Swain v. Alabama Petition for Writ of Certiorari

    I n  th e

Itmtefr (tart of A^prals
F ob the F ourth Circuit 

No. 9184

W arren H. W heeler, an infant, et at.,

— v.—
Appellees,

D urham City B oard oe  E ducation, etc.,
Appellants.

APPEAL PROM THE UNITED STATES DISTRICT COURT EOR THE 
MIDDLE DISTRICT OE NORTH CAROLINA 

DURHAM DIVISION

APPENDIX TO APPELLEES’ BRIEF

J ack Greenberg 
J ames M. Nabeit, III 
Derrick A. B ell

10 Columbus Circle 
New York 19, New York

Conrad 0 . P earson 
M. H ugh T hompson 
W illiam A. Marsh, Jr.

203% East Chapel Hill Street 
Durham, North Carolina

J. H. W heeler
116 West Parrish Street 
Durham, North Carolina

F. B. McK issick
209% West Main Street 
Durham, North Carolina

Attorneys for Appellees



I N D E X

PAGE

Plaintiffs’ Opposition to Defendants’ “ Plan for Fur­
ther Desegregation of the Durham City Schools” .. 7a

Answer of the Defendant to Interrogatories ...........  14a

Excerpts from Depositions Taken July 8, 1963 and 
Introduced in Evidence at Hearing on July 11,
1963 ............................................................ ...................  29a

Testimony of Lew W. Hannen—Direct .............  29a

Testimony of Herman A. Rhinehart—Direct .... 67a

Testimony of D. Eric Moore—D irect........... .......  71a

Excerpts from Hearing of July 11, 1963 ...................  78a

Excerpts from Docket Entries Since Prior Appeal.... la



10-15-62 Filed Mandate from Circuit Court of Appeals 
reversing decision of district court, with costs, 
and remanding action to U. S. District Court for 
the Middle District of N. C., at Durham, for 
further proceedings consistent with the opinion 
of the Circuit Court filed herein.

12- 6-62 Mailed notice to all attorneys of record of confer­
ence with attys. to enter Judgment on Mandate 
and for consideration of other appropriate mat­
ters to be held 12-21-62 at 2:00 p.m. in Dur­
ham. * * *

*  #  *  *  *

1- 2-63 Filed Order on Mandate signed by Judge Stan­
ley, which follows closely proposed rulings dis­
cussed at 12-21-62 hearing. The Circuit Court 
held that the board of education had employed 
race as a factor in assigning pupils or denying 
requests for transfer. Portions of the Order are 
to remain in effect until assignment plans sub­
mitted by the Boards are approved by the court. 
Use of race as a factor has been ruled out en­
tirely. In Durham, school officials are directed to 
reassign Negro pupils for whom the suit was filed 
to the schools of their choice for the second se­
mester of the current year. If parents of the 
children do not wish their children reassigned 
they must give notice to the board by Jan. 15. 
About 125 Negro children are involved in the 
Durham ruling.
The Order also provides that unless the boar’d 
presents a plan for assignments which does not

Excerpts From Docket Entries Since Prior Appeal



2a

employ race as a factor, it is to then give notice 
that each student has “ complete freedom to trans­
fer to a school which is attended solely or largely 
by pupils of another race.” The Board has until 
8-15-63 to give such notice; further the board is 
restrained and enjoined from refusing to freely 
grant such requests. It is further ordered that 
this Court retain jurisdiction of this cause for 
such other proceedings and the entry of such fur­
ther orders as are necessary. Defendants are 
taxed with costs incident to the prosecution of 
consolidated cases.

* # * * *
4- 19-63 Filed Defendant’s Plan for Further Desegrega­

tion of the Durham City Schools pursuant to 
Order on Mandate entered by Court on Jan. 2, 
1963.* * *

5- 1-63 Filed Consent Order signed by Judge Stanley 1
May 1963 extending time until 14 May 1963 
within which Plaintiffs may file objections to the 
desegregation plan filed by defendants 4-19-63. 
All copies of order returned to Mr. C. 0. Pearson 
for distribution per request in ltr dated April 
1963.

5- 14-63 Filed Plaintiffs’ Opposition to Defendants’ “ Plan
for Further Desegregation of the Durham City 
Schools” filed 4-19-63. * * *

6- 10-63 Filed Plaintiffs’ Interrogatories 1 through 20 to
the Defendants. * * *

# # # ■ # #

Excerpts From Docket Entries Since Prior Appeal



3a

6- 24-63 Filed Stipulations signed by Judge Stanley 24
June 1963 granting defendant to and including 3 
July 1963 within which to file answers to inter­
rogatories. Copies mailed to attorneys of record 
through Judge Stanley’s Office.

7- 3-63 Filed Defendant Durham City Board of Educa­
tion’s Answers to Plaintiff’s Interrogatories 1 
through 20; Exhibits 1 through 8 attached.

7-11-63 Called for hearing, being consolidated with 
C-116-D-60, on plaintiff’s opposition to defen­
dants’ plan for further desegregation of Durham 
City Schools.

Informal discussion held concerning plan sub­
mitted by defendant Durham City Board of Edu­
cation.

The burden of proof being on the defendant, they 
commenced with the presentation of their evi­
dence. Defendant Witnesses Sworn:

L. W. Hanner— Superintendent, Durham City 
Schools.

Plaintiff’s exhibits A through C identified and 
introduced into evidence.

After a conference with attorneys in chambers 
during the noon recess and upon reconvening of 
court the court stated it could not sustain the 
plan as submitted by the Durham City School 
Board of Education. Counsel is to draft an 
order, which is to be the court’s order, within the 
framework of the suggestions made by the Court:

Excerpts From Docket Entries Since Prior Appeal



4a

All assignments, and re-assignments, hereto­
fore made by defendant Board for the 1963-64 
school term will remain as they are, subject to 
the right of the parents of all school children 
assigned to an elementary or a Junior High 
School, to request re-assignment to another 
school within the time and manner herein pro­
vided. Any application presently pending for 
re-assignment not acted upon will be granted 
as a matter of course; not later than July 31, 
1963 defendant Board shall notify the parents 
of all children heretofore assigned, or reas­
signed, to an elementary school or a Junior 
High School, that they have the absolute right 
to attend the school of their choice during the 
1963-64 school term provided they make appli­
cation on a form to be provided by the Board 
by August 15, 1963; the notice shall be simple 
in form and unambiguous and shall advise par­
ents, notwithstanding the previous assignment 
or re-assignment, that they have the choice to 
attend any school teaching the grade to which 
they may be assigned; notice may also provide 
that all applications will be granted in the 
order received by the Board and that in the 
event a particular school, by reason of applica­
tion for re-assignment, becomes crowded over 
its capacity, to effectively teach, then the 
Board reserves the right, subject to approval 
of the Board, after counsel for plaintiff have 
had an opportunity to be heard, to assign a 
child to the next nearest white school teaching 
the grade to which the child has been assigned;

Excerpts From Docket Entries Since Prior Appeal



5a

that applications not delivered to the Board by 
5 :00 p.m. on August 15, 1963 or postmarked on 
August 15, 1963 will not be considered; that 
Board will design and make available to appli­
cants a form for making application for re­
assignment; form to only require information 
with respect to name, address of parent, name 
of child, school and grade heretofore assigned, 
or re-assigned, and school and grade to which 
reassignment is desired; this form to be mailed 
by the Board together with the notice of July 
31,1963 to parents; an application shall be filed 
for each school child; High School students 
shall attend the school heretofore assigned or 
re-assigned, for the 1963-64 school term; not 
later than May 1, 1964 the defendant Board is 
to submit to the Court, with copy to the plain­
tiffs’ counsel, a plan for complete and total de­
segregation of the Durham City School System 
for the years 1964-1965 and subsequent years; 
plaintiffs have until June 1, 1964 to file any 
objections to the plan after which the Court 
will set the matter for hearing at the earliest 
practical date.

7-22-63 Called for hearing in Judge’s Chambers in 
Greensboro, N. C.
Following hearing in Durham, N. C. 11 July 1963, 
counsel for the plaintiffs and defendants sub­
mitted proposed orders.
The defendant also tiled with the Court a request 
for certain modification and clarification in the 
tentative order filed with the Court 11 July 1963.

Excerpts From Docket Entries Since Prior Appeal



6a

The purpose of the conference was to consider 
the request for modification and clarification and 
arrive at the definite terms of order to be en­
tered. Oral arguments were heard by the parties. 
Counsel for the plaintiffs to present order that 
the Court drafted and present same for signa­
ture.

7- 24-63 Filed Court Order signed by Judge Stanley 24
July 1963 on Plan for Further Desegregation 
of Durham City Schools with two attach­
ments thereto: Defendant to submit a plan
to the Court by 1 May 1964 for total and complete 
desegregation for the school year 1964-65 and 
subsequent years; plaintiffs to have until 1 June 
1964 to file any objections to said plan, after 
which the Court will set the matter for hearing; 
Court to retain jurisdiction for such further pro­
ceedings as may be necessary and proper; defen­
dant taxed with costs. Notice of filing mailed to 
attorneys of record.

8- 23-63 Filed court reporter’s transcript of hearing
7-11-63 on “ Plan for Further Desegregation of 
Durham City Schools” filed 4-19-63.

8-23-63 Defendant’s Notice of Appeal. Copy mailed to 
Mr. Pearson and Mr. Spears.

Excerpts From Docket Entries Since Prior Appeal



7a

Plaintiffs, by their attorneys, respectfully submit the 
following in opposition to the plan of desegregation filed 
herein on or about April 18, 1963, by defendant Durham 
City Board of Education. Plaintiffs object that said plan 
is inadequate, unreasonable, inequitable, and incomplete, 
under the constitutional standards described by Brown v. 
Board of Education, 349 U. S. 294, and specify as their 
grounds of objection to the plan:

1. The proposed plan is inadequate and unreasonable 
in that it provides for the continuation of racial segrega­
tion and the practice of assigning pupils to schools on the 
basis of race for a number of years; that this requested 
period of delay in eliminating racial discrimination from 
the school system is not “necessary in the public interest 
and .. . consistent with good faith compliance at the earliest 
practicable date” as required by Brown v. Board of Edu­
cation, 349 U. S. 294; that the defendants have filed no 
pleading or other document indicating the nature of any 
administrative problems which require the requested de­
lay in completing desegregation; and that the delay 
requested is not necessitated by any school administra­
tive problems of the kind contemplated by Brown v. Board 
of Education, supra.

: 2. The requirement of paragraph No. 2 of the plan that 
pupils who are now attending elementary schools outside 
their attendance areas must affirmatively request trans­
fers within a specified time period merely in order to 
attend the elementary schools serving the attendance 
areas where they reside, and the absence of any provision

Plaintiffs’ Opposition to Defendants’ “ Plan for Further
Desegregation of the Durham City Schools”



8a

for initial assignment of such pupils to elementary schools 
in the areas where they reside, renders the plan unreason­
able and inequitable. The provision also fails to make 
clear whether pupils already attending school will have 
an unqualified right to attend the schools in their areas 
of residence or whether their requests will be determined 
under some unspecified criteria.

3. The provisions of paragraph No. 5 of the plan which 
continue the present practice with respect to the initial 
assignment of pupils who complete the course in any 
school to a school which has heretofore served the grad­
uates of that school, operates to perpetuate the racially 
segregated school system previously established by the 
defendant, except with respect to those pupils who com­
plete their classes at the schools mentioned in subpara­
graphs 5(a) and 5(b). Paragraph 5 of the plan, thus, does 
not fully eliminate racially discriminatory practices in the 
assignment of pupils, when they are promoted to the junior 
high school or high school levels. The failure of the plan 
to provide for immediate complete desegregation of junior 
high schools is particularly unjustifiable in view of the 
overcrowding in the one all-Negro Junior High School 
(Whitted), the fact that many Negro seventh grade pupils 
are assigned to classes in elementary schools (thus being 
deprived of the full benefit of attending a junior high 
school), and that some Negro ninth grade pupils are 
assigned to attend classes in a high school, rather than 
a junior high school, while no comparable conditions pre­
vail in the assignment of white junior high school pupils. 
Negro pupils are thus required to bear the burden of 
overcrowding to a disproportionate and unnecessary de­
gree because of the segregated system.

