Slade v Harford County BOE Petition for Writ of Certiorari

    I n the

Supreme CEnurt of tlj? Hutted States
October Term, 1957 

No............... .

R osalind Slade, et al.,
Petitioners,

—v.—

Board of Education of H arford County, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Thurgood Marshall 
10 Columbus Circle 

New York 19, New York

Jack Greenberg 
10 Columbus Circle 

New York 19, New York

T ucker R. Dearing 
627 Aisquith Street 

Baltimore, Maryland 
Counsel for Petitioners

Juanita J. Mitchell
Of Counsel



TABLE OF CONTENTS

PAGE

Citations to Opinions Below.............................................  1

Jurisdiction ........................................................................ 2

Question Presented ........................................................... 2

Statement ............................................................................ 2

Reasons for Granting the Writ .................................... 8

The decision below conflicts with constitutional 
principles established by this Court ......................  8

There is a conflict among the Circuits ................ 14

Conclusion..........................................................................  16

A ppendix ................................................................................  17

Opinion of the Court of Appeals..............................  17

Judgment ....................................................................  18

District Court Opinion of November 23, 1956 ....... 21

District Court Opinion of June 20, 1957................... 33

T a b l e  op  C a s e s :

Aaron v. Cooper, 243 F. 2d 361 (C. A. 8th, 1957) .... 14

Booker v. Tennessee Board of Education, 240 F. 2d
689 (6th Cir., 1957) cert. den. 353 U. S. 965 .............. 11,15

Brown v. Board of Education, 349 U. S. 294 .......9,14,15,16
Buchanan v. Warley, 245 U. S. 6 0 .................................. 9



Ill
PAGE

Universal Camera Corp. v. N. L. E, B., 340 U. S. 474 .. 13 

Willis v. Walker, 136 F. Supp. 177 (W. D. Ky., 1955) .. 15

Statutes :

28 U. S. C. A., Section 1254(1) .....................................  2

5 U. S. C. A., Section 1009(e) (B) (5) ..........................  8

15 U. S. C. A., Section 45(c) .............................................  8

Other Authorities:

Southern School News, Nov., 1954 pp. 8-9 ..................  9

Southern School News, Dec., 1954 p. 7 .... ...................... 9



11
PAGE

Clemons v. Board of Education of Hillsboro, 228 F. 2d 
853 (6th Cir., 1956) cert, denied 350 U. S. 1006 .......11,15

Dunn v. Board of Education of Greenbrier, 1 R. Rel.
L. Rep. 319 (S. D. W. Va. 1956) .................................. 14

Folds v. F. T. C., 187 F. 2d 658 (7th Cir., 1951) ........... 13

Garnett v. Oakley, 2 R. Rel. L. Rep. 303 (W. D. Ky., 
1957)................................................................................11,15

Gordon v. Collins, 2 R. Rel. L. Rep. 304 (W. D. Ky., 
1957) .............................................................................. 11,15

Jackson v. Rawdon, 235 F. 2d 93 (5th Cir., 1956) cert, 
denied 352 U. S. 925 ...............................................  9

Lane v. Wilson, 307 U. S. 268, 275, 276-277 .................. 9,13
Lonesome v. Maxwell, 123 F. Supp. 193 (D. Md., 1954), 

rev. sub nom. Dawson v. Maxwell, 220 F. 2d 386 (4th 
Cir., 1955), aff’d 350 U. S. 877 .................................. 9

Mitchell v. Pollock, 2 R. Re], L. Rep. 305 (W. D. Ky., 
1957) ..............................................................................11,15

NAACP v. St. Louis & San Francisco Ry. Co., 297
I. C. C. 335, 345 (1955) ................................................  10

O’Leary v. Brown-Pacific-Maxon, 340 U. S. 504 ........... 13

Pierce v. Board of Education of Cabell County (S. D.
W. Va., 1956, unreported) ........................................  14

Shedd v. Board of Education of County of Logan, 1 
R, Rel. L. Rep. 521 (S. D. W. Va., 1956) ..................  14

Taylor v. Board of Education of County of Raleigh, 1 
R. Rel. L. Rep. 321 (S. D. W. Va., 1956) 14



In the

g>upnmte (Emtrt at f c  Ittttpfr Btntm
October Term, 1957 

No..................

Rosalind Slade, et al.,

—v.—

Petitioners,

Board of Education of H arford County, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Petitioners pray that a writ of certiorari issue to re­
view the judgment of the United States Court of Appeals 
for the Fourth Circuit entered in the above-entitled case 
on February 12, 1958.

Citations to Opinions Below

The opinions of the District Court are reported at 146 
F. Supp. 91 and 152 F. Supp. 114 sub nom. Moore v. Board 
of Education of Harford County; the opinion of the Court 
of Appeals is reported at 252 F. 2d 291. These appear in 
the Appendix infra, at pp. 21, 33 and 17 respectively.



3

“ ‘any child regardless of race may make application to 
the Board of Education to be admitted to a school other 
than the one attended by such child, and the admis­
sions to be granted by the Board of Education in ac­
cordance with such rules and regulations as it may 
adopt and in accordance with the available facilities 
in such schools, effective for the school year beginning 
September, 1956’ ” 146 E. Supp. at p. 93.

Counsel for the Board asserted “ ‘Since that plan em­
braces the relief prayed for, I think that takes care of 
that . . . ’ ” Id. at p. 94. Belying on the Resolution, peti­
tioners agreed to dismiss. Ibid.

Subsequently, on August 1, 1956 respondents adopted a 
“ Desegregation Policy.” It limited Negro applicants for 
transfer to only the first three grades of two elementary 
schools in the county. Id. at p. 95.

Petitioners, therefore, on August 28, 1956, filed a fresh 
suit alleging that respondents were under a constitutional 
duty to desegregate completely and that they were estop­
ped from retreating from their original resolution. The 
trial court remitted petitioners to an administrative remedy 
before the State Board of Education.

The petitioners (including intervenors who were granted 
leave to intervene, 152 F. Supp. at p. 115) filed an appeal 
with the State Board. While it was pending respondents 
again changed their policy on February 6, 1957. The new 
policy provided that:

Applications for transfer will be accepted from pupils 
who wish to attend elementary schools in the areas 
where they live, if space is available in such schools. 
Space will be considered available in schools that were 
not more than 10% overcrowded as of February 1, 
1957. All capacities are based on the state and national



2

Jurisdiction

The judgment of the Court of Appeals was entered on 
February 12, 1958 (App. p. 17).1 The jurisdiction of this 
Court is invoked under 28 U. S. C., Section 1254(1).

Question Presented

Whether respondent public school officials met the con­
stitutional burden of demonstrating adherence to this 
Court’s direction of proceeding “with all deliberate speed” 
where their plan of desegregation—commencing in 1956 
and extending to 1963—was delayed over that period of 
time because of alleged community opposition, overcrowd­
ing, and the so-called incapacity of all but specially cer­
tified Negro students to adjust to high school if admitted 
above the first year; while the record demonstrates that 
there was adequate space for Negro students and that 
white transferees above the first high school year need 
not be so certified.

Statement

This cause has been in litigation since 1955. There have 
been two connected suits involving four judicial hearings, 
a court required appeal to the State Board of Education and 
a number of hearings before local school officials. This cause 
commenced with an earlier (separate) action, see 146 F. 
Supp. 91, brought on behalf of some of the petitioners here 
to desegregate the schools in Harford County. Two days 
before that trial respondents adopted a resolution stating 
that

1 “App.”  refers to the Appendix to this petition. “App. R.” 
refers to petitioner’s Appendix Record used below and filed as the 
record with this petition.



5

respondents estopped from denying admission to named 
plaintiffs in the first case and also ordered as follows 
(see the judgment, App. p. 18):

Most of the county’s elementary classes were opened to 
Negro children transfer-applicants in accordance with 
specified transfer procedures which did not contemplate 
use of a racial standard. For the school year 1958-1959, 
Negro children might so transfer to three additional ele­
mentary schools; for the school year 1959-1960, they might 
transfer to still another three elementary schools and the 
sixth grade in a high school. The 1959-1960 elementary 
school change would mark the abolition of all racial re­
strictions in transfers among elementary schools in the 
county.

