Bell v. School Board of Powhatan County, Virginia Motion to Vacate Stay and Brief for Cross-Appellants and Appellees

    MOTION TO VACATE STAY 
AND

BRIEF FOR CROSS-APPELLANTS AND APPELLEES

In The
UNITED STATES COURT OF APPEALS 

For The Fourth Circuit

No. 8944.

EDWIN ALVIN BELL, et al., infants, etc., 
Cross-Appellants and Appellees,

v.

SCHOOL BOARD OF POWHATAN COUNTY, 
VIRGINIA, et al,

Appellants and Cross Appellees.

S. W. T ucker  
H en ry  L, M a rsh , III 
214 E. Clay Street 
Richmond 19, Va.

Attorneys for Cross-Appellants 
and Appellees



TABLE OF CONTENTS
Page

Motion to Vacate Stay ................ -...............................  1

Brief for Cross-Appellants and Appellees ................... 5

Statement of the Case.... ................................................ 5

Statement of Facts ..................................................   8

Questions Involved...................................................    13

Argument:

I. Failure To Grant The Racially Non-discrimina- 
tory Assignments Sought By Plaintiffs Is Indefensible .. 14

II. The Local School Authorities Wilfully And De­
liberately Interposed Administrative Obstacles With 
The Obvious Purpose Of Thwarting School Desegrega­
tion .............................................        17

III. The Circumstances Of This Case Require
That Relief Be Granted All Of The Plaintiffs ...........  20

IV. The Circumstances Of This Case Fully Justify
An Award Of Counsel Fees ........................ ...............  21

Conclusion 22



TABLE OF CASES
Page

... 14Brown v. Board of Education, 349 U. S. 299

Cooper v. Aaron, 358 U. S. 1 ......................... ........ 14,

Green v. School Board of City of Roanoke, 304 F.2d 
118 (4th Cir. 1962) .............................................. 14,

Jeffers v. Whitley, 309 F.2d 621 (4th Cir. 1962) ....14,

Local 149 International Union UAW, etc., v. American 
Brake Shoe Company, 298 F.2d 212 (1962) ...........

Marsh v. The County School Board of Roanoke County, 
305 I‘'.2d 94 (4th Cir. 1962) ............................ .

Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473 
(4th Cir. 1951) ............................. ........ ...................

School Board of City of Charlottesville v. Allen, 240 
F.2d 59 (4th Cir. 1956) ....................... ....... ..........

Vaughan v. Atkinson, 369 U. S. 527 (1962) ...............

Wheeler v. Durham City Board of Education, 309 F.2d 
630 (4th Cir. 1962) ................................. ............ 14,

17

21

16

21

16

21

14

22

16



In The
UNITED STATES COURT OF APPEALS 

For The Fourth Circuit

No. 8944.

EDWIN ALVIN BELL, et al., infants, etc., 
Cross-Appellants and Appellees,

v.

SCHOOL BOARD OF POWHATAN COUNTY, 
VIRGINIA, et al.,

Appellants and Cross Appellees.

MOTION TO VACATE STAY

Pauline Estelle Evans, Alcibia Olene Morris and Maria 
Concetta Morris, infant plaintiffs, each by her parent and 
next friend, move the United States Court of Appeals for 
the Fourth Circuit to vacate an order of the United States 
District Court for the Eastern District of Virginia (Rich­
mond Division) entered on January 4, 1963, in the Civil 
Action No. 3518 styled Edward Alvin Bell, et al, vs. The 
County School Board of Powhatan County, Virginia, et al, 
and, particularly so much of said order as stayed, pending



2

appeal, the effect of the hereinafter quoted injunctive pro­
vision of an order of said district court entered in said 
action on January 2, 1963, viz:

“2. The defendants, and each of them, their suc­
cessors in office, agents, and employees be, and they 
hereby are, enjoined and restrained from denying 
Pauline Estella Evans, Alcibia Olene Morris and 
Maria Concetta Morris admission to Powhatan Ele­
mentary School. The injunction shall be effective im­
mediately.”