Plaintiffs’ Opposition to Defendants’ “Plan for Further
Desegregation of the Durham City Schools”



9a

4. Paragraph 6(a) of the plan also fails to eliminate 
the practice of initially assigning pupils promoted to the 
high school level on the basis of race, but rather, continues 
the prior practices of assigning pupils from white junior 
to white senior high schools and from Negro junior to 
Negro senior high schools. The provision of paragraph 
6(b) of the plan delaying further desegregation of junior 
and senior high schools until the 1966-1967 school term 
is unjustified and unreasonable and is not necessitated by 
any administrative obstacles to desegregation of the kind 
contemplated by Brown v. Board of Education, supra. 
The provision of paragraph 6(b) pertaining to the right 
of pupils attending secondary schools to apply for trans­
fers in order to obtain a desegregated education, and pro­
viding that their transfer requests be determined under 
the pupil assignment standards and criteria adopted by 
the defendant Board in July 1961, is also unreasonable 
and operates to perpetuate racial segregation. The said 
pupil assignment standards and criteria, which have been 
held to have been unconstitutionally administered in prior 
proceedings in this case, are racially discriminatory and 
are inappropriate and unreasonable even as temporary 
measures, in that they have no rational relationship to 
the organization of pupils in classes and schools within 
the school system and they operate to limit the opportu­
nity of pupils to obtain a desegregated education on arbi­
trary grounds not used in initially assigning pupils to 
schools. The provision fails to provide a reasonable, non- 
discriminatory method for pupils who are now attending 
segregated secondary schools (as a result of the racially 
discriminatory assignment practices used heretofore) to 
obtain a desegregated education. Among the many pupils

Plaintiffs’ Opposition to Defendants’ “Plan for Further
Desegregation of the Durham City Schools”



10a

so situated are large numbers of Negro pupils who have 
sought admission to white schools and been denied it under 
the defendant’s discriminatory pupil assignment procedures 
during the pendency of the present litigation.

5. Paragraph 7 of the plan is objected to as ambiguous. 
I f this provision merely continues the prior tuition pay­
ment requirement, such as that for pupils residing out­
side the City of Durham but attending the City schools, 
then plaintiffs have no objection to it. However, if this 
provision is intended, as its ambiguous phrasing implies, 
to impose a tuition payment requirement upon pupils re­
siding within the administrative unit of the Durham City 
schools, who have previously obtained transfers in order 
to attend desegregated schools, then the provision is ob­
jected to as discriminatory and unreasonable in violation 
of the plaintiffs’ rights under the Fourteenth Amendment, 
and the prior judgments of the court in this case.

6. Plaintiffs object to paragraph 8 of the plan in that 
it fails to provide any standards for the assignment of 
pupils who move into the administrative unit during the 
school year.

7. Plaintiffs object to paragraph 10 of the plan in that 
it confers an absolute discretion to change the assignment 
of pupils at any time, without any standards to govern 
the exercise of this discretion, and thus, does not adequately 
protect against the use of racial considerations in the 
change of pupil assignments.

8. The plan makes no provision for the assignment, 
reassignment, initial hiring or placement of teachers and

Plaintiffs’ Opposition to Defendants’ “Plan for Further
Desegregation of the Durham City Schools”



11a

other professional personnel on a nonracial basis, and 
for the elimination of the present segregated personnel 
assignment practices, which '•praetrees operate to impede 
the desegregation of the school system.

w"" 9. The attendance districts adopted by the defendant 
Board for elementary schools are improperly predicated 
upon racial considerations and operate to impede desegre­
gation. The said attendance districts are “ gerrymandered” 
on a racial basis, and are not designed to make maximum 
use of all available facilities, but instead, continue the 
pattern of overcrowding in certain Negro schools and the 
under utilization of certain all-white or predominantly 
white schools in order to preserve racial segregation.

^  10. The plan makes no provision for the planning of
the size and location of new schools and additions to 
schools without regard to race, or for revising existing 
plans for construction already prepared in contemplation 
of a segregated school system, thus impeding desegregation 
of the *ehoei system.

11. The plan has no provision requiring the exercise of 
administrative or other authority to transfer groups or 
classes of pupils on a temporary emergency basis, or on a 
permanent basis, without regard to race or color and the 
preservation of the segregated system. An example of 
the Board’s failure to use such authority on a non-raeial 
basis occurred during the spring of 1963 when part of the 
all-Negro East End Elementary School was destroyed by 
fire. On this occasion the Board refused requests by Negro 
parents to transfer Negro children or classes from East

Plaintiffs’ Opposition to Defendants’ “Plan for Further
Desegregation of the Durham City Schools”



12a

End to nearby white schools which had available space. 
Instead, the Board insisted upon operating the partially 
destroyed school on a double session basis, which reduced 
the length of the school day of the Negro pupils from ten 
to twenty-five percent in various grade levels. The re­
fusal to transfer these Negro pupils to nearby white 
schools, even though the East End attendance area is 
bordered by the area of white schools which had available 
space, operated to preserve segregation in the system and 
was on the basis of race.

12. The plan fails to provide any racially nondiscrimi- 
natory method by which Negro pupils who reside in the 
attendance areas of all-Negro schools can obtain a deseg­
regated education in that white pupils living within the 
areas of all-Negro schools are and have consistently been 
allowed to attend all-white or predominantly white schools 
in other areas, but Negro pupils residing in the same areas 
are required to remain in the all-Negro schools.

13. The plan contains no provision for eliminating racial 
segregation in summer school programs, or in other special 
educational programs operated by the school system.

14. The plan contains no provisions to insure that pupils 
and parents will be adequately notified of their rights to 
desegregation under the plan. It also contains no provi­
sions to insure that necessary forms for seeking transfer 
applications are freely and readily available to parents or 
other persons within the community who desire to encour­
age parents to exercise their rights to desegregation under 
the plan. £ e c  .iV v* I

Plaintiffs’ Opposition to Defendants’ “Plan for Further
Desegregation of the Durham City Schools”



13a

W herefore, plaintiffs respectfully submit that the plan 
should be disapproved and that defendants should be re­
quired to promptly submit and implement a new or 
amended plan which is adequate in respect to the matters 
set forth in plaintiffs’ objections, or such of them as the 
Court may deem meritorious, and with respect to any other 
inadequacies of the plan which may appear to the Court 
after hearing of the matter, Plaintiffs further request that 
the Court grant them such other and further relief as the 
Court may deem just and proper.

Conrad 0 . P earson
M. H ugh T hompson
W illiam A. Marsh, Jr.

203!/2 East Chapel Hill Street 
Durham, North Carolina

J. H. W heeler
116 West Parrish Street 
Durham, North Carolina

F. B. McK issick
209^ West Main Street 
Durham, North Carolina

Jack Greenberg
James M. Nabrit, III
Derrick A. B ell, Jr.

10 Columbus Circle 
New York 19, New York

Attorneys for Plaintiffs

Plaintiffs’ Opposition to Defendants’ “Plan for Further
Desegregation of the Durham City Schools”



14a

Answer o f  the Defendant to Interrogatories

Answer of the defendant to the interrogatories submitted 
to it by the attorneys for the plaintiffs. A stipulation was 
entered by the Court extending the time to answer said in­
terrogatories to and including July 3, 1963.

1. Question : List for each public school operated by the 
defendant Board the following:

a. Grades served by each school durng 1962-63 school 
term;

b. Planned pupil capacity of each school;

c. Number of white pupils in attendance at school in each 
grade level as of most recent date for which figures are 
available for 1962-63 term;

d. Number of Negro pupils in attendance at school in 
each grade level as of most recent date for which figures 
are available for 1962-63 term;

e. Number of Negro teachers and other administrative or 
professional personnel and the number of white teachers, 
etc., employed at each school during 1962-63 school term;

f. Pupil-teacher ratio at each school during 1962-63 
school term (most recent available figures);

g. Average class size for each school during 1962-63 
school term (most recent available figures).

A nswer: See Exhibit No. 1 attached hereto for answer 
to subsections (a), (b), (e), (f) and (g). See Exhibit No. 2 
attached hereto for answer to subsection (c). See Exhibit 
No. 3 attached hereto for answer to subsection (d).

[Note : Part of the answer to this Interrogatory was 
printed in the appellants’ appendix, pp. 34-35. The balance 
of the answer is set forth below.]



Question 1 -C

DURHAM CITY SCHOOLS 
IN TER RO G A TO RY, JUNE, 1963

NUM BER OF WHITE PU PILS AT EACH  GRADE L E V E L
1962-63

Durham  High S ch ool — i | 638 526 443

B rogden  J r . High 203 188 182

C a rr  J r . High 266 286 259

H olton 193 176 164

Club B ou levard 98 85 101 86 93 102

E dgem ont 77 59 67 58 52 60

F u ller 15 16 26 16 18 24

H ollow ay Street 57 55 57 64 55 60

Lakew ood 58 66 62 62 54 47

Mo rehead 49 44 63 58 67 53
1
N orth Durham 53 54 53 61 52 52

E. K. Pow e 92 81 102 88 90
r

93

Y, E. Smith 93 80 102 83 69 74

Southside 29 20 20 30 25 18

G eorge  Watts 66 61 73 62 74 57 i-------



15a

Exhibit No. 2



16a

Exhibit No. 3

(See opposite)



(Question ID)
DURHAM CITY SCHOOLS

INTERROGATORY, JUNE 1963

NUMBER OF NEGRO PUPILS AT EACH GRADE LEVEL 

SCHOOL 1 2 3 4 5 6 7 8 9  10 11 12

HILLSIDE I
1

142 182 475 201 205

WHITTED 360 62? 324

BURTON 120 132 131 121 142 112

CREST STREET 38 31 24 22 28 28 37

EAST END 126 134 118 129 102 88

FAYETTEVILLE ST. 66 87 95 71 73 93 33

LYON PARK 83 87 71 72 74 77 59

PEARSON 150 161 189 132 141 164

SPAULDING 108 95 73 88 103 8?

WALLTOWN 38 41 34 37 27 36 22 J.__



17a



Answer of the Defendant to Interrogatories

2, Question: List the data requested in interrogatory 
numbered 1(a) through (g) above, with respect to the 
forthcoming 1963-64 school term, giving the best available 
estimates or projections if no precise data is available and 
stating how such estimates and projections were made.

A nswer: See Exhibit No. 4 attached hereto.



Q uestion #2 
( a, b, e, f, g)

1963-64 est

DURHAM CITY SCHOOLS 
IN TER RO G A TO RY, JUNE, 1963

i SCHOOLtt

f

G R A D S CAPACITY
TEACHERS 
W. N.

P U P IL - ! 
TEACH ER 

RATIO

AVERAG E
C l a s s
SIZE

1i
1 Durham High S chool . 10-12 1770 79 24 24

' B rogden  Jr. High 7 -9 720 24 26 26

C a rr  Junior High 7-9 870 35 26 26

H olton Junior High 7-9 630 25 24 24

Club B ou levard 1-6 630 21 27 30

E dgem ont 1-6 450 14 27 27

• F u ller 1-6 210 8 14 19

H ollow ay Street 1-6 510 15 25 29

Lakew ood 1-6 320 13 30 30

Mo rehead 1-6 390 1 3 28 30

Nnrth Durham 1 -6 33D 12 26 2 6 __ _ _

E. K. Pow e 1 -6 660 20 27 30

Y. E . Smith 1 -6 600 21 24 28

Souths ide 1 -6 160 _ .  .. . _ a _ _ . ...... j  a.. . . 2.4.

G eorge  Watts 1-6 390 15 26 30

H illsid e  High School 9 -12 1350 63 22 22

Whitted Junior High 7 -9 1 320 54- . 26

Burton 1-6 690 28 28 32

C re s t  Street 1 -7 210 8 24 27

East End 1-6 720 26 29 31

F ayettev ille  Street 1-7 630 22 26 29
Lyon Park 1-7 570 20 27 30
P ea rson 1-6 900 34 28 31
Spaulding 1-7 600 23 27 30

.. W aillsum ......................... 1-7 270 10 * 25 i 31



19a

Exhibit No. 4



20a

Exhibit No. I-A

(See opposite) 1®°



Question 2 -c

DURHAM CITY SCHOOLS 

IN TERRO G ATO RY, JUNE, 1963 

NUM BER OF WHITE PU PILS A T  EACH GRADE L E V E L
1963-64 - estimate

SCHOOL 1 2 3 4
i

5 6
i

l  j 8 9 10 Ii
11 ji

......(i
12 I

Durham  High School
s
i.1

i
j 650 673

|
523 >

B roed en  Jr . High

(1»200 200 186

C a rr  J r . High
] !

277 303 282

H olton Jr., High 236 191 167 j

Club B ou levard 98 94 92 95 88 90
!i

__ ___i

Edgem ont 68 72 60 6 3 53 52
1
j

F u ller 14 14 19 25 19 18
1
i

i
!

............ J----------------------------------------- -

H ollow ay Street 61 55 55 38

1

63 53
1 1tj

Lakew ood 61 57 65 62 62 54
S: j

«J_  ......

Mo rehead 65 42 47 62 61 64
T
|

___ J_______

N orth Durham 48 55 49 46 66 46 l
! 1j
\ ?

E . K. Pow e 89 89 98 89 87 83 i1!j
1

L  .. J
Y . E . Smith 85 88 75 102 82 72 j

j
! 1! ;i

Souths ide 24 26 19 21 27 25 1 i
1
!

i l

G eorge  Watts 66 62 56 72 63 | 73
..... i. ..

f....... .
!i
1

i
1

I
|
i\

i
f
-L

j



21a



22a

Exhibit No. 4-A

(See opposite) tSE



Question 2-d
DURHAM CITY .SCHOOLS

INTERROGATORY, JUNE, 1963

NUM BER OF NEGRO PU PILS AT EACH GRADE L E V E L  
1963-64 estim ate

SCHOOL 1 2 3 4 5  6 ? 3 9 1 0 1 1  12

1

Durham High School

.... .j =

9 9 8

B rogden  Jr, High 25 4

C a rr  J r . High 4 3 7

Holton J r . Hierh 6 3 1

Club B ou levard

Edgem ont 2 1 2

F u ller 3 1 1 1

H ollow ay Street 2 1 1

Lakew ood

M orehead 4 3 1 2

N orth  Durham 1 1

£ .  K. Pow e
i

L_.......... L _

Y .  E. Smith - _ .