Desegregation of the county’s high and junior high schools 
was scheduled to commence with a non-racial transfer 
policy in September, 1958. Thereafter Negroes’ applications 
for transfer without regard to race would be permitted to 
the 8th grade in 1959; to the 9th grade in 1960; the 10th in 
1961; 11th in 1962; the 12th in 1963. In 1963 and there­
after all Negro applicants to classes are scheduled to be 
admitted on the same basis upon which they would be 
admitted if they were white.

At the same time the following other Negro applicants 
might be permitted to transfer to high schools without 
regard to race: those able to meet special qualifications 
pertaining to probability of their individual success mea­
sured by intelligence and achievement tests, grade level 
achievements and other similar matters to be adjudged by 
a committee consisting of the principals of the schools from 
which the pupil is transferred and the school to which he 
desires to transfer, the director of instruction and the 
county supervisors working in the schools.



4

standard of thirty pupils per classroom. 152 F. Supp. 
at p. 116.

Under the then newest plan five elementary schools and 
the sixth grade in two schools were opened. Ibid.

The State Board held that the plan had been adopted in 
good faith and constituted a reasonable start. Ibid.

At a hearing of this cause on April 18, 1957 the plan 
of February 6 was amplified to include ten elementary 
schools and the sixth grade in one school; as well as three 
elementary schools as of September 1958, when contem­
plated construction was projected to be completed. Three 
elementary schools and the sixth grade of a high school 
would commence receiving Negroes’ applications in Sep­
tember, 1959.

At the April, 1957 hearing, the Court ruled tentatively 
that the plan was “ generally satisfactory for the elementary 
grades but not for the high school grades.” Ibid.

Another hearing was scheduled for June 11, 1957. On 
June 5th, the Board changed its plan once more and noti­
fied the parties of the change just before the hearing (App. 
p. 39a). The new plan—consisting of additions to the old— 
would permit Negro children to enter high school by a 
route additional to that of the earlier plan (whereby they 
could enter only through normal promotions from desegre­
gated elementary schools). It would permit Negro children 
to be admitted only after special examination and evalua­
tion for admission to nonsegregated high schools, 152 F. 
Supp. at 117.

This plan set forth below was incorporated into the 
decree of the district court and approved by the Court of 
Appeals judgment here under review. The trial court held



7

receive, and that “ after carefully considering all factors 
at its disposal the committee is of the opinion that pro­
vision can be made to accommodate such colored students 
as apply for admission to Harford County public schools 
for the year 1956 to 1957” (App. E. 44a). The record also 
shows that during an earlier period of time when the school 
board had authorized a plan which the court and plain­
tiffs construed as permitting transfer of any applicant to 
any grade without regard to race, about sixty Negro chil­
dren made such application; most of these, however, were 
rejected upon the adoption of other, more restrictive, 
standards by the respondents which are assailed in this 
case (App. E. 26a).

There are approximately 12,600 white and 1,400 Negro 
students in the county (App. E. 26a).

Negro schools in the county were overcrowded in the 
words of the Superintendent “ about like some of the others” 
(App. E. 34a). “ [I ]f  a white child applied to any of the 
so-called overcrowded schools he would . . . have been ad­
mitted” (App. E. 34a; see also App. E. 29a). And, of 
course, he would have been admitted notwithstanding 
problems of “pupil consciousness” or “ subject conscious­
ness” whereby all but specially approved Negroes are 
barred.

It will be noted that the high school “ stair-step” proce­
dure, although formulated before the 1957 school year, 
did not contemplate the transfer of Negro children to the 
seventh grade without regard to race until the 1958 school 
year. The school board offered no justification for this 
other than, in the words of the Superintendent “ I can’t 
say why, your Honor, but the policy was moving forward 
three years, and that was all” (App. E. 36a).

As to whether there were administrative reasons for 
desegregating only the 7th grade in 1958 and not the 8th



6

These criteria were to be applied only to Negro transfer 
applicants; white students might transfer without regard 
to these standards.

The Board took no steps to eliminate the situation in 
which, apart from any other school assignment standard, 
some schools are assigned solely to Negro children because 
of their race. Their approach to the constitutional require­
ment has been to maintain these schools while permitting 
those Negro children who come forward to transfer out 
if they come within the 1956-1963 plan.

The reasons advanced for deferring desegregation in 
this manner were three: (1) there was alleged fear of 
“ bitter local opposition,” 146 F. Supp. at p. 95, a recurrence 
of events such as had occurred in Delaware2 * (App. R. 30a) 
and perhaps riots (App. R. 37a). One application to a 
school was refused, for example, “ [bjecause it was a par­
ticularly sensitive spot.” (App. R. 33a); and see (App. R. 
35a); (2) there was alleged overcrowding on an “ overall 
average” (App. R. 33a); (3) it was stated that high schools 
are subject-matter oriented unlike elementary schools which 
are pupil-oriented; that entering high school above the 
initial grade, during which associations and cliques form, 
imposes a burden of adjustment on the transferee which 
the faculty is not equipped to handle. 152 F. Supp. at p. 
118.

A committee on facilities established by the school board 
had surveyed the county schools, and as to overcrowding 
had concluded that the overall capacity of Harford County 
schools is such that eight of them could receive more than 
500 students in excess of the number they expected to

2 Presumably referring to events in Milford, Delaware, which are 
sketched in Shoemaker (ed.), With All Deliberate Speed 40-41
(1957).



9

The respondents herein failed to meet this burden. The 
Courts below failed to follow or apply the standards set 
out above. Of the problems enumerated by this Court only 
alleged overcrowding has been preferred by respondents 
as grounds for delay and the Record refutes this claim. 
One cannot read the Record in this case without concluding 
that respondents have endeavored, as assiduously as they 
can, to continue the segregated pattern of schools with as 
little change as possible for as long as they can.

1. We may exclude the alleged threats and intimidation 
against desegregation as grounds for delay. Brown v. 
Board of Education, 349 U. S. 294, 300; Jackson v. Rawdon, 
235 F. 2d 93 (5th Cir., 1956) cert, denied 352 U. S. 925; 
Buchanan v. Warley, 245 U. S. 60. Moreover, the State of 
Maryland has made entirely clear that it will not at all 
tolerate such lawlessness, Southern School News, Nov., 
1954 pp. 8-9; Dec., 1954 p. 7 (Baltimore disturbances 
stopped).4

2. No one denies that until 1963 Negro children will 
have to take tests not required of white children. No one 
denies that abolition of formerly all Negro schools—so 
constituted on a racial basis—is nowhere within the con­
templation of respondents’ plan. In this context then we 
may appropriately quote from Lane v. Wilson, 307 U. S. 
268, 275, 276-2771

4 Intimations of illegal activity by this same trial court as 
grounds for refusing desegregation of Maryland parks because, 
allegedly, the “ degree of racial feeling or prejudice in this State 
is probably higher with respect to bathing, swimming and dancing 
than with any other interpersonal relations except direct sexual 
relations,”  Lonesome v. Maxwell, 123 F. Supp. 193 (D. Md., 1954), 
rev. sub nom. Dawson v. Maxwell, 220 F. 2d 386 (4th Cir., 1955)’ 
aff’d 350 U. S. 877, have not been borne out by events. The Mary­
land State Commission of Forests and Parks has ordered that 
facilities under its jurisdiction “ henceforward [shall be conducted] 
on an integrated basis.”  1 Race Rel. L. Rep. 971 (1956).



8

grade also, the Superintendent stated “Well, I won’t say 
none, but at the moment, I don’t think of any big one; let’s 
put it that way” (App. R. 37a).

Reasons for Granting the Writ

The decision below conflicts with constitutional 
principles established by this Court.

In the School Segregation Cases this Court prescribed 
the standards by which District Courts were to review 
school board decisions on how and when to desegregate.3 * 
The School Cases held that “ [t]he burden rests' upon the 
defendants to establish that such time is necessary in the 
public interest and is consistent with good faith compliance 
at the earliest practicable date” 349 U. S. 294, 300. While, 
of course, various questions of school administration may 
be considered, such as “ problems related to administration, 
arising from the physical condition of the school plant, the 
school transportation system, personnel, revision of school 
districts 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 regu­
lations which may be necessary in solving the foregoing 
problems,” 349 U. S. at pp. 300, 301, the overriding con­
sideration obviously is “ the personal interest of the plain­
tiffs in admission to public schools as soon as practicable 
on a nondiscriminatory basis” 349 U. S. at p. 300.

