Brooks v. County School Board of Arlington County, Virginia Appellants' Brief

    In t h e

Itttteft States (Emirt nf Appeal#
F or the F ourth Circuit 

No. 8708

Gloria Brooks, et al.,

- V -
Appellants,

County School B oard of A rlington 
County, V irginia, et al.,

Appellees.

appeal from the united states district court for the
EASTERN DISTRICT OF V IR G IN IA , A LEXAN D RIA DIVISION

APPELLANTS’ BRIEF

Jack Greenberg
James M. Nabrit, III  

10 Columbus Circle 
New York 19, New York

Otto L. T ucker
901 Princess Street 
Alexandria, Virginia

S. W . T ucker
214 East Clay Street 
Richmond, Va.

F rank D. Reeves
1343 H Street, N.W. 
Washington 5, D. C.

Attorneys for Appellants



INDEX TO BRIEF
PAGE

Statement of the Case ..... ....................... .... ....................  1

Questions Involved ..................... ..................... ........ ...........  8

Statement of F a cts .............. ..................... .........................  9

Evidence Presented by the School Board in Sup­
port of Its Motion to Dissolve the Injunction .... 9

Evidence Relating to the School Attendance Areas 
for Negro Schools and to the “Racial Minority 
Policy” .............................. ............. ................. ...........  11

A bgument :

I. The School Board Made No Showing Sufficient 
to Justify Dissolving the Permanent Injunction .. 14

II. The School Board’s Continued Use of School 
Attendance Districts Established for All-Negro 
Schools on the Basis of Race, Together With a 
Policy of Permitting Pupils in a Racial Minority 
in Any School Area to Be Assigned or Trans­
ferred Out of Such District on the Basis of Race, 
Unlawfully Recognizes Race as a Factor in Pub­
lic School Assignments and Serves to Perpetuate
Racial Segregation ........................ ...................... . 23

Conclusion .......................................... ....................... ........  29

Table oe Cases

Bolling v. Sharpe, 347 U. S. 497 (1954) ...........................  27
Boson v. Rippy, 285 F. 2d 43 (5th Cir. 1960) ____21, 23, 25
Briggs v. Elliott, 132 F. Supp. 776 (E. D. S. C. 1955) ..7, 28 
Brown v. Board of Education, 347 U. S. 483 (1954);

349 U. S. 294 (1955) ..... ................................. ....22,25,28



II

Cooper v. Aaron, 358 U. S. 1 (1958) ....... ............... 23, 25, 28

Dillard v. School Board of City of Charlottesville (4th
Cir., No. 8638) ........... ........ ............................................. 24

Dodson v. School Board of City of Charlottesville, 289 
F. 2d 439 (4th Cir. 1961) ..............................................  21

Goldberg v. Boss, 300 F. 2d 151 (1st Cir. 1962) .......... . 18
Goss v. Board of Education of City of Knoxville, 301

F. 2d 164 (6th Cir. 1962) ................. ....... .................. . 21
Green v. School Board of City of Roanoke, —— F. 2d 

——  (4th Cir., May 22, 1962) ..................................  28

Hamm v. County School Board of Arlington County,
263 F. 2d 226 (4th Cir. 1959) ........................ .............

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

Hill v. School Board of City of Norfolk, 282 F. 2d 473
(4th Cir. 1960) ..................................... .......................... .

Jones v. School Board of City of Alexandria, 278 F. 2d 
72 (4th Cir. 1960) ..................... .......... ...................... . 27

Kelley v. Board of Education of City of Nashville, 270 
F. 2d 209 (6th Cir. 1959) ........... ................. ......... 7, 21, 23

Marsh v. County School Board of Boanoke County,
------ F. 2 d -------  (4th Cir., June 12, 1962) ..................'

Maxwell v. Board of Education of Davidson County,
301 F. 2d 828 (6th Cir. 1962) ......................................

School Board of Arlington County v. Thompson, 252

PAGE

F. 2d 929 (4th Cir. 1958) ..............................................  20
Shelley v. Kraemer, 334 IT. S. 1 (1948) ........................... 24
Swift & Co. v. United States, 367 U. S. 909 (1961) ....17,18

27

21

3

4 

21



I l l

Taylor v. Board of Education of City of New Rochelle,
191 F. Supp. 181; 195 F. Supp. 231 (S. D. N. Y. 1961), 
app. dismissed 288 F. 2d 600, aff’d 294 F. 2d 36 (2nd
Cir. 1961), cert. den. 368 IT. S. 940 .............................. 27

Tobin v. Alma Mills, 192 F. 2d 133 (4th Cir. 1951), 
cert, denied 343 U. S. 933 (1952) ...............8,14,17,18,19

United States v. Parke Davis & Co., 362 U. S. 29 (I960) 17
United States v. Parke Davis, 365 U. S. 125...................  17
United States v. Swift & Co., 189 F. Supp. 885 (N. D.

111. 1960) ............................................................................  17
United States v. Swift & Co., 286 U. S. 106, 52 S. Ct.

460, 76 L. ed. 999 (1932) ........................... ............. .....15,16

Walling v. ITarnischfeger Corp., 242 F. 2d 712 (7th 
Cir. 1957)

PAGE

1 8



I n  t h e

I n i t i o  BuUs (£nmt o f  A ^ a i a
F or the F ourth Circuit 

No. 8708

Gloria Brooks, et al.,
— v . —

Appellants,

County School B oard of A rlington

County, V irginia, et al.,
Appellees.

appeal prom the united states district court for the

EASTERN D ISTR IC T OF V IR G IN IA , A LEXA N D R IA  DIVISION

APPELLANTS’ BRIEF

Statement o f  the Case

This is an appeal by a group of Negro children and 
parents from an order entered in the Arlington County, 
Virginia school desegregation case by the United States 
District Court for the Eastern District of Virginia, on 
March 1, 1962 (168a). The proceedings directly leading to 
this order began with a “Motion to Dissolve Injunction” 
filed by the defendant School Board November 13, 1961 
(85a).

After a hearing held February 8, 1962, at which the 
court also considered plaintiffs’ motion for additional in­
junctive relief, the court wrote an opinion (154a) indicat­
ing its view that the Arlington County public schools were



2

being operated on a completely racially nondiscriminatory 
basis and that there was no farther justification for the 
injunction which had been entered in this case on July 31, 
1956. The court entered an order as requested by the 
defendants dismissing the case and striking it from the 
docket. A brief resume of the prior proceedings in this case 
is necessary to consideration of the issues on the present 
appeal.