The facts pertinent to this motion are:

1. The answer to the County School Board of Powhatan 
County and J. S. Caldwell, Division Superintendent of 
Schools of said county filed in said action on November 
8, 1962, alleged that the said infant plaintiffs and their 
respective parents failed to avail themselves of or . . . failed 
to exhaust the administrative remedies available to them 
under the statutes of Virginia relating to placement and 
protests of pupils”.

2. In their Application for Declaratory Judgment filed 
in the Circuit Court of the City of Richmond against the 
Pupil Placement Board, copy of which they introduced as 
■evidence in this action, the school board and division super­
intendent have alleged as follows:

1. E. J. Oglesby, Edward T. Justice and Alfred L. 
Wingo are the duly appointed residents of the State of 
Virginia constituting the Pupil Placement Board (here­
inafter called Placement Board), and as such and



3

pursuant to the provisions of Title 22, Section 232.1 
of the Code of Virginia, as amended, have the power of 
enrollment or placement of pupils in the public schools, 
operated by the School Board in Powhatan County, 
Virginia, the Board of Supervisors of said County 
having adopted no ordinance and the School Board 
having recommended the adoption of no ordinance- 
pursuant to the provisions of Title 22, Section 232.30 
of the Code of Virginia, as amended.

3. The Statute referred to in said pleadings provides in 
part: “All power or placement of Pupils in and deter­
mination of school attendance districts for the public 
schools in Virginia is hereby vested in a Pupil Place­
ment Board as hereinafter provided for. The local school 
boards and division superintendents are hereby divested of 
all authority now or at any future time to determine the 
school to which any child shall be admitted.”

4. The Pupil Placement Board did not appeal from said 
order of January 2, 1963, and the time within which it 
might have appealed has expired.

5. By their said pleading and reliance upon the above 
mentioned statute, the county school board and division 
superintendent are estopped from asserting that they have 
any power of enrollment or placement of any pupil in any 
public school or any authority to determine the school to. 
which any child shall be admitted.

6. Accordingly, the said county school board and division 
superintendent are estopped from asserting that they are



4

prejudiced by the above quoted provision of the court’s 
order,

WHEREFORE, these plaintiffs move that said stay be 
vacated.

PAULINE ESTELLA EVANS, an 
infant by William Douglas Evans 
and Lucille Evans her parents and 
next friends,
ALCIBIA OLENE MORRIS, an 
infant, by Ivory Morris and Clara 
Morris, her parents and next friends, 
MARIA CONCETTA MORRIS, an 
infant by James A. Morris and Alice 
B. Morris, her parents and next 
friends,

By S. W. T u ck er  
Of Counsel

S. W. T u cker  
H en r y  L. M a rsh , III 
214 East Clay Street 
Richmond 19, Virginia 

Counsel for Movants



In The
UNITED STATES COURT OF APPEALS 

For The Fourth Circuit

No. 8944.

EDWIN ALVIN BELL, et al., infants, etc., 
Cross-Appellants and Appellees,

v.
SCHOOL BOARD OF POWHATAN COUNTY, 

VIRGINIA, et al.,
Appellants and Cross Appellees.

BRIEF FOR CROSS-APPELLANTS AND APPELLEES

STATEMENT OF THE CASE

The complaint filed on August 17, 1962, charged that the 
defendants County School Board of Powhatan County and 
the Division Superintendent of Schools maintain and op­
erate a racially segregated school system. It alleges that 
applications were made to the defendants for the assign­
ment of 39 of the 65 Negro infant plaintiffs to the ele­
mentary school which white children attend1 and 23 of them

1 Through inadvertence the names of Jewnita P. Morris, Burnett 
D. Morris and Earl Edward Morris were omitted from the list of 
elementary school children named in paragraph 12 of the complaint.



6

to the high school which white children attend, and that no 
action had been taken on these applications.

On September 17, 1962, the parties presented evidence in 
support of and against the plaintiffs’ motion for an in­
terlocutory injunction to enroll three Negro children in the 
first grade at the (white) Powhatan School. On the same 
day the school board and the superintendent of schools filed 
a motion to dismiss and a motion to abstain and the Pupil 
Placement Board filed a motion to abate.