3 These standards are unlike the typical rules for the review of 
administrative determinations which are provided by the Federal
Trade Commission Act ( “ the findings of the Commission as to the 
facts, if supported by evidence, shall be conclusive” ) 15 U. S. C. A. 
Section 45(c) or the Administrative Procedure Act ( “ . . . the re­
viewing court shall . . . hold unlawful and set aside agency action 
. . . unsupported by substantial evidence . . .” ), 5 U. S. C. A. Sec­
tion 1009(e) (B )(5 ).



11

Signs such as “white” and “ colored” , as displayed in 
the Broad Street Station, are commonly understood 
to represent rules established by managers of buildings 
in which they are posted in the expectation that they 
will be observed by persons having due regard for 
the proprieties. It is reasonable to believe that such 
was the original purpose of these signs, and that this 
is still true, despite the Terminal’s acquiescence in 
disregard of the signs. 297 I. C. C. 335, 345 (1955).

3. As to overcrowding, Respondent’s own Committee, 
which made an intensive study of the situation, concluded 
that the schools in question could accommodate such 
Negroes as might apply; in fact only 60 did apply at a 
time when the transfer standards purportedly allowed un­
limited transfer, although under the amended restrictions 
adopted by Respondents only 15 of these were actually ad­
mitted. Negro schools too, were crowded.

Moreover, white children, transferring in from out of the 
district would have suffered no restriction because of the 
so-called crowding. At any rate, if there were a crowding- 
problem a racial standard would be no way to treat it. 
Clemons v. Board of Education of Hillsboro, 228 F. 2d 853 
(6th Cir., 1956) cert, denied 350 U. S. 1006; Booker v. Ten­
nessee Board of Education, 240 F. 2d 689 (6th Cir., 1957) 
cert. den. 353 U. S. 965.5

4. The postponement because of the so-called “ subject- 
matter-mindedness” of high schools becomes patently frivo-

5 See also Gordon v. Collins, 2 R. Rel. L. Rep. 304 (W . D. Ky., 
1957) (court rejecting alleged reasons for delay which included 
overcrowding, transportation difficulties, reallocation problems, 
need for time to study the problems, unfavorable social conditions; 
the position of defendants is unreported); Mitchell v. Pollock, 
2 R. Rel. L. Rep. 305 (W. D. Ky., 1957) (rejecting similar grounds 
for delay) ; and see, for the same considerations and holding 
Garnett v. Oakley, 2 R. Rel. L. Rep. 303 (W. D. Ky., 1957).



10

. . . The Amendment nullifies sophisticated as well 
as simple-minded modes of discrimination. It hits 
onerous procedural requirements which effectively 
handicap exercise of the franchise by the colored race 
although the abstract right to vote may remain un­
restricted as to race.

# # # # *

. . .  We believe that the opportunity thus given 
negro voters to free themselves from the effects of 
discrimination to which they should never have been 
subjected was too cabined and confined. The restric­
tions imposed must be judged with reference to those 
for whom they were designed. It must be remembered 
that we are dealing with a body of citizens lacking the 
habits and traditions of political independence and 
otherwise living in circumstances which do not en­
courage initiative and enterprise. To be sure, in ex­
ceptional cases a supplemental period was available. 
But the narrow basis of the supplemental registration, 
the very brief normal period of relief for the persons 
and purposes in question, the practical difficulties, of 
which the record in this case gives glimpses, inevitable 
in the administration of such strict registration pro­
visions, leave no escape from the conclusion that the 
means chosen as substitutes for the invalidated “ grand­
father clause” were themselves invalid under the Fif­
teenth Amendment. They operated unfairly against 
the very class on whose behalf the protection of the 
Constitution was here successfully invoked.

The situation is like that of maintaining white and Negro 
waiting rooms, appropriately designated by signs which, 
however, may not be enforced by overt sanction which the 
Interstate Commerce Commission condemned in NAACP  
v. St. Louis and San Francisco By. Co.:



13

for the delay of one year are less satisfactory than the 
reasons given for the rest of the plan, a federal court 
should be slow to say that the line must be drawn here 
and cannot reasonably be drawn there, where the dif­
ference in time is short and individual rights are rea­
sonably protected, during the transition period, as they 
are by the June 5, 1957 modification. 152 F. Supp at 
p. 119.

It is therefore apparent that respondents herein did not 
meet the burden of establishing reasons for delay and that 
the court for the most part acquiesced to so-called admin­
istrative expertise. At best the board produced some evi­
dence which, on the whole record, it may be doubted, would 
have supported an ordinary administrative determination 
where the presumptions are all on the side of the agency. 
Cf. Universal Camera Corp. v. N. L. B. B., 340 U. S. 474; 
Folds v. F. T. C., 187 F. 2d 658 (7tli Cir., 1951). But even 
more than this, we are concerned not only with an appraisal 
of the facts but a proper view of the law, cf. O’Leary v. 
Brown-Pacific-Maxon, 340 IT. S. 504, involving as it does 
“ the personal interest of the plaintiffs in admission to pub­
lic schools as soon as practicable on a nondiscriminatory 
basis” 349 II. S. at p. 300. Insufficient regard was paid to 
the seriousness of this claim.

Constitutional rights were here subordinated to inef­
fable considerations of policy without substantial factual 
basis. The Court of Appeals in affirming and according the 
normal deference to district court findings pyramided pre­
sumption upon presumption.

As the plan now stands there are Negro children in the 
county, including plaintiffs, who will never see a desegre­
gated education unless they are examined and become 
specially certified in a manner not required of white chil-



12

Ions when considered along with the fact that the special 
certification requirement “may be applied only to Negro 
students not qualified for admission under paragraph 4,” 
i.e., the stair-step arrangement (App. E. 3 a ); white children 
are not barred by this factor. If subject consciousness is a 
valid ground for barring Negro transferees above the first 
year (absent special certification) this would almost auto­
matically convert all desegregation plans to at least 12 
years: one can readily expect intransigent districts to call 
their schools “ subject matter conscious” instead of “pupil 
conscious” thereby justifying differential racial treatment.

The postponement of desegregation of the 7th and 8th 
grades, as the Record indicates, was even without a pre­
ferred reason. When asked what administrative considera­
tions entered into such a decision the superintendent re­
plied that there were none of significance. Petitioner sub­
mits that the absence of even alleged reason for denying 
these fundamental rights exposes the baselessness of the 
other alleged justifications.

5. Although the trial judge recited that: “ the burden of 
proof is on defendants to show that a delay during a transi­
tion period is necessary, that the reasons for the delay are 
reasons which the court can accept under the constitutional 
rule laid down by the Supreme Court, and that the proposed 
plan is equitable under all the circumstances,” 152 F. Supp. 
at p. 118, its deference to the board’s determination appears 
in its treatment of postponement of seventh grade desegre­
gation :

My only doubt is whether it is necessary to postpone 
until September, 1958, the complete desegregation of 
the seventh grade. But I am not charged with the re­
sponsibility of administering the Harford County pub­
lic school system. Although I think the reasons given



15

parently not contradicted in tlie record as in the Harford 
County case now before this court). It held that a seven- 
year stair-step desegregation plan did not deny funda­
mental Fourteenth Amendment rights.

