Pettaway v. County School Board of Surry, Virginia Appendix to Appellants' Brief
Public Court Documents
September 3, 1963

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Brief Collection, LDF Court Filings. Pettaway v. County School Board of Surry, Virginia Appendix to Appellants' Brief, 1963. 66b02d20-c19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/8862b043-fa1c-4cf5-b61e-f78cb55abb4c/pettaway-v-county-school-board-of-surry-virginia-appendix-to-appellants-brief. Accessed August 27, 2025.
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APPENDIX TO APPELLANTS’ BRIEF In The UNITED STATES COURT OF APPEALS For The Fourth Circuit No. 9286 Avis M. Pettaway, et al, Appellants, vs. County School Board of Surry County, Virginia, et al, Appellees. S. W. T ucker H en ry L. M a r sh , III 214 East Clay Street Richmond 19, Virginia Attorneys for Appellants Ihe Press o f L a w y e rs Printing C o m p a n y , In co rp o ra ted , R ichm ond 7, V irg in ia IN D EX TO APPEN DIX Page Complaint ..........................-........ —-..................................... 3 Joint Meeting of Board of Supervisors and School Board, June 30, 1954 (P X -1 ) ............—...................... 15 School Board Meeting, May 27, 1963 ......................... - 17 School Board Meeting, June 11, 1963 ............................ 17 Supervisors Meeting, August 15, 1963 (P X -3 ) .........- 18 School Board Meeting, August 23, 1963 ....................... 19 School Board Meeting, August 24, 1963 ........................ 21 Supervisors Meeting, August 29, 1963 (P X -4 ) .......... 24 School Board Meeting, September 3, 1963 .................. 25 School Board Meeting, September 5, 1963 .................... 25 Supervisors Meeting, September 19, 1963 (P X -5 ) ---- 27 Depositions Taken September 13, 1963 ........ ............... 27 Edwin F. Huber ......... 29 M. B. Joyner .................... .................................... ----- 32 Memorandum of the Court ....................................-...... 37 O rder..................................................................................... 42 Notice of Appeal.......................................... -..................... — 43 Transcript of Proceedings ..................... - ...................... — 44 Franz J. Von Schilling, Jr......................................... 45 William E. Seward, Jr............................ 57 Clifton M. Ellis, Jr........................ 61 R. Franklin Lawrence ........ 68 Scott L. Henderson ................................. 75 J. L. W h ite .................................................................. 75 M. B. Joyner .............................................................. 79 Clarence J. Kee ................................. -....................... - 81 In The UNITED STATES COURT OF APPEALS For The Fourth Circuit No. 9286 Avis M. Pettaway, et al, Appellants, vs. County School Board of Surry County, Virginia, et al, Appellees. APPENDIX TO APPELLANTS’ BRIEF IN TH E UNITED STATES D ISTRICT COURT FOR TH E EASTERN DISTRICT OF VIRGIN IA Richmond Division Civil Action No. 3766. Filed Sept. 3, 1963. AVIS M. PE TTA W A Y , BETTIE L. PE TTA W A Y , FLORENCE L. P E T T A W A Y and LEON S. PE TT A W A Y , infants, by Charles L. 2 Pettaway and Bessie W. Pettaway, their father and mother and next friends, LILLIAN DIAN E HARRIS and STEPHEN ERIC HARRIS, infants, by Samuel E. Harris and Armenta P. Harris, their father and mother and next friends, LA VERNE O. BAILEY, an infant, by Abraham Bailey and Gladys P. Bailey, her father and mother and next friends, and CHARLES L. PE TT A W A Y , BESSIE W. PE TT A W A Y , SAM UEL E. HARRIS, AR M EN TA P. HARRIS, AB RAH AM BAILEY and GLADYS P. BAILEY, Plaintiffs, vs. COUNTY SCHOOL BOARD OF SURRY COUNTY, VIRGIN IA E. F. HUBER, Dendron, Virginia J. L. W H ITE, Elberon, Virginia MRS. H. T. COOPER, Waverly, Virginia M. B. JOYNER, individually and as Division Superintendent of Schools of Surry County, Virginia, Dendron, Virginia BOARD OF SUPERVISORS OF SURRY COUNTY, VIRGINIA, W. E. SEW ARD, JR., Claremont, Virginia 3 CLIFTON M. ELLIS, JR.. Wakefield, Virginia J. A. SAVEDGE, Surry, Virginia A. T. SOWDER, County Treasurer of Surry County, Virginia Surry, Virginia STATE BOARD OF EDUCATION, Richmond, Virginia W O ODROW W. W ILKERSON, Superintendent of Public Instruction, Richmond, Virginia, Defendants. COM PLAINT I 1. (a ) Jurisdiction of this Court is invoked under Title 28, United States Code, Section 1331. This action arises under the Fourteenth Amendment to the Constitution of the United States, Section 1, and under the Act of Con gress, Revised Statutes, Section 1977, derived from the Act o f May 31, 1870, Chapter 114, Section 16, 16 Stat. 144 (Title 42, United States Code, Section 1981), as here after more fully appears. The matter in controversy, ex clusive of interest and cost, exceeds the sum of Ten Thousand Dollars ($10,000.00). (b ) Jurisdiction is further invoked under Title 28, United States Code, Section 1343. This action is author ized by the Act of Congress, Revised Statutes, Section 1979, derived from the Act of April 20, 1871, Chapter 22, Section 1, 17 Stat. 13 (Title 42, United States Code, Sec 4 tion 1983), to be commenced by any citizen of the United States or other person within the jurisdiction thereof to redress the deprivation under color of state law, statute, ordinance, regulation, custom or usage of rights, privileges and immunities secured by the Fourteenth Amendment to the Constitution of the United States and by the Act o f Congress, Revised Statutes, Section 1977, derived from the Act of May 31, 1870, Chapter 114, Section 16, 16 Stat. 144 (Title 42, United States Code, Section 1981), provid ing for the equal rights of citizens and of all persons within the jurisdiction of the United States as hereafter more fully appears. II 2. Infant plaintiffs are Negroes, are citizens of the United States and of the Commonwealth of Virginia, and are residents of and domiciled in the political subdivision ■of Virginia for which the defendant school board main tains and operates public schools. Said infants are within the age limits of eligibility to attend, and possess all quali fications and satisfy all requirements for admission to, said public schools. 3. Adult plaintiffs are Negroes, are citizens of the United States and of the Commonwealth of Virginia, and are residents of and domiciled in said political subdivision. They are parents of one or more of the infant plaintiffs. 4. Plaintiffs bring this action in their own behalf and, there being common questions of law and fact affecting the rights of all other Negro children attending public schools in the Commonwealth of Virginia and, particularly, in said political subdivision, and the parents and guardians of such children, similarly situated and affected with ref erence to the matters here involved, who are so numerous as to make it impracticable to bring all before the court, and a common relief being sought, as will hereinafter more fully appear, the plaintiffs also bring this action, pursuant to Rule 23(a) of the Federal Rules of Civil Procedure, as a class action on behalf of all other Negro children at tending public schools in the Commonwealth of Virginia and, particularly, in said political subdivision, and the parents and guardians of such children, similarly situated and affected with reference to the matters here involved. I ll 5. The Commonwealth of Virginia has declared public education a state function. The Constitution of Virginia, Article IX, Section 129, provides: “Free schools to be maintained. The General As sembly shall establish and maintain an efficient system of public free schools throughout the State.” Pursuant to this mandate, the General Assembly of Vir ginia has established a system of public free schools in the Commonwealth of Virginia according to a plan set out in Title 22, Chapters 1 to IS, inclusive, of the Code of Vir ginia, 1950. The establishment, maintenance and admin istration of the public school system of Virginia is vested in a State Board of Education, a Superintendent of Public Instruction, Division Superintendent of Schools, and County, City, and Town School Boards (Constitution of Virginia, Article IX, Sections 130-133; Code of Virginia, 1950, Title 22, Chapter 1, Section 22-2). Both “ state 6 funds” and “ local funds” are normally necessary for the support and maintenance of public schools, the availability o f the major portion of the state funds being conditioned upon appropriations of local funds being made by the Board o f Supervisors of the affected county or by the council of the affected city. 6. Chapter 448 o f the Acts o f the General Assembly, 1960 (Code of Virginia, §§ 22-115.29 through 22-115.33) makes or purports to make every child in the Common wealth between the ages of six and twenty who has not finished or graduated from high school eligible to receive a state scholarship in aid of such child’s attendance at a nonsectarian private school located in or outside, or a public school located outside, the locality in which such child resides, the amount of such scholarship per school year being one hundred twenty-five dollars for the child attending an elementary school and one hundred fifty dol lars for the child attending a high school. In addition, the statute requires or purports to require the county or city o f such child’s residence to pay a further sum, not exceed ing one hundred twenty-five dollars per school year, for such child s attendance at such school and authorizes or purports to authorize the county or city to pay such fur ther sums as the local governing body may deem proper. The defendant State Board of Education, acting through the defendant Superintendent of Public Instruction, is charged with the general execution of said statute. The genesis of this legislation was Chapters 56, 57 and 58 of the Acts of the General Assembly, Extra Session 1956. Its intervening development is reflected in Chapters 1, 49, 50, 53 and 80 of the Acts of the General Assembly, Extra Session 1959. 7 7. Chapter 64 of the Acts of the General Assembly, Extra Session 1956 (Code of Virginia, §§51-111.38:1 through 51-111.38:3) provides that any corporation organ ized after December 2, 1956 for the purpose of providing elementary or secondary education may by resolution duly adopted elect to have teachers employed by it become eli gible to participate in the Virginia Supplemental Retire ment System (Code of Virginia, Title 51, Chapter 3.2, §§ 51-111.9, et seq.). IV 8. The defendant County School Board of Surry County exists pursuant to the Constitution and laws of the Com monwealth of Virginia as an administrative department of the Commonwealth, discharging governmental func tions, and is declared by law to be a body corporate. Said school board is empowered and required to establish, main tain, control and supervise an efficient system of public free schools in said county, to provide suitable and proper school buildings, furniture and equipment, and to maintain, manage and control the same, to determine the studies to be pursued and the methods of teaching, to make local regulations for the conduct o f the schools and for the proper discipline of the students, to employ teachers, to provide for the transportation of pupils, to enforce the school laws, and to perform numerous other duties, activi ties and functions essential to the establishment, mainte nance and operation of the public free schools in said county. (Constitution o f Virginia, Article IX, Section 133; Code of Virginia, 1950, as amended. Title 22.) 9. The defendant M. B. Joyner, Division Superintend ent o f Schools, holds office pursuant to the Constitution and 8 laws of the Commonwealth of Virginia as an administrative officer of the public free school system of Virginia. (Con stitution of Virginia, Article IX, Section 133; Code of Virginia, 1950, as amended, Title 22.) He is under the authority, supervision and control of, and acts pursuant to the orders, policies, practices, customs and usages of, the defendant school board. He is made a defendant herein both in his official and in his individual capacities. 10. Woodrow W. Wilkerson is Superintendent of Pub lic Instruction and as such he is made a party defendant. E. F. Huber, J. L. White and Mrs. H. T. Cooper presently constitute the defendant County School Board of Surry County; and they are made parties defendant in their indi vidual capacities. W . E. Seward, Jr., Clifton M. Ellis, Jr. and J. A. Savedge presently constitute the defendant Board o f Supervisors of Surry County; and they are made parties defendant in their individual capacities. A. T. Sowder is the County Treasurer of Surry County and as such he is made a party defendant. V 11. The defendant County School Board and each mem ber thereof and the defendant Board of Supervisors and each member thereof are opposed to altering the long estab lished pattern of racial segregation in the public schools. The defendant School Board has done nothing toward bringing about the elimination of racial segregation in the public school system. 