Jackson v. City of Lynchburg, VA School Board Brief for Appellants

    M i c

I n  t h e

TiiinxUb States GJnixrt nf Kppmlz
F oe the F ourth Circuit 

No. 8722

Cecelia J ackson, an infant, et al.,

-v.-
Appellants,

The S chool B oard oe the City of 
L ynchburg, V irginia, et al.,

Appellees.

a p p e a l  f r o m  t h e  u n it e d  st a t e s  d is t r ic t  c o u r t  f o r  t h e

WESTERN DISTRICT OF VIRGINIA, LYNCHBURG DIVISION

BRIEF FOR APPELLANTS

J ack Greenberg 
J ames M. N abrit, III 
Michael Meltsner 
Leroy D. Clark

10 Columbus Circle 
New York 19, New York

R euben E. Lawson

19 Gilmer Avenue, N.W. 
Roanoke, Virginia

Attorneys for Appellants



I N D E X
PAGE

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

Questions Involved ......................................................... 4

Statement of the Facts ....    5

A rgument .......................................................................  11
I. The Court Below Erred in Approving a 12-Year 

Plan for Public School Desegregation Eight 
Years After the Brown Decision Where the 
School Board Failed to Show Any Specific Ad­
ministrative Obstacles Requiring Protracted De­
lay in Desegregation ............. .................. — ..... 11

II. Appellant Negro Children Are Denied Equal Pro­
tection of the Laws by a Denial of Admittance to 
the White High School Under the Grade-a-Year 
Desegregation Plan Barring Appellants and Other 
Negroes in Grades Above Those Covered by the 
Plan From Any Opportunity for Desegregation 22

III. Appellants Have Been Deprived of Rights Pro­
tected by the Due Process and Equal Protection 
Clauses of the Fourteenth Amendment by the Pro­
vision of the School Board’s Desegregation Plan 
Expressly Recognizing the Race of Pupils as an 
Absolute Ground for Transfer ............................ 27

IV. Appellants Are Denied Equal Protection of the
Laws by Failure of Appellees to Present Any Plan 
for Desegregation of Special Educational Pro­
grams and by Denying Special Courses and Ac­
tivities to Appellants Solely Because of Their
Race .......................................................................  34

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



11

Table op Cases
pa g e

Allen v. County Board of Prince Edward County, 242 
F. 2d 462 (4th Cir. 1957) ..........................................  19

Barrows v. Jackson, 346 U. S. 249 (1953) ..................... 32
Board of Education v. Groves, 261 F. 2d 527 (4th Cir.

1958)......................................................................-......  26
Bolling v. Sharp, 347 U. S. 497 (1954) ........................  33
Booker v. Tennessee Board of Education, 240 F. 2d 689

(6th Cir. 1957) ............................................................  15
Bosun v. Rippy, 285 F. 2d 43 (5th Cir. 1960) .......... 32, 33, 34
Brown v. Board of Education, 347 U. S. 483 (1954) ....16, 24 
Brown v. Board of Education, 349 U. S. 294 (1955) —.11,12,

16, 24, 35
Buchanan v. Warley, 245 U. S. 60 (1914) ..................... 20
Bush v. Orleans Parish School Board (5th Cir. No. 

19720, August 6, 1962) ..............................................  13

Clemons v. Board of Education of Hillsboro, 228 F. 2d
853 (6th Cir. 1956) ........................................ ........-15,16

Cooper v. Aaron, 358 U. S. 1 (1958) ..............12,17, 32, 34

Dove v. Parham, 282 F. 2d 256 (8tli Cir. 1960) ..........  24

Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 1960) ..........  17, 26

Goss v. Board of Education of City of Knoxville, 186 F.
Supp. 559 (E. D. Tenn. 1960)...................................  20

Goss v. Board of Education of the City of Knoxville,
301 F. 2d 164 (6th Cir. 1962) ...... .....................13, 20, 36

Goss v. Board of Education of City of Knoxville (6th 
Cir. No. 14,759) ..........................................................  36

Hamm v. County School Board of Arlington County, 
264 F. 2d 945 (4th Cir. 1959)................. ..................... 32



I l l

Hill v. School Board of City of Norfolk, 282 F. 2d 473
(4th Cir. 1960) ........................ ................................  32

Hirabayashi v. United States, 320 U. S. 81 (1943) ___  33

Illinois v. Board of Education, 333 U. S. 203 (1948) .... 36

Jackson v. Rawdon, 235 F. 2d 93 (5th Cir. 1956) .......  19
Jackson v. School Board of City of Lynchburg, 201 F.

Supp. 620 (W. I) Va. 1962) ..*......... ...... ....................  3
Jackson v. School Board of City of Lynchburg, 203 F.

Supp. 701 (W. D. Va. 1962) .............. ............... ..... 17
Jones v. School Board of City of Alexandria, 278 F.

2d 72 (4th Cir. 1960) .................................................  32

Kelley v. Board of Education of City of Nashville, 270 
F. 2d 209 (6th Cir. 1959) cert, denied 361 U. S. 924 33

Korematsu v. United States, 323 U. S. 214 (1944) ......  33

Lucy v. Adams, 350 U. S. 1 (1955) .... .......................  26

McCabe v. Atchison, T. & S. Ry. Co., 235 U. S. 151
(1914)........................................................................... 24

McCoy v. Greensboro City Board of Education, 283 F.
2d 661 (4th Cir. 1960) reversing 179 F. Supp. 745
(M. D. N. C. 1960) .....................................      31

McKissick v. Carmichael, 187 F. 2d 949 (4th Cir. 1951) 24
Missouri ex rel. Canada v. Gaines, 305 U. S. 337

(1938).........................................................................24, 36
Moore v. Board of Education, 252 F. 2d 291 (4th Cir. 

1958), aff’g 152 F. Supp. 114 (D. Md. 1957), cert, de­
nied sub nom. Slade v. Board of Education, 357 U. S.
906 (1958) ...................................................................  26

Orleans Parish School Board v. Bush, 242 F. 2d 156 
(5th Cir. 1957)

PAGE

19



IV

Pearson v. Murray, 169 Md. 478, 182 A. 590 (1936) .... 36 
Petit v. Board of Education, 184 F. Supp. 452 (D. Md. 

1960) ................................................................. ...........  26

School Board of City of Charlottesville v. Allen, 240 F.
2d 59 (4th Cir. 1956) ..........................................  19, 32

Shedd v. Logan City Board of Education, 1 Pace Eel.
Eep. 521 (1956) .........................................................  15

Shelley v. Kraemer, 334 U. S. 1 (1948) .....................29, 32
Sipuel v. Board of Eegents, 332 U. S. 631 (1948)......  24
Sweatt v. Painter, 339 U. S. 629 (1950) .....................24, 35

PAGE

Taylor v. Board of Education of City of New Bochelle,
191 F. Supp. 181; 195 F. Supp. 231 (S. D. N. Y. 1961), 
appeal dismissed, 288 F. 2d 600 (2d Cir. 1961), 
affirmed, 294 F. 2d 36 (2d Cir. 1961), cert, denied, 7
L. ed. 2d 339 (1961) .................................................  33

Thompson v. School Board of Arlington County, 4 Race 
Eel. Eep. 609 (1959) .................................................. 15

Wilson v. Board of Supervisors of L. S. U., 92 F. Supp.
986 (E. D. La. 1950) aff’d 340 U. S. 337 (1938) ......  35



I n  t h e

lltnited (Enurt nf A p p ra iB
F ob t h e  F o u r th  C ir c u it  

No. 8722

Cecelia  J a ckson , a n  in f a n t ,  et al.,
Appellants,

T h e  S chool B oard of t h e  C ity  of 
L y n c h b u r g , V ir g in ia , et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF VIRGINIA, LYNCHBURG DIVISION

BRIEF FOR APPELLANTS

Statement of t h e  Case

This is an appeal from an order (150a) of the United 
States District Court for the Western District of Virginia, 
Lynchburg Division, Thomas J. Michie, J ., approving a 
plan for desegregation of the City’s public schools sub­
mitted by the School Board of the City of Lynchburg (57a).1

This is an action for a preliminary and permanent in­
junction filed on September 18, 1961 by four Negro school 
children and their parents and guardians, on behalf of 
themselves and others similarly situated, against the School 
Board of the City of Lynchburg, Virginia, M. L. Carper,

1 Citations are to the Appendix to this Brief.



2

Superintendent of Schools of the City, and E. J. Oglesby, 
Alfred L. Wingo and Edward T. Justis, individually and 
constituting the Pupil Placement Board of the Common­
wealth of Virginia.

