Alabama v. United States Motion to Dismiss or Affirm

    IN THE

United Stales Coart  of Appeals
F ob t h e  F ourth  C ircuit

No. 9418
Glenda B lakeney , et au., Appellants,

V.

F airfax C ounty S chool B oard, et  al., Appellees.

Appeal from the U nited S tates District Court for the 
Eastern District of Virginia, Alexandria Division

APPELLANTS' BRIEF

J ames M. N abeit, III 
10 Columbus Circle 
New York 19, N. Y.

S. W. T ucker
214 E. Clay Street 
Richmond 19, Virginia

Otto L. T ucker 
901 Princess Street 
Alexandria, Virginia

Attorneys for Appellants
Of Counsel:

A llison  W. B rown, J r.
Suite 705
1000 'Connecticut Avenue, N.W.
Washington 6, D. C.

P ress of B yron S . A d am s , W ashington, D , C.

JAMES, M. NABRIT, HI



INDEX

Page
Statement of the case ..................................................  1
Statement of facts ........................................................ 5
Questions presented........................................................  11
Argument

I. The District Court improperly denied injunctive 
relief against the continuation of racially dis­
criminatory practices in the maintenance and 
operation of the Fairfax County school system . . 11

A. The District Court erred in its conclusion
that the country does not have a “ dual or 
segregated system.” ......................................  11

B. Conformity with the Fourteenth Amend­
ment by Fairfax County compels the aban­
donment of present policies and practices 
which perpetuate the bi-racial school system 14

C. The defendants should be enjoined without
further delay from continuing to maintain 
and operate a bi-racial school system . . . .  19

II. The motion for further relief tiled by the plaintiffs 
in the original school desegregation case (Civil 
Action No. 1967) was properly before the District 
Court and should have been given consideration 21

Conclusion ......................................................................  25

AUTHORITIES CITED
Cases :

American Enka Corporation v. National Labor Rela­
tions Board, 119 F. 2d 60 (C.A. 4) .....................  18

Anderson v. City of Albany, 321 F. 2d 649 (C.A. 5) .. 21
Anderson v. Martin, 375 U.S. 399 ..............................  16
Armstrong v. Board of Education of City of Bir­

mingham, Alabama, 323 F. 2d 333 (C.A. 5) .........  21



11 Index Continued

Page
Augustus v. Board of Public Instruction of Escambia

County, Florida, 306 F. 2d 862 (C.A. 5) ............  22
Bailey v. Patterson, 369 U.S. 31 ............................. 21
Bates v. Little Rock, 361 U.S. 516 ........................... 16
Bell v. School Board of Powhatan County, Virginia,

321 F. 2d 494 (C.A. 4 ) ....... ...............! .................  17
Blackwell v. Fairfax County School Board, Civil

Action No. 1967 (D.C. E.D. V a .) ................ ..........  2, 5
Board of Public Instruction, Duval County, Florida

v. Braxton, 326 F. 2d 616 (C.A. 5 ) .........................  18
Bradley v. School Board of City of Richmond,

Virginia, 317 F. 2d 429 (C.A. 4) .................14,17,21
Brooks v. County School Board of Arlington County,

324 F. 2d 303 (C.A. 4) ..................... ( ...................  22
Brown v. Board of Education of Topeka, 347 U.S.

483, 349 U.S. 294 .............................................17,18,22
Brown v. County School Board of Frederick County,

Virginia, 327 F. 2d 655 (C.A. 4 ) ..................9,13,14,17
Bush v. Orleans Parish School Board, 308 F. 2d 491

(C.A. 5) ............................................................... 14,22
Cathedral Estates v. Taft Realty Corp., 228 F. 2d

85 (C.A. 2) .............................'...............................  19
Cooper v. Aaron, 358 U.S. 1 .................................... 22
Davis v. Board of School Commissioners of Mobile 

County, Alabama, 318 F. 2d 63 (C.A. 5), stay 
denied, 84 S. Ct„ 10, 322 F. 2d 356 (C.A. 5),
certiorari denied, 375 U.S. 894 ............................  20

Dodson v. School Board of City of Charlottesville, 289
F. 2d 439 (C.A. 4) ........................... ....................  8

Glens Falls Indemnity Co. v. United States, 229 F. 2d
370 (C.A. 9) .......................................................  19

Goss v. Board of Education of the City of Knoxville,
373 U.S. 683 ...........................................................  20

Green v. School Board of City of Roanoke, Virginia,
304 F. 2d 118 (C.A. 4 ) ............................................. 14

Hasselbrink v. Speelman, 246 F. 2d 34 (C.A. 6 ) __  19
Jackson v. School Board of Lynchburg, Virginia, 321

F. 2d 230 (C.A. 4) .......................................... . 18
Mapp v. Board of Education of the City of Chat­

tanooga, 319 F. 2d 571 (C.A. 6) ........................... 19
National Labor Relations Board v. Neivport News 

Shipbuilding & Dry Dock Co., 308 U.S. 241 .........  18



Index Continued iii

Page
Northcross v. Board of Education of the City of

Memphis, 302 F. 2d 818 (C.A. 6) .................... 14
Ross v. Dyer, 312 F. 2d 191 (C.A. 5) .......................  22
Sperry Gyroscope Co., Inc. v. National Labor Rela­

tions Board, 129 F. 2d 922 (C.A. 2) ........ 18
Stell v. Savannah County Board of Education, 318

F. 2d 425 (C.A. 5) .............   20-21
System Federation No. 91 v. Wright, 364 TJ.S. 642 . . 22
United States v. Crescent Amusement Go., 323 TJ.S.

173 .........................................................................  18
United States v. Bogan, 314 F. 2d 767 (C.A. 5) , . . .  21 
United States v. Jordan, 186 F. 2d 803 (C.A. 6) . . . .  22
Watson v. City of Memphis, 373 TJ.S. 526 ............  20
Western Electric Co. v. National Labor Relations 

Board, 147 F. 2d 519 (C.A. 4) ..............................  18

Constitution  and S ta tu tes :

Constitution of the United States, Article V I ..................  19
Code of Virginia of 1950, as amended, Sections

22-232.18—22-232.31 ..............................................  6
Section 22-232.20 ................................................  8
Section 22-232.21 ................................................  9

M iscellaneous :

Federal Rules of Civil Procedure
Rule 15(b)'.........................................................  19
Rule 54(b) .........................................................  25
Rule 59 ..............................................................  23
Rule 60(b) ..........................................................21-24

Moore’s Federal Practice
Vol. 3, paragraph 15.13, pp. 847-848 ................  19
Vol. 6, paragraphs 54.12 [2], 60.03 [3], pp. 121-

124, 4021-4022 .....................................    24
Vol. 7, paragraphs 60.26[4]—60.28 [3], 60.38[3], 

pp. 283-330, 642-644 .........................................  23
U.S. Bureau of the Census, County and City Data

Booh .......................................................................  6
U.S. Bureau of the Census, Census of Population .. 16



IN THE

Uni t ed  S t a t e s  Cour t  of Appea l s
F oe th e  F ourth  C ircuit

No. 9418

Glenda B lakeney , et al., Appellants, 
v.

