County School Board of Arlington County, VA v. Thompson Brief and Appendix of Appellees

    BRIEF AND APPENDIX OF APPELLEES

In the
UNITED STATES COURT OF APPEALS 

for the Fourth Circuit

No. 7543

COUNTY SCHOOL BOARD O F ARLINGTON 
COUNTY, V IRG IN IA , AND T. ED W ARD RU TTER, 
D IV ISIO N  SU P E R IN T E N D E N T  O F SCHOOLS OF 

T H E  COUNTY OF ARLINGTON, V IRG IN IA , 
Appellants,

v.

CLARISSA S. TH O M PSO N , ET AL., 
Appellees.

Appeal From The United States District Court For The 
Eastern District o f Virginia, Alexandria Division

E d w in  C, B row n ,
1200 Cameron Street, 
Alexandria, Virginia.

O liver  W. H il l ,
118 East Leigh Street,
Richmond 19, Virginia.

S pottswood W . R o bin so n , III, 
623 North Third Street, 
Richmond 19, Virginia.

Counsel fo r Appellees.

The Press of Lawyers Printing Co., Inc., Richmond 7, Va.



SU BJECT IN D EX
Page

Brief On Behalf Of The Appellees ......................... ..........  1

Statement Of The C ase .......................................................  1

Questions Involved................... .................................... .......  3

Statement Of The Facts .......................................... ..........  4

Argument ..............................................................................  4

I. The Pupil Placement Act Did Not Justify Ap­
pellants In Refusing To Admit The Minor Ap­
pellees To The Schools To Which They Applied.... 4

II. The Pleadings And Proof W ere Sufficient To 
Justify The District Court In Granting The Ap­
pellees The Relief S o u g h t....... .......    9

III. The District Court Properly Exercised Its Dis­
cretion In Fixing September 23 As The Effective 
Date Of Its Injunction ..........................................   16

IV. The Proceedings In The District Court Were
Consistent W ith The Federal Rules Of Civil Pro­
cedure And The Rules Of The District C o u rt...... 19

Conclusion...........................  ...................... ..........................  25

TA BLE OF C ITA TIO N S 

Cases

Allen v. County School Board of Prince Edward 
County, F.2d (C. A. 4th, No. 7463, No­
vember 11, 1 9 5 7 )........................................ .........18, 22, 23

American Brake Shoe & Foundry Co. v. Interborough 
Rapid Transit Co., 3 F. R. D. 162 (S. D. N. Y. 
1943) ................................................................. .......

Anderson v. Brady, 5 F. R. D. 85 (E. D. Ky. 1945)
23

20



Page
Brown v. Board of Education, 347 U. S. 483 (1954) .... 17 

Brown v. Board of Education, 349 U. S. 294 (1955) .... 24

Carson v. Warlick, 1956, 4 Cir., 238 F.2d 724 ..............  18

County School Board of Arlington County v. Thomp­
son, 240 F.2d 59 (C. A. 4th 1956), cert, denied 353 
U. S. 910 (1957 ) ................................................ 2 ,7 , 16, 18

County School Board of Chesterfield County v. Free­
man, 171 F.2d 702 (C. A. 4th 1948) ......................... 17

DeFebio v. County School Board of Fairfax  County,
[ Va. , December 2, 1957] ...........................  7

Lane v. Wilson, 306 U. S. 268 (1939) ...........................  17

Orleans Parish School Board v. Bush, 5 Cir., 242 F.2d 
156, cert, denied U. S. , 25 L. W. 3374 .....  5

Quong W ing v. Kirkendall, 223 U. S. 59 (1912) .......... 17

Richmond v. Deans, 37 F.2d 712 (C. A. 4th 1930), aff’d 
281 U. S. 704 (1930) ..........................................

School Board of Newport News v. Atkins, 246 F.2d 
325 (C. A. 4th 1957), cert, denied U. S.
78 S. Ct. (Adv.) 83 (1957) ............................... .........

Tate v. Department of Conservation & Development,
231 F.2d 615 (C. A. 4th 1956), cert, denied 352 
U. S. 838 (1956) .............................................................

Wilson v. City of Paducah, 100 F. Supp. 116 (W  D 
Ky. 1951) .........................................................................’

Wolpe v. Poresky, 79 App. D. C. 141, 144 F.2d 505 
(1944), cert, denied 323 U. S. 777 (1944)

Statutes

Va. Code (1950), §§ 22-232.1 to 22-232.16.................. ;

Chapter 68, Acts of Assembly of Virginia, Extra Ses­
sion 1956 8



Rules
Page

Federal Rules of Civil Procedure, Rule 6 (d ) ................  20

Federal Rules of Civil Procedure, Rule 83 .................. . 21

Rules of the United States District Court for the 
Eastern District of Virginia, Rule 13 .... ............... . 21

IN D EX  TO A PP E N D IX  

Excerpts From Reporter’s Transcript

Robert A. Eldridge, Jr. ___ ____ ______ ______ ____ __  1

Dorothy P. Nelson ..................................... ...... ......... .......  5

A rthur M. Costley, S r..................................... ............ .......  10

T. Edward Rutter .................................. ........... ........... . H



In the
UNITED STATES COURT OF APPEALS 

for the Fourth Circuit

No. 7543

COUNTY SCHOOL BOARD OF ARLINGTON 
COUNTY, V IRG IN IA , AND T. ED W ARD RU TTER, 
D IV ISIO N  S U P E R IN T E N D E N T  OF SCHOOLS OF 

T H E  COUNTY OF ARLINGTON, VIRG IN IA , 
Appellants,

v.

CLARISSA S. TH O M PSO N , E T  AL., 
Appellees.

Appeal From The United States District Court For The 
Eastern District o f Virginia, Alexandria Division

BRIEF ON BEHALF OF THE APPELLEES

ST A TEM EN T OF T H E  CASE

On July 31, 1956, the District Court entered a decree in 
this action enjoining racial segregation in the public schools 
of Arlington County and making the injunction effective as 
to elementary schools at the commencement of the second



2

semester of the 1956-57 school session and effective as to 
secondary schools at the commencement of the regular 1957- 
58 session (R. 179). On appeal, this Court affirmed the de­
cree, County School Board o f Arlington County v. Thomp­
son, 240 F.2d 59 (1956), and the Supreme Court of the 
United States denied a writ of certiorari to review that de­
cision. 353 U. S. 910 (1957).

The then plaintiffs in the action thereafter filed in the 
District Court a motion seeking modification of the decree 
by provisions (a) making the injunction/ suspended by the 
appeal, effective as to elementary schools at the beginning of 
the regular 1957-58 session and (b) specifying that the re­
quirement, written into the decree, that administrative rem­
edies be exhausted prior to further application to the Court, 
did not necessitate compliance with the requirements sought 
to be made by the Virginia Pupil Placement Act, Va. Code 
(1950), §§ 22-232.1 to 22-232.16. (App. 1)*. The District 
Court granted the first request but considered the second 
prematurely advanced (App. 2-4), pointing out, however, 
that “the July 31, 1956 decree recognizes only an adequate 
administrative remedy—one that is efficacious and expedi­
tious, even apart from any question of its constitutionality. 
Pursuit of an unreasonable or unavailing form of redress is 
not exacted by the decree.” (App. 3-4).

On September 9, 1957, three of the Negro plaintiffs and 
their parents filed a motion for further relief (App. 5-6). 
On the same day, four other Negro children and their pa-

* References “App. ----- ” are to the appendix of the appellants upon this
appeal. In an appendix hereto, appellees print additional excerpts from the 
transcript of testimony. References to the record appear “R. - ”, those to
the transcript “T r . ----- ”, those to exhibits ‘ Ex. -----



3

rents filed a motion to intervene, accompanied by a proposed 
complaint in intervention (App. 6-10). Each alleged timely 
application for admission for the 1957-58 session to a pub­
lic school theretofore attended by white children only and 
the denial of such admission on the ground that the Pupil 
Placement Act deprived appellants of authority to so admit 
(App. 5, 9), and sought a further decree specifically direct­
ing appellants to admit these children to the schools to which 
they respectively applied (App. 6, 10). On the same day, 
the District Court entered an ex parte order granting inter­
vention and filing the intervention complaint (App. 12), and 
another fixing September 11 as the date for hearing (App 
11- 12).

At the hearing, appellants filed motions (a) to continue 
the hearing on the motion for further relief (App. 15-16),
(b) , to vacate the order granting intervention (App. 16-17),
(c) to dissolve the injunction of July 29, 1957 (R. 235-236), 
and (d) to dismiss the motion for further relief (App. 13- 
15). The District Court overruled the first three motions 
(App. 39-40) and, on September 14, made findings of fact 
and conclusions of law (App. 18-25) and entered a supple­
mental injunction decree in effect overruling the fourth mo­
tion and granting the seven children the relief sought (App 
26-27).

Q U ESTIO N S INVOLVED

1. Did the Pupil Placement Act justify appellants in 
refusing to admit the minor appellees to the schools to which 
they applied?

2. Were the pleadings and proof sufficient to justify the 
District Court in granting appellees the relief soug'ht?



4

3. Did the District Court abuse its discretion in fixing 
September 23 as the effective date of its injunction?

4. Were the proceedings in the District Court violative 
of the Federal Rules of Civil Procedure, or the Rules of the 
District Court?

