and enrollment of white students in the Alexandria public 
schools, without violating appellants’ rights to due process 
and equal protection of the laws under the Fourteenth 
Amendment.

2. Whether the court below erred in concluding that 
appellees’ denial of appellants’ applications, on the basis of 
the criteria formulated and applied by appellees, was not 
discriminatory and in violation of appellants’ Fourteenth 
Amendment rights to due process and equal protection of 
the laws.

These questions are raised in the record by the district 
court’s Amended Order on Motion for Further Relief en­

1 The motion was granted on 4 February 1959 as to 9 infant plaintiffs 
not appellants here.



3

tered 15 April 1959 (Joint Appendix [hereinafter referred 
to as JA] 176), based upon its Findings of Fact and Con­
clusions of Law entered 4 February 1959 (JA 170-174), 
denying, as to appellants, the relief sought in their Motion 
for Further Relief filed 26 January 1959 (JA 60-68).

Statem ent o f  Facts

On 23 January 1959 following a hearing on 14 January 
1959, the court below, upon plaintiffs’ motion for summary 
judgment based upon the pleadings, stipulations, admis­
sions, interrogatories and exhibits filed, entered on Order 
Granting Injunction, in pari materia,2 as follows (JA 45- 
50):

Upon consideration whereof, the Court finds, con­
cludes, and orders as follows:

# # # *  *

3. From an examination of the complaint and an­
swer, defendants’ admissions, defendants’ answers to 
the written interrogatories propounded by plaintiffs, 
the exhibits, stipulations and other matters of record 
herein, the Court finds that the following facts are 
established:

(a) That this Court has jurisdiction of this cause;
(b) That the infant plaintiffs are citizens of the 

United States and of the Commonwealth of Virginia, 
and are residents of and domiciled in the City of Alex­
andria, Virginia. They are within the statutory age 
limits of eligibility to attend the public schools of said 
City, and possess all qualifications and satisfy all re­
quirements for admission thereto, and are in fact at­

2 Recital of and reference to other preliminary motions and proceedings 
are omitted as not pertinent to this appeal.



4

tending public schools of said city operated by defen­
dants. All of infant plaintiffs are among those generally 
classified as Negroes;

(c) That the adult plaintiffs are citizens of the 
United States and of the Commonwealth of Virginia, 
and are residents of and domiciled in the City of Alex­
andria, Virginia. They are parents of the infant plain­
tiffs, and are taxpayers of the United States and of 
the said Commonwealth and City. All of the adult 
plaintiffs are among those generally classified as 
Negroes;

(d) That this action is properly brought and main­
tained as a class action by the infant plaintiffs and 
their parents and guardians on behalf of all other 
children attending the public schools in the City of 
Alexandria, Virginia, and their respective parents and 
guardians, similarly situated and affected with ref­
erence to the matters here involved;

(e) That the defendant School Board of the City of 
Alexandria, Virginia, is a body corporate existing pur­
suant to the Constitution and laws of the Common­
wealth of Virginia as an administrative department of 
the Commonwealth of Virginia. The defendant T. C. 
Williams, as Division Superintendent of Alexandria 
City Public Schools, is an administrative officer of the 
public free school system of Virginia, acting under the 
authority, supervision and control of, and acting pur­
suant to the orders, policies, practices, customs and 
usages of defendant School Board of the City of Alex­
andria, Virginia;

(f) That the public free schools of the City of Alex­
andria, Virginia, are under the control and supervision 
of defendants, acting as an administrative department 
or division of the Commonwealth of Virginia. Defen­



5

dant School Board of the City of Alexandria, Virginia, 
is empowered and required to establish and maintain 
an efficient system of public free schools in said City; 
and to carry out the specific powers and duties enu­
merated in the Code of Virginia, 1950, Title 22, Chapter 
6, Article 4, Section 22-97;

(g) That pursuant to a policy, practice, custom and 
usage of segregating, on the basis of race or color, all 
children attending the public free schools of the City of 
Alexandria, defendants, and each of them, and their 
agents and employees, maintain and operate separate 
public free schools for Negro children and children who 
are not Negroes, respectively, and deny infant Negro 
plaintiffs and all other Negro children, because of their 
race or color, admission to and education in any public 
school operated for white children, and compel infant 
Negro plaintiffs and all other Negro children, because 
of their race or color, to attend public schools set apart 
and operated exclusively for Negro children;

(h) That formal applications have heretofore been 
made to defendants in behalf of the infant plaintiffs 
for admission to designated public free schools under 
the jurisdiction and control of defendants, to which 
said plaintiffs, but for the fact that they are Negroes, in 
all other respects were qualified and entitled to admis­
sion and enrollment. However, defendants, and each 
of them, have failed and refused to act favorably upon 
these applications, have continued to enforce and pur­
sue the aforesaid policy, practice, custom and usage of 
racial segregation against infant plaintiffs, and all 
other children similarly situated and affected, and de­
fendants will continue to pursue said policy, practice, 
custom and usage against infant plaintiffs and all other 
children similarly situated and affected and will con­



6

tinue to deny infant plaintiffs admission to or educa­
tion in any public school operated for children who are 
not Negroes, unless restrained and enjoined by this 
Court from so doing.

4. Wherefore, the Court concludes as follows:
(a) That there is no genuine issue as to any material 

fact in this case;

(b) That the aforesaid action of defendants denies 
infant plaintiffs, and each of them, their liberty without 
due process of law and the equal protection of the laws 
secured by the Fourteenth Amendment to the Consti­
tution of the United States, Section 1, and the rights 
secured by Title 42, United States Code, Section 1981;

(c) That plaintiffs, and those similarly situated and 
affected, are suffering irreparable injury and are 
threatened with irreparable injury in the future by 
reason of the policy, practice, custom and usage, and 
the actions of the defendants complained of in this 
cause. Plaintiffs have no plain, adequate, or complete 
remedy to redress the wrongs and illegal acts of which 
they complained other than injunctive relief granted by 
this Court ;

(d) That summary judgment should be granted the 
plaintiffs.

5. Therefore, it is a d ju d g e d , o b d er ed , and d ec r eed  
that effective on and after February 2, 1959, the de­
fendants, their successors in office, agents, representa­
tives, servants, and employees be and each of them is 
hereby restrained and enjoined from refusing on ac­
count of race or color to admit to, or enroll or educate 
in, any school under their operation, control, direction, 
or supervision, any child otherwise qualified for ad­
mission to and enrollment and education in such school.



(

6. The defendants are directed to report in writing 
to counsel for the plaintiffs, on or before January 26, 
1959, the action they have taken, or will take upon the 
effective date of the injunction herein, with respect to 
the pending applications of the infant plaintiffs herein 
for admission and enrollment in the respective schools 
designated in their applications, which report shall 
include the specific reasons for the rejection of any 
of said applications.