Southside 1 L......

G eorge  Watts 2
1

1 i ______



23a



24a

Exhibit No. 4-A

(See opposite) UST



Question 2-d

DURHAM CITY SCHOOLS
INTERROGATORY, JUNE, 1963

NUM BER OF NEGRO PU PILS A T  EACH GRADE L E V E L
1963-64  estim ate

SCHOOL 1 2 3 4 5 6 7 8 9 10 11 12

H illside  High School 240 500 415 190

Whitted J r . High 468 595 358

Burton 130 110 1 28 134 120 140

C re s t  S treet 35 32 3C 22 19 28 26

E ast End 147 114 136 117 132 91

F a yettev ille  St. 74 63 87 88 71 72 93

Lyon  P ark 74 73 89 70 69 79 75

P e a rso n 162 136 168 173 134 142

Spaulding 108 80 91 70 90 100 87

W alltown 34 39 41 33 i 36 29 37 i 1
1 !



25a

Exhibit No. 4-A



26a

Answer of the Defendant to Interrogatories

4. Question: State the number of Negro pupils and the 
number of white pupils, by grade level, residing in each 
attendance area established by the school board during the
1962- 63 school term. Give the same information for the
1963- 64 school term, and if definite figures are unavailable, 
give the best projections or estimates available, stating the 
basis for any such estimates or projections.

A nswer : The best estimate that can be given to the num­
ber of Negro pupils and the number of white pupils, by 
grade level, residing in each attendance area established by 
the School Board during the 1962-63 school term will be 
found in data given for question 1-c and question 1-d. The 
best estimate of the same information for the 1963-64 
school term is given in answer to question 2-c and question 
2-d. See Exhibits No. 4-a attached hereto.

6. Question: State with respect to the 1962-63 term, 
the total number of white pupils who reside in the attend­
ance area of an all-Negro school, but were in attendance at 
an all-white or predominantly white school. Indicate with 
respect to such pupils, the following:

a. Number, by grade, residing m each Negro school at­
tendance area;

b. Schools actually attended by such pupils in each 
Negro school attendance area.

A nswer: See Exhibit No. 5 attached hereto.



Question #6 DURHAM CITY SCHOOLS
INTERROGATORY, JUNE, 1963

NUM BER OF WHITE PU PILS IN NEGRO ATTE N D A N CE AREAS

SCHOOL
1 2

GRADE
3 4 5 6 T otal

Burton 2 1 3 2 3 2 13

C re s t  S treet 1 1 2

E ast End 5 4 4 4 2 3 22

Lyon P ark 3 i 3 \ 1 1 10

Wall town 6 2 5 2 1 16

T otal 11 12 12 1 3 8 7 63

SCHOOLS A C T U A L L Y  ATTEN D ED  BY THESE PU PILS

SCHOOL GRADE
1 2 3 4 5 6 T otal

F u ller 1 1 3 2 2 1 11

H ollow ay Street 2 2

Lakew ood 1 2 1 1 5

M orehead 2 1 1 '5 5

N orth Durham 2 3 1 2 ) 9

E. K. Pow e 5 2 5 2 14

Y. E. Smith 2 I 3 2 3 2 13

Southside 1 1 2

G eorge  Watts 1 1 2

Total 11 12 1 2 1 3 8 7 63



Exhibit No. 5



28a

Answer of the Defendant to Interrogatories

20. Question: State with respect to any new school 
construction which is now contemplated, the following with 
respect to each such project:

a. location of contemplated school or addition;

b. size of school, number of classrooms, grades to be 
served, and projected capacity;

c. estimated date of completion and occupancy;

d. number of Negro pupils and white pupils attending 
grades to be served by school who reside in existing or 
projected attendance area for such school.

A nswer :

a. The only new school construction contemplated at 
the present time is Shepard Junior High School on Dakota- 
Nash Streets.

b. The school will have seventeen (17) classrooms to 
serve approximately five hundred (500) pupils in grades 
seven through nine with ancillary facilities provided for 
future addition of classrooms.

c. It is estimated that this building will be completed 
and ready for occupancy on or before September 1, 1964.

d. No attendance area has been projected for this new 
school. It is being built primarily to relieve over-crowded- 
ness at Whitted Junior High School.



29a

Excerpts From Depositions Taken July 8, 1963 and 
Introduced in Evidence at Hearing on July 11, 1963

P roceedings

Mr. Nabrit: These depositions are being taken at this 
time and place by agreement of counsel.

The first witness is Superintendent Hannen.

—3—

L ew  W. H annen , was duly swTorn and testified as follows:

Direct Examination by Mr. Nabrit:

Q. Mr. Hannen, state your full name. A. Lew W. 
Hannen.

Q. And your position? A. Superintendent, Durham City 
Schools.

Q. For what period? A. 1957 to the present.
Q. On or before May 1, 1963, the School Board filed with 

the Federal Court a plan for further desegregation for 
Durham City Schools, about the 18th of April; are you 
familiar with that? A. Yes, sir.

Q. Could you tell me how this came to be adopted; did 
you recommend this plan to the Board; did you partici­
pate in preparing it? A. I participated in its preparation.

Q. Did you work with the whole Board or the committee; 
how was the plan prepared? A. It was discussed from time 
to time with various members of the Board, and I think

—4—
it was discussed also from time to time in sessions with 
the Board.

Q. Did you recommend that the plan be adopted in its 
present form? A. Yes, that was my recommendation.

Q. I ’d like to go through the plan with you, through a 
number of the paragraphs, and ask you a question about



30a

the provisions. A. Now wait a minute, this is a resolution 
of pupil assignments that I have.

Q. Paragraph numbered one applies to pupils who are 
entering the first grade next year, during the next school 
year. Was this provision in effect during the present year? 
A. Yes.

Q. Something like that. Am I correct in understanding 
that the school attendance areas referred to were adopted 
in 1962? A. May, 1962.

*  #  *  *

—5—
# * # * *

Q. These school zones apply only to the elementary 
schools? A. That’s correct.

Q. You consulted all the elementary principals? A. Yes, 
let’s say all of them furnished information relative to the 
map.

Q. And the zones were then recommended by you and 
adopted by the Board? A. That’s right.

Q. What were the standards you used in deciding where 
to place zone lines, some of the factors? A. Primarily to 
use the existing facilities to the best advantage, currently

—6—
and in prospect.

Q. Could you elaborate on that; do you mean by in terms 
of enrollment and capacity of the schools? A. That’s right.

Q. Any other factors? A. In some instances, it was 
necessary to—I ’m not sure on that point.

Q. Now, considering the plan, paragraph two deals with 
pupils who are attending elementary schools outside their 
attendance areas, and it gives them a right to request 
transfers to the school in their area; can you tell me first 
whether or not such pupils have a right to go to the 
schools in their area, or are there some standards applied

Lew W. Ilannen—for Plaintiffs—Direct



31a

if they are requested to make such a request! A. I don’t 
follow your question; what do you mean by right?

Q. Is such a request automatically granted; that is a 
request of the pupil to go to the school in this area; or will 
it be—have there been any? A. To clarify your question, 
you are referring to pupils in grades 2 to 6, since the first 
graders were assigned in these areas, and grades 2 to 6, 
some of them were not originally?

Q. Yes; last year and this coming year, it’s the same 
situation? A. That’s right. Every pupil in grades 2

“ 7—
through 6 last year who applied to be reassigned to the 
school in his area according to the map, when his place of 
residence was outside the area, and therefore he went back 
to the school that he had attended the year before; every 
single pupil who applied to transfer was approved by the 
Board of Education in grades 2 through 6.

Q. I don’t think we are talking about the same pupils; 
I was talking about pupils that are dealt with in paragraph 
two of the plan, which refers to pupils assigned to an ele­
mentary school outside his attendance area. A. That’s 
right.

Q. And it says he can, within ten days, request transfer 
to the elementary school serving the area where he lives. 
A. Yes, that’s correct.

Perhaps this will clarify it; you are aware, I am sure, 
that this map divided into the various areas was made to 
apply to the first grade only?

Q. Yes. A. This last year.
Q. Yes. A. That left certain pupils in grades 2, 3, 4, 5 

and 6, who went back to the school they attended the year 
before, which would be the 1961-62 school year.

Q. Yes. A. These pupils, that is some of them at least, 
resided in another school area than the one that they

Lew W. Hannen—for Plaintiffs—Direct



32a

Lew W. Hannen—for Plaintiffs—Direct

—8—
normally would have attended, if all six grades had been 
assigned at one time, according to the map.

Q. Right. A. These are the pupils, I take it, referred 
to in paragraph two?

Q. Yes. A. Any of those pupils who applied for re­
assignment on the same basis as the first grade pupils, that 
is, to the school serving their area—

Q. Yes. A. Any and all of those who applied for re­
assignment within this ten-day period were reassigned 
by the Board according to their wishes.

Q. Do you have any idea how many such pupils there 
were last year and how many there are for the coming 
school year? A. I don’t have that figure at hand; there 
were a number of them.

Q. When was the ten-day period; ten days after the 
end of school, end of the school year? A. It states here 
that it was ten days after the receipt of their report card 
assignment, and the report cards were mailed out imme­
diately following the close of school.

Q. When did school close this year? A. School, each 
year, closes about the first of June.

Q. Was there some special reason for adopting the ten-
—9—

day deadline? A. I think one reason was that this ten- 
day period is the length of time ordinarily allowed in con­
sideration of these various types of applications for assign­
ment and reassignment. Also the necessity fairly early 
in the summer of determining what your needs are going 
to be in the way of staff members for the following year, 
so that you can employ teachers, distribute materials and 
the like.



33a

Q. Paragraph, three and four refer to pupils who changed 
their residence during the school year; do I understand 
that this means that when a pupil changes his residence 
during the year, he would remain in the school unless there 
is some special request to move; is that generally how it 
operates? A. You are talking about three?

Q. Three and Four. A. All right; take them separately. 
Three, simply says that the pupil changes his residence 
during the school year—the word there is “may”, he may 
be permitted to complete the year in the school that he is 
already attending, even though he does change his resi­
dence. The reason for that was, for instance, you have a 
pupil who has gone six years to a given elementary school; 
he is very much attached to that school; if his parents move 
in the spring, in the sixth grade year, he finishes the year.

Q. He also may move? A. He may move if he wants to,
— 10—

if it’s clear across town and transportation makes it an 
inconvenience, and you would assign him to a new school 
on request.

Q. Paragraph five, A and B, deal with the assignment of 
pupils graduating from certain elementary schools; first, 
do I understand this correctly that certain elementary 
schools are designated as schools whose graduates go to 
certain junior high schools; just explain how the elemen­
tary graduates are assigned to junior high schools? A. 
There again, it’s a matter of using building facilities to the 
best advantage; not having a number of vacant class 
rooms at one place, and schools being on double sessions 
at another instance; in order to use the available class 
rooms to the best advantage, it has been necessary for a 
number of years in Durham, as in other communities, to as­
sign graduates of certain elementary schools to specific

Lew W. Hannen—for Plaintiffs—Direct



34a

junior high schools, and junior high schools to senior high 
school. It has been customary for generations in all parts 
of the country; now we have continued that practice here; 
largely, so that pupils would have seats to sit in and rooms 
to go to.

Q. Under your prior system, before this present plan 
we are talking about was adopted, all of the pupils attend­
ing the Negro elementary schools were assigned on grad­
uation to Whitted Junior High School? A. That was not 
true; the pupils who had previously been assigned to for­
merly all-white junior high schools would go on to Dur-

—I l ­
ham High School upon graduation; there wasn’t a cleavage 
there.

Q. Perhaps I didn’t make myself clear; I said the grad­
uates of the all-Negro elementary schools, the people who 
had completed the sixth and seventh grade, that went to 
the Negro schools, went to the Negro High School? A. 
There would be an exception, even to that. The sixth grade 
pupils who lived out of the area, in this paragraph two, 
over here, who asked to go to schools that had previously 
been occupied largely by white pupils, then the sixth grade 
pupils who were reassigned by the Board would go then 
to one of the integrated junior high schools.

Q. You mean if they were going to one of the desegre­
gated elementary schools? A. Yes.

Q. But if they were going to one of the all-Negro ele­
mentary schools, they would all go to Whitted? A. They 
would all go to Whitted.

Q. This is a list of the schools. A. Which one do you 
have there; Exhibit 1?

Q. For this purpose, I just want you to tell me which 
elementary schools assign pupils to which junior high

Lew W. Hannen—for Plaintiffs—Direct



35a

schools. A. Club Boulevard pupils were assigned to 
Brodgen Junior—

Mr. Spears: Excuse me a minute; I don’t want 
to belabor this thing; but you said “ assigned” ; you

- 1 2 -
mean initially assigned?