12. It is believed and alleged that unless enjoined and restrained from so doing, the defendant Board of Super visors will withhold appropriations of money necessary for the continued operation of public schools if the defend 9 ant School Board should voluntarily or through compul sion assign teachers to schools without regard to race or permit children to attend public school without regard to race. VI 13. Prior to and during the 1962-63 school session, the defendant County School Board maintained and operated three schools, viz: (1 ) Surry School wherein grades one through twelve were taught, (2 ) New Lebanon School wherein grades one through seven were taught, and (3) L. P. Jackson School wherein grades one through twelve were taught. All of the county’s white public school chil dren, 431 in number, attended Surry School wherein twenty-two white persons were employed as teachers and one as principal. A fleet of ten school busses (each designed to carry a maximum of 57 children) transported white children to Surry School. Some of the county’s Negro ele mentary school children, 443 in number, attended Lebanon Elementary School where twelve Negroes were employed as teachers and one as principal. The others of the county’s Negro elementary school children, 521 in number, attended the elementary department of the L. P. Jackson School where fifteen Negroes were employed as teachers. The county’s Negro high school students, 389 in number, attended the high school department of the L. P. Jackson School where twelve classroom teachers, a teacher of Home Economics, a teacher of Agriculture, and a principal (all Negroes) were employed. A fleet of fifteen busses (each designed to carry a maximum of 57 children) transported the Negro school children to Lebanon School and L. P. Jackson School. 10 14. The powers and duties of the Pupil Placement Board are stated in Sections 22-231.1 through 22-232.17 of the Code of Virginia of 1960 (Cum. Supp.). On or about June 24, 1963, the Pupil Placement Board made and announced the assignments of the infant plaintiffs to attend Surry School for the 1963-64 session. That board has taken no subsequent action with regard to the school assignments of these plaintiffs. 15. Within a few days after the announcement of the assignment of the seven infant plaintiffs to the formerly “ all-white” Surry School, a mass meeting of white residents of the county was called and held at the county courthouse with approximately one thousand persons in attendance. At this mass meeting it was unanimously decided that a “private” school for all white children would be formed, that persons under contract to teach at the Surry School would be released from the public school system and be given preference for employment at the “private” school, and that the county should continue to operate public schools for Negroes. It was and is generally contemplated that state and local scholarships will defray the major portion of the expense for the attendance of children at such “ private” school. 16. On July IS, 1963, the Surry County Educational Foundation was incorporated, the purpose of the incorpo rators being to establish and operate a school or schools in Surry County for all of the white children of the county of public school age. The registered agent for said founda tion on whom process against it may be served is Ernest W. Goodrich, Esq., who also serves in the County o f Surry as the attorney for the Commonwealth. Specific state stat utes make it the duty of the attorney for the Commonwealth 11 to give his legal opinion when required by the Board o f Supervisors on all questions arising before that board (Code of Virginia, § 15-257) and to institute and conduct actions against local school authorities and their employees who shall by malfeasance, misfeasance or nonfeasance offend against the provisions of the school laws of the state (Code of Virginia, §§ 22-215, 22-216). 17. The defendant County School Board adopted, rati fied, partially executed and made possible the complete execution of the decision made at the mass meeting. Said School Board sought and accepted resignations of the per sons who were under contract to teach at the Surry School for the 1963-64 session and thus made them available for employment as teachers in the foundation’s “ private” school. Said School Board made and announced its decision to discontinue the operation of Surry School and thus vir tually compelled all of the white children of the county to attend the foundation’s “private” school. Said School Board is believed to have sold or otherwise disposed of some of the equipment formerly used at the Surry School and that it contemplates selling or otherwise disposing of other property formerly used in the operation of Surry School. 18. No private nonsectarian school located in Surry County is known to exist or to be contemplated other than the school or schools established by the Surry County Edu cational Foundation. 19. In seeking and accepting the resignations of the per sons who were under contract to teach at Surry School for the 1963-64 session, and in doing so after the Pupil Place ment Board had recognized and given effect to the right of the infant plaintiffs not to be segregated by race in the 12 public schools, the defendant County School Board de prived the infant plaintiffs of a liberty protected by the Fourteenth Amendment to the Constitution of the United States. To the extent that such action and other actions of the state, its officers and agencies, as hereinabove related, have encouraged and made possible the establishment and operation of a school for the education of all of the white children of the county, the defendant officers and agencies of the state have denied and unless enjoined from so doing will continue to deny to the plaintiffs that due process and equal protection of law which is guaranteed by the Four teenth Amendment to the Constitution. 20. Plaintiffs and those similarly situated and affected are suffering irreparable injury and are threatened with irreparable injury in the future as a result of the actions here complained of and as a result of the failure of the defendant School Board to eliminate racial discrimina tion from the county’s school system. Plaintiffs have no plain, adequate or complete remedy to redress the wrongs and illegal acts herein complained of other than this complaint for an injunction. Any other remedy to which plaintiffs and those similarly situated could be re mitted would be attended by such uncertainties and delays as would deny substantial relief, would involve a multi plicity of suits, and would cause further irreparable injury and occasion damage, vexation and inconvenience. 21. The statute which provides for scholarships in aid of attendance of children at private schools contemplates and permits the payment of such scholarships, or install ments thereon, in advance of the child’s actual attendance at such school, it being made unlawful for a recipient to expend scholarship funds for any purpose other than in payment of or reimbursement for tuition costs. (Code of 13 Virginia, § 22-115.35.) Plaintiffs believe and allege that unless they will be promptly enjoined from so doing, the defendants will expend or cause to be expended large sums of money raised by public taxation in the further execu tion of the decision of the mass meeting of white residents to establish and operate at public expense “private” schools for all of the white children of the county. VII W HEREFORE, plaintiffs respectfully pray: (A ) That this action be advanced on the docket and that a hearing on the prayers for interlocutory injunctions be held as soon as practical. (B ) That an interlocutory injunction be entered en joining and restraining the defendant Board of Super visors of Surry County, the defendant A. T. Sowder, County Treasurer of Surry County, the defendant State Board of Education, and the defendant Woodrow W. Wilkerson, Superintendent of Public Instruction, and their successors in office, from processing or approving any applications for state or county scholarships from persons residing in Surry County or from paying or caus ing the payment of such scholarships to any person resid ing in Surry County until the further order of this Court. (C ) That an interlocutory injunction be entered en joining and restraining the defendant County School Board of Surry County from failing and refusing to operate Surry School or any other school under its jurisdiction and control, during the 1963-64 session. 14 (D ) That an interlocutory injunction be entered en joining and restraining the defendant Board of Super visors of Surry County from refusing or failing to appro priate, for the operation of public schools during the 1963- 64 session, funds in sums at least equal to those appropri ated for such purpose for the 1962-63 session. (E ) That the Court enter a permanent injunction re straining and enjoining the defendant County School Board o f Surry County and the defendant M. B. Joyner, Di vision Superintendent of Schools of Surry County, and his successors in office, their agents and employees from any and all action that regulates or affects, on the basis of race or color, the initial assignment, the placement, the transfer, the admission, the enrollment or the education of any child to and in any public school or such child’s use and enjoyment of any facility owned or controlled by said School Board for the use of other children at such school, and from any and all action that regulates or af fects, on the basis of race or color the employment or as signment of persons as teachers, principals, or as adminis trative assistants in any school owned or controlled by said School Board. (F ) That the Court permanently restrain and enjoin the defendant Board of Supervisors of Surry County from refusing or failing to appropriate funds for the continued operation of public free schools in Surry County. (G ) That the defendants pay to plaintiffs the costs of this action and attorney’s fees in such amount as to the Court may appear reasonable and proper; and 15 (H ) That the plaintiffs have such other and further relief as is just. S. W. T ucker O f Counsel for Plaintiffs S. W. T ucker H en ry L. M a r s h , III 214 East Clay Street Richmond 19, Virginia Counsel for Plaintiffs (JOIN T M EETING OF BOARD OF SUPERVISORS AN D SCHOOL BOARD, JUNE 30, 1954) PX-1 Virginia: At a Called meeting of the Board of Super visors of Surry County, and the County School Board of Surry County, held jointly at the Courthouse of said County on Wednesday, June thirtieth, nineteen hundred and fifty-four. Present: Clifton M. Ellis, Chairman, Board of Super visors Albert H. Ochsner, Supervisor Parke H. Cox, Supervisor Ernest W. Goodrich, Attorney for the Com monwealth T. M. Cofer, Chairman, County School Board E. F. Huber, Member School Board J. L. White, Member School Board M. B. Joyner, Division Superintendent of Schools BE IT RESOLVED, by the Board of Supervisors of Surry County and the County School Board of Surry 16 County, in meeting assembled this thirtieth day of June, 1954, as follows: F IR S T : That it is our considered judgment that the best interest o f public education for both the White and Negro children in Surry County, and the only way to main tain an efficient system of public education as required by the Constitution of Virginia, is through the continuation o f a segregated school system and to that end we express our unalterable opposition to integration of the races in the public schools to any degree, now or at any time in the future, and pledge to the people of this County our best efforts to continue our present educational system. SECOND: Recognizing the right of all children, re gardless o f race, to enjoy equal school facilities, we are prepared to equalize school facilities for the colored race o f this county where it does not now exist; to bring about complete equalization as quickly as humanly possible, and to that end are prepared to go forward with a building program which has been started several years ago to reach the desired conditions. On motion of A. H. Ochsner, Supervisor, Ernest W. Goodrich and Parke H. Cox are hereby appointed to repre sent both the County School Board and the Board of Super visors of this County, in any Fourth District meeting to be held to discuss or pass on, or in any way touching the matter of segregation or integration in Surry County. * * * 17 (Exhibit with depositions) SCHOOL BOARD MEETING M AY 27, 1963 Virginia: At a meeting of the County School Board of Surry