7. The plaintiffs may, upon notice to defendants, at 
a further hearing in this cause present for considera­
tion and action by the Court their objections, if any 
there be, to the action taken by the defendants with 
respect to the pending applications of the plaintiffs for 
admission and enrollment in the respective schools 
designated in their applications.

8. Jurisdiction of this cause is retained with the 
power to enlarge, reduce, or otherwise modify the pro­
visions of said injunction or of this decree, and this 
cause is continued generally.

On 26 January 1959, pursuant to r 6 of the Order Granting 
Injunction, supra, the defendants filed a Report, as fol­
lows (JA 51-59) :

At a meeting of the School Board of the City of Alex­
andria, Virginia, held in the City of Alexandria on 
January 22,1959, consideration was given the petitions 
of the Complainants to be assigned to certain public 
schools within the City. Upon the recommendation of 
the Defendant, T. C. Williams, Division Superinten­
dent and upon the review of the facts of each particular 
case by the Board, the petitions of the several Com­
plainants are denied for the reasons set forth in the 
attached statements.



8

The “statements,” supra, included the following:

Criteria in Determination of Eligibility Under the Pupil 
Assignment Plan of the Alexandria, Virginia City 

School Board

1. Relation of residence location of the pupil with ref­
erence to schools, or school, applied for.

2. State of enrollment conditions in the schools con­
cerned in any case, or cases, under discussion.

3. Academic achievement and mental capacity as these 
factors enter into conclusions on requests for entry 
or transfer.

4. Factors involving the health and/or well-being of the 
applicant which may have a bearing on the request 
from him.

5. Any factors which might affect the mental or emo­
tional stability of the applicant so much as to become 
pertinent in placement determinations.

6. Is the applicant a bona fide resident of the city and 
actually entitled to attend school here (JA 51-52).

a Key to Cases and Residence, in which each of the 
applicants was given a case designation [the appellants 
here being designated Cases D, F, L, M and N] with the 
address of their respective places of residence (JA 52); 
and, by reference to the case designations, supra, the Dis­
position of Request by School Board—“denied” in each case 
-—with a statement of the specific reasons therefor, based 
upon application of the aforesaid “criteria” (JA 54-59). 
In summary, appellees cited as reasons for rejecting each 
of appellants’ applications: Criterion 1—that their resi­
dence locations were closer to the “Negro” school from 
which they were seeking transfers; Criterion 2—that the



9

“white” schools to which they were applying were more 
overcrowded than the “Negro” schools to which they were 
assigned; Criterion 3—that their academic achievement or 
mental maturity was below the median of the grades and 
schools to which they were applying; and Criterion 5— 
that their mental or emotional stability would be adversely 
affected by the requested transfers.3

On 27 January 1959, plaintiffs filed a Motion for Fur­
ther Relief, in which they objected to the aforesaid action 
by defendants in denying their several applications, supra, 
for the following reasons (JA 60-68):

* # # 2= #
a. In their consideration and action upon plaintiffs’ 

applications, defendants applied standards and criteria 
of eligibility for admission to and enrollment in the 
public free schools of Alexandria, Virginia, not simi­
larly applied as a basis of eligibility for the admission 
and enrollment of “white” students in said schools, 
thereby discriminating against plaintiffs on account 
of their race or color in violation, or threatened viola­
tion, of the Order Granting Injunction herein and in 
violation of the rights of plaintiffs as guaranteed and 
protected by the “equal protection” clause of the Four­
teenth Amendment to the Constitution of the United 
States.

b. In their application of the “Criteria in Deter­
mination of Eligibility under the Pupil Assignment 
Plan of the Alexandria, Virginia City School Board” 
to the pending applications of the individual infant 
plaintiffs herein, the defendants have violated, or

3 In the eases of appellants here, the court below approved only the 
application of Criterion 1—geographical location—as a basis for appellees’ 
action in Cases L, M, and N, and the application of Criterion 3—academic 
deficiency—as a basis for the action in Cases D and F (JA  170-174).



10

threaten to violate, the Order Granting Injunction and 
the constitutionally guaranteed and protected rights 
of said plaintiffs . . . 4

On 30 January 1959, there was a hearing upon the Motion 
for Further Belief and evidence was adduced by both 
parties in support of their respective positions, as will 
appear more fully hereinafter.

On 4 February 1959, the court below filed Findings of 
Fact and Conclusions of Law (JA 170-174) which, as they 
are pertinent to this appeal, provide:

The administrative action of the School Board of 
the City of Alexandria, Virginia in declining the ap­
plications of 14 pupils for admission or transfer to 
certain schools of the city has been reviewed with the 
following results:

(1) Pupils L, M and N, refused admittance to George 
Washington High School because their present school, 
Parker-Gray High, is logically their school by reason 
of its proximity to their homes, are bound by this 
determination of the Board, for it is not without sub­
stantial evidence to support it;

(2) D and F, refused admission to Patrick Henry 
or Karnsay School for academic deficiency, are bound 
by this determination for the same reason; . . .

# # # # *
The criteria formulated and applied by the Board 

in its ascertainments have been judged by the court 
in the light of the available decisional law, especially 
of the Alabama three-judge decision in Shuttlesworth 
v. Birmingham Board of Education, 162 F. Supp. 372,

4 The detailed statement of plaintiffs’ objections and exceptions which 
followed, omitted here, appears in the Joint Appendix at pp. 63-68.



11

384, affirmed November 24, 1958, 358 IT. S. 101, by 
the Supreme Court. The grounds of the present rul­
ings upon each of the applications in suit follow, with 
the court testing both the validity of the factors 
employed by the Board and the adequacy of the evi­
dence before it . . .

*  #  *  *  *

1(a) Pupils L, M and N Are Barred by 
Geographical Locations

Students L, M and N were excluded on the geo­
graphical criterion. They reside in southeast Alex­
andria, immediately below Wolfe Street and just east 
of St. Asaph Street. Presently students in the Parker- 
Gray High School, they petitioned for George Wash­
ington High School. The latter is slightly farther 
from their homes than is Parker-Gray, and is separated 
from Parker-Gray by the main line of the railroads 
splitting the city and running between Washington 
and the South, as well as by a part of the Potomac 
Railroad Yards. Parker-Gray is on the east side, that 
nearer the petitioners’ residences. George Washington, 
to the west, is readily accessible by way of a street 
underpass.