F airfax C ounty S chool B oard, et al., Appellees.

Appeal from ihe United States District Court for the 
Eastern District of Virginia, Alexandria Division

APPELLANTS' BRIEF

STATEMENT OF THE CASE

This appeal arises from the refusal of the District Court 
to issue injunctive relief to compel the Fairfax County 
School Board to cease operating a bi-racial school system. 
The proceeding below was commenced in the District Court 
on June 14, 1963, with the filing on behalf of five of the 
infant appellants by their parents and next friends of a



2

motion to intervene (A. 15-17) 1 in the ease known on the 
records of the District Court as “ Lawrence Edward Black- 
well, et al. v. Fairfax County School Board, et al. Civil 
Action No. 1967.” 2 The motion was accompanied by a 
proposed motion in intervention for further injunctive re­
lief (A. 17-23), which recited, in substance, that the Fair­
fax County School Board had denied permission to the 
five infant applicants to attend certain elementary schools 
to which they would have been routinely assigned if they 
were white. The prayer for relief was for an injunction 
compelling the school board to enroll the infants in the 
schools to which they sought admission, and restraining the 
board from continuing to discriminate in effecting transfers 
and initial assignments of Negro children in the county 
school system.

On June 21, 1963, certain of the original plaintiffs in the 
Civil Action No. 1967 filed a motion in the District Court 
for further interlocutory and permanent injunctive relief 
(A. 24-34).3 The motion recited that the movants were 
among the group of Negro plaintiffs in the 1959-1960 pro­
ceeding, a class action brought on behalf of themselves and 
others similarly situated to obtain an injunction against 
the continuance of racial segregation in Fairfax County

1 “ A .” refers to the printed appendix to this brief.
2 The motion to intervene was filed on behalf of Glenda Blakeney, 

Queen Ester Cox, Calvin Charles Jackson, Roland Wilson Smith, 
Jr. and Derrick Norman Smith, Negro infants. Civil Action 
No. 1967 is the original Fairfax County school desegregation case, 
which was initiated in 1959, and resulted in an order on November 
1, 1960, by District Judge Albert V. Bryan requiring the admission 
of 19 Negro children to previously all-white schools (A. 12-14).

3 The motion was filed by the parents and next friends of 23 of 
the 30 Negro infants who had been plaintiffs in the original pro­
ceeding. The plaintiffs, in 1960, were not granted the injunctive 
relief they had sought against the continued operation of a racially 
segregated school system. The 1959-1960 litigation is discussed 
further infra, pp. 5-6, 23-24.



3

public schools. The motion for further relief recited that 
the school board continues to operate a bi-racial school 
system with dual attendance areas based on race, and dual 
standards based on race for the assignment of principals, 
teachers and administrative personnel. The motion con­
tained allegations that Negro children seeking enrollment 
in other than an all Negro school, were required to submit 
to burdensome and inconvenient transfer procedures not 
experienced by white children. In the prayer for relief 
it was requested on behalf of plaintiffs and members of 
their class that an injunction issue against the continued 
operation of a bi-racial school system in Fairfax County.

The defendant school board and superintendent moved 
to dismiss the motion to intervene, stating as basis therefor 
that at a school board meeting on July 1, 1963, a resolution 
was adopted rescinding the action of the board previously 
taken with respect to the applications of the five Negro 
children involved, and at the same time granting them 
permission to enroll in the schools for which they had 
applied (A. 34-36). The defendants, on the basis of various 
stated grounds, also moved to dismiss the motion for 
further interlocutory and permanent injunctive relief (A. 
36). At the pre-hearing conference on July 12, 1963, the 
District Court set September 12, 1963, as the date for 
hearing on all motions and on the merits (A. 2).

At the September 12 hearing, evidence was submitted to 
the District Court showing the manner in which racial con­
siderations affect the maintenance and operation of the 
county school system. At the conclusion of the testimony, 
the defendants renewed their motion to dismiss the motion 
for further interlocutory and permanent injunctive relief, 
arguing principally that neither that motion nor the motion 
to intervene were properly before the Court, because the 
order entered November 1, 1960, by Judge Bryan in Civil 
Action No. 1967 constituted a final order and provided that 
the case be striken from the docket. Counsel for the 
plaintiffs seeking further relief and the applicants for inter-



4

vention argued that, for reasons more fully discussed 
infra, pp. 21-24, both motions were properly before the 
Court and that the Court had jurisdiction to grant the 
injunctive relief sought.

In the course of the hearing, the District Court, without 
disclosing its views on the merits of the controversy, i.e., 
whether it would grant injunctive relief against the con­
tinuation of racially discriminatory practices in the county 
school system, ruled from the bench that since Judge Bryan 
had ordered Civil Action No. 1967 stricken from the docket, 
the proceedings pending before the Court would be styled 
as a new suit as of June 34, 1963, the date of filing of the 
motion to intervene. The Court further stated: “ And we 
will consider all of the evidence, all the exhibits that have 
been introduced in this hearing as evidence and exhibits in 
support of and in opposition to the pleadings to this new 
suit” (A. 58).4

In its memorandum opinion dated March 3, 1964, (A. 
a 9-64) the District Court stated its finding that Fairfax 
County is not maintaining a dual or segregated school sys­
tem. The Court therefore declined to issue an injunction. 
The Court also noted the contention of the Negro infants 
and parents to the effect that the constitutional require­
ments of a racially noil-discriminatory school system war­
rants injunctive relief against the assignment of principals, 
teachers and administrative personnel on the basis of race. 
The Court found that there was no evidence of discrimina­
tion in the employment or assignment of such personnel, 
and that in any event, the relief sought as to this issue 
was beyond the scope of the pleading. In ruling that this 
issue was beyond the scope of the pleading, the Court gave 
its first indication that it would not give consideration in 
the restyled proceeding (Civil Action No. 3067) to the 
motion for further relief filed by the original plaintiffs in

4 The Court thereafter styled the new proceeding as ‘ ‘ Glenda 
Blakenev, et al. v. Fairfax County School Board et ah, Civil Action 
No. 3067.”