STA TEM EN T OF T H E  FACTS

In appellees’ view, the statement of facts submitted by 
appellants is argumentative and omits vital factors estab­
lished by the evidence. Since, however, the additional facts 
are so interrelated to the decision of the legal issues, com­
plete statements of the facts as to specific matters are, for 
convenience, made in connection with the appropriate por­
tions of the argument, and, to avoid repetition, are omitted 
here.

ARGUM ENT

I
T h e  P u p il  P la c em en t  A ct D id  N ot J u st ify  
A ppe ll a n t s  I n R e f u s in g  T o A d m it  T h e  M in o r  
A ppe ll e e s  T o T h e  S chools T o W h ic h  T h ey

A p p l ie d .

A

This appeal presents the third occasion upon which the 
Virginia Pupil Placement Act, Va. Code (1950), §§22- 
232.1 to 22-232.16, is asserted as a basis for resistance to 
realization of the right of qualified applicants to nonsegre- 
gated school assignments. When the Act was first here, 
School Board of Newport News v. Atkins, 246 F. 2d 325 
(C. A. 4th 1957), this Court ruled that applicants were not



5

required to pursue the administrative remedies it prescribed 
because

. . this statute furnishes no adequate remedy to 
plaintiffs because of the fixed and definite policy of the 
school authorities with respect to segregation and be­
cause of the provisions of chapter 68 of the Acts of the 
E xtra Session, which provide for the closing of schools 
and withdrawal therefrom of state funds upon any de­
parture from this policy in any school. Orleans Parish 
School Board v. Bush, 5 Cir. 242 F. 2d 156, 162, cert.
den. 25 L. W. 3374, ............  U. S .............. (at pp.
326-327).

This decision the Supreme Court of the United States re­
fused to review. School Board of Newport News v. Atkins, 
............U. S................, 78 S. Ct. (Adv.) 83, No. 361, Octo­
ber 21, 1957). Upon the second such occasion, Allen v.
County School Board of Prince Edward C om ity,....... F. 2d
........ (C. A. 4th, No. 7463, November 11, 1957), this Court
again stated that “the Pupil Placement Act provides no ade­
quate' administrative remedy.” And in the instant case the 
District Court ruled that the Act provided appellants no de­
fense against the relief sought. It said :

“The procedure there prescribed is too sluggish and 
prolix to constitute a reasonable remedial process. On 
this point we also rely upon the reasoning of the Court 
of Appeals for this Circuit in School Board of the City 
of Newport News, et al. v. A tkins et al., July 13. 1957 
(App. 18-19).

" . . .  the Court finds it cannot fairly require the 
plaintiffs even to: submit their applications to the



6

[Pupil Placement] Board for school-assignment. The 
reason is that the form prescribed therefor commits 
the applicant to accept a school ‘which the Board deems 
most appropriate in accordance with the provisions’ of 
the Pupil Placement Act. Submission to that Act 
amounts almost to assent to a racially segregated 
school. But even if the form be signed ‘under protest,’ 
the petitioner would not have an unfettered and free 
tribunal to act on his request. The Board still delib­
erates, on a racial question, under threat of loss of 
State money to the applicant’s school if children of 
different races are taught there.” (App, 19-20).

We believe that the precedents established by this Court 
are dispositive of the issue raised by appellants, and that the 
District Court was clearly correct in its conclusion. While 
A tkins  involved the contention that the Act’s admini­
strative remedies must be pursued, we think that it was 
implicit in that decision that the attempted transfer of 
school assignment powers would not benefit the local school 
authorities. The provision of the Act undertaking to re­
move those powers from local school boards and to place 
them in the Placement Board was, of course, enacted legis­
lation at the time of the District Court decrees in those cases 
and at the time of the hearing and disposition of the appeals 
here. There appears to be no suggestion, either in the briefs 
or the opinions, that this displacement could be successful 
unless the remedies themselves were adequate. It seems 
quite anomalous that appellees could be deprived of their 
constitutional rights on the ground that the only agency em­
powered to grant them is an agency their remedies before 
which are inadequate to afford those rights.



/

We cannot agree with appellants in their contention that 
the issue is non-Federal in character and should await a 
definitive decision of the Supreme Court of Appeals of V ir­
ginia. It would perhaps suffice to point out that on De­
cember 2, 1957, that Court decided DeFebio v. County 
School Board of Fairfax County without ruling on the 
point raised by the appellants here. But we consider that the 
answer is even more fundamental. The provision seeking 
transfer of the enrollment authority is not only a part of a 
statute containing no severability clause, but is also inex­
tricably bound to the remedies themselves. Indeed, the point 
seems but the resurrection in slightly new form of the same 
argument that was unavailing in the A tkins  and case. 
We do not have the simple question whether the state has 
power to transfer the admission power from schools boards 
to a central agency, but are again faced with the old question 
whether these applicants are to be remitted to a procedure 
before an agency that could not afford the relief to which 
they are legally entitled. As we understand, this insistance 
upon a state statutory bar to the exercise of a Federal right 
necessarily presents a Federal question.

B

The rights of Arlington children to nonsegregated school­
ing were judicially established prior to the enactment of the 
Pupil Placement Act. Upon the first appeal in this action, 
County School Board of Arlington County v. Thompson, 
240 F. 2d 59 (1956), this Court had under review the de­
cree whereby this was accomplished. The District Court 
then provided:

“. . . it is further Adjudged, Ordered and Decreed 
that effective at the times and subject to the conditions



8

hereinafter stated, the defendants, their successors in 
office, agents, representatives, servants and employees 
be, and each of them is hereby, restrained and enjoined 
from refusing on account 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 admission to, and enrollment and educa­
tion in, such school.” (R. 181).

As the Court knows, it was at the 1956 extra session of 
the General Assembly that the Pupil Placement Act was 
passed. It did not become law until the latter part of De­
cember, 1956. Thus, as the District Court stated:

“It must be remembered that we are viewing the Act 
in a different frame from the setting in which it was 
tested by the Court of Appeals. The Act was then 
appraised as an administrative remedy which had to 
be observed before the persons aggrieved could seek a 
decree of judicial relief. Now the Act is measured 
against the enforcement of a decree already granted. 
It is, too, a decree which was passed before the adoption 
of the Placement Act and bears the approval of the 
final courts of appeal.” (App. 19).

We submit that the prohibitions of the injunction could 
not be avoided by the simple expedient of an undertaking to 
transfer the assignment power from the school board to 
the Placement Board. We think that the District Court 
was eminently correct in its conclusion in this regard:

“The court must overrule the claim of the County 
School Board and Superintendent that they should not 
be held to answer for the denial of admittance to the



9

plaintiffs. In this they urge that the Placement Board 
, had sole control of admissions—that the School Board 

and Superintendent had been divested by the Act of 
every power in this respect. As just explained, the 
Placement Act and the assignment powers of the Place­
ment Board are not acceptable as regulations or rem­
edies suspending direct obedience of the injunction. In 
law the defendants are charged with notice of these in­
firmities in the Board’s authority. Actually the plain­
tiffs were denied admission by the defendants’ agents— 
the school principals—-while the defendants had the 
custody and administration of the schools in question.

“Hence, the refusal by the defendants, immediately 
or through their agents, to admit the applicants cannot 
here be justified by reliance upon the Placement Board. 
The defendants were imputable, also, with knowledge 
that the injunction was binding on the Placement 
Board. The latter was the successor to a part of the 
School Board’s prior duties; as a successor in office to 
the School Board, the Placement Board is one of those 
specifically restrained by the injunction.” (App. 20).

See also Tate v. Department o f Conservation & Develop­
ment, 231 F.2d 615 (C. A. 4th 1956), cert, denied 352 U. S 
838 (1956).

II

T h e  P leadings A nd P roof W ere S u f f ic ie n t  T o 
J u st ify  T h e  D istr ic t  Court I n  Gr a n t in g  

A ppellees  T h e  R e l ie f  S o u g h t .

The motion for further relief and the complaint in inter­
vention each alleged that the children involved made timely



10

application to appellants for admission for the 1957-58 
school session to a public school in the county theretofore 
maintained for and attended by white children only; that 
each such child was denied admission to such schools on 
the ground that the Placement Act deprived appellants of 
authority to admit such children to such schools; and that 
defendants denied each such child who had not applied to 
the Placement Board for assignment admission to any pub­
lic school in the county (App. 5, 9). Each further alleged 
that it would have been futile for any such child to apply 
to the Placement Board in an effort to obtain a racially non- 
segregated education (App. 5-6, 9-10). These allegations, 
hardly disputed by appellants, are fully sustained by the evi­
dence, and both allegation and proof, viewed in the light of 
their factual antecedents, establish a deprivation of appel­
lees’ constitutional rights solely on the basis of their race.

A

Arlington County maintains 4 schools for Negroes (Tr. 
111-112, 113, 114) and more than 45 for whites (T r. 114- 
115). Prior to the current school session, the school au­
thorities had formulated boundaries of the areas, denomi­
nated “districts,” to be respectively served by the various 
schools, and admission to each school was restricted to 
pupils residing in the district served by that school and, of 
course, was further restricted by the practice of racial segre­
gation.

There were 3 elementary and 1 secondary school districts 
for Negroes (T r. 112-119, 123; PI. Ex. 8, 9 ). The Negro 
secondary school district was unique in its division into two 
geographical parts, not contiguous, the centers of which 
were five or six miles apart, served by a combination junior-



11

senior high school, located in the southern portion of the 
two-part district, which was and is the sole secondary facil­
ity for Negroes in the county (T r. 112-113, 117-119; Ex. 
8).