At the October 19 hearing on these motions the Court 
severed the claims of the three first grade children from 
the claims of the other 62 infants. Upon request of counsel 
for the Pupil Placement Board, the Court deferred acting 
upon the claims of the three first grade children to afford 
the Pupil Placement Board an opportunity to consider their 
applications.

By its order of October 22, 1962, the Court granted the 
motion of the school board to abstain and defer further 
proceedings in the case as to the 62 infant plaintiffs on the 
ground that a declaratory judgment suit was then pending 
between the school board and the Pupil Placement Board, 
"“for a reasonable time pending prompt determination of 
the aforesaid suit in the Circuit Court of the City of 
Richmond.”

On November 1, the plaintiffs moved the Court to alter or 
amend its order of October 22, 1962. In a memorandum 
filed with this motion, the plaintiffs asked the Court to 
“proceed to hear the entire case and afford plaintiffs full 
opportunity to prove (1) that the defendant school board 
operates a bi-racial school system and (2) that the ad­
ministrative remedy is wholly inadequate.”



/

At the trial on November 16, 1962, the plaintiffs offered 
evidence from which the Court found (1) that the defend­
ants operate a racially segregated school system, (2) that 
the Pupil Placement Board denied the applications of the 
three first grade plaintiffs because they had not been filed 
prior to June 1, in conformity with the regulation of the 
Pupil Placement Board set forth in Memo #  34, (3) that 
if these applicants had been white children they would have 
been temporarily admitted to Powhatan School (white) 
pending formal placement in that school upon consideration 
of their late application, (4) that application forms for the 
use of students and their parents were not available to the 
parents on May 29, 1962, and (S) that the school board 
did not transmit the applications to the Pupil Placement 
Board until after the [September 6, 1962] motion for 
Temporary Restraining Order was made.

The Order of the District Court was entered on January 
2, 1963. On January 29, 1963, the local school authorities 
filed their notice of appeal, presumably from so much of 
the Order of January 2, 1963, as (1) restrained them from 
denying the three first grade plaintiffs admission to the 
(white) Powhatan School and (2) restrained the further 
use of racially discriminatory criteria in the assignment 
of children to public schools in and after the fall of 1963.

On February 1, 1963, the plaintiffs filed their notice of 
cross appeal challenging (1) the denial of plaintiffs’ motion 
for the allowance of counsel fees and (2) the denial of 
plaintiffs’ motion to reconsider the Order of October 22, 
1962, by which the Court had abstained from further con­
sideration of the claims of the remaining 62 infant 
plaintiffs.



8

STATEMENT OF FACTS

In Powhatan County, there are but two schools. 
Powhatan School is attended only by white children and 
is staffed solely by white personnel. Pocahontas School 
is attended only by Negro children and is staffed solely by 
Negro personnel. Both schools have elementary and high 
school departments. The schools are about three miles 
apart. The attendance area for each of these schools em­
braces the entire county. In the normal routine of school 
assignment, white children are assigned to or placed in 
Powhatan School without regard to where they live in 
the county, and Negro students from throughout the county 
are placed in Pocahontas School. Such assignment may be 
tentatively made by the principals at any time and, when 
so made, they are routinely confirmed by the Pupil Place­
ment Board.

During the latter part of May 1962, the supervisor of 
the elementary department of the Pocahontas School and a 
number of the Negro teachers held a meeting because it was 
feared that attempts of Negro parents to enroll their chil­
dren in Powhatan School would be followed by a with­
holding of appropriations for public schools. These teachers 
drafted a warning to the colored parents urging them not 
to seek school desegregation and caused mimeographed copies 
thereof over the signature ‘James Arthur Willis, patron” 
to be delivered by their students to the parents. (A. p. 42) 
On May 29, the division superintendent suggested to a 
citizen who was obviously interested in effecting school 
desegregation that efforts toward that end would result in 
school closing. [Nov. 16 Tr. p. 50.]