In general, the complaint alleged that appellee School 
Board operated the City’s schools under a system of com­
pulsory racial segregation and that the failure of appellees 
to grant the application of each of the appellants for ad­
mission to the City’s white high school deprived appellants 
and all other Negroes similarly situated of rights protected 
by the Fourteenth Amendment to the Constitution of the 
United States (10a-13a).

On October 6, 1961, appellees School Board of the City 
of Lynchburg and M. L. Carper, moved to dismiss the com­
plaint (16a). On October 17, 1961 appellees E. J. Oglesby, 
Alfred L. Wingo and Edward T. Justis, as the Pupil Place­
ment Board of the Commonwealth of Virginia, moved to 
dismiss the complaint (17a). Appellees filed answer to the 
complaint on October 7, 1961 (18a, 19a).

At a hearing held on November 13 and 14, 1961, the 
Court denied both motions to dismiss (35a). Appellants 
thereupon presented evidence supporting the allegations of 
the complaint (24a-34a). Appellees chose not to present 
evidence (35a).

In an order dated November 15, 1961 and filed November 
16, 1961 (35a) the Court ordered appellants Cardwell and 
Woodruff admitted to the 9th grade at E. C. Glass High 
School, a formerly white high school, on January 29, 1962 
(35a, 36a). The Court being of the opinion that “It will 
be in the best interest of complainants . . . Jackson and . . . 
Hughes to remain in the Dunbar High School . . . their 
prayer for assignment to the E. C. Glass High School is 
hereby denied” (36a). The Court took under advisement



3

appellants’ prayer that the Court enjoin Appellees from 
operation of segregated school system (36a).

On November 27, 1961, the appellants filed a Motion for 
New Trial on Part of the Issues asking the Court recon­
sider its ruling of November 15, 1961, denying admission 
of appellants Jackson and Hughes to E. C. Glass High 
School.

On January 25, 1961, the Court filed an order (56a) re­
quiring the School Board within thirty days to present a 
plan for the admission of pupils to the schools of the City 
without regard to race pursuant to an opinion of the 
Court filed January 16, 1962 (37a-55a).

In the opinion filed January 16, 1962 and reported at 
201 F. Supp. 620 (W. D. Ya. 1962) the Court found (45a):

. . . No doubt whatsoever but that if the four plaintiffs 
involved in this case had been white children they 
would have been assigned to Glass [the white high 
school] irrespective of distances involved and academic 
qualifications, and they would never have been forced 
by the local authorities to submit themselves to the 
rigid distance and academic placement rules of the 
Pupil Placement Board. They have therefore been dis­
criminated against because of their race.

The Court concluded that if racial discrimination were 
the only consideration all four plaintiffs would be entitled 
to admission to the Glass High School. Nevertheless, after 
examining the “welfare of the child” the Court determined 
that appellants Jackson and Hughes should remain at 
the Negro high school (45a-47a).

On February 24, 1962 the School Board filed the plan 
required by the order of January 26, 1961 (57a-59a). Ap­
pellants filed objections to the plan on March 12, 1962 (60a-



4

64a). The Court heard evidence and argument on behalf 
of both parties on March 15, 1962 (55a-135a). At the hear­
ing on March 15, 1962 the Board filed a motion for the 
approval of the plan (3a).

On April 10, 1962, the Court rendered an opinion ap­
proving the plan proposed by the School Board (136a-149a). 
The Court rejected appellants objections as to the rate 
of desegregation; the right to transfer; the failure of the 
plan to grant relief to Appellants Jackson and Hughes; 
and a number of other provisions of the plan. An order 
to this effect was entered on April 20, 1962 (150a).

Appellants filed Notice of Appeal to this Court on May 5, 
1962 (152a).

Questions Involved

1. Whether the evidence submitted by the Board sup­
ports its burden, as required by Brown v. Board of Educa­
tion, of justifying delay in desegregating the Lynchburg 
schools at the rate of only a grade a year.

2. Whether appellants, two Negro school children, were 
deprived of due process of law and the equal protection 
of the laws under the Fourteenth Amendment by having 
been barred from ever attending a desegregated school or 
class under a Court approved plan which has ordered de­
segregation of a grade a year beginning with the first grade. 3

3. Whether appellants have been deprived rights pro­
tected by the due process and equal protection clauses of 
the Fourteenth Amendment by a provision of the School 
Board’s desegregation plan expressly recognizing the race 
of pupils as an absolute ground for transfer.



5

4. Whether appellants have been denied Equal Protec­
tion of the laws by failure of appellees to present any 
plan for desegregation of special education programs and 
by denying special courses and activities to appellants 
solely because of their race.

Statement of Facts

There are 11,750 pupils in the Lynchburg school system. 
Slightly less than a fourth are Negro. The system lias 
twenty three elementary schools, seventeen of which are 
white, and two high schools, one for Negroes and one for 
whites (24a). Negro and white pupils go to designated 
Negro and white elementary schools and high schools re­
spectively (25a). Subsequent to the decision of the United 
States Supreme Court in Brown v. Board of Education, 
347 TJ. S. 483 (1954), the School Board took no action of 
any kind to end segregation in the schools (32a-34a) until 
appellants applied to the Superintendent for transfer 
(83a). At that time, the Board chose a committee to study 
the problem. After appellants’ applications for transfer 
had been rejected, but prior to the institution of this ac­
tion, the Board appointed another committee to propose a 
gradual plan to end segregation (83a). No plan was, how­
ever, submitted until the order of the Court requiring that 
a plan be filed (83a, 84a).

The Plan submitted by the School Board and approved 
by the Court provides as follows:

1. Commencing September 1, 1962, all classes in Grade 
One shall operate on a desegregated basis, and each 
September thereafter at least one additional grade 
shall be desegregated until all grades have been de­
segregated.



6

2. In assigning pupils to the first grade and to other 
grades as each of them is hereafter desegregated, the 
Superintendent of Schools shall determine annually 
the attendance areas for particular school buildings 
based upon the location and capacity of the buildings, 
the lastest enrollment, shifts in population, and prac­
tical attendance problems, but without reference to 
race. One or more school buildings may be reserved, 
in the discretion of the Superintendent, to provide 
facilities within which to place pupils who are granted 
transfers.
3. Each pupil entering a desegregated grade will be 
assigned, on or before April 15 preceding the school 
year, to the school in the attendance area in which he 
resides subject to rules and regulations promulgated 
by the State Board of Education or as may be necessary 
in particular instances, provided only that the race 
of the pupil concerned shall not be a consideration.
4. Each pupil whose race is minority in his school 
or class may transfer on request. The Superintendent 
will determine the school to which such pupil is to be 
transferred consistent with sound school administra­
tion. There shall be no right to re-transfer.
5. Nothing herein shall be construed to prevent the 
assignment or transfer of a pupil at his request or at 
the request of his parent or guardian (58a, 59a).

In general, appellants objected to the rate of desegrega­
tion as not justified by any showing of administrative ob­
stacles by the School Board; to the racial transfer provi­
sion as vague and racially discriminatory; to the failure 
of the plan to make provision for the admittance of ap­
pellants Jackson and Hughes; to the provisions of the plan 
reserving one or more schools for transfer students; and



7

to the failure of the plan to provide school attendance lines, 
assignment deadlines and procedure, and desegregation of 
kindergarten, special programs, adult education and voca­
tional classes.

At the hearing held March 15, 1962, appellees recog­
nized that the burden was on them to prove the propriety 
of the Plan (65a). In support of this burden, appellees 
called four witnesses: B. C. Baldwin, Jr., member of the 
School Board (65a-96a); M. Lester Carper, Superintendent 
of Schools (97a-112a); Herman Lee, Director of testing for 
the schools (113a-121a); and Duncan C. Kennedy, Chair­
man of the School Board (122a-127a). Appellants recalled 
Superintendent Carper as a witness (128a-135a).

