Green v. City of Roanoke School Board Appendix to Appellants' Brief

    I n  t h e

In itsb (Urntrt nt Appmis
F or t h e  F o u rth  C ircu it  

No. 8534

Cy n t h ia  D. Gr e e n , an infant, and R ev. E m m ett  L. Gr e e n , 
her father and next friend, et al.,

Appellants,

S chool B oard op t h e  C ity  of R oanoke, a body corporate; 
E. W. R u sh t o n , Superintendent, Roanoke City Public 
Schools; and E. J .  Oglesby, E dward T. J u st is , and 
A lfred  L. W ing o , individually and constituting the 
Pupil Placement Board of the Commonwealth of Vir­
ginia, Richmond, Virginia,

Appellees.

APPENDIX TO APPELLANTS’ BRIEF

R e u b e n  E . L awson
19 Gilmer Avenue, N.W. 
Roanoke 17, Virginia

J ack Greenberg  
J ames M. N abrit, III 

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants.



INDEX TO APPENDIX

PAGE

Relevant Docket Entries ...........................................  la

Complaint ...................................... -.............................. 3a

Motion to Dismiss and Answer ............. ................... 19a

Answer of the Pupil Placement B oard .....................  24a

Excerpts From Transcript of Trial, May 25, 26, 1961 27a

Plaintiffs’ Witnesses:
E. W. Rushton

Direct......................................................  31a
Dorothy L. Gfibney

Direct......................................................  79a
Recalled—-

Direct........... ..................................    114a
B. S. Hilton

Direct...............................................   87a
Recalled—•

Redirect....................................................  191a
Dr. James A. Bayton

Direct......................................................  92a
Redirect.............................   110a

Ernest J. Oglesby
Direct.............................. ...................... - 134a
Cross .......................................... — ......  154a
Redirect........................................... -........ 155a
By the Court.........................................   156a



11

PAGE

Defendants’ Witness:
A. L. Wingo

By the Court........... ................................ 161a
Cross ......................................................  177a

Exhibits Introduced at Trial ......................................  193a
Plaintiffs’ Exhibit A .......    193a
Plaintiffs’ Exhibit H ........   197a
Plaintiffs’ Exhibit J .............................................  200a
Plaintiffs’ Exhibit I .......   201a

Memorandum Opinion.................................................  202a

Plaintiffs’ Objections to Report of Pupil Placement 
Board.......... .............................................................. 212a

Judgment .....................................................................  216a

Notice of Appeal..........................................................  220a



R elevan t D ocket E n tries

1960 

Aug. 20

Aug. 23

Sept. 12 

Sept. 14

Nov- 30

1961 

May 22

Filed complaint, motion for interlocutory injunc­
tion, and plaintiffs’ statement of points and au­
thorities in support of motion for an interlocu­
tory injunction. # # #

# # #
Hearing by Judge John Paul on plaintiffs’ mo­
tion for interlocutory injunction, and defendant 
Roanoke School Board’s oral motion for dis­
missal.
Entered orders this day denying plaintiff’s mo­
tion for interlocutory injunction and defendant 
Roanoke School Board’s oral motion for dis­
missal. Copies cert, to counsel.
Filed answer and motion to dismiss on behalf 
of the School Board of the City of Roanoke and 
E. W. Rushton, Superintendent, with certificate 
of service noted thereon.
Received answer of Pupil Placement Board, with 
cert, of service noted thereon, and the time for 
filing same having expired, endorsed same “prof­
fered for filing September 14, 1960.”
Filed designation by Chief Judge Simon E. 
Sobeloff of Oren R. Lewis to hear this action.

# * *
Filed depositions of Dorothy L. Gibboney, E. W. 
Rushton, B. S. Hilton, J. P. Cruickshank and 
Richard P. Yie on behalf of plaintiffs in sealed 
envelope. Deposition marked “proffered for fil­
ing May 25, 1961 by Leigh B. Hanes, Jr., Clerk.”



2a

Relevant Docket Entries

May 25 Trial by court—continued to May 26, 1961.
May 26 Trial by court concluded—order entered on trial 

proceedings, and exhibits received.
# m *

July 10 Filed memorandum opinion.

Sept. 8 Filed plaintiffs’ objections to report of Pupil 
Placement Board, copy only.

Oct. 4 Order of judgment entered, dated October 4, 1961 
—copies certified to counsel of record (civil order 
book #18, page 44).

Nov. 1 Filed plaintiffs’ notice of appeal from the judg­
ment entered in this cause on October 4, 1961, 
denying injunctive relief. * * *

*  *  #



3a

IN THE UNITED STATES DISTRICT COURT
F oe t h e  W estern  D istrict  of V irg in ia  

R oanoke D ivision

Civil Action No, 1093;

C om plaint

C y n th ia  D. Gr e e n , P aula L, G reen  and A r len e  Y. Gr e e n , 
infants by Rev. Emmett L. Green, their father and 
next friend,

D e n n is  G ordon L ogan, an infant by Farris R. Logan and 
Dorothy Logan, his father and mother and next friend,

W alter L. W h ea to n , III, an infant by  Walter S. Wheaton, 
Jr., his father and next friend,

M elvin  D. F r a n k l in , J r., an infant by Dollie L. Franklin 
and Melvin D. Franklin, his mother and father and next 
friend,

George W. W arren , B everly E. W arren and Carolyn J. 
W arren , infants b y  George Willie Warren and Pearl 
T. Warren their father and mother and next friend,

T heodore B row n , an infant b y  Emma Brown his mother 
and next friend,

J ack T. L ong, J r., B renson  E. L ong and S ylvia E. L ong, 
infants by Jack T. Long and Elizabeth Long their father 
and mother and next friend,

L inda  L. A nderson and M elvin  C. A nderson , III, infants 
by Melvin C. Anderson and Elsie A. Anderson their 
father and mother and next friend,

C urtis L. S trawbridge, an infant by Purcell Strawbridge 
and Marceline Strawbridge his father and mother and 
next friend,



4a

Complaint

M arzennia  G ayle M oore, an infant b y  Zennie Moore, her 
mother and next friend,

N ancy Lee M artin  and P h y llis  D ia n e  M a rtin , infants 
by Vernard Martin, their mother and next friend,

J erome E ric Groan, an infant by James A. Croan, his 
father and next friend,

C h r ist o ph e r  N. K aiser, an infant by Louise E. Kaiser and 
Napoleon D. Kaiser, his mother and father and next 
friend,

B everley A r len e  C olem an , an infant by Jessie Coleman, 
her mother and next friend,

N a n n ie  D orethea  R oberson, R oberta L ouise R oberson, and 
R obert H arry R oberson, infants by Lucille Roberson, 
their mother and next friend,

C ttart.e s  H. P e n n ix , an infant b y  Richard H. Pennix his 
father and next friend,

C harlotte I nez W illia m s , an infant by Charles Williams 
her father and next friend,

R obert Long, an infant b y  Janies Long his father and 
next friend,

and

E m m ett  L . Gr e e n , F arris R . L ogan, D orothy L ogan, 
W alter S. W h ea to n , J r., D ollie L . F r a n k l in , M elvin  
D. F r a n k l in , G eorge W ill ie  W arren , P earl T. W arren , 
E m m a  B row n , J ack T. L ong, E lizabeth  L ong, M elvin  
C. A nderson , E lsie  A . A nderson , P urcell S trawbridge, 
M arceline S trawbridge, Z e n n ie  M oore, V ernard M ar­
t in , J ames A . Croan, L ouise E . K aiser, N apoleon D .