On May 21, 1962, applications on the official “Appli-



9

cation for Placement of Pupil” form for the transfer or 
assignment of ten Negro children to Powhatan School were 
left in the office of the division superintendent. (A. p. 27) 
These ten infants, plaintiffs below and cross-appellants here, 
are: Andrew Jonathan Brown, Herman Spencer Brown, 
Jr., Josephine Juanita Hobson, Tracy Osborne Hobson, 
Danny McAllister Johnson, Edna S. Morris, Irma M. 
Morris, Lloyd A. Morris, Lloyd A. Taylor, Jr., and Willie 
D. Taylor.

Within a few days thereafter several Negro parents 
attempted to obtain official forms from the office of the 
principal of the Pocahontas School. When the principal’s 
supply was exhausted, some of the parents on at least two 
occasions attempted to obtain forms from the office of the 
division superintendent. (A. p. 67) As late as May 29, 
the official forms were unavailable at either office. A regu­
lation of the Pupil Placement Board required that “ap­
plications for original placement in or transfer to a specified 
school . . .  be filed with the local division superintendents of 
schools prior to June 1 immediately preceding the next 
ensuing school session for which such placements or trans­
fers are desired.” (A. p. 63, R. 59, 60)

On May 31, 1962, nineteen applications, on the official 
forms, for transfer or assignment of Negro children to 
Powhatan School were left in the office of the division 
superintendent. (A. p. 28, R. 59, 60) The father of two of the 
children withdrew the applications made on their behalf. The 
remaining seventeen infants, plaintiffs below and (except 
to the extent that Maria Concetta Morris is excluded), 
cross-appellants here, are: Darrick H. Bell, Deborah R. 
Bell, Jean W. Bell, Leon F. Bell, Marva Claudette Bell, 
Nancy Diane Bell, Valarie A. Bell, Regenia Paulette



10

DePass, Dale Veronica Goodman, Burnette D. Morris, 
Glenn L. Morris, Jerome L. Morris, Kenneth A. Morris, 
Maria Concetta Morris, Maurice L. Morris, Rayfield O. 
Morris, and Sandra R. Morris.

In addition, letter applications addressed to the local 
school board and to the (state) Pupil Placement Board, 
requesting transfer or assignment of eight Negro children 
to Powhatan School, were delivered to the office of the 
division superintendent and copies thereof were delivered 
to the office of the Pupil Placement Board in Richmond, 
both deliveries having been made on May 31. (A. pp. 28, 29) 
These eight infants, plaintiffs below and cross-appellants 
here, are: Edward Alvin Bell, Leah A. Bell, Gerald Brown, 
Victor Brown, Earl Edward Morris, Jewnita P. Morris, 
Michael E. Morris, and Victor H. Morris.

“On June 20, 1962, members of the School Board, Di­
vision Superintendent, and their counsel met with the 
Pupil Placement Board and their counsel and exhibited 
these papers to the Placement Board and were naturally 
informed that the papers were not complete but should be 
executed by the principal or elementary supervisor of the 
local school and on behalf of the local School Board. Sub­
sequently the local School Board and the Division Super­
intendent were advised by the Pupil Placement Board that 
they should investigate to ascertain whether the applications 
on the prescribed form were genuine and that the papers 
should otherwise be completed and forwarded to the Pupil 
Placement Board.”2 The earlier regulation promulgated by

2 Memorandum on behalf of County School Board of Powhatan 
County and the Division Superintendent of Schools in support of 
their motion that the court abstain. Filed October 22, 1962 (R. pp. 
71-72).



11

the Pupil Placement Board in its March 12, 1962, Memo 
#34, addressed to Local School Boards and Division 
Superintendents of Schools, contained this language: “The 
Pupil Placement Board will appreciate it if the Division 
Superintendent will notify it immediately upon receipt of 
any applications [for original placement in or transfer to a 
particular specified school]”. (A. p. 63)