E vidence o f B C. B aldw in , Jr.

School Board member Baldwin was Chairman of the 
committee chosen by the School Board to study desegrega­
tion (66a). He described the process by which the Board 
adopted the plan proposed to the Court (65a-81a, 82a-84a). 
He testified that the Board had considered and adopted a 
proposed plan without drawing new school zone lines and 
without knowing how many pupils would be eligible for 
attendance at desegregated schools (88a). No administra­
tive rules for carrying out the plan had been adopted by 
his committee (93a).

Baldwin testified that the E. C. Glass High School is 
overcrowded by approximately 15%; the Dunbar High 
School is operating at about 15% below capacity (74a, 
86a); and that the school system uses six mobile units 
attached to elementary schools (74a, 87a). The Board is, 
at present, planning no action to build new elementary 
schools (87a). The Board is considering, he testified, build­
ing two junior high schools in order to reduce the student 
population at elementary and high schools (84a, 85a). The



8

Board has, however, taken no action on the question of 
junior high schools (85a), although a University of Vir­
ginia Study group has been considering the feasibility of 
building junior high schools for some time (85a). He testi­
fied that it would be impossible to predict when the junior- 
high schools would be ready if they were built (86a).

E vidence of M. L ester C arper

Superintendent Carper testified that he anticipated a 
problem in building space arising from desegregation 
(98a). At present, some white schools in Lynchburg are 
overcrowded, some are operated below capacity. Negro 
schools generally operate slightly below capacity (98a, 110a, 
Ilia ). He estimated that desegregation would present a 
space problem in that certain schools might become over­
crowded (99a, 110a) by reason of transfers while others 
operated well below capacity. On cross-examination it be­
came clear that this result would apparently be caused 
by the transfer provision of the proposed Plan and the 
Superintendent’s definition of “voluntary integration.” 
Carper was asked:

Q. Are there not situations whereby you might by 
using this expedient you used before, that is transport­
ing pupils, actually help you relieve the overcrowded 
conditions? A. It is possible, assuming, of course, 
that white people will be -willing to go into Negro 
schools. Whenever the Negro child transfers out of 
the Negro school without being replaced by somebody 
else, you are increasing your underloading in that par­
ticular school (110a).

Mr. Carper conceded that there are examples of under­
crowded Negro schools in areas in which many whites live. 
The whites are transported to other schools (llOa-llla).



9

Superintendent’s Carper’s estimate of overcrowding was 
based on the assumption that white pupils living in the 
Negro school zones would not be assigned to the old Negro 
schools (109a). “We have been thinking at least on that 
assumption that, just as we could force no one to attend 
a segregated school, neither could we force someone of 
attend an integrated school” (105a). While Carper esti­
mated that the elementary school population would be 
“dislocated” he conceded that it was impossible to predict 
the number of pupils eligible for transfer as new school 
zone lines had not been discussed (106a-107a). Nor could 
residence alone be an accurate guide to the number of 
Negroes eligible as in Lynchburg Negro and white pupils 
are scattered through the city (108a). No survey of Negroes 
desirous of transfer had been taken (107a). Nor had any 
administrative procedure for assignment and transfer been 
established (106a-108a).

The Lynchburg School Board, Carper testified, operates 
segregated kindergarten classes, summer school programs, 
Adult Education programs and school clubs. The Board 
also supervises and supports a retail selling program in 
cooperation with local business and a spelling bee competi­
tion both of which are closed to Negroes (128a-132a). No 
action of any kind has been taken toward desegregation 
of any of these programs.

E vidence o f H erm an Lee

Director of Testing Herman Lee testified, over appel­
lants’ objections, as to the results of various tests in the 
ninth grade in Negro and white schools (114a-116a). Ap­
pellants contended that the argument that Negro pupils 
have lower test scores is not a reason for prolonging the 
very cause of lower achievement by limiting desegregation 
(114a, 115a). The Court, however, received the evidence



10

as potentially relevant to problems of changeover to a de­
segregated system (145a). Lee then testified that the gap 
in achievement between Negroes and whites, as shown by 
the tests, spreads as pupils move to higher grades (117a). 
There is, however, no program of ability grouping in the 
Lynchburg Schools although the gap between white stu­
dents in a particular class may be as wide as the gap be­
tween Negroes and whites projected by the tests (118a, 
119a, 133a). Superintendent Carper, moreover, testified 
that exposure to the same type of teaching over a number 
of years tends to draw extremes of achievement together 
(135a).

E vidence o f Duncan C. K en n edy

Duncan C. Kennedy, Chairman of the School Board, 
testified that the University of Virginia study group had 
not made its final report on the Lynchburg schools but 
that it would contain a recommendation for junior high 
schools (122a, 123a). Once, the Board agrees to build 
junior high schools it will take from two to three years 
for the buildings to be ready for occupancy (123a). Relief 
from overcrowding would, therefore, be, at least, two or 
three years away (124a). The Board has, however, not 
taken action on the question of Junior High Schools since 
the time the informal recommendation was received (126a).

In short, then, the evidence presented by appellees names 
the following factors allegedly justifying delay in desegre­
gation :

(1) Overcrowding: Some white schools are operat­
ing at levels above capacity (though Negro schools 
are not). To accommodate Negroes desirous of as­
signment to white schools (although the number of 
such applications cannot be known) without forcing 
white pupils to attend a Negro school or class in which



11

they are in the minority maj7 result in further over­
crowding white schools (although at the same time 
Negro schools will be below capacity).

(2) Junior High Schools: The School Board may 
(although it hasn’t decided to as of now) build junior 
high schools (which will be ready in two or three 
years after the decision is taken) in order to eliminate 
the crowding in schools supposedly caused by (1), 
supra, and normal population growth.

(3) Achievement: Negro pupils in the ninth grade 
have lower testing scores than white pupils in the 
ninth grade (although the gap is slight in the lower 
grades and the school system has no program of ability 
grouping).

ARGUMENT

I.
The Court Below Erred in Approving a 12-Year Plan 

for Public School Desegregation Eight Years After the 
Brown Decision Where the School Board Failed to Show 
Any Specific Administrative Obstacles Requiring Pro­
tracted Delay in Desegregation.

The School Board has submitted a plan for desegregation 
on a grade-a-year basis which postpones desegregation of 
all grades for twelve years. Appellants contend that the 
Board’s plan (especially with its other attendant defects) 
falls far below a proper pace of desegregation under the 
standards of Brown v. Board of Education, 349 U. S. 294 
(1955).

In Brown, the Supreme Court recognized that good faith 
compliance might “call for elimination of a variety of ob­



12

stacles in making tlie transition to school systems operated 
in accordance with the constitutional principles set forth in 
our May 17,1954 decision.” District Courts were authorized 
to consider “problems related to administration, arising 
from the physical condition of the school plant, the school 
transportation system, personnel, revision of school dis­
tricts and attendance areas into compact units to achieve a 
system of determining admission to the public schools on 
a nonracial basis, and revision of local laws and regulations 
which may be necessary in solving the foregoing problems.” 
349 U. S. at 300, 301.

But the District Courts were directed to require “a 
prompt and reasonable start toward full compliance” and 
to take such action as was necessary to bring about the end 
of racial segregation in the public schools “with all de­
liberate speed.” Ibid. Delay might be allowable, the Court 
held, but “ [t]he burden rests upon the defendants to estab­
lish that such time is necessary in the public interest and 
is consistent with good faith compliance at the earliest 
practicable date.” (Emphasis added.) Ibid. These prin­
ciples were reaffirmed in Cooper v. Aaron, 358 IT. S. 1, 3 
L. Ed. 2d 5, 10-11, where the Court said:

Of course, in many locations, obedience to the duty of 
desegregation would require the immediate general ad­
mission of Negro children, otherwise qualified as stu­
dents for their appropriate classes, at particular 
schools. On the other hand, a District Court, after 
analysis of the relevant factors (which, of course, ex­
cludes hostility to racial desegregation), might conclude 
that justification existed for not requiring the present 
nonsegregated admission of all qualified Negro chil­
dren. In such circumstances, however, the courts should 
scrutinise the program of the school authorities to make 
sure that they had developed arrangements pointed



13

toward the earliest practicable completion of desegre­
gation, and had taken appropriate steps to put their 
program into effective operation. It was made plain 
that delay in any guise in order to deny the constitu­
tional rights of Negro children could not be counte­
nanced, and that only a prompt start, diligently and 
earnestly pursued, to eliminate racial segregation from 
the public schools could constitute good faith com­
pliance. (Emphasis added.)