As no difference in educational facilities between 
the schools appears, it cannot be said that in assigning 
these pupils to Parker-Gray, rather than to George 
Washington, the Board acted arbitrarily or capri­
ciously. This conclusion is not affected by the well 
known fact that Parker-Gray has always been a Negro 
School and George Washington has not previous^ re­
ceived Negro students. The ruling of the Board 
will not be disturbed.

* # # * *



1 2

III. 1') and F Can Be Excluded for 
Academic Deficiency 

* # # * *
D is in the fifth grade at Lyles-Crouch School and 

sought entrance to Patrick Henry or Ramsay. His 
grade placement is scored at 3.1 (3 grade, 1 month) 
on the California Achievement Test. The median at 
Patrick Henry is 4.9. The lowest grade placement 
at Patrick Henry is 3.3. The median at Ramsay is 5.4 
and the lowest placement is 3.0. On the other hand, the 
median at Lyles-Crouch is 3.3 with the lowest at 1.1. 
This recital shows that the Board was not without 
reason in refusing to remove Otis from Lyles-Crouch 
to either Patrick Henry or Ramsay.

The same is true of second-grader F, with an I.Q. 
of 81 and a mental age of 5 years, 9 months, against 
a chronological age of 7 years, 4 months. She is below 
both the median I.Q. and mental age in Lyles-Crouch, 
her present school, and wTell below Patrick Henry’s 
median I.Q. of 103 and mental age of 7 years 8 months, 
as well as Ramsay’s median I.Q. of 111 and mental 
age of 8 years, 5 months.

Whereupon, on 15 April 1959, the court below entered its 
Amended Order on Motion for Further Relief (JA 176):

. . . that the plaintiffs’ motion for further relief be 
and it hereby is denied as to Otis E. Jones and Betty 
Jo Jones, infants, and their mother and next friend, 
Leora Jones; Theodosia Hundley and Pearl Hundley, 
infants, and their mother and next friend, Blois 
Hundley; and Timothy Calhoun Taylor, infant, and his 
mother and next friend, Ollie E. Taylor.

from which this appeal is taken.



13

A R G U M E N T

I.
A p p ellees’ adoption  and use o f  their assignm ent plan  

fa ils  to  satisfy  the constitu tional m andate and the spe­
cific  order o f  the court below  to e lim inate race as the  
basis fo r  determ in ing e lig ib ility  for  adm ission  and en ­
ro llm en t in  the A lexandria pub lic  schools.

The record in this case conclusively establishes that 
appellants’ individual school assignments, prior to the ef­
fective date of the Order Granting Injunction herein and 
at the time of the denial of appellants’ applications for 
transfer at the beginning of the 1958-1959 school term, were 
based upon appellants’ race, pursuant to and consistent 
with appellees’ policy and practice of maintaining and 
operating the public schools of the City of Alexandria on 
a racially segregated basis (JA 17-18). Upon this state 
of facts, i.e., a racially segregated school system, appel­
lees purported to comply with the constitutional man­
date and the decree of the court below to discontinue the 
practice of assigning pupils in the Alexandria public 
schools on the basis of race, by formulating and applying 
certain standards and criteria to the applications by appel­
lants and others “whose applications involve the unusual 
circumstances of seeking transfers to or initial enrollment 
in public schools of the City previously attended only by 
children of the opposite race . . . ” (JA 41-44, 95-96).

In approving appellees’ imposition of an “assignment 
plan” upon the pre-existing pattern of racial segregation, 
the court below, in effect, held that appellees may con­
tinue the pattern of segregated schools, resulting from the 
practice of assignment by race, if children are provided



14

an administrative procedure by the use of which they may 
individually seek to escape the discrimination. In short, 
it approved appellees’ initial assignment of appellants 
and others similarly situated on a racial basis, and their 
required attendance in segregated schools, simply because 
each child might individually undertake an administrative 
course, with review by the court, which might lead to his 
reassignment to another school in an otherwise segregated 
system.

i f

Such an arrangement falls far short of satisfying the 
constitutional mandate that the state abstain from racial 
classifications in its public school system. Appellees’ as­
signment plan makes no provision for revising the ad­
mittedly racial attendance zones disclosed by the evidence 
in this case as the basis for initial assignment of all pupils 
(JA 138-139). The “plan,” therefore, obviously contem­
plates the continued tunneling of Negro children into 
Negro schools and the requirement that they continue 
attending such schools, subject to the possibility of secur­
ing individual reassignments to another school. This does 
not constitute an arrangement for desegregating the schools 
or even a step in that direction. Rather, it is a general 
requirement of racial classification of all children until 
and unless particular children may succeed in administra­
tively excepting themselves from its operation.

The Supreme Court’s decisions in Brown v. Board of 
Education, 347 U. S. 483 (1954), 349 U. S. 294 (1955), and 
Cooper v. Aaron, 358 U. S. 1 (1958), establish the right of 
all children to freedom from state imposed educational 
segregation based on race or color. They make plain the 
state’s duty to afford, not merely an ostensible freedom, but 
freedom in fact, and do not contemplate an arrangement 
perpetuating segregation subject to an individual adminis-



15

trative procedure by which that freedom can be achieved 
only in isolated instances. Moreover, the command of the 
Fourteenth Amendment against racial discrimination is 
addressed to the state and is disobeyed by a requirement 
that burdens the individual with the necessity of demon­
strating an exception in his favor from the general policy
of racial classification and discrimination which it continues. 
Obviously, the state cannot be permitted to shift to the indi­
vidual the responsibilities which the Constitution imposes 
upon it. The duty is upon the state, rather than upon the in­
dividual, to bring the unconstitutional system which it 
has constructed to an end, and this duty, like the right 
with which it is correlated, “can neither be nullified openly 
and directly by state legislators or state executive or judi­
cial officers, nor nullified indirectly by them through evasive 
schemes for segregation whether attempted ‘ingeniously or 
ingenuously.’ ” Cooper v. Aaron, supra, 358 U. S. at 17. 
See also Lane v. Wilson, 307 U. S. 268 (1939).