County, Virginia held on May 27, 1963 at 2:00 P.M. in the Superintendent’s Office, Dendron, Virginia. Present: E. F. Huber, Chairman— Blackwater District J. L. White— Cobham District Mrs. H. T. Cooper— Guilford District M. B. Joyner— Clerk and Superintendent The Board discussed at some length the applications of three Negro pupils for placement in Surry County High and Elementary School for the 1963-’64 school session. The Superintendent was ordered to hold these applications until a thorough study of them can be made before for warding them to the State Pupil Placement Board. * * * (Exhibit with depositions) SCHOOL BOARD MEETING JUNE 11, 1963 Virginia: At a meeting of the County School Board of Surry County, Virginia held on June 11, 1963 at 2:00 P.M. in the Superintendent’s Office, Dendron, Virginia. Present: E. F. Huber, Chairman— Blackwater District J. L. White— Cobham District 18 M. B. Joyner— Clerk and Superintendent * * * The Board discussed at some length the applications of four additional Negro pupils for placement in Surry County High and Elementary School for the 1963-’64 school session. The Superintendent was authorized to for ward these applications, along with the three discussed at the last meeting of the Board, to the State Pupil Place ment Board. * * * (SU PERVISORS MEETING, AUGUST 15, 1963) PX-3 Virginia: At a meeting of the Board of Supervisors of Surry County, held pursuant to adjournment, at the Court house thereof, on Thursday, the 15th day of August, 1963. Present: W. E. Seward, Jr., Chairman C. Morris Ellis, Jr., and J. A. Savedge, Supervisors * * * M. B. Joyner, Clerk of the County School Board ap peared before the Board, and submitted his estimate of funds necessary for the operation of public schools in Surry County for the month of September, 1963, amount ing to $37,000.00. He also reported that he had been ad vised that a private school for white pupils in the County had been organized, and he could not estimate how many white pupils would be attending the public school for white pupils, therefore his estimate as presented might be in error. Thereupon the Board doth Resolve that no appro 19 priations for the coming month be made at this meeting, but that the Board stand adjourned until Thursday, Au gust 29th, 1963, at 9:00 A.M. * * * (Exhibit with depositions) SCHOOL BOARD MEETING AUGUST 23, 1963 Virginia: At a meeting of the County School Board o f Surry County, Virginia held on August 23, 1963 at 2:00 P.M. in the Superintendent’s Office, Dendron, Virginia. Present: E. F. Huber, Chairman— Blackwater District J. L. White— Cobham District Mrs. H. T. Cooper— Guilford District M. B. Joyner— Clerk and Superintendent Willis W. Bohannon— Counsel For The Board * * The Superintendent reported that he had been informed by the Surry County Educational Foundation that it has enrolled for the 1963-’64 session of its private schools 431 pupils, all o f whom except first grade pupils, were enrolled during the 1962-’63 session in the Surry County High and Elementary School. He also presented cards addressed to the School Board and signed by parents advising that these 431 pupils have registered at the Private Schools. Mr. Joyner also reported that he had received applications, to the Board from the Educational Foundation, for tran scripts o f the records of 393 pupils who have registered in the Foundation schools and who were formally pupils 20 in the Surry County High and Elementary School. It was pointed out by Mr. Joyner that the total number pupils enrolled in the Surry School for the 1962-’Q3 session was 431. He also noted that 7 pupils had been transferred to the Surry County High & Elementary School from other schools in the County by the State Pupil Placement Board, the names of these pupils and the schools from which they were transferred being: Stephen Eric Harris— from— L. P. Jackson School Lillian Diane Harris— from— Lebanon Elementary School Laverne O. Bailey— from— L. P. Jackson School Avis Merinda Pettaway— from— L. P. Jackson School Leon Sidney Pettaway— from— L. P. Jackson School Bettie Laverne Pettaway— from— L. P. Jackson School Florence Louise Pettaway— from— L. P. Jackson Mr. Joyner stated that indications are that there will be few, if any, pupils, other than these 7, to be enrolled in the Surry County High and Elementary School during the 1963-’64 session. Mr. Joyner presented written resignations of the follow ing teachers who are under contract as teacher in the Surry County High and Elementary School for the 1963- ’64 session: Amanda W. Presson Laura D. Seward Virginia K. Mitchell Hazel B. Fisher Lilly S. Half Jayne H. Seward Jacqueline C. Johnson Nancy F. Threewitts Margaret J. Humphreys Williene B. Rawls 21 Margaret T. Pond Martha H. Bailey Elizabeth B. Rowell Alice P. Cobb Those listed are all of the teachers in the Surry County High and Elementary School except the following: John W. Gordon, Jr. who moved from the County and did not return his signed contract. Helen P. Lore who returned her contract unsigned along with a letter stating that she would not sign for the 1963-’64 school session. Dorothy G. Gwaltney who returned her contract un signed along with a letter stating that she would not sign for the 1963-’64 school session. Robert H. Moore; Dorothy A. Savedge; Lena F. Parker; John F. Parker; and Lillian H. Simmons, Audrey B. Williams. It was the consensus of the Board that no action be taken on the resignation of the teachers at this time. * * * (Exhibit with depositions) SCHOOL BOARD MEETING AUGUST 24, 1963 Pursuant to adjournment of the meeting of the Surry County School Board on Friday, August 23, 1963, a meet ing o f the Board was held on Saturday, August 24, 1963 in the Superintendent’s Office at Dendron, Virginia. Present: E. F. Huber, Chairman— Blackwater District J. L. White— Cobham District 22 Mrs. H. T. Cooper— Guilford District M. B. Joyner— Clerk and Superintendent Willis W. Bohannon— Counsel for the Board * * * Mr. Joyner presented written resignations of the fol lowing teachers who are under contract as teachers in the Surry County High and Elementary School for the 1963- ’64 session. Mr. Joyner reported that Mrs. Lillian H. Simmons had advised him that her resignation is being forwarded to the Board. Mr. Joyner stated that he has been informed that the two remaining teachers, Miss Lena Parker and Mr. John F. Parker, will submit their resignations. On motion of Mr. White, seconded by Mrs. Cooper, the Board decided that the Surry County High and Elementary School not be operated for the session 1963-’64 due to the lack of sufficient pupils to justify its operation. On motion o f Mr. White, seconded by Mrs. Cooper, the resignations of the following teachers were accepted: Amanda W. Presson Nancy F. Threewitts Laura D. Seward Jacquelyn C. Johnson Audrey B. Williams Dorothy A. Savedge Robert H. Moore Virginia K. Mitchell Hazel B. Fisher Lilly S. Half Margaret H. Humphreys Williene B. Rawls Martha H. Bailey 23 Margaret T. Pond Alice P. Cobb Elizabeth B. Rowell Audrey B. Williams Jayne H. Seward Dorothy A. Savedge Robert H. Moore On motion of Mr. White, seconded by Mrs. Cooper, the Superintendent was authorized and instructed to accept on behalf of the Board resignations, other than the foregoing, which may hereafter be submitted by any other teachers in the Surry County High and Elementary School. On motion of Mrs. Cooper, seconded by Mr. White, Mr. Joyner was instructed to notify the State Pupil Place ment Board o f the action taken by the School Board at this meeting, and to confer with the Placement Board as to action to be taken with respect to pupils assigned by it to the Surry County High and Elementary School. On motion made by Mrs. Cooper, seconded by Mr. White, Mr. Joyner was authorized and empowered to do all things and to sign and execute such papers or documents as may be necessary or proper as a consequence of the actions taken by the Board at this meeting. On motion made by Mr. White, seconded by Mrs. Cooper, Mr. Joyner was instructed to report the action taken at this meeting to the County Board of Supervisors at its next meeting. Ordered that the Board adjourn. * * * 24 (SU PERVISORS MEETING, AUGUST 29, 1963) PX-4 Virginia: At a meeting of the Board of Supervisors of Surry County, held pursuant to adjournment, at the Court house of said County, on Thursday, August 29, 1963. Present: W. E. Seward, Jr., C. Morris Elllis, Jr., and J. A. Savedge, Supervisors Ernest W. Goodrich, Attorney for the Commonwealth The object of this meeting being to decide on the neces sary appropriation for public schools in the County of Surry for the month of September, 1963, M. B. Joyner, Division Superintendent of Schools for this County ap peared and reported that at a meeting of the County School Board since the last meeting of this Board it was decided not to open the public schools for white pupils at Surry due to the lack of pupils as around 438 pupils have signed up to attend the Surry County Educational Foundation school for the coming session (that being practically all o f the eligible white pupils) and all of the teachers in the public school for white pupils have asked that their contracts be cancelled. He thereupon filed an adjusted estimate of funds necessary for the operation of public schools in this County for the month of September, 1963, amounting to $26,- 000.00, which appropriation, on the motion of C. M. Ellis, Jr., seconded by J. A. Savedge, was approved. * * * 25 (Exhibit with depositions) SCHOOL BOARD MEETING SEPTEM BER 3, 1963 Virginia: At a meeting of the County School Board of Surry County, Virginia held on September 3, 1963 at 2 :0G P.M., in the Superintendent’s Office, Dendron, Virginia. Present: E. F. Huber, Chairman— Blackwater District J. L. White— Cobham District Mrs. H. T. Cooper— Guilford District M. B. Joyner— Clerk and Superintendent Mr. Joyner reported that he has received written resig nations from Mrs. Lillian Simmons, Miss Lena Parker and Mr. John F. Parker and has accepted these resignations on behalf of the Board according to instructions of the Board at its last meeting. These three teachers plus those whose resignations have been accepted in previous meetings, are all o f the teachers who were under contract for Surry County High and Elementary School for the 1963-’64 school session. * * * (Exhibit with depositions) SCHOOL BOARD MEETING SEPTEMBER 5, 1963 Virginia: At a meeting of the County School Board of Surry County, Virginia held on September 5, 1963, in the Superintendent’s Office, Dendron, Virginia. 26 Present: E. F. Huber, Chairman— Blackwater District J. L. White— Cobham District Mrs. H. T. Cooper— Guilford District M. B. Joyner— Clerk and Superintendent Willis W. Bohannon— Counsel For The Board Minutes of the last meeting were read and approved. The Board discussed the matter of employing an attorney to represent the Board and the Superintendent of Schools in the case pending in the U. S. District Court for the Eastern District of Virginia styled Avis M. Pettaway, et al vs the County School Board o f Surry County, et al. A motion was made by Mr. White, duly seconded by Mrs. Cooper and carried that Mr. Bohannon employ Mr. Collins Denny or some other attorney to represent the School Board and the County Superintendent o f Schools in the case pending in the U. S. District Court for the Eastern District of Virginia styled Avis Pettaway, et al vs County School Board of Surry County, et al. Ordered that the Board adjourn. * * * (SUPERVISORS MEETING, SEPTEM BER 19, 1963) PX-5 Virginia: At a meeting o f the Board of Supervisors of Surry County, held pursuant to adjournment, at the Court house thereof, on Thursday, September 19, 1963. Present: W. E. Seward, Jr., Chairman 27 C. Morris Ellis, Jr. and J. A. Savedge, Supervisors Ernest W. Goodrich, Attorney for the Commonwealth * * * BE IT RESOLVED, by the Board of Supervisors of the County of Surry, Virginia, that the following appro priations be, and the same hereby are, made for the month o f October, 1963, from the funds and for the purposes or functions indicated. * * * For the operation of public schools to be transferred to School Fund and expended only on order of School Board, as follows: Total for operating public schools ................ $30,000.00 For the payment o f pupil scholarships to be transferred to school fund and expended only on order of School Board, as follows: Total for pupil scholarships ........................ $56,000.00 * * * (Dep. 8) DEPOSITIONS TAKEN SEPTEM BER 13, 1963 PRESENT: Mr. S. W. Tucker, 28 Mr. Henry L. Marsh, III, Counsel for Plaintiffs Mr. John F. Kay, Jr. Mr. W. W. Bohannon, Of Counsel for County School Board of Surry County, and for Mr. M. B. Joyner, Division Superintendent of Schools of Surry County. Mr. Ernest W. Goodrich, Commonwealth’s Attorney, and, as such, Attorney for the Board of Supervisors of Surry County, and Mr. J. Segar Gravatt, Special Counsel for the Board of Supervisors of Surry County Mr. Ernest W. Goodrich, and Mr. J. Segar Gravatt, Counsel for Mr. A. T. Sowder, County Treasurer of Surry County Mr. R. D. Mcllwaine, III, Assistant Attorney General of Virginia, and, as such, of Counsel for the State Board of Education, and Mr. Woodrow W. Wilkerson, Superintendent of Public Instruction for the Commonwealth of Virginia It is stipulated by counsel for all parties that Mr. M. B. Joyner is the Division Superintendent of Schools for Surry County. That Woodrow W. Wilkerson is Superintendent of Pub lic Instruction of the State of Virginia. That E. F. Huber, Jr., J. L. White and Mrs. H. T. Cooper presently constitute the County School Board of (Dep. 9) Surry County. 29 That W. E. Seward, Jr., Clifton M. Ellis, Jr. and J. A.. Savedge presently constitute the Board of Supervisors o f Surry County. That A. T. Sowder is the County Treasurer of Surry County. It is further stipulated that Paragraph 13 of the Com plaint is admitted to be true except that the school busses referred to in said paragraph are designed to carry a maxi mum of fifty-four children, and except that the County negro high school students, who have attended the high school department of the L. P. Jackson School, are three hundred and six in number, and that the facts referred to in Paragraph 13 are true only for the school session of 1962-63. * * * (Dep. 19) ED W IN F. HUBER, a witness of lawful age, being first duly sworn, testified as follows: DIRECT EXAM IN ATIO N BY MR. TUCKER Q. Will you state your name, Sir? A. Edwin F. Huber. Q. Where do you live? A. In Surry County, near Dendron. Q. I want to ask you if, in the latter part o f June, or the early part of July, you were present at a meeting of 30 the citizens of Surry County at Surry Courthouse? A. No, Sir, I was not present. MR. BO H AN N O N : We object to this line of question ing for the reason that it is not relevant, and the questions are asked over our objection. MR. TUCKER Q. You are a member of the School Board? A. I am. Q. How long have you been a member o f the School Board? A. I think it is twenty years, last July. Q. Mr. Huber, you are aware of the fact, in recent weeks, Surry County Educational Foundation has been (Dep. 20) formed, and is operating a school in Surry County ? MR. K A Y : We object to the question because it is ir relevant to this case. You can go ahead and answer the question. A. I heard that to be the case. MR. M A R S H : We might save time if it was just shown that counsel objects to the questoins without continuing the objection on every question. MR. K A Y : We will make the objection when we think it necessary. Thank you. MR. TUCKER Q. Other than the school to which I have just referred. 31 do you know of any other private school existing in Surry County at the present time? MR. K A Y : Objection for the same reason. Perhaps, to save time, unless something particular comes up, we will just state that we object to any of the evidence given by the witness as not being relevant to the case. MR. TUCKER Q. Will you answer the question, please? A. Other than the School Foundation? Q. Yes. A. No, I don’t know of any other private school. Q. Have you ever known of any other school to exist (Dep. 21) in Surry County other than the public schools, other than the Surry County Educational Foundation, which we have just mentioned? MR. B O H AN N O N : We would like for the record to show the same objection to each question. We will not make it, but the Court Stenographer can show it in the record each time the question is asked. MR. T U C K E R : Will you read the question back, please? N O TE: Question read back as follows: Q. Have you ever known of any other school to exist in Surry County other than the public schools, other than the Surry County Educational Foundation, which we have just mentioned? A. No, I have not. * * * 32 (Dep. 24) M. B. JOYNER, a witness of lawful age, being first duly sworn, testified as follows: DIRECT EXA M IN ATIO N BY MR. TUCKER Q. Will you state your name, and official position? A. M. B. Joyner; Superintendent of Schools. Q. O f Surry County? A. Yes. Q. How long have you been Superintendent of Schools for Surry County? A. Thirty-five years. Q. Did you bring with you, Sir, the figures with respect to the present enrollment of the schools of Surry County? A. I think I can give you that. * * * (Dep. 26) * * * Q. Will you give us the number of children in each of the first grade classrooms? N O TE: Same objection. A. Grade One, there are two sections, thirty-three in one, and thirty-four in the other. MR. BO H A N N O N : To prevent further interruption, we wish it understood that counsel for the School Board and for the Superintendent object to each of these questions for the reasons stated. 33 MR. TUCKER Q. Grade Two. N O TE: Same objection. A. Grade Two has two sections, thirty-nine, and twenty- nine. Q. Grade Three. N O TE: Objection as stated. A. Grade Three has three sections, twenty-nine, twenty- six, and twenty-six. Q. Grade Four. N O TE: Same objection. A. Grade Four has two sections; thirty-five, and thirty- (Dep. 27) three. [Q.] Grade Five. N O TE: Same objection. A. Grade Five has two sections, twenty-nine, and twenty-seven. Q. Grade Six. N O TE: Same objection. A. Grade Six, two sections, twenty-eight, and thirty- one. Q. Grade Seven. N O TE: Same objection. A. Grade Seven has two sections, thirty-three and and twenty-one. Q. Is that the elementary school? N O TE: Same objection. 34 A. Yes. Q. Grade Eight is high school? N O TE: Same objection. A. Grade Eight is high school, and had two sections at the time these figures were taken. Since then we have added a teacher, and divided it into three sections. Q. What is the total? N O TE: Same objection. A. Ninety-six in the three sections. (Dep. 28) Q. Do you have a breakdown of the two sections at the time? N O TE: Same objection. A. The two sections at the time there were forty-six, and fifty, making a total of ninety-six; and now they are divided into three sections. Q. Grade Nine. N O TE: Same objection. A. Grade Nine, two sections, thirty-nine, and twenty- nine. Q. Grade Ten. N O TE: Same objection. A. Two sections, thirty, and thirty-two. Q. Grade Eleven. N O TE: Same objection. A. Two sections, twenty-one, and twenty-three. Q. Grade Twelve. 35 N O TE: Same objection. A. Grade Twelve, two sections, twenty-two, and fifteen. Q. That exhausts the high school? N O TE: Same objection. A. Yes. Q. Give the same figures for Lebanon Elementary (Dep. 29) School. N O TE: Same objection. A. Grade One, two sections, thirty-four, and thirty-four. Q. Read on through. NOTE: Same objection. A. Grade Two, two sections, thirty-four, and thirty-three. Grade Three, two sections, forty-three, and forty-three. Grade Four, two sections, thirty-one, and thirty-three. Q. And Grade Five? N O TE: Same objection. A. There was only one section in Grade Five, and that was fifty-three. That grade is being divided, with another additional teacher. Q. It has not been divided as yet? NOTE: Same objection. A. No, I don’t think it has been divided yet, but the principal has been authorized to help find a teacher. Q. Grade Six. N O TE: Same objection. 36 A. Grade Six, one section, forty-six. (Dep. 30) Q. Grade Seven. N O TE: Same objection. A. Grade Seven, two sections, twenty-five, and twenty- six. * * * (Dep. 33) * * * Q. Does the State Board o f Education have a standard as to its ratio of pupils in the several grades ? MR. BO H AN N O N : Same objection. A. Shall I answer that? MR. BOH ANNON: Yes. A. There is a formula by which they distribute State money, based on thirty pupils per teacher in an elementary school, and twenty-three in a high school. That is the formula for the basic appropriations. * * * (Dep. 35) * * * Q. I direct your attention to the meeting of the Surry County Board of Supervisors on August 29, 1963. Do you recall that meeting? N O TE: Same objection. A. Yes. Q. Do you recall that meeting? 37 N O TE: Same objection. A. Yes. Q. You were present? NOTE: Safne objection. A. Yes. Q. Did you not take to that meeting two estimates for funds needed for September, 1963, for school purposes, one in the sum of Twenty-Six Thousand Dollars, and the other in the sum of Thirty-seven Thousand Dollars? (Dep. 36) MR. G R A V A T T: We object to that on the ground that you are referring to some data which can be determined, and the records of the Board will speak for themselves. MR. TU CKER: Are you permitting the witness to an swer the question? MR. G R A V A T T : He can answer the question over our objection. A. I already had a request in for Thirty-seven Thousand Dollars, from a previous meeting; and I took to this next meeting an amended one for the smaller amount. M EM ORANDUM OF TH E COURT Seven Negro pupils and their parents have instituted this suit against the County School Board of Surry County, Virginia, and its members; M. B. Joyner, Division Super intendent of Schools; the Board of Supervisors and its 38 members; the County Treasurer; the State Board of Edu cation; and the Superintendent of Public Instruction. The cause came on to be heard upon a motion for an interlocutory injunction to restrain certain of the defend ants from paying State or County scholarships or tuition grants to any person residing in Surry County; to restrain the School Board from failing to operate Surry School or any other school under its jurisdiction during the 1963- 64 session; and to restrain the Board o f Supervisors from refusing to appropriate for the operation of public schools during the 1963-64 session funds at least equal to those appropriated for the previous session. Findings of Fact The Court finds the following facts. Prior to the 1963-64 school session the Surry County School Board operated one school attended by white stu dents only known as Surry School at which both elementary and high school grades were taught. The School Board also operated New Lebanon School, an elementary school for Negro students, and L. P. Jack- son School, an elementary and high school for Negro students. On June 24, 1963 the State Pupil Placement Board as signed the infant plaintiffs to the Surry School. Shortly thereafter a mass meeting of the white citizens o f Surry County convened at the Community Center. Mr. Ernest W. Goodrich, Commonwealth’s Attorney of Surry County, presided at this meeting. Three of the four mem bers of the Board of Supervisors also attended. The situ 39 ation concerning the assignment of the Negro students to Surry School was discussed and the possibility of a private school for the white students was mentioned. Those present at the meeting decided to call another mass meeting. A second mass meeting of the white citizens of the County was called soon. The attendance was large. Mr. Frank Lawrence presided. This meeting was attended by some, but not all, of the members of the School Board and Board of Supervisors. The persons attending the meeting decided to organize a private school and made preliminary arrangements to accomplish this. They also recommended to the School Board that public schools be continued. At one or the other of the mass meetings a member of the School Board, in response to a question, stated that all teachers were under contracts that could be terminated on a month’s notice. A member of the Board of Supervisors stated that the operation of the private school would not reduce taxes. Mr. Goodrich was authorized to prepare articles of in corporation of the Surry County Educational Foundation. He was named registered agent of the corporation. On July 15, 1963 the State Corporation Commission of the Commonwealth o f Virginia issued the certificate of incor poration. The Board of Directors of the corporation was organized in such a manner that five persons were selected from each magisterial district in the County. Mr. Goodrich, the Commonwealth’s Attorney, served on the Board for several weeks. He resigned before the hearing on the motion. 