On the other hand, an entirely different view has been 
taken by the Sixth Circuit in Clemons v. Board of Educa­
tion of Hillsboro, 228 F. 2d 853 (6tli Cir., 1956), cert, denied 
350 U. S. 1006. The Court of Appeals held that where, as 
here, white children were not denied admission because of 
alleged overcrowding, desegregation could not be delayed 
for that reason. While the Clemons case involved, in addi­
tion to constitutional considerations, a question of validity 
under state law, it is to be noted that the court’s opinion 
rests principally on the importance of the constitutional 
rights involved. Similarly, in Booker v. Tennessee Board of 
Education, 240 F. 2d 689 (6th Cir., 1957), cert, denied 
353 U. S. 965, a five-year stair-step plan involving Ten­
nessee’s collegiate education was rejected. Alleged over­
crowding was treated as a spatial problem, not a racial one. 
The board, it was held, might act to remedy the situation 
but could not treat it by a color standard. The Booker 
case, while not involving elementary or high school educa­
tion, applied the standards of Brown v. Board of Educa­
tionJ

7 Cf. the following district court cases in this (the Sixth) circuit: 
Willis v. Walker, 136 F. Supp. 177 (W. D. Ky., 1955) the court 
pointed out that “no white children either before or after the 
application for admission of the plaintiffs, were denied admission” ; 
and that “ good faith alone is not the test. There must be ‘com­
pliance at the earliest practicable date.’ ”  136 F. Supp. at p. 181. 
Desegregation was ordered by the next school year. See also 
Gordon v. Collins, 2 R. Rel. L. Rep. 304 (W. D. Ky., 1957); Mitchell 
v. Pollock, 2 R. Rel. L. Rep. 305 (W. D. Ky., 1957); Garnett v. 
Oakley, 2 R. Rel. L. Rep. 303 (W. D. Ky., 1957), (all summarily 
described op. cit. supra, n. 5).



14

dren similarly situated. Given the history of the situation, 
and the continued maintenance of formerly colored schools 
as colored on solely a racial basis the deterrent effect of 
this special requirement is obvious; Cf. Lane v. Wilson, 
supra. At any rate the difference in treatment based on 
race is express and unconstitutional.

There is a conflict among the Circuits.

The Courts of Appeal of the Fourth, Sixth and Eighth 
Circuits have passed upon the constitutionality of desegre­
gation plans. Moreover, a number of district courts in these 
circuits also have passed upon this question. While from 
the expectable disparity in factual situations and in trial 
records the cases are not clearly comparable, there is a 
substantial contrariety of views in application of the per­
tinent constitutional principles among the courts. These 
differences call for clarification by this Court of what it 
meant by “ all deliberate speed” in Brown v. Board of 
Education, 349 U. S. 294, 301, the implementation decision.

In the instant case, in essence, the trial court’s decision 
was epitomized by extreme deference to the School Board’s 
plan, with little or no support in the record." In the same 
vein and cited by the Court of Appeals herein is Aaron v. 
Cooper, 243 F. 2d 361 (C. A. 8th, 1957). This decision re­
lied upon a complex of administrative considerations (ap-

6 In the Fourth Circuit a series of West Virginia District Court 
cases involving plans, overcrowding, fiscal problems, and time for 
consideration, have been rejected as grounds for delay when it was 
clear that Negro children could be admitted notwithstanding the 
proffered reasons for deferment. Shedd v. Board of Education of 
County of Logan, 1 R. Rel. L. Rep. 521 (S. D. W. Va., 1956) ; 
Dunn v. Board of Education of Greenbrier, 1 R. Rel. L. Rep. 319 
(S. D. W. Va., 1956) ; Taylor v. Board of Education of County 
of Raleigh, 1 R. Rel. L. Rep. 321 (S. D. W. Va., 1956); Pierce v. 
Board of Education of Cabell County (S. D. W. Va., 1956, un­
reported) .



17

APPENDIX

Opinion of the Court of Appeals

Per Curiam :

This is an appeal in a school segregation case involving 
the public schools of Harford County, Maryland. The 
school board of the county had adopted a plan for the 
gradual desegregation of elementary schools over a two 
year period and high schools over a period of five years. 
At the suggestion of the District Judge, the plan was 
amended to provide for the transfer of qualified students 
in high school grades pending the final elimination of 
segregation in those grades. As so amended the plan was 
approved by the judge and a decree was entered enforcing 
it and making special provision for the admission of two 
Negro children who had been parties to a prior action. The 
facts are fully set forth in the opinion of the District Judge, 
and we think that his discretion was properly exercised 
for reasons adequately stated in the opinion, to which noth­
ing need be added. See Moore v. Board of Education of 
Harford County, 152 F. Supp. 114. See also Allen et al. v. 
County School Board of Prince Edivard County, Va., 4 Cir. 
249 F. 2d 462, 465; Bippy v. Borders, 5 Cir. F. 2d ; 
Aaron v. Cooper, 8 Cir. 243 F. 2d 361.

Affirmed.



16

CONCLUSION

The evil of racial segregation still permeates respon­
dent’s plan. Little effort has been made towards faithfully 
complying with this Court’s holding that state created racial 
distinctions must be eliminated from public education. 
Every effort has been made to continue the overall pattern 
with as little desegregation as possible so that nonsegrega­
tion would be the exception rather than the rule.

Noav, three years following this Court’s implementation 
decision in Brown v. Board of Education, respondents 
submit that it is time to clarify whether such departure 
from prior segregation affords full equality which the 
United States Constitution secures.

W herefore for the foregoing reasons it is prayed that 
this petition for a writ of certiorari should be granted.

Respectfully submitted,

Thurgood Marshall 
10 Columbus Circle 

New York 19, New York

Jack Greenberg 
10 Columbus Circle 

New York 19, New York

T ucker R. Dearing 
627 Aisquith Street 

Baltimore, Maryland 
Counsel for Petitioners

J uanita J. Mitchell
Of Counsel



19

the principal of the school the applicant attends. Such 
applications will be reviewed at the regular June meeting 
of the Board of Education. Applicants and their parents 
will be informed of the action taken on applications prior 
to the close of school in June of each year. In no event 
shall a Negro child’s application for admission or transfer 
be rejected if it would have been granted had he been 
white.

4. A Negro child’s application for admission or transfer 
to seventh grade classes commencing September, 1958, and 
thereafter, under defendant’s control shall be considered 
and granted on the basis upon which it would be considered 
and granted if he were white. Such applications to the 
following classes shall be so treated during and after the 
year set forth alongside the class, as follows:

eighth grade — 1959
ninth grade — 1960
tenth grade — 1961
eleventh grade — .1962
twelfth grade — 1963

In 1963 and thereafter all Negro applicants to all classes 
shall be admitted on the same basis upon which they would 
be admitted if they were white.

5. Commencing September, 1957 applications for admis­
sion or transfer by Negro children not qualified for admis­
sion or transfer under paragraph 4 to high schools under 
defendants’ control will be considered and granted if the 
applicants fulfill special qualifications pertaining to the 
probability of success of each individual pupil. These 
qualifications will be measured by intelligence and achieve­
ment tests, grade level achievements and other similar 
matters to be adjudged by a committee consisting of the 
principals of the schools from which the pupil is transfer-



18

Judgment

This cause having come on for final hearing by the court 
without a jury on June 11, 1957 and the court having heard 
all the evidence adduced and being fully advised in the 
premises, it is hereby ordered, adjudged and decreed as 
follows:

1. Defendants now and hereafter shall accept applica­
tions for admission or transfer to all elementary classes 
under their control (except in the schools named in para­
graph 2 as to which applications will be accepted as de­
scribed in that paragraph), in accordance with rules and 
regulations set forth in paragraph 3 and every Negro child’s 
application to classes governed by the instant paragraph 
shall be considered and granted on the basis upon which 
it would be considered and granted if he were white.

2. Defendants shall accept Negro children’s applications 
for admission or transfer to Old Post Road, Bel Air and 
Highland elementary schools for the school year 1958-1959 
and thereafter; and shall accept Negro children’s applica­
tions for admission or transfer to Forest Hill, Jarrettsville 
and Dublin elementary schools and the sixth grade at Edge- 
wood High School for the school years 1959-1960 and 
thereafter. Every Negro child’s application to the schools 
named in this paragraph for the respective school years 
specified herein and thereafter shall be considered and 
granted on the basis upon which it would be considered 
and granted if he were white.