The action was originally filed May 17, 1956. On July 
31, 1956, the District Court granted summary judgment 
in favor of the plaintiffs and entered a general injunction 
against racial discrimination in the Arlington County 
public schools (11a, et seq.). This order, in pertinent part, 
restrained the defendants “ from refusing on account of 
race or color to admit to, or enroll or educate in, any school 
. . . any child otherwise qualified for admission . . .  in such 
school” (13a). The court provided that its order be effec­
tive with respect to elementary schools in January 1957, 
and with respect to junior and senior high schools in Sep­
tember 1957. The order was stayed pending appeal. This 
Court affirmed and the Supreme Court denied certiorari 
(240 F. 2d 59 (4th Cir. 1956), cert, denied 353 U. S. 910 
(1957)).

On July 27, 1957, the court amended the injunction to 
“ render it current” ordering that it be effective as to all 
schools in September 1957, and at that time refused a 
School Board request to further suspend, the judgment 
(15a.). In September 1957, after seven Negro pupils had 
applied for and been denied admission to all-white schools 
on the opening day of school, plaintiffs filed a motion for 
further relief. After another hearing, an opinion was filed 
which reviewed various defenses raised by the School 
Board, and determined that these pupils had been refused 
admission on the basis of race (35a, et seq.). An order of



3

September 14, 1957, directed that they be admitted on Sep­
tember 23, 1957 to the schools they sought to enter (43a). 
However, this order also was stayed by the District Court 
on September 18, 1957, pending appeal (2a). This Court 
again affirmed the trial court and the Supreme Court again 
denied certiorari (252 F. 2d 929 (4th Cir. 1958), cert, denied 
356 U. S. 958 (1958)). The stay, however, remained in 
effect throughout the 1957-58 school term and, thus, there 
was no desegregation during this period.

In September 1958, further trial proceedings were had 
on the School Board’s motion and “ request for guidance.” 
On this occasion the District Court reviewed the School 
Board’s denial of transfer requests made by 30 Negro 
pupils to white schools. The trial court, in its findings 
and conclusions dated September 17, 1958 (45a), held that 
four of the Negro pupils had been improperly denied ad­
mission on the basis of race but upheld the School Board 
as to 26 others. The court ordered these four Negro pupils 
admitted to white schools effective at the beginning of the 
second school semester in February 1959 (60a). The School 
Board appealed this order and the plaintiffs appealed the 
denial as to the 26 other pupils. This Court rendered an 
opinion affirming the District Court’s injunction with re­
spect to the four Negro pupils ordered admitted to white 
schools, sub nom. Hamm v. County School Board of Arling­
ton County, 263 F. 2d 226 (4th Cir. 1959). Thereafter, the 
trial court, on January 28,1959, denied a request for further 
stay (4a) ; Chief Judge Sobeloff of this Court denied a 
stay on January 30, 1959 (4 a ); and Chief Justice Warren 
denied a requested stay on January 31, 1959 (reported 
unofficially 4 Race Eel. L. Rep. 14). The admission of 
these four pupils to white schools in February 1959 repre­
sented the first actual compliance with the injunction of 
July 31,1956.



4

Thereafter, this Court rendered an opinion with respect 
to the 26 plaintiffs whose applications for transfer had 
been denied in September 1958, sub nom. Iiamm- v. County 
School Board of Arlington County, 264 F. 2d 945 (4th 
Cir. 1959). The court held that these applications should 
be reconsidered by the District Court, stating that they had 
apparently been subjected to criteria not applied to other 
pupils and that they should be reconsidered in light of 
the fact that certain state laws requiring school closing 
in the event of desegregation had been subsequently invali­
dated. The trial court filed a decree in accordance with the 
mandate and also a memorandum opinion disposing of 
certain further arguments urged by the School Board (61a, 
65a).

Thereafter, the School Board reconsidered the applica­
tions of 22 of the 26 pupils involved in the previous appeal 
who still sought transfers, and again denied them all rely­
ing essentially upon the same reasoning used in September 
1958 (68a-69a). The trial court rendered an opinion on 
July 25, 1959, in which it ordered the School Board to 
admit 12 of the plaintiffs to formerly all-white schools. In 
this order, as in previous orders, the court specifically 
retained jurisdiction of the case (75a-76a). The court en­
tered a further order on September 16, 1959, requiring the 
defendants to admit seven additional Negro pupils to white 
schools who were denied admission, even though the School 
Board reported to the court no grounds for opposing their 
admission (77a-78a).

The next trial took place on July 21, 1960, at which time 
the court considered 20 additional Negro pupils’ requests 
for admission to white schools. The court again concluded 
that the School Board had improperly denied admission as 
to 11 of these pupils and ordered their admission. See 
opinion filed September 16,1960 (80a-84a).



5

On November 13, 1961, the School Board moved to dis­
solve the injunction of July 31, 1956. The motion stated 
that the policy of segregation no longer existed; that the 
injunction was unnecessary; that the continuing injunction 
put the defendants under threat of contempt; and that it 
was an unnecessary interference with the School Board 
(85a-86a). The School Board also filed a “ Report”  accom­
panied by three exhibits (87a-100a). These documents, in 
brief, advised the court that the Arlington County govern­
ing body had adopted an ordinance pursuant to Sections 
22-232.18-22-232.31, inclusive, of the Code of Virginia, elect­
ing to remove school assignment power from the Virginia 
Pupil Placement Board and conferring it upon the local 
School Board. The Board also attached a copy of its ad­
mission procedures adopted March 16, 1961 (Exhibit B, 
91a, et seq.). The report also stated that for the school 
year 1961-62 the School Board received 133 applications 
from Negro pupils for enrollment in white schools; that 
115 of these were granted and 18 denied on the ground that 
the applicants did not live in the attendance area of the 
schools they sought ; that 146 Negro pupils were then at­
tending 12 formerly all-white schools, and that the School 
Board had rescinded its prior policy of requiring racial 
segregation in interscholastic sports activities (88a). Plain­
tiffs filed a motion seeking further injunctive relief and 
opposing the motion to dissolve on December 28, 1961.