On August 3, 1963, letter applications addressed to the 
local school board and to the Pupil Placement Board, re­
questing transfer or assignment of twenty-nine Negro 
children to Powhatan School, were received by the division 
superintendent.3 (R. 61) These twenty-nine infants,
plaintiffs below and (except to the extent that Pauline 
Estella Evans and Alcibia O. Morris are excluded) cross- 
appellants here, are: Don Connell Batchelor, Roland Ed­
ward Batchelor, Ryland L. Batchelor, William L. Batchelor, 
Kilja Clementine Bell, Youlanda Cecila Bell, Carolyn 
Celestine Bolling, Judy Grey Bolling, Alvin G. Brown, 
Barbara Virginia Brown, Bernard E. Brown, Brenda L. 
Brown, Earl O. Brown, Herbert Nathan Brown, Priscilla 
Ann Brown, Randall William Brown, Jr., Charles William 
Evans, Fannie Diane Evans, Pualine Estella Evans, De­
Marco Antonello Harris, Charlene Juliette Ingram, Alcibia 
O. Morris, Janice Laurette Payne, Shelia Ann Payne, 
Deborah Christine Simms, Evelyn Virginia Simms, Marion 
Joseph Simms, Marlene Jenette Simms, and Mary Frances 
Simms.

Pauline Estella Evans, Alcibia Olene Morris, and Maria

3 Because of the limited aspect of the trial, the record does not 
show delivery of copies to the Pupil Placement Board on August 
6, 1962.



12

Concetta Morris were to enter school for the first time in 
the fall of 1962. The parents of the first two signed official 
“Application for Placement of Pupil” forms without 
designation of any school and left them with the supervisor 
at the Pocahontas School on June 8, 1962. On September 
4 they were allowed by the supervisor to mark the forms 
as being “under protest” and the mother of Maria Concetta 
Morris executed an official application “under protest” and 
left it with the supervisor at the Negro school. (These 
forms were in addition to the applications mentioned 
earlier.) An August 30 these three children had been taken 
by their parents to the Powhatan School for enrollment 
there and were referred to the superintendent who, in turn, 
referred them to the supervisor at Pocahontas School. 
(A, p. 35) The District Court’s order of January 2, 
1963, directed the admission of these three children to the 
Powhatan School.

It does not appear from the record that an application 
on any form was made on behalf of the plaintiff and cross­
appellant June C. Bell.

The local school authorities had not forwarded any of 
the applications to the Pupil Placement Board on August 
17, 1962, when this action was commenced. (A. p. 74) 
The forms for the three beginners which had been left 
with the supervisor and the forms from both schools which 
did not challenge the racial pattern of school assignments 
were all held by the local superintendent until the week pre­
ceding the September 17, 1962 hearing on the plaintiffs’ 
motion for an interlocutory injunction. The applications 
which expressly requested racially non-discriminatory as­
signments—those made prior to June 1 and those made on 
August 3 as well—were never forwarded by the local school



13

authorities to the Pupil Placement Board, but were made 
the subject of litigation by the local school board against 
the Pupil Placement Board in the Circuit Court of the City 
of Richmond.

Powhatan County is near Prince Edward County where 
the Board of Supervisors has caused public schools to re­
main closed since June, 1959, rather than permit them to 
be desegregated. The school officials of Powhatan County 
are opposed to school desegregation. The record in this case 
contains strong suggestions, introduced by the local school 
authorities, that in the event of an order directing the 
assignment of a Negro child to the white school, the Board 
of Supervisors of Powhatan County would follow the lead 
of Prince Edward County unless enjoined (as in this case 
it was enjoined) from so doing.

THE QUESTIONS INVOLVED

I

Was the failure of the defendants to make racially non- 
discriminatory school assignments so indefensible as to 
require the court to grant relief to all of the infant plaintiffs 
forthwith ?

II

Was the failure of the defendants to make racially non- 
discriminatory school assignments so indefensible as to 
justify an award of counsel fees to be taxed as a part of 
the costs ?