The classification of school districts as white or Negro 
was purely a matter of race (T r. 119, 123, 124), and was a 
long standing practice (T r. I l l ,  131). The boundaries of 
white school districts were fixed in terms of the capacity of 
school buildings to house a given number of children (Tr. 
119-120). To the extent to which a white school facility 
could accomodate the children in that area, the' district 
boundaries were arranged so that the white child could go to 
the school nearest his residence.

Upon the opening of schools for the current session, the 
school authorities followed instructions, issued by the Divi­
sion Superintendent to principals of the various schools in 
attempted compliance with the requirements of the Place­
ment Act, to decline admission of any child who had not 
applied to the Placement Board for assignment in any in­
stance where the Placement Act required such application 
(T r. 124-126). Principals were instructed not to assign 
new pupils, or those graduating or seeking transfer from 
one school to another; placement of all such children, if ac­
complished at all, must be done by the Placement Board 
(T r. 125). All other children were necessarily frozen in 
the schools they previously attended (Tr. 133).

The county school authorities last formulated district 
boundaries for use during the 1956-57 school session, and 
presumably were adopted by the Placement Board in mak­
ing the assignments it did for the current session (Tr. 132- 
133, 134). It assigned more than 2,000 Arlington children



12

(T r. 128-129), and all schools remained segregated—act­
ually attended by all-white or all-Negro student bodies (T r. 
129-130). There is no known instance of an assignment of 
any student of either race to a school attended by a student 
of the other race.

B

In August of 1957, four of the five adult appellees en­
deavored to arrange for the admission of their children to a 
public school within the established school districts in which 
they resided.

Appellee Robert A. Eldridge, Jr., after being advised by a 
school principal that he would have to make application to 
the Pupil Placement Board to secure the registration of his 
son in an Arlington County Public School, went to the office 
of the Arlington County School Board and endeavored to 
see the Division Superintendent of Schools. He did see Dr. 
Johnson, the Assistant Superintendent, and explained his 
situation to him and was again advised that he would have 
to proceed through the Pupil Placement Board. Mr. Eld­
ridge then addressed a letter to the Division Superintendent 
in which he detailed his previous experience and efforts to 
get his son registered in school, advised the Superintendent 
that he had not signed the pupil placement form, and re­
quested that, in view of the decision of this Court concern­
ing applications to the Pupil Placement Board, the Superin­
tendent register his son in the public school nearest his home 
or advise him where he could have him registered in such 
school. (Ex. 3.) On each occasion when he sought to regis­
ter his son he had available the son’s birth certificate and a 
copy of his previous scholastic record. Fillmore Elementary



13

School is one block and a half from the Eldridge home and 
the Hoffman-Boston School, a Negro facility, is four or five 
miles distant.

Early in August, Mrs. Phyllis S. Costley, the mother of 
Louis G. Turner and Melvin H. Turner, infant appellees, 
procured a map of the Arlington County School districts 
and, it appearing that the Swanson Junior High School was 
the nearest junior high school to their residence, she then 
attempted to have her sons enrolled in that school. The prin­
cipal refused to enroll them. Mrs. Costley advised Mr. 
Rutter, the Superintendent, of these facts and requested him 
to have these children enrolled in Swanson Junior High 
School or the junior high school nearest their home. (Ex. 
6.) Swanson Junior High School is not more than three 
quarters of a mile from the Costley residence and Hoffman- 
Boston is about six or seven miles distant. On opening day 
of school the children were again refused admission to 
Swanson Junior High School, but subsequently on that same 
day they were admitted to Hoffman-Boston High School, 
without Mr. or Mrs. Costley ever signing a pupil placement 
application.

On August 23, 1957, Mrs. Dorothy Hamm sought to 
have her son, Leslie Hamm, Jr., enrolled in Stratford Jun­
ior High School and was advised that application would 
have to be made to the Pupil Placement Board. She and her 
husband then went to Mr. Rutter’s office. They were unable 
to see him personally, but were able to talk to him over the 
telephone. Mr. Rutter told them that the only means of 
registering the child was by signing the pupil placement 
form. Soon thereafter, Mrs. Hamm wrote Mr. Rutter a 
letter again requesting the enrollment of her son in S trat­
ford Junior High School. On opening day of school, Leslie



14

Hamm., Jr. was again refused admission to Stratford Jun­
ior High School. Neither Mr. nor Mrs. Hamm signed the 
pupil placement form and at the time of the hearing Leslie 
was not enrolled in any school. Stratford is about a half 
mile from the Hamm residence and Hoffman-Boston is 
about six miles distant.

About August 19, 1957, Mrs. Dorothy P. Nelson and her 
son, George Tyrone Nelson, completed a pupil placement 
application form and submitted it to Mr. Richmond, the 
principal of Stratford Junior High School. They never 
received any reply to the application. On opening day, 
George Tyrone Nelson sought admission to Stratford Jun­
ior High School and was denied. Stratford is a half mile 
from the Nelson residence and Hoffman-Boston is six miles 
distant.

Dr. Harold M. Johnson was the only one of the adult 
appellees who did not make a pre-school effort to enroll his 
children. He and his family had been away from the United 
States from July 27, 1957, until the day before Labor Day. 
He refused to sign a pupil placement form because he felt 
that it would prevent his children from attending the school 
nearest them and that even if he signed the form his chil­
dren would not be accepted. At the time he applied to W ash­
ington-Lee High School for the enrollment of his daughters 
he had their promotion slips and scholastic records available 
to hand over to the proper authorities.

C

In the foregoing circumstances, we submit that the Dis­
trict Court was absolutely correct in finding and concluding 
that



15

“Nothing in the evidence indicates that any of the 
plaintiffs is not qualified in his studies to enter the 
school which he sought to enter. Each applicant applied 
to a ‘white’ school, but each lives in the district of that 
or of another nearby ‘white’ school. Nor did the evi­
dence reveal a lack of space for him, or that the school 
did not afford the courses suited to the applicant. Coun­
sel for the defendants explained that they did not ad­
duce evidence as to the eligibility of the applicants for 
their respective schools because this was a matter with­
in the purview of the Placement Board. Anyway, no 
intimation of disqualification appeared as to any appli­
cant.

“A review of the evidence is convincing that the 
only ground, aside from the provisions of the Place­
ment Act, for the rejection of the plaintiffs was that 
they were of the Negro race. The rejection was simply 
the adherence to the prior practice of segregation. No 
other hypothesis can be sustained in any of the seven 
instances.” (App. 22).

Nor can the one assignment of the seven made by the 
Placement Board be permitted to stand. George T. Nelson 
filled out a placement application and submitted it to the 
principal of Stratford Junior High School. The Placement 
Board assigned him to Hoffman-Boston, and appellants 
denied him admission to Stratford. His residence is one- 
half mile from Stratford; Swanson Junior High School is 
almost as close. But Hoffman-Boston is six miles away. As 
the District Court concluded:

“The basis for the Board’s placement is not given; 
no reason is evident for ignoring Stratford or Swan-



16

son. It cannot be accepted, for it is utterly without 
evidence to support it.” (App. 25).

I l l

T h e  D ist r ic t  C ourt P roperly  E xercised  I ts D iscre­
t io n  I n F ix in g  Se pte m b e r  23 As T h e  E ffe c t iv e  D ate 

O f  I ts I n ju n c t io n

The 1956 decree of the District Court commanded obedi­
ence to all nondiscriminatory state and local rules affecting 
public schooling and required the exhaustion of all suitable 
administrative remedies. It was thus clear from the begin­
ning “that the court was not attempting to direct how the 
school board should handle the problem of assigning pupils 
but was merely forbidding unconstitutional discrimination 
on the ground of race or color.” County School Board of 
Arlington County v. Thompson, 240 F.2d 59, 61 (C. A. 4th 
1956). It was likewise clear from its July 27, 1957 mem­
orandum that, while futile administrative remedies need not 
be pursued, those “adequate,” “efficacious and expeditious” 
must be utilized (App. 3-4). And in its September 14, 1957 
opinion, it expressed regret that the Placement Act could 
not be “utilized as a fair and practicable administrative 
remedy.” (App. 19).

It is useless to contend, as appellants do, that the school 
authorities did not mention race when admission was denied, 
or that failure to apply to the Placement Board, rather than 
race, was the reason for the denial. Arlington’s school sys­
tem had previously been established on the principle of com­
plete educational segregation. The decision that the school 
authorities must not re-assign children was necessarily a de­
termination not to depart from this practice unless so di-



17

l ected by the Placement Board. And it was the school au­
thorities who barred the seven applicants from admission to 
the schools they sought to enter, and relegated them to segre­
gated facilities. Undoubtedly they would have been ad­
mitted if white; and it is equally without doubt that they 
were denied because they were not. As the District Court 
said, “The rejection was simply the adherence to the prior 
practice of segregation.” (App. 22). The Constitution ex­
tends its protection where race is at the root of the action 
as well as where it appears on the surface. Lane v. Wilson, 
306 U. S. 268 (1939); Richmond v. Deans, 37 F.2d 712 
(C. A. 4th 1930), af f d .  281 U. S. 704 (1930). See also 
Quong W ing  v. Kirkendall, 223 U. S. 59 (1912).

Nor are appellants excused by the consideration that they 
assumed that they must await assignments by the Placement 
Board. That they intended no deprivation of rights does not 
justify. See County School Board of Chesterfield County v. 
Freeman, 171 F.2d 702 (C. A. 4th 1948). As the District 
Court put it: “I t  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 intend­
ment, of their acts is determinative.” (App. 20-21).