At the outset of the hearing, which was held February 8, 
1962, plaintiffs were granted leave to withdraw their “ Mo­
tion for Further Relief” except insofar as it opposed the 
motion to dissolve the injunction (109a-110a). At the hear­
ing the Board offered no evidence in support of the motion 
to dissolve except the three exhibits attached to the “Re­
port to the Court” mentioned above. Counsel for the Board 
argued the motion orally and was interrogated by the 
court in a long colloquy as to facts relating to the case.



6

In opposition, plaintiffs filed as exhibits the attendance 
area maps then in effect in the County (119a-120a); directed 
the court’s attention to certain previous testimony in the 
case (116a-118a); and also directed the court’s attention to 
a School Board resolution adopted September 21, 1959, 
prohibiting integrated social events in the public schools 
(120a-122a).

During the arguments the court indicated from the bench 
its view that two of plaintiffs’ arguments as to unconsti­
tutional action by the School Board were not properly be­
fore the court on the motion to dissolve, even though they 
were mentioned in plaintiffs’ opposing papers. These is­
sues were plaintiffs’ claim that the School Board’s so-called 
“ racial minority policy” embraced in paragraph III of the 
Board’s assignment rules (see 92a) was racially discrim­
inatory, and the claim that the School Board was violating 
plaintiffs’ rights by continuing to use school attendance 
areas previously established on a racial basis under the 
segregated system (see 121a-122a). At the suggestion of 
the court, plaintiffs were permitted to make an oral amend­
ment of their pleadings to bring these two questions before 
the court for decision (see 122a-129a). This amendment 
consisted primarily of adopting portions of the motion for 
further relief which had been filed on December 28, 1961, 
with certain oral amendments indicated in the colloquy on 
pages 129a through 131a and on page 135a.

Plaintiffs obtained a stipulation that there had been no 
substantial change in the school zones affecting the Negro 
schools since their original establishment under the segre­
gated system, with the exception of the elimination of the 
north Hoffman-Boston district (131a-132a). Plaintiffs also 
offered a further exhibit indicating enrollment in the Arling­
ton County schools as of September 30, 1961 (132a; see 
Exhibit at 150a). Defendants furnished a further exhibit



7

at the request of the court indicating the capacity of the 
various schools in the system (133a; see Exhibit at 153a).

In response the School Board called the Chairman of 
the Board to the witness stand to testify with regard to 
the school attendance area maps. After examination and 
cross-examination of the witness, the parties rested.

On March 1,1962, the court filed a memorandum opinion. 
The court briefly reviewed the prior litigation and the argu­
ments of the parties raised by the pending motions. The 
court ruled that the School Board’s racial minority rule 
was valid and not unconstitutional, relying primarily upon 
Briggs v. Elliott, 132 F. Supp. 776 (E. D. S. C. 1955), and 
Kelley v. Board of Education of City of Nashville, 270 F. 
2d 209 (6th Cir. 1959). The court also rejected plaintiff's’ 
argument that the School Board was improperly continuing 
discriminatory attendance areas, holding (161a):

This contention is not supported by the evidence. 
The attendance areas of these schools were established 
prior to the Brown decision and have been publicly 
reviewed as late as 1960, on which occasion no citizen 
of Arlington, Negro or white, objected to the attendance 
areas as established for these schools. A very substan­
tial number of Negro junior and senior high school 
students reside in sections of Arlington County not 
within the Hoffman-Boston Attendance Area, all of 
whom are assigned to the school (predominantly white) 
nearest their residences. Likewise, Negro students at­
tending elementary schools residing in various sections 
of the county are assigned to the schools (predomi­
nantly white) nearest their homes.

The ruling with respect to defendants’ motion to dissolve 
was that “ there is no further justification for the injunc­
tion of July 31, 1956” (165a). The court relied upon Tobin



8

v. Alma Mills, 192 F. 2d 133 (4th Cir. 1951). On March 1, 
1962 an order was filed providing, “ that the above styled 
matter be dismissed and stricken from the current docket” 
(168a). Plaintiffs filed notice of appeal on March 30, 1962 
(169a).

Questions Involved

1. Whether the School Board made a sufficient showing 
to justify dissolving a permanent injunction against racial 
discrimination in the admission of pupils to schools, where 
the school authorities had vigorously resisted the order 
and repeatedly violated it, where there had been no long 
period of obedience to the order, and where there was no 
showing of new and unforeseen conditions which made con­
tinuance of the injunction inequitable or oppressive, or that 
the defendants would be harmed in any way by its prospec­
tive operation.

2. Whether the rights of Negro pupils to public school 
education in a desegregated system under Brown v. Board 
of Education, were violated by the School Board’s con­
tinued use of attendance areas previously established on 
the basis of race, together with a policy of permitting 
pupils in a racial minority in any school to transfer out­
side of such school’s district.



9

Statement o f  Facts

The record before the Court on this appeal includes all 
of the pleadings and evidence in the trial court during the 
pendency of this litigation from 1956 to date. Much of the 
pertinent material is summarized in the various opinions 
rendered during the course of the litigation.

For the purposes of this appeal, the factual summary 
is divided into two parts. First, a summary is given of the 
facts presented by the School Board by affidavit and 
exhibits in requesting dissolution of the permanent injunc­
tion herein. Second, a summary of the evidence is pre­
sented relating to the original establishment of the Negro 
school zone lines and relating to the School Board’s “ racial 
minority rule.”

Evidence Presented by the School Board in Support of 
Its Motion to Dissolve the Injunction.

The School Board presented no witnesses in support of 
this motion.1 It did file a sworn report signed by the 
School Board president and school superintendent (87a). 
This report alleged the adoption of an ordinance by the 
County Board of Arlington County, upon recommendation 
of the School Board, electing to he bound by Virginia 
statutes authorizing local school hoards, rather than the 
State Pupil Placement Board, to assign pupils. The report 
also alleged the adoption of school admission procedures 
on March 16, 1961. The report stated that there were 
146 Negro pupils in the County now attending twelve for­
merly all-white schools; that for the 1961-62 school year, 
all but 18 of 133 Negro pupils’ requests for enrollment in 
predominantly white schools were granted; and that those

1 The Board’s present Chairman, Mrs. Campbell, in rebuttal, 
testified on the issue of the Negro school zone lines. See discussion 
of her testimony, infra, pp. 12-13.