14

ARGUMENT
I

Failure To Grant The Racially Non-discriminatory As­
signments Sought By Plaintiffs Is Indefensible

There is no dispute as to the totally racially segregated 
character of the two schools in Powhatan County. The 
school board has no plan to bring about the desegregation 
of the school system. (A. p. 64). The chairman of the Pupil 
Placement Board, in response to inquiry whether his board 
has any such plans, testified: “Certainly not.” (A. p. 56) 
These facts alone would require an injunction against the 
continued use of the factor of race as a basis for deter­
mining the public school assignment of any child. Brown 
v. Board of Education, 349 U.S. 294 (1955); Cooper v. 
Aaron, 358 U.S. 1, (1958) ; School Board of City of Char­
lottesville v. Allen, 240 F. 2d 59 (4th Cir. 1956) ; Green v. 
School Board of City of Roanoke, 304 F. 2d 118 (4th Cir. 
1962); Jeffers v. Whitley, 309 F. 2d 621 (4th Cir. 1962) ; 
and Wheeler v. Durham City Board of Education, 309 F. 2d 
630 ( 4th Cir. 1962).

As best we can understand the position of the county 
school board and division superintendent, it is that none of 
the plaintiffs made application for admission to the white 
school in accordance with the state’s pupil placement pro­
cedure and, hence, none of them had standing to bring this 
action.

One answer to the contention of the school authori­
ties is that, on May 21, 1962, the parents of ten of the 
infant plaintiffs and, on May 31,1962, the parents of twenty- 
five of the infant plaintiffs made and filed applications in



15

strict compliance with the statute and with every require­
ment of the Pupil Placement Board. The argument of the 
local school authorities (that the applications must be 
filed with the local school and, “to insure genuineness”, must 
be signed by the principal or head teacher of the local 
school) is entirely specious. It seeks justification in a 
distorted analysis of the official application form itself and 
certain instructions printed on a detachable slip at the head 
thereof, viz:

“TO THE PARENT OR GUARDIAN: Please com­
plete the application below, sign and return to your 
local school. Be sure not to write on lower portion 
reserved for use of Boards only,”

The lower portion (reserved for use of local boards only) 
requires the principal or head teacher to enter over his 
signature his “Comments concerning pupil” and his “Rec- 
commendation as to the school to which pupil should be 
assigned”.

This printed application form has no provision for the 
parents’ indication of the school they want the child to at­
tend. It merely requests the Board to place the chlid where 
the Board thinks the child should be. The Pupil Place­
ment Board has not prepared a form to be used as an ap­
plication for original placement in or transfer to a par­
ticular specified school. From all that appears, the Pupil 
Placement Board does not contemplate the use of its form 
by a parent who wishes to designate the school the child is 
to attend. For the governance of such cases (as distin­
guished from the routine cases in which the parent will 
trust the board’s judgment) the Pupil Placement Board,



16

on March 12, 1962, issued its Memo #34 to the local 
school boards and division superintendents stating:

“The Pupil Placement Board will not consider ap­
plications for original placement in or transfer to a 
particular specified school unless such applications 
are filed in writing stating reasons for the preferences. 
These applications must be filed W ITH THE LOCAL 
DIVISION SUPERINTENDENTS OF SCHOOLS 
prior to June 1 immediately preceding the next ensuing 
school session for which such placements or transfers 
are desired.” [Emphasis supplied.]

Furthermore, the parents were never informed that the 
applications should not be filed with the superintendent as 
the above quoted regulation requires.

A further answer of the twenty-nine infants on whose 
behalf letter applications were made on August 3, 1962, 
and the further answer of June C. Bell on whose behalf 
no application appears to have been made prior to the 
institution of this action is that, the timely applications of 
others similarly situated having proved futile, they are not 
bound to have pursued an administrative procedure demon­
strably inadequate to free them from initial school as­
signment based entirely on race. Marsh v. The County 
School Board of Roanoke County, 305 F. 2d 94 (4th Cir. 
1962) ; Jeffers v. Whitley, supra; Wheeler v. Durham City 
Board of Education, supra.