40 The Treasurer of the County is Treasurer of the Foundation. The officers and directors of Surry County Educational Foundation organized and established a school. The Presi dent of the Foundation in July asked the Superintendent of Schools to release the teachers under contract to the School Board. The Superintendent declined to do so at that time. The officers o f the Foundation prepared forms by which the students or their parents could notify the School Board that the children were withdrawing from the public school and enrolling in the private school. These forms were trans mitted to the Board by the parents or by officers of the Foundation. All of the white pupils who formerly attended Surry School enrolled in the Foundation’s school. Negro pupils who had been assigned to the Surry School sought admis sion to the Foundation’s school and were denied. Enroll ment in the school is by invitation of the officers of the Foundation. No white child who has applied for admission has been denied. No Negro child who has applied for ad mission has been enrolled. On August 24, 1963 the School Board closed Surry School due to lack of sufficient pupils to justify its opera tion and released all of the teachers in that school from their contracts. These teachers were employed by the Foundation’s school. The School Board sold three surplus buses to a motor vehicle dealer and purchased three new school buses. The Foundation purchased from a motor vehicle dealer surplus 41 school buses to provide transportation for its school. Ten school buses formerly used for Surry School are still owned by the School Board and are not in use at the present time. Lebanon and Jackson schools were opened on Septem ber 5. Initially classes were crowded and the pupil-teacher ratio was high. School buses also were crowded. Recently new teachers have been employed and the pupil-teacher ratio has been reduced. The school buses have been re routed and they are no longer crowded. The physical capacity of the schools is taxed. The tuition at the Foundation’s elementary school is $375 and at its high school $380. State and County tuition grants made available by §22-115.29 et seq. of the Code o f Virginia, 1950, as amended, provide $250 for elementary school children and $275 for high school children. The balance of the cost is being paid by the parents of the indi vidual students upon various terms. The Board of Supervisors has appropriated for the month of September $26,000 for the operation of the public schools. Conclusions of Law The principal question is whether the County and the State, which subsidizes the Foundation’s white segregated school through tuition grants or scholarships as a substi tute for the County’s public integrated school, are denying the plaintiffs equal protection of the laws in contravention of the 14th Amendment of the United States Constitution. Griffin v. Board of Supervisors of Prince Edward County, 42 No. 8837, 4th Cir., August 12, 1963, presents a similar question. The plaintiffs contend that the Surry situation differs in some respects from the Prince Edward case. The Court is of the opinion that the differences as presented in the evidence on this motion are not controlling. The over riding issue pertains to the tuition grants. Prince Edward County closed both its Negro and white schools. The District Court enjoined the payment of the tuition grants. The Court of Appeals for the Fourth Cir cuit vacated the judgment entered by the District Court in Griffin and remanded the case with instructions to the District Court “ * * * to abstain from conducting further proceedings until the Supreme Court o f Appeals o f Virginia shall have decided the case now pending on its docket entitled County School Board o f Prince Edward County, Virginia, et al v. Leslie Francis Griffin, et al, and that decision has become final. * * Upon authority of Griffin v. Board o f Supervisors of Prince Edward County, Virginia, et al, No. 8837, 4th Cir., August 12, 1963, the Court concludes that the inter locutory injunction should be denied. /SI Jo h n D. B u tzn e r , Jr . United States District Judge September 30, 1963 O R D E R Upon consideration of the plaintiffs’ motion for an in terlocutory injunction, for reasons stated in the Memo 43 randum of the Court this day filed, it is ORDERED that the motion is denied. Let the Clerk send copies of this order and of the Memo randum of the Court to counsel of record. / S / Jo h n D . B u tzn er , Jr . United States District Judge September 30, 1963 NOTICE OF APPE AL Notice is hereby given that Avis M. Pettaway, Bettie L. Pettaway, Florence L. Pettaway and Leon S. Pettaway, infants by Charles L. Pettaway and Bessie W. Pettaway, their father and mother and next friends; Lillian Diane Harris and Stephen Eric Harris, infants, by Samuel E. Harris and Armenta P. Harris, their father and mother and next friends; Laverne O. Bailey, an infant, by Abra ham Bailey and Gladys P. Bailey, her father and mother and next friends; Charles L. Pettaway, Bessie W. Pettaway, Samuel E. Harris, Armenta P. Harris, Abraham Bailey and Gladys P. Bailey Hereby appeal to the United States Court of Appeals for the Fourth Circuit from an order of this court entered on September 30, 1963, denying the plaintiffs’ motion for interlocutory injunctions as prayed in the complaint. H en ry L. M a r sh , III O f Counsel for Plaintiffs 44 S. W. T ucker H en ry L. M a r s h , III 214 East Clay Street Richmond, Virginia— 23219 Counsel for Plaintiffs Richmond, Virginia September 25, 1963 TRAN SCRIPT OF PROCEEDINGS Before: H onorable Jo h n D. B u tzn e r , Jr . United States District Judge Appearances: S. W. T ucker , E squire , and H en ry L. M a r sh , III, E squire , Counsel for the Plaintiffs R obert Y. B u tto n , E squire , Attorney General o f Virginia, and R. D. M cI l w a in e , III, E squire , Assistant Attorney General o f Virginia, Counsel for Defendants W. W. Wilkerson and State Board of Education E rnest W. G oodrich , E squire , Commonwealth’s Attorney, and J. Segar G ravatt , E squire , Counsel for Defendants Board of Supervisors and A. T. Sowder, Treasurer W illis W . B o h a n n a n , E squire , Collin s D e n n y , Jr ., E squire , and 45 Jo h n F. K a y , Jr ., E squire , Counsel for Defendants County School Board of Surry, Virginia, and M. B. Joyner, Division Superintendent A. E. S. Ste ph e n s , Jr., E squire , Counsel for Franz J. Von Schilling, Jr., J. Melvin Rollings, and R. Franklin Lawrence * * * EVIDENCE ADDUCED ON BEHALF OF TH E PLAINTIFFS (Tr. 11) FRANZ J. VON SCHILLING, JR., called as a witness by and on behalf of the plaintiffs, having been previously duly sworn, testified as follows: DIRECT EXAM IN ATIO N BY MR. TU CKER: Q. Would you state your name and address, sir? A. My name is Franz Von Schilling, Jr., Spring Grove, Virginia. Q. That is Surry County, Virginia? A. That is in Surry. Q. I believe, Mr. Von Schilling, you are connected with the corporation known as Surry County Educational Foundation? A. I am. Q. And in what capacity are you connected with that corporation ? A. I am a member of the board and the president. Q. Would you tell us who the other officers of the cor poration are? 46 A. There are twenty-nine o f them. Q. I did not mean directors. I meant— well, is Frank Lawrence a secretary? A. He is the vice-president. (Tr. 12) Q. Vice-president. And Ray Bowers? A. He is the secretary. Q. And J. A. Savedge? A. He is not connected with the corporation. Q. Well, was he connected with the corporation at any time? A. He was. Q. When it was originally incorporated, what position did he hold ? A. He wasn’t with the corporation when it was orig inally incorporated. It was after the incorporation that he was elected treasurer. Q. Did he serve as treasurer? A. For a very short time only. Q. Is that the same gentleman who is Treasurer of Surry County—who is the County Treasurer of Surry County ? A. Same one. Q. What is, and has been, the connection of Mr. Good rich with the corporation? A. Mr. Goodrich was one of the original incorporators of the corporation. He was at one time on the board, and he was at one time the registered agent for the corporation. Q. And there we are speaking o f Mr. Ernest W. Good rich, who is the Commonwealth’s Attorney for Surry County ? 47 (Tr. 13) A. That is correct. Q. Mr. Von Schilling, I ask you if at some time in late June o f this year, or early July of this year, you were present at a mass meeting o f citizens at the Surry County Courthouse ? A. I was not. Q. I ask you if you heard of such meeting after it oc curred ? A. Oh, yes. Q. And of the decisions made at that meeting? A. I heard of them, but I wasn’t there to hear them made. Q. All right, would you tell us through whom you heard of them? MR. G R A V A T T : If Your Honor please, we object to this kind of testimony as pure hearsay. This man knows nothing of his knowledge about the mass meeting. TH E C O U R T: Mr. Gravatt, the question was not what took place there, but who reported to him what took place there. The objection is overruled. MR. G R A V A T T : We except. A. It is very difficult to say from whom I heard it, be cause when you go back into Surry County after you are away, everybody tells you what goes on. It is a matter of (Tr. 14) general interest and information that everybody tells you a bit of. BY MR. TUCKER: Q. All right, I note that you are one of the original board of directors of the Foundation. 48 A. That is correct. Q. Now, will you tell us when first you gave your con sent to serve as one of the directors of the Foundation? A. That was as a director o f the Foundation. I was not a director until I was among the fifteen original men that were put down in the charter for the incorporation as a director. Q. Was your consent obtained before the names were put down in the Articles of Incorporation? A. They were— that is true. Q. All right, now I will ask you whether those fifteen persons who were named as directors in the original char ter, at any time had a meeting before the execution of the Articles of Incorporation on July 12, 1963? A. Yes. Q. Am I to take it that those fifteen people who were named in the charter were all present at this meeting prior to the date of that charter, July 3, 1963? A. Now just which meeting are you talking about? Q. I think I just understood from you when I was in- (Tr. 15) quiring as to how and when you gave your con sent to be named, that there was a meeting of certain people, and I think I understood that these people, who were the initial directors, were the people present at the meeting. I want to verify that. A. That is correct. Q. Will you tell us what other persons were present at that meeting? A. These people, these fifteen people. Q. Were any other people present? A. Not to my knowledge. 49 Q. Was Mr. Goodrich present? A. He was present. He is one o f the incorporators on the charter. Q. But not one of the directors named in the charter? A. Not one o f the directors. Q. Was any other attorney present? A. I don’t remember whether Frank Lawrence could have been present, but he may have been. Q. All right, was Mr. Goodrich directed or authorized to prepare the Articles of Incorporation? A. He was. Q. Was this the initial meeting of the incorporators, or the persons who proposed to get the Foundation organized? A. No. (Tr. 16) Q. All right, were you present at any earlier meeting of the group ? A. I was. Q. Can you tell us when that occurred? A. Well, at the mass meeting at which I was not present, these fifteen men were appointed, and I was advised later of my appointment as— on this committee, which was in structed to form such a corporation. Q. Now, can you tell us how, or by whom, you were advised that you were so appointed? A. No, I can’t tell. So many people told me that I couldn’t remember which one told me first. Q. Can you remember anyone who told you? A. Well— Q. I am asking you specifically if Mr. Goodrich told you. 50 A. Not that I remember. I do remember Frank Law rence telling me. Q. I see. In the formation of this fifteen-man board of directors, was there taken into consideration a division of those fifteen men that is, five from each of the magis terial districts o f the County? A. That is the way they were selected by the mass meet ing, is my understanding. (Tr. 17) Q. In the statement of purposes of the Founda tion, we find this expression: ” to provide exclusively edu cational opportunities for students; to train them to meet the challenges of our modern, complex society.” I want to ask you if it is your understanding that the schools to be operated by the Educational Foundation are to be schools for white children exclusively ? MR. GOODRICH: If Your Honor please, we object to that. What his understanding of it is, is immaterial. TH E C O U R T: The objection is overruled. A. My understanding of the organization was that we were making an organization, and we would invite the children that we wanted to go to the schools. BY MR. T U C K E R : Q. And those children whom you wanted to go to the schools were white children, and not Negro children? A. Those children that we wanted to go to the schools would be determined by the board of directors. Q. Has the board of directors determined that it wants any Negro children to go to the school? A. It has not yet. 51 Q. Has the board o f directors determined that any white child who lives in Surry County shall be excluded from the school? (Tr. 18) A. They have not yet. Q. As a matter of fact, are you aware of the fact that certain Negro children did seek to be enrolled in the school? A. I am aware of the fact. Q. And those Negro children who did make application have not been received, have they? A. I wasn’t present when they made the application. Q. Are you aware of any Negro child attending the school ? A. No. Q. And you are not aware of the board having invited any Negro child to attend the school? A. No. Q. Since the charter was obtained, have there been any additions to the board of directors? A. Yes. Q. The number was increased to thirty? A. The number was increased to thirty. Q. And in the increased number, at one time, Mr. Good rich was named, was he not? A. He was. Q. Is he still a member of the board of directors of the corporation? A. He is not. (Tr. 19) Q. How long did he serve as such? A. I don’t remember the date that he resigned, but I 52 wouldn’t think that he was on the board more than four or five weeks. Q. Would it refresh your memory to suggest to you that Mr. Goodrich resigned some time after September 3 ? A. I don’t remember the date. Q. You can’t say whether it was before or after Sep tember 3? A. No. Q. What amount is charged at the Foundation schools for tuition? A. A total o f $375. Q. That is true as to every child, whether he is in high school or elementary school? A. No, it is $5 more for high school than it is for ele mentary. 