Thus, in the instant case, appellees purported to comply 
with the constitutional mandate and specific order of the
Court,,, below through the formulation and application of

... ...“ & x 1
criteria on an alleged ^racially non-discriminatory basis ’ in 
determining admiseinm-and-enTTiflinenl. By.,this “scheme” 
they achieved the denial of each of ^peH anp’ applications
and the assignment ofT s io  the same Negro school^--
to which they were assigned under the admittedly racial 
assignment procedure in effect prior to the Order,.-Granting- 
InjHnctlfH.^Moraoyer, the ’const below, while, approving 

lappelJeesI formuiaiiop and use of the .“gJan^Avas unable
to sustain appellees’ action thereunder in nine out of four­
teen eases; and, of even greater significance, in sustaining 
appellees’ action in the cases of the five appellants here— 
as in every case in which the court would sustain appellees’ 
use of the “plan”—the inevitable result is the affirmance



16

and continuance of the applicants’ admittedly racial as­
signments.

mental principle that racial discrimination in public educa­
tion is unconstitutional”—a doctrine supreme to the point 
that: “All provisions of federal, state, or local law re­
quiring or permitting such discrimination must yield to 
this principle.” Brown v. Board of Education, 349 U. S. 
294, 298. Thus, as long as the racial segregation resulting 
from the prior and present racial assignments continues 
to exist, neither the file* Pupil Placement iiw * nor 
■eol-lees*’ local ,‘Wcignmont nan iustifv the constitu-

havmg to do only with the individual assignment of 
children to particular schools.

b r \ Ia1
by v
interpreted by the Supreme Court, incorporates “the funda-



17

II.

A p p ellee’s adoption  and use o f  their “ assignm ent 
p lan ” w ith referen ce to appellan ts’ applications is racial 
discrim ination  in  contravention  o f  appellan ts’ con stitu ­
tionally  guaranteed rights to due process and equal 
protection  o f  the laws.

A. In  th e a ttem p ted  exercise o f  th e ir  righ t to  en joy  educa­
tional o p p o rtu n itie s  p ro v id e d  by  appellees, appellan ts w ere  
su b jec ted  to  term s and con dition s n o t sim ila rly  a p p lied  to  
o th er p u p ils  a d m itted  and en ro lled  in  th e schools a p p e l­
lants sough t to  en ter.

On 28 October 1958, appellee School Board adopted a 
resolution incorporating “a plan of assignment of those 
pupils applying for transfer, enrollment or placement in 
the public schools of Alexandria, Virginia . . .  to be ad­
ministered on a racially non-discriminatory basis in which 
. . .  [specified] criteria5 will be considered in making assign­
ment of any such pupil to the public schools of the City 
(JA 41-44). Appellee Division Superintendent of Schools 
was directed to proceed and did proceed to process appel­
lants’ applications in accordance with this “plan of assign­
ment,” hut it was not until a meeting of appellee School 
Board on 22 January 1959 that he made a report, includ­
ing specific data with reference to each of appellants, and 
recommendations (JA 71-74) upon which the Board acted 
in denying all of appellants’ applications.

Although appellants, in their Motion for Further Be­
lief, specifically objected to appellees’ action on the ground 
that in their consideration and action upon appellants’ ap­
plications appellees applied standards and criteria of eligi­
bility for admission to and enrollment in the public free 
schools of Alexandria, Virginia, not similarly applied as a

5 See Statement of Facts, supra p. 8.



18

basis of eligibility for the admission and enrollment of 
white students in said schools (JA 62), the court below 
obviously rejected this contention.

The pattern of “different” treatment afforded to the 
Negro appellants is patent. The evidence in the record dis­
closes that, notwithstanding appellees’ adoption on 28 
October 1958 of a plan for assignment of all pupils “ap­
plying for transfer, enrollment or placement in the public 
schools of Alexandria, Virginia . . . ” and, although pupils 
other than appellants were admitted after 28 October to 
the schools to which appellants had applied (JA 85); the 
plan was not “activated” or applied to any pupils other 
than appellants (JA 85, 87, 88); and the plan was “acti­
vated” and applied to appellants as the direct result of 
the order of the court below that appellees must act upon 
appellants’ applications (JA 90-91).

The “plan” adopted by appellee School Board specifically 
provides that determination of one of the criteria, academic 
achievement and level of mental maturity, is to be based 
upon a program of tests administered “to all children . . . 
whose applications involve unusual circumstances; pro­
vided, however, that in the cases of the fourteen (14) Negro 
children whose applications involve the unusual circum­
stances of seeking transfers to or initial enrollment in 
public schools of the City previously attended only by 
children of the opposite race . . . ” (JA 43). Pressed for 
an explanation as to whether racial transfers constituted 
the only “unusual circumstances” contemplated by the 
“plan,” appellee Division Superintendent equivocated, but 
admitted that the resolution was adopted because of the 
“unusual circumstance arising from the fact that . . . [ap­
pellees] had these fourteen applications of Negroes . . . ” 
(JA 96).



19

As respects those to whom applied, the “plan” in issue 
establishes standards, criteria, procedures, and results sig­
nificantly variant from those normally applicable to other 
children admitted and enrolled in the schools under ap­
pellees’ jurisdiction and control. Appellee Division Super­
intendent testified that appellants’ applications for transfer 
were received in August 1958 (JA 73), were submitted to 
the State Pupil Placement Board, which rejected them after 
the school term had commenced (JA 75); and no further 
action was taken with reference to appellants’ applications 
until they were processed under the local “assignment 
plan” as the result of the court’s Order Granting Injunction 
(JA 75). Meanwhile, all other pupils were admitted and 
enrolled in appellees’ schools, including those to which 
appellants applied, pursuant only to appellees’ school zone 
map and school zone description, with the apparently rou­
tine approval of the State Pupil Placement Board (JA 
17, 37, 38, 79-80). So that it was only in the case of those 
Negro pupils seeking admission to previously “white” 
schools, including these appellants, that appellees applied 
the special standards or criteria prescribed by their “assign­
ment plan.”

It is beyond question that the “assignment plan” under 
consideration subjects all Negro applicants for nonsegre- 
gated education to a searching scrutiny and a survival of 
disqualifying phenomena not present in ordinary cases. 
This is more than merely the inconvenience, loss of time, 
and trouble incidental to compliance with the special “as­
signment” procedures which were applied. It is necessary 
that the Negro child satisfy requirements additional to and 
different from those established and applied in all other 
cases. For the Negro child, rejections may follow from 
either a lack of special abilities and qualifications, or the 
presence of special circumstances. The difference in treat­
ment of Negro applications under the approved criteria



20

appears plainly from the fact that no white child is ex­
cluded from the schools to which Negro appellants seek ad­
mission because his academic achievement or mental ma­
turity rated below the median of that school, or because he 
lived closer to another school, or because he had emotional 
or mental stability problems, etc.

These “criteria,” the analyses of individual records, and 
the convenient flexibility of the application of the criteria, 
as discussed infra, all accumulate their weight to make ex­
ceedingly heavier demands of the Negro applicant to a 
“white” school. The validity of this observation is amply 
demonstrated by the fact that of the fourteen Negro ap­
plicants submitted to appellees’ “assignment plan,” all were 
denied the requested transfers. This result is not remark­
able when it is considered that under one of the criteria,6 
as admitted by appellee Division Superintendent, every 
Negro applicant for admission to a “white” school would be 
disqualified (JA 123). The vice in the “plan’s” operation 
is accentuated by the consideration that the Negro appli­
cant to a “Negro” school or the white applicant to a “white” 
school was admitted as a matter of course.