10

not granted were denied because the applicants did not 
live in the attendance areas of the schools they sought to 
attend. The report also asserted generally that “ there now 
exists no policy, practice, custom or usage of segregating 
on the basis of race and color, any child attending the 
public schools of Arlington County (87a, et seq.).

The School Board’s assignment and admission procedures 
appear at 91a through 98a. Paragraph II of the rules 
prescribe eligibility conditions with respect to age, resi­
dence, health and time of entry into the system. Paragraph 
III provides for attendance areas to be established from 
time to time and for students to be placed in their school 
districts of residence, subject to the policy “ that no child 
shall be compelled to attend a school in which his race is 
in the minority.” Paragraph IV provides for assignment 
in various special cases relating to special classes, change 
of residence, custodial care and informal custody. Para­
graph V provides also for assignment of nonresident pupils 
on a tuition basis. Paragraph VI establishes assignment 
procedures for initial placements and appeals. Under this 
provision an administrative officer was designated to make 
assignments “ in accordance with the established policies 
of this board” not later than April 15 of the preceding 
school year, such placements to become final within ten 
days after notices have been mailed to the parents. It 
further provided that children who had not previously 
attended the public schools in the County “ shall not be 
eligible for placement in a particular school unless appli­
cation is made therefor on or before April 5 of the pre­
ceding school year.” The rule provides that the action of 
the Placement Officer in the assignment of pupils who fail 
to make such timely applications for particular schools 
“ shall be final.”  The rules provide in further detail for 
enrollment of entering students and students being pro­
moted to secondary schools.



11

Evidence Relating to the School Attendance Areas for Negro 
Schools and to the “ Racial Minority Policy.”

It was stipulated between the parties at the hearing on 
February 8, 1962, that the school attendance districts for 
the three Negro schools in the County, Hoffman-Boston, 
Langston and Drew Kemper, had not been substantially 
changed since their original establishment under the seg­
regated system, with one exception, namely, the elimina­
tion of the so-called north Hoffman-Boston district (131a- 
132a). Reference to the earlier evidence in the case, as 
described in some of the prior opinions, is helpful to an 
understanding of these zones.2

Prior to 1958, the County was divided into three high 
school districts (52a). The Washington and Lee district, 
serving approximately the northern half of the County for 
white pupils, and Wakefield district, serving the southern 
half of the County for white pupils (52a). The district of 
the Hoffman-Boston school was, prior to 1958, in two parts 
(52a) and served all Negro high school pupils in the County, 
irrespective of their place of residence. The southern por­
tion, which surrounded the school, formed an enclave within 
the Wakefield district (52a). Prior to 1958, a non-contigu- 
ous area known as the north Hoffman-Boston district was 
also considered a part of the Hoffman-Boston attendance 
area. This district was made a part of the Washington Lee 
district, which entirely surrounded.it, in 1958 (52a).

Judge Bryan had observed in his opinion of September 
23, 1957, that the “ northern Hoffman-Boston district is set 
apart apparently because the area is occupied predom­
inantly by negroes” (41a). At this point, it should be noted

2 The several school zone or attendance area maps in use during 
this litigation are in the record. The most recent maps appear as 
Plaintiffs’ Exhibits 1 through 4 at the 1962 hearing.



12

that the Langston Elementary School district is the same 
area as the old north Hoffman-Boston area (38a). Judge 
Bryan observed in his opinion of September 17, 1958 that:

The Hoffman-Boston lines were originally drawn to 
embrace an area occupied almost entirely by Negroes. 
In fact, save for a very small area known as the north 
Hoffman-Boston district, it is the only Negro residen­
tial section in the county (49a).

The few white pupils residing in the Hoffman-Boston 
district were assigned to all-white schools; the parent of 
one such pupil testified at the 1958 hearing (56a). Thus, 
the School Board’s “ racial minority policy,” as set forth in 
its rule III (92a), merely formalized the policy and prac­
tice tacitly given effect under the racially segregated dual 
system in existence prior to this litigation.

Mr. T. Edward Rutter, who became superintendent of 
schools in 1952 (17a), testified at the hearing on September 
11, 1957, that the “ Hoffman-Boston district is designated 
as a district for our colored boys and girls on the high 
school level” (21a); that there was no other district in 
Arlington County embracing Negro students at the junior 
and senior high school level (22a); that the Hoffman-Boston 
district, with its two parts, “ is based entirely upon the 
race of the student residing for school administrative pur­
poses within those districts” (22a) ; that the Negro 
school districts’ boundaries “ are determined entirely by 
reason of the fact that the Negro student resides in the 
areas that are surrounded by those boundaries” (25a-26a); 
and that white school boundaries were determined in ac­
cordance with the capacity of the schools and the geography 
(23a-24a).

At the 1962 hearing in the case, the Chairman of the 
School Board, Mrs. Campbell, testified she was a member



13

of the Board in 1949 when the attendance area maps were 
established; that the principal criteria in fixing areas were 
the capacity of the schools, the accessibility of the schools 
and the safety of the pupils (138a); that she knew of no 
changes of the south Hoffman-Boston school district since 
that time (138a); that the School Board in the spring of 
1961 had public hearings on the attendance area maps and 
that no one at the meeting objected to the Hoffman-Boston 
attendance area (140a); and that the School Board’s 
policy was to change as few school zone lines as possible 
(141a).

On cross-examination Mrs. Campbell stated that prior to 
1^9 the superintendent had all the district lines “ in his 
head” (142a); that in 1949 Hoffman-Boston school “was 
the school that was the high school for the Negroes in the 
segregated system”, whether they lived within the lines 
drawn around that school or not (144a); and that the north 
and south Hoffman-Boston districts were the areas in 
which the majority, if not all, the Negroes in Arlington 
County resided at that time (143a-144a).

It was stipulated between the parties that there are only 
Negro classroom teachers assigned to Hoffman-Boston, 
Langston and Drew Kemper Schools, and only white teach­
ers assigned to the other schools in the system, with some 
few exceptions for certain special teachers (136a).



14

A R G U M E N T

I.
The School Board Made No Showing Sufficient to 

Justify Dissolving the Permanent Injunction.

The defendant School Board asserted in its motion to 
dissolve the injunction that its prior practice of segregat­
ing white and Negro pupils in the public schools “ no longer 
exists” and that a continuation of the injunction “ is not 
necessary to protect the rights of the plaintiffs and those 
similarly situated” ; that the continuing injunction “ puts 
the defendants under a threat of contempt with respect to 
administrative decisions and actions” ; and that the federal 
court’s continuing jurisdiction was an “ unnecessary and 
undesirable interference by the Federal Government with 
officials of the sovereign State of Virginia . . . ” (85a-86a).