It would be difficult to attribute to the District Court an 
effort by its latest decree to administer the schools. It is 
equally difficult to support the contention that injunction 
should not enter without further opportunity to appellants 
to reassign the appellee children. For although more than 
three years had then elapsed since Brown v. Board of Edu­
cation, 347 U. S. 483 (1954), and more than eight months 
since the decision of this case on appeal in this Court, and 
despite the previous injunction, appellants still adhered to 
local public school segregation. Clearly something further



18

was warranted. County School Board of Arlington County 
V. Thompson, supra; Allen v . County School Board o f Prince
Edward County, ........ F.2d ........ (C. A. 4th, No. 7463,
November 11, 1957). As the Court itself said:

“. . . the court must examine the evidence in regard 
to each applicant and ascertain whether it indicates that 
the denial of admittance was there due solely to race or 
color. The court is not undertaking the task of assign­
ing pupils to the schools. That is the function of the 
school authorities and the court has no inclination to 
assume that authority. Carson v. Warlick, 1956, 4 Cir., 
238 F.2d 724, 728. But it is the obligation of the court 
to determine whether the rejection of any of the plain­
tiffs was solely for his race or color.” (App. 21).

We submit that there was no further need or justification 
for continued indulgence of the appellants. The only pros­
pect for these children lay in a decree specifically directing 
their admission to particular schools. Any other course 
might well invite further delay and difficulty.

Nor do we perceive any reason why the date fixed by the 
Court was not appropriate. We do not see in the admission 
of seven children, appellants’ problems of “proper distribu­
tion of school population into school districts, transporta­
tion, efficient use of school buildings and personnel, and 
others.” (Brief, 16-17). We concur in the judgment of the 
District Court in this regard :

“The injunction will affect the school attendance 
very slightly. Into a white school-population of 21,245, 
only 7 Negro children will enter; 1 negro will be with 
11,421 white children in the elementary grades; and



19

no more than 6 negroes among the 9,824 white high 
school students. Of 36 previously ‘all white’ schools in 
the County, 4 will be affected by the decree, and then 
not to a greater extent than 2 negroes in any one of the 
4 schools.” (App. 25).

IV

T h e  P roceedings I n T h e  D ist r ic t  Court W ere

Co n sist e n t  W it h  T h e  F ederal R u les  O f  C iv il

P rocedure A nd T h e  R u les  O f T ile D ist r ic t  Court

The public schools of Arlington opened for the 1957-58 
session on September 5. On that day the seven Negro chil­
dren involved in this appeal sought admission to a public 
school attended by white children only. Three of the seven, 
E. Leslie Hamm, Jr., Louis G. Turner and Melvin H. Turn­
er, were original plaintiffs in the action filed May 17, 1956. 
A fter admission was denied, these three filed a motion for 
further relief seeking “a further decree specifically direct­
ing defendants to admit said plaintiffs to the schools to 
which they, respectively, sought admission. . .” (App. 5-6). 
The remaining four, as members of the class on behalf of 
which the original action was brought, filed a motion to 
intervene, accompanying their motion by a proposed com­
plaint in intervention seeking the same relief sought in the 
motion for further relief (App. 6-10).

The motions for intervention and for further relief were 
filed September 9. (App. 5, 6). On that date, the District 
Court entered ex parte an order g-ranting intervention and 
filing the intervention complaint (App. 12), and another 
order fixing September 11 as the date for the hearing (App. 
11-12). Each order specifically directed that the Marshal



20

forthwith serve copies of the order upon the appellants, and 
the Clerk to immediately mail copies to their counsel of rec­
ord (App. 12, 13). That appellants actually received notice 
of hearing- and the proceedings is admitted (Appellants’ 
Brief p. 10).

Rule 6 (d ) of the Federal Rules of Civil Procedure does 
not impose a hard and fast requirement of five days’ notice 
in all cases. Rather, it invests the Court with ample discre­
tion in the premises. See Anderson v. Brady, 5 F. R. D. 85 
(E . D. Ky. 1945). By its terms, it has no application to a 
motion which may be heard ex parte and, in any event, au­
thorizes the Court to make an order fixing a different period. 
The instant case would seem clearly to be one in which the 
Court might wisely shorten the five-day period. As the Dis­
trict Court stated in overruling appellants’ objections to its 
action :

“ . . . I think the motion to vacate the order of inter­
vention should be denied. The intervention was allowed 
immediately because interventions of this sort by a 
person similarly situated are generally allowed. The 
order permitting the intervention, of course, is always 
subject thereafter to attack just as it has been attacked 
today. But the immediate entry of the order did harm 
to no one. The Court is also of the opinion that the 
motion to continue should be denied. At the time the 
order was presented to the Court to set this motion for 
hearing, it was of the opinion either that the motions 
had been served, or what would amount practically to 
the same thing, that they would be immediately served. 
Counsel for the plaintiff explained that he had not in­
serted in the certificate the date of the hearing of the



21

motion because he did not know it, and I am sure that 
counsel was of the same opinion as the Court was, that 
the subsequent delivery of the motion the same day 
practically would have the effect of antecedent delivery 
of it. The Court was well aware of the five days’ rule 
and practice but fixed a shorter time in view of the 
known urgency of the situation; fixed it too, having in 
mind that if there was any serious objection to the 
time fixed, it could be changed on the motion. It is 
always difficult in fixing time for hearing- in a case 
where there are so many counsel. Frequently the Court 
has to fix a date arbitrarily and then wait for objec­
tions. It has also to bear in mind the circumstances of 
the case, the circumstances of counsel, and circum­
stances of its own docket. Here the Court believes 
that no injury will be done by proceeding with this case, 
but should any develop, why, the Court can then con­
sider further deferment.” (App. 39-40).

It is not perceived how appellants can expect assistance 
from Rule 13 of the District Court, and the claim that this 
rule affects the issue here is not clear. Since appellees filed 
statements of points and authorities in support both of the 
motion to intervene and the motion for further relief (R. 
212, 219), the suggestion seems to be that time limitations 
suggested by the rule were not observed. Rut the District 
Court rules were necessarily promulgated pursuant to Rule 
83 of the Federal Rules of Civil Procedure granting Dis­
trict Courts authority to make rules “not inconsistent with 
these rules.” It would be vain to argue that Rule 13 of the 
District Court rigidly imposes a requirement that Rule 6(d) 
expressly permits all District Courts to vary.



22

Appellants’ claim to prior notice of granting interven­
tion, and to opportunity to answer the intervention com­
plaint, could have substance only if in fact the intervention 
would be opposed, and the intervention complaint would be 
answered. In Allen v. County School Board of Prince Ed­
ward County, ........ F. 2 d ........ (C. A. 4th, No. 7463, No­
vember 11, 1957), intervention was permitted, without ob­
jection, on the date of hearing without any claim for an 
opportunity to answer or any answer in fact (Appellants’ 
Brief, p. 3.) One of the counsel representing appellants in 
this case represented one of the defendants there. And in 
the very case now before the Court, a previous intervention 
was permitted on the date of the hearing of July 31, 1956, 
without objection, and without any effort to seek or make 
an answer (Appellants’ Appendix, No. 7310, p. 9). Indeed, 
the 1957 intervention complaint here presented no question 
that the original complaint and the motion for further re­
lief had not already made an issue in the case.

Nor do we think that there was any impropriety in the 
manner in which the claims of the seven children were pre­
sented and heard. The original proceeding, which was re­
viewed here, was a class action (R. 3). The original injunc­
tion, entered July 31, 1956, restrained the school authorities 
from refusing, on racial grounds, the admission to any 
school of “any child otherwise qualified for admission to, 
and enrollment and education in, such school.” (R. 181). 
The Court therein retained jurisdiction with power to en­
large or otherwise modify the injunctive provisions (R. 
182). Three of the seven children now before the Court on 
this appeal were original plaintiffs, and the other four are 
members of the class on behalf of whom the action was 
initiated. Although the injunction imposed the requirement 
that adequate administrative remedies be exhausted before



23

litigation, it is clear that, within this limitaton, those orig­
inally parties plaintiff could appropriately seek further re­
lief, and members of the class on whose behalf the action 
was brought should be permitted thereafter to intervene in 
order to participate in the benefits thereof. Wolpe v. Pore- 
sky, 79 App. D. C. 141, 144 F.2d 505 (1944), cert, denied 
323 U. S. 777 (1944); Wilson v. City o f Paducah, 100 F. 
Supp. 116 (W . D. Ky. 1951); American Brake Shoe & 
Foundry Co. v. Interborough Rapid Transit Co., 3 F. R. D. 
162 (S. D. N. Y. 1943). See also Allen v. County School
Board of Prince Edward County, ........ F.2d ........ (C. A.
4th, No. 7463, November 11, 1957).

The claims of each of the seven children presented com­
mon questions of law and fact, and sought the same char­
acter of relief. The only defense offered was that the Pupil 
Placement Act had disabled the appellants from assigning 
them, and the questions whether this defense was valid, and 
whether the denials of admission were indeed a consequence 
of their race, were the legal issues in each instance. The 
only factual questions were whether the applicants were 
qualified to enter the schools to which they applied, and were 
denied admission thereto, and these were common to all 
cases, and hardly subject to dispute. And in each case there 
was sought a further decree specifically directing their ad­
mission to those schools. Although the seven children were 
presenting their individual grevances for determination, 
their respective claims, objectives and interests were com­
mon both to the main action and to each other. We submit 
that the District Court correctly permitted intervention and 
heard and determined these claims in the manner presented.