Appellees have been under a positive direction from the 
Supreme Court since 1954 to initiate desegregation of 
racially segregated schools. Although they have initiated 
some investigation of the desegregation problem, and 
through litigation two Negroes have entered formerly white 
schools, the absence of any substantial action by school 
authorities during the long period of time since Brown, 
is a positive basis upon which defendants may be ordered 
to undertake an accelerated pace of integration. Goss v. 
Board of Education of City of Knoxville, 301 F. 2d 164 
(6th Cir. 1962); Bush et al. v. 'Orleans Parish School Board 
(5th Cir. No. 19720, August 6, 1962). In the latter case, the 
Fifth Circuit rejected a 12-year plan approved by the Dis­
trict Court. The Court thought that whatever the merits 
of a 12-year plan in 1960 it was inadequate in 1962, eight 
years after Brown, and accordingly accelerated desegrega­
tion in the following manner: the first three grades of the 
elementary schools in the first year; the fourth and fifth 
grades the second year, and one additional grade each year 
thereafter. As to a high school for superior students the 
Court stated: “Eight years after Brown v. The Board of 
Education is not too soon for a qualified Negro to be ad­
mitted to Benjamin Franklin High School.”

In this case the court below was inclined to accept a 
gradual program because the school board could, at its



14

option, desegregate at a faster pace in later years. Para­
graph I of appellees’ plan provides that “at least one addi­
tional grade shall be desegregated” each year after desegre­
gation of grade one in 1962. Of course, the only enforceable 
desegregation which appellees are obligated to undertake is 
one grade per year. The Court thought that the possibility 
of acceleration made the plan potentially faster than a 
usual grade-a-year plan. However, such a provision does 
not make appellees’ plan different from other grade-a-year 
plans for even under such plans the rate of desegregation 
may always be accelerated if a school board finds it feasible. 
The Court noted its retention of jurisdiction as regulative 
of future acceleration, but appellants are not informed in 
any manner of standards or criteria by which it may be 
judged that the time for acceleration has come. Absent 
such criteria for increased desegregation in the future, the 
rights of appellants are within the uncontrolled discretion 
of the School Board.

In the instant case, the School Board has made no showing 
that twelve years is the “earliest practical date” for com­
pletion of desegregation. In particular, appellees have spec­
ified no justifiable administrative obstacles which operate 
as postponing factors and have taken account of some spec­
ulative conditions which are legally irrelevant. The Board 
claims desegregation must be slowed because of a general 
problem of overcrowding. Figures supplied by the Super­
intendent of the Public Schools show that the claim has 
little basis in fact.

He testified, that the capacity of the white elementary 
schools is 6,005, and presently 6,061 children were enrolled 
therein. The Negro elementary schools have a capacity of 
2,420 and an enrollment of 2,185. As regards the white high 
school and it’s feeder school the Superintendent testified 
that their capacity is 2,550 and present enrollment is 2,901.



15

The capacity of Dunbar High School for Negroes is 840 
and the enrollment 773. Given these figures, it is obvious 
that segregation itself is the factor which has created over­
crowding in the white schools. The appellees’ claim 
that overcrowding would result from desegregation pre­
supposes only that Negro children would be admitted into 
presently white schools and not vice versa. Appellees can­
not fail to use to capacity facilities they now have and at 
the same time propose as a ground for delay the possible 
future construction of two junior high schools to deal 
with overcrowding.

The Board’s view in this matter is based on the assump­
tion repeatedly expressed by Superintendent Carper that 
while one could not force students to attend a segregated 
school, students could also not be “forced” to attend an 
integrated school (105a, 106a, 108a). This latter assump­
tion completely misconceives appellees’ duty to operate only 
an integrated school system. Individual desires to remain 
segregated cannot modify that obligation; they cannot serve 
as a basis for delay. In any event, there was no showing 
that twelve years delay was necessary to solve even this 
overcrowding problem.

Appellants, however, are asking only that the applica­
tions of Negro children be treated in the same manner as 
whites. If a cut-off date is established because of limited 
capacity and Negroes are moved to other schools on the 
same basis as whites, there can be no constitutional objec­
tion. The defendants’ claim as a matter of law has been 
rejected in many cases. Booker v. Tennessee Board of 
Education, 240 F. 2d 689 (6th Cir. 1957); Clemons v. Board 
of Education of Hillsboro, Ohio, 228 F. 2d 853 (6th Cir. 
1956); Thompson v. The County School Board of Arling­
ton County, 4 Race Eel. Rep. 609 (1959); Shedd v. Board 
of Education of the City of Logan, 1 Race Rel. Rep. 521,



16

522 (1956). In the Clemons case, supra at 858, Judge 
Stewart concurring, wrote that “overcrowded classrooms, 
however, are unfortunately not peculiar to Hillsboro and 
the avoidance alone of somewhat overcrowded classrooms 
cannot justify segregation of school children solely because 
of the color of their skins.”

Appellees offered the disparity between Negro and white 
students in the 9th grade on achievement tests as a reason 
for gradual desegregation. No specific relationship was 
made out, however, between delay and low achievement 
test scores by Negro students. Such evidence of disparity 
between white and Negro students was introduced in 
Brown v. Board of Education, 347 U. S. 483 (1954); 349 
U. S. 294 (1955) and found not to be a factor which may 
operate to postpone desegregation. Apjoellees are, in effect, 
attempting to justify a continuing denial of equal educa­
tion by the present results of such denial. The specious 
quality of this use of achievement tests by the Board is 
highlighted by the failure to desegregate kindergarten 
classes. In short, the Board argues that desegregation 
should be slow because of variant achievement in the higher 
grades but refuse to eliminate the cause of this variance 
—segregation in the lower grades.

At the base of appellees’ request for a long delayed 
desegregation is anticipation of hostility and resistance to 
racial integration. As Mr. Bernard Baldwin, a member of 
the School Board testified in presenting some of the bases 
upon which a “gradual desegregation” plan was settled:

“The question then is not whether desegregation shall 
take place—that has been decided. . . . No matter how 
we feel personally, all of us agree that we do not 
want violence and we do not want to harm race rela­
tions in Lynchburg. We hope to work out the problem



17

the best way we can with the minimum of disturbance 
and tension” (67a).

The Court below specifically approved of the grade-a- 
year plan because its gradualism would avoid potential 
violence and disorder. 203 F. Supp. 701, 704 (W. D. Va. 
1962). This is in itself error sufficient to require reversal 
Cooper v. Aaron, 358 U. S. 1 (1958). The opinion of the 
court in Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 1960), 
which rejected a grade-a-year plan, was distinguished on 
the grounds that integration would be subject to greater 
resistance from the community in Lynchburg than would 
be the case in the State of Delaware.

Furthermore, while Lynchburg cannot be said to 
lie “in the deep South” as the court in Evans v. Ennis, 
supra, said of Nashville, (and perhaps Nashville was 
not properly referred to as being in the deep South), 
nevertheless it is far more southern in tradition, senti­
ment and background than is the state of Delaware 
and the strength of southern feeling, prejudice if you 
want to call it that, is a fact that weighs heavily in 
these matters (141a).

A school board, untutored in constitutional doctrine, may 
have some difficulties in appreciating the fact that com­
munity hostility cannot operate to deprive plaintiffs of 
their right to a desegregated education.- But it is a com-

2 Even if consideration of community hostility were permissible, 
there is no warrant for the assumption made by the court below 
that a twelve-year plan was a good method for overcoming such 
antagonism. Actual experience in desegregation indicates that the 
contrary is true.