The court below concluded that there was “ no further 
justification for the injunction of July 31, 1956” stating 
its opinion that the schools were being administered on a 
nondiscriminatory basis and that there was no evidence that 
defendants “ will not continue to operate the public schools 
in accordance with the governing constitutional principles” 
(166a-167a). The court below cited and quoted from the 
principal case relied upon by the Board, i.e., Tobin v. Alma 
Mills, 192 F. 2d 133 (4th Cir. 1951), cert, denied 343 U. S. 
933 (1952), to the effect that an injunction may be modified 
or dissolved “when conditions have so changed that it is no 
longer needed or as to render it inequitable.”

Plaintiffs submit that there was no justification for dis­
solving the injunction. At the outset, it should be noted 
that the only changed condition relied upon by the defendant



15

in support of the motion is a claim of obedience to the 
injunction. The only claim of “hardship,” from the con­
tinuing injunction, is the contention that the Board is in 
danger of contempt if it violates its provisions.

It is submitted that this showing is completely inadequate 
to meet the requirements for the dissolution or modifica­
tion of an injunction established by the leading case on the 
subject, United States v. Swift & Co., 286 U. S. 106, 52 
S. Ct. 460, 76 L. ed. 999 (1932). Indeed, the School Board’s 
showing does not even approach that made in Tobin v. 
Alma Mills, supra, upon which it relies.

In United States v. Swift & Co., supra, the Supreme 
Court reversed an order which modified an earlier consent 
decree against certain antitrust violations by eliminating 
some of the original provisions. The Court said with re­
spect to the power to modify that “ a continuing decree of 
injunction directed to events to come is subject always 
to adaptation as events may shape the need,” and that 
this was so “whether the decree has been entered after 
litigation or by consent” (286 IT. S. at 114). But the Court 
held that, notwithstanding the power to modify, there was 
no justification for doing so in the circumstances of the 
case. Mr. Justice Cardozo’s opinion has since that time 
generally been regarded as stating the rule to be applied 
in considering requests for modification or dissolution of 
injunctions. He wrote:

There is need to keep in mind steadily the limits 
of inquiry proper to the case before us. We are not 
framing a decree. We are asking ourselves whether 
anything has happened that will justify us now in 
changing a decree. The injunction, whether right or 
wrong, is not subject to impeachment in its application 
to the conditions that existed at its making. We are 
not at liberty to reverse under the guise of readjusting.



16

Life is never static, and tlie passing of a decade has 
brought changes to the grocery business as it has to 
every other. The inquiry for us is whether the changes 
are so important that dangers, once substantial, have 
become attenuated to a shadow. No doubt the defen­
dants will be better off if the injunction is relaxed, but 
they are not suffering hardship so extreme and unex­
pected as to justify us in saying that they are the 
victims of oppression. Nothing less than a clear show­
ing of grievous wrong evoked by new and unforeseen 
conditions should lead us to change what was decreed 
after years of litigation with the consent of all con­
cerned (286 U. S. at 119).

Applying the standards of the Swift ease to this one, 
it is obvious that there have been no such changes in the 
Arlington public schools that the danger of racial dis­
crimination in the assignment of pupils “have become at­
tenuated to a shadow.” Likewise, there is no claim that the 
school authorities are “ suffering hardship so extreme and 
unexpected as to justify us in saying that they are victims 
of oppression.” The Board makes no claim or showing of 
hardship at all, either expected or unforeseen. There is no 
showing even approaching “ grievous wrong evoked by new 
and unforeseen conditions.” There is no claim of any “ new 
and unforeseen conditions.” The only claim of change is 
the Board’s obedience to the injunction.

Thus, measured by the Swift case, supra, the Board’s 
showing plainly falls far short. The continuing vitality of 
the Swift doctrine is readily apparent from the subse­
quent history of that litigation, not to mention the many 
times the case has been followed by various courts. The 
decree in Swift which was restored by the Supreme Court’s 
1932 decision remained in force without further litigation



17

and with obedience to its terms until 1956 when the defen­
dants began a new attempt to have modified the original 
order entered in 1920. This new challenge culminated with 
the decision in United States v. Sivift d  Co., 189 F. Supp. 
885 (N. D. 111. 1960), where the District Court again re­
fused to delete any of the provisions of the injunction. 
This refusal was made despite the defendants’ claims of sub­
stantial changes in its business over the 40 year period. 
The court held that the defendants failed to sustain their 
burden of showing that the danger of violation had become 
“ attenuated to a shadow” because of these changed cir­
cumstances, or that there was proof of any unforeseen 
hardships which could justify the requested modification. 
The United States Supreme Court promptly affirmed this 
decision on motion, Swift <& Co. v. United States, 367 U. S. 
909 (1961). It is clear from the long history of the Swift 
case that, notwithstanding the passage of as much as 40 
years, the burden remains upon the party enjoined to jus­
tify dissolution of an injunction by an extraordinary show­
ing, and that the burden does not shift to require the party 
who obtained it to prove that the injunction is still needed.3

It is submitted that the School Board’s reliance upon 
Tobin v. Alma Mills, 192 F. 2d 133 (4th Cir. 1951), is mis­
placed. That was a suit by the Wage and Hour Administra­
tor against a textile concern under the Fair Labor Stand­
ards Act. A consent injunction restraining certain viola­
tions of the Act was entered in 1940. The defendants sought

3 Note the related doctrine stated in United States v. Parke Davis 
& Co., 362 U. S. 29; 48 (1960), where the Court held that a cessa­
tion of illegal activity, apparently timed to anticipate the lawsuit, 
does not justify denying injunctive relief. On remand the District 
Court again denied all relief on defendant’s showing that it had 
abandoned its illegal policy. The Government appealed only from 
the order denying an adjudication as to past violations and its 
appeal was upheld. United States v. Parke Davis <& Co., 365 U. S. 
125, 196.



18

and the trial court granted an order dissolving the injunc­
tion ten years after the original order. This Court held 
that the injunction was properly dissolved since there had 
been good faith compliance for a period of ten years and 
there was thus no reason to fear further violations, and 
since the injunction was harming the defendant by ham­
pering the sale of its owners’ stock.