3. All applications for transfer to elementary classes 
shall be made during the month of May on a regular 
application form furnished by the Board of Education and 
must be approved by the applicant’s classroom teacher and



21

District Court Opinion of November 23, 1956

T homsen, Chief Judge:

This action, brought by four Negro children seeking ad­
mission to certain public schools in Harford County, Mary­
land, present: (1) the usual questions under Brown v. 
Board of Education, 347 U. S. 4S3, 74 S. Ct. 686, 98 L. Ed. 
873; Id., 349 U. S. 294, 75 S. Ct. 753, 99 L. Ed. 1083; (2) 
the same questions of law which were raised by the de­
fendants in Robinson v. Board of Education, D. C. D. Md., 
143 F. Supp. 481; and (3) a problem of equitable estoppel 
arising out of a previous action brought by the plaintiffs 
herein and others against the defendants herein, which was 
dismissed by the plaintiffs in reliance upon a resolution 
adopted by the defendants, the Board of Education of Har­
ford County.

F a c t s

Harford County is predominately rural, but in the 
southern portion of the county there are two large govern­
ment reservations, the Aberdeen Proving Ground at Aber­
deen, and the Army Chemical Center at Edgewood. On 
these reservations there are non-segregated housing de­
velopments.

There are approximately 12,600 white students and 1,400 
Negro students in the public schools of Harford County. 
The defendant Board of Education operates a 6-3-3 sys­
tem; that is, 6 years of elementary school, 3 years of jun­
ior high and 3 years of senior high. The white high schools, 
at Bel Air, Bush’s Corner (North Harford), Edgewood, 
Aberdeen, and Havre de Grace, are combination junior- 
senior high schools; the colored schools, at Hickory and 
Havre de Grace, are “ consolidated schools” , comprising 
elementary, junior high and senior high classes.



20

ring and the school to which he desires to transfer, the 
Director of Instruction and the county supervisors work­
ing in these schools. Apart from the fact that these condi­
tions may be applied only to Negro students not qualified 
for admission under paragraph 4 no racial distinction is 
to be made in the administration of these tests and evalua­
tions. Such applications may be made to the Board of 
Education between July 1 and July 15 of 1957 and years 
following in which these tests may be given.

6. Infant plaintiff Moore shall be admitted to the sixth 
grade at the Bel Air School. Infant plaintiff Spriggs shall 
be admitted to the eighth grade at Edgewood High School.

7. No racial distinctions whatsoever shall be made by 
defendants in treating Negro children who have been ad­
mitted to schools pursuant to this decree.

8. This Court retains jurisdiction for the purpose of 
granting any other relief that may become necessary.



23

gated in their schooling because of race, violate the 
Fourteenth Amendment to the United States Con­
stitution.

“3. The Court issue preliminary injunctions order­
ing the defendants to promptly present a plan of 
desegregation to this Court which will expeditiously 
desegregate the schools in Harford County and for­
ever restrain and enjoin the defendants and each of 
them from thereafter requiring these plaintiffs and all 
other Negroes of public school age to attend or not to 
attend public schools in Harford County because of 
race.

“ The Court allow plaintiffs their costs and such 
other relief as may appear to the Court to be just.”

On February 27, 1956, the Citizens Consultant Commit­
tee held a meeting, at which all of the sub-committees pre­
sented their final reports, and the full committee unani­
mously adopted the following resolution:

“ To recommend to the Board of Education for Har­
ford County that any child regardless of race may 
make individual application to the Board of Education 
to be admitted to a school other than the one attended 
by such child, and the admissions to be granted by 
the Board of Education in accordance with such rules 
and regulations as it may adopt and in accordance 
with the available facilities in such schools; effective 
for the school year beginning September, 1956.”

On March 7, 1956, the Board of Education of Harford 
County adopted the resolution as submitted by the Citizens 
Consultant Committee.

On March 9, 1956, Civil Action No. 8615 came on for 
hearing before me on defendants’ motion to dismiss the



22

On June 30, 1955, just one month after the second opin­
ion in Brown v. Board of Education, the Board of Educa­
tion of Harford County selected a Citizens Consultant Com­
mittee of thirty-six members from all sections of the county, 
five of whom were Negroes, to consider the problem of 
desegregation of the public schools in Harford County 
and to make recommendations to the Board of Education.

On July 27, 1955, a group of Negro parents petitioned 
the Board of Education, calling upon them “ to take imme­
diate steps to reorganize the public schools under your 
jurisdiction on a nondiscriminatory basis.”

The Citizens Consultant Committee held its first meet­
ing on August 15, 1955, and was split up into a number of 
sub-committees, to consider facilities, transportation and 
social relationships respectively. A member of the staff 
of the Board of Education served as consultant to each sub­
committee. The sub-committees met at various times dur­
ing the rest of the year 1955 and the first two months of 
1956.

On November 29, 1955, the four infant plaintiffs in the 
instant case, together with seventeen other Negro children, 
through their parents and next friends, brought suit in this 
court against the defendants herein (Civil Action No. 8615), 
alleging that the Board had “ refused to desegregate the 
schools within its jurisdiction and has not devised a plan 
for such desegregation,” and praying that:

“ 1. The court advance this cause on the docket and 
order a speedy hearing of the application for prelimi­
nary injunction and the application for permanent in­
junction according to law and that upon such hearings:

“2. The Court enter preliminary and permanent 
judgments that any orders, customs, practices, and 
usages pursuant to which said plaintiffs are segre-



25

The following stipulation, signed by counsel for all par­
ties, was filed in the case on the same day:

“Dismissal of Action

“ 1. This cause came to be heard in this Court on 
motion to dismiss the 9th day of March, 1956.

“2. Defendants, by their counsel, presented to the 
Court the attached Resolution of the Harford County 
Citizens Consultant Committee, adopted by the Har­
ford County Board of Education, as submitted, at its 
regular meeting on March 7, 1956.

“3. Relying upon said resolution, as adopted, plain­
tiffs hereby withdraw their complaint, and pray that 
the same be dismissed, costs to be paid by plaintiffs.”

To this stipulation was attached a certified copy of the 
resolution recommended by the Citizens Consultant Com­
mittee and adopted by the Harford County Board of Edu­
cation.

On June 6, 1956, the Board of Education adopted the fol­
lowing “ Transfer Policy” , which all parties agree was 
reasonable:

“If a child desires to attend a school other than 
the one in which he is enrolled or registered, it will 
be necessary for his parents to request a transfer. 
Applications for transfer are available on request. 
These requests should be addressed to the Board of 
Education, c/o  Superintendent of Schools, Bel Air, 
Maryland. Applications will be received by the Board 
of Education between June 15 and July 15, 1956. 
All applications for transfer must state the reason 
for the request, and must be approved by the principal 
of the school which the pupil is now attending.



24

complaint, pursuant to Rule 12(b), Fed. Rules Civ. Proc. 
28 U. S. C. A. At the beginning of the hearing, counsel for 
defendants advised the court that the Board of Education 
of Harford County had “approved or adopted” the recom­
mendation offered by the Citizens Consultant Committee 
and read the resolution into the record. He then said: 
“ Since that plan embraces the relief prayed for, I think 
that takes care of that, and I want to call that to Your 
Honor’s attention.” Counsel for plaintiffs then said: “ We 
are in a position to enter into a consent decree embody­
ing the terms of this resolution. We would like to discuss 
it, but I do not think there is any need for further litiga­
tion.” Counsel for the defendants replied: “ I do not think 
that the Court should enter a consent decree when the 
relief prayed for is the policy adopted by the Board. 1 
think the complaint should be dismissed in open court 
because there is really nothing before the Court to effectu­
ate.” I then left the bench so that counsel could discuss 
the matter more freely. When court reconvened the fol­
lowing colloquy took place:

“ Mr. Greenberg: We discussed this resolution that 
has been adopted by the School Board and we have 
told counsel for the defendants that we are sure they 
are proceeding in good faith and this plan is accept­
able to us, and we will dismiss our suit and make that a 
matter of record in open court, and file this.

“Mr. Barnes: That’s agreeable to the defendants, 
your Honor.

“ The Court: I think it would be well to have the 
record show that in view of the fact that you have 
been presented with this you offered to dismiss the 
suit, and attach this paper as an exhibit.

“Mr. Greenberg: Yes, sir.
“ The Court: I am very happy this has worked out 

in a very satisfactory way.”