5

Civil Action No. 1967—the latter motion was the only 
pleading before the Court dealing with discriminatory 
personnel policies.5

It is the position of the appellants in this appeal that 
the District Court erred in concluding that Fairfax County 
is not maintaining a dual or bi-racial school system, and 
that the Court should have issued an injunction against the 
continuation of such practice. It is the further position 
of appellants that, although the proposed motion in inter­
vention which the Court treated as a complaint in the 
restyled proceeding known as Civil Action No. 3067, con­
tains allegations sufficient to sustain a finding that the 
county maintains a bi-racial school system, the broader and 
more detailed allegations, including those pertaining to 
discrimination in the assignment of principals, teachers and 
administrative personnel, which are included in the motion 
for further relief filed by the plaintiffs in Civil Action 
1967, were properly before the District Court and should 
have received consideration.

STATEMENT OF FACTS

As indicated supra, p. 2, the original litigation seeking 
to end segregation in Fairfax County schools was initiated 
in the District Court in 1959 (Lawrence Edward Blacktvell, 
et al. v. Fairfax County School Board, et al., Civil Action

5 The motion for further relief alleged that as an incident to the 
operation of bi-raeial school system in the county, the school 
board maintains a policy and practice of staffing Negro schools 
solely with Negro principals, teachers and administrative person­
nel. As part of the relief prayed for, an injunction was asked 
against the continuation of such discriminatory personnel policies 
(A. 27, 30). Evidence adduced at the hearing and argument by 
counsel for the Negro infants and parents, which went to this issue 
was predicated on the Court’s consideration of the relevant plead­
ing. The Court at no time dismissed this pleading, but on the 
contrary, indicated in its ruling at the hearing (supra, p. 4) 
that it would consider on the merits all evidence and pleadings 
before it.



6

No. 1967). On September 22, 1960, Judge Bryan issued 
findings of fact and conclusions of law, on the basis of which 
he ordered the school board to permit the transfer of 19 
Negro children to previously all-white schools for which 
they had applied (A. 4-12). Although the plaintiffs at that 
time had asked for general injunctive relief for themselves, 
and members of their class, against the continuation of 
discrimination based on race in the county school system, 
Judge Bryan denied their prayer on the ground, as he 
stated, that “ the School Board and the Superintendent 
readily recognize their obligation to avoid discrimination 
for race or color and have demonstrated a purpose to 
adhere to this duty” (A. 11).

Thereafter, the county took requisite steps to bring itself 
under the so-called “ local option” pupil placement law 
which had been enacted by the Virginia General Assembly, 
in Extra Session, in 1959 (Sections 22-232.18 through 22- 
232.31, Code of Virginia of 1950, as amended). The effect 
of the county’s action was to remove the authority for 
the placement of pupils in its schools from the State Pupil 
Placement Board and to vest it in the county school board, 
to be exercised in accordance with the statutory provisions 
as well as rules and regulations promulgated by the State 
Board of Education (A. 42, 20).

Fairfax County is part of the rapidly developing sub­
urban area adjacent to Washington, 1). C. The county, 
with a land area of 405 square miles, has experienced an 
extraordinary population growth in recent years.6 There 
are presently 110 schools in the county system, as compared 
to 94 in I960 (A. 46, 6). In June 1960, there were 53,823

6 U.S. Bureau of the Census, County and City Data Booh (1960). 
In 1960 the county had a population of 275,000, an increase of 
179 percent over 1950. The rate of population growth for the 
United States a whole during the same period, and for Viriginia, 
which was near the national average, was approximately 19 percent 
Ibid.



7

pupils in the county’s schools, whereas, at the time of the 
District Court hearing in September 1963, the number had 
risen to 80,558, an increase of 50 percent in three years 
(A. 6, 39). The September 1963, the pupil enrollment was 
10,000 over what it had been in September the previous 
year (A. 48).

Despite these changes, the county still maintains seven 
all-Negro schools, which are attended solely by Negro pupils 
and are staffed only by Negro principals, teachers and ad­
ministrative personnel (A. 37-38, 39, 62, 63).7 Six of the 
Negro schools are elementary schools dispersed throughout 
the county and the seventh, known as the Luther Jackson 
school, is a combination intermediate and senior high school, 
with grades 7 through 12 (A. 38, 53). Luther Jackson 
is located near the geographic center of the county, and 
the only elementary schools which “ feed” into it are the 
six Negro elementary schools (A. 38, 43, 53).s

The testimony of Associate Superintendent of Schools 
George Pope discloses that the attendance areas for white 
schools in the county are geographically defined and that, 
with some exceptions, white children are assigned to schools 
closest to their home—this is true at the elementary, inter­
mediate and high school levels (A. 40, 43, 49-50, 50-51). 
With respect to the Negro schools, on the other hand, 
Luther Jackson, because it is the only Negro intermediate 
and high school, has a county-wide attendance area. The 
six Negro elementary schools draw their pupils from loca­
tions that are otherwise included in white elementary 
attendance areas. In the case of certain of the Negro 
schools that happen to be located in predominantly Negro 
neighborhoods, at least part of their student complements

7 This is the same number of Negro schools the county had in 
1960, and for some time prior to that.

8 In addition to Luther Jackson, the county has 12 other inter­
mediate schools and 14 high schools distributed throughout the 
county (A. 52-53).



8

are assigned to them from localities that are otherwise 
zoned into the white elementary attendance areas (A. 
40-41).

Fairfax County’s present mode of integrating its schools 
is dependent entirely on the Negroes, who must take the 
initiative by requesting transfers for their children out 
of the Negro schools (A. 46, 50). On March 19, 1963, the 
school board adopted a four-point resolution governing 
transfers and initial enrollments of Negro children in 
schools other than the all-Negro schools (A. 60, 42-43, 49, 
51-52). Under this policy, a Negro family may apply to 
transfer its child out of the Negro school, to which he is 
otherwise assigned because of his race, to a white school 
that is nearer his home. The application for such transfer 
must be made prior to April 5 in the school year preceding 
the one when the transfer is to be effective, on a special 
pupil placement form which can be obtained only at the 
school board office (A. 44, 53, 32-34).9 Such application 
forms, when completed, must be returned to the school 
board office where they are processed by Associate Super­
intendent Pope in accordance with the policy set forth in 
Point 2 of the March 12, 1963 school board resolution 
(A. 42, 43-45).