375 for the elementary and 380 for the high school. Q. Are you in a position to say what percentage, or approximately what number o f children, or their parents for them, have paid tuition to date? A. W e have— let’s see. W e probably have collected a third of our tuitions, and all of the other—-practically all o f the other is on a monthly payment proposition or de ferred payment basis. (Tr. 20) Q. To what date, or what time, is credit ex tended for payment of tuitions? A. Well, as a practice, when we made the tuition agree ment with the parents, we gave them the opportunity to select their payments. * * * 53 (Tr. 21) * * * Q. I think my question had to do with your general extension of credit. W'ould you enlighten us to what ex tent you are extending credit to the children or to their parents for attendance in the Foundation school? A. I was explaining that. When the children made the agreement for tuition, we gave them the opportunity to select their period dates, either monthly, or as they wished. Q. Are you extending credit for the semester? A. Well, some of the parents elected to pay monthly; being a farm district, the money coming in when the crops are harvested, many of them have elected to pay when their crops are harvested; many of them have elected to pay by the quarter; and many of them paid cash before the children went to school. Q. By the quarter, you mean just what? A. Well, quarterly periods through the term of the school. Q. School being—- A. Ten months, from September through June. Q. Then I ask you do you have any who are paid by the semester, that is at five month intervals ? (Tr. 22) A. No, not that I know of, unless they hap pened to have elected it that way. Q. Is the Foundation affording transportation for the children ? A. It is. Q. You purchase buses? A. We do. Q. They were surplus buses from other school com munities, from other counties? 54 A. W e obtained them from various places. Q. They are the standard school buses? A. They are. Q. That would normally belong to a school board some where ? A. They could have. Q. Well, did they? A. I imagine they did. Q. Did you obtain any o f those buses from school boards anywhere in Virginia? A. Oh, yes. Some of them came from— we bought the buses, actually, through a dealer. I know, personally, that he obtained some of them from surplus buses in various places. Q. Very well. Now, the persons who serve on the fac ulty of your schools, are they the same people who taught (Tr. 23) at the Surry School last year? A. The majority of them are. Q. Are there any persons, who taught at the Surry School last year, who is not teaching in the Foundation school this year, as far as you know? A. I don’t think that there is. Q. The drivers of the school buses are the same persons who drove buses serving the Surry schools last year? A. Some of them are. All of them, I don’t know. Q. Do you know of any driver, any person, who was a driver of a school bus serving Surry County last year, who was not driving a bus serving the Foundation schools this year? A. I don’t know one personally, but there are bound to 55 be one, because the Surry School Board also used student drivers, and some of them graduated, and the ones that graduated are not driving this year. Q. But as to those who were adults, those who were driving buses serving the Surry School last year, are driving buses serving the Foundation schools this year? A. I know of one that is. The others— I’m not sure whether they drove last year or not. Q. Very well. Referring back to the meetings of the boards of directors, or the incorporators of the Foundation, when I was asking you about the presence of Mr. Goodrich (Tr. 24) and any other attorney, I wanted to ask you if Mr. Bohannan was present at any o f those meetings? A. None. Q. Now, to what extent has the Foundation been in communication or contact with the Superintendent of Schools ? A. Very little. Q. Will you tell us just what have been the connections between you, and to what extent you have furnished him information, or he furnished you information? A. Well, I, personally, have had several conversations with Mr. Joyner. One on the question of teachers. Q. When was this, before or after you had employed teachers? A. It was after I had solicited all of the teachers. Q. You solicited all of the teachers who taught at Surry? A. I solicited all o f them. Q. And what was the result of your initial solicitation? A. Very favorable. 56 Q. Then what was the substance of your subsequent conversation with Mr. Joyner? A. I talked to Mr. Joyner and asked him if he would release the teachers if the teachers would resign, and I got (Tr. 25) a negative reply. Q. Do you recall when this conversation took place ? A. This conversation took place, perhaps, in the latter part of July. Q. What conversations, or communications, have you had with the public school authorities with reference to the children who attended Surry School last year? A. None. Q. Did you furnish the public school authorities with information that the children who attended school last year would be attending the Foundation schools this year? A. The parents of the children did. Q. How was that done? A. At our suggestion. Q. Did you have— did you prepare forms which the parents would sign? A. I did. Q. And what was on the forms, as well as you can remember? Do you happen to have a copy of it with you? A. It is merely an advice to the School Board that their children have enrolled in the Foundation school, and would not attend the public school, in essence. Q. And the parents— A. The parents signed it. (Tr. 26) Q. And the parents sent them to this public school authority? 57 A. The parents sent them, or some of them came to us, and we sent them. It went both ways. Q. How many children are enrolled in the Surry Founda tion School? A. To date, we have 432. * * * (Tr. 28) * * * W ILLIA M E. SEW ARD, JR., called as a witness by and on behalf o f the plaintiffs, having been previously duly sworn, testified as follows: DIRECT EXAM IN ATIO N BY MR. TU CKER: Q. Would you state your name and residence, please, sir? A. I am William E. Seward, Jr. of Claremont, Virginia. Q. That is in Surry County? A. Yes. Q. You appeared at Mr. Denny’s office on September 13, 1963, at the time we were taking depositions in this matter? A. Yes. Q. Now I will ask you a question. In the latter part (Tr. 29) of June, the early part of July of this year, were you present at a meeting of citizens of Surry County held at the board— TH E CO U R T: Just a minute. MR. G R A V A T T: We object to the question, sir, for the reason that it is purely immaterial. As a private citi 58 zen, he had a right to attend any meeting, and that to in quire of him as to whether he was present or not is im material to any issue in the case. TH E C O U R T: Nobody is challenging his right to attend a meeting, and the objection is overruled. A. Yes, I was. BY MR. TU CKER: Q. Do you remember when the meeting was held? A. No, I don’t remember the exact date. Q. Was it in June, latter June or early July? A. It was in June. Q. All right— A. Not in July. Q. Do you recall hearing that the Pupil Placement Board had assigned seven Negro children to attend the Surry School during the 1963-64 term? A. Yes. Q. The meeting came after you had heard about this placement ? A. Yes. (Tr. 30) Q. What time o f day was the meeting held? A. It was at night. Q. How did you receive notice o f it? A. I have no idea. Just through— very probably at a service station and heard somebody make the remark that there was going to be a meeting. Q. Did you address the meeting? A. No. 59 Q. Will you tell us who did address the meeting? A. I believe Mr. Goodrich addressed the meeting. Q. Who presided at the meeting? A. Mr. Goodrich, I think. Q. Who was there keeping order? A. We didn’t need anybody to keep order. MR. D E N N Y : I didn’t catch that question. TH E C O U R T: He said, “ W e didn’t need anybody to keep order.” BY MR. TU CKER: Q. Did you see Mr. Clifton Ellis at the meeting? A. Yes. Q. Did you see Mr. J. A. Savedge at the meeting? A. Yes. Q. Did you see Mr. A. T. Sowder, the County Treasurer, at the meeting? (Tr. 31) A. No, I did not. Q. And you, and Mr. Ellis, and Mr. Savedge compose the Board of Supervisors of Surry County? A. Yes. Q. Do you recall that at this meeting a decision was made that Surry School would be closed? A. No, sir. No, sir. Q. Do you recall that at this meeting a decision was made that the Lebanon School and the Jackson School would continue to operate? * * * 60 (Tr. 32) * * * Q. Do you recall at that meeting a decision made that the Lebanon School and the Jackson School would continue to be operated? A. No, I don’t remember. It was not any decision made at that meeting that I was at. Q. Was there a decision made at that meeting to or ganize a system of private schools? A. No. Q. Was anything said at the meeting regarding schools? A. Yes. Q. Was anything said at the meeting regarding the fact that seven Negro children had been assigned to Surry School? A. That was said— I mean, that was so stated. Q. By whom was that stated? A. Mr. Goodrich. Q. Was there anything said at the meeting that did (Tr. 33) not pertain to schools? A. I certainly think something was said that was not pertaining to schools. * * * Q. Do you recall at that meeting a question as to whether, in the event of the organization of private schools, there would be a reduction o f taxes, and that question being answered by Mr. Sowder or Mr. Goodrich that a reduction o f taxes would not be forthcoming? A. I think you have got the two meetings mixed up. I was not at that meeting that that was discussed. 61 Q. Beg your pardon? A. I was not at that meeting that that was discussed. Q. That the taxes were discussed? A. Yes. Q. You are telling me there were two meetings of citizens ? (Tr. 34) A. Yes. Q. Which one did you attend, the first one or the second one? A. The first one. Q. How much longer—-at the first meeting, was a de cision made to hold another mass meeting? A. Yes, I think it was. Q. Did Mr. Goodrich announce that decision? A. No. Mr. Goodrich, he didn’t announce that decision. Q. Do you recall by whom it was announced? A. No. It was put to a vote. Q. And Mr. Goodrich carried the vote? He was pre siding, I mean? A. Yes, he was presiding. Q. Now I want to ask you if there were any colored persons in attendance at that meeting? A. No. * * * (Tr. 37) * * * CLIFTON M. ELLIS, JR., called as a witness by and on behalf of the plaintiffs, being first duly sworn, testified as follows: 62 DIRECT EXA M IN ATIO N BY MR. TU CKER: Q. Will you state your name and address for me? A. C. M. Ellis, Jr., Wakefield, Virginia. Q. You are a member of the Board of Supervisors of Surry County? A. I am. Q. I ask you, Mr. Ellis, if you were present at a meeting of citizens held at the courthouse in the latter part o f June, or early part o f July, o f this year ? A. I was. Q. You were? (Tr. 38) A. I was. Q. Now it appears from the testimony o f Mr. Seward that there were two such meetings held. A. That is right. Q. Were you present at both of them? A. I was. Q. At the first meeting, who presided? A. Mr. Goodrich. Q. Commonwealth’s Attorney? A. That is right. Q. Was that first meeting having to do with the public schools ? A. It was. Q. It followed the announcement that seven Negro chil dren had been assigned to attend the previously all white Surry schools? A. I would think it did, yes. 63 Q. Now, would you tell us what persons you remember having addressed the first meeting? A. I can’t say that I know of any. Mr. Goodrich pre sided. Q. Well, what was discussed, and