5a

Complaint

K aiser, J essie  Colem an , L u cille  R oberson, R ichard H . 
P e n n ix , C harles W illia m s , J ames L ong,

Plaintiffs,
— Yg—

S chool B oard of t h e  C ity  of R oanoke, a body corporate, 
Roanoke, Virginia,

and

E . W . R u sh t o n , Superintendent, Roanoke City Public 
Schools,

and

E. J. Oglesby, E dward T. J u stis , a n d  A lfred  L. W ingo , 
in d iv id u a lly  a n d  c o n s ti tu tin g  the P u p il  P lacem ent  
B oard of t h e  C o m m onw ealth  of V irg in ia , R ich m o n d , 
V ir g in ia .

1. (a) Jurisdiction of this Court is invoked under Title 
28, United States Code, Section 1331. This action arises 
under Article 1, Section 8, and the Fourteenth Amendment 
of the Constitution of the United States, Section 1, and 
under the Act of 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), as hereafter more fully appears. The matter in 
controversy, exclusive 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 authorized 
by the Act of Congress, Revised Statutes, Section 1979, 
derived from the Act of April 20, 1871, Chapter 22, Sec­



6a

tion 1, 17 Stat. 13 (Title 42, United States Code, Section 
1983), to be commended 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 im­
munities secured by the fourteenth Amendment of the Con­
stitution of the United States and by the Act of 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), providing for the 
equal rights of citizens and of all persons within the juris­
diction of the United States as hereafter more fully appears.

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 City of Roanoke. They 
are within the age limits of eligibility to attend the public 
schools of the said City and possess all qualifications and 
satisfy all requirements for admission to the public schools 
of said City.

3. Adult plaintiffs are Negroes, are citizens of the United 
States and of the Commonwealth of Virginia, and are resi­
dents of and domiciled in the City of Roanoke. They are 
parents or guardians of the infant plaintiffs, and are 
taxpayers of the United States and of the said Common­
wealth and City. All adult plaintiffs having control or 
charge of any unexempted child who has reached his seventh 
birthday and has not passed his sixteenth birthday are re­
quired to send said child to attend school or to receive in­
struction (Code of Virginia, 1950, Title 22, Chapter 12, 
Article 4, Sections 22-251 to 22-256).

Complaint



Complaint

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 the public 
schools of the City of Roanoke and their respective parents 
and guardians, similarly situated and affected with refer­
ence 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, bring this action, pursuant to Rule 23(a) 
of the Federal Rules of Civil Procedure, as a class action 
also on behalf of all other Negro children attending the 
public schools of the City of Roanoke and their respective 
parents and guardians similarly situated and affected with 
reference to the matters here involved.

5. Defendant The City School Board of The City of 
Roanoke, Virginia, exists pursuant to the Constitution and 
laws of the Commonwealth of Virginia as an administrative 
department of the Commonwealth of Virginia, discharging 
governmental functions (Constitution of Virginia, Article 
IX, Section 133, Code of Virginia, 1950, Title 22, Chapter 
1, Sections 22-1, 22-2, 22-5 to 22-9.3, Chapter 6, Article 1, 
Sections 22-45 to 22-58, Chapter 6, Article 2, Sections 22-59 
to 22-79, Chapters 7 to 15, Sections 22-101 to 22-330) ; and 
is declared by law to be a body corporate (Code of Virginia, 
1950, Chapter 6, Article 2, Section 22-63).

6. Defendant E. W. Rushton is Superintendent of 
Schools for Roanoke City, Virginia. He holds office pur­
suant to the Constitution and Laws of the Commonwealth 
of Virginia as administrative officer of the Public free 
school system of Virginia (Constitution of Virginia, Article 
IX, Section 133; Code of Virginia, 1950, Title 22, Chapter 1,



8a

Sections 22-1, 22-2, 22-5 to 22-9.3, Chapter 4, Sections 22-31 
to 22-40, Chapter 6 to 15, Sections 22-45 to 22-330). He is 
under the authority, supervision and control of, and acts 
pursuant to, the orders, policies, practices, customs and 
usages of defendant The School Board of the City of 
Roanoke. He is made a defendant herein in his official 
capacity.

7. 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 Assemblv of 
Virginia has established a system of public free schools 
in the Commonwealth of Virginia according to a plan set 
out in Title 22, Chapter 1 to 15, inclusive, of the Code of 
Virginia, 1950. The establishment, maintenance and ad­
ministration 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).

8. On May 17, 1954, the Supreme Court of the United 
States declared the principle that State-imposed racial 
segregation is violative of the Fourteenth Amendment of 
the Constitution of the United States. Pursuant to said 
decision, as recognized and applied by this Court, formal 
applications have heretofore been made to defendants in

Complaint



9a

behalf of infant plaintiffs for admission, enrollment and 
education in designated free schools under the jurisdiction 
and control of defendants, to which said infant plaintiffs, 
but for the fact that they are Negroes, in all other respects 
are qualified for admission and enrollment. However, de­
fendants and each of them, have failed and refused to act, 
favorably upon these applications and purposefully, will­
fully, and deliberately continue to pursue and enforce the 
aforesaid policy, practice, custom and usage of racial segre­
gation against infant plaintiffs and all other children 
similarly situated and affected.

9. Defendants will continue to pursue and enforce against 
plaintiffs, and all other children similarly situated, the 
policy, practice, custom and usage specified in Paragraph 8, 
supra, and will continue to deny to infant Negro Plaintiff’s 
admission, enrollment or education in any public school 
under defendant’s supervision and control operated for 
children who are not Negroes, unless restrained and en­
joined by this Court from so doing.

10. The public schools of the City of Roanoke, Virginia 
are under the control and supervision of defendants acting 
as administrative agencies of the Commonwealth of Vir­
ginia. Defendant, The School Board of the City of Roanoke, 
Virginia, is empowered and required to establish and main­
tain an efficient system of public free schools in said City 
(Code of Virginia, 1950, as amended, Sections 22-1, 22-5); 
to provide suitable and proper school buildings, furniture 
and equipment, and to maintain, manage and control the 
same (Code of Virginia, 1950, as amended, Section 22-97); 
to determine the studies to be pursued, the methods of 
teaching, and the government to be employed in the schools

Complaint



10a

(Code of Virginia, 1950, as amended, Sections 22-97, 22- 
233 to 22-240.1); to employ teachers (Code of Virginia, 
1950, as amended Sections 22-203); to provide for the 
transportation of pupils (Code of Virginia, 1950, as 
amended, Sections 22-276 to 22-277, 22-282 to 22-294); to 
enforce the school laws (Code of Virginia, 1950, as amended 
Section 22-97); and to perform numerous other duties, 
activities and functions essential to the establishment, main­
tenance and operation of the schools of said City (Code of 
Virginia, 1950, as amended, Sections 22-1 to 22-10, 22-30 to 
22-44, 22-45 to 22-55, 22-57 to 22-58, 22-89 to 22-100, 22-101 
to 22-166, 22-188.3 to 22-210, 22-212 to 22-246, 22-248 to 
22-277, 22-279 to 22-330).

11. Defendants E. J. Oglesby, Edward T. Justis and 
Alfred Wingo, constituting the Pupil Placement Board of 
the Commonwealth of Virginia, purportedly are invested 
with all power of enrollment or placement of pupils in, 
and determination of school attendance districts for, the 
public schools in Virginia (Code of Virginia, 1950, as 
amended, Section 22-232.1), and to perform the numerous 
other duties, activities and functions pertaining to the 
enrollment or placement of pupils in, and the determination 
of school attendance districts for, the public schools of 
Virginia (Code of Virginia, 1950, as amended, Sections 22- 
232.3 to 22-232.4).