Appellants submit that, notwithstanding the apparent 
breadth of this Court’s holding in Tobin v. Alma Mills, 
supra, a long period of obedience to an injunction is not, 
without more, a sufficient change of circumstances to jus­
tify its dissolution. Indeed, this is the necessary implication 
of the Supreme Court’s affirmance of the refusal to modify 
the Swift injunction 40 years after its entry following 29 
years’ obedience by the defendant. Swift & Co. v. United 
States, 367 U. S. 909 (1961). See Walling v. Harnischfeger 
Corp., 242 F. 2d 712 (7th Cir. 1957), stating “ We would not 
approve trading Harnischfeger’s sustained obedience for 
a dissolution of the injunction. Compliance is just what the 
law expects.” 4 See also Goldberg v. Ross, 300 F. 2d 151 
(1st Cir. 1962).

However, it is unnecessary in this case to challenge this 
Court’s holding in Tobin v. Alma Mills, supra, because the 
key elements present in that case are absent in this one. 
Here there is neither a long period of sustained obedience 
to the injunction, nor any showing of harm to the defen­
dants.

The School Board’s claim of obedience to the injunction of 
July 31, 1956, begins only with its resolution of May 16, 
1961, which adopted an assignment program to become

4 Affirming 142 F. Supp. 202 (E. D. Wise. 1956), the trial court 
relied in part on the fact that no testimony was offered to support 
the motion to dissolve.



19

effective in September 1961 (just two months before the 
motion to dissolve was filed). The trial court found viola­
tions of its order as recently as September 1960 (80a, et 
seq.). The School Board’s long prior history of disobedience 
to the July 31, 1956, injunction is clearly revealed in the 
series of opinions and orders from 1956 to 1960, during 
which the courts were compelled to strike down a sophisti­
cated series of evasive schemes and maneuvers designed 
to frustrate the original desegregation order (35a-84a; 
see also 240 F. 2d 59 (4th Cir. 1956); 252 F. 2d 929 (4th 
Cir. 1958); 263 F. 2d 226 (4th Cir. 1959); 264 F. 2d 945 
(4th Cir. 1959)).

Thus, the most the School Board can claim is compliance 
during part of one school year prior to the order dissolving 
the injunction. This is in sharp contrast to Tobin v. Alma 
Mills, supra, where there was compliance for ten years and 
there had been no history of attempts to evade the decree. 
This case is more like the Swift case, where there were 
repeated attempts to defeat the decree prior to 1932 (see 
286 U. S. 112-113).

Again, unlike Tobin v. Alma Mills, supra, the defendant 
in this case has made no showing of harm from the con­
tinuance of the injunction in force. The School Board 
made no effort to establish any difficulty or hardship re­
sulting from the injunction that could be remotely com­
parable to Alma Mills’ difficulty in selling its stock. The 
School Board did not present evidence to show a single 
instance in which the injunction has hampered its running 
of the schools, or even any theory to show how the general 
injunction against racial discrimination could harm the 
School Board.

Indeed, because of the history of this case, there is not 
even any realistic basis for the School Board to fear



2 0

punishment for contempt, at least with respect to any ad­
ministrative practice not previously specifically condemned 
as discriminatory. This is true because the trial court 
adopted, and this Court specifically approved, a practice of 
granting- supplementary injunctions specifically advising 
the Board as to its duties, rather than citing the Board for 
contempt when it failed to follow the original decree. 
School Board of Arlington County v. Thompson, 252 F. 2d 
929, 930 (4th Cir. 1958). The trial court continued to issue 
similar orders rather than contempt citations on numerous 
occasions from 1958 to 1960, where the School Board was 
found to be violating the general injunction (45a~84a).

Finally, in addition to any generalized apprehension of 
future violations which the Board’s past violations might 
justify, the School Board’s own presentation in support of 
the motion to dissolve reveals, at the very least, a specific 
basis for apprehension of future violations. The Board’s 
recently adopted assignment policy expressly recognizes 
race as a basis for determining school assignments in cer­
tain cases. The practice of assigning students by attendance 
areas is made “ Subject to the School Board policy that no 
child shall be compelled to attend a school in which his race 
is in the minority” (92a).

Appellants argue, infra in this brief, that this policy is 
an unconstitutional present violation of the injunction, 
designed to preserve racial segregation. But, without re­
gard to the decision of that issue, the existence of such 
a policy clearly militates against dissolving the injunction. 
In other words, even if this policy does not represent a 
present violation of the Negro pupils’ constitutional rights, 
as appellants argue, the existence of the policy does pre­
sent a firm basis for apprehending future violations. While 
the courts have divided with regard to the validity of such



21

school board policies,5 even those courts which have ap­
proved policies granting transfers to pupils in a racial 
minority have done so only while expressing warnings of 
one kind or another against misuse of such policies to pre­
serve segregation, and while specifically referring to the 
retention of jurisdiction over the case as a mitigating safe­
guard. See Kelley v. Board of Education of City of Nash­
ville, 270 F. 2d 209, 230 (6th Cir. 1959); Goss v. Board of 
Education of City of Knoxville, 301 F. 2d 164, 168 (6th 
Cir. 1962); Maxwell v. Board of Education of Davidson 
County, 301 F. 2d 828, 829 (6th Cir. 1962). Indeed, there 
is substantial reason to believe that retention of jurisdic­
tion was a factor in the Supreme Court’s denial of certiorari 
in the Kelley case, supra, 361 IT. S. 924. Although, as is 
customary, the majority did not indicate its reasoning, 
a dissenting memorandum by the Chief Justice and Jus­
tices Douglas and Brennan significantly stated that they 
would have granted certiorari “ although cognizant that the 
District Court retained jurisdiction of the action during 
the transition” (361 U. S. 924). The implication of this 
statement as to the majority’s basis for decision seems 
plain.6

In similar fashion, appellants’ argument that the School 
Board is unconstitutionally continuing to enforce school 
attendance areas for certain all-Negro schools which were 
originally established on a racial basis as part of the seg­
regated system, is another claimed continuing violation

5 Compare Kelley v. Board of Education of City of Nashville, 
270 F. 2d 209 (6th Cir. 1959), with Boson v. Rippy, 285 F. 2d 43 
(5th Cir. 1960).