Desegregation has been accomplished successfully over a rela­
tively short span of time in Louisville, Kansas City, St. Louis, 
Washington, D. C., Wilmington and Baltimore. On the other hand, 
court approval of a drawn out plan in Little Lock apparently 
did nothing to foster community acceptance. School officials in



18

mon sense proposition that a rule of law allowing op­
ponents of desegregation to achieve their objective of 
thwarting compliance with Brown or of delaying or slowing 
compliance on the basis of community oppositions would 
encourage just such resistance. The Supreme Court has

some of the former communities have clearly stated the compelling 
reasons that led them to decide against a protracted plan and 
their satisfaction with the results of the plans adopted. Carmichael 
and James, The Louisville Story, especially 83 (1957) :

“Experience elsewhere indicated that a partial or geographic 
change particularly might lead to mushrooming opposition. De­
segregating a grade at a time or several grades at a time obviously 
would increase social confusion by having some children in a 
single family attend mixed schools while others remained in 
segregated schools. Administrative difficulties, too, obviously would 
be compounded by any partial program. And we decided that 
universality of participation by the entire school staff from the 
very beginning would greatly increase the chances of success.”
IV Southern School News No. 11, p. 3 (May 1958). [Washington, 
D. C. School Board President Tobriner:

“I think goodness that we were smart enough or shall I say 
lucky enough to avoid the gradualism in integration which so many 
people urged upon us.”]

The testimony of leading race relation authorities further docu­
ment these conclusions. Examination of actual instances of desegre­
gation reveals that segmentalized desegregation, including pro­
gressive desegregation by grades, does not allay anxieties or doubts, 
or assure greater community acceptance of desegregation. Clark, 
“Desegregation: An appraisal of the Evidence,” 9 Journal of 
Social Issues 1-68, especially 45-46 (1953) ; Dean and Rosen, A 
Manual of Intergroup Relations, 57-105, especially 70 (1955) ; 
Thompson, Ed., “Educational Desegregation, 1956,” 25 Journal 
of Negro Education (1956) ; Williams and Ryan, Schools in Transi­
tion 241-244 (1954).

Rather, such methods appear to mobilize the resistance of those 
■white persons immediately affected, since they feel themselves 
arbitrarily selected as an “experimental” group. The remainder of 
the community then observes conflict rather than peaceful adjust­
ment ; anxieties are increased and resistance stiffens. This reaction 
may become self-perpetuating. Moreover, an extended time sched­
ule may be interpreted by the community as indicative of hesi- 
tance about ending segregation or of an intention to evade com-



19

unequivocally rejected this factor as a legal deterrent to 
desegregation. In Cooper v. Aaron, 358 U. S. 1, the Court 
was faced with a request for delay of desegregation in the 
context of a record replete with indications of violent 
oppositions to desegregation. Despite such findings of 
actual opposition and its effects (which must be compared 
with the Lynchburg authorities’ vague apprehensions of 
future difficulties), the Supreme Court unanimously re­
jected the argument that such oppositions afforded a legal 
basis for delaying compliance.

“Constitutional rights,” said the court in Cooper, supra, 
“are not to be sacrificed or yielded to the violence and 
disorder” and “law and order are not here to be preserved 
by depriving the Negro children of their constitutional 
rights” (358 U. S. 1, 16). This principle has been con­
sistently adhered to in many cases. Jackson v. Bawdon, 
235, F. 2d 93, 96 (5th Cir. 1956), cert. den. 352 U. S. 925; 
School Board of the City of Charlottesville, Va. v. Allen, 
240 F. 2d 59 (4th Cir. 1956), cert. den. 353 U. S. 910; 
Orleans Parish School v. Bush, 242 F. 2d 156, 166 (5th Cir. 
1957), cert. den. 354 U. S. 921; Allen v. County School

pliance. Here again, delay may foster resistance rather than 
acceptance. See authorities cited above.

Adoption of a segmentalized plan often is predicated upon 
erroneous assumption that changes in attitude must precede de­
segregation. Experience indicates that public acceptance often 
follows, rather than precedes, the enforcement of non-segregation 
and that the resistance anticipated is often much greater than that 
actually encountered when desegregation occurs. Allport, The 
Nature of Prejudice (1954) ; Chein, Deutsch, Hyman and Jahoda, 
Ed., “Consistency and Inconsistency in Intergroup Relations,” 
5 Journal of Social Issues 1-63 (1949) ; Kutner, Wilkens and 
Yarrow, “Verbal Attitudes and Overt Behavior Involving Racial 
Prejudice,” 47 Journal of Abnormal and Social Psychology 649- 
652 (1952) ; La Piere, “Attitudes v. Action,” 13 Social Forces 230- 
237 (1934) ; Lee, “Attitudinal Multivalence in Culture and Per­
sonality,” 60 American Journal of Sociology 294-299 (1954-55); 
and see other authorities cited above.

Thus actual experience establishes that delay, far from facili­
tating a change in community attitudes, often serves to impede it.



20

Board of Prince Edward County, Va., 249 F. 2d 462, 465 
(4th Cir. 1957), cert. den. 355 U. S. 953. See also Buchanan 
v. Warley, 245 U. S. 60, 81, where the Supreme Court more 
than forty years ago rejected the argument that potential 
unlawful opposition should operate to delay constitutional 
rights.

Nor is there legal justification for preserving white 
students from a supposed emotional disturbance by deny­
ing Negro students their full constitutional rights. Regard­
less of the desire of white students to remain in a segregated 
school system, such desires cannot be afforded legal recog­
nition, for the Brown decision placed a duty on the state 
to end separate “white” and “Negro” schools. Therefore 
desires to remain segregated must give way to the para­
mount constitutional obligation of appellees to end segre­
gation.

In Goss v. Board of Education of the City of Knoxville, 
Tennessee, 186 F. Supp. 559 (E. D. Tenn., 1960), the trial 
court approved a 12-year plan based upon an extensive 
presentation of administrative factors asserted to justify 
delay. The opinion sets forth this evidence extensively. 
However, the Court of Appeals held that the proof failed 
to justify the 12 year delay and remanded the case order­
ing an acceleration of the pace of desegregation. Goss v. 
Board of Education of the City of Knoxville, Tennessee, 
301 F. 2d 164 (6th Cir. 1962). It is submitted that in this 
case, as in the Goss case supra, the school authorities have 
made no showing of any real administrative obstacles to 
desegregation which are rationally related to the specific 
period of delay requested. There was no showing of any 
administrative problems that could be overcome only after 
a 12 year period, or indeed any other specific period of 
time.



21

It is significant that the board made no survey of various 
matters which might properly support delay. No appraisal 
was made of any possible rearrangement in teacher per­
sonnel which may occur through a shift of students, nor 
are there any plans to undertake such a study. Further, 
as the board did not draw the new unitary zone lines prior 
to adoption of the plan, the parties and the court could 
only speculate as to the actual amount of shifting of stu­
dents which must occur. It is obviously impossible to 
appraise the administrative impact of desegregation with­
out having any information as to how many pupils, schools 
or classes will be affected.

Appellants submit that it was improper for the Court to 
approve a 12-year plan without first having obtained infor­
mation as to the number of students who will have to be 
transferred so that there would be some basis, other than 
speculation, for appraising the claimed administrative 
obstacles.

The rights of Negro children are plainly infringed by 
this protraction of segregation for another decade. Nothing- 
more illustrates the failure of the plan to meet minimum 
Constitutional standards than the fact that should appellees 
continue desegregation of a grade-a-year basis, every Negro 
child who was in a Lynchburg public school prior to Sep­
tember, 1962, save two, will forever be denied the right to 
an unsegregated education. The Supreme Court meant what 
it said in Brown in prescribing which standards might be 
considered and which were irrelevant in desegregation 
cases. The court repeated the permissible considerations 
twice at intervals of several years. To offer vague “ad­
ministrative problems,” community opposition, or emo­
tional unreadiness as grounds for delay is clearly improper.



22

II.