12. Each school child who has heretofore attended a 
public school and who has not moved from a county, city 
or town in which he resided while attending such school is 
required to attend the same school which he last attended 
until graduation therefrom unless enrolled in a different 
school by the Pupil Placement Board (Code of Virginia,

Complaint



11a

1950, as amended, Section 22-232.6). This provision per­
petuates the pre-existing requirement, policy, practice, 
custom and usage of the Commonwealth of Virginia of 
racial segregation in the public schools thereof save as to 
such children as may be able, for good cause shown, to 
establish an exception thereto by pursuing the procedure 
specified in Sections 22-232.8 to 22-232.14.

13. Any child desiring to enter a public school for the 
first time, and any child who is graduated from one school 
to another within a school division or who transfers to or 
within a school division, or any child who desires to enter 
a public school after the ending of the session, is required 
to apply to the Pupil Placement Board for enrollment and 
is required to enroll in such school as the Board deems 
proper (Code of Virginia, 1950, as amended, Section 22- 
232.7), and if aggrieved thereby is required to pursue the 
procedure specified by law (Code of Virginia, 1950, as 
amended, Sections 22-232.8 to 22-232.14).

14. The procedure specified in Sections 22-232.8 to 22- 
232.14 is expensive prolix and inadequate to secure and 
protect the rights of plaintiffs, and others similarly situated, 
seeking relief from the imposition of segregation require­
ments, policies, practices, customs or usages based on race 
or color.

15. Defendants endorse, maintain, operate and perpetu­
ate separate public schools for Negro and white children, 
respectively and deny infant plaintiffs and all other Negro 
children because of their race or color, assignment, enroll­
ment and admission to an education in any public school 
operated for white children, and compel infant plaintiffs

Complaint



12a

and all other Negro children, because of their race or color, 
to attend public schools set apart and operated exclusively 
for Negro children, pursuant to a policy, practice, custom 
and usage of segregating, on the basis of race or color, 
all children attending the public schools of said City.

16. Timely application on behalf of each infant plaintiff 
was made to defendants for admission for the 1960-61 school 
session to a public school in the City of Roanoke, Virginia 
heretofore and now maintained for and attended by white 
persons only, but defendants, acting pursuant to a policy, 
practice, custom and usage of segregating school children 
on the basis of race or color, denied the application of each 
on account of race or color.

17. The aforesaid action of defendants denies infant 
plaintiffs and each of them, and others similarly situated, 
their liberty without due process of law and the equal pro­
tection of the laws secured by the Fourteenth Amendment 
of the Constitution of the United States, Section 1, and 
the rights secured by Title 42, United States Code, Section 
1981.

18. Defendants will continue to pursue against plaintiffs, 
and all other Negro children similarly situated, the policy, 
practice, custom and usage hereinbefore specified and will 
continue to deny them assignment, admission, enrollment 
or education to and in any public school operated for 
children residing in said City who are not Negroes unless 
plaintiffs are afforded the relief sought herein.

19. Plaintiffs and those similarly situated and affected 
are suffering irreparable injury and are threatened with

Complaint



13a

irreparable injury in the future by reason of the policy, 
practice, custom and usage and the actions of the defen­
dants herein complained of.

W h erefo re , p la in tif fs  re s p e c tfu lly  p r a y  th a t ,  u p o n  th e  fil­
in g  o f th is  co m p la in t, a s  m a y  a p p e a r  proper a n d  co n v en ien t 
to th e  Court:

(A) This Court enter judgment declaring that:
(1) The enforcement, operation or execution of Sec­
tion 22-232.6 Code of Virginia, 1950, as amended, 
which by its terms and in its operation perpetuates 
the pre-existing requirement, policy, practice, cus­
tom and usage of the Commonwealth of Virginia of 
segregating, on the basis of race or color, children 
attending the public schools of the Commonwealth, 
deprives infant plaintiffs of their rights to non- 
segregated education secured by the Due Process 
and Equal Protection Clauses of Section 1 of the 
Fourteenth Amendment of the Constitution of the 
United States;
(2) The enforcement, operation or execution of Sec­
tions 22-232.8 to 22-232.14, Code of Virginia, 1950, 
as amended, which by their terms and in their 
operation require incoming, graduating and trans­
ferring public school children to pursue the proce­
dure thereby specified, deprives infant plaintiffs of 
their rights to non-segregated education secured by 
the Due Process and Equal Protection Clauses of 
Section 1 of the Fourteenth Amendment of the Con­
stitution of the United States;
(3) The procedure prescribed by Sections 22-232.3 
to 22-232.14, Code of Virginia, 1950, as amended,

Complaint



14a

is inadequate to secure and protect the rights of 
infant plaintiffs to non-segregated education and 
need not be pursued as a condition precedent to 
judicial relief from the imposition of segregation 
requirements based on race or color; and
(4) The action of defendants E. J. Oglesby, Edward 
T. Justis, and Alfred L. Wingo, in administering 
and enforcing the provisions of Sections 22-232.5 to 
22-232.14, Code of Virginia, 1950, as amended, so 
as to preserve, perpetuate and effectuate the policy, 
practice, custom and usage of assigning children, 
including infant plaintiffs, to separate public schools 
on the basis of their race or color, deprives infant 
plaintiffs of their liberty without due process of 
law and equal protection of the laws secured by Sec­
tion 1 of the Fourteenth Amendment of the Con­
stitution of the United States.

(B) This Court enter a temporary and permanent in­
junction restraining and enjoining the defendant 
School Board of the City of Roanoke and defendant 
E. W. Rushton, Superintendent of Schools of the 
City of Roanoke, Virginia and each of them, their 
successors in office, and their agents and employees 
and all persons in active concert and participation 
with them, forthwith, from any and all action that 
regulates or affects, on the basis of race or color, 
the admission, enrollment or education of the in­
fant plaintiffs, or any other Negro child similarly 
situated, to and in any public school operated by 
the defendants.

(C) In the event defendants request any delay in effect­
ing full and immediate compliance with Paragraphs

Complaint



Complaint

(a) and (b), supra, and for bringing about a transi­
tion to a school system not operated on the basis of 
race, direct defendants to present to this Court, 
within ten (10) days a complete and comprehensive 
plan, adopted by them which is designed to effect 
compliance with Paragraphs (a) and (b), supra, at 
the earliest practicable date, and which shall pro­
vide for a prompt and reasonable start toward de­
segregation of the public schools under defendants’ 
jurisdiction and control and a systematic and effec­
tive method for achieving such desegregation with 
all deliberate speed; and that following the filing 
of such plan with this Court, a further hearing will 
be held in this cause, at which time defendants shall 
have the burden of establishing that such delay as is 
requested is necessary in the public interest and is 
consistent with good faith compliance at the earliest 
practicable date. \ C  '-’J  •

(D) Allow plaintiffs their costs herein, and reasonable 
attorney’s fee for their counsel, and grant such 
further, other, additional, or alternative relief as 
may appear to the Court to be equitable and just 
in the premises.