Point 3 of the March 19 resolution contemplates transfers 
of Negro children out of segregated schools under cir­
cumstances where the child lives closer to the Negro school 
to which he is regularly assigned (A. 60).10 Placement appli-

9 Section 22-232.20 of the Virginia Code sets the April 5 dead­
line, and provides that, the applications must be made on an 
official form.

10 Since the board does not require a white child to attend the 
school closet to its home, (if it is a Negro school), Point 3 con­
stitutes recognition of the fact that it would be discriminatory 
to compel a Negro child to attend the closest school. See Dodson 
v. School Board of City of Charlottesville, 289 F. 2d 439, 443 
(C.A. 4).



9

cations fox' such children must be filed prior to April 5, but 
in this instance, instead of being handled by Mr. Pope, they 
are referred to the school board for consideration (A. 47, 
49). Point 3 of the resolution does not reflect a board 
policy of automatically approving such applications. 
Rather, at the time they are considered by the board, it 
has been customary for the parents to personally attend 
the session, and through legal counsel to present their 
reasons for requesting the transfer (A. 47, 19).11 The board 
may, or may not, grant the requested transfer. The appli­
cations made by the five Negro infants in the spring of 
1963 to transfer out of the Negro schools closer to their 
homes and to attend more distant white schools constitute 
a case in point (supra, p. 2). When these applications 
were presented to the board, they were arbitrarily rejected 
without explanation. Approval for the requested transfers 
of these five was only granted after the District Court 
action was commenced in June 1963 (A. 47, 19-20, 34-36).12

The evidence indicates that the Board’s March 19, 1963, 
resolution applies to initial enrollments in county schools, 
as well as transfers (A. 49, 51-52). If a Negro child lives 
closer to a white school and his parents wish to have him 
attend there he may be admitted upon application, but 
otherwise his regular assignment is to the nearest Negro 
school (A. 40-41). If the Negro child lives closer to a 
Negro school, but his parents wish to enroll him in the 
nearest white school—the one that white children living 
in his vicinity attend—the official placement application

11 See Code Section 22-232.21 for the statutory authority for the 
procedure followed; and see A. 45.

12 At no stage of this proceeding has the school board offered 
any reason for its rejection of the five applications. The fact that 
while the court action was pending, the applicants were admitted 
to the schools of their choice does not affect their standing as 
litigants. Brown v. County School Board of Frederick County, 
Virginia, 327 F. 2d 655 (C.A. 4).



10

form must be filed and the procedures provided under 
Point 3 for transfers are applicable (A. 49, 50-51).

It is apparent from the foregoing that every Negro child 
receiving an integrated education in the public schools of 
Fairfax County at this time is doing so as the result either 
of Judge Bryan’s 1960 order or the exercise of individual 
choice. The total number of Negro pupils in the county 
system in September 1963, at the time of the District Court 
hearing was 2529, or 3.1 percent of the total number of 
pupils attending county schools (A. 39). Of the 2529 Negro 
students, 428 were attending schools with white children, 
the increase in this number having occurred over the four 
years since 1960 when Judge Bryan ordered the first 19 
admitted to white schools (ibid.). The 2101 children who 
are remaining in Negro schools are taught solely by Negro 
teachers, of whom there are about 100 in the county (A. 
48).13

School Board Chairman Eugene Newman testified that 
the board does not have any plan or procedure for accom­
plishing eliminations of the dual school system in the county 
(A. 50). He indicated that the board intends to continue 
to rely on the assignment and transfer policies presently 
followed, as reflected in the March 19, 1963, resolution 
(ibid.). Both he and Associate Superintendent Pope testi­
fied that the burden of desegregating the school system 
under present policies depends on the initiative of Negroes 
in the county—in Newman’s words, they “ set their own 
speed” (A. 46, 50).

18 There are approximately 3500 teachers in the county system. 
There are no Negro teachers assigned to white schools, however 
(A. 48).



11

QUESTIONS PRESENTED

I. Did the District Court improperly deny injunctive re­
lief against the continuation of racially discriminatory 
practices in the maintenance and operation of the Fairfax 
County school system?

II. Was the motion for further relief filed by the plain­
tiffs in the original school desegregation case (Civil Action 
No. 1967) properly before the District Court and entitled to 
consideration ?

ARGUMENT
I. THE DISTRICT COURT IMPROPERLY DENIED INJUNCTIVE 

RELIEF AGAINST THE CONTINUATION OF RACIALLY DIS­
CRIMINATORY PRACTICES IN THE MAINTENANCE AND 
OPERATION OF THE FAIRFAX COUNTY SCHOOL SYSTEM.

A. The District Court erred in its conclusion that the county 
does not have a "dual or segregated school system."

The District Court concluded that Fairfax County “ is not 
maintaining a dual or segregated school system” (A. 62). 
Hence, the Court refused to enjoin the racially discrimina­
tory practices that made this suit necessary. As we show 
below, the Court’s conclusion not only conflicts with its 
own subsidiary factual findings, but is contrary to the 
evidence adduced at the hearing.

One of the clearest demonstrations of the error of the 
District Court’s finding that the county does not operate 
a dual school system is revealed by the fact, acknowledged 
by the Court, that the county continues to maintain the 
Luther Jackson school as an all-Negro intermediate and 
high school. This school, which has a county-wide attend­
ance area, is “ fed” exclusively by the six all-Negro elemen­
tary schools. The Court found that Negro students attend­
ing Luther Jackson “ who live nearer to an all-white or 
desegregated school, will be automatically so transferred 
upon request” (A. 62, n. 4). This finding, by its terms, 
refutes the conclusion that the county does not maintain a



12
dual school system. The fact that an all-Negro inter­
mediate and high school exists in the county, and that 
Negro children may transfer out, of it to attend schools 
closer to their homes necessarily implies that assignments 
to that school in the first instance are based on race, and 
that reassignments are dependent on the initiative of the 
Negro students and their families.