Appellant Negro Children are Denied Equal Protec­
tion of the Laws by a Denial of Admittance to the White 
High School Under the Grade-a-Year Desegregation Plan 
Barring Appellants and Other Negroes in Grades Above 
Those Covered by the Plan From Any Opportunity for 
Desegregation.

The Court below found in its first opinion that the sole 
basis for refusing appellants Jackson and Hughes admis­
sion to Glass High School was because of their race (45a):

“In the light of this evidence there can be no doubt 
whatsoever but that if the four plaintiffs involved in 
this case had been white children they would have been 
assigned by the local authorities to Glass, irrespective 
of distances involved and academic qualifications, and 
they would never have been forced by the local authori­
ties to submit themselves to the rigid distance and 
academic placement rules of the Pupil Placement 
Board. They have therefore been discriminated against 
because of their race.”

Yet in determining whether appellants were entitled to 
immediate admission in the face of an admitted racial re­
jection, the court held that because of a lack of “academic 
qualifications” (which do not affect the admission of white 
students) it was in the “best interest” of two of the appel­
lants not to be assigned to Glass High School (45a).

Following this initial ruling that these two pupils would 
not be immediately admitted to the white high school in 
January 1962, appellants specified as one ground of objec­
tion to the plan its failure to ever provide any opportunity 
for desegregation for these plaintiffs (60a-61a). The Court, 
however, rejected this objection to the plan (147a).



In determining whether the lower court has improperly 
deprived appellants of their constitutional rights, it is 
important to discuss the character of these rights. The 
right to freedom from compulsory racial segregation stems 
from the fundamental right not to be denied the equal 
protection of the laws or to be deprived of liberty without 
due process of law under the Fourteenth Amendment to the 
Constitution of the United States. Brown v. Board of 
Education, 347 U. S. 483, 74 S. Ct. 686, 98 L. ed. 873 (1954), 
349 U. S. 294, 75 S. Ct. 753, 99 L. ed. 1083 (1955); Cooper v. 
Aaron, 358 U. S. 1, 78 S. Ct. 1401, 3 L. ed. 2d 5 (1958). The 
Court said in Cooper at 358 U. S. 1, 19:

The right of a student not to be segregated on racial 
grounds in schools so maintained is indeed so funda­
mental and pervasive that it is embraced in the concept 
of due process of law. Bolling v. Sharpe, 347 U. S. 497, 
74 S. Ct. 693, 98 L. ed. 884.

It is to be noted that the right involved is a personal 
right, as was again stated in Brown, supra at 349 U. S. 
300, where the Court said:

At stake is the personal interest of the plaintiffs in 
admission to public schools as soon as practicable on 
a nondiscriminatory basis.

Of course the personal and present nature of the Fourteenth 
Amendment rights had been established long before the 
“separate but equal” doctrine was repudiated by Brown. 
See Sweatt v. Painter, 339 U. S. 629, 635, 70 S. Ct. 848, 
94 L. ed. 1114 (1950); Sipuel v. Board of Regents, 332 U. S. 
631, 633, 68 S. Ct. 299, 92 L. ed. 247 (1948); McCabe v. 
Atchison, T. c& S. F. Ry. Co., 235 U. S. 151, 161-162, 35 
S. Ct. 69, 59 L. ed. 169 (1914); Missouri ex rel. Gaines v. 
Canada, 305 U. S. 337, 351, 59 S. Ct. 232, 83 L. ed. 208 (1938).



24

The second Brown opinion provided that courts could 
allow delay, after a prompt start toward compliance, where 
this was shown to be “necessary in the public interest and 
consistent with good faith compliance at the earliest prac­
ticable date.” But nothing in Brown, or the subsequent 
Cooper opinion, indicates that the “personal interest of 
the plaintiffs in admission to public schools as soon as 
practicable on a nondiscriminatory basis” can be disre­
garded completely in favor of a plan affording relief to 
other Negro pupils, but allowing plaintiffs no opportunity 
ever to escape segregated schools or enter the exclusive 
white schools. It is evident that plaintiffs will never attend 
any but segregated all-Negro classes in all-Negro schools 
since plaintiffs attend grades far higher than those affected 
at the start of the plan.

The Court below stated that plaintiffs were to be refused 
admission for their own “welfare”. This was apparently 
linked to some fear that their academic performance would 
not be above average, as in the case of the two plaintiffs 
who were admitted. However, it is most inappropriate 
for the Court to declare the existence of a deprivation of 
rights and at the same time refuse appropriate relief 
because of some supposed harm to plaintiffs in the exercise 

^  of these rights. As stated in Dove v. Parham, 282 F. 2d 
256, 258 (8th Cir. 1960):

“An individual cannot be deprived of the enjoyment of 
a constitutional right, because some governmental 
organ may believe that it is better for him and for 
others that he not have this particular enjoyment. 
The judgment as to that and the effects upon himself 
therefrom are matters for his own responsibility.”

This Court stated the applicable principles forcefully 
in McKissich v. Carmichael, 187 F. 2d 949, 953-954 (4th Cir.



25

1951), a case where state officials argued that it would 
be to a Negro’s advantage to attend an all-Negro school 
rather than the all-white state law school. Judge Soper 
writing for the Court said:

. . We must give first place to the rights of the indi­
vidual citizen, and when and where he seeks only 
equality of treatment before the law, his suit must 
prevail. I t is for him to decide in-which direction his 
advantage lies.”

The end result of such “protection” is 'that plaintiffs are 
rejected because a criteria for admission is applied to them 
which is not applied to whites. This is the very essence 
of racial discrimination, prohibited by the Brown decisions.

The Court also stated that plaintiffs’ denial of admission 
'was necessary for the “successful and orderly desegrega­
tion” of the Glass High School in its first year of desegre­
gation.3 It is not at all clear from the opinion, specifically, 
how the admission of the Negro students having all the 
qualifications of similarly situated white students would 
disrupt the desegregation of Glass High School. If by 
“orderly” the Court meant that there would be less violence 
and resistance, this was plainly an impermissible considera­
tion. If the Court meant that creating an exception for 
plaintiffs would destroy the “uniformity” of the plan, the 
conclusion is ironic; for withholding desegregation from 
some Negroes because of the continued segregation of 
others, is to justify one discrimination by another.

The question involved is whether the court must enforce „ 
personal constitutional rights. Actually, it is rather usual 
in our system of justice to give legal protection to those

3 Whatever relevance there was to denial of appellants’ applica­
tion that it was the first year of desegregation is, of course, no 
longer present.



26

who assert their rights actively. Numerous courts have 
dealt with the problem at hand and found different bases 
for granting exceptions to gradual desegregation plans, 
or for different treatment for pupils actively requesting the 
right to attend desegregated schools. Evans v. Ennis, 281 
F. 2d 385 (3rd Cir. 1960); Board of Education v. Groves, 
261 F. 2d 527, 529 (4th Cir. 1958); Moore v. Board of 
Education, 252 F. 2d 291 (4th Cir. 1958), aff’g 152 F. Supp. 
114 (D. Md. 1957), cert, denied sub nom. Slade v. Board of 
Education, 357 U. S. 906 (1958); Petit v. Board of Educa­
tion, 184 F. Supp. 452 (D. Md. 1960); cf. Lucy v. Adams, 
350 U. S. 1 (1955).

The only relief that these litigants obtain through the 
judicially approved plan, is the satisfaction they may gain 
from being instrumental in securing governmental respect 
for the constitutional rights of others. However real and 
substantial such satisfaction may be, it is no legal sub­
stitute for judicial protection of these litigants’ “personal” 
constitutional rights. Appellees have made no showing of 
any kind of any administrative obstacles to appellants’ 
immediate admission. The admission of two more Negroes, 
making a total of four, will in no way interfere with the 
administration of the Lynchburg schools.



27

III.
Appellants Have Been Deprived of Rights Protected 

by the Due Process and Equal Protection Clauses of the 
Fourteenth Amendment by the Provision of the School 
Board’s Desegregation Plan Expressly Recognizing the 
Race of Pupils as an Absolute Ground for Transfer.