Cy n th ia  D. Gre e n , P aula L. Green  and 
A r len e  Y. G r een , infants by Emmett 
L. Green, their father and next friend,

D e n n is  Gordon L ogan, an infant by Farris 
R. Logan and Dorothy Logan, his 
father and mother and next friend,

W alter L. W h ea to n , III, an infant by 
Walter S. Wheaton, Jr., his father 
and next friend,



16a

M elv in  1). F r a n k l in , J r., an infant by 
Dollie L. Franklin and Melvin D. 
Franklin, his mother and father and 
next friend,

George W. W arren , B everly E. W arren , 
and Carolyn J. W arren , infants by 
George Willie Warren and Pearl T. 
Warren, their father and mother and 
next friend,

T heodore B row n , an infant by Emma 
Brown his mother and next friend,

J ack T. L ong, J r ., B renson  E. L ong and 
S ylvia K. L ong, infants by Jack T. 
Long and Elizabeth Long, their father 
and mother and next friend,

L inda  L . A nderson and M elvin  C. A nder­
son , III, infants b y  Melvin C. Ander­
son, and Elsie A. Anderson their 
father and mother and next friend,

C urtis  L. S trawbridge, and infant by Pur­
cell Strawbridge and Marceline 
Strawbridge his father and mother 
and next friend,

M arzennia  Gayle M oore, an infant by 
Zennie Moore her mother and next 
friend,

N ancy  L ee  M artin  and P h y llis  D iane  
M a rtin , infants b y  Yernard Martin 
their mother and next friend,

Complaint



17a

J erome E ric Groan, an infant by James 
A. Groan bis father and next friend,

Ch r isto ph er  N. K aiser, an infant by 
Louise E. Kaiser and Napoleon D. 
Kaiser, Ms mother and father and 
next friend,

B everley A rlen e  Colem an , an infant by 
Jessie Coleman her mother and next 
friend,

N a n n ie  D oretha  R oberson, R oberta 
L ouise R oberson and R obert H arry 
R oberson, infants by Lucille Rober­
son their mother and next friend,

C harles H. P e n n ix , an infant by Richard 
H. Pennix his father and next friend,

C harlotte I n ez  W illia m s , an infant by 
Charles Williams her father and next 
friend,

Robert Long, an infant by James Long 
his father and next friend,

E m m ette  L . Gr e e n , P arris R. L ogan, 
D orothy L ogan, W alter S. W h ea to n , 
J r ., D ollie L . F r a n k l in , M elvin  D . 
F r a n k l in , George W il l ie  W arren , 
P earl T. W arren , E m m a  B row n , 
J ack T. L ong, E liza beth  L ong, M e l ­
vin  C. A nderson , E lsie  A . A nderson , 
P urcell S trawbridge, M arceline  
S trawbridge, Z e n n ie  M oore, Y ernard 
M a rtin , J ames A . Croan, L ouise E .

Complaint



18a

K aiser, N apoleon D. K aiser, J essie 
Colem an , L u cille  R oberson, R ichard 
H. P e n n ix , Charles W illia m s , J ames 
L ong,

Complaint

By / s /  R eu ben  E. L awson 
Counsel for Plaintiffs

Reuben E. Lawson 
19 Gilmer Avenue, Northwest 
Roanoke, Virginia



19a

[ caption o m itted]

Defendants, School Board of the City of Roanoke and 
E. W. Rushton, move the court to dismiss the complaint 
on the following grounds:

(1) It fails to state a claim upon which relief may be 
granted in that there are no allegations of fact supporting 
the pleader’s conclusion that the denial of the individual 
plaintiffs’ applications for school enrollment was on ac­
count of their race or color. The admitted enrollment of 
nine Negro pupils in the same schools for which plaintiffs 
seek admission negates the allegations of a purpose or 
policy to exclude Negroes as a class from these schools.

(2) The individual plaintiffs have failed to exhaust the 
administrative remedies provided by Chapter 12, Article 
1.1 of the Code of Virginia, 1950, as amended. Their 
right to do so still exists, and the remedies are adequate.

(3) In view of the peculiar circumstances of this case, 
the court should exercise its discretionary power to decline 
jurisdiction and should relegate the plaintiffs to the judicial 
review provided in the state courts unless and until it be­
comes apparent that the remedies there provided are in­
adequate to protect plaintiffs’ constitutional rights.

A nsw er

Without waiving their motion to dismiss, the defendants, 
School Board of the City of Roanoke and E. W. Rushton, 
answer the complaint with specific reference to the num­
bered paragraphs thereof as follows:

M otion  to  D ism iss and A nsw er



20a

(1) The allegations of paragraph (1) as to jurisdiction 
are negated by subsequent allegations in the complaint 
which affirmatively show that plaintiffs have failed to ex­
haust their administrative remedies in the Pupil Place­
ment Board.

(2) The allegations of paragraph (2) are admitted.

(3) The allegations of paragraph (3) insofar as they 
are within the knowledge of these defendants are admitted.

(4) The allegations of paragraph (4) are denied. These 
defendants specifically allege that these plaintiffs cannot 
maintain a class action because they are not representative 
of the alleged class and for other reasons hereinafter al­
leged.

(5) The allegations of paragraph (5) are admitted.

(6) The allegations of paragraph (6) are admitted.

(7) The allegations of paragraph (7) are admitted.

(8) Defendants admit that infant plaintiffs formally ap­
plied for admission to certain public schools in the City 
of Roanoke and that they were assigned to other schools 
than those applied for. All other allegations of paragraph 
(8) are specifically denied and these defendants specifically 
allege that the denial of these applications was based on 
considerations of educational policy, pupil welfare, and 
school administrative needs not related to the infant plain­
tiffs’ race or color.

(9) The allegations of paragraph (9) are categorically 
denied.

Motion to Dismiss and Answer



21a

(10) The allegations of paragraph (10) are admitted.

(11) The allegations of paragraph (11), exclusive of 
implications arising from the use of the word “pur­
portedly”, are admitted.

(12) The allegations of the first sentence of paragraph 
(12) are admitted. The pleader’s conclusion in the second 
sentence thereof is denied.

(13) The allegations of paragraph (13) are admitted.

(14) The allegations of paragraph (14) are denied.

(15) The allegations of paragraph (15) are denied and 
are manifestly untrue, as nine Negro children are presently 
enrolled in schools predominantly attended by white chil­
dren.

(16) These defendants admit, as alleged in paragraph 
(16), that infant plaintiffs applied for and were denied 
admission to certain public schools in the City of Roanoke. 
The pleader’s conclusion that the applications were denied 
for the reasons stated in this paragraph is categorically 
denied.

(17) Paragraph (17) states an erroneous conclusion of 
law and requires no answer.

(18) The allegations of paragraph (18) are denied in 
toto.

(19) The allegations of paragraph (19) are denied in 
toto.

And for further answer to the complaint these defendants 
make the following allegations of fact:

Motion to Dismiss and Answer



22a

(a) For a period of a great many years prior to the 
filing of the applications of the infant plaintiffs in May of 
1960, the School Board of the City of Roanoke had devoted 
itself to a concerted effort to maintain good race relation­
ships in the public school system and, pursuant to that 
policy, had desegregated teachers’ meetings, the annual 
Science Fair, and other school activities. Prior to the filing 
of the applications of the infant plaintiffs and 11 other 
Negro pupils in May of 1960, no application had thereto­
fore been received from any Negro pupils desiring admis­
sion to schools predominantly attended by white children.

(b) For many years the School Board of the City of 
Roanoke has had a member of the Negro race on the board.

(c) At no time has the School Board or the superinten­
dents of the Roanoke City school system adopted a policy 
by resolution or otherwise requiring the continued segrega­
tion of the races in the public schools.

(d) Of the 39 Negro pupils who applied in May of 1960 
for admission to schools previously attended exclusively 
by white pupils, the Pupil Placement Board by order en­
tered August 15, 1960, granted the application of 9, which 
9 Negro pupils are presentely enrolled in three schools 
previously attended exclusively by white children. Two of 
the remaining 30 Negro pupils seeking admission to the 
three schools in question are not parties to the present 
suit and are presumptively satisfied with the assignments 
made by the Pupil Placement Board. The 28 infant plain­
tiffs were assigned to schools attended only by Negro 
pupils for reasons based on educational policy, pupil wel­
fare and the school administrative needs in the City of

Motion to Dismiss and Answer



23a

Motion to Dismiss and Answer

Roanoke, and these defendants specifically deny that the 
applications of the infant plaintiffs, or of any of them, 
were denied on account of their race or color.

Respectfully,

R an G. W h it t l e  
S idney  F. P arham , J r.

Attorneys for the above named defendants

Ran G. Whitte, City Attorney 
Municipal Building 
Roanoke, Virginia
Sidney F. Parham, Jr.
301 Boxley Building 
Roanoke, Virginia

(Certificate of Service omitted.)