The District Court acknowledged that the implication of 
a dual system is also raised by the fact that the school 
board’s March 19, 1963, resolution refers to “ desegregated 
schools” (A. 61). The Court ignores that implication, 
though, and suggests that any unconstitutional aspects of 
the school system can be corrected by the board’s eliminat­
ing racial references from the resolution. The error of 
the District Court’s reasoning is manifest. The fact that 
the resolution refers to desegregated and segregated 
schools, and that it sets forth transfer policies applicable 
to Negro children only, is irrefutable evidence that the 
county operates a dual school system. Nor is the situation 
here one of so-called cle facto segregation where the Negro 
elementary schools are attended exclusively by children in 
the neighborhoods immediately surrounding them, in which 
no white children reside. The policy expressed in Point 2 
of the resolution obviously contemplates the existence of 
situations in the county where Negro children are involun­
tarily attending Negro schools which are more distant from 
their homes than the closest white or desegregated schools.14 
Point 3 of the resolution, furthermore, obviously contem­
plates situations where Negroes are entitled to transfer to 
white or desegregated schools more distant from their 
homes that the Negro schools to which they are otherwise

14 Associate Superintendent Pope acknowledged that there are 
Negro children assigned to the Negro schools, who live outside of 
the neighborhoods immediately surrounding them—as he put it, 
these children are not “ zoned * * * into the [white] school com­
munity” for that particular area (A. 41).



13

assigned.15 Appellants submit that the District Court, by 
ignoring the acknowledged implications of its own factual 
findings, erred in concluding that the county school system 
is not operated on a dual or segregated basis.16

The District Court’s opinion also fails to take into 
account the facts concerning the operation of the county 
school system as they are revealed by the evidence adduced 
at the hearing, and as they are summarized supra, pp. 
7-10. The testimony of Associate Superintendent Pope 
and School Board Chairman Newman leaves no question 
but that the county is still operating a segregated school 
system, and that the only deviations from it occur where 
Negro families are granted permission by the school au­
thorities to transfer their children from all-Negro to de­
segregated schools. Board Chairman Newman admitted 
that the county does not have a plan or procedure for ac­
complishing elimination of the dual school system in the 
county. Rather, he indicated that the board intends to 
rely on the assignment and transfer policies presently in 
effect. These policies concededly place the burden of de­
segregating the school system on the Negroes of the county. 
As Newman stated, under these policies the Negroes “ set 
their own speed” (A. 50).

On the basis of the foregoing, appellants submit that 
the District Court drew the wrong conclusion from estab­
lished facts. Here as in the Frederick County case, recently

15 Such was the case with the five Negro infant applicants herein 
(supra, p. 9).

16 Further evidencing the bi-racial nature of the school system 
is the fact, acknowledged by the Court, but disregarded in reach­
ing its conclusion, that the Negro schools are staffed entirely by 
Negro personnel and that the so-called white schools are staffed 
only by white principals and teachers. The constitutionality of 
this practice is discussed further infra, pp. 18-19, but it is men­
tioned here merely as further indication of the variance between the 
District Court’s factual findings and its ultimate conclusion.



14

decided by this Court, “ the record discloses a bi-racial 
system of schools.” 17 And this is so, notwithstanding the 
fact that the county now has an administrative transfer 
system whereby Negroes can exercise a choice, whether on 
initial assignment or transfer, to attend a school other than 
an all-Negro school. Nor is the bi-racial nature of the 
system altered by the fact white children in the county have 
a similar freedom of choice. For as this Court has recog­
nized, “ by reason of the existing segregation pattern, it 
will be Negro children, primarily, who seek transfers.” 
Bradley v. School Board of City of Richmond, Virginia, 
817 F. 2d 429, 436; and see Green v. School Board of City of 
Roanoke, Virginia, 304 F. 2d 118, 123 (C.A. 4).

B. C onform ity w ith  the F ourteen th  A m endm ent by  F airfax  
C ounty com pels the abandonm ent of p resen t policies and 
practices w hich p erp e tu a te  the b i-racial school system.

As the foregoing decisions of this Court indicate, a bi-
racial school system is not saved from unconstitutionality 
by superimposing on it procedures by which pupils who are 
initially assigned by race may escape from segregated 
schools only by making formal application and submitting 
to burdensome and discriminatory administrative proce­
dures. The Fifth Circuit similarly has recognized that: 
“ To assign children to a segregated school system and 
then require them to pass muster under a school placement 
law is discrimination in its rawest form.” Bush v. Orleans 
Parish School Board, 308 F. 2d 491, 498, quoting with ap­
proval Judge Wright’s opinion in the District Court, 204 
F. Supp. 568, 570-571 (E.D. La). The vice is clear: “ Negro 
children cannot be required to apply for that to which they 
are entitled as a matter of right.” Northeross v. Board of 
Education of the City of Memphis, 302 F. 2d 818, 823 
(C.A. 6).

17 Brown v. County School Board of Frederick Comity, Virginia, 
supra, 327 F. 2d 655.



15

Although it is true that under Fairfax County’s present 
policies, permission for Negro children to enroll in de­
segregated schools, whether on initial assignment or trans­
fer, is rather freely granted, the fact remains that in order 
to obtain such permission, Negro children must run a 
gantlet of administrative procedures not experienced by 
white children attending the same school. In the first place, 
the particular policies and procedures in effect in the county 
at a given time are likely to be unfamiliar to many members 
of the Negro community.18 Further, the administrative 
procedures which must be followed, by their nature, are 
likely to impede the rate of desegregation. As an initial 
step, there is the special pupil placement form which must 
be obtained by the Negro family directly from the school 
board office; this must be completed in all its details (in 
triplicate) and returned to the school board office by April 
5, five months before the requested enrollment is to be 
effective. If the application is rejected for any reason, or 
if it happens to be for enrollment in a school more distant 
from the Negro child’s home than an all-Negro school, it 
is referred to the school board for action. At that point, 
appeal procedures set forth in the Code (Sections 22-232.21 
and ff.) take effect, and the Negro family, if it adheres 
to the practice which has been generally followed in the 
county, will appear before the school board, and through 
counsel, present its reasons for requesting the transfer. 
Whether the requested enrollment is granted or denied 
lies within the school board’s discretion—there are no 
publicized standards governing its decision, and it may, 
as was the case with the five Negro infants in the spring 
of 1963, deny the application without explanation.

18 The testimony of Associate Superintendent Pope reveals that 
when placement policies pertaining to Negro pupils were put into 
effect by the school board in the spring of 1963, no special effort 
was made to put Negroes in the county on notice, hut rather that 
the information was simply made available to newspapers in the 
Washington, D. C., area (A. 45-46).