While appellants seem to now intimate (Brief, p. 11) that 
they were precluded by the procedure adopted below from



24

offering evidence, the point does not seem to be well taken. 
Efforts on behalf of five of the seven children were made 
substantially ahead of the opening of the current session to 
enroll them in particular schools, and there were both con­
ferences and correspondence with the school authorities in 
this regard (T r. 27, 28, 58, 80, 81, 98; Ex. 2, 3, 5, 6 & 7). 
Then, and at the opening of this session, these efforts were 
frustrated, not because of lack of qualifications, or lack of 
space in the schools to accomodate them, but because of the 
administrative determination that assignments were the 
province of the Pupil Placement Board. There was ample 
opportunity for the authorities to investigate these claims, 
if investigation was indeed necessary, and to ascertain 
whether there were additional reasons why they should not 
be so admitted. More fundamentally, the appellants cannot 
now support a claim to additional time to investigate even­
tualities that under previous decrees they were already bound 
to anticipate and prepare for. For the District Court to 
have granted the request would have been to ignore “the 
personal interest of the plaintiffs in admission to public 
schools as soon as practicable on a nondiscriminatory basis,” 
Brown v. Board of Education, 349 U. S. 294, 300 (1955), 
and “the known urgency of the situation.” (App. 40). It 
would have been tantamount to deferring them to the next 
enrollment date.

It seems evident that appellants are presenting contentions 
as to developments that, in any event, produced no injury. 
The District Court expressed this opinion at the outset, but 
safeguarded their right to the protection of the Court should 
it develop that their rights became jeopardized (App. 39- 
40). It appears that no injury resulted, and certainly no 
further request was made to the District Court for indul­
gence.



25

The proceedings under review were not a new case, pre­
senting novel questions, but rather were merely the latest 
phase of litigation pending for more than a year and involv­
ing issues and contentions well known to all. Indeed, on 
July 27, just slightly more than a month before the Septem­
ber 11 hearing, counsel had extensively argued the prin­
cipal question in the case—the effect of the Pupil Placement 
Act upon the Arlington situation. From the beginning ap­
pellants have been represented by able and experienced coun­
sel well versed in the law and quite capable of adequately- 
representing the interests of their clients. We think they 
did their job well, and now have no cause for complaint.

CONCLUSION

For the reasons stated herein, it is respectfully submitted 
that the judgments appealed from should be affirmed.

Respectfully submitted,

E d w in  C. B row n ,
1200 Cameron Street, 
Alexandria, Virginia.

O liv er  W. H il l ,
118 East Leigh Street,
Richmond 19, Virginia.

S pottswood W. R o bin so n , III, 
623 North Third Street, 
Richmond 19, Virginia.

Counsel for Appellees.



In the
UNITED STATES COURT OF APPEALS 

for the Fourth Circuit

No. 7543

COUNTY SCHOOL BOARD OF A RLIN G TO N  
COUNTY 
Plaintiff

versus

TH O M PSO N , etc.
Appellees.

Appeal From The United States District Court For The 
Eastern District o f Virginia, Alexandria Division

APPENDIX FOR THE APPELLEES

EX C ER PTS FROM  R E PO R T E R ’S TR A N SC R IPT

Testimony of Robert A. Eldridge, Jr.

( tr  23) Q. Did you have any special reason for not sign­
ing the form?



APPENDIX
2

A. I governed my action for two reasons. I had read in 
( tr  24) the papers where the form itself had been con­
sidered to be unconstitutional, and second, it appeared to 
me that it wouldn’t be any use to fill out the form anyway 
because I noticed that at one portion of the form it says 
that it gave me the impression that the Board had the op­
tion to send your student to any school that it so desired, 
and it was my idea to have my child in the school nearest 
to his home.

Q. That was your reason for not executing the form?
A. That’s right.

Q. If  the Court please, we would like to offer into evi­
dence the form that was given to Mr. Eldridge by Mrs. 
Vance. Any objection?

T H E  C O U R T : Is there any objection to it?

MR. BALL: No, sir.

T H E  C O U R T : Let it be admitted.

T H E  CLERK : Plaintiff’s No. 1.

(The Clerk so marked the form 
as Plaintiff’s Exhibit No. 1 in 
evidence.)

MR. BROW N: Plaintiff’s Exhibit No. 1.

BY MR. B R O W N :

Q. Mr. Eldridge, did there come a time when you pre­
sented your child to any other school in Arlington County ?

A. Yes, I did on the opening day of school. I decided 
to go to the nearest school to my house, which was a block



3
APPENDIX

( tr  25) and a half. I t is known as the Fillmore Elementary 
School. It is located on Fillmore Street and I took my boy 
there and I was met at the door by a Mrs. Smith, who told 
me that I would have to— I think her reason, she told me 
that I would have to go to the Clay Elementary School to 
register my boy which was at—

T H E  C O U R T : Have to go where?

T H E  W IT N E S S : To the Clay Elementary School, lo­
cated at Seventh and Holland Street, North Arlington. She 
stated her reason for sending me there was because she 
didn’t have any more placement forms, so I proceeded to 
go to this school at Seventh and Holland Street where I 
asked could I register my boy to go to the school nearest 
his home, and I was told that I would have to fill out place­
ment form.

BY MR. BROW N:

Q. W as this the opening day of school?
A. T hat’s right. A t that time I did take my, the birth 

certificate of my child, and his former record of his school 
that he previously attended.

Q. You had those with you?
A. On each occasion.

Q. Each occasion ?
A. Each occasion I had that with me.

*  *  *

( tr  27) * * *
Q. Mr. Eldridge, did you do anything else in order to 

get your child into school ?



APPENDIX
4

A, Yes, I wrote a letter to the Superintendent. I wrote 
a— I believe before that time I took my boy to theArling- 
ton County Board and I asked to speak to Mr. T. R. Rutter, 
the Superintendent of Schools concerning the matter. I 
was told by a clerk there that Mr. Rutter was in a very 
important conference but Mr. Johnson would be glad to 
take care of me, a Dr. Johnson, rather. I went into the 
office with Dr. Johnson. H e talked to me and I explained to 
him that it was my desire to have my boy enroll in the 
nearest school to his home. Dr. Johnson explained to me 
that I would have to fill out a pupil placement form, that 
there was nothing that could be done for me other than to 
fill out the form. I did— I had written a letter previously 
to—

Q. To whom?
A. Superintendent T. R. Rutter concerning the matter.

Q. Do you have, did you receive any response to that 
letter ?
(tr  28) A. Yes, I did.

Q. Do you have that letter with you now ?
A. Yes, I do. That is the original copy and this is the 

registered receipt that I signed for same.

Q. You mean this letter was sent to you by registered 
mail from the Superintendent of Schools, T. R. Rutter ?

A. T hat’s correct.

Q. And this is in response to the letter you had written 
to Superintendent of Schools?

A. That’s correct.
* * *

( tr  32) * * *
Q. Where is the Fillmore School in relationship to your



5
APPENDIX

home?
A, It is one block and a half from my house.

Q. One block and a half from your house ?
A. That’s right.

Q. How far is the Hoffman-Boston School from your 
home?

A. Well, appear to be about four or five miles. It would 
appear that way to me. I couldn’t say for sure.

Q But it is much farther than Fillmore School from your 
home; is that correct ?

A. Very much so.
* * *

( tr  34) * * *
Q. And what is your race ?
A. Negro.

Q. That is all.
^

Testimony of Dorothy P. Nelson 

( tr  56) * * *
Q. And how long have you lived in Arlington County ?
A. Seven years.

Q. Do you have any children of school age ?
A. Two.

Q. And did there come a time when you presented, did 
there come a time when you presented one of your children 
to the school for admission ?

A. Yes.



APPENDIX
6

Q. W hat was his name?
A. George Tyrone Nelson.

( tr  57) Q. And what is his age?
A. Fourteen years.

Q. Now is he in school at the present time?
A. Yes, he is,

Q. And what school?
A. Hoffman-Boston.

Q. Did he apply for admission to any other school to 
your knowledge prior to going to Hoffman-Boston?

A. To Stratford Junior High.

Q. And was he given a pupil placement form to execute? 
A. Yes. He filled out one, if that is what you mean.

Q. Speak up so the Court can hear.
A. He filled out a form from the, that he got from the 

School Board.

Q. Did he fill out the form or did his parents?
A. Well, he and I together filled it out.

Q. Did you file that pupil placement form with the proper 
authorities ?

A. Yes, sir.

Q. And with whom did you file the form?
A. Mr. Richmond at, Principal of Stratford Junior High.

Q. And were you given any instructions to what you 
should do thereafter ?

A. No.

Q. W ere you told what school he would be assigned to? 
( tr  58) A. No.

Q. A fter you had filed this form, with Mr. Richmond,



7
APPENDIX

and you say you filed it with him at the school; is that 
correct ?

A. Yes, we gave it to him.

Q. You gave it to him personally?
A Yes, sir.

Q. Have you received any response from it, that partic­
ular form?

A. No, sir.

Q. None whatsoever ?
A. None whatsoever.

Q. When was it that you filed this form with Mr. Rich­
mond?

A. I ’m not certain but it was either the 19th of August 
or the 26th, but I am sure it was the 19th. I believe it was.

Q. In other words, it was before the opening day of 
school; is that correct ?

A. (nodded.)

( tr  59) * * *
Q. W hat is the racial identity of your child?
A. Negro.