In light of this Court’s observation in remanding Hamm, 
et al. v. County School Board of Arlington County, Virginia, 
264 F. 2d 945, 946:

# # # # #
. . .  We find evidence in the record that their applica­

tions for transfer were subject to tests that were not 
applied to the applications of white students asking 
transfers.. .

* * % * *
. . . For these reasons it is our conclusion that the 

actions of the County School Board and of the Dis­

6 “Any factors which might affect the mental or emotional stability of 
the applicant so much as to become pertinent in placement determinations.”



21

trict Court in rejecting the applications of the . . . 
Negro students should not be accepted as valid prece­
dents for future action and that as to them the case 
be remanded with direction to issue an injunction 
directing the County School Board to reexamine their 
applications. . .

it is submitted that appellees’ action in subjecting only 
the appellants to their “assignment plan” and the approval 
thereof by the court below cannot be sustained.

B. T he d ifference betw een  th e trea tm en t accorded  appellan ts  
and o thers sim ilarly  situ a ted , based u pon  race alone, in ­
vokes the con dem n ation  o f the due process and equal p r o ­
tec tion  guarantees o f the F ourteen th  A m en dm en t.

The equal protection clause does not leave the state free 
to unjustifiably impose upon the exercise of rights by one 
group requirements not applicable to other groups. Smith 
v. Cahoon, 283 U. S. 553 (1931). See also Lane v. Wilson, 
307 U. S. 268 (1939). Classifications violate the Constitu­
tion when they unjustifiably increase the group burdens, 
or depreciate the group benefits, of public education. 
Sweatt v. Painter, 339 U. S. 629 (1950); McLaurin v. Okla­
homa State Regents, 339 U. S. 637 (1950); Sipuel v. Board 
of Regents, 332 U. S. 631 (1948). And it is hardly neces­
sary to state that the difference in treatment cannot be 
justified upon grounds of race, Brown v. Board of Educa­
tion, 347 U. S. 483 (1954); Sweatt v. Painter, supra; Ex 
parte Endo, 323 U. S. 283 (1944); Skinner v. Oklahoma, 
316 U. S. 535 (1942), at 541; Nixon v. Herndon, 273 U. S. 
536 (1927), at 541. Where, as here, such requirements are 
enforced at all, they must be enforced without unequal 
results among groups identically situated despite differ­
ence as to race. Here the “special” requirements con­
tained in the “plan” under consideration are imposed only



22

upon Negro children seeking to enter “white” schools, and 
white children seeking entry to “Negro” schools. The single 
factor determinative of its operation in particular cases 
is the difference in race between the appellants and those 
already in the school. Subjection to the “plan” thus de­
pends solely on race—“simply that and nothing more.” 
Buchanan v. Warley, 245 U. S. 60, 73 (1917).

Neither the making of classifications based upon race, 
nor different treatment (by imposition of burdens or grant 
of benefits) to groups defined by racial considerations, 
have any reasonable relation to any legitimate purpose of 
the appellee School Board. Such discriminations by the 
school board constitute deprivations of liberty without 
the due process of law and denials of the equal protection 
of the laws in violation of the 14th Amendment. Brown v. 
Board of Education, 347 U. S. 483 (1954); Bolling v. 
Sharpe, 347 U. S. 497 (1954); Cooper v. Aaron, 358 U. S. 1 
(1958).

An unjust discrimination not expressly made by the 
“criteria” adopted by appellees, but made possible by 
them, is nevertheless a denial of equal protection. Yick 
Wo v. Hopkins, 118 U. S. 356 (1886) is the classic state­
ment of the rights of persons aggrieved by discriminatory 
administration of schemes appearing innocent on the sur­
face, where, at pp. 373-374, the Court said:

. . . Though the law itself be fair on its face and 
impartial in appearance, yet, if it is applied and 
administered by public authority with an evil eye and 
an unequal hand, so as practically to make unjust and 
illegal discriminations between persons in similar cir­
cumstances, material to their rights, the denial of 
equal justice is still within the prohibition of the Con­
stitution.



23

The fact that this different treatment may apply to 
white children who seek enrollment in “Negro” schools, 
as well as to Negro applicants to “white” schools, is en­
tirely beside the point. Shelley v. Kraemer, 334 IT. S. 1, 
21-22 (1948). In any event, in all of its ramifications the 
“plan” here involved applied only to Negroes.

The fact that the “plan” may not absolutely preclude 
all Negro children, and that exceptionally gifted children 
may survive its operation, does not save it from constitu­
tional condemnation. Indisputably, it discriminates against 
the class that included the Negro appellants here by im­
posing greater demands upon them than upon others. This 
vice in its operation alone suffices to render it invalid. As 
the Court in Lane v. Wilson, supra at 275, stated in 
treating another constitutional right:

The [Fifteenth Amendment] nullifies sophisticated 
as well as simple-minded modes of discrimination. It 
hits onerous procedural requirements which effectively 
handicap exercise of the franchise by the colored race 
although the abstract right to vote may remain unre­
stricted as to race.

Nor is its approval to be affected by the consideration 
that the discrimination resulting from the operation of the 
plan may not have been intended by the defendants, “It 
is immaterial that the defendants may not have intended 
to deny admission on account of race or color. The inquiry 
is purely objective. The result, not the intendment, of 
their acts is determinative.” Thompson v. County School 
Board of Arlington County, 159 F. Supp. 567, 569 (E. D. Va. 
1957). Non-intentional discrimination is nonetheless uncon­
stitutional. Cassell v. Texas, 339 U. S. 282 (1950); Hill v. 
Texas, 316 U. S. 400 (1942); Smith v. Texas, 311 IT. S. 128 
(1940). The fact that appellee School Board sought to



24

achieve, by the means employed, compliance with the pre­
vious orders of the court below is equally impotent. How­
ever well intended their efforts may he, this objective 
cannot be attained by a device that denies rights created 
or protected by the Federal Constitution. Buchanan v. 
Warley, swpra, at 81.

C. The fa ilu re  o f th e cou rt below  to  recogn ize and con dem n  
the pa ten t d iscrim in a tion  in the m eth od  by  which appellees  
acted  u pon  a ppellan ts’ app lica tion s is in consisten t w ith  
cases in  o th er areas in  which S tate action  has been  p ierced  
and fo u n d  to  rep resen t a stra tagem  or d evice  reso rted  to  
fo r  pu rp o ses  o f p reserv in g  racial d iscrim in a tion .