16

Under the type of system in effect in Fairfax County, 
white students will continue to attend schools “ tradition­
ally” attended by members of their race, without regard 
to the availability of a Negro school closer to their homes. 
Similarly, the momentum of 100 years of segregation will 
continue to propel the Negro child to the school that he 
and others of his race have been accustomed to attending, 
irrespective of its distance from his home. And if the 
locality is one where there is public hostility to desegrega­
tion of the schools, as is true in most parts of the south, 
many Negro families will be altogether reluctant to risk 
antagonizing white members of the community and thereby 
chance the possibility of some form of reprisal. The 
“ repressive effect” on Negroes of ‘‘private attitudes and 
pressures” inherent in a system which places the burden 
of desegregating the schools on individual Negro families, 
alone renders the system constitutionally vulnerable. 
Anderson v. Martin, 375 U. S. 399, 403; and see Bates v. 
Little Rock, 361 U.S. 516, 524. Other factors which will 
tend to discourage Negro families from voluntarily trans­
ferring their children out of Negro schools include: (1) 
economic insecurity resulting from the Negro’s generally 
inferior economic position in relation to that achieved by 
whites;19 (2) severance of a child’s social relationships in 
a Negro school and his relative social isolation upon trans­
ferring to a school which previously has been all-white; 
and (3) the fear of academic failure following transfer, 
when the Negro child will be in competition with white 
children who (because of differences between all-Negro and 
white schools) are likely to be more advanced scholas­
tically.

19 1960 census figures disclose 54.1 percent of the nonwhite 
families in Virginia reporting an annual income of under $3,000. 
The comparable figure for white families is 22.4 percent. U.S. 
Dept, of Commerce, Bureau of the Census, 1960 Census of Popula­
tion, Supplementary Report, PC(Sl)-43 (Gov’t. Print. Off.).



17

One of the principal bases for the Supreme Court’s de­
cision in Brown v. Board of Education of Topeka, 347 U.S. 
483 is the finding that Negro children attending all-Negro 
schools suffer solely by virtue of their being segregated 
from white children, and thereby receive an inferior educa­
tional experience. Id. at 493-494. The parents of Negro 
children are not suitable judges of the benefits their 
children may receive by transferring out of an all-Negro 
school. This judgment is the responsibility of the public 
school authorities who are bound by the Constitution to 
provide equality of educational opportunity to all children 
without distinction as to race. Where, as in Fairfax County, 
the school authorities, as instrumentalities of the State, 
are responsible for having established the all-Negro schools 
in the first instance and for assigning children to them 
solely on the basis of race, these same authorities may not 
now turn their backs on the problem and tell the Negroes 
that the responsibility for desegregating the schools rests 
with them through exercise of the option to transfer. As 
this Court has stated: “ It is upon the very shoulders of 
school boards that the major burden has been placed for 
implementing the principles enunciated in the Brown de­
cisions. * * * ‘ School authorities have the primary respon­
sibility for elucidating, assessing, and solving these [varied 
local school] problems [attendant upon desegregation].’ ” 
Bell v. School Board of Powhatan County, Virginia, 321 
F. 2d 494, 499 (C.A. 4), quoting Brown v. Board of Educa­
tion of Topeka, 349 U.S. 294, 299. Accord: Bradley v. 
School Board of City of Richmond, Virginia, supra, 317 
F. 2d at 436-438 (C.A. 4); Brown v. County School Board of 
Frederick County, Virginia, supra, 327 F. 2d 655 (C.A. 4).20

20 Analogies exist in other fields of law where, in order to rectify 
a course of unlawful conduct, the wrongdoer is required, under 
equitable doctrine, to do more than merely cease his activities, 
but is compelled to take further affirmative steps to undo the 
effects of his wrongdoing. Under the Sherman Antitrust Act 
unlawful combinations are commonly dealt with through dis-



18

Finally, appellants submit that the obligation to provide 
a desegregated education for Negro children extends to 
present and future employment and assignment policies 
affecting Negro principals, teachers and administrative per­
sonnel. Such was the plain holding of this Court in Jackson 
v. School Board of Lynchburg, Virginia, 321 F. 2d 230, 233 
where it was stated that “ a racially non-diseriminatory 
school system” comprehends “ all aspects of the schools’ 
operations,” including a non-segregated faculty and staff. 
This same view was recently adopted by the Fifth Circuit in 
Board of Public Instruction, Duval County, Florida v. 
Braxton, 326 F. 2d 616, 620-621. The court in the Braxton 
case, in approving a prohibition against the assignment of 
teachers and other personnel on a racial basis, pointed out 
that this was in accord with the decision of the Supreme 
Court in the second Brown case, 349 U.S. 294, 300 where it 
was held that the matter of school “ personnel” is relevant 
to the effectuation of a desegregated school system. And

solution and stock divestiture decrees. See, e.g., United States 
v. Crescent Amusement Co., 323 U.S. 173, 189, and cases cited. 
And early in the history of the National Labor Relations Act, it 
was recognized that disestablishment of an employer-dominated 
labor organization “ may be the only effective way of wiping the 
slate clean and affording the employees an opportunity to start 
afresh in organizing for the adjustment of their relations with the 
employer.” N.L.R.B. v. Newport News Shipbuilding <& Dry Dock 
Co., 308 U.S. 241, 2501; see also American Enka Corp. v. N.L.R.B., 
119 F. 2d 60, 63 (C.A. 4) ; Western Electric Co. v. N.L.R.B., 147 
F. 2d 519, 524 (C.A. 4). In Sperry Gyroscope Co. Inc. v. N.L.R.B., 
129 F. 2d 922, 931-932 (C.A. 2), Judge Jerome Frank compared 
N.L.R.B. orders requiring disestablishment of employer-dominated 
unions to “ the doctrine of those cases in which a court of equity, 
without relying on any statute, decrees the sale of assets of a cor­
poration although it is a solvent going concern, because the past 
and repeated unconscionable conduct of dominating stockholders 
makes it. highly improbable that the improper use of their power 
will ever cease” (citing cases).



19

see, Mapp v. Board of Education of the City of Chat­
tanooga, 319 F. 2d 571, 575-576 (C.A. 6).21

C. The defendants should be enjoined without further delay 
from continuing to maintain and operate a bi-racial school 
system.