24a

[ caption  o m itted]

For their joint and several answer to the Complaint in 
these proceedings, in so far as advised material and proper, 
the defendants E. J. Oglesby, Edward T. Justis and Alfred 
L. Wingo say:

1— Strict proof of all of the allegations of paragraphs 1, 
2, 3 and 4 of the Complaint is called for.

2— That E. W. Rushton is Division Superintendent of 
Schools for the City of Roanoke, Virginia, and that these 
defendants constitute the Pupil Placement Board of the 
Commonwealth of Virginia, is admitted.

3— All of the other allegations of the Complaint are 
denied or constitute a recital of laws and legal conclusions 
as to which no answer is required.

F u r t h e r  A n sw e r in g :

4— A rule and regulation of the Pupil Placement Board, 
generally applicable in all cases and duly adopted with­
out regard to race, color or creed, is to the effect that no 
pupil shall be transferred from one school to another in 
the absence of a favorable recommendation by local school 
officials, such rule resting upon the necessity for attaining, 
as between these defendants and the local school officials, 
orderly administrative proceedings in the operation of the 
public schools. There has been no such recommendation in 
the case of any of the plaintiffs.

5— These defendants deny that they have enrolled or 
placed any of the plaintiffs in, or denied requested transfer 
to, public schools on the sole ground of race or color in 
contravention of any constitutional rights. These defen­

A nsw er o f  the P u p il P lacem en t B oard



25a

dants aver, on the contrary, that they have attempted to 
enroll each pupil so as to provide for the orderly adminis­
tration of public schools, the competent instruction of the 
pupils enrolled and the health, safety and general welfare 
of such pupils, in strict accordance with law governing and 
controlling their actions.

6— They further aver that they are under no obligation 
or compunction to promote or to accelerate the mixing* of 
the races in the public schools; that no court is constitu­
tionally empowered to direct the mixing of the races in the 
public schools; that no negro child or white child or child 
of any other race has the right to attend a specific school 
merely because he is negro or white or a member of any 
other race; that in the placing of over 450,000 pupils in the 
public schools of the Commonwealth of Virginia, an in­
finitesimal number of complaints has been made to this 
Board by any person on the ground of racial discrimina­
tion ; that voluntary segregation of the races is lawful and 
the normal wish of the parents and children of the over­
whelming majorities of both the negro and white races is, 
in general, in accord with the welfare of the children of 
each race, is not the proper concern of any court, and that 
until appealed to in a specific case, this Board should not 
assume the contrary.

7—  F u rth er  A n sw erin g , that it is also provided by law 
that any party aggrieved by a decision of the Pupil Place­
ment Board may file with it a protest, pursuant to which 
the Board shall conduct a hearing, consider and decide 
each case separately on its merits, which decision enroll­
ing such pupil in the school originally designated or in 
such other school as shall be deemed proper, shall set 
forth the finding upon which such decision is based. That 
the burden of proving discrimination in the placement of

Answer of the Pupil Placement Board



26a

pupils on the sole ground of race or color rests upon the 
one alleging discrimination; that the welfare of each child, 
regardless of race or color, is a factual question to be con­
sidered and decided by this Board after complaint is made, 
hearing held and full evidence concerning all surrounding 
circumstances is made available; and that until such pro­
cedure is pursued no person should be in a position to 
challenge the action of this Board on the ground that it 
has discriminated on the sole ground of race or color. That 
notwithstanding ability, readiness and willingness to afford 
a prompt and full hearing in accordance with law as to 
any specific complaint or grievance, none of the plaintiffs 
has filed any protest with the Pupil Placement Board or 
any of these defendants with respect to any action taken 
by it or them.

W h erefo r e , unless and until this is done and such ad­
ministrative remedies have been exhausted, the plaintiffs 
should be denied relief.

E . J .  O glesby 
E dward T. J ustis  
A lfred  L. W ingo ,

Constituting the Members of the 
Pupil Placement Board of the 
Commonwealth of Virginia 

by Counsel

A. B. S cott, of
Ch r ist ia n , M arks, S cott & S pic er ,

Counsel for Pupil Placement Board 
1309 State-Planters Building 

Richmond 19, Virginia.

Answer of the Pupil Placement Board

(Certificate of Service omitted.)



E xcerp ts F ro m  T ra n sc rip t o f T ria l, May 2 5 , 2 6 , 1961
# # % #

Mr. Lawson: We are the attorneys for all of the Plain­
tiffs.

At this point, sir, I would like to move the Court that 
paragraph 2 and paragraph 3, which have been admitted 
in the Defendants’ answer, he admitted without formal 
proof.

Mr. Parham: No objection.
The Court: So ordered.
Mr. Lawson: If Your Honor please, I should also like 

to move the Court that all of the exhibits, which have been 
agreed to, be admitted, subject to objection at the proper 
time, without formal proof, and we would like to list those 
now.

Mr. Parham: No objection.
Mr. Lawson: Plaintiffs’ Exhibit A will be a letter of 

May 25, accompanied by petition from Reuben Lawson to 
the Superintendent of Schools and the Roanoke County 
School Board.

—3—
Plaintiffs’ Exhibit B will be a letter dated June 18, 1960, 

from Reuben E. Lawson to Superintendent Rushton and 
the Roanoke School Board.

Plaintiffs’ Exhibit C will be a letter dated June 23, 1960, 
from Superintendent Rushton and the Roanoke School 
Board.

Plaintiffs’ Exhibit D will be three letters dated August 
22, 1960, on which are specimens of the letters sent by 
the School Board, the local School Board, and by the State 
Pupil Placement Board, when denying requests for trans­
fers.

— 2—



28a

Plaintiffs’ Exhibit E, three similar letters dated August 
22, which are specimens of the letters when they are granted 
transfers.

Plaintiffs’ Exhibit F—F-l through F-39—the Pupil 
Placement forms for 39 Negro pupils who sought admis­
sion to previously all-white schools prior to the current 
school term. This group of 39 includes 28 Plaintiffs, 9 
pupils who were Negroes who were admitted to white 
schools, and, in addition, the forms of 2 pupils who were 
denied admission but did not join in the suit.

Plaintiffs’ Exhibit G is a map of the City of Roanoke 
which contains on it large colored circles for the location 
of the schools and the names and the legend is that schools 
marked in red are elementary schools, dark purple—junior 
high schools, and the light blue marks high schools.

—4—
Now, Plaintiffs’ Exhibit H is a memorandum dated Feb­

ruary 21, 1961, from the Office of the Superintendent, 
Roanoke County Public Schools. It contains information, 
a good deal of information—the number of classrooms, 
capacity, and estimated enrollment for September, 1961.

In addition there was agreed between the parties that 
in lieu of extracts of the minutes of the meeting of the 
Pupil Placement Board on August 15, 1960, dealing with 
the Roanoke applicants, you might insert in the record a 
reading of those minutes which took place at the deposi­
tion of Mr. Hilton. I might read this now.

The Court: All right. Read it into the record.
Mr. Lawson: “Inasmuch as the local school authorities 

of Roanoke City applied, at the request of the Pupil Place­
ment Board, criteria and standards dealing with the trans­

Motions



29a

fers and assignments of pupils of different races to the 
schools of that school division, which are regarded by this 
Board as valid and reasonable, and since, through the ap­
plication of these criteria and standards, the local school 
authorities are not in a position to oppose legally the fol­
lowing assignments and transfers, the Pupil Placement 
Board takes the following action: Sylvia Moran Long 
transferred to Monroe Junior High School; Milton Ran­
dolph Long transferred to Melrose Elementary School: 
Roswin Cheryl Long transferred to Melrose Elementary

—5—
School; Ula Amber Poindexter transferred to Monroe 
Junior High School; Sandra Monroe Wilkins transferred 
to Melrose Elementary School; Jane Neff transferred to 
Melrose Elementary School; Darwin Poindexter trans­
ferred to West End Elementary School; Charles Everett 
James transferred to West End Elementary School; Judith 
Ann James transferred to West End Elementary School.”