27

local school problems. The resolution of the Harford 
County Citizens Consultant Committee is in accord 
with this principle. The report of this committee leaves 
the establishment of policies based on the assessing 
of local conditions of housing, transportation, person­
nel, educational standards, and social relationships to 
the discretion of the Board of Education.

“ The first concern of the Board of Education must 
always be that of providing the best possible school 
system for all of the children of Harford County. 
Several studies made in areas where complete de­
segregation has been practiced have indicated a lower­
ing of school standards that is detrimental to all 
children. Experience in other areas has also shown 
that bitter local opposition to desegregation in a school 
system not only prevents an orderly transition, but also 
adversely affects the whole educational program.

“With these factors in mind, the Harford County 
Board of Education has adopted a policy for a gradual, 
but orderly, program for desegregation of the schools 
of Harford County. The Board has approved applica­
tions for the transfer of Negro pupils from colored to 
white schools in the first three grades in the Edgewood 
Elementary School and the Halls Cross Roads Ele­
mentary School. Children living in these areas are 
already living in integrated housing, and the adjust­
ments will not be so great as in the rural areas of the 
county where such relationships do not exist. With 
the exception of two small schools, these are the only 
elementary buildings in which space is available for 
additional pupils at the present time.

“ Social problems posed by the desegregation of 
schools must be given careful consideration. These 
can be solved with the least emotionalism when younger 
children are involved. The future rate of expansion



26

“Applications for transfer will be handled through 
the usual and normal channels now operating under the 
jurisdiction of the Board of Education and its execu­
tive officer, the Superintendent of Schools.

“While the Board has no intentions of compelling 
a pupil to attend a specific school or of denying him 
the privilege of transferring to another school, the 
Board reserves the right during the period of transi­
tion to delay or deny the admission of a pupil to any 
school, if it deems such action wise and necessary for 
any good and sufficient reason.

“ All applications for transfer, with recommenda­
tions of the Superintendent of Schools, will be sub­
mitted to the Board of Education for final considera­
tion at the regular meeting of the Board on Wednesday, 
August 1, 1956. When requests for transfer are ap­
proved, parents must enroll their child at the school 
on the regular summer registration date, Friday, Au­
gust 24, 1956.”

The transfer policy was advertised in all newspapers 
published in Harford County. Sixty applications for trans­
fer of Negro pupils were submitted within the time specified.

On August 1, 1956, the Board of Education of Harford 
County adopted a “Desegregation Policy” , embodied in a 
document which recited the appointment of the Citizens 
Consultant Committee, the recommendation made by that 
Committee, the resolution adopted by the Board of Educa­
tion on March 7, 1956, and the transfer policy adopted by 
the Board in June. The statement of Desegregation Policy 
continued as follows:

“ The Supreme Court decision, which required de­
segregation of public schools, provided for an orderly, 
gradual transition based on the solution of varied



29

Garland seek transfer from the Havre de Grace Consoli­
dated School to the Aberdeen High School (9th and 11th 
grades respectively). They pray that:

“ 1. The Court advance this cause on the docket 
and order a speedy hearing of the application for 
preliminary injunction and application for permanent 
injunction according to law and that upon such hear­
ing;

“ 2. The Court enter preliminary and permanent 
judgments, that any orders, customs, practices and 
usages pursuant to which said plaintiffs are each of 
them, their lesees, agents and successors in office 
from denying to plaintiffs and other Negro residents 
of Harford County of the State of Maryland admis­
sion to any Public School operated and maintained 
by the Board of Education of Harford County, on 
account of race and color.” (sic)

Defendants tiled a motion to dismiss the complaint pur­
suant to Rule 12(b), raising substantially the same points 
which were considered in Robinson v. Board of Education 
of St. Mary’s Comity, supra. I overruled that motion on 
October 5, 1956. Defendants filed their answer on October 
24, and the case was set for hearing on November 14. Both 
sides offered testimony and documentary evidence. From 
the testimony it appears that most, but not all, of the schools 
in Harford County are overcrowded if the “ standards” 
or “goals” set out by the State are considered, namely, an 
average of 30 per class in elementary schools and 25 per 
class in secondary schools. But defendants conceded that 
any white children moving into the county would be ad­
mitted to the appropriate white school, however crowded. 
The factors considered by the Board of Education in adopt­
ing the August 1 Desegregation Policy were discussed at 
some length. The President of the Board of Education and



28

of this program depends upon the success of these 
initial steps.”

Pursuant to the Desegregation Policy so adopted, fifteen 
of the sixty applications were granted, and forty-five, 
including those of the infant plaintiffs in the instant case, 
were refused. On August 7, 1956, the defendant Charles 
W. Willis, Superintendent of Schools, sent the following 
letter to the parents of each of the infant plaintiffs:

“ The Board of Education, at its regular August 
meeting, adopted a policy for the desegregation of 
Harford County schools. Under the provisions of 
this policy your child will not be allowed to transfer 
from his present school. Your request for a trans­
fer has been refused by the Board of Education.

“ A copy of the desegregation policy is enclosed.”

Neither the infant plaintiffs nor their parents appealed 
to the State Board of Education from the action of the 
County Superintendent denying their requests for transfer. 
Nor have any appeals been filed by or on behalf of any of 
the other Negro children whose requests for transfer were 
refused.

On August 28, 1956, the four infant plaintiffs by their 
parents and next friends filed the instant suit, pursuant to 
Buie 23(a)(3), “ for themselves and on behalf of all other 
Negroes similarly situated” , alleging most of the facts set 
out above and other facts, some of which are disputed, 
which need not be detailed at this time.

Infant plaintiff Moore seeks transfer from the Central 
Consolidated Elementary School in Hickory to the elemen­
tary school in Bel Air, where he resides; Spriggs seeks 
transfer from the school in Hickory to the High School 
(junior high) in Edgewood, where he resides; Slade and



31

“A. Defendants are administratively ready to ef­
fectuate desegregation;

“B. ‘Community unreadiness’ constitutes no legal 
justification for continued segregation.”

Discussion

[1] The Maryland statutes and decisions were analyzed 
in Robinson v. Board of Education of St. Mary’s County, 
supra, 143 F. Supp. at pages 487-491. I adhere to that 
analysis, and it need not be repeated here. It is clear that 
some of the factors considered by defendants in the instant 
case when they adopted the August 1 Desegregation Policy, 
and some of the points argued by counsel for plaintiffs in 
opposition thereto, involve administrative problems, over 
which the State Board of Education has jurisdiction, and 
which should be appealed to that Board under the Maryland 
authorities. Some of the other factors and points involve 
legal questions, which under Maryland law are for the 
courts. Most, if not all, involve both administrative and 
legal problems. Even the estoppel point is a mixed ques­
tion, because the March 7 resolution leaves open at least 
the question of available facilities, whatever other matters 
may have been foreclosed.

Whether the court should attempt to segregate the legal 
questions and decide them at this time, or should defer any 
decision until the State Board has been given an oppor­
tunity to pass on the problem as an integrated whole, is a 
matter of comity and discretion. Since, at the time of the 
hearing in the St. Mary’s County case, the State Board 
assured the court that it will give prompt attention to any 
appeal filed by or on behalf of Negro students, I am satisfied 
that I should not make a final decision in this case until 
the plaintiffs have appealed to the State Board from the 
action of the County Superintendent denying their applica-



30

the County Superintendent testified that they did not con­
sult counsel before adopting the August 1 Desegregation 
Policy, but that they thought this policy was in accord 
with the recommendation of the Citizens Consultant Com­
mittee and with the March 7 resolution adopted by the 
Board.