what was decided, as far as you can recall ? A. Nothing was decided. (Tr. 39) Q. Well, what was discussed? A. Private schools. Q. All right. Now, at the second meeting, was Mr. Goodrich present at that one also? A. He was not. Q. Who presided at the second meeting? A. Mr. Franklin Lawrence. Q. Was Mr. Savedge present at the second meeting? A. Yes, he was. Q. Were either the School Board members, Mr. Huber, Mr. White, or Mrs. Cooper present at this second meeting? A. Not that I know of. I did not see them. Q. Do you recall seeing either of them at the first meeting ? A. No, I do not. Q. I know your answer, but I forgot who you said presided at the second meeting. A. Mr. Lawrence. Q. Was Mr. Von Schilling at the second meeting? A. I didn’t see him. Q. Now, were there any colored people present at either of these meetings? A. I didn’t see any. 64 Q. And both of them were held at the courthouse ? (Tr. 40) A. At Surry Courthouse, yes— not at the courthouse. Q. Held at the courthouse? A. Not at the courthouse, no; the community building. Q. The second meeting was held at the community build ing? A. They were both held there. Q. How far is the community building from the court house? A. Half a mile. Q. Are you saying that neither of these meetings oc curred at the courthouse? A. In the courthouse, no. Q. At the courthouse; on the courthouse grounds? A. No. Q. Now, do you recall Mr. Seward, the Treasurer, being present at either o f these meetings ? A. Mr. Seward is not Treasurer. Q. I ’m sorry. Mr. Sowder. A. I don’t remember seeing him. Q. I am going to ask you if you remember a question being directed by one of the citizens as to whether the formation of private schools for the white children would result in a lessening of the tax bill? A. I don’t remember that being brought up. A tax cut (Tr. 41) you mean? Q. A tax cut, yes. A. No. Q. And you don’t recall either Mr. Sowder or Mr. Good 65 rich answering that such a tax cut would not be a result? A. Mr. Sowder was not there, and Mr. Goodrich wasn’t either. Q. How did you get notice of the meeting? A. Just a general rumor in the County. I don’t know who told me. Just different ones talking about it. Q. That was true as to the first meeting? A. Both meetings. Q. Well, didn’t the people assembled at the first meeting, at which Mr. Goodrich presided, vote to have another meeting at a later date? A. I don’t know whether they did or not. It was under stood when we left that meeting, we were to have a mass meeting. Q. Approximately how many people do you recall being present at the first meeting? A. 150, maybe. Q. Approximately how many at the second meeting? A. I wouldn’t have any idea. The house was full. MR. D E N N Y : I didn’t get the last part of your answer, sir. (Tr. 42) TH E W ITN ESS: The house was full. I wouldn’t have any idea how many. BY MR. TUCKER: Q. Well, did not the last meeting then conclude with— strike that. Was it not decided at the last meeting that the white 66 children would attend schools to be operated by a foundation or private corporation? A. I don’t think it was decided. Q. Was that proposed? A. I wouldn’t say it was. It was talked about organiz ing one. A school wasn’t organized at the mass meeting. Q. Was it proposed that they would organize the cor poration ? A. They thought they would organize; they expected to, yes, Q. No one dissented from that, did they? A. No. Q. It was proposed that the white children would attend the schools to be conducted by this corporation, to be or ganized ? A. I f their parents wanted them to go, yes, Q. And no one dissented from that, did they? A. The parents had to agree. Q. It was proposed that the same teachers who were teaching the children, could be employed to continue to (Tr. 43) teach the children in the Foundation schools, was it not? A. I don’t think so. Q. No one mentioned that? A. I wouldn’t know. It was mentioned, but I don’t think it was decided on. Q. But was it discussed? A. Maybe some, but I can’t give you any real thing that was said. Q. But that was discussed? 67 A. I am sure it was. Q. Did anybody disagree? A. I don’t know that they did. Q. Was it proposed that the schools for— the Negro schools should continue to be operated? A. I don’t think that was decided that night. Q. Was it proposed? A. We couldn’t decide it. I don’t think we could. Q. I didn’t ask whether it was decided. Did anybody suggest that? A. Oh, it might have been. It might have been. Q. Do you remember that it was? A. I do not. Q. Are you saying that you can not recall at either of these meetings anyone raising a question as to whether to (Tr. 44) close the Negro schools? A. I haven’t heard anything about closing the Negro schools. Not the first time. Q. Nobody has said anything about what to do about the Negro schools? A. I never heard the schools discussed to be closed. Q. Well, you did hear discussion of closing the Surry schools ? A. Oh, yes. Q. I see. And no discussion at all with reference to closing it? A. No. ** * 68 (Tr. 45) * * * R. FRAN KLIN LAW RENCE, called as a witness by and on behalf of the plaintiffs, being first duly sworn, testi fied as follows: DIRECT EXA M IN ATIO N BY MR. TU CKER: Q. State your name, please. A. Ray Franklin Lawrence. Q. Where do you live, sir? A. Surry. Q. I understand that you are the vice-president of the Prince Edward Educational Foundation. A. No, sir. Q. I ’m sorry. Too many cases. I understand that you are the vice-president of the Surry County Educational Foundation. A. That is right. Q. Mr. Lawrence, I want to ask you if, in the latter part o f June, or the early part of July, you were present at a (Tr. 46) meeting of citizens of Surry County held at or near Surry Courthouse? A. I was present at a meeting of people of Surry County that was held in the community building. Q. In the community building? A. That is right. Q. Were you present at one or two o f such meetings? A. I was present at two. Actually, one of them wasn’t really a meeting. It was just a group of people who got together. 69 Q. How large a group? A. There was possibly at the first meeting 60, 75 people, and I don’t know how many were at the larger one. It was a good, big meeting. Q. All right. At the first meeting, that was one Mr. Goodrich presided, wasn’t it? A. That is right. Q. And the members of the Board of Supervisors were present ? A. I believe that is right, yes. Q. Do you remember any other officers, such as the County Treasurer? A. Not to my knowledge was he there. Q. Any other county officers that you remember being there? (Tr. 47) A. Not to my knowledge. Q. All right, that meeting was called as a result of— incidentally, who called that first meeting? A. A group of twelve or fifteen people that got together and decided that they would individually contact people and talk with them and ask them to the meeting. Q. Were you in this original group of twelve or fifteen? A. Yes, I was. Q. Was Mr. Goodrich one of those? A. I don’t remember. Q. Mr. Seward? A. He possibly was. Q. You say, “ He possibly was” ? A. He possibly was. I don’t know; I don’t remember. Q. Mr. Seward? 70 A. Which Seward? Q. The member of the Board of Supervisors, W. E. Seward, Jr. A. No, he was not. Q. Mr. Ellis? A. No. Q. Mr. Savedge? A. No. (Tr. 48) Q. How did you get word around to the com munity that you were going to have this first meeting? A. These people went out and contacted the people personally. Q. And at this first meeting, at which Mr. Goodrich presided, the discussion was the school question, wasn’t it ? A. That is right. Q- It all came about because the seven Negro children had been assigned to the Surry School? A. Yes and no. That probably provided the incentive for it to be done right at that time, but it had been discussed for some little time before that. Q. To be done in the event of desegregation of the schools ? A. I have been in Surry County since 1939, except for two short periods, and, actually, among groups in the County, private schools have been discussed ever since I have been in Surry County. Now there has gained this incentive to get something done, yes, since they were as signed. Q. All right. At this first meeting, was the idea of the white children being educated in the private school specifi cally discussed? 71 A. I don’t know what you are calling the “ first meet ing” . Q. The one at which Mr. Goodrich presided. (Tr. 49) A. At that meeting, the situation was explored. It wasn’t decided that anything should be done, other than to get people together for a larger meeting. The situation was generally discussed, with regard to the students, yes. Q. In other words, the idea of the white children attend ing a private school was discussed, and the meeting was to determine whether the parents would support such a pro gram? A. The whole situation with regard to our schools was discussed. That was discussed along with other things. Q. And at the meeting, it was decided to call this larger meeting to see what the general sentiment of the white parents would be? A. What the will of the people in the County was, yes. Q. That is the white people? A. Yes. Q. Now, at the second meeting, you presided? A. That is right. Q. And at the second meeting, the decision was made that the white children of the County would attend private schools ? A. The decision was made that we would organize, or attempt to organize, a school foundation to operate a pri vate school. Q. And it was also considered that the school foundation would employ the teachers who had taught at the Surry (Tr. SO) School for the previous year? A. At this meeting, that was not discussed. At that meet 72 ing, we had no idea what the sentiment o f the teachers would be. Q. I am talking about— oh, I see, go ahead. A. W e had no idea, because no one teacher at that time had been contacted. W e had no idea what their position would be. Q. Well, did you then decide you would contact the teachers who taught at Surry School the previous year, and ascertain what their position would be? A. At this meeting? Q. Yes. A. No, this was not done at that meeting. Q. At this meeting which you presided, was there a question brought as to whether the County should, or should not, continue to operate the schools which Negro children attended? A. There was a decision made that we would attempt to operate a private school, and that, of course, we coudn’t make the decision for the School Board, but the decision was reached that we would recommend that we were in favor of the School Board operating the public school. Q. And by that “public school” , did you mean the public schools which the Negroes attended? (Tr. 51) A. There was nothing specified. We would attempt to organize a foundation to operate a private school, and that we would be in favor— of course, we couldn’t make the decision, because we had no authority, but we were in favor of the School Board operating the public school. Q. This is the meeting at which you presided? A. That is right. 73 Q. And it was very largely attended? A. The building was full, yes. Q. Did anybody express any dissension to those things that were being discussed? A. If they did, it was done privately; I didn’t hear it up where I was. Q. Now, you have spoken about the time when the de cision was made to solicit the services of the teachers who had previously taught at Lebanon School. When was that, and who was present at this meeting? A. Do what now? Q. I am passing on now to the decision to solicit the services of the teachers, who previously taught at Surry School, as teachers to teach in the Foundation schools. A. It was some time after that meeting. Just when, I don’t know. Q. W'as this another general meeting of citizens? (Tr. 52) A. No, this was no other meeting. This de cision to contact the teachers was made at a board meeting. Q. Now, are you speaking about the board meeting of the Surry County Educational Foundation? A. That is right. Q. Do you recall when that was made? A. No, I do not. Q. At that time— well, anyhow, subsequent to that de cision, teachers were contacted? A. I assume so. I didn’t contact any. Q. I think we have shown that at these two meetings of citizens of the County, that there were no Negroes present. 