If Your Honor please, I  should also like to move the 
Court that the depositions which were taken in this mat­
ter on March 21, 1961, be admitted to supplement live 
testimony.

The Court: On what grounds ?
Mr. Lawson: Well, according to Rule 26, Your Honor, 

we feel the purpose was to supplement live testimony.
The Court: Motion is denied.
The Court is of the opinion that the Rule 26 does not 

apply where the witnesses are available to testify in per­
son, and especially so when the depositions were taken 
under the pretrial discovery rule; and, further, that they 
do not supplement testimony, that is, have a witness testify

Motions



30a

partly on the stand and partly by deposition. Motion is 
denied.

Mr. Lawson: If Tour Honor please, we take the posi­
tion that the Rule 26 makes an exception where the parties 
who testified are parties to the suit. And that was the—

The Court: The Court disagrees with your construc­
tion and if your construction is correct, all Federal trials

— 6—

could be, as far as the parties are concerned, a matter of 
deposition, as distinguished from the testimony of the 
witnesses. The motion is denied.

Mr. Lawson: Now, if Tour Honor please, we should 
also like to make a motion that Tour Honor indicated that 
the numbering system would be used relative to these 
pupils in lieu of names.

The Court: That is agreeable.
Mr. Parham: All right, sir.
The Court: It is understood, so that the record may 

be easily read—and if it hasn’t been done, I think you 
ought to do it now. File with the Clerk a list of the persons 
with the key numbers so that may be made a part of the 
record and when anyone is reading it, they can go back for 
identification purposes.

Mr. Parham: All right, sir, we will do that. This will 
be an exhibit, I believe?

The Court: I don’t need to make it an exhibit.
* ■31. -Jt-

Motions



31a

E. W. Rushton—for Plaintiffs—Direct

—7—

E. W. R u s h t o s , called as a witness for the Plaintiffs, 
having been duly sworn, testified as follows:

Direct Examination by Mr. Nabrit:
Q. State your name and position with the School Board, 

please. A. My name is E. W. Bushton, Superintendent 
of School, Roanoke City.

Q. How long have you served in that capacity? A. I 
have been Superintendent of Schools since 1953.

-U- -Hr -ilc-fc 'A' 'r,~ Tv* *vr

—8—
# # # # #

Q. When you became Superintendent here in 1953, I as­
sume the public schools were racially segregated under 
the laws which required that? A. They were.

Q. Do you know what I am talking about when I speak 
of the Supreme Court’s decision of 1954 on school segre­
gation? A. Tes.

Q. Now, since that time, have you or has your Board 
made any public announcements on the subject of segrega-

—9—
tion or desegregation or anything relating to that opinion? 
A. You mean by that whether or not we made any public 
statement as to the segregated schools or desegregated 
schools?

Q. That is correct. A. I do not know. I  do not know 
whether any name of segregation or desegregation ap­
peared in any statement.



32a

Q. Official statement by you as Superintendent or offi­
cial statements? A. No, sir. No, sir.

Q. Has there been any formal action by the Board on 
the general subject of ending segregation? A. No, sir.

Q. Now, sir, I take it that the Board has never adopted 
any plan for desegregation or anything of that character? 
A. That is correct.

Q. Has there ever been any discussion of that in official 
Board meetings? A. At official school meetings we have 
not discussed it.

Q. So that there are no plans, no present plans, for 
instituting any type of desegregation program as such? 
A. You mean on the local level?

Q. That is right. A. No, sir.
Q. We all know now that here in the City of Roanoke

— 10—

there were nine Negro students admitted to previously all- 
white schools last September, 1960. Was that the first 
time that there was desegregation here in the system? A. 
First time.

Q. Negro and white pupils went to school together? A. 
First time.

Q. In the public schools? A. Well, I  have only juris­
diction over the public schools, only for them, yes.

Q. Is it correct to state that other than that all of the 
pupils in the system attend schools separately; that is, 
all of the other Negro pupils, except those nine, go to 
all-Negro schools and all of the white pupils in the system, 
except those in schools with those nine, attend classes with 
all-white pupils; is that true? A. Correct.

Q. Now, these nine Negroes who were admitted attend 
three schools, don’t they? A. Yes.

E. W. Rushton—for Plaintiffs—Direct



33a

Q. Melrose— A. Melrose, West End and Monroe Junior 
High School.

Q. Now, do you know the number of schools in the sys­
tem and the number of high schools and elementary schools ? 
A. Yes.

Q. Do you have that with you? A. Yes.
— 11—

Q. I believe that the Exhibit H—

The Court: Mr. Nabrit, I don’t want to cut you 
off, but what has this got to do with determining the 
question in this case? Isn’t the question in this case 
to determine whether or not the petitioners were 
improperly denied their transfer applications to 
schools in question?

Mr. Nabrit: I  would say that is a question in the 
case; yes, sir.

The Court: What is the other question in this 
suit?

Mr. Nabrit: The additional question presented by 
the pleadings, it would seem to me, would be—

The Court: They do not have a plan?
Mr. Nabrit: Essentially that, sir.
The Court: I  think we will stipulate that.
Mr. Nabrit: No, sir. That there is no systematic 

program for eliminating the various facets of segre­
gation which I think I have to show.

The Court: The Court understands that is a fact 
and the Defendants are willing to stipulate that the 
City of Roanoke, insofar as the local body is con­
cerned, has made no plans and does not have any 
now for desegregating the schools in any manner 
other than what may or may not be operating through 
the State Pupil Placement Board; isn’t that correct?

E. W. Rushton—for Plaintiffs—Direct



E. W. Rushton—for Plaintiffs-—Direct

— 12—

Mr. Parham: That is correct, sir.
Mr. Nabrit: We will admit that with proviso.
The Court: With the proviso that, so the record 

is very complete-—you couldn’t make it more com­
plete by going into all of the details, because they 
haven’t done it. Now, if they have to, that is an­
other story.

.̂ . ^

—13—
 ̂  ̂ ^

The Court: If you have any reasonable facts that 
you want to put in, you state what they are and I 
can see if I can get them to stipulate. I t is going to 
save time. If you want to know how many pupils 
in the school are colored and white, ask if that is 
correct, and they may stipulate, and be a part of 
the record.

Mr. Nabrit: Will the local board stipulate that 
there are approximately 18,900 or maybe closer to 
19,000 pupils in the system and that about between 
4000-4100 of those pupils are Negroes?

Mr. Parham : That is correct.
The Court: All right. So stipulated.
Mr. Nabrit: That there are approximately 790 

teachers employed in the system and that about 176 
of those are Negroes?

Mr. Parham: That is correct.
Mr. Nabrit: That the teachers are assigned on a 

segregated basis to this extent that in all-Negro 
schools all of the staff—teachers, principals and so 
forth—-are Negroes; in the all-white schools all of



35a

the staff personnel are white; in the three schools 
where these nine Negroes have been admitted all of

—14—-
the staff—principals and so forth—are white.

Mr. Parham: We will stipulate the fact that you 
take out the word segregated; that is where they 
are assigned as of now.

The Court: They will stipuate that that is a fact.
Mr. Nabrit: Now, will the Board stipulate that 

they employ a system for assigning pupils, the local 
authorities do, based on a neighborhood system for 
elementary schools and then connected with a feeder 
system for junior high schools by which certain 
elementary schools feed students to certain junior 
high schools which in turn feed students routinely 
to certain high schools; that the school system is 
divided into six sections in this feeder number six 
which are indicated on Plaintiffs’ Exhibit H; that 
section 2 on Plaintiffs’ Exhibit H is the section for 
the Negro schools indicating that the four existing 
and one proposed Negro elementary school feed 
pupils to Booker T. Washington School and Booker 
T. Washington feeds pupils to the Adam School.