Terry v. Adams, 345 U. S. 461 (1953); Smith, v. All- 
wright, 321 U. S. 649 (1944); Perry v. Cyphers, 186 F. 2d 
608 (5th Cir. 1951) ; Rice v. Elmore, 165 F. 2d 387 (4th Cir. 
1947), cert. den. 333 U. S. 875 (1948) involved situations in 
which the courts have looked below the surface to find and 
condemn violations of constitutional right. Singularly ap­
posite is the following excerpt from the recent opinion of the 
United States Court of Appeals for the Eighth Circuit in 
Aaron v. Cooper, 261 F. 2d 97 (8th Cir., 1958):

The effect of all these cases [cited above], in their 
relation to the present situation has been epitomized 
by the Supreme Court in Cooper v. Aaron, 78 S. Ct. 
1401, 1409, as follows: “In short, the constitutional 
rights of children not to be discriminated against in 
school admission on grounds of race or color declared 
by this Court in the Brown case can neither be nullified 
openly or directly by state legislators or state execu­
tive or judicial officers, nor nullified indirectly by them 
through evasive schemes for segregation whether at­
tempted ‘ingeniously or ingenuously.’ ”



25

III.

T he court below  erron eou sly  considered  ap p ellees’ 
rejection  o f  appellan ts’ applications for  adm ission , en ­
ro llm en t and education  in  designated “ w hite”  schools  
as “adm inistrative determ inations” to be review ed pur­
suant to the “ substantial ev id en ce”  doctrine and, having  
thus lim ited  its scope o f  inquiry, fa iled  to discharge  
its  ob ligation  to m ake an independent evaluation  and  
determ ination  o f  the facts decisive o f  appellan ts’ con ­
stitu tional claim  that th eir  exclu sion  from  said schools  
was because o f  race or color.

As this case came on for hearing in the court below, 
upon appellees’ Report and appellants’ objections and ex­
ceptions thereto as set forth in their Motion for Further 
Relief, the issue raised by the pleadings was whether ap­
pellees, in rejecting appellants’ applications for admis­
sion or transfer, had discriminated against appellants on 
account of their race or color, in violation of the Order 
Granting Injunction and of appellants’ rights to due process 
and equal protection of the law under the Fourteenth 
Amendment of the Constitution of the United States.

A. A p p e llees’ action  was not such an “a dm in istra tive  d e te r­
m in a tion ” as w ou ld  ju s tify  applica tion  o f the “ substan tia l 
eviden ce” doctrin e .

In concluding that appellees’ action upon appellants’ 
applications was an “administrative determination” entitled 
to conclusive respect if based upon substantial evidence, 
the court below relied upon premises which are not sup­
ported by the record in this case.

To justify the court’s conclusion in this case it must 
appear that appellees’ action was based upon a “fair hear­
ing.” The barest essentials of a “fair hearing” would be



26

notice, an opportunity to be beard, and findings based 
upon the evidence. The fact that appellees acted ex parte, 
in closed session, without notice to appellants, or an oppor­
tunity for them to be heard in their own behalf is uncon­
troverted in this record. As stated in one of the leading 
cases in this area, Morgan v. United States, 304 U. 8. 1, 
18-19 (1938):

. . . The right to a hearing embraces not only the 
right to present evidence but also a reasonable oppor­
tunity to know the claims of the opposing party and 
to meet them . . . Those who are brought into contest 
with the Government in a quasi-judicial proceeding 
aimed at the control of their activities are entitled to 
be fairly advised of what the Government proposes 
and to be heard upon its proposals before it issues its 
final command.

No such reasonable opportunity was accorded appel­
lants. [Emphasis supplied.]

The fundamental rationale upon which administrative 
determinations are accorded respect by the courts is the 
fairness and adequacy of the procedure before the admin­
istrative agency. In Southern Garment Mfrs. Assn. v. 
Fleming, 122 F. 2d 622, 632 (D.C. Cir. 1941) the standards 
are set forth which, applied to the record in this case, 
conclusively demonstrate the court’s error:

The scope of judicial review should depend largely 
upon the adequacy of the preceding process. Here the 
process was fair and complete. The Committee and 
the Administrator did work that was authorized by 
Congress and they did it the way that body directed. 
The Committee heard evidence and deliberated. Its 
report went to the Administrator. There, the proceed­
ing was upon narrow, well-defined issues; the consid-



27

eration was detailed; the affected parties or their 
representatives were present; specific wage orders re­
sulted. These elements, inter alia, caused the Supreme 
Court, in the Opp case to call this proceeding judicial 
in character. A court, under such circumstances, should 
hesitate long before nullifying the resultant classifica­
tion.

It is submitted, therefore, that the “administrative de­
termination” here was not entitled to the conclusive effect 
and application of the “substantial evidence” doctrine ac­
corded it by the court below.

B. M oreover, a ppellan ts’ claim  that appellees had excluded  
th em  fro m  th e schools to  w hich th ey  a p p lied , on account 
o f th e ir  race o r  co lor, in v io la tion  o f  con stitu tion a lly  guar­
an teed  righ ts, ob liga ted  th e  cou rt below  to  m ake an in de­
p en d en t evaluation  and determ in a tio n  o f the factual issues 
decisive  o f appellan ts’ claim .

Accordingly, the court below was required to make its 
own independent evaluation and determination, upon all 
of the available and pertinent evidence, of the decisive 
factual issue; viz., whether appellees refused on account 
of race or color to admit, enroll and educate appellants, 
who were otherwise qualified, in the “white” schools for 
which they applied. Thus, the issue of appellants’ qualifi­
cations, or lack thereof, was decisive of their claimed con­
stitutional right.