Paragraph IV of the School Board’s plan approved by the 
district court provides:

“Each pupil whose race is minority in his school or 
or class may transfer on request. The Superintendent 
will determine the school to which such pupil should 
be transferred consistent with sound school adminis­
tration. There shall be no right to re-transfer.”

Appellants object to paragraph IV of the plan on the ground 
that it is vague and uncertain and on the further ground that 
the provision for granting transfers on the basis of pupils 
racial minority within a school or class is racially dis­
criminatory and must necessarily operate to limit the extent 
of desegregation.

The plan is vague and uncertain in that it does not specify 
when and how a determination will be made as to which race 
or races is in a minority, and it does not specify whether 
schools or classes, or both, are to be used for such compu­
tation. The racial option transfer provision was approved 
as part of a plan drawn prior to the rezoning of a biracial 
school district. It is, therefore, impossible to determine the 
extent to which desegregation will he accomplished by the 
plan. Whatever desegregation is accomplished will be fur­
ther minimized by the presence of the racial transfer option.

This conclusion is highlighted by the vague terms of the 
provision granting the right to transfer to a pupil whose



28

race is minority in his school or class. Such a provision 
would enable not only pupils in a racial minority in a whole 
school to transfer, but would permit pupils in a racial ma­
jority in their school but a minority in their particular class 
to transfer also. Such a provision will effectively limit 
desegregation.

The racial transfer provision, moreover, must be read 
with part of paragraph II of the plan in mind. Paragraph 
II provides in p a rt:

. . . One or more school buildings may be reserved in 
the discretion of the Superintendent, to provide facili­
ties within which to place pupils who are granted 
transfers.

Appellants objected to this provision on the ground that 
it invites continued maintenance of some all-white or all- 
Negro schools. The Court below sustained the provision on 
the ground that it might well facilitate the general opera­
tion of the plan. Appellants respectfully submit that the 
only possible relevance such a provision can have to a de­
segregation plan is to provide all-white or all-Negro schools 
into which to place those pupils who have taken advantage of 
the racial transfer rule. Otherwise, there would be no need 
for such a provision. The defendants clearly have the power 
to transfer students consistent with administrative conve­
nience and to “reserve” school buildings in order to place 
them if no racial standard is applied in assignment to the 
reserved schools. But to approve such a provision in a plan 
which permits minority racial members to transfer is to 
tell the Board that it may place white students who have 
determined to transfer on the basis of race in a specially 
reserved all-white school. Otherwise the provision would 
have no meaning. The District Court justified its approval 
of this provision on the ground that if improperly used



29

appellants could object later. But appellants contend that 
the provision can have no proper relevance to a desegrega­
tion plan and should be stricken or expressly restricted, as 
the District Court failed to do, to the placement of transfer 
students on a nonracial basis. Otherwise, the provision is 
an invitation to maintain all-white or all-Negro schools for 
transfer students drawing from city wide attendance areas.

The racial transfer provision is discriminatory in that 
it will permit pupils in a racial minority to transfer out of 
their school zones on the basis of their race while denying 
this choice or privilege to pupils in a racial majority in a 
particular area on the basis of their race.

The opinion below held, in effect, that the provision was 
permissible and not discriminatory, and that although Ne­
groes in one district would not be allowed transfers while 
white residents there would be permitted transfers, this 
was justified by a similar condition in other districts where 
Negro children would be permitted to transfer while resi­
dent white children are not.

It is submitted that these correlative discriminations 
against whites and Negroes do not balance out to result 
in a non-discriminatory, non-racial system. Symmetrical 
inequality of treatment on the basis of race does not con­
form to the constitutional requirement that every person 
be granted equal rights and privileges without regard to 
race. The theory that treatment of Negroes in one zone is 
justified because there is a similar treatment of white chil­
dren in other zones ignores the personal nature of Four­
teenth Amendment rights.

The Supreme Court reviewed a similar type of argument 
in Shelley v. Kraemer, 334 U. S. 1 (1948), where it was 
urged that judicial enforcement of racial restrictive cove­
nants against a Negro was valid since the state courts stood



30

ready to enforce similar covenants against white persons. 
After observing that it knew of no case of such a covenant 
against white persons,4 the Court said at 334 U. S. 22:

“But there are more fundamental considerations. The 
rights created by the first section of the Fourteenth 
Amendment are, by its terms, guaranteed to the indi­
vidual. The rights established are personal rights 
[Footnote citing McCabe v. Atchison, T. & S. F. R. Co., 
235 U. S. 151, 161, 162, 59 L. ed. 169, 174, 175, 35 S. Ct. 
69 (1914); Missouri ex rel. G-aines v. Canada, 305 U. S. 
337, 83 L. ed. 208, 59 S. Ct. 232 (1938); Oyama v. Cali­
fornia, 332 U. S. 633, ante, 249, 68 S. Ct. 269 (1948)]. 
It is, therefore, no answer to these petitioners to say 
that the courts may also be induced to deny white per­
sons rights of ownership and occupancy on grounds of 
race or color. Equal protection of the laws is not 
achieved through indiscriminate imposition of inequali­
ties.” (Emphasis supplied.)

The District Court tacitly agreed that the transfer pro­
vision would compel more white children to attend desegre­
gated schools but argued:

“Given the temper of the times in the South, it seems 
most unlikely that this would occur in any substantial

4 Here, as in Shelley, the claimed parallel of state action ad­
versely affecting white persons is unlikely ever to occur in any 
concrete context. The history of school desegregation litigation 
demonstrates that in Virginia few white persons affirmatively seek 
desegregation, and that the denial to white persons of the “privi­
lege” of transferring to an all-Negro school is unlikely to be 
regarded as a serious deprivation. As this Court observed in 
Jones v. School Board of City of Alexandria, 278 F. 2d 72, 77 
(4th Cir. 1960), “. . . by reason of the existing segregation pattern, 
it will be Negro children, primarily, who seek transfers.” The 
District Judge admitted as much when he concluded that if the 
transfer provision were stricken white students might leave the 
public school system (147a).



31

number of cases, if at all. One of three things would 
happen to white children so affected: (1) Their parents 
would find the money, with the help of the tuition 
grants provided under Chapter 7.3 of the Title 22 of 
the Code of Virginia, to send the children to private 
schools; (2) the children would remain without educa­
tion since the compulsory education laws, formerly 
§§22.251 to 22.275 of the Virginia Code, were repealed 
by the General Assembly in the Extra Session of 1959; 
or (3) the family, possibly at some financial sacrifice, 
would move out of the predominantly colored school 
zone to a predominantly or exclusively white zone. 
None of these alternatives would help toward the more 
complete integration which the plaintiffs apparently 
desire” (147a).

Plaintiffs submit that these considerations are legally 
irrelevant. None of these factors justify delay under the 
second Brown decision, 349 U. S. 294 (1955). They cannot 
be used to justify a provision in a desegregation plan which 
limits desegregation.

The school authorities provide the standards for pupil 
assignment. The fact that some parents want segregation 
and gain it through the school board’s “option” system, 
does not relieve the Board of its duty to eliminate the 
segregated system that was created by state law. Cf. 
McCoy v. Greensboro City Board of Education, 283 F. 2d 
667 (4th Cir. 1960), reversing 179 F. Supp. 745 (M. D. 
N. C. 1960), where through an “optional transfer” device a 
school board removed all white students from a school and 
converted it to a Negro school, and it was held that the 
complaint was improperly dismissed, and that the Negro 
pupils were entitled to attend a desegregated school with­
out further pursuing administrative remedies for transfer 
to the school the white pupils in their area attended. The



32

proposition that no citizen has a “right to demand action 
by the State which results in the denial of equal protection 
of the laws to the other individuals” was applied in Shelley 
v. Kraemer, 334 U. S. 1, 22 (1948) and Barrows v. Jackson, 
346 U. S. 249, 260 (1953). If school authorities may not 
assign pupils on the basis of race to effect segregation at 
the command of a state legislative enactment, it is, plain­
tiffs submit, unthinkable that they may do so in obedience 
to the prejudices of individual parents or pupils by operat­
ing under state created racial classifications. This system 
plainly conflicts with the rule expressed in Cooper v. Aaron, 
358 U. S. 1, 7, that state authorities are “duty bound to 
devote every effort toward initiating desegregation.”