The Court: Did they make up that exhibit?
Mr. Nabrit: Yes.
The Court: I am sure they will stipulate.
Mr. Nabrit: I was describing the exhibit, sir.
Mr. Parham: We want to point out that we can­

not stipulate that we assign. The assignments are
—15—

made by the Student Placement Board.
The Court: With the exception, that is a descrip­

tion of the physical setup and the so-called feeder 
system in operation in the City of Roanoke?

E. W. Rushton—for Plaintiffs-—Direct



36a

Mr. Parham: That is entirely correct, sir.
Mr. Nabrit: And that Exhibit H also contains the 

estimated enrollment based upon the system for 
1961.

The Court: They stipulate all of the information 
on that exhibit is correct.

Mr. Parham : All of it is correct.
.B. ,1!. -JfcW  W  IT IT  ®

Mr. Nabrit: Now, will the Board also stipulate
that it is anticipating next September in the all- 
white and predominantly white schools there will be 
approximately 1300 empty seats; that by mid-term 
it is anticipated—second semester—there will be ap-

—16—
proximately 2100 empty seats in the white schools; 
and that in the all-Negro schools there will be ap­
proximately 400 children in excess of capacity in 
September; that the system as a whole expects 
about 19,200 pupils in September, 1961, and that the 
capacity of the system, estimated on the basis of 30 
seats per class room, is about 21,000 pupils?

Mr. Parham: Mr. Nabrit, those figures are new 
to me. I don’t know whether we will stipulate to 
them or not. Ask Doctor Rushton if he can answer 
or if you wait maybe we can.

Mr. Nabrit: Perhaps I  can put that question right 
now to him.

The Witness: I will try to answer that. That is 
assuming that a child is assigned to every seat, that 
is correct. During this building program we have 
had many changes that had to be made. We had 
some double session classes. In the elementary 
schools we extended classes. On the high school

E. W. Rushton—for Plaintiffs—Direct



37a

level we started school earlier in the morning and 
went late in the afternoon. That is based on the 
number of empty seats, if one child were assigned 
to every seat in the City, which, of course, the popu­
lation is such that children are not necessarily where 
they necessarily are. And then, of course, we can 
use a seat more than once. But what you have there, 
essentially, is what it is on that basis.

—17—
Mr. Nabrit: These—
The Court: He stated those figures are essentially 

correct.

By Mr. Nabrit:
Q. Now, in this connection, is it also true that for next 

Fall it is proposed that there will be double sessions—that 
double sessions will be necessary in some of the Negro 
schools'? A. That is correct. There will be double sessions 
in both the white and Negro schools. We do not know when 
the schools that are now under construction will be finished 
nor when those double sessions will end.

# # # # #

— 20—

# # # # #

E. W. Rushton—for Plaintiffs—Direct

By Mr. Nabrit:
Q. Now, Mr. Superintendent, do you recall the occasion 

when, approximately, in May, 1960—May 25, 1960—when 
you received a group of applications from Negro students 
to attend previously all-white schools? A. Yes.

Q. And, thereafter, several additional applications went 
in the next few weeks of the same nature? A. Yes, I  have 
a record here.



38a

Q. I believe we already have those applications and let-
— 21—

ters in evidence. Can you tell us the sequence of events 
and what transpired when you got these applications? That 
is, what you did. A. All right. Then going to May 25, 1960, 
the Pupil Placement forms for 30 pupils seeking admis­
sion into the three nonsegregated schools were then re­
ceived and, following that, 9 more came in, 9 more applica­
tions, which made a total of 39. And these applications 
were accompanied by a petition addressed to the School 
Board of the City of Roanoke, the Superintendent of 
Schools, the State Pupil Placement Board. And then on the 
20th of June, 1960, the petition, together with the 39 Pupil 
Placement applications, were then presented to the Roanoke 
City School Board.

Q. What date was that? A. That was the 20th of June, 
1960.

Q. Yes, sir. A. And then informed the School Board of 
this—about receiving these applications—and then they 
were forwarded then to the Pupil Placement Board just as 
they were received by me.

Q. Was this meeting on the 20th of June, was that an 
informal or formal meeting of the Board? A. It was a 
formal meeting of the Board at which time—formal meet­
ing of the Board, correct.

Q. What else transpired in connection with these ap­
plications? A. On following that, then they went, as I 
said, to the Pupil Placement Board. And then I was asked

—22—
by the Pupil Placement Board on the 28th of July to submit 
additional information and they asked for it, I think, on 
the 4th of August, which had to do with such things as 
maps showing the location of pupils and academic records,

E. W. Rushton—for Plaintiff's-—Direct



39a

health records and any other pertinent information which 
might he helpful in understanding the local situation. 
That was just general, what I got.

Q. Now, in that connection, was there a specific request 
from Mr. Wingo, on the Pupil Placement. Board, for you 
to answer three questions? Bo you recall that? A. I 
would say that was not requested on Mr. Wingo as much 
as it was that I discussed it with Mr. Wingo, asking what 
kind of information would be helpful and he did submit 
three questions to which we did guide our discussions with 
Pupil Placement Board.

Q. Do you have those questions there? A. Yes, I do.
Q. Would you read them, please. A. Are there Negro 

pupils who cannot be excluded from attending white schools 
except for race? That is number one. Number two: Would 
the Superintendent and School Board so certify to the 
Pupil Placement Board. Number three: And in our judg­
ment, what would happen in the local communities if some 
Negro pupils were assigned to white schools? Those were 
the three questions.

The Court: Those are the three questions that Mr.
Wingo asked you; is that right?

—23—
The Witness: Yes, sir.

By Mr. Nabrit:
Q. When he asked you this, was he asking you to bring 

to the Board answers to those questions and did you sub­
sequently do that? A. Ask that question again.

Q. Do I understand that Mr. Wingo asked you—told you 
he wanted answers to these questions, for you to bring to 
the Pupil Placement Board? A. I think it was Mr. Wingo’s

E. W. Rushton—for Plaintiffs—Direct



40a

suggestion that we might answer these questions when we 
went to the Pupil Placement Board. He didn’t ask that I 
do it.

Q. Now, did you subsequently have any of your staff em­
ployes make any investigations of records and things like 
that? A. Yes, sir, we did.

Q. The records of these 39 pupils were examined and 
reviewed? A. That is correct.

Q. Who were the People? Would you explain who the 
people who did this and what they did? A. Mr. A. B. 
Camper—is now deceased—Director of Instruction was 
primarily responsible for this assignment. Along with him 
was Mrs. Dorothy Gibney. And I am sure they were the 
principal ones, together with me.

Q. Now, was this the general type of information that 
you gathered? Let’s see if I can state a fair summary of

—24—
what you gathered on these 39 pupils—information like 
their name, age, school, grades, school applied for, parents’ 
name and occupation—those items included? A. Yes.

Q. Names of other children and their families and the 
schools they attended? Would you answer each part of it? 
A. All right. Go ahead.

Q. Proximity of the schools they sought to attend, the 
schools they presently attend, to their home? A. Yes.

Q. Relative percentage of capacity of the schools in 
question; that is, in terms of overcrowding? A. Yes, I 
think that was part of it.

Q. Whether contemplated school construction would af­
fect their assignments in the future—that type of informa­
tion? A. Probably so, but I don’t remember exactly in 
that way.

E. W. Rushton—for Plaintiffs—Direct



41a

The Court: Does the Superintendent have a rec­
ord of the information that they did get?

Mr. Nabrit: No, sir. Apparently because of Mr. 
Camper’s death.