Wherever a citizen submits to a Federal court his claim 
that an administrative body has acted in derogation of 
his constitutional rights, the court may and must exercise 
its independent judgment on those issues of fact that are 
decisive of the constitutional claim. This conception of 
the duty and function of the court is supported by the case 
law. In Ohio Valley Water Co. v. Ben Avon Borough, 253



28

U. S. 287 (1920) it was held that a court must exercise its 
independent judgment on the law and the facts in deter­
mining a claim of confiscation of property without due 
process of law, which resulted from a regulation of utility 
rates. The principle was again applied in St. Joseph Stock 
Yards Co. v. United States, 298 U. S. 38, 49 (1936). Cf. 
Ng Fung Ho. v. White, 259 II. S. 276, 284-285 (1922). In 
Baltimore $  Ohio RR Co. v. United States, 298 U. S. 349, 
372 (1936), the court again applied this doctrine, and re­
ferred in a footnote to Norris v. Alabama, 294 U. S. 587, 
589-590 (1935), which may be regarded as involving an 
analogous principle. This principle, frequently stated in 
cases involving claimed coerced confessions and systematic 
exclusion of Negroes from juries, is that the power of the 
federal judiciary, in appellate review of state court pro­
ceedings, extends in certain circumstances to a considera­
tion of “issues of fact.” The proposition is clearly stated 
in Watts v. Indiana, 338 U. S. 49, 50-51 (1949):

. . . “issue of fact” is a coat of many colors. It 
does not cover a conclusion drawn from uncontro­
verted happenings, when that conclusion incorporates 
standards of conduct or criteria for judgment which 
in themselves are decisive of constitutional rights. 
Such standards and criteria, measured against the 
requirements drawn from constitutional provisions, 
and their proper applications, are issues for this 
Court’s adjudication. Hooven $  Allison Co. v. Evatt, 
324 U. S. 652, 659, and cases cited. Especially in cases 
arising under the Due Process Clause is it important 
to distinguish between issues of fact that are here 
foreclosed and issues which, though cast in the form 
of determinations of fact, are the very issues to re­
view which this Court sits, See Norris v. Alabama, 294 
U. S. 587, 89-90; Marsh v. Alabama, 326 U. S. 501, 510.



29

See also: Niemotho v. Maryland, 340 U. S. 268, 271 (1951) 
and Pierre v. Louisiana, 306 U. S. 354, 358 (1939); Peiner 
v. New York, 340 U. S. 315, 316, 323 footnote 4 (1951); 
Spano v. U. S., —  U. S. — - ,  3 L. ed. 2d 1265, 1267
(1959); Napue v. Illinois,----- U. S. ——, 3 L. ed. 2d 1217,
1222-1223 (1959).

Logic and reason cannot sustain the contention that 
appellees’ “administrative determination,” made ex parte 
and without notice in closed and secret session and without 
a record other than the testimonial recital in the instant 
proceeding below, is entitled to greater respect than the 
determinations by the quasi-judicial administrative bodies 
and the courts represented in the cases cited, supra.

Therefore, it is respectfully submitted that the court 
below erred in failing to make an independent determina­
tion, on all the evidence properly before it, of the decisive 
issue of appellants’ qualification, or lack thereof, for 
admission to the “white” schools from which they claimed 
appellees excluded them on account of their race or color.



30

IV.
R eview  and consid eration  o f  the available and perti- 

nen t ev id en ce com p els the con clu sion  that the reasons  
advanced by appellees fo r  their rejection  o f  appellan ts’ 
applications fo r  adm ission , enro llm en t and education  
in  “ w h ite” schools w ere based up on  considerations o f  
race or co lor  in  contravention  o f  appellan ts’ constitu ­
tionally  guaranteed rights o f  due process and equal 
protection  and in  v io la tion  o f  the prior orders o f  the  
court.

Appellants contend that an independent review and de­
termination upon the uncontroverted evidence in the record 
herein compels a conclusion contrary to that of the court 
below.

A. T h e “geograph ica l loca tion ” criterion , as a p p lied  and  
a p p ro ved  by  th e cou rt below , den ies to  appellan ts the  
equal p ro tec tio n  o f  the laws as gu aran teed  by  th e F our­
teen th  A m en dm en t.

In Cases L, M and N the court below approved appellees’ 
rejection of appellants’ applications on the basis of the 
“geographical criterion” (JA 170). As stated by the court 
in its Findings of Fact and Conclusions of Law (JA 171- 
172):

. .. They reside in southeast Alexandria, immediately 
below Wolfe Street and just east of St. Asaph Street. 
Presently students in the Parker-Gray High School, 
they petitioned for George Washington High School. 
The latter is slightly farther from their homes than 
is Parker-Gray, and is separated from Parker-Gray by 
the main line of the railroads splitting the city and 
running between Washington and the South, as well 
as by part of the Potomac Railroad yards. Parker-Gray 
is on the east side, that nearer the petitioners’ resi-



31

denees. George Washington, to the west, is readily ac­
cessible by way of a street underpass.

As no difference in educational facilities between the 
schools appears, it cannot be said that in assigning 
these pupils to Parker-Gray, rather than to George 
Washington, the Board acted arbitrarily or capri­
ciously . . .

In reaching this conclusion, the court below apparently 
ignored three factual elements, disclosed by the record, 
which appellants submit are pertinent to and determinative 
of their contention that appellees’ action was discriminatory 
and denied them equal protection of the laws as guaranteed 
by the Fourteenth Amendment.

Appellees admitted that, except in the cases of the four­
teen Negroes subjected to their “assignment plan,” includ­
ing appellants, all other pupils in the public schools of the 
city of Alexandria were assigned on the basis of “school 
zones,” as determined, delineated, defined and published by 
appellees (JA 17, 105-106; and see Plaintiffs’ Exhibits 1, 
Record 47 and 2, JA 19-22). Moreover, appellee Division 
Superintendent in his testimony, subsequent to the adoption 
and “activation” of the “plan,” admitted that appellees had 
taken no action to abandon or revise these “school zones” 
in connection with the future assignment of pupils (JA 
138-139). Thus, as to all but appellants, the “geographic” 
factor involved in determining eligibility for admission to a 
particular school was the location of the pupil’s residence 
within the boundaries of the school’s “zone” rather than 
the proximity of his residence to the school.

The second salient fact ignored by the court below, which 
illustrates and emphasizes the distinction made by appel­
lees in application of the “geographic” factor to appellants 
and other pupils, is the admission that, in every case, a white



32

pupil residing in the same location as appellants would be 
assigned, pursuant to applicable “school zones,” to the 
schools to which appellants sought and were denied trans­
fers (JA 36-37).

The third evidentiary demonstration that the “geo­
graphic” factor, as applied to appellants in this case, is 
patently racial is disclosed on the face of appellees’ “School 
Zone Map” (Record 47) and “School Zone Descriptions” 
(JA 19-22). Thus, the “School Zone Map” significantly 
omits any lines delineating the boundaries of the “Negro” 
schools, which, in every instance are located within the 
boundaries of “zones” circumscribing “white” schools; and 
the “School Zone Descriptions” either specifically des­
ignate particular schools by racial—i.e. “white” and 
“Negro”—references, prescribe “city-wide” boundaries for 
the “Negro” schools, or prescribe overlapping boundaries 
for contiguous “Negro” and “white” schools.