The Witness: Initially assigned. Club Boulevard 
pupils, E. K. Powe pupils, that’s P-o-w-e, and part 
of the George Watts pupils were assigned to Brod­
gen Junior High School. Fuller pupils, Lakewood 
pupils, Morehead pupils, North Durham pupils, and 
Southside pupils, and part of the George Watts 
pupils were assigned to Carr Junior High School.

Mr. Spears: I don’t want to interrupt you ; when 
you say “ assigned” , you mean initially assigned?

The Witness: Initially assigned. Edgemont pu­
pils, Holloway Street pupils, Y. E. Smith pupils 
were initially assigned to Holton Junior High 
School. Burton, Crest Street, East End, Fayette­
ville Street, Lyon Park, Pearson, Spaulding, and 
Walltown pupils were initially assigned to Whitted 
Junior High School; except in those instances in 
which the seventh grade was retained in the ele­
mentary school that they were already attending, 
and except, of course, the sixth grade pupils who 
had already been transferred over to the schools.

By Mr. Nabrit:

Q. That’s not an exception to this list? A. No.
Q. And for high school initial assignment purposes? A. 

Brogden Junior High School, Carr Junior High School, 
and Holton Junior High School pupils were originally

Lew W. Hannen—for Plaintiffs—Direct



36a

scheduled to Durham High School; Whitted Junior High 
School pupils were originally assigned to Hillside High 
School.

— 13—
Q. Now, going back to paragraph five of the plan, para­

graph 5-A, and 5-B, changed this pattern as to two elemen­
tary schools, don’t they! A. That’s right.

Q. So the Crest Street school, which is an all-Negro 
school, the graduates there will go to Carr Junior High, 
which is a predominantly white junior high school, cor­
rect? A. That’s right.

Q. And then you have a similar situation with the gradu­
ates of Walltown going to Brogden? A. That’s right.

Q. Crest Street and Walltown have seventh grade 
classes, don’t they? A. That’s right.

Q. This is—am I correct in understanding that the ideal 
organization is six elementary grades, three junior high 
grades, and three senior high grades; is this what the 
school system is trying to bring about, a 6-3-3 organiza­
tion? A. A 6-3-3 organization is in effect in some of the 
best school systems in the United States, and the 8-4 system 
is in effect in the best school systems in the United States. 
Ordinarily, where there is room, we have attempted in the 
past in Durham to follow a 6-3-3 plan of organization.

Q. When I use the term “ ideal” , when I refer to what
— 14—

Durham is trying to do, 6-3-3? A. That has not been pos­
sible in a number of instances; for example, at the George 
Watts School, seventh grade pupils were retained in that 
school when there was not room in Carr Junior High School 
for them. At the E. K. Powe School, before Brogden Junior 
High School was completed, you had nine grades of pupils; 
the first nine grades, for many, many years, in one school.

Lew W. TIannen—for Plaintiffs—Direct



37a

Q. Why is it, if you know the reason, that the plan didn’t 
assign seventh grade pupils at Crest to Carr Junior High, 
the seventh grade pupils at Walltown to Brogden this cur­
rent year; is there some reason for retaining the seventh 
grade there next year! A. It was largely a matter of 
using building facilities to the best advantage, there again, 
I think. We have at Carr Junior High School— this may 
not seem to add up when you look at the figures—but you 
have at Carr Junior High School, for example, three class­
rooms in the basement that have no outside light or ventila­
tion whatsoever, except what is forced through a tube by a 
fan from the outside wall. Now, they are counted in the 
capacity at Carr Junior High, but they are most undesira­
ble rooms, and in order to use that building to the best 
advantage, even using those rooms, we found that it was 
necessary to limit this to one group at the present time.

Q. I understand that there are only about—from the
- 1 5 -

answers to the interrogatories—that there are only about 
twenty-six seventh grade pupils at Crest Street; wouldn’t 
there be room for them at Carr next year? A. I think that 
it is a matter, there again, of whether you are going to 
overcrowd a school that is already using, for over a hun­
dred pupils, rooms that are entirely inadequate for instruc­
tional purposes as compared to any other junior or senior 
high school in the city.

Q. Is Carr an older building or what? A. Yes, Carr is 
one of the older schools.

Q. But it is, nevertheless, going to be under capacity 
next year, is it not? A. If you count these rooms that are 
not suitable for instructional purposes.

Q. Have they been used in the recent past? A. Yes, be­
cause there was nowhere else to put the pupils.

Lew W. Hannen—for Plaintiffs—Direct



38a

Q. The general idea is about thirty pupils to the class 
room, isn’t it? A. Thirty to a classroom is the standard 
that we have been using.

Q. What about the same situation, that is the pupils at 
the Walltown School, in the seventh grade; why did you 
and the Board decide not to move them to Brogden in Sep­
tember of ’63? A. This was following, again, the pattern 
that we have been using of accommodating one grade at a

— 1 6 -
time, under a process of making this change over a period 
of more than one year.

Q. Was there thought to be some advantage while de­
segregating the eighth grade and not the seventh at this 
time? A. Yes.

Q. Is that the idea? A. Yes, there was a very great ad­
vantage inasmuch as the eighth grade pupils have shop for 
the boys and have homemaking for the girls, and you don’t 
have facilities at the Walltown or Crest Street Schools 
either one to teach eighth grade pupils those subjects; you 
do have it at the junior high schools; they are not taught in 
the seventh grade, those subjects.

Q. There are no eighth grade classes in elementary 
schools in the city? A. No.

Q. Perhaps I need to know something about the seventh 
grade program. Does a child in the seventh grade at one 
of these junior high schools have one teacher, does he have 
several teachers for the different subjects? A. Some of 
them have one teacher and some of them have two.

Q. In the junior high schools? A. Yes, sir.
Q. Well, now, what happens at the eighth grade level, do

— 17—
they have more than two teachers? A. More than two 
teachers.

Lew W. Ilannen—for Plaintiffs—Direct



39a

Q. What, in your view, do you think—do you think that 
there are any advantages that the pupils, who take seventh 
grade at the junior high schools, have over pupils who take 
seventh grade at the elementary schools, in terms of a 
general overall program? A. It would be my opinion that 
there would be certain advantages; there are a number of 
other educators, at least as well qualified as I am, that 
would say there are not.

Q. What would you think are some of the advantages ? 
A. Well, you would have a group, for example, over a 
three-year span would be more or less the same age, 
whereas at the other school, you would have the seventh 
year age span; that could be a possible advantage; I ’m not 
sure that it is.

Q. Well, what about in terms of the facilities available ? 
A. Well, of course, if you have one teacher in a class room, 
it wouldn’t matter as far as that goes, as far as the instruc­
tion is concerned; it wouldn’t matter whether she was in 
junior high school or elementary school; you would have 
the same type teaching situation, and they do take exactly 
the same subjects.

Q. Do seventh grade pupils have all the same subjects? 
A. Exactly the same in the elementary school as they do 
in the junior high school in the seventh grade.

—18—
Q. The seventh grade in junior high school, you don’t 

have any specialized teachers for music and art and gym? 
A. Yes, you do, and you also have them in the elementary 
schools; some school systems don’t have, but we do. Greens­
boro doesn’t have it. We have special teachers in art, music 
and physical education for the elementary school, the same 
as you do for the junior and senior high school.

Q. What about extra curricular programs in junior high 
school, are there some of them available in elementary

Lew W. Hannen—for Plaintiffs—Direct



40a

school? A. No, I think not. Our clubs, for example, are 
ninth grade.

Q. Ninth grade only? A. Yes. Our athletic program, 
our athletic program is almost entirely ninth grade; some 
eighth grade pupils.

Q. Do I understand that the eighth grade is the first time 
the pupils begin to go around from classroom to classroom? 
A. That’s right.

Q. And it’s departmentalized? A. It ’s semi-departmen- 
talized; you call it a block program. Now some teachers 
would have them two periods, and some teachers would 
have them one period in the ninth grade; so its not com­
pletely departmentalized, in a situation in which you go 
to a different teacher each period.

—19—
Q. When you go to your new junior high school build­

ing, is it the plan to bring this departmental type program 
down to the seventh grade level? A. No, we will maintain 
the same type organization in which some pupils have one 
teacher all day long and other pupils have two.

Q. Now, do these pupils in the seventh grade in the 
elementary school, do all of them have one teacher or do 
some of them have two also? A. One teacher except in 
situations in which there would be several sections of sev­
enth grade; it has been true when seventh grades have been 
kept in an elementary school, that they would have two 
teachers; there have been instances of that.

Q. Well, this year, just one? A. I am not sure about 
one school, that did possibly have two teachers.

Q. Do these two teachers, if there are two teachers, at 
the seventh grade level, for a group of children, do they 
divide the subject matter; in other words, some teachers 
would take English and History and others would teach 
Math and Science? A. That’s correct.

Lew W. Hannen—for Plaintiffs—Direct



41a

Q. So that specialization is an advantage, isn’t it, for
— 20—

instructional purposes? A. There is a possibility, but it 
is largely a matter of how good the teacher is; we have 
one outstanding educator, for example, William Brownell, 
who is the head of the education department at the Uni­
versity of California, who maintains at the high school 
level, that you ought to have one teacher, one teacher teach­
ing a different subject one period all day long.

Q. I gather that Durham School System doesn’t sub­
scribe to that program? A. Not yet. What I ’m trying to 
say is that, as you recognize, you can get about as many 
opinions on types of school organization as you have people 
in a group talking; a group of so-called educators.

Q. Do I understand that here in Durham, at least in 
terms of the way the schools are run here, where you are 
able to have two teachers per class, you do it, rather than 
have one? A. We would prefer, in Durham, to do it that 
way in most cases.

Q. Getting baek to the plan again; paragraph 5-C deals 
with ninth grade pupils in certain areas who are assigned 
to Hillside for ninth grade; what about that; are you plan­
ning to eliminate that when you get your new junior high 
school? A. That is a temporary measure for the school

- 21-

year 1963-64, and upon completion, of Shepherd Junior 
High School, we would hope to eliminate ninth grade pupils 
from assignment to Hillside High School. Here again, 
the school population on that extreme south side of the city, 
has been growing so fast and there was a very large 
area annexed, it included three hundred and sixty-seven pu­
pils at one time.

Lew W. Hannen—for Plaintiffs—Direct



42a

Q. When was that approximately? A. Four years ago? 
1959 or ’60; three or four years ago, which has made it 
necessary to use the more or less makeshift arrangement 
temporarily until school buildings can catch up to school 
population.

Q. In terms of present building plans, there is only the 
one school that is being planned? A. This is the last one 
of the schools to be built, or additions to schools to be built 
under the last bond issue.

Q. Have you recommended any, or decided to recom­
mend any further construction? A. We have no construc­
tion planned at the present time; for several reasons. In 
the first place, urban renewal here is going to upset school 
patterns considerably; a through-way through the south­
ern part of the city is going to change resident distribution 
somewhat; and we have no money at the present time.

Q. I see. In terms of your junior high school enrollment, 
will the school capacity be about equal to the enrollment

— 22—

when the new junior high school is built? A. It is antici­
pated that the new junior high school will be large enough 
to accommodate pupils at the time it is opened; it is not 
certain at all how long that will continue to be true.

Q. What about your high school situation here; you are 
about a hundred pupils over capacity, the two high schools 
combined? A. No, there is considerable room at both 
senior high schools, as a result of large additions being 
made at both the schools just recently.

Q. The capacity figures in the interrogatories led me to 
think that Durham High was over capacity or close to 
capacity; maybe I ’m wrong. A. Let me correct you there; 
the capacity of Durham High School is listed as 1770; the 
enrollment is given as 1607. The capacity of Hillside is 
listed as 1350, and the enrollment as 1205.

Lew W . Hannen—for Plaintiffs—Direct



43a

Q. I guess I was thinking in terms of next year; I  was 
thinking in terms of next year’s estimates in enrollment at 
Hillside, or rather at Durham; and that indicated that it 
was going to be over capacity. A. Next year, that is true.

Q. But still with the two combined, the high schools just 
about meet the need? A. I am not sure; I haven’t studied 
those figures.

—23—
Q. In your plan, in paragraph six, it indicates that some 

— 6-B, some further proposals of desegregation of junior 
and senior high schools will be submitted not later than 
May 1, 1966; what was the reason for that particular time? 
A. It was the feeling of the administration, and the Board 
of Education, that because of the rapidly changing com­
plexion of the population in Durham, because of urban 
renewal, the through-way that we mentioned, and the fact 
that it is apparent that further junior and senior high 
school facilities are going to have to be built; let me say, 
a junior and/or senior high school facilities are going to 
have to be built in the very near future ; that there was no 
way of knowing in this present movement of population, 
just where those schools ought to be located. Therefore, 
we are at a loss at the present time to formulate any plan 
for the junior and senior high schools that might be a sensi­
ble plan three or four years from now; we did not want to 
spend a large sum of money to build any further junior or 
senior high schools in this unsettled condition and find that 
the schools would be built with an investment of perhaps a 
million dollars one place and the population be somewhere 
else.