Q. Now what did you say your address was ?
A. 2005 North Cameron Street.

Q. And what is the nearest school to your home ?
A. Junior high school, you mean ?

Q. Yes.
A. Stratford.

Q. And about how far is Stratford from your home?
A. Approximately a half a mile.



8
APPENDIX

Q. And you’re familiar with Hoffman-Boston School, 
are you not? You know about it?

A. Yes.

Q. About how far is that school from your home?
A. Six miles.

Q. Six miles.
W as your child presented to school on the opening day 

of school?
( tr  60) A. Yes.

Q. And what school?
A. You mean the first school?

Q. Opening day of school?
A. Stratford.

Q. And was your child admitted ?
A. No, he wasn’t.

* * =1=

(tr  70) * * *
T H E  C O U R T : How did you obtain the form that you 

subsequently filed on August 19th, or 26th, with Mr. Rich­
mond?

T H E  W IT N E S S : My boy went to the Arlington County 
School Board on Quincy Street in Cherrydale and obtained 
it himself.

T H E  C O U R T : And brought it back to you ?

T H E  W IT N E S S : Brought it home and he and I filled it 
out and we returned, took it back to Mr. Richmond at S trat­
ford.

T H E  C O U R T : Who took it back to Mr. Richmond? 

T H E  W IT N E S S : My son and I.



9
APPENDIX

T H E  CO URT: Together?

T H E  W IT N E S S : Yes.

T H E  C O U R T : Did you have any discussion with Mr. 
Richmond on that occasion ?

(tr  71) T H E  W IT N E S S : No, I didn’t. I only asked him 
one question.

T H E  C O U R T : And what was that?

T H E  W IT N E S S : I asked him if we, did he know if we 
would be notified after the meeting about these, whether 
the child would go to Stratford or just what they would do.

T H E  C O U R T : A fter what meeting did you have in 
mind?

T H E  W IT N E S S : The meeting that was held in Rich­
mond on the 29th.

T H E  C O U R T : And did Mr. Richmond tell you that 
you would or would not be notified ?

T H E  W IT N E S S : He told me he couldn’t say because he 
didn’t know if we would be notified or just what would be 
the results of it.

T H E  C O U R T : Now what was that, the last time that 
you had any contact with the school ?

T H E  W IT N E S S : W ith Stratford?

T H E  COURT: Yes.

T H E  W IT N E S S : Yes, first and last.

T H E  C O U R T: Now what did you want to ask, Mr. 
Brown ?

(tr  72) MR. B RO W N : I think it has been cleared up, 
if Your Honor please. That is all. No further questions.



APPENDIX
10

T H E  C O U R T : I understood she had already said that.

MR. BA LL: Just one minute. In view of what she said 
—do you claim that you specifically asked in your applica­
tion for admission to Stratford ?

T H E  W IT N E S S : Yes.

MR. BA LL: You wrote that in the application?

T H E  W IT N E S S : I didn’t write anything in the appli­
cation. We only filled out what questions were on the form 
to be filled in.

ifc ifc

Testimony of A rthur M. Costley, Sr.
* * *

(tr  82) * * *
Q. W here do you live, what section of—
A. I live in the section called, or near the section called 

Hall’s Hill and that is in North Arlington.

Q. Northern section of Arlington ?
A. Yes.

Q. How far is that from Swanson?
A. Oh, I would say not more than, couldn’t be more than 

three quarters of a mile.

Q. From your house to the Swanson School?
A. T hat’s right.

Q. How far do you live from Hoffman-Boston ?
A. Oh, about six or seven miles, I ’d say.

Q. W here is Hoffman-Boston located?
A. That is in South Arlington.



11
APPENDIX

Testimony of T. Edward Rutter
sfe sfe

(tr  111) * * *
Q. Your present occupation?
A. Division Superintendent of Schools, Arlington 

County, Virginia.

O. How long have you occupied that ?
A. 1952 to 1957.

Q. Continuous?
A. Correct.

Q. Mr. Rutter, you are one of the defendants in the case' 
that is now before the Court, am I correct in that regard ? 

A. That is correct.

Q. How many schools are there, Mr. Rutter, in the Pub­
lic School System of Arlington County ?

A. Approximately forty separate buildings.

Q. Would you name, would you first tell me the number 
of schools that are attended entirely by Negro students ?

A. The number?

Q. The number ?
(tr  112) A. Of schools?

Q. The number of schools now attended entirely by 
Negro students?

A. Four.

Q. All right. How many of these four schools are high 
schools ?

A. One.

Q. W hat is the name of that school ?
A. Hoffman-Boston Junior-Senior High School.



APPENDIX
12

Q. Now you say it is a junior-senior high school. W hat 
grades does that school have?

A. Sixth through twelve.

Q. And which of those grades are junior high school 
grades and which are senior high school grades ?

A. Six through nine are junior high school, and tenth 
through twelve are senior high school.

Q. Now let me clear this up. Under your Arlington 
School System the first six grades are elementary school 
grades. Am I correct in that regard ?

A. That’s correct.

Q. And grades seven through nine are the junior high 
school grades ?

A. T hat’s correct.

Q. And nine through twelve are the senior high school 
grades ?
( tr  113) A. Right.

Q. That is true in both Negro and white schools?

T H E  COURT: Ten through twelve, is it not?

T H E  W IT N E S S : Ten through twelve.

MR. R O BIN SO N : I ’m sorry.

BY MR. RO BIN SO N :

Q. Is there any other Negro senior high school facility in 
Arlington County other than a part of the Hoffman-Boston 
facility ?

A. No.

Q. Is there any other Negro junior high school facility 
in Arlington County other than a part of the Hoffman-



13
APPENDIX

Boston facility ?
A. No.

Q. Is Hoffman-Boston more than a single school plant 
or is it within itself a single educational unit and in a sense 
that it is a single building?

A. It is a single coordinated educational unit.

Q. How many buildings ?
A. Well, there is really one building, although we have 

a temporary structure situated within about twenty feet of 
the building so there actually are two buildings on the site.

Q. And what is this temporary structure being used for ?
A. Well, it has been used from time to time for various 

( tr  114) purposes. I believe most recently for art and music.

Q. How temporary is this structure? By that I mean how 
long has it been used for these various purposes ?

A. I don’t know the number of years but I can say it 
has been used for this purpose since I have known the 
school in 1950.

Q. Since 1950?
A. Yes.

Q. A t least for the period of the last six or seven years ?
A. Yes.

Q. All right. Now what are the names of the three re­
maining Negro schools in Arlington County, all of which 
are elementary schools?

A. The first is Hoffman-Boston Elementary School, lo­
cated very close to the Hoffman-Boston Junior-Senior High 
School. The other is the Drew Kemper School, composed 
of two school buildings but is administered as one 
elementary school, and the last is the Langston Elementary 
School.



APPENDIX
14

Q. All right, sir. Now without undertaking to name them, 
how many high school facilities do you have in Arlington 
County attended exclusively at the present time by white 
students ?

A. Two.

Q. W hat are the names of those two schools ?
A. Washington-Lee High School and Wakefield High 

School.

( tr  115) Q. And how many presently all-white junior 
high school facilities in the county ?

A. May I name them one at a time because I ’m not sure 
that I can give you the exact number ?

Q. Surely.
A. In the northern part of the county we have Williams­

burg, Stratford, Swanson; in the central part of the county 
we would have Thomas Jefferson and in the southern part 
of the county Kenmore, and a new junior high school pres­
ently organized this year which will be known as the Gun- 
ston Junior H igh School.

Q. How many?
A. I believe that was seven, was it not?
Q. Seven. Do you recall the exact number—

T H E  C O U R T : Let us see. I have six, Williamsburg, 
Stratford, Swanson, Jefferson, Kenmore, and Gunston.

T H E  W IT N E S S : I ’m sorry. That is right.
T H E  COURT: Six?

T H E  W IT N E S S : I believe that is correct.

BY MR. RO BIN SO N :

Q. How many all-white elementary schools do you have ?



15
APPENDIX

A. I do not know the precise number, sir, but it would 
be approximately thirty-seven or thirty-eight.

( tr  116) Q. All right, sir. Now, Mr. Rutter, are you 
familiar with that map that is posted on the board over 
there ?

A. Very familiar.

Q. Have you had an occasion to examine that map to be 
in a position to tell me whether or not it is accurate in so 
far as the location of your schools are concerned and the 
boundaries, of the present boundaries of your school dis­
tricts ?

A. I believe that it is, sir.

Q. Would you walk over to the map and examine it and 
state to me positively, if you can, whether or not it does 
accurately disclose the location of schools and school 
boundaries ?

A. Yes, I believe that it does.

Q. How many school districts do you have as shown on 
that map, Mr. Rutter ?

A, This map is an attempt to demonstrate and show the 
number of secondary school districts. We have a similar 
map showing the elementary districts.

Q. Might I ask you this. When you say secondary, do 
you include only the senior high schools or do you include 
the junior high schools as well?

A. That’s right.

Q. Junior high school, junior and senior ?
A. That’s right.

Q. All right. Now how would, how many senior high 
school districts do you have?
(tr  117) A. Three.



APPENDIX
16

Q. Would you name them, please?
A. Hoffman-Boston, Washington-Lee and Wakefield.

Q. Are these school districts in each instance all located 
in a geographically contiguous fashion or do you have any 
instance of a school district being divided into two or more 
parts and the parts not being geographically contiguous ?