From the foregoing facts, the conclusion is inescapable 
that appellees, with the express approval of the court below, 
used the “geographic” factor in determining the assign­
ment of pupils to particular schools as a “scheme” or 
“device” to continue racial segregation in the Alexandria 
public schools. Indulging the reasonable assumption that 
the “Negro” schools, consistent with convenience and ac­
commodation to the policy and practice of racial segrega­
tion, originally were programmed and built in or near the 
centers of the city’s Negro residential areas, it is more than 
coincidence that the use of proximity rather than “school 
zones” as the “geographic” criterion in appellees’ “plan” 
would result in ten of the fourteen Negro applicants, 
including three of appellants, being rejected on this basis. 
Notwithstanding the court below refused to sustain this 
basis for appellees’ action in any but the cases of the three 
appellants here, it would seem that the court below recog­



33

nized—but failed to appreciate—-the inherent and implicit 
constitutional infirmity here present, in its observation, 
upon approving appellees’ “geographic” rejection of three 
appellants here, that, “ . . . This conclusion is not affected 
by the well known fact that Parker-Gray has always been 
a Negro school and George Washington has not previously 
received Negro students . . . ” (JA 172).

It is submitted that the foregoing recitals conclusively 
demonstrate that Criterion 1, as administered by appellees, 
is but a rationalization for the use of “naked and arbitrary 
power” to maintain segregation. Cf. Yick Wo v. Hopkins, 
supra at 366.

In Brown v. Board of Education, 349 U. S. 294, 300-301, 
the Court indicated that among the factors to be considered 
by the district courts in granting time for compliance, were 
problems related to “revision of school districts and at­
tendance areas into compact units to achieve a system of 
determining admission to the public schools on a non- 
racial basis.” In Cooper v. Aaron, supra, at 7, the Court 
said that “State authorities were thus duty bound to devote 
every effort toward initiating desegregation and bringing 
about the elimination of racial discrimination in the public 
school system.” Certainly the action of appellees, in con­
tinuing to maintain the prior school zones specifically 
designed to facilitate and accommodate the invalidated sys­
tem of racial segregation, coupled with their convenient 
deviation to the use of proximity in the cases of appellants, 
cannot be squared with any concept of “good faith com­
pliance” with the duty “to devote' every effort toward 
initiating desegregation.” See also Aaron v. Cooper, supra, 
with respect to the affirmative obligations of state and 
local authorities.



34

B. T he u n con troverted  evidence w ith  respec t to  th e “ academ ic  
ach ievem en t and m ental m a tu rity” criter io n  conclusively  
dem on stra tes that th is is an a ttem p ted  ju stifica tion  fo r  
con tin u ed  racial segregation .

In its Findings of Fact and Conclusions of Law the 
court below concluded:

#  * * *  #

D and F, refused admission to Patrick Henry or 
Ramsay School for academic deficiency, are bound 
by this determination for the same reason [i.e., the 
School Board’s determinations are “not without sub­
stantial evidence to support” them] (JA 170); . . .

The “substantial evidence” cited by the court below is as 
follows (JA 173-174):

* * * * *

D is in the fifth grade at Lyles-Crouch School and 
sought entrance to Patrick Henry or Ramsay. His 
grade placement is scored at 3.1 (3 grade, 1 month) 
on the California Achievement Test. The median at 
Patrick Henry is 4.9. The lowest grade placement at 
Patrick Henry is 3.3. The median at Ramsay is 5.4 
and the lowest placement is 3.0. On the other hand, the 
median at Lyles-Crouch is 3.3 with the lowest at 1.1. 
This recital shows that the Board was not without rea­
son in refusing to remove . . . [D] from Lyles-Crouch 
to either Patrick Henry or Ramsay.

The same is true of second-grader F, with an I.Q. 
of 81 and a mental age of 5 years, 9 months, against a 
chronological age of 7 years, 4 months. She is below 
both the median I.Q. and mental age in Lyles-Crouch, 
her present school, and well below Patrick Henry’s 
median I.Q. of 103 and mental age of 7 years, 8 months,



35

as well as Ramsay’s median I.Q. of 111 and mental age 
of 8 years, 5 months.

No white children, including those with “grade place­
ment,” or “mental age” as low or lower than those of
the appellants, were excluded from the schools appellants 
sought to attend (JA 124,128-129). It is said that the Negro 
students excluded for reason of academic deficiency would 
have serious academic difficulties if admitted to the “white” 
schools to which they sought transfers (JA 148). But 
it is apparent on the face of the record that there were 
some white students in the schools involved whose aca­
demic achievement and mental maturity scores were as 
low as those of appellants. For, although the “white” 
schools have median achievement and mental maturity 
levels above the “Negro” schools to which appellants are 
assigned and their median levels in the “white” schools 
are above those of appellants, by definition a “median” 
is merely the point dividing the upper and lower halves 
of the group tested and the lowest score below the median 
is nevertheless included in the group.

The pattern of discrimination is clear. Students are 
divided into two groups, those with relatively high and 
those with relatively low academic ratings. Those with 
relatively high ratings are deemed qualified. Those with 
relatively low ratings are then divided into two more 
classes—those excluded from a given school (all Negroes) 
and those not excluded (all white students). Cf. Yick Wo 
v. Hopkins, supra. It is apparent that the decision on 
whether or not those students with low academic ratings 
are qualified for attendance at the heretofore “white” 
schools is exercised on a racial basis.

It is submitted that it was erroneous, as a matter of 
law, for the court below to restrict the right not to be



36

racially segregated in the public schools of Alexandria 
to Negroes who are intellectually gifted. The equal pro­
tection of the laws is a “pledge of the protection of equal 
laws” to all persons within the state, Tick Wo v. Hopkins, 
supra. The state is not required to treat as alike the 
genius and the imbecile, for they are different in fact, but 
the state may make no distinctions in its treatment of either 
geniuses or imbeciles because of their different races.

To exclude these Negro children from the benefits of the 
higher academically rated “white” schools, for the reason 
that as the victims of inferior segregated schools they have 
not as a group reached the level of achievement of the more 
privileged race, is to forever consign them to an inferior 
education in segregated schools. This is the ratio decidendi 
of the Supreme Court’s decision in the Brown and other 
school desegregation cases.



37

CONCLUSION

For the reasons stated h erein , it is resp ectfu lly  sub­
m itted  that the judgm ent appealed from  should  be re­
versed as to  appellants herein .

Respectfully submitted,

F r a n k  D . R e e v e s

473 Florida Avenue, N.W. 
Washington 1, D. C.

O l iv e r  W. H il l

118 East Leigh Street 
Richmond 19, Virginia

O t t o  L. T u c k e r

901 Princess Street 
Alexandria, Virginia

S. W. R o b in s o n , III
623 North Third Street 
Richmond 19, Virginia

Counsel for Appellants

J a m e s  M. N a b r it , III 
of Counsel