A final answer to- such contention is that we are deal­
ing with rights of infants “not to be segregated on racial 
grounds in [public] school”—rights which are “indeed 
so fundamental and pervasive [as to be]embraced in the



17

concept of due process of law.” By the same token, we are 
dealing with the duty of state authorities to effectuate these 
rights by devoting “every effort toward initiating de­
segregation and bringing about the elimination of racial 
discrimination in the public school system.” Cf. Cooper v. 
Aaron, supra. Infants are not presumed to know their 
rights and they are considered powerless to make demand 
upon public officials or to coerce their parents or guardians 
into doing so; but they are special wards of chancery. So, 
even in the absence of any demand by the infant or by the 
person to whom the law entrusts his custody, the District 
Courts, in the exercise of their equity jurisdiction may, at 
the suit of an aggrieved infant by his next friend, “take 
action as [is] necessary to bring about the end of racial 
segregation in the public schools with all deliberate 
speed.” [Id.]

II
The Local School Authorities Wilfully And Deliberately 

Interposed Administrative Obstacles With The Obvious 
Purpose Of Thwarting School Desegregation.

If the state’s Pupil Placement Act has any legitimate 
purpose or constitutional validity, it stems from the state 
board’s availability to execute the constitutional mandate 
to desegregate public schools notwithstanding the local 
community opposition and pressures from which the state 
board would be better insulated than would the local board. 
The testimony of the chairman of the Pupil Placement 
Board that his board “certainly” did not have plans to 
desegregate the public schools of Powhatan County ad­
equately pierces the veil of presumption of constitutionality 
which otherwise might surround the statutory requirement



18

that “each school child . . . shall attend the same school 
which he last attended until graduation therefrom unless 
enrolled, for good cause shown, in a different school by 
the Pupil Placement Board.” (Code of Virginia, 1950, 
§ 22-232.6.) Furthermore, since the only application for 
enrollment in a particular specified school in Powhatan 
County would be an application for a child’s attendance at 
the school maintained for persons not of his race, enforce­
ment of the Pupil Placement Board’s Memo #34, which 
prescribes special requirements and special procedures in 
such cases, necessarily discriminates against those who 
seek racially non-discriminatory school assignment. Inas­
much as the Pupil Placement Board did not appeal from 
the District Court’s reversal of the board’s disposition of 
the applications of the three beginners and inasmuch as the 
local authorities prevented that board’s action on any other 
applications, further attack upon the procedures of the 
Pupil Placement Board and the statute under which it acts 
would be inappropriate. We proceed to the local school au­
thorities and their employees and their deliberate subver­
sion of the state board’s procedure into an unnegotiable 
obstacle course frustrating the efforts of the adult plain­
tiffs to obtain for their children rights secured by the Four­
teenth Amendment.

The fear of the elementary supervisor and teachers at 
the Negro school that efforts to enroll Negro children in 
the white school might result in closed public schools is 
understandable. Their letter to the parents over the 
signature of a patron reflects little credit upon their literary 
standards and less upon their appreciation of the responsi­
bilities of American citizenship. The school board put it­
self in no better light when it relied upon, rather than 
repudiated, this attitude and action of its employees as



19

justification for its refusal to obey the Constitution’s 
mandate to eliminate racial discrimination in the public 
school system.

Flagrant disregard for this Constitutional requirement 
is reflected in every action of any public school official or 
employee which is related in the record in this case. In 
the face of a May 31 “deadline” for applications for racially 
non-discriminatory school assignments, the forms which 
the local school authorities contend to be essential were 
unavailable. Attempts of citizens to obtain forms from 
the superintendent were met with threats that schools would 
be closed if desegregation were required. Negro parents 
of children entering school for the first time were “re­
ferred” by the principal of the white school to the division 
superintendent who, in turn, directed them to the supervisor 
at the colored school.

The superintendent deliberately failed to forward to 
the Pupil Placement Board the thirty-seven applications 
for assignment to a particular specified school which were 
in his hands on May 31, notwithstanding the plain directive 
that the board be notified immediately upon receipt of such 
applications. The June 20 conference of school board mem­
bers, the superintendent, their attorney, the Pupil Place­
ment Board members and its attorney v/as not held with a 
view of facilitating favorable action on the subject applica­
tions ! It resulted in a decision of the school board to com­
mence frivolous litigation in the state court with the hope 
of forestalling or delaying action by the applicants in the 
United States District Court.