6 Compare decisions in which this Court has approved assign­
ment practices on a temporary basis relying on a trial court’s 
retention of jurisdiction to assure corrective measures in the future. 
Hill v. School Board of City of Norfolk, 282 F. 2d 473 (4th Cir. 
1960) ; Dodson v. School Board of City of Charlottesville, 289 F. 2d 
439 (4th Cir. 1961).



22

which undermines the basis for the order dissolving the 
injunction. This claim also appears in Part II of the argu­
ment, below.

Finally, the finding by the court below that—“All of the 
facilities and activities under the control of the Arlington 
County School Board are being administered on a non- 
discriminatory basis— educational, athletic, dramatic, so­
cial”—was contrary to the admitted fact that the school 
authorities continue to prohibit desegregated social events 
on school property under a resolution adopted in 1959, 
which was acknowledged to be still in effect (119a-121a). 
Similarly the continuing assignment of teachers on a racial 
basis represents a failure to effectuate a complete transi­
tion to a nondiscriminatory system of schools.

In summary, it is submitted that the court below erred 
in dissolving the injunction where there has been no long- 
period of obedience, where there was no showing of harm 
to the defendants from the continuance of an injunction, 
where there was no showing of unforeseen new conditions, 
where the defendant has previously resisted the injunction 
by evasive schemes for several years after its entry, and 
where there were present continuing violations of plaintiffs’ 
rights (or at the very least, plain reasons to apprehend 
such future violations). Obviously, these are some of the 
considerations anticipated by the Supreme Court in the 
“ School Segregation Cases” when it gave specific direc­
tion to the District Courts that “ During this period of 
transition, the courts will retain jurisdiction of these cases” . 
Brown v. Board of Education, 349 U. S. 294, 301 (1955). 
Indicative of the acceptance of such direction is the express 
provision retaining jurisdiction in the injunctive orders 
heretofore entered in this ease and almost uniformly in 
other similar cases.



23

II.
The School Board’ s Continued Use o f  School Atten­

dance Districts Established for  All-Negro Schools on the 
Basis o f  Race, Together With a Policy o f  Permitting 
Pupils in a Racial Minority in Any School Area to Be 
Assigned or Transferred Out o f  Such District on the 
Basis o f  Race, Unlawfully Recognizes Race as a Factor 
in Public School Assignments and Serves to Perpetuate 
Racial Segregation.

The court below held that the Arlington County school 
system is now operated on a racially nondiseriminatory 
basis and rejected plaintiffs’ objections to the Board’s 
continued use of attendance districts established for the 
all-Negro schools on the basis of race during the era of 
complete segregation, and to the policy of transferring 
pupils in a racial minority outside their school districts 
on request.

First, with respect to the so-called “ racial minority rule” 
expressed in paragraph III of the assignment rules (92a), 
plaintiffs submit that the decision of the court below is 
contrary to the applicable principles established by the 
Supreme Court, 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). The court below recognized the conflict 
between the views of the Fifth and Sixth Circuit Courts of 
Appeals on this subject as expressed in Boson v. Rippy, 
supra, and Kelley v. Board of Education of City of Nash­
ville, supra, and determined to follow the Sixth Circuit’s 
views. When the court rejected plaintiffs’ argument that 
it was discriminatory to require Negro children residing 
in the all-Negro Hoffman-Boston attendance area to trans­
fer to other schools while white children in the same area



24

were permitted to transfer out, it said “ a similar condition 
in converse obtains in other attendance areas, where resi­
dent Negro children are permitted to transfer to Hoffman- 
Boston while certain children are restricted to the school 
located within their residential attendance area” (163a). 
The court stated further: “ To prohibit the right of transfer, 
granted to both Negro and white pupils under like con­
dition, would be to require assignment of all pupils solely 
on the basis of residence, resulting in the enforced integra­
tion of all public schools. It is not believed that the Con­
stitution or the cases cited so require” (164a). The court 
also relied upon the decision by District Judge Paul in 
the Charlottesville, Va. case on December 18, 1961, which is 
now under review in this Court sub nom. Dillard v. School 
Board of City of Charlottesville, 4th Cir. No. 8638.

Plaintiffs submit that the School Board’s policy is pat­
ently discriminatory in that it grants transfers to white 
pupils living in an attendance district, while denying trans­
fer to Negro pupils in the same area. The so-called “ con­
verse discrimination” against whites living in predominantly 
white areas (where Negroes are permitted to transfer out 
and whites are not), does not balance out to result in a 
nondiscriminatory system. This symmetrical argument to 
support inequality in treatment based on race does not 
conform to the constitutional requirement that every per­
son must be granted equal rights and privileges without 
regard to race or color. The defendants’ theory that the 
denial of a valuable privilege to transfer out of their area 
to the predominantly Negro district is justified because 
there is similar treatment based on race for white children 
in predominantly white areas, ignores the personal nature 
of the Fourteenth Amendment rights. See Shelley v. 
Kraemer, 334 U. S. 1, 22 (1948). “ Equal protection of the 
laws is not achieved through indiscriminate imposition of 
inequalities.” {Ibid.)



25

Furthermore, the so-called “ racial minority policy” does 
not satisfy the School Board’s duty as expressed in Cooper 
v. Aaron, 358 U. S. 1, 7 (1958), “ to devote every effort 
toward initiating desegregation • and bringing about the 
elimination of racial discrimination in the public school 
system.” It is plainly evident that to the extent that the 
“ racial minority rule” is used at all, it will work to limit 
desegregation and to preserve the pre-existing pattern of 
segregation. Obviously, transfers of white children from 
Negro to white areas and of Negro children from white to 
Negro areas will have this effect. It is equally clear that 
the rule does not afford any uniform plan of free choice 
since it does not provide for transfers to promote desegre­
gation of pupils in a racial majority in a given area. It is 
submitted that this provision should be held invalid in ac­
cordance with the decision of the United States Court of 
Appeals for the Fifth Circuit in Boson v. Hippy, 285 F. 2d 
43, 48 (5th Cir. 1960), where it was said “ classification ac­
cording to race for purposes of transfer is hardly less un­
constitutional than such classification for purposes of orig­
inal assignment to a public school.”