Q. How does that relate to the desegregation problem? 
A. I haven’t tried to relate it to it except to ask for time 
to get conditions settled so that we can plan further with

Lew W. Hannen—for Plaintiffs—Direct



44a

Lew W. Eannen—for Plaintiffs—Direct

— 24—
some degree of certainty as to what the situation is going 
to be.

Q. As the situation exists now, you have Negro pupils in 
the northern part of the city, in the upper grades, Negro 
pupils up around Walltown and Crest Street! A. Yes.

Q. Northern part, who, if they are of high school age, 
have to go down to Hillside High, which is farther away 
from them than Durham High; isn’t that roughly true! 
A. They don’t have to go down there; they are initially 
assigned down there.

Q. I see. A. All of them have the opportunity to ask 
for reassignment.

Q. Under your plans, as I understand it, if they ask for 
reassignment, they are then, their application is adjudged 
by the standards adopted back in July, 1961, the Pupil 
Assignment Standards, right! A. That is the way we 
have been judging them, and under those standards, a num­
ber of them have been reassigned to Durham High School 
and Carr Junior High.

Q. Could you refresh my recollection as to how those 
standards work; academic standards was one of them, 
wasn’t it ! A. One of them was academic standards in 
the list.

Q. You have to be above average to succeed! A. Ini­
tially, when the first Negro pupils were assigned to what

—25—
were then white schools, academic standards were consid­
ered because, I think it was the feeling of the Board at that 
time, that the pupils who were better prepared academi­
cally would be better prepared to cope with the new situa­
tion.

Q. That’s still in effect! A. That would be one means 
by which we would judge.



45a

Q. What are the others, some of the others; I mean in 
practical terms? A. I think conduct was one of them that 
entered into it; for example, a pupil who was a perennial 
trouble maker in a situation in which he was familiar, 
would not be likely to improve his conduct very much in a 
strange situation.

Q. What are the others? A. I ’m not sure of the others; 
there is a list of them there; it has been filed.

Q. I think I have it somewhere here.
One of the standards dealt with the relation of the resi­

dents to the school; how would that be applied, measuring 
distance between schools and homes? A. That has been 
done in some cases.

Q. You have the list before you, would you tell me how 
they work? A. What?

Q. How the standards; I mean what they mean in practi-
—26—

cal terms. A. Which one are you referring to?
Q. The list of eight standards. A. Do you wish me to 

discuss all eight of them?
Q. If you would please. A. All right; number one, is a 

matter of relation of the residence of the pupil to the school 
to which he was assigned and the school to which he sought 
reassignment; the standard was used in some instances in 
the elementary schools, when reassignment was asked by a 
pupil to a school that was considerably farther away than a 
school that he was already attending. I think largely be­
cause of the size of school again and whether or not shift­
ing of any large number of pupils would overcrowd one 
school or leave vacant rooms in another. The second one 
is the utilization of physical facilities and the teacher load 
in the school as well as total enrollment in the school; there 
again, it was a matter of what pupils, of how many pupils

Lew W. Hannen—for Plaintiffs—Direct



46a

could be transferred from one school to another without 
running the pupil-teacher ratio up considerably,

Q. To see if I understand this; in order to transfer, you 
would have to be closer to the school you sought to enter 
than the one where you were initially assigned; you would 
also have to be going to a school that wasn’t overcrowded"? 
A. You can’t isolate those factors; I think that you will 
notice on question seven that we answered that more than

— 27—

one reason was given in most cases; this would simply be 
one factor, that wouldn’t necessarily be the controlling fac­
tor in a given situation.

Q. But that’s the general idea as to whether or not you 
are closer to the school or farther? A. That was used.

Q. And the second would be whether the school was over­
crowded? A. That’s right. Now, I might add here, and I 
think this is very important, that when this was adopted 
in July, 1961, and then amended in August, 1961, you had 
a different situation in many of these schools from what you 
had today, because of the shifting population; there again, 
some places the population would increase, and other 
places, it would decrease; so these standards would not 
necessarily be exactly as important in the consideration 
of the Board one year as they would be the previous year 
or the following year; this number four, academic prepared­
ness, we’ve already mentioned.

Q. Is that based on grades, test scores? A. Grades and 
test scores and past achievement is mentioned.

Q. Is it an intelligence test? A. Intelligence test, 
achievement test, teacher test, grades on the report card.

Q. All right. A. The next one is factors involving the
— 28-

health and well-being of the pupil; there have been several

Lew W. Hannen—for Plaintiffs—Direct



47a

instances, and we have noted in court, that pupils who are, 
who live a great distance from one school, would be as­
signed to a nearer school, if they had asthma or had rheu­
matic fever, or something of that sort; now question five is 
physically handicapped pupils; the same is true, if we had 
a pupil in a given school area, and there were ten or fifteen 
steps up to the school in his area, we would reassign him 
probably upon request to a school that he would enter right 
on the level. Number six, if he is a bona fide resident in 
the administrative school unit, if someone came in as a 
tuition pupil from the county schools, it was the feeling of 
the Board that it would reserve the right to place him in a 
school where there was the most room for him, rather 
than the one he would prefer to be assigned to ; and there 
was the matter of attendance and all that; and item number 
seven, conduct and deportment.

Q. How does that conduct and deportment and attendance 
—well, how does attendance bear on the assignment? A. 
The pupil that isn’t in school regularly can’t learn as well 
as the pupil that is there every day, and if he is having 
difficulty within the school with which he is acquainted, we 
have the feeling that the chances are that he would not 
improve his situation by being in a school with which he 
isn’t acquainted.

Q. Obviously, many things affect attendance—health and
—29—

so forth? A. That’s true.
Q. Maybe a child missed a half a year because he was 

sick. A. If a child missed a half a year because he was 
sick, I think that he would be in a condition that would tend 
to cause him to get along better where his friends and his 
associates are, than—and where he is well acquainted, if he 
is a sick child,—than going into a new situation; what I ’m

Lew W. Hannen—for Plaintiffs—Direct



48a

trying to point out in general is that these various reasons 
that were given here, standards or criteria, would vary 
from pupil to pupil; and I think in each instance, the Board 
sincerely tried to answer the question, “ What appears to 
be best for this particular child in this case?”

Q. Is that the last one? A. There is one more; that is 
the efficient administration of the schools to provide for 
effective instruction, health, safety and general welfare of 
the pupil; that’s more or less the catch-all of the first seven 
there, I think.

Q. It is proposed—you propose to continue to use these 
standards for pupils in the high school grades and in the 
junior high school grades indefinitely, don’t you? A. I 
have no way of knowing what the Board will do from here 
on out.

Q. The plan asked for permission to use them until 
1966, doesn’t it? A. I haven’t made that connection with

— 30—
it; I think the plan asked that we postpone further action 
on the junior and senior high school level until such time 
that we could determine from the factors involved what we 
ought to be doing. I don’t think I read in here, any place 
in our plan, that we intended to use these standards and 
criteria that long; I didn’t see that connection.

Q. Turning back to paragraph 6-B of the plan, the first 
sentence refers to a new proposal, a further proposal in 
1966, and the next sentence begins, “ In the meantime * * # ” , 
you will use a pupil assignment procedure. A. That’s a 
North Carolina Pupil Assignment Act.

Q. The next sentence says you are going to use these 
criteria. A. I note that.

Q. Is what you are trying to tell me is you have some 
idea that you recommend the Board not use them that long,

Lew W. Hannen—for Plaintiffs—Direct



49a

or what? A. I don’t know what action will be taken by 
the Board in years to come; on any of this. I assume the 
Board is going to do what it said it was going to do.

Q. That’s what I ’m trying to figure out, exactly what 
that is. Would you have any idea what that plan would be 
now? A. At the present time it will be this one until 
it’s changed, either by the courts or by action of the Board. 

Q. I meant the further plan for 1966; do you know what
—31—

shape that plan would take? A. Not at the present time.
Q. Paragraph No. 7 deals with these tuition pupils; is 

that any change of the existing arrangement, or what? A. 
That is no change; it simply refers to continuing the agree­
ment between the Durham City Board of Education and 
the Durham County Board of Education whereby the 
Durham County Board of Education releases pupils who 
are under their jurisdiction and permits them by action 
of the City Board of Education to be enrolled in the Durham 
City Schools, as tuition pupils.

Q. I see; there is no tuition for residents of the city? 
A. No.

Q. Paragraph 8 deals with pupils moving into the system 
during the year, and paragraph 9 deals with those who 
change their residence during the year, and both provide 
that the Superintendent shall make tentative assignments, 
subject to the action of the Board; what are the principles 
or the standard for assigning those children; is it strictly 
on zones, or what; the tentative assignment? A. It would 
be on the basis of that school map in practically every case; 
I use the word “ practically” advisedly because we are try­
ing, as you know, to achieve accreditation by the Southern 
Association of Colleges and Schools; they have a limit

—32—
of thirty for pupils in the primary grades in each class­

Lew W. Hcmnen—for Plaintiffs—Direct



50a

room; and an upper limit of thirty-five in each classroom 
in the grammar grades.

Q. You had better define those; the primary grades? A. 
The primary is one, two and three; grammar grades are 
four, five and six. Now, if we had exactly thirty pupils 
to a teacher in the primary grades in one school and an­
other pupil would move into that particular school area, it’s 
conceivable that rather than lose accreditation for one 
pupil, we would assign him to another school; so I can’t say 
that it would be entirely on the basis of the map, but 
largely, it would follow the pattern of the map.

Q. What is the accreditation situation; is the whole 
school system applying for accreditation? A. All the 
elementary schools.

Q. All the elementary schools? A. Yes.
Q. Now, does this association require that no elementary 

school class be above, no 1 to 3 class, be above thirty, and 
no 4 to 6 class be above thirty-five, in the whole system? A. 
The whole system, with this exception; in your schools 
in which there is more than one section of grades 1, 2, and 3; 
three-fourths of the classes must be thirty or fewer, and no 
class over thirty-five, in the primary grades. In the gram­
mar grades, at least tliree-fourths of the classes must be

—33—
thirty-five or fewer pupils, and no class over forty. Now, 
after the first of next December, that three-fourths is 
eliminated and all of them must meet it.

Q. I see. When is the decision to be made on accredita­
tion? A. We already have applied for it and have been 
given some assurance that everything is in order for our 
being accredited, provided we meet these standards with 
the opening of the school in the fall. Following the opening 
of school, there will be a team to visit the community to

Lew W. Hannen—for Plaintiffs—Direct



51a

make certain of the standards that have been met, and 
that team will recommend to the Southern Association at 
its meeting the first week of December that the Durham 
City Schools will be accredited if these standards are met.

Q. Are there any particular elementary schools which 
are over that point, or all of them are under it! A. Most 
of the elementary schools at the present time, that is, at 
the end of this school year, were “within the limits of ac­
creditation and in a few instances, there were more pupils 
than we could have; that situation is—

Q. What school is that; do you know! A. Lakewood 
School was one; I think Burton School was another; there 
were very few; just a few of them. Possibly George Watts 
School, but there were a few schools that did not quite 
meet it; we have already had the approval of the Board 
to hire additional teachers to make up the difference, 
so that all schools in the city, regardless of whether they

- 3 4 -
are one type or another will be, this fall, within the limits 
of accreditation. In other words, the same standards ex­
actly will be applied to every single elementary school in 
the city.

Q. And of course there are some schools that are well 
under the limit, aren’t there! A. That’s true; it’s true in 
the Fuller School here because this region has rapidly 
become a commercial section; it is true in the Southside 
School because many houses have been torn down there be­
cause of industrial expansion in that area. The Erwin Mills 
now, the schools are there, but the pupils aren’t; in these 
two instances and longer. And consequently, you have some 
vacant room in these two schools. There has been some con­
sideration given, by the way, to abandon this particular 
school, the Fuller School, because we need the space 
urgently for administrative purposes.

Lew W. Hannen—for Plaintiffs—Direct



52a

Q. Where would those people go? A. They would have 
to be distributed to other schools in this area.

Q. Turning on over to paragraph 13, this refers to the 
assignment of pupils on a report card—what kind of a 
notice goes on those report cards, do you have one avail­
able! A. Yes, there was printed on the report card the 
statement, “ This pupil is assigned by order of the Board 
of Education to— such and such grade at such and such 
school,” and signed by the teacher who taught the pupil.

—35—
Q. Was there any notice on this report card at the same 

time given to the parents as to their rights to transfer, or 
the ten-day limit? A. There was this year at each school, 
notification was given to the pupils that there was a ten- 
day period in which the parents could apply for reassign­
ment and it was spelled out how that reassignment was 
facilitated.

Q. Would you make a copy of that notice available to Mr. 
Pearson tomorrow? A. Yes.
talked about went to every pupil in the system? A. Went

Q. Unless you have it this evening. The notice you just 
to every teacher in the system and the teacher gave the 
notice to the pupils.

Q. Verbally? A. I think in some cases verbally and I 
think in other cases the school printed the notices and sent 
them home with the report card.