A. We have one like the last you have just described.

Q. All right, and which one is that?
A. Hoffman-Boston.

Q. All right. W hat is the difference, if any, between the 
school districts so far as the racial classification of the 
student residing in those districts may be concerned?

A. The Hoffman-Boston District is designated as a dis­
trict for our colored boys and girls on the high school level.

Q. And for that purpose only, am I correct?
A. That is correct.

Q. In assuming.
And that district I understand you to say has two parts ?
A. T hat’s correct.

Q. Would you show me those two parts?
A. (Pointed.)

( tr  118) T H E  COURT: Would you refer to, for the 
purposes of the record—call one of them north ?

T H E  W IT N E S S : For the purpose of the record the 
northern section is just south of Lee Highway, the southern 
section is that portion of land surrounding the Hoffman- 
Boston Junior-Senior High School.



17
APPENDIX

BY MR. RO BIN SO N :

Q. Now the Hoffman-Boston Junior-Senior High School 
is physically located within the southern of the two Hoff­
man-Boston School Districts?

A. T hat’s right.

Q. There is no Negro junior or senior high school facility 
geographically situated within the boundaries of the north­
ern Hoffman-Boston School District?

A. T hat’s correct.

Q. How much distance would you say there is approxi­
mately between the northern and the southern, say, esti­
mating as best you can, from, say, the geographical centers 
of those districts, how much distance would you say that 
there is approximately between the northern and the south­
ern sections of the Hoffman-Boston School District?

A. Well, I would judge it to be approximately five miles. 
I believe the total distance from the northern part of the 
(tr  119) county to the southern is seven and it would ap­
pear to me would be about five, five and a half or six miles.

Q. Is there any other district in Arlington County at 
the secondary level embracing Negro students other than 
the Hoffman-Boston School District?

A. No.

Q. Now, and that is true with reference to the junior 
high schools as well as the senior high schools ?

A. That is correct.

Q. Come back up here.
Now as I understand you, Mr. Rutter, the Hoffman- 

Boston School District with its two parts for secondary 
students is based entirely upon the race of the student re­
siding for school administrative purposes within those dis-



APPENDIX
18

tric ts ; am I correct in that ?
A. I believe that is correct.

Q. All right. Now how do you figure out school districts 
for white students at Arlington County ?

A. It is done in terms of the capacity of buildings to 
house a given number of children.

Q. And by that you—well, suppose you explain just a 
little more fully, if you will, just how you go about working 
out the lines, the boundary lines of a school district for the 
purposes of determining the schools to be attended by white 
students ?
( tr  120) A. I think a good illustration to use would be the 
construction of the Williamsburg Junior High School. As 
that area of the community grew and it became evidence 
that additional space was required for boys and girls of 
junior high school age, plans were developed and eventually 
a school building was constructed in that section of the com­
munity. A very careful study was then made of the sur­
rounding junior high school areas, specifically Swanson and 
also Stratford. We then attempted to estimate the future 
growth of the area to which I have earlier referred and 
then determine what the boundary lines of the new junior 
high school would be.

Q. Am I correct in concluding from what you have said, 
Mr. Rutter, that the objective in formulating boundaries 
of white high school and junior high school districts is to 
the extent that the capacity of the school geographically 
located in that district can accommodate students is to get 
each white child to the school that is closest to the place of 
his residence?

A. Not necessarily closest to his residence, because there 
are a number of instances throughout the community when 
that is not the case. In other words, it has been necessary



19
APPENDIX

in a number of instances I believe, in the past, of course, 
to schedule boys and girls to schools that are not necessarily 
the closest to their place of residence.

Q. But the reason for doing that is that the school that 
( tr  121) is geographically located in that district doesn’t 
have sufficient capacity to take care of all the students in 
that d istrict; isn’t that the reason ?

A. That would be right.

Q. So that the extent to which a school facility for white 
students can accommodate the children in that district, the 
object in fixing these boundaries is to arrange it so that 
the white student can go to the school that is the nearest 
to the place of their residence ?

A. I believe that is correct.

Q. All right. Now, Mr. Rutter, do you happen to have 
with you a map showing the elementary school districts of 
Arlington County ?

A. Yes, I do.

Q. Do you have one that we might—
A. Yes.

Q. Borrow from you for purposes of putting in the rec­
ord in this case with the understanding that you might not 
be able to get it back ?

A. Very good.

Q. All right, sir.

Anybody want to see this ?

Mr. Rutter, I hand you this document and I ask you to 
examine it and state, if you will, what it represents?

A. This is a map of Arlington County on which has been 
(tr  122) superimposed boundary lines indicating the various 
elementary school districts.



APPENDIX
20

MR. RO BINSO N  : If  Your Honor please, I would like 
to introduce this into evidence. Could we get it placed on 
the board ?

T H E  C O U R T : Before you do that, I think it would be 
well to mark it with an appropriate exhibit number, the 
map that is now on there, and let it appear that it is in 
evidence. I take it there is no objection to it.

MR. R O B IN S O N : If  Your Honor please, I just under­
stand that the one that is on the board has never been in­
troduced in evidence.

T H E  C O U R T : I say it will have to be admitted now. 

MR. R O BIN SO N : Oh, I see.

T H E  C LERK : Plaintiff’s No. 8.

T H E  C O U R T : Plaintiff’s No. 8.

T H E  C LERK : You wish to mark this as plaintiff’s No. 
9?

T H E  C O U R T : Let the second map be plaintiff’s No. 9.

(tr  123) (The maps were so marked by
the Clerk as plaintiff’s Exhibits 
No. 8 and No. 9, respectively, 
in evidence.)

BY MR. RO BIN SO N :

Q. Now, Mr. Rutter, I say, ask you this, how many 
elementary schools do you have ?

A. As many as we have school buildings against approxi­
mately four.

Q. That means that you would have four Negro—



21
APPENDIX

A. T hat’s right.

Q. Elementary. No, would it be three?
A. Hoffman-Boston, Drew Kemper and Langston; three.

Q. In other words, you have a Hoffman-Boston Sec­
ondary School District and a Hoffman-Boston Elementary 
School District. You determine in each instance the bound­
ary lines for elementary school districts like you determine 
the boundary lines for secondary school districts; am I cor­
rect in that ?

A. T hat’s right, fundamentally the same.

Q. In other words, the Negro school districts are deter­
mined, the boundaries are determined entirely by reason of 
the fact that the Negro student resides in the areas that are 
surrounded by those boundaries ?

A. That is correct.

Q. You determine your white school boundaries in about 
the same way, or precisely the same way for elementary 
schools that you do for white secondary schools ?
(tr  124) A. True.

Q. Mr. Rutter, there has been considerable testimony 
and some amount of correspondence introduced in evidence 
coming from you indicative of a practice or policy on the 
part of the school authorities in Arlington County to de­
cline to admit any child to a school who has not made ap­
plication for assignment to the Pupil Placement Board in 
any instance where the Pupil Placement Act would require 
that application to be made. Is that as a matter of fact the 
policy and practice that was in effect on the opening date 
of schools for the 1957-58 school session?

A. Yes.

Q. In writing the letters that you did, you were simply



APPENDIX
22

observing this policy, were you?
A. That is correct.

Q. And it was a policy established by the School Board 
or Arlington County ?

A. No. I was attempting to follow to the letter of the 
law the laws of the Commonwealth of Virginia.

Q. W ho formulated this policy, you or the School Board ?
A. Now I believe, sir, that we should distinguish between 

policy and what the statutes of Virginia happen to be at the 
present time. So that its always been our policy to observe 
the law and I don’t, I would not take the position that the 
Board of Education would have to formalize a policy to do 
(tr  125) so. Therefore, what we have done this year is 
what we have done in the past, obviously to observe the 
law.

Q. Observe the law. I see. Now were instructions issued 
to the Principals of the various schools in the Public School 
System not to admit students to school who had not applied 
for assignment by the Pupil Placement Board in instances 
where the Pupil Placement Act would require an applica­
tion for assignment ?

A. That I believe is essentially correct. The memoranda 
that went from my office to the Principals always were de­
signed to implement the statutes of the State of Virginia.

Q. And at the risk of being a small amount of repeti­
tion, Mr. Rutter, I just want to make certain that the record 
is clear on this. In other words, the practice in Arlington 
County at the commencement of the current school session 
pursuant to orders and directives emanating from your of­
fice, this situation, in other words, the policy and practice 
were, one, that any assignment of a new student or a gradu­
ating student or a transferring student would have to be



23
APPENDIX

made by the Pupil Placement Board and would not be made 
by the school authorities of Arlington County. Am I correct 
to this extent ?

A. Placement would not be made by the school authorities 
of Arlington County but they would be made by the Pupil 
Placement Board. T hat’s right.

y . All right. Secondly, no child would be admitted to 
(tr  126) the Public Schools of Arlington County who for, 
for whom an application was required for assignment to be 
made to the Pupil Placement Board by the Act. In other 
words, in those instances where the Act undertook to re­
quire that the Pupil Placement Board make the assignment, 
you would not admit a child to school unless he applied to 
the Pupil Placement Board for the assignment and was as­
signed to a particular school by the Board?