74 A. If there were, I didn’t see them. Q. And I don’t think we need to quibble about it— the idea was the schools to be operated by the Foundation were to be for white children? A. It was never specified. Q. Well, it didn’t have to be specified, did it? A. Well, I don’t know. The decision was that we would attempt to organize the foundation to operate the private schools, and the decision was also unanimous that we urge or recommend to the School Board that they operate the public school. Q. All right. Really, the thing that had precipitated these meetings, was the fact that seven Negro children had (Tr. 53) been assigned to attend schools with white chil dren? A. That provided the incentive to get it done now. Q. Precisely. So that it would have been perfectly foolish, then, just to organize a private school and to admit Negro children to that? A. No, I would not say that, because, as I testified a while back, private schools in Surry County had been dis cussed for sometime. Q. The Foundation schools do admit all the white chil dren o f the County of school age? A. The Foundation admits children on invitation only. Q. There is no white child in the County who has not been invited? A. Now, that I couldn’t say. Q. You don’t know of any? A. I don’t know of any, no. 75 Q. You know of any Negro child who has been invited? A. No. * * * (Tr. 54) * * * SCOTT L. HENDERSON, called as a witness by and on behalf of the plaintiffs, being first duly sworn, testified as follows: DIRECT EXAM IN ATIO N BY MR. M ARSH : Q. Would you state your name and address and occu pation, please? A. Scott L. Henderson, photographer— MR. D E N N Y : I didn’t catch it. TH E W IT N E S S : Scott L. Henderson. I am a photog rapher. My address is 618 Overbrook Road. BY MR. M ARSH : Q. Mr. Henderson, did you, on Monday of this week, at my request, take some pictures at some public school buildings in Surry County? A. I did. * * * (Tr. 58) * * * J. L. W H ITE, called as a witness by and on behalf of the plaintiffs, being first duly sworn, testified as follows: 76 DIRECT EXAM IN ATIO N BY MR. TU CKER: Q. Would you state your name and address, sir? A. J. L. White, Elberon, Virginia. Q. You, I believe, are one of the members o f the School Board of Surry County, Virginia? A. That is correct. Q. Mr. White, were you present at any of the meetings of citizens of Surry County in the latter part o f June or the early part of July of this year ? A. I attended one meeting. The date, I couldn’t give it to you. Q. Who presided at the meeting which you attended? A. Mr. Lawrence. Q. Has your School Board considered or formulated any plans for the desegregation of the schools of Surry County? (Tr. 59) MR. D E N N Y : May it please the Court, the actions of the School Board are disclosed in its minutes. That is the only way the School Board can act. I— TH E C O U R T: Do the minutes disclose any plans ? MR. D E N N Y : Not that I know of, sir. TH E CO U R T: All right. Well, that settles that. Proceed. MR. D E N N Y : But my objection is the best evidence and the only evidence are the minutes. TH E C O U R T: That is not necessarily so, but if there are no plans, and counsel makes that statement, why then 77 we don’t need to examine the witness on it. I will accept the statement of counsel. BY MR. TU CKER: Q. And it is a fact, Mr. White, that at all times— it is a fact that up until the close of the last school term, all of the white children in the County attended the Surry School ? A. I wouldn’t say that. I am not positive about it. There are a lot o f children in the County. I don’t know where they have attended school. Q. I will put it this way. Surry School was the only school which white children attended? A. To my knowledge it was, in the County. Q. The only public school in the County, that is what (Tr. 60) I am speaking of. A. That is correct. Q. And none but white persons taught at Surry School? A. That is right, all white teachers. Q. The Jackson School and the Lebanon School were attended by none but colored children? A. So far as I know. Q. And none but colored persons taught at either of those schools? A. That is right. * * * (Tr. 61) * * * BY MR. D EN N Y: Q. You have testified that you attended a public meet ing at which Mr. Lawrence presided? 78 A. That is right. Q. Did you have anything to say at that meeting? A. I asked one question. There was one question I wanted to know what it was. Q. What question was asked you? A. They wanted to know if our contracts with the teach ers contained a cancellation clause of thirty days, and I told them all contracts had that clause in it. * * * (Tr. 63) * * * TH E COURT: Gentlemen, the Court has considered the objection made by Mr. Gravatt to the questions pro pounded to Mr. Seward, a member of the Board of Super visors, concerning the meeting of the Board. The Court sustains the objection. MR. TU CKER: If Your Honor please, we would like a proffer to what the question would have elicited. TH E C O U R T: Well, I will hear counsel. You may proffer. MR. TU CKER: At this time? TH E C O U R T: Yes, at this time, while we are waiting for the witness. MR. TU CKER: The purpose of the question was to show that at the meeting of the Board of Supervisors, there was a suggestion made, I believe by the Common wealth’s Attorney, but with reference to* permitting the Foundation to use the school buses, or selling the school buses to the Foundation. It was not acted on, because of the counter-suggestion, I believe from the County Treas 79 urer, that it was too early to do that. It was noted, but was not included in the minutes. TH E COURT: All right. * * * (Tr. 66) * * * M. B. JOYNER, called as a witness by and on behalf of the plaintiffs, being first duly sworn, testified as follows: DIRECT EXAM IN ATIO N BY MR. M ARSH : Q. Would you state your name and address, please? A. M. B. Joyner, Dendron, Virginia. Q. And you are the Division Superintendent of Schools, Surry County? (Tr. 67) A. That is right. Q. Mr. Joyner, does the School Board still own the buses which serviced the Surry County schools last year? A. It owns all o f those that were on regular routes last year. MR. D E N N Y : I didn’t get the answer, Mr. Joyner. TH E W ITN ESS: It still owns all of the buses that were driven on regular routes last year. BY MR. M ARSH : Q. Are there any other buses, that were used on other routes, that the School Board does not now own? A. There were a few discarded buses, buses, I think 80 two or three of them were used as spares last year, that have been disposed of. Q. To whom were they sold? A. They were sold to Mintz Motor Company at Surry. Q. How many buses were regularly used last year? MR. D E N N Y : I didn’t get the question. Q. How many buses were regularly used to service the Surry County high and elementary schools last year? A. There were 25. Q. Twenty-five? A. Regular buses. Q. And how many spare buses? (Tr. 68) A. Three. I think that is correct. Q. And the School Board still owns the 25 ? A. W e still own 25 buses, plus 3. Q. I thought you had sold the 3. A. No. Q. You sold some other buses? A. We did sell 3, but we bought 3. W e bought 3 new buses, so we still have 25 buses— regular buses, or buses that could be used as regular, and 3 that we would call spare buses. Q. Now, I am speaking of the buses that serviced the white high school and elementary school last year, only. A. Well, the white school, only, was 10 buses last year. Q. Ten buses. Where are those buses at the present time? A. They are at the school bus garage, parked on the lot. 81 MR. D E N N Y : They are what, sir ? TH E W IT N E S S : They are at the school bus garage, parked on the lot. BY MR. M ARSH : Q. They are not in use? A. They are not in use at the present time. Q. And the remaining 15 buses are used to service the (Tr. 69) two Negro schools? A. That is right. Q. Did drivers who drove the ten buses last year— do they still work for the School Board? A. That operated to the white school, no. Q. They work for the Foundation now? A. I don’t know. Q. They were released after the Foundation schools came into being? A. No, we had no contracts with them. * * * CLARENCE J. KEE, called as a witness by and on behalf of the plaintiffs, being first duly sworn, testified as follows: DIRECT EXAM IN ATIO N BY MR. M ARSH : Q. Mr. Kee, would you state your name, address, and (Tr. 70) occupation, please? A. Clarence J. Kee, 303 First Street, Smithfield, Vir ginia. I am the Principal of Lebanon Elementary School, Surry, Virginia. ** * 82 (Tr. 73) * * * BY MR. M A R S H : Q. Mr. Kee, I show you Plaintiffs’ Exhibits 13, 8 and (Tr. 74) 9. Do you recognize those, the bus No. 13, as the same bus No. 13 that is referred to on this, and those pupils, as pupils attending your school, sir? A. Yes. Q. I notice, sir, that the capacity of the buses is listed as 54, and the number of students transported is listed at 54. Does the capacity take into consideration pupils stand ing, or is the bus supposed to seat 54 people ? A. The capacity takes in the number of students the bus would carry seated, children that are seated on the bus, and I emphasize the “ children who are seated on the bus” . Q. Isn’t it a fact that children do have to stand who ride the buses to your school? A. Yes, before our arrangements have been made to re-route the buses and additional buses have been added. That was the condition before this change was made. MR. D E N N Y : That was the condition— what? TH E W IT N E S S : That was the condition before this change was made. • BY MR. M ARSH : Q. Now, these pictures were taken Monday. This was the condition at that time? A. That is right. Q. I show you Plaintiffs’ Exhibit No. 12. Is that room (Tr. 75) in your school building, sir? A. Yes. Q. And is that the picture o f a fifth and sixth grade being taught in the same room? 83 A. Yes, sir. Q. At the same time? A. Yes, sir. Q. What is the use of that room normally? Is that a regular classroom, or is that the cafeteria or something? A. No, that is the cafeteria. Q. And those are benches the students are seated on? A. No, they are tables. Q. I show you Plaintiffs’ Exhibit 14. Is that a picture of a classroom taught in the auditorium of the school, sir ? A. Yes, sir. Q. Plaintiffs’ Exhibit 10. What does that show, sir? A. This is the picture of one of the three third grade sections located in the multipurpose room. Q. Multipurpose room. And I believe Plaintiffs’ Ex hibits 13 and 15 show classrooms in your school, sir? A. Yes, sir. Q. Is it not a fact, sir, that your school has a problem of overcrowding? MR. D E N N Y : Is it not a fact the school has what? (Tr. 76) MR. M ARSH : A serious problem of over crowding. MR. D E N N Y : May it please the Court, I object to that question. TH E C O U R T: The objection is overruled. A. Is this in terms of teacher load, or is it in terms of space ? Q. Both. 84 A. Well, as far as the classrooms that have been designed for classrooms are concerned, they are, or they were, over crowded, but conditions have been changed during the last few days whereby the classrooms, themselves, have been relieved of this crowded condition. Now, that is one of the reasons why we have a class in the auditorium and a class in the cafeteria, but, as of now, the classrooms are not crowded, because of these classes being moved to those locations. Q. Sir, I believe the suit was filed on September 3. Now, as late as last week, did you have a class with 53 pupils? A. Yes, sir, I did. Q. And there were several others with 40 some? A. Yes, sir. (Tr. 79) * * * * * * CROSS-EXAM IN ATION BY MR. D EN N Y: Q. Mr. Kee, how long have you been Principal of this Lebanon School? A. Going into the seventh year. Q. Is it not a fact that every year, during the first two or three weeks of school, you have considerable adjust ments to make, depending upon the number of children, the grades they fall in, the places of residents ? A. Yes, that is true. Q. As I understand your testimony a few moments ago, you now have got things arranged in the school where you have no space problem? 85 A. Well, if you mean if I have my enrollments situated, yes. That statement is true. (Tr. 80) Q. Now, as I understand these pictures, which would indicate a crowded condition o f some buses, they were taken prior to the final working out of the bus routes and the assignment of children to buses? A. That is true. Q. That final working out of bus routes and the assign ment of children to buses has now been made? A. It has. Q. And this exhibit which we have here, No. 22, I think it is, shows that in only two instances is the capacity of a bus exceeded. One bus, No. 23, carried 57 children, with seats for 54. A. That is right. Q. Does that particularly differ from years gone by? A. Yes, it does differ from years gone by. Q. In what respect? A. Well, heretofore, they were crowded. Q. Heretofore, what? A. They were crowded. Q. Heretofore, what? A. The buses were crowded. There were students stand ing on the bus heretofore, prior to this year. (Tr. 81) Q. In other words, the buses are less crowded this year than heretofore ? A. Yes. MR. D EN N Y: I have no further questions. MR. M A R S H : May it please the Court, there is just 86 one statement I would like to get in the record. When school opened, I don’t think that is in the record. The date school opened. I ’d like this witness— TH E C O U R T: Oh, yes. You may ask him the date school opened. REDIRECT EXAM IN ATIO N BY MR. M ARSH : Q. When did school open this year? A. School opened, officially, September the 5th. * * *