Q. Was there any notice given to the parents whose 
children were outside their zones that this was so and that 
they could apply for transfer, to go to the schools in their 
zones? A. In some instances, the principal printed notices 
and sent them home with each pupil; that was true at the 
East End School situation; I ’m not sure if our other schools

Lew W. Hannen—for Plaintiffs—Direct



Lew W. Hannen—for Plaintiffs—Direct

— 36—
did that; I did come upon a copy of the notice that was sent 
home to the pupils by that principal of the East End 
School; I  could get a copy of that, I think, if you wanted it.

Q. Yes. There are several places in the plan that refers 
to transfer application forms adopted and approved and 
caused to be printed by the Durham City Board of Educa­
tion; and I notice from the answers to the interrogatories, 
back in 1961, a large number of pupils were denied transfers 
because application forms hadn’t been printed by the School 
Board, is that correct? A. That’s correct.

Q. Do you have available copies of those, the School 
Board’s forms, and also the other forms that were printed 
by someone else? A. Yes, these have been exhibits in the 
Federal Court, prior to this time.

Q. Off the record.

(Discussion off the record.)

By Mr. Nabrit:

Q. My recollection was that those forms were pretty 
much the same, they called for the same information, isn’t 
that right? A. The main difference was that the Board 
had authorized one form and had not authorized the other; 
the Board is an official body to act in such matters.

Q. Yes. Well, from an administrative point of view, did 
it make any difference to you which form was used; you

—37—
could get the same information off both forms, couldn’t 
you? A. I don’t think it’s a matter of administrative use 
of the form, I think it’s a matter of abiding by the Pupil 
Assignment regulation that these blanks be secured and 
filed within the ten-day period, rather than being secured



54a

possibly throughout the year and distributed throughout 
the year.

Q. The transfer applications are only available during 
the transfer period? A. They are available during the 
transfer period.

Q. I think I remember—is it true that there are only 
one per parent, or one per child issued? A. There is one 
for every child whose parents request it.

Q. Does the parent have to come to the Administration 
Building and get the form? A. Yes, we have been over 
that a number of times, and the reasons for it, and we can 
repeat them if you want them in the record. For example, 
the principal in many of our schools, up until the last 
year, would be the only person in the school during that ten- 
day period; he would be out to lunch and there would be no 
way of getting a form at the school if the parent applied 
for it there; the principal would go home at three or four 
o’clock in the afternoon; our office is open until after five 
o’clock here; up until this year, the office was open here 
on Saturday morning; the principal’s office was not open

— 38—
on Saturday mornings.

Q. Are you trying to tell me this was done to make the 
forms more readily available? A. I ’m trying to say that 
this was to enable the people to get the forms during con­
siderably more hours than they would be able to get them at 
the principal’s office; and I also say that it had enabled us 
to, day by day, to know what the situation was as regards 
to the number of forms that were issued and that, I pre­
sume, was for the employment of teachers, when you have 
to meet the Southern Association standards, and one or 
two or three people difference in one grade, if there is 
only one room of that grade in that school, would mean the 
difference of whether you were accredited or not. If it is

Lew W. Hannen—for Plaintiffs—Direct



55a

more convenient for the parents, from the standpoint of the 
time element, to get the blanks here, and it was more de­
sirable from the standpoint of the administration to know 
regularly, day after day, how many of these forms were 
being issued.

Q. When yon know how many application forms have 
been issued, what can you do with that information? A. 
You can plan ahead, because you can assume some of 
those pupils are going to be reassigned; some of them are 
reassigned every year.

Q. You have just the ten-day period for application? A. 
That’s true.

Q. Can’t you do just as much at the end of that ten-day
—3 9 -

period as you can during the ten-day period? A. Yes, 
you would hire teachers; you would hire a number of 
teachers during that ten-day period.

Q. Based on the number of application forms issued? 
A. You would hire a number of teachers on that.

Q. Would they be based on the number of application 
forms issued? A. Not entirely, there would be other fac­
tors; then there is also the matter of principals mislaying 
the blanks; principals not turning them in for a week or 
two after the period is over, and so on. In other words, ad­
ministratively, it is more desirable to have a record of the 
blanks, and from the standpoint of the parent, there is 
considerably more time for the parent to get the blank at 
this office than any other office in the community.

Q. Why is it that you have a rule that a person can’t 
get a stack of blanks? A. We assume that every child has 
a parent, every child has someone that is responsible for 
him; it’s the business of that person, as we see it, to get 
the blank for him, if that person wants it.

Lew W. Hannen—for Plaintiffs—Direct



56a

Q. This is making it harder to get the blanks, rather than 
making it easier, isn’t it! A. I assume what you want to 
do is make it as easy as possible.

Q. Don’t you? A. Yes.
—40—

Q. Why don’t you make the blanks available for anybody 
who wants them? A. We do; they are available here; we 
have issued over a hundred of them at one time; we have 
given out—you asked if we ever gave out, or why we didn’t 
give them out in stacks; we gave out over a hundred here 
at one time.

Q. To who, one person? A. One of the attorneys.
Q. Are they still available like that, or has that been 

stopped? A. Well, I might go into what happened when 
they came back; 37 of them, as I recall, were returned from 
parents that, from the list that they had power of at­
torney, 37 of the 101 came back from parents who were 
supposed to get them, and the rest of them came back 
from people who weren’t even on the list, that they had 
power of attorney for.

Q. Do you mean that you have to have power of attorney 
to get a plain old application blank? A. Or a parent.

Q. W hy; that doesn’t make any sense.

Mr. Spears: Don’t argue with him.

A. That’s the way it’s done and it’s the Board’s prerogative 
to make reasonable rules and regulations, and we feel that 
that is reasonable.

Q. What about applications for change of residence, are
—41—

those restricted on the same basis; application forms for 
change of residence; is it only one to a parent? A. That 
would be true during the time that the school is not in

Lew W. Hannen— for Plaintiffs—Direct



57a

session; during the school year, which would not be this 
ten-day period; these are available at the office of the 
principal of the school.

Q. Why are the forms only available during the ten-day 
period; why not all spring? A. I don’t know the answer 
to that.

Mr. Spears: Off the record.

(Discussion off the record.)

By Mr. Nabrit:

Q. Now, Mr. Superintendent, a minute ago, you men­
tioned the hiring of teachers; is that the hiring of additional 
teachers, new teachers, is that done at the end of the 
school year? A. It is done largely in April, May and 
June.

Q, Do you know approximately how many Negro and 
White teachers are hired for next year, new ones? A. No, 
I don’t know off-hand; there have been some of each.

Q. Teachers are paid by the State, are they not? Is the 
State allowed a number of teachers? A. Yes, the State 
allots teachers by means of a local supplement; additional 
local teachers are employed to cut down the size of classes, 
and to provide extra services that you cannot secure with 
the use of state teachers alone.

Q. How does this work mechanically; do you request ad-
—42—

ditional teachers from the State Board of Education? A. 
They allot teachers on the basis of the best six months 
of attendance in the first seven months of school, on a 
formula.

Q. Do you make a report as to your attendance? A. 
That’s right.

Lew W. Hannen—for Plaintiffs—Direct



58a

Q. And in the past this has been done by attendance at 
Negro and White schools? A. That’s right, and the 
teachers are allotted by the State on that basis.

Q. In other words, the State might allot five new teachers 
for Negro schools and five new for White schools? A. Yes, 
and designate them as such.

Q. Is this on a basis of some regulation of the State 
rule? A. I assume that is true, since that is the way they 
are allotted, and the State Board of Education has that 
function.

Q. Can you readily supply the information as to the new 
teachers hired next year; can we get that; that is not new 
teachers, but new positions? A. New positions?

Q. The number. A. That has not been finalized in the 
junior and senior high schools, because ordinarily you 
would wait until the summer session, the summer school 
session was fairly well along, which would be about this

—4 3 -
time of year, to get with the various principals to deter­
mine what change in requests for various courses there 
would be as a result of summer school attendance; and I 
was out of town all of this last week, and I assume that 
we will be doing that sometime within the next week or ten 
days.

Q. The answers to the interrogatories indicate that in the 
all-Negro schools, there are all Negro teachers, and in the 
predominantly White, in the White schools, there are all 
white teachers; has there been any thought given to 
changing this, the teacher-faculty desegregation? A. I 
think there has been some thought given to it.

Q. Has it been discussed by the Board, or any action 
taken? A. I ’m not sure that it has been discussed officially; 
I ’m sure it has been discussed informally.

Lew W. Hannen—for Plaintiffs—Direct



59a

Q. Have you made any recommendation to desegregate 
teachers! A. I have made no recommendations along that 
line to date.

#  # # * #

—46—
# # # # #

Q. This Shepherd Junior High School, how did you de­
termine how large to make that! A. By the money that 
was available.

Q. Was that the money that you asked for, or what? 
A. Well, we planned it as a much larger school, and we 
found we didn’t have money to build it, and we cut it down 
two different times.

Q. I note from your plan that it has already been deter­
mined that the pupils at the Shepherd School, upon gradu­
ation, will go to Hillside High? A. Is it determined that 
they will do that ?

Q. I think so. A. I don’t recall that any plan has been
—47—

made as to the area to be served by that school.
Q. No, where the graduates will go, in 6-A.

Mr. Spears: It doesn’t mention that.

By Mr. Nabrit:

Q. Paragraph 6 says, “ Graduates shall be assigned— ”

Mr. Spears: 6-A?
The Witness: Yes.
Mr. Spears: Yes, I ’ve got it.
The Witness: That does not say, however, what 

area that will cover, or what pupils will constitute 
the student body at that school.

Lew W. Hannen—for Plaintiffs—Direct



60a

Lew W. Hannen—for Plaintiffs—Direct 

By Mr. Nabrit:

Q. It’s located in just about an all-Negro area, isn’t it? 
A. That’s true.

Q. Are there any white schools down there near Shep­
herd? A. Morehead School is on the south side of town, 
and you have another school that is considerably farther 
away, it’s called South Side School, but it’s more on the 
west side of the city; there are no schools in that immediate 
area, elementary schools, except Fayetteville Street School; 
only one elementary school anywhere near that school; it’s 
right at the very southern boundary of the school district.

Q. The location and the size pretty much insures that 
will be an all-Negro school, doesn’t it? A. I can’t assume 
that.

—48—
Q. Why not? A. Because I don’t know what area the 

Board ultimately will determine will be the area that that 
school will serve.

Q. What possibilities are there? A. I wouldn’t specu­
late.

Q. Well, now, I think the interrogatories also indicated 
that there were in the neighborhood of 60 white pupils who 
now reside in the areas of all-Negro schools, that have been 
reassigned to other schools. How did that come about? 
A. Would you repeat your question, please?

Q. Yes; that’s Exhibit No. 5; 63 white pupils in Negro 
attendance areas during the current year; and all of them 
were attending predominantly white schools, in fact; how 
did they get there, Grades 2 to 6 were through initial as­
signment, is that right? A. I didn’t hear you.

Q. The pupils in Grades 2 through 6 were initially as­
signed to these schools they actually attend? A. That’s 
right.



61a

Q. And the eleven first-graders, where were they initially 
assigned? A. The eleven first-graders were initially as­
signed to Burton, Crest Street, East End, Lion Park; and 
the eleven requested reassignment to Fuller, Holloway, 
Lakewood, Morehead, North Durham, Y. E. Smith and

—49—
Southside, and the Board granted their request for reassign­
ment.

Q. This was under the transfer standards adopted in 
May of 1961? A. These were under the rules and regula­
tions of the Board, during the ten-day period that was 
allowed.

Q. In 1962; I am getting the dates mixed up. A. ’62.
Q. It was a year ago ? A. Yes.

* # # # #
— 50—

Q. Looking at the results of your plan as a whole, as to 
the amount of desegregation that would be accomplished 
next year, the big change from last year will be the eighth 
grade at Carr and Brogden; otherwise, it follows the same 
pattern as the school year just ended.

Mr. Spears: I object to that.

A. There will be two years instead of one, there will be 
the first and second grade, which will be double the number 
of pupils, approximately, and there would be the two rooms 
of pupils, 38 in one case and 35 in the other, from Walltown 
and Crest Street, and each year the Board has, year after 
year, taken more Negro pupils in white schools, in the 
integrated schools, than they did the year before, and I am 
not going to make the assumption that they will do that, 
but that has been the trend in the past year or so ; I would 
anticipate that there would be a considerable increase in 
the total number of pupils.

Lew W . Hannen—for Plaintiffs—Direct



62a

Q. Do you know how many applications you had from 
Negroes to transfer to white schools? A. I believe there 
were 34.

Q. In the upper grades ? A. In all grades.
Q. And that is during the ten days this past June? A.

— 51—
That’s correct.

Q. Have they been acted on yet? A. No, they have not.
Q. When will that be? A. I don’t know. ,
Q. And past years has been August, or July, or what? 

A. The next Board meeting will be next Monday night; I 
am not sure whether they will be acted on at that time or 
not.

Q. Do you customarily make recommendations on these 
individually or by groups? A. You mean when you con­
sider them, or what you do with them?