A. That’s correct.

Q. All right, sir.
How many school children do you have in the Public 

School System of Arlington County? By that, Mr. Rutter,
I would like to know the total number white and Negro com­
bined, elementary and secondary combined ?

A. I am sorry, sir, but I cannot give you the precise 
figures for this school year.

Q. Approximately?
A. Because these changes are being made every day. We 

have approximately 23,000. We anticipate 23,000 this 
academic year, and our experience in the past has been that 
approximately five percent of that number, of the total num­
ber of registered would be children of the Negro race.

T H E  C O U R T : Now that is of all the schools, is it, Mr. 
Rutter ?

T H E  W IT N E S S : Yes, that is all the schools.



APPENDIX
24

(tr  127) T H E  C O U R T : Elementary as well as second­
ary?

T H E  W IT N E S S : That is right.

MR. R O B IN S O N : In other words, you would have ap­
proximately 1,500 Negro students and you would have ap­
proximately 21,500 white students?

T H E  W IT N E S S : Yes.

BY MR. RO BIN SO N :

Q. Would you be able to give us any reasonably accurate 
estimate of the number of children that you would have, 
white and Negro, in the elementary schools, junior high 
schools, and senior high schools; would you be able to do 
that?

A. To give you the approximate enrollment?

Q. Yes.
A. I can’t do it on the stand at this moment, but I can 

secure it, the information.

Q. All right, sir.
A. I can’t do that too accurately and I would hesitate to 

do so.

Q. You would be able to supply us with that information 
before leaving today?

A. Yes.

Q. I would like for you to do so.

(tr  128) T H E  C O U R T : Do you have it at the desk?

T H E  W IT N E S S : I am sure that there are members of 
my staff here who can supply me with the information.



25
APPENDIX

T H E  C O U R T : I wonder if you can get it now readily 
and would save you from coming back to the stand.

T H E  W IT N E S S : Would you repeat the precise—

MR. R O B IN S O N : I would like to know, one, the num­
ber of Negro elementary students, junior high school 
students, senior high school students; number of white 
elementary, junior high, and senior high.

T H E  W IT N E S S : Well, we’ll be able to get the informa­
tion in just a few moments.

MR. R O B IN S O N : Well, while we are waiting, let me 
ask you a couple of other questions, Mr. Rutter.

BY MR. R O B IN S O N :

Q. Do you have any idea, or do you have any reasonably 
accurate estimate of the number of students, the approxi­
mate number of students assigned to the Public Schools of 
Arlington County by the Pupil Placement Board for the 
current session?
(tr  129) A. There are more than 2,000. I am sure of 
that.

Q. More than 2,000.
A. Yes.
Q. Do you have any information that would be reason­

ably accurate as to approximately how many of these 2,000 
would be Negroes and how many of the 2,000 would be 
whites ?

A. No, I do not.
Q. I understand that so far as you know all of the schools 

in Arlington County are being attended by the members of 
one race only, by that I mean that there is no single instance



APPENDIX
26

of any school in the entire School System attended by a 
Negro and a white child. They are all either actually a t­
tended by all-white students or all-Negro students. Am I 
correct in that conclusion?

A. That’s right.

Q. And this notwithstanding the fact that 2,000 assign­
ments approximately have been made by the Pupil Place­
ment Board ? I mean that has not been affected by reason of 
the assignment ?

A. Presumably not.

Q. Would I be correct in my conclusion from that, Mr. 
Rutter, that out of 2,000 assignments made by the Pupil 
Placement Board, all 2,000 of those students, if they happen 
to the extent to which they are white were assigned to white 
schools and all within that 2,000 figure who happen to be 
(tr  130) Negroes were assigned to Negro schools without 
exception so far as you know ?

A. So far as I know.
*  *  *

Q. Mr. Rutter, were you able to get the information I 
inquired about before the last recess ?

A. Yes. I have these data that are as current as yester­
day afternoon, September the 10th.

Negro elementary enrollment, 946. Negro junior high 
school enrollment, 311. Negro senior high school enroll­
ment, 175. Total, 1,432.

W hite elementary enrollment, 11,421. W hite junior high 
school enrollment, 5,697.

( tr  131) T H E  COURT: Start again.

T H E  W IT N E S S : Yes, sir. I am sorry, sir.
W hite elementary enrollment, 11,421. Junior high white



27
APPENDIX

enrollment, 5,697. Senior high school white enrollment, 
4,127. Total white enrollment, 21,245.

BY MR. RO BIN SO N :

Q. Mr. Rutter, you gave some testimony before the last 
recess as to how you would formulate for white and Negro 
students respectively just to districts. Now the processes 
that have been employed for formulating school districts 
for both elementary and secondary students, for both whites 
and Negroes, of the present processes that you have used, 
have been used for the— isn’t something brand new—they 
have been used for some period of time, have they ?

A. That’s correct.

Q. Say during the entire term of office that you have 
occupied the office ?

A. I think it antedates that.

Q. Beg pardon?
A. It goes beyond that.

Q. Goes back beyond that. Thank you very much. That 
is all.

CROSS EX A M IN A TIO N  

(tr  132) BY MR. BALL:

Q. Mr. Rutter, the Wakefield School has been mentioned. 
Is that a combination junior and senior high school?

A. Yes, it is, Mr. Ball.

Q. W ith regard to these maps, as I understand, they are 
last year’s map ?

A. Yes, that is correct.



APPENDIX
28

Q. Local Board anything to do with making up this 
year’s maps?

A. W e have not made any map this year, sir, inasmuch 
as we no longer, of course, have any jurisdiction in the 
placement of children in the schools so we have not made 
the maps this year.

T H E  C O U R T : You mean by that there are for this 
session no district, school districts in Arlington County ?

T H E  W IT N E S S : The districts are, sir, those that are 
shown on the map, but the map is last year’s map and we 
have made no changes in the map this year.

T H E  C O U R T : Well, do you still observe these district 
lines for any purpose whatsoever ?

T H E  W IT N E S S : Well, presumably they are observed 
(tr  133) by the Pupil Placement Board, sir.

MR. R O BIN SO N : Mr. Rutter, by that do you mean 
that the Pupil Placement Act had the effect when it went 
into operation, had the effect of freezing all students, white 
and Negro, in the schools that they were attending on the 
effective date of the Act, is that what you have reference to 
in your last answer to the Court’s question ?

T H E  W IT N E S S : That the description that you have 
just given seems to me to be quite similar to a clause or a 
sentence or two, a paragraph in the law itself.

MR. R O B IN S O N : By that I mean and I am trying to 
find out now what the actual operation of this thing has 
been in Arlington County when the law went into effect, 
it had the effect in your interpretation of it, it had the effect 
of keeping all students in the, who were in school, in the 
schools that they attended when the law went into effect, 
of keeping them there unless the Pupil Placement Board



29
APPENDIX

transferred them to some other school ?

T H E  W IT N E S S : That is my understanding.

( tr  134) MR. R O BIN SO N : Are you familiar with the 
actionable results of assignments of Arlington school chil­
dren made by the Pupil Placement Board? I mean do you 
know in a general sort of way whether or not so far as the 
students are concerned the Pupil Placement Board has 
generally observed the old 1956-57 school district lines in 
making its own assignments in those instances where it has 
made assignments?

T H E  W IT N E S S : That would be my general observa­
tion. O f course, I couldn’t be familiar with all the forms and 
it is perfectly possible that some children who'may have 
attended a given school last year were not assigned to the 
same school this year.

MR. R O B IN S O N : But so far as you know, the state­
ment that I just made is correct ?

T H E  W IT N E S S : I believe that is correct.

MR. R O BIN SO N : Do the school authorities or the 
Principals or any other agents, employee or representative 
of the School Board, or Division Superintendent of Arling­
ton County make any recommendations to the Pupil Place­
ment Board as to the school that a child should be assigned 
( tr  135) to?

T H E  W IT N E S S : Absolutely not.

MR. R O BIN SO N : That is all.

MR. H IL L : Let me see the plaintiff’s Exhibit 5, I think 
it is.

MR. RO BIN SO N : Mr. Rutter, of course, you are 
familiar with this form, are you not?



APPENDIX
30

T H E  W IT N E S S : Indeed I am, sir.
MR. R O B IN S O N : I am calling your attention to a sec­

tion of the form that reads as follows: Information and 
recommendations from local school board, if child is enter­
ing school for the first time is date of child—wait a minute. 
No. I beg pardon. Right under that, big bold faced heading 
that I have just read to you, the third printed line down, 
recommend to school to which pupil should be assigned. Am 
I correct in understanding from what you have just said 
that your employees in Arlington County do not make a 
recommendation to the Pupil Placement Board as to the 
school to which a particular student should be assigned as 
is requested by that form ?
(tr  136) T H E  W IT N E S S : That is correct. W e do not, 
and we did not on that form.

MR. R O B IN S O N : That is all. Thank you, Mr. Rutter.
* * *

T H E  C O U R T : Let me ask Dr. Rutter one question. 
Doctor, will you stand right up where you are?

Are you familiar with these seven instances that students’ 
( tr  137) applications, that we are considering today?

T H E  W IT N E S S : Yes, sir,
T H E  C O U R T : To your knowledge.was any one of them 

disqualified by reason of his scholastic records to enter the 
school to which he applied ?

T H E  W IT N E S S : I would have no way of knowing that, 
Your Honor. In other words, I didn’t attempt to secure 
that information.

T H E  C O U R T : You cannot answer that?
T H E  W IT N E S S : No, sir.
T H E  COURT: All right.