And even when the District Court limited its require-



20

ment of immediate compliance, to the admission of three 
Negro children to the first grade at the white school, the 
local school authorities elected to continue their resistance 
not only against that part of the order but also against so 
much of the order as was designed to insure the continued 
operation of public schools. [A. pp. 80, 81]

Plainly, here, the school board makes war on the Con­
stitution. Cf. Cooper v. Aaron, supra.

Ill

The Circumstances Of This Case Require That Relief 
Be Granted All Of The Plaintiffs

From what has been said, it seems to be clear that thirty- 
five of the infant plaintiffs and their parents satisfied 
everything required of them before the June 1 deadline 
date. The evidence does not show how many of the twenty- 
nine applications of August 3 would have been made prior 
to June 1 if the official forms had been available or if the 
applicants had been advised that the official forms were not 
necessary. However, it is clear that even had the applica­
tions been made earlier they would not have been favorably 
considered although applications made later would have 
been favorably considered if they did not request racially 
non-discriminatory assignments. Denial of relief to any 
plaintiff would be endorsement of the dilatory tactics em­
ployed by the school board. War on the Constitution cannot 
be thus condoned. Each infant plaintiff is entitled to in­
dividual relief in addition to the injunction affording class 
relief. Wheeler v. Durham City Board of Education, supra.



21

IV
The Circumstances Of This Case Fully Justify An 

Award Of Counsel Fees

The School Desegregation Cases were decided by the 
Supreme Court on May 17, 1954. Since that time the school 
board has knowingly denied Negro children the protection 
and liberty which is rightfully theirs. The May 22, 1962, 
decision of this Court in Green v. School Board of the City 
of Roanoke, supra, and the decisions therein cited had 
foreclosed every defense the defendants might have con­
ceived.

The plaintiffs’ claim to an award of counsel fees is ad­
equately supported in this Court’s opinion in Local 149 In­
ternational Union UAW, etc v. American Brake Shoe 
Company, 298 F. 2d 212 (1962), viz:

“The power of a court of equity to allow the taxation 
of attorneys’ fees as costs has been before this Court. 
In Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473 
(4 Cir. 1951), this Court dealt with such a situa­
tion. There Chief Judge Parker held that, under the 
Railway Labor Act, Negro fireman were entitled to 
relief against the railroad and the Brotherhood of 
Locomotive Firemen and Enginemen from a dis­
criminatory contract entered into between the union 
and the railroad.

“In sanctioning the award of attorneys’ fees to the 
Negro firemen the Court said at page 481:

“ . . under the circumstances here we think that
the allowance of attorneys’ fees as a part of the 
costs is a matter resting in the sound discretion of



22

the trial judge. Ordinarily, of course, attorneys’ 
fees, except as fixed by statute, should not be taxed 
as a part of the costs recovered by the prevailing 
party, but in a suit in equity where the taxation of 
such costs is essential to the doing of justice, they 
may be allowed in exceptional cases. The justifica­
tion here is that plaintiffs of small means have been 
subjected to discriminatory and oppressive conduct 
by a powerful labor organization which was re­
quired, as bargaining agent, to protect their in­
terest. The vindication of their rights necessarily 
involves greater expense in the employment of coun­
sel to. institute and carry on extended and important 
litigation than the amount involved to the individual 
plaintiffs would justify their paying. * * *’ ”

See, also, Vaughan v. Atkinson, 369 U. S. 527 (1962).

CONCLUSION

WHEREFORE it is respectfully submitted that the 
judgment of the District Court should be affirmed and the 
suspension thereof should be vacated except insofar as said 
judgment overrules the plaintiffs’ motion to amend the order 
of October 22, 1962, and overrules the plaintiffs’ motion 
for the allowance of counsel fees. With respect to said mo­
tions and the ruling of the District Court thereon, it is 
respectfully submitted that the defendants should be en­
joined forthwith from denying any of the infant plaintiffs 
admission to Powhatan School and that a fee for plaintiffs’



23

counsel in such amount as to the Court may seem just 
should be awarded and taxed as costs.

Respectfully submitted,

S. W. T u ck er  
H enry  L. M a rsh , III

Attorneys for Cross-Appellants 
and Appellees 

214 E. Clay Street 
Richmond 19, Va.