Q. Whether to deny or grant them. A. I state all the 
pertinent information that is available in each individual 
case, and then from that point on I think it is the function 
of the Board to determine what they do with them.

Q. Do you have any idea how many pupils would be 
moved, if all of the pupils in the elementary grades were 
placed in the schools in their zones or attendance areas? 
A. I had that figure; I don’t recall it off-hand; it seems to 
me at one time it was slightly more than 200, and at an­
other time it was slightly less than 200.

— 52—
Q. We know from Exhibit 5 that there are 63 whites; 

so you think there are approximately 140 Negroes? A. 
That’s a rough guess.

Q. With this number of pupils being involved, why did 
you recommend that these people not be automatically 
transferred?

Lew W. Hannen—for Plaintiffs—Direct



63a

Mr. Spears: I object to that; he didn’t say that 
he did recommend.

Mr. Nabrit: I ’ll rephrase the question.

By Mr. Nabrit:

Q. Do you believe that these pupils should be transferred 
and put into schools in their zones, and desegregate all six 
grades !

Mr. Spears: I object to that question; what he 
believes.

A. I didn’t follow you.
Q. Is it your judgment as superintendent that these chil­

dren who are now outside their areas, their attendance 
areas, should or should not be put in the schools in their 
zones!

Mr. Spears: Object to the question.

A. I think that this plan the Board has formulated should 
be followed, a grade a year of these people, as we have 
done, and it could be very easily assimilated in other 
schools; I haven’t studied the situation thoroughly enough 
to know what effect the other grades being transferred 
would have on our accreditation, I am not sure.

«= # # # *
— 55—-

# # # * #
Q. Would you take a look at the interrogatory No. 6?

—56—
It’s on Exhibit 5. A. Yes.

Q. I have tried to interpolate these two groups of figures; 
will you see if I have gotten this right! That’s 13 pupils

Lew W. Hannen—for Plaintiffs— Direct,



64a

who live in the Burton area, the same ones that go to Y. E. 
Smith, is that right? A. That is probable.

Q. And the two in the Crest Street area are the ones 
who attend Southside? A. That would be correct.

Q. And the 22 in the East End area are the 2 at Holloway 
Street, the 9 at North Durham, and the 11 at Fuller? A. 
That’s correct.

Q. The 10 in the Lion Park zone are going to Morehead 
and Lakewood, five at each school? A. That appears to be 
correct.

Q. And the 16 in the Walltown area, of that group 14 go 
to Poe? A. Poe.

Q. And two to Watts, right? A. I think that would be 
true. There is some cpiestion regarding pupils at E. K. 
Poe and Southside; they are very close together, and I am 
not sure that those figures are exactly right.

Q. But that’s approximately correct? A. That’s right.
—57—

Q. Now, when those 11 pupils listed on this list applied 
for transfers, did they have a hearing before the Board, or 
did they just submit the paper applications?

There were no hearings held?

Mr. Spears: Just a minute, where they were as­
signed in the first grade, where there was a request 
from whites and Negroes alike for reassignment?

A. They were treated alike; I am not sure of the mechanics 
of it at the time.

Mr. Spears: You are talking about first grade, 
aren’t you?

Mr. Nabrit: Maybe I can make my question
broader; does the School Board, during the last sum­
mer, the 1962 summer, did it have hearings with the

Lew W. Hannen—for Plaintiffs—Direct



65a

parents coming forward and appearing before the 
School Board?

A. Yes, there were hearings.

Mr. Spears: Jnst a minute, you mean for reassign­
ment ?

Mr. Nabrit: For reassignment; is this required in 
every case?

A. We have done this regularly; in the case of these first 
grade pupils, now, you see, they were not, the Board doesn’t 
assign all of these first grade pupils on a report card, be­
cause they don’t have any report cards; they can’t possibly 
assign them on a report card, so you couldn’t possibly re-

— 5 8 -
assign them until you assigned them; now, when and how 
and where that was done, I am not sure at the present time, 
unless I look in the minutes and see.

Q. To make sure I understand, your reassignment pro­
cedure for pupils in the upper grades, are they required to 
come to a hearing or not? A. If there is a reassignment 
request.

Q. They must appear? A. We ask them to appear.
Q. Has it been the practice of the Board to deny trans­

fers if people do not appear? A. Yes, I think that has 
been the practice regularly. Now, last summer, for example, 
we asked the same questions, we took them in alphabetical 
order, as a group, right down the line at the hearing, the 
same questions were asked, the same procedure for every­
one there, regardless of his race.

Q. What kind of information was asked? A. We asked 
information regarding the signature, we would say, “ Is 
this your signature on this blank? Is this your request for 
reassignment of your child?” And anything on the blank

Lew W. Hannen—for Plaintiffs—Direct



66a

that was not clear, for example, we had instances in which 
a parent would request a grade in a school that didn’t even 
have that grade in it, and so on; where there were irregu­
larities in the blanks, we cleared them u p ; and I think one 
further factor, or function, that was served there, was

— 59—
to give the parent an opportunity to furnish other informa­
tion voluntarily.

Q. If the parent didn’t show up, or didn’t want to furnish 
any further information, then— A. If they didn’t show 
up, we just didn’t consider there was enough interest there 
on the part of the parent, unless there were extenuating cir­
cumstances, that the blank deserved further consideration.

Q. I don’t recall, is it required that these forms be 
notarized or witnessed, these application blanks? A. A 
witness.

Q. A witness ? Did you require them to come to the meet­
ing and say, “ This is my signature” ? A. That was at least 
one of the questions that was asked. Now, one reason that 
question was asked, I think, was that there were a number 
of blanks that outsiders, who had no connection with the 
children or the parents either one, typed in, many of the 
blanks all typed the same way, and there was considerable 
question whether the blank had been signed before the 
typed part, the typing, was done, giving reasons for the 
application.

Q. In the case of a mistake, of a parent who had his 
child assigned to a school that didn’t want it, there wouldn’t 
be any problem about correcting that later, would there?

— 60—
A. Do you want me to answer that question? I don’t know 
how much of a problem it would be for the parent.

Q. I see. I mean, from your point of view, if a parent

Lew W. Hannen—for Plaintiffs—Direct



67a

applied to the school by mistake, you would certainly let 
them change the child to a correct school, wouldn’t you? 
A. From my point of view, I would like correct information 
on what he would want done with that child.

*  *  #  *  *

—73—

H erman A. R hinehart was duly sworn and testified as 
follows:

Direct Examination by Mr. Nabrit:

Q. Will you state your name, please, sir? A. Herman A. 
Rhinehart, R-h-i-n-e-h-a-r-t.

Q. And you, sir, are the chairman of the Durham Board 
of Education? A. I have been chairman, I believe, since 
February of 1962.

—74—
Q. How long have you served on the Board? A. I have 

been a member of the Board since the fall of 1954, October, 
1954,1 believe.

Q. What is your occupation? A. I am. vice-president of 
a local bank.

Q. Mr. Rhinehart, did you preside over the sessions 
where the plan was discussed and adopted? A. Yes.

Q. About how many of those sessions were there? A. 
The plan for further desegregation?

Q. Yes. A. The committee to submit that plan was ap­
pointed in December of 1962, with the request that they 
submit their report by March, 1963; we had some interim 
reports at a three-months’ period, and I think one or two 
informal meetings of the Board to discuss this plan with 
the committee, and the committee submitted its completed

Herman A. Rhinehart —for Plaintiffs—Direct



68a

report, which was reviewed in detail by the Board, and 
adopted, I forget the exact date.

Q. It’s in the record. A. Yes.
Q. Who were the members of the committee! A. Dr. 

John Dlassen was chairman of that committee; also on that 
committee was Mr. Moore and Mr. Parks.

Q. What was the final vote on the plan, five to one!
—75—

A. Five to one, if I recall correctly.
Q. Mr. Moore voted against the plan! A. Mr. Moore 

voting against the plan.
Q. Now, in terms of the provisions of the plan, relating 

to submitting a further plan in 1966, what is your view 
about that! A. You are asking for my personal views!

Q. Yes. A. First, that would allow us time to complete 
the Shepherd Junior High School; secondly, the desegrega­
tion of the elementary schools would be substantially com­
pleted by that time; third, I think that the community 
would be more receptive to further desegregation at that 
time.

Q. If I am not mistaken, during 1960 and ’61 the Board 
took the position that it would not have desegregation at 
the elementary level, but would admit Negroes to formerly 
all-white schools at the secondary level; is there some rea­
son for this change! A. Again I can only give you my 
personal opinion; the decision of the Board, I think, to 
defer the desegregation of the elementary schools was due 
to the fact that we had a substantial building program 
underway at that time; it was desired to defer desegrega­
tion until that building program was completed, at which 
time we could have a realignment of school districts, which 
was long overdue, and that was when we set up these at-

—'7 6 -

Herman A. Rhinehart —for Plaintiffs—Direct

tendance areas.



69a

Q. You mentioned that the Shepherd School was to be 
available; that is going to be available in 1964, isn’t it? 
A. It should be available in ’64, yes.

Q. The other thing you mentioned is that the community 
acceptance; did the Board take surveys or anything like 
that? A. Informal.

Q. What about faculty, what about the faculty, the staff 
in the system; weren’t they consulted about the plan? A. 
We had, in setting up the desegregation plan, a number of 
members of the faculty were consulted as well as the ad­
ministrative staff.

Q. Principals, any classroom teachers consulted by the 
Board? A. To my knowledge, I cannot say, because I was 
not on the committee, I do not know how far the consulta­
tions extended.

Q. When you mentioned the community acceptance fac­
tor, was it your conclusion that desegregation on a more 
gradual basis was more satisfactory to the community? 
A. We feel that we are moving rather rapidly here in 
Durham, to desegregate our schools; as a matter of fact, 
I think that we have more desegregation here in Durham 
than any city in North Carolina; all of our schools are 
desegregated with the exception of three, and pupils have 
been assigned to two of those.

— 77—
Q. None of the all-Negro schools have been desegregated? 

A. That’s right.
Q. Correct? A. That’s correct.
We have no request for white pupils to transfer to the 

Negro schools.
Q. What about the problem of desegregated faculties, 

has the Board had any discussions on that? A. That has 
been mentioned at one of our Board meetings, no formal 
action has been taken on that.

Herman A. RhineJiart —for Plaintiffs—Direct



Q. Do you have any idea what form the further plan is 
going to be submitted in, in 1966, what form it will take? 
A. No, I do not at this time.

Q. What about the 7th grade pupils at Crest Street and 
Walltown, who under the plan will remain there this year, 
and won’t be eligible to go to Carr and Brogden for the 
8th grade, did the Board discuss this? A. As I recall, that 
was not discussed specifically; I do not now recall any 
specific discussion on that.

Q. I forgot to ask Mr. Hannen, perhaps you recall the 
number of Negroes who were transferred to predominantly 
white schools during the middle of this last term, the be­
ginning of the second semester, how many was that, do you 
know? A. 36 or 39.

I recall that there were two groups of the total number
—78—

assigned, there were 46, and I believe that we had an addi­
tional sixteen requesting transfer back to their Negro 
schools which were not received by the Board within the 
time specified in the Court order, and their requests to 
transfer back to the Negro schools were denied.

Q. There are a total of 81 Negro pupils in predominantly 
white schools at the end of the ’62-’63 year, correct? A. 
Yes. Substantially; I do not know the exact number.

Q, Well, the interrogatory tells us that; I was trying to 
figure out how many of those moved over during the school 
year, at this mid-point. A. I think approximately half.

Q. Approximately half ? A. Yes.
# * # * #

70 a

Herman A. Bhinehart —-for Plaintiffs—Direct



I). Eric Moore—for Plaintiffs—Direct

—82—

D. E ric Moore was duly sworn and testified as follows:

Direct Examination by Mr. Nabrit:

Q. State your name, sir. A. My name is D. Eric Moore.
Q. You are a member of the School Board! A. Yes, 

I am.
Q. For how long? A. Since June, 1962.
Q. And what is your occupation? A. I am Dean of the 

School of Library Science, North Carolina College at 
Durham.

Q. You voted against the adoption of the plan for fur­
ther desegregation? A. Yes, I did.

Q. Would you give generally your reasons for opposing 
the plan or parts of it? A. Well, I had several objections 
to the plan; I think they are sort of outlined here in my 
notes, and I can avoid repeating by just running through 
them; it seemed to me—

Q. These notes you made, were these objections that you 
voiced to the Board, or what? A. I think at one time or 
other I have voiced, if not all of these, substantially all

—83—
of these objections to the Board. Some of them I am sure 
that I have expressed at one time or another; as I under­
stand the Court Order—

Mr. Spears: He asked you to give your reasons; 
he just asked you to give your reasons, why you 
objected to the plan, Mr. Moore. I object to the 
Court Order, everybody knows what that is; he 
just asked you to give your reasons. I object to that. 
Answer the question, as to the reasons.

Mr. Nabrit: He can give his reason, if that was his
reason.