The fact that in 1964, ten years after the Supreme Court’s 
first school desegregation decision, there is still a bi-racial 
school system in Fairfax County reflects a continuing dis­
regard by county school authorities of their obligation to 
comply with the Federal Constitution.22 By continuing to

21 The motion for further relief filed in the District Court by the 
plaintiffs in Civil Action No. 1967 specifically alleged racial dis­
crimination in the employment and assignment of principals, 
teachers and administrative personnel in the Fairfax County 
school system. Appellants believe, for the reasons stated infra, 
pp. 21-25, that the motion was properly before the District 
Court and should have been given consideration. Appellants 
submit that, in any event, the issue was fully litigated at the hear­
ing through the presentation of evidence and in the argument of 
counsel. Moreover, the District Judge ruled at the hearing that, 
in view of the school board’s consent to the proceeding being de­
cided on the basis of the record which had been made (A. 58), 
he would consider all of the evidence and all of the exhibits which 
had been submitted (ibid.). The situation thus presented should 
have been treated by the District Court as falling under Rule 15(b) 
of the Rules of Civil Procedure, which provides: “ When issues 
not raised by the pleadings are tried by express or implied consent 
of the parties, they shall be treated in all respects as if they had 
been raised in the pleadings.” By denying the relief sought as to 
teaching and administrative personnel on the ground that the 
issue was beyond the scope of the pleading (A. 63), the District 
Court, at the very least, failed to give proper regard to the mean­
ing and intent of Rule 15(b). 3 Moore’s Federal Practice, para­
graph 15.13, pp. 847-848. Hasselbrink v. Speelman, 246 F. 2d 34, 
39 (C.A. 6) ; Cathedral Estates v. Taft Realty Corp., 228 F. 2d 
85, 87 (C.A. 2); Glens Falls Indemnity Co. v. United States, 229 
F. 2d 370, 375 (C.A. 9).

22 See the Supremacy Clause, Article VI.



20
maintain and operate seven all-Negro schools, the county 
has excluded countless Negro children from the mainstream 
of an expanding and dynamic educational program. The 
irrational and unjust nature of this policy is emphasized, 
if by nothing else, the fact that Negro children comprise 
only 3.1 percent of the total number of school children in 
the county. Further, at the time of the District Court 
hearings in September 1963, there were only 2101 children 
remaining in the Negro schools. The record shows that 
in the three-year period from 1960 to 1963 pupil enrollment 
in the county system increased 50 percent. Since 1960, 
the rate of increase in the number of pupils has been about 
10,000 a year {supra, pp. 6-7). If the county is able to adapt 
its school system to changes of this magnitude, surely there 
can be no doubt as to its ability to integrate 2101 Negro 
children into a unitary system. This is particularly so in 
view of the fact that the classroom space to house the 2101 
children already exists, and all that is needed is a redistri­
bution or reassignment of children to existing schools on 
the basis of geographic or other considerations, instead 
of race.

In short, there is no justification for Fairfax County to 
delay further in completing the transition to a fully de­
segregated school system. Negro residents of the county 
have already waited ten years for realization of their con­
stitutional rights, and the school board has already taken 
undue advantage of whatever delay was contemplated by 
the concept of “ deliberate speed.” Jackson v. School Board 
of City of Lynchburg, Virginia, supra, 321 F. 2d at 232-233 
(C.A. 4), quoting Watson v. City of Memphis, 373 U.S. 
526, 529-530; and see Goss v. Board of Education of the 
City of Knoxville, 373 U.S. 683, 689. Appellants submit, 
therefore, that they should be granted the injunctive relief 
they seek forthwith. Davis v. Board of School Commis­
sioners of Mobile County, Alabama, 318 F. 2d 63, 64 (C.A. 
5), application for stay denied, 84 S. Ct. 10, 11-12, 322 F. 2d 
356, 358-359 (C.A. 5) certiorari denied, 375 U.S. 894; Stell v.



21

Savannah County Board of Education, 318 F. 2d 425, 428 
(C.A. 5) ; Armstrong v. Board of Education of City of 
Birmingham, Alabama, 323 F. 2d 333, 338-339 (C.A. 5) ; 
Anderson v. City of Albany, 321 F. 2d 649, 658 (C.A. 5); 
United States v. Bogan, 314 F. 2d 767, 775 (C.A. 5); cf. 
Bailey v. Patterson, 369 U.S. 31, 34.28

H. THE MOTION FOR FURTHER RELIEF FILED BY THE PLA IN ­
TIFFS IN THE ORIGINAL SCHOOL DESEGREGATION CASE 
(CIVIL ACTION NO. 1967) WAS PROPERLY BEFORE THE 
DISTRICT COURT AND SHOULD HAVE BEEN GIVEN 
CONSIDERATION.

The District Court erred in refusing to consider the mo­
tion for further relief filed by persons who had been plain­
tiffs in the original school desegregation case (Civil Action 
No. 1967). That motion alleged specific facts showing that 
the defendants continue to maintain and operate a bi-racial 
school system, and it also contained allegations of discrimi­
nation in the assignment of teachers and other personnel 
(A. 27, 30). The prayer requested relief from these dis­
criminatory practices {ibid.). Appellants urged the Dis­
trict Court to recognize this motion as being properly be­
fore it on either of two grounds: (1) that it was a proper 
motion under Buie 60(b) of the Buies of Civil Procedure 
to obtain relief from a final order entered in Civil Action 
No. 1967; or (2) that the previous actions of the District 
Court indicated that it considered Civil Action No. 1967 to 
be still pending on its docket (A. 54-57). As we show 
below, the District Court erred in failing to accept the cor­
rectness of this argument.

This Court recently had occasion to point out that the 
Supreme Court in the 1954 school cases contemplated that

23 The fact that five of the Negro infants involved herein had to 
resort to the District Court’s processes in the spring of 1963, before 
the school board would permit them to transfer out of segregated 
schools, demonstrates the error of the District Court’s denial of 
injunctive relief, regardless of whether other factors evidence a 
dual school system. Cf. Bradley v. School Board of City of 
Richmond, Virginia, supra, 317 F. 2d at 437 (C.A. 4).



the process of transition from segregation to racially de­
segregated school systems should be under the continuing 
supervision of the district courts. Brooks v. County School 
Board of Arlington County, 324 F. 2d 303, 308, citing 
Brown v. Board of Education of Topeka, 347 U.S. 483, 349 
U.S. 294, 301; and Cooper v. Aaron, 358 U.S. 1, 7. In the 
Brooks case the Court reversed the District Court’s dis­
solution of an outstanding injunction against racial dis­
crimination in the public schools of Arlington County, Vir­
ginia. The result reached in the Brooks case is consistent 
with similar handling of school desegregation cases by the 
Court of Appeals for the Fifth Circuit. That court has 
emphasized repeatedly that the plain mandate of the Su­
preme Court, particularly in the second Brown decision 
(349 U.S. at 301), requires the district courts to retain 
jurisdiction of school desegregation cases throughout the 
period of transition, and to remain open to modifications 
of their orders as changed circumstances warrant. Ross 
v. Dyer, 312 F. 2d 191,194 (C.A. 5); Bush v. Orleans Parish 
School Board, 308 F. 2d 491, (on rehearing) 503 (C.A. 5); 
Augustus v. Board of Public Instruction of Escambia 
County, Florida, 306 F. 2d 862, 869-870 (C.A. 5).