Plaintiff’s counsel do not charge bad faith against either 
the Board or the Superintendent, but contend that:

“ I. The Harford County School Board Resolution 
of March 7, 1956, meant that from the following school 
year and thereafter there would be no legally com­
pelled racial segregation of school children in Harford 
County;

“II. The defendants are estopped from any further 
delay in complete integration by their action in caus­
ing plaintiffs to withdraw plaintiffs’ original suit in 
reliance on the Board’s resolution, which resolution 
was expressly incorporated by reference into the court’s 
order of dismissal;

“III. Plaintiffs are entitled to judicial rather than 
administrative relief at this time in view of the history 
and facts of this case;

“A. Defendants, by their actions, are estopped from 
asserting the doctrine of administrative exhaustion as 
a defense;

“ B. Even if defendants were not estopped from rais­
ing the defense of the doctrine of administrative ex­
haustion, the defense would nevertheless fail as the 
doctrine is not here applicable;

“ IV. Even if defendants could validly raise the 
questions of necessary administrative delay, their own 
actions clearly demonstrate the fact that no additional 
time is needed to solve administrative problems;



33

District Court Opinion of June 20, 1957

T homsen, Chief Judge:

This action was brought by four Negro children, on 
their own behalf and on behalf of those similarly situated, 
seeking admission to certain public schools in Harford 
County, Maryland. The background and first stages of 
the case are detailed in an opinion filed herein on Novem­
ber 23, 1956, D. C., 146 F. Supp. 91.

Following that opinion, the four plaintiffs and eight 
other children, who have asked and been granted leave 
to intervene in this case, filed appeals with the State Board 
of Education from the refusal of the Superintendent of 
Schools of Harford County to grant their applications for 
transfer from consolidated schools for colored children to 
various white schools which were not desegregated in Sep­
tember, 1956.

While those appeals were pending before the State 
Board, on February 6, 1957, the Harford County Board 
adopted the following “ Extension of the Desegregation 
Policy for 1957-1958” :

“Applications for transfers will be accepted from 
pupils who wish to attend elementary schools in the 
areas where they live, if space is available in such 
schools. Space will be considered available in schools 
that were not more than 10% overcrowded as of 
February 1, 1957. All capacities are based on the state 
and national standard of thirty pupils per classroom.

“ Under the above provision, applications will be 
accepted for transfer to all elementary schools ex­
cept Old Post Road, Forest Hill, Bel Air, Highland, 
Jarrettsville, the sixth grade at the Edgewood High 
School, and Dublin. Such applications must be made



32

tions for transfer. Brown v. Board of Education, 349 U. S. 
294, 75 S. Ct. 753; Hood v. Board of Trustees of Sumter 
County School District No. 2, 4 Cir., 232 F. 2d 626; Carson 
v. Board of Education of McDowell County, 4 Cir., 227 F. 
2d 789; Robinson v. Board of Education of St. Mary’s 
County, D. C. D. Md., 143 F. Supp. 481. However, the final 
decision in this court, if one is necessary after the State 
Board has acted, should be rendered within such time that 
the losing parties may have an appeal heard by the Court 
of Appeals for the Fourth Circuit at its June, 1957 term.

Conclusions

[2] 1. The appointment of the Citizens Consultant
Committee in the summer of 1955, its study, resulting in 
its recommendation to the Board of Education, and the 
resolution adopted by the Board on March 7, 1956, were 
a prompt and reasonable start toward compliance with 
the Supreme Court ruling.

2. I intimate no opinion at this time with respect to 
the sufficiency or propriety of the Desegregation Policy 
adopted by the Board on August 1,1956.

3. I will enter a decree dismissing this action unless 
the plaintiffs appeal to the State Board of Education on 
or before December 15, 1956, from the action of the County 
Superintendent refusing their applications for transfer. 
If plaintiffs enter such an appeal, I will stay further pro­
ceedings in this case until the State Board shall have 
decided the appeal or shall have delayed decision for an 
unreasonable time; provided that after the State Board 
shall have rendered its decision, or after March 1, 1957, 
whichever is earlier, either plaintiffs or defendants may 
request the court to set this case for further argument 
and prompt decision.



35

intendent, explained and amplified the February 6, 1957 
resolution of the County Board. The President of the 
Board and its counsel accepted that interpretation. So 
explained and amplified, the plan was substantially the 
same as the plan which was later adopted by the County 
Board on May 1, 1957, as follows:

“ The Board reviewed its desegregation policy of 
February 6, 1957. In accordance with this plan, the 
following elementary schools will be open in all six 
grades to Negro pupils at the beginning of the 1957- 
1958 school year:

“Emmorton Elementary School 
“ Edgewood Elementary School 
“ Aberdeen Elementary School 
“Halls Cross Roads Elementary School 
“ Perryman Elementary School 
“ Churchville Elementary School 
“ Youth’s Benefit Elementary School 
“ Slate Ridge Elementary School 
“ Darlington Elementary School 
“ Havre de Grace Elementary School 
“ 6th Grade at Aberdeen High School

“Schools now under construction or contemplated 
for construction in 1958, if no unforeseen delays occur, 
will automatically open all elementary schools to Negro 
pupils by September, 1959. As a result of new con­
struction, the elementary schools at Old Post Road, Bel 
Air, and Highland will accept applications for transfer 
of Negro pupils for the school year beginning in 
September, 1958. Forest Hill, Jarrettsville, Dublin 
and the sixth grade at the Edgewood High School 
would receive applications for the school year begin­
ning in September, 1959.



34

during the month of May on a regular application form 
furnished by the Board of Education, and must be 
approved by both the child’s classroom teacher and the 
principal of the school the child is now attending.

“All applications will be reviewed at the regular 
June meeting of the Board of Education and pupils 
and their parents will be informed of the action taken 
on their applications prior to the close of school in 
June, 1957.”

After a hearing, the State Board dismissed the appeals, 
finding that “the Harford County Board acted within the 
policy established by the State Board” , that “ the County 
Superintendent acted in good faith within the authority set 
forth in the August 1, 1956, Desegregation Policy adopted 
by the County Board” ,1 that the Desegration Policy was 
adopted in a bona fide effort to make a reasonable start 
toward actual desegregation of the Harford County pub­
lic schools” , and that “ this initial effort [the desegrega­
tion of three grades in two elementary schools] has been 
carried out without any untoward incidents” . The State 
Board also took “cognizance of the resolution of the County 
Board of February 6, 1957”, set out above herein, “ as well 
as the testimony to the effect that the proposed Harford 
County Junior College, which is to be established in Bel Air 
in the fall of 1957, will open on a desegregated basis, and 
also the testimony to the effect that the present program 
of new buildings and additions will make further desegre­
gation possible” .

After the decision of the State Board, plaintiffs set this 
case for further hearing, as provided in the earlier decree, 
146 F. Supp. at page 98. That hearing was held on April 
18, 1957. Charles W. Willis, the Harford County Super-

1 See 146 F. Supp. at page 95.



37

adjustment of each individual pupil, and the commit­
tee will utilize the best professional measures of both 
achievement and adjustment that can be obtained 
in each individual situation. This will include, but 
not be limited to, the results of both standardized 
intelligence and achievement tests, with due considera­
tion being given to grade level achievements, both 
with respect to ability and with respect to the grade 
into which transfer is being requested.

“ The Board of Education and its professional staff 
will keep this problem under constant and continuous 
observation and study.”

The modified plan was presented to the court at a hear­
ing on June 11, 1957. It was made clear that when an 
elementary school has been desegregated, all Negro chil­
dren living in the area served by that school will have "the 
same right to attend the school that a white child living 
in the same place would have, and the same option to attend 
that school or the appropriate consolidated school that a 
white child will have. The same rule will apply to the high 
schools, all of which operated at both junior high and senior 
high levels, as they become desegregated, grade by grade. 
Of course, the County Board will have the right to make 
reasonable regulations for the administration of its schools, 
so long as the regulations do not discriminate against any­
one because of his race; the special provisions of the June 
5, 1957 resolution will apply only during the transition 
period.

[1] Willis also testified that the applications which will 
be made pursuant to the June 5, 1957 modification will be 
approved or disapproved on the basis of educational fac­
tors, for the best interests of the student, and not for other 
reasons. I have confidence in the integrity, ability and 
fairness of Superintendent Willis and of the principals,



36

“As a normal result of this plan, sixth grade gradu­
ates will be admitted to junior high schools for the 
first time in September, 1958 and will proceed through 
high schools in the next higher grade each year. This 
will completely desegregate all schools of Harford 
County by September, 1963.

“ The Board will continue to review this situation 
monthly and may consider earlier admittance of Negro 
pupils to the white high schools if such seems feasible. 
The Board reaffirmed its support of this plan as ap­
proved by the State Board of Education.”