It is submitted that the principles which prompted the 
Court below’s condemnation of the discriminatory initial 
assignment practices (44a, 45a) are equally applicable to 
the racially discriminatory transfer procedures involved 
here. In Boson v. Bippy, 285 F. 2d 43, 47-50 (5th Cir. 1960), 
the Fifth Circuit disapproved a provision of a school 
board’s desegregation plan contemplating an arrangement 
like that proposed in Lynchburg, holding that “classifica­
tion according to race for purposes of transfer is hardly 
less unconstitutional than such classification for purposes 
of original assignment to a public school” (at p. 48). This 
Court has repeatedly condemned the use of different 
transfer standards for Negroes and whites. Hamm v. 
County School Board of Arlington County, 264 F. 2d 945 
(4th Cir. 1959); Jones v. School Board of City of Alex­
andria, 278 F. 2d 72 (4th Cir. 1960); Hill v. School Board 
of City of Norfolk, 282 F. 2d 473 (4th Cir. 1960); School 
Bd. of City of Charlottesville v. Allen, 240 F. 2d 59 (4th 
Cir. 1956).

All racial classifications by the states must be viewed 
with grave suspicion for they are presumptively arbitrary.



33

Korematsu v. United States, 323 U. S. 214, 216 (1944); 
Hirabayashi v. United States, 320 U. S. 81, 100 (1943); 
Boson v. Rippy, supra, The Supreme Court held in Bolling 
y. Sharpe, 347 U. S. 497 (1954) that racial classifications 
have no proper place in public education, stating that 
“segregation is not reasonably related to any proper gov­
ernmental objective.”

The holding of the Second Circuit in the New Rochelle, 
New York school segregation ease strongly supports the 
view that defendants’ present policy is unconstitutional. 
Taylor v. Board of Education of the City of New Rochelle, 
191 F. Supp. 181, 185; 195 F. Supp. 231 (S. D. N. Y. 1961), 
appeal dismissed, 288 F. 2d 600 (2d Cir. 1961), affirmed, 
294 F. 2d 36 (2d Cir. 1961), cert, denied 7 L. ed. 2d 339 
(1961). Indeed, in that case the Court went beyond con­
demning a practice similar to that here. It held that where 
school authorities had once permitted white children to 
transfer out of a Negro school but had abandoned this 
practice in 1949, the school authorities were nevertheless 
still bound to take action to relieve the segregated situation 
which had been created by this practice and by the gerry­
mandering of school zone lines. The Second Circuit ap­
proved an order allowing Negro pupils in the predominantly 
Negro school to transfer to other schools, even though the 
School Board had in 1949 stopped permitting white children 
to transfer out of that school on the basis of race. A fortiori 
a present use of such a practice is unlawful.

As the Fifth Circuit mentioned in its ojrinion in the Boson 
case, supra, the Sixth Circuit has taken a contrary view in 
approving a provision in the desegregation plan in Kelley 
v. Board of Education, City of Nashville, 270 F. 2d 209 
(6th Cir. 1959), cert. den. 361 IT. S. 924 (see the dissenting



34

memorandum of tlie Chief Justice and Justices Douglas and 
Brennan).5

Appellants respectively submit that a substantial amount 
of segregation will inevitably remain as long as transfers 
are granted on the basis of race, and that this Court should 
follow the Fifth Circuit’s ruling in Boson v. Rippy, supra, 
in order to insure elimination by the School Board of the 
racially segregated system which the Board created.

IV.
Appellants Are Denied Equal Protection of the Laws 

by Failure of Appellees to Present Any Plan for Desegre­
gation of Special Educational Programs and by Denying 
Special Courses and Activities to Appellants Solely Be­
cause of Their Race.

The appellees are operating educational programs out­
side of the formal twelve grades covered by their plan for 
which no desegregation has been provided or planned. 
They operate a kindergarten program, summer school pro­
gram, adult educational programs, and extra-curricular 
activities on a segregated basis. The testimony indicated 
however that there were no plans whatsoever to desegre­
gate these programs. In addition, there are other programs 
and activities conducted or sponsored during school hours 
and by school personnel which are in no manner available 
in Negro schools (retail selling courses under the Distribu­
tive Education Program and Spelling Bees collaterally 
sponsored by the local newspaper). 6

6 Recently the Sixth Circuit has adhered to the views it expressed 
in the Kelley case. Goss v. Board of Education, City of Knoxville, 
301 F. 2d 164 (6th Cir. 1962) ; Maxwell v. County Board of Educa­
tion, Davidson County, 301 F. 2d 828 (6th Cir. 1962).



35

Maintenance of a segregated kindergarten is particularly 
invidious as appellees have attempted to justify the 12 
year plan on the basis of differential levels of achievement 
between the races in the later school years. Appellees, 
however, admit that there is slight difference in achieve­
ment in the lower grades. A segregated kindergarten must 
lead, therefore, to the very condition which Appellees use 
to justify delay. Appellees brought forth no grounds for 
delay in the desegregation of kindergarten, summer school, 
adult education and special programs.

The continued operation of educational facilities, how­
ever incidental to the main educational system, on a 
segregated basis, is contrary to Brown v. Board of Educa­
tion of Topeka, 349 U. S. 249. All of the programs denoted 
above are maintained and operated on school property 
with public funds or with the use of public school personnel. 
The appellees are under positive duty to reorganize these 
programs which they have organized on a bi-racial basis 
into a unitary non-racial system. Cooper v. Aaron, 358 
U. S. 1, settled beyond dispute that after the decisions in 
the Brown case in 1954 and 1955.

“State authorities are thus duty-bound to initiate de­
segregation and to bring about the elimination of 
racial discrimination in the public school system.”

The appellants have come forward with no plan to initiate 
the desegregation of these facilities in compliance with 
their constitutional obligation.

The issue as regards those schools which offer courses 
not available to Negroes, is fairly simple. Even prior to 
the Brown case, where the state did not provide equal 
facilities, however separate, Negroes were entitled to imme­
diate injunctive relief. Sweatt v. Painter, 339 U. S. 629 
(1950); Wilson v. Bd. of Supervisors of L. S. U 92 F.



36

Supp. 986 (E. D. La., 1950), aff’d 340 U. S. 909; Missouri 
ex rel. Gaines v. Canada, 305 U. S. 337 (1938); Pearson v. 
Murray, 169 Md. 478, 182 A. 590 (1936).

It is true that Distributive Education and the Spelling 
Bee programs are dependent in some measure on the co­
operation of private businesses over whom the school au­
thorities have no control. But the programs are school 
programs, conducted by school teachers at least in part 
on school property and are clearly within the reach of the 
Fourteenth Amendment. Cf. Illinois v. Board of Education, 
333 U. S. 203 (1948). Appellees may not abdicate their 
responsibility to provide equal training for all students 
because private employers might not cooperate in aiding 
appellees in discharging their function. Appellees’ respon­
sibility is to insure equal education for the students of 
both races, not to support programs, no matter how worthy, 
which discriminate on the basis of race.

In dealing with the problem of desegregation of voca­
tional and technical courses, the Sixth Circuit recently 
stated, Goss v. Board of Education of City of Knoxville, 
301 F. 2d 164, 168 (6th Cir. 1962). Cf. Goss v. Board of 
Education of the City of Knoxville (6th Cir. No. 14,759, 
unreported as of ye t):

Judge Taylor wisely withheld approval of the Plan 
insofar as it denied Negro students the right to take 
courses offered at Fulton High School. The Board 
should, as he suggested, present within a reasonable 
time a plan that would permit all Negro students who 
desire and are qualified to have an opportunity to 
take the special courses of this High School.



37

CONCLUSION

W herefore, for the foregoing reasons, Appellants pray 
the Judgment below be reversed.

Respectfully submitted,

J ack Greenberg 
J ames M. N abrit 
Michael Meltsner 
Leroy D. Clark

10 Columbus Circle 
New York 19, New York

Reuben E. Lawson

19 Gilmer Avenue, N. W. 
Roanoke, Virginia

Attorneys for Appellants