The foregoing authorities point to the propriety of the 
contention made herein, that the motion for further relief 
filed in Civil Action No. 1967 was properly cognizable by 
the District Court under Rule 60(h). Judicial precedents 
clearly establish that a court of equity has continuing juris­
diction over its own decree, and that it cannot “ disregard 
significant changes in law or facts if it is satisfied that what 
it has been doing has been turned through changing cir­
cumstances into an instrument of wrong.” System Feder­
ation No. 91 v. Wright, 364 U.S. 642, 646-651; and see 
United States v. Jordan, 186 F. 2d 803, 805-806 (C.A. 6). 
At the time of the decision in the original suit in 1960, 
the plaintiffs in Civil Action No. 1967 were denied the full 
injunctive relief they sought, because Judge Bryan found 
that “ the School Board and the Superintendent readily



23

recognize their obligation to avoid discrimination for race 
or color and have demonstrated a purpose to adhere to this 
duty” (A. 11). By the spring of 1963, however, it became 
apparent that the defendants were not adhering to their 
duty—they had failed to eliminate the bi-racial school 
system in Fairfax County and they had arbitrarily denied 
permission to five Negro children to transfer out of segre­
gated schools. Under these circumstances, it was appro­
priate for the original plaintiffs to move for further relief, 
and the District Court should have treated their motion as 
one properly made under Rule 60(b), clause (5) or (6). 
7 Moore’s Federal Practice, paragraphs 60.26[4]—60.28[3], 
60.38 [3], pp. 283-330, 642-644.

Nor does a different conclusion follow from the fact 
that the Judge Bryan’s order of November 1, 1960, re­
cited the Civil Action No. 1967 was “ stricken from the 
docket” (A. 14). Whatever significance such phrase might 
have under other circumstances, there is no basis for as­
suming that it deprives a court of equity of jurisdiction 
over its own decree—particularly, in light of the judicial 
precedents in school desegregation proceedings, and in 
view of the express provisions of Rule 60(b).

It is to be noted, furthermore, that despite the provision 
in Judge Bryan’s order that Civil Action No. 1967 be 
stricken from the District Court’s docket, it is doubtful, in 
view of subsequent events, if that mandate was ever final­
ized. For within 10 days after entry of Judge Bryan’s 
order, the plaintiffs filed a motion for new trial on part of 
the issues pursuant to Rule 59 of Rules of Civil Procedure 
(A. 14-15). The motion urged the Court to reconsider its 
denial of a general injunction against the continuation of 
a racially segregated school system in Fairfax County. 
That motion, however, was never acted upon—a fact which 
is confirmed by the docket entries of the District Court 
(A. 1). So long as the motion for a new trial lay before 
the Court without being acted upon, an appeal could



24

not have been taken by either party from Judge Bryan’s 
order, for the motion destroyed the finality of the order. 
6 Moore’s Federal Practice, paragraphs 54.12[2], 60.03[3], 
pp. 121-124, 4021-4022.

Moreover, the District Court itself, despite its purported 
striking of Civil Action No. 1967 from the docket on No­
vember 1, 1960, three months later, on February 16, 1961, 
received for filing in the same case a motion for further 
interlocutory and permanent injunctive relief in which 
the plaintiffs requested that the Court restrain the defend­
ants from enforcing in public schools under their super­
vision and control any policy or regulation requiring racial 
segregation in interscholastic sports or other social activ­
ities (A. 1, 18, 26). As a result of subsequent recision by 
the defendants of the discriminatory policy complained of, 
the plaintiffs thereafter moved to withdraw their motion 
for further relief {ibid.). The plaintiffs’ motion was 
granted by an order of the District Court entered April 4, 
1961 (A. 1).

In sum, plaintiffs submit that the District Court’s recita­
tion that it was striking Civil Action No. 1967 from its 
docket was of no legal effect, and did not serve to bar the 
plaintiffs in that case from subsequently moving, as they 
did, for further relief.24 This conclusion is supported by 
the relevant judicial authorities, as well as Federal Rule 
60(b). Moreover, the District Court’s own handling of 
the case following its purported striking of the matter from 
the docket is inconsistent with the view that the same 
cause could not serve as a proper vehicle for the original 
plaintiffs to seek further relief. For the foregoing reasons, 
appellants submit that the motion for further relief in Civil 
Action No. 1967 was properly before the District Court,

24 Since all of the Negro infants who joined in the motion for 
further relief were attending integrated schools of their choice 
{supra, p. 2, n. 3), their standing to commerce a new action in the 
District Court would undoubtedly have been challenged.



25

and the Court erred in not giving consideration to its alle­
gations and prayer for relief.25

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the judgment of the District Court should be reversed 
and the case remanded with the direction that the District 
Court grant the injunctive relief prayed for forthwith.

J ames M. N abeit, I I I  
10 Columbus Circle 
New York 19, N. Y.

S. W . T ucker 
214 E. Clay Street 
Richmond 19, Virginia

Otto L. T ucker 
901 Princess Street 
Alexandria, Virginia

Attorneys for Appellants
Of Counsel:

A llison W . B rown , J r.
Suite 705
1000 Connecticut Avenue, N.W.
Washington 6, D. C.

April 1964

25 As shown supra, p. 4, there was no indication given at the 
hearing that the Court would not consider the motion for further 
relief filed in Civil Aetion No. 1967, and at no time did the Court 
explicitly dismiss the motion. Accordingly, prior to the Court’s 
order of March 3, 1964, denying injunctive relief against the 
defendants, no order had been issued which would have been 
appealable. See Rule 54(b) of the Rules of Civil Procedure.