72a

A. One of my reasons was that I assumed that the plan had 
to be made pursuant to the Court order; and as I read the 
Court Order it seemed to me it called for complete de­
segregation; but as the title of the plan indicates, it indi­
cates that it is not a plan for complete desegregation, but 
a plan for—I think there is a difference between those two 
things; for example, here, the plan brings about desegrega­
tion of the rising eighth grades in two schools, two small 
schools, Crest Street and Walltown; otherwise it leaves 
the pattern pretty much as it was before.

Now, as to elementary pupils, it is my opinion that this 
map is racially gerrymandered; I say that because as the 
answers to the interrogatories show, only 63 white pupils 
live in Negro attendance areas, and that means to me that 
this map has been so skillfully drawn that it segregates all 
but 63 of the white children into white school zones. I have 
driven in my automobile along the lines for those, I call

— 84—
them island Negro schools, because, that is, the zones for 
the Negro schools that are entirely surrounded by white 
schools, East End, Walltown, Crest Street and Lion Park; 
and it appears to me that where you see a change in the 
racial composition of the community, that’s where the line 
runs; and there are some instances where you drive down 
the center of the street, the line goes down the center of 
the street; on one side there are white, and on the other 
side there are Negroes; the line moves from the center of 
the street over along the back fence, and I have noted that; 
this seems to me to be gerrymandering, which achieves 
racial segregation; as I have compared, well, as I have 
looked at the map, the school map, I have asked myself a 
question; whether it assigns pupils according to the capaci­
ties of schools, and I have looked at the figures and the

D. Eric Moore—for Plaintiffs—Direct



73a

answers to the interrogatories, and I find as to the ele­
mentary schools the ratios are unequal among the students; 
for example, the Burton School is over-crowded by 68 
pupils, while the adjoining Y. E. Smith School is under­
crowded by 98 pupils; and also the adjoining Edgemont 
School is over-crowded by 69 pupils. When I look at the 
pupil-teacher ratios, Burton has 30 pupils per teacher; 
the adjoining Y. E. Smith School has 25 pupils per teacher. 
The adjoining Edgemont School has 27 pupils per teacher.

I look at the East End School, which has 29 pupils per 
teacher; the adjoining Fuller School has only 15 pupils per 
teacher; the adjoining Holloway School has only 23 pupils

—85—
per teacher; and then when I look at the average class 
sizes, I see that the Burton School with 33 pupils, while 
the adjoining Y. E. Smith School has only 26; the adjoin­
ing Edgemont School has 27; the W. G. Pearson School 
has 32 pupils; the adjoining Edgemont School again has 27 
and the adjoining Fuller School has only 20.

Therefore, I conclude that the map comes more nearly 
to being a racial map than an effective school map. That’s 
my first objection, to the map.

I object to the Negro schools in grades 3 to 6, who are 
still assigned to Negro schools, even if they live in white 
school zones; I object to those pupils being required to 
apply for transfers in order to get into the schools in the 
zones in which they live. At the junior high school level, as 
I have already indicated, it seems to me that the feeder 
system except for Crest Street and Walltown classes, is as 
segregated as they ever were; I note that geographically 
the East End and Lion Park pupils are not assigned to the 
schools nearest to them, nearest to their homes.

Q. What do you mean by that? A. This is something 
which I can show on the map better than I can—well, actu­

D. Eric Moore—for Plaintiffs—Direct



74a

ally, what I am talking about is that the geographic assign­
ment of pupils, if you will look at the map, you see that the 
Lion Park pupils are assigned to go east, going across the

—86—
Morehead district to the Whitted Junior High School.

Q. You are talking about junior high school pupils; I 
see. A. I am talking about junior high school pupils. 
The Lion Park pupils go across the Morehead district to 
get to junior or senior high school, whereas the Morehead 
children go north to Carr; similarly the East End pupils 
come southwest, crossing either the Fuller or the Edgemont 
zone to get to a junior or senior high school, while the Fuller 
pupils go to the Carr School and the Edgemont pupils go 
to the Holton School; so I consider those to be non-geo- 
graphic features in the feeder system.

Now, once those pupils have gone to a distant part of 
town for junior high school, the same feeder system sends 
them into a senior high school, and this is in my view more 
racial segregation than it is geographic assignment of 
pupils. I object to the criteria and standards where they 
apply to those pupils who have asked for reassignment, 
because they, there are hundreds of pupils in those schools 
to whom this criteria has not been applied, and I think it 
is unfair to apply this criteria to those who have asked 
for reassignment which is not applied to the people who 
originally were assigned to those schools.

Those are my major reasons for objecting to the plan.
Q. You were a member of the committee that formulated

—87—
the plan, or were assigned to present the plan to the full 
Board? A. Yes, I was.

Q. What did that committee do in terms of gathering 
information, who did you meet with, and so forth? A. We 
had only meetings of the committee itself, in addition to

D. Eric Moore—for Plaintiffs—-Direct



75a

some discussion at Board meetings; we did not have any 
meeting with outside people; the committee did not.

Q. Did the committee meet with the superintendent? A. 
I believe the superintendent was present at some of the 
meetings, yes.

Q. Did you make any proposals of your own for plans or 
features of the plan other than what you mentioned? A. I 
don’t recall that I did.

Q. You mentioned the boundaries of several of the all- 
Negro schools, that you drove around them; can you de­
scribe them, starting at the East End and describing the 
course that boundary takes? A. Describe it?

Q. In terms of the racial population in the neighbor­
hood. A. The northern boundary of the East End school 
zone runs south of Geer Street; this is an example of the 
line running across back fences; I understand there is a 
creek there, so the line runs along the creek there; and the 
racial patterns are that on the North Durham side of the

— 88-

line there are white families living along there facing Geer 
Street, and then on the next street over, within the East 
End zone, those are Negro families. This line runs up to a 
sharp point, it is the northeast corner there, and as I have 
driven along there, it appears to me that this is drawn 
pretty much around the homes of the few Negroes who live 
up in that sharp point; it is to be noted that this line 
comes within two blocks of the Holloway School, and here 
again it runs down the center of one street, and then across 
the back yards of another; and it is my opinion that that, 
again, is a racial segregation; and then when it comes down 
to a sharp point at the southern boundary, where it is 
Separated from the Edgemont School, I found Negro 
families living down in that segment there.

D. Eric Moore—for Plaintiffs—Direct



76a

Now, there are some white families living along Holloway 
Street who are located in the East End zone, so that the 
East End zone is not an all-Negro zone; but it is to a 
very large extent a Negro zone. I think you will find it is 
pretty much the same thing, you will find pretty much the 
same thing to be true if you look at the Walltown zone; 
it is to be noted that it goes along the center of the street, 
and then moves over and then goes along the back yards, 
along its western boundary; and by and large and all along 
I found that to be true as I drove along these other lines.

Q. Which other ones? A. For Lion Park School, Wall-
—8 9 -

town School, Crest Street School, and East End Street 
School.

Q. Didn’t you just tell me about the East End zone coming 
up to the Holloway School? A. It comes within two 
blocks of the Holloway School.

Q. Which are the boundaries, which are the schools 
which you mentioned now in this connection, Walltown, 
East End, Lion Park? A. And Crest Street.

Q. Crest Street? A. Yes. Now, here again I found ex­
ceptions in all those cases; I remember specifically that the 
Crest Street zone runs along Main Street, and there is a 
railroad track right there, also; there are some Negroes 
who live across the railroad track in the E. K. Powe zone; 
so this is not a 100 per cent segregation. It ’s to a very large 
extent a segregated map.

Q. Did you go into these things with the committee or the 
Board? A. I am sure I mentioned my view of this segre­
gationist map; I am sure I mentioned that I drove along 
these lines, that I noted this kind of segregation.

Q. Did you vote for these zones or against them? A. 
This map had been adopted before I became a member of 
the Board.

D. Eric Moore—for Plaintiffs—Direct



77a

Q. You came on in June! A. Yes, and this map had
—90—

been adopted, you see, in May.
Q. What do you recall about the transfer or rather the 

reassignment procedures for 1962! A. I joined the Board 
about the time the 1962 requests for reassignment were 
being considered. I am a little hazy about the procedure, 
but this is my general impression from the actions on the 
individual requests for reassignment.

First of all, they were presented to us in mimeographed 
form. There were certain facts about each youngster, they 
were given to us in sets; I recall that they were grouped 
in some cases by race; that is to say, you would have a 
group of the Negro first grade children, who had been as­
signed to white schools, who wanted to go to Negro schools; 
first grade white children who had been assigned to Negro 
schools, who wanted to go to white schools; and so these 
cases were taken up one by one; you would have to go 
to the minutes to find out whether they were voted on 
individually or in groups; but my general impression as 
to the action of the Board on these was that where a Negro 
child had been assigned to a white school, he wanted to 
go back to a Negro school, generally he got his request; 
similarly, all the white children who had been assigned 
to a Negro school and wanted to go to a white school 
got their requests. I was dissatisfied because those cases 
were granted, the instances where the requests asked to 
be segregated; and there were other children who asked

—91—
to be sent to desegregated schools, and a number of those 
cases were denied because of one or another of the criteria.

So I think that the children who asked to be desegregated 
didn’t get the same chance, of both races who wanted to be 
segregated.

D. Eric Moore—for Plaintiffs—Direct

*  #  #  *  *



78a

Excerpts From Hearing of July 11, 1963

—63—
The Court: Gentlemen, as you know, since the lunch 

hour, we have had some conferences, at least I have, with 
counsel for both sides in this matter to see if there is some 
area of agreement that the parties felt would be the best 
way for all of the school children in the City of Durham. 
It is my belief that parties for both sides, and the parties 
involved, are interested in the best educational system that 
they can have within the areas of decisions of our courts 
by which we are all bound.

Certainly, as I said this morning, the Court could not 
approve a plan as submitted by the Defendant Board.

It is simply the opinion of the Court that it does not in 
any way live up to the minimum standards laid down by 
the Court of Appeals for this Circuit and the Supreme 
Court of the United States.

I don’t mean that there is nothing in the plan that meets 
those standards. I mean that the plan as a whole—I think 
certainly we are long past the point where the Court can 
approve a plan starting with the first grade, a plan of de­
segregation by gradual degree.

Purely in the interest of the Plaintiffs that might be 
involved in this litigation, and the Defendant Board, which 
has the responsibility of the entire community, I made some 
suggestions to counsel in a very general sort of way, and 
asked them to confer and think about the matter.

—64—
I haven’t suggested that anyone enter into a consent judg­

ment in the case, but I have had the conferences to see if 
we could hit upon some plan which the parties, while not 
consenting to it, would voice no objection to it. It is the 
Court’s belief that there is an agreed area now that cer­
tainly would be a long step towards complete desegregation



79a

of the Durham School System, and that the parties, while 
not in complete agreement, still are not opposed to it.

Of course, this plan, as any plan, has to be administered 
and accepted in absolute good faith, and all parties must 
attempt in absolute good faith to administer it in the spirit 
in which it was entered into; and so, I am going to suggest 
that counsel draft an Order, which will be the Court’s 
Order; not a consent order, but within the framework of 
what I am going to suggest, and see if you cannot agree 
upon the form of the Order, that it is not objectionable.

First, that all assignments and reassignments heretofore 
made by the Defendant Board for the 1963-1964 school term 
will remain as they are, subject to the right of the parents— 
and parenthetically, when I speak of parents, I am speak­
ing of guardians or whoever are responsible for the minor 
children— of all school children assigned to an elementary 
or junior high school, that requests for reassignment to 
another school within the time and in the manner herein 
provided: that any applications presently pending for re-

—65—
assignment, which have not been acted upon, will be granted 
as a matter of course. Not later than July 31, the Defen­
dant Board shall notify the parents of all children hereto­
fore assigned or reassigned to an elementary or junior high 
school, that they have the absolute right to attend a school 
of their choice during the 1963-1964 school term provided 
they make application on a form to be provided by the 
Board not later than August 15, 1963.

The notice shall be simple in form and unambiguous in 
form, and shall advise the parents that notwithstanding 
the previous assignment or reassignment of their children, 
of their child or children, to a particular school, that they 
have the right to attend any school of their choice in the

Hearing of July 11, 1963



80a

Durham School System teaching the grade to which his 
child has been assigned.

The notice may also provide that all applications will be 
granted in the order received by the Board, and that in the 
event a particular school by reason of applications for re­
assignment becomes crowded beyond its capacity to effec­
tively teach and care for the children, that then the Board 
reserves the right, subject to the approval of the Court, 
after counsel for the Plaintiffs have been given an oppor­
tunity to be heard, to assign a child to the next nearest 
school teaching the grade which the child has been assigned 
to.

That applications not delivered to the Board by 5 P.M.
— 66—

on August 15 or postmarked on August 15 will not be con­
sidered ; that the School Board will design and make avail­
able to the applicants at the offices of the School Board at 
the Fuller School a form for making applications for re- 
assignment.

This generally is a form which will only require informa­
tion with respect to the name and address of the parent, 
the name of the child, the school and grade to which hereto­
fore assigned or reassigned, and the school and grade to 
which reassignment is desired. Such applications shall be 
filed for each school child.

* * # *

Hearing of July 11, 1963



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