At the April, 1957 hearing. I ruled tentatively that 
the plan was generally satisfactory for the elementary 
grades, but not for the high school grades, and suggested 
that the parties attempt to agree on a modified plan. Con­
ferences between counsel were held, but no agreement was 
reached. The County Board, however, on June 5, 1957 
modified the plan as follows:

“ The Board reaffirmed its basic plan for the de­
segregation of Harford County Schools, but agreed 
to the following modification for consideration of 
transfers to the high schools during the interim period 
while the plan is becoming fully effective.

“Beginning in September, 1957, transfers will be 
considered for admission to the high schools of Har­
ford County. Any student wishing to transfer to a 
school nearer his home must make application to the 
Board of Education between July 1 and July 15. 
Such application will be evaluated by a committee 
consisting of the high school principals of the two 
schools concerned, the Director of Instruction, and 
the county supervisors working in these schools.

“These applications will be approved or disap­
proved on the basis of the probability of success and



39

it justifies the one or two years delay in desegregating the 
seven schools.

With respect to the high schools, other factors are 
involved. Superintendent Willis testified that when a child 
transfers to a high school from another high school he 
faces certain problems which do not arise when he enters 
the seventh grade, which is the lowest grade in the Harford 
County high schools. After a year or so in the high schools 
social groups, athletic groups and subject-interest groups 
have begun to crystallize, friendships and attachments have 
been made, cliques have begun to develop. A  child trans­
ferring to the school from another high school does not have 
the support of a group with whom he has passed through 
elementary school. A  Negro child transferring to an upper 
grade at this time would not have the benefit of older 
brothers, sisters or cousins already in the school, or parents, 
relatives or friends who have been active in the P. T. A. 
High school teachers generally, with notable exceptions, 
are less “ pupil conscious” and more “ subject conscious” 
than teachers trained for elementary grades, and because 
each teacher has the class for only one or two subjects, are 
less likely to help in the readjustment. The Harford County 
Board had sound reasons for making the transition on a 
year to year basis, so that most Negro children will have a 
normal high school experience, entering in the seventh grade 
and continuing through the same school. But I was un­
willing in April to approve a plan which would prevent all 
Negro children now in the sixth grade or above from ever 
attending a desegregated high school.

However, the modified plan adopted on June 5, 1957, 
permits any Negro child to apply next month for transfer 
to a presently white high school, and if his application is 
granted, to be admitted in September, 1957, three months 
hence. This plan is different from any to which my atten-



38

supervisors and others who will make the decisions under 
his direction. In the light of that confidence, I must decide 
whether the modified plan meets the tests laid down in the 
opinions of the Supreme Court and of the Fourth Circuit,2 
with such guidance as may be derived from other decisions.3 
The burden of proof is on defendants to show that a delay 
during a transition period is necessary, that the reasons 
for the delay are reasons which the court can accept under 
the constitutional rule laid down by the Supreme Court, and 
that the proposed plan is equitable under all the circum­
stances. In considering whether defendants have met that 
burden, the court must recognize that each county has a 
different combination of administrative problems, tradi­
tions and character. Many counties are predominantly 
rural, others suburban; some have large industrial areas 
or military reservations. See 146 F. Supp. at page 92.

[2] Eleven out of the eighteen elementary schools in 
Harford County will be completely desegregated in Sep­
tember, 1957, three months from now. Three more will be 
completely desegregated in 1958, and the remaining four 
in 1959. The reason for the delay in desegregating the 
seven schools is that the county board and superintendent 
believe that the problems which accompany desegregation 
can best be solved in schools which are not overcrowded and 
where the teachers are not handicapped by having too 
many children in one class. That factor would not justify 
unreasonable delay; but in the circumstances of this case

2 Brown v. Board of Education, 349 U. S. 294, 75 S. Ct. 753, 
99 L. Ed. 1083; Brown v. Board of Education, 347 U. S. 483, 74 
S. Ct. 686, 98 L. Ed. 873; Carson v. Warlick, 4 Cir., 238 F. 2d 724; 
Carson v. Board of Education of McDowell County, 4 Cir., 227 
F. 2d 789.

3 Aaron v. Cooper, D. C. E. D. Ark., 143 F. Supp. 855; Kelley 
v. Board of Education of the City of Nashville, M. D. Tenn., 2 Race 
Rel. L. Rep. 21 (1957). Cf. Mitchell v. Pollock, W. D. Ky., 2 Race 
Rel. L. Rep. 305 (1957).



41

[4] The March 7, 1956 resolution was somewhat am­
biguous, but, as it was interpreted by defendants’ coun­
sel in open court, plaintiffs were justified in believing, as 
I did, that applications for transfer would be considered 
without regard to the race of the applicant. The County 
Board interpreted it differently in the statement entitled 
“Desegregation Policy” adopted on August 1, 1956; see 
146 F. Supp. at page 95. I cannot accept the interpreta­
tion adopted by the County Board, but I find that it was 
adopted as a result of a mistake and not as the result of 
any bad faith on the part of the Board, the Superintendent, 
or their counsel. The Board adopted the Desegregation 
Policy of August, 1956, in the honest belief that it was to 
the best interests of all of the children in the County. 
Pursuant to that policy the Superintendent admitted 
fifteen Negro children to two previously white schools, 
but denied admission to forty-five others, including the 
infant plaintiffs herein.

There is grave doubt whether a governmental agency 
such as a county school board can be estopped from adopt­
ing a policy, otherwise legal, which it believes to be in the 
best interests of all the people in the County. In the instant 
case it would be inequitable and improper, on the ground 
of estoppel, to require the County Board to open all schools 
to Negroes immediately, as requested in the complaint. 
The County Board should not be foreclosed by the facts 
which I have found from taking such actions, and adopt­
ing and modifying such policies, as it believes to be in the 
best interest of the people in the County, so long as those 
actions and those policies are constitutional.

[5] The individual plaintiffs in the earlier case, how­
ever, were prevented from pressing their individual rights 
in this court and on appeal by the adoption of the March 
7, 1956 resolution and by what took place in this court



40

tion lias been called or about which I have read. It is an 
equitable way of handling the transition period. My only 
doubt is whether it is necessary to postpone until September, 
1958, the complete desegregation of the seventh grade. But 
I am not charged with the responsibility of administering 
the Harford County public school system. Although 1 
think the reasons given for the delay of one year are less 
satisfactory than the reasons given for the rest of the 
plan, a federal court should be slow to say that the line 
must be drawn here and cannot reasonably be drawn there, 
where the difference in time is short and individual rights 
are reasonably protected, during the transition period, 
as they are by the June 5, 1957 modification.

[3] Plaintiffs are obviously worried whether the June 
5 plan will be carried out in good faith, or whether it will 
be used as a means of postponing the admission of Negro 
children into the high schools without proper justification. 
Although, as I have said, I have confidence in Superin­
tendent Willis and his staff, plaintiffs’ doubts are not un­
reasonable in view of the past history of this litigation. 
I will, therefore, enter a decree which will spell out the 
rights of individual children under the plan, and will 
retain jurisdiction of the case, so that if any child or his 
parents feel that his application has been rejected for a 
reason not authorized by the modified plan, a prompt hear­
ing may be granted.

There remains the question of estoppel, based upon 
the resolution adopted by the County Board on March 7, 
1956, and the interpretation of that resolution by its coun­
sel in open court in the earlier Harford County case, as 
a result of which the plaintiffs therein dismissed their 
action. The facts on this point are set out fully in 146 F. 
Supp. 93 et seq.





42

in that case. See 146 F. Supp. 93 et seq. Two of those 
infant plaintiffs are before the court in this case, and their 
counsel urge that their individual rights, as well as any 
class rights, be enforced. The reasons which prevent an 
estoppel against the County Board so far as its general 
policies are concerned, do not apply with equal force to 
the individual claims of those two children. It would not 
be equitable to delay any further the enforcement of their 
individual rights.

I will, therefore, include in the decree a provision en­
joining the County Board from refusing to admit Stephen 
Moore and Dennis Spriggs to Avliatever school would be 
appropriate for them if they were white.



38