The School Board’s continued use of school attendance 
districts established on the basis of race prior to the 
Brown decision, works in conjunction with the racial minor­
ity policy to insure continuance of the all-Negro schools in 
the County as such. Under this system Hoffman-Boston, 
Langston and Drew-Kemper will remain as all-Negro 
schools. The testimony in September 1957 of then Super­
intendent of Schools T. Edward Rutter was that the bound­
aries of the attendance districts for the three all-Negro 
schools in the County were determined entirely by reason 
of the fact that the Negro students reside in the areas that 
are surrounded by those boundaries (25a-26a). The Iloff- 
man-Boston district was said by the Superintendent to be



26

“ designated as a district for our colored boys and girls on 
the high school level” (21a). There was no other district 
in the County having Negro pupils at the secondary level 
(22a).7 At the time of the 1957 hearing, the Hoffman-Boston 
Junior and Senior High School district comprised two 
areas. The southern area surrounding the school itself 
embraced the Negro residential area in the southern part 
of the County and the northern area, which was not con­
tiguous with the southern part, embraced the other major 
Negro residential section in the County (21a-22a; 49a). 
During the proceedings leading up to the September 17, 
1958 opinion of the trial court, the School Board professed 
to have abolished the so-called north Hoffman-Boston area 
(52a), and after this time it did not attempt to defend its 
assignment of pupils in this area to Hoffman-Boston on 
residential grounds. Howrever, until and including the 
term beginning in September 1960, the Board continued 
to make initial assignments of Negroes in this northern 
area to Hoffman-Boston school and to require them to meet 
special criteria in order to transfer back to the predomi- 
nantly-white schools in their zones (52a; 69a; 80a-81a). The 
present attendance area for the Hoffman-Boston school is 
still substantially identical to the Hoffman-Boston zone as 
it existed prior to 1957, except for the fact that the non­
contiguous northern section is no longer a part of the zone 
(131a-132a; 144a-145a). It is still an island or enclave 
entirely surrounded by the district of the predominantly 
white Wakefield High School.

7 The small size of Hoffman-Boston (capacity 650 Junior and 
Senior High pupils) compared with the three white High schools 
and six white Junior High schools (15.1a) confirms that Hoffman- 
Boston was planned as a part of the segregated system to accom­
modate Negro pupils (Cf. 144a). Hoffman-Boston in September 
1961 had 191 Senior High pupils and 428 Junior High pupils 
(150a).



27

The evidence in this case thus indicates clearly use of 
racially derived school zone lines and the “ racial transfer 
policy”  to preserve segregation. Thus, Negro pupils are con­
fined in an area determined on the basis of their race while 
white pupils who happen to live in such an area are per­
mitted to transfer out on the basis of their race, leaving 
the all-Negro schools completely segregated as they have 
always been. The holding of the Second Circuit in Taylor 
v. Board of Education of the City of New Rochelle, 191 
F. Supp. 181, 185; 195 F. Supp. 231 (S. D. N. Y. 1961), 
app. dismissed 288 F. 2d 600, affirmed 294 F. 2d 36 (2nd 
Cir. 1961), cert. den. 368 U. S. 940, supports the view 
that the defendants’ present policy is unconstitutional. In­
deed, this case is much stronger than that one, for in New 
Kochelle the school authorities had already abandoned the 
practice of permitting white children to transfer out of the 
Negro school area a decade before the lawsuit. The court 
held that the New Rochelle Board was nevertheless still 
bound to act to relieve the segregated situation which had 
been created by this practice and by the practice of drawing 
school zone lines on a racial basis. Here both unlawful 
conditions are still operating, and a fortiori under the 
Taylor case are invalid.

In sum, both racial classifications utilized by the County 
School Board here, i.e., in drawing school zone lines, and 
in the “ racial minority policy,” are invalid. Racial classifica­
tions have no proper place in public education and “ seg­
regation is not reasonably related to any proper govern­
mental objectives,” Bolling v. Sharpe, 347 U. S. 497 (1954).

There is no difference between the dual racial overlapping 
school zones which this Court has repeatedly condemned, 
Jones v. School Board of the City of Alexandria, 278 F. 2d 
72, 76 (4th Cir. 1960); Marsh v. County School Board of 
Roanoke County,------F. 2 d -------  (4th Cir., June 12, 1962),



and the present system of single school zones carefully 
drawn on a racial basis and administered in conjunction 
with a system of transfers based on race. Both assign­
ment arrangements result in token compliance with the 
mandate of Brown v. Board of Education, supra, while re­
taining intact, the segregated all-Negro schools previously 
established by the school authorities.

This Court’s repeated condemnation of initial school as­
signments based on race in the cases mentioned above 
should suffice to dispose of any claim of legitimacy on 
behalf of the racially inspired school zones in this ease. 
Similarly, the repeated condemnation of assignment stand­
ards which distinguish between pupils on the basis of race 
in granting transfers is sufficient to dispose of the “ racial 
minority rule” involved here. Green v. School Board of
City of Roanoke,------ F. 2 d -------  (4th Cir., May 22, 1962;
slip opinion p. 11, and cases cited).

It is submitted that Briggs v. Elliott, 132 F. Supp. 776 
(E. D. S. C. 1955), is not contrary to the appellants’ posi­
tion, for this is certainly not a case of “ voluntary” segrega­
tion for those Negro pupils who are compelled to remain in 
the all-Negro schools while their white neighbors are per­
mitted to transfer out. In any event, the District Court’s 
opinion in Briggs v. Elliott, supra, cannot take precedence 
over the Supreme Court’s expression that school authorities 
do have an affirmative duty to “ initiate desegregation” 
(Cooper v. Aaron, 358 U. S. 1, 7 (1958)), and “ to effectuate 
a transition to a racially nondiscriminatory school system. 
During this period of transition, the courts will retain juris­
diction of these cases.” (Brown v. Board of Education, 349 
U. S. 294, 301 (1955)).



2 9

CONCLUSION

W herefore, it is respectfully submitted that the judg­
ment of the court below should be reversed and the cause 
remanded with directions that the court reinstate the in­
junction of July 31, 1956, retain jurisdiction of the cause 
for further appropriate proceedings, and take appropriate 
action to insure a complete and effective transition from 
a racially segregated to a nonsegregated school system.

Respectfully submitted,

Jack Greenberg

James M. Nabrit, III 
10 Columbus Circle 
New York 19, New York

Otto L. T ucker

901 Princess Street 
Alexandria, Virginia

S. W. T ucker

214 East Clay Street 
Richmond, Va.

F rank D. Reeves

1343 H Street, N.W. 
Washington 5, D, C.

Attorneys for Appellants



1

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