The Court: I will ask him: Do you have a record? 
Did you record the information that you gathered 
in reference to these applications?

The Witness: Yes, sir, we did.
—25—

The Court: Do you have it?
The Witness: We have portions of it because we 

were unable to get all that was gathered because of 
the man who was responsible for this died and his 
office—I mean his record in it did not show it.

The Court: Would presenting that which you have, 
would that be, in your opinion, a fair sample of what 
was done in all of these cases?

The Witness: I would say so; yes, sir.
The Court: I will ask you to produce it.
The Witness: Well, may I confer with the person 

who would have this information?
Teh Court: I don’t care what the person says. If 

you have it, it is part of the school record and I 
would like you to produce it.

The Witness: All right.
Mr. Parham: If Your Honor please, on that point, 

prior to trial set previously, I had Doctor Bushton’s 
office reconstruct this information. Opposing coun­
sel has a copy of it. We have no objection to its 
getting in.

The Court: If we have it. Apparently, it is going 
to save the Court a lot of time. There are a lot of 
numbers and names for me to remember. And the

E. W. Rushton—for Plaintiffs—Direct



42a

school official that died compiled this information, 
I  am sure I can study it and examine it better than

—26—
what he might say about each individual one. So, for 
the purpose of saving* time and in aiding the Court, 
if they have a written record and the answers to all 
of the questions and information they sought that 
they used, let’s put it in the record and then I will 
know what they did do.

Mr. Nabrit: Your Honor, I think we have difficulty 
here. These information sheets which Counsel fur­
nished us were prepared in January, 1961, in con­
nection with the ease. Presentation last summer, as 
I understand it, was all handwritten notes, and the 
presentation that these people made to the—the local 
people made to the Pupil Placement Board was oral. 
There was no presentation of summary sheets like 
these.

In addition, these summary sheets contain—well, 
they don’t contain some of the information that was 
communicated to the Pupil Placement Board. Spe­
cifically, they don’t contain the class medians that 
these pupils were measured against. In other words, 
they contain these pupils’ test scores, but I was ad­
vised, during the depositions—-

The Court: I  don’t know what you are talking 
about—made in ’61. I asked the Doctor if he had 
any official memorandum of information that they 
had gathered at the time he was gathering the in­
formation for the use and benefit of the Pupil Place­
ment Board. He said he had a good part; he didn’t

—2 7 -
have all of it. And I asked him what he had, that

E. W. Rushton—for Plaintiffs—Direct



43a

is the original, was a fair sample of what they had 
done in this ease and he said yes. And, therefore, 
I  want to see the fair sample, not what he made up 
in 1961, if yon have that information.

The Witness: Yes, sir, I  have it. It is in raw 
form. It is rather voluminous. I  will be glad to get 
it for you.

The Court: At the noon recess, let’s present it 
and, of course, that is the best evidence. I don’t 
care whether it is in longhand at the time it was 
made.

The Witness: All right, sir, I  will be glad to get it 
for you.

By Mr. Nabrit:
Q. Now, proceeding on in the sequence of events, Doctor 

Rushton— A. Yes, sir.
Q. —isn’t it true that on August 15th you and Mr. 

Camper and Mrs. Gfibney went to Richmond and met with 
the members of the Pupil Placement Board and Mr. Hilton, 
Executive Secretary, and discussed these 39 pupils? A. 
We did.

Q. And that at that time you made an oral presentation, 
you and your staff made an oral presentation of various 
facts about these pupils? A. We discussed with the Pupil

- 2 8 -
Placement Board the 39 applications; yes, sir.

Q. The material that you are going to gather at lunch 
time were the notes that you made for this discussion— 
the material that you agreed to furnish the Court? A. I 
am going to give every bit of the information that I have 
with respect to the way we studied these pupils and what 
we carried with us, as much as I  can.

E. W. Rushton—for Plaintiffs—Direct



44a

The Court: When you made this report to the 
Pupil Placement Board, was that transcribed by 
anybody at the time ?

The Witness: No, sir.
The Court: No record was made of what you 

people said to each other1?
The Witness: So far as I know there was no rec­

ord of that kind.
The Court: All right. There is no record of it. 

You may ask what he said, if you are interested in 
knowing* what he told the Board.

By Mr. Nabrit:

Q. Well, sir, was it true that during this meeting you 
discussed these pupils and placed them in certain cate­
gories? A. Wait a minute. I  discussed them—assigned 
them?

Q. You discussed these 39 pupils in terms of certain 
categories, such as one group would be pupils whose intelli-

—29—
gence test or achievement test score or other academic 
test score fell below the median score of the pupils in that 
grade of the white school they were seeking to enter? 
Wasn’t that one group? A. Let me say, as the question 
was asked us by the Pupil Placement Board members we 
tried to answer their questions, and I am sure each of it 
came out along the line that you are talking about. If I 
would say that this happened and that, I do not recall; 
that those are the specific things that were done. I do re­
member discussing it with them and the staff is here that 
were there in Richmond and I would be glad to answer 
everything I know. But I cannot go down the line—did we 
do this, that and the other.

E. W. Rushton—for Plaintiffs—Direct



45a

Q. Now, do you remember that, at the end of the meet­
ing, that same day— A. Yes, sir.

Q. —the Pupil Placement Board made its announcement 
of the nine pupils, nine of these Negro Pupils would be 
granted transfers? A. Yes, sir.

Q. And that those nine pupils that were granted trans­
fers were pupils that you had indicated to the Board could 
not be excluded for any reason other than race in terms 
used in that question that Mr. Wingo asked? A. That was 
my judgment; yes, sir.

Q. Now, is it true that these nine pupils were pupils 
who had been very successful in their school work, on the

—3 0 -
intelligence test, on the achievement test; one thing common 
to those that were admitted? A. Yes. The record shows 
that.

Q. Now, was there discussion of them at this meeting in 
terms of how far they were in terms of the relationship of 
their scores?

The Court: Mr. Nabrit, what difference does it 
make about the nine? They have been transferred. 
Their requests were granted. They are in these 
schools, are they not? What the Court wants to find 
out is why the 30 were not granted transfers, not 
why the nine are in. Certainly, you don’t want to 
change those transfers. Let’s hear about the ones 
that were not in and why they were not admitted.

Mr. Nabrit: Yes, sir.

By Mr. Nabrit:
Q. Now, was it true, Doctor Rushton, that the pupils 

who were not admitted, there were several pupils who you

E. W. Rushton—for Plaintiffs—Direct



46a

advised the Board that fell below the median of the class 
that they were applying to ? A. Yes.

Q. Is that it? A. Yes; that is correct.
Q. When I say the median of the class they are applying

—31—
to enter, this was the— A. To the class they were going.

Q. The median score obtained by the white pupils in the 
grades who would be in the grades they sought to enter 
the coming year ? A. Uh-huh.

Q. In the given school involved for each child? A. Yes, 
to which they were seeking admission.

Q. So, in other words, to give an example, a Negro child 
seeking admission to X school in the sixth grade, his score 
was compared to the score of the white pupils who were 
going to be in the sixth grade with him who are in the fifth 
grade the year before; isn’t that it? A. If a child was 
being transferred into a school and that grade, which he 
was going into, we take the average of that grade and we 
measure whether he would be below the median of that 
class.

#  *  # #  *

E. W. RusMon—for Plaintiffs•—Direct

—32—
# # # # *

The Court: I didn’t mean to question it that way. 
I  mean, on his recommendation. I understood he 
testified that the nine of them in his opinion were 
eligible for transfer except on the ground of grades 
and they didn’t use that ground, so they were trans­
ferred. So, I want to know what he told the Pupil 
Placement Board, if they are relying on that,

—33—
whether or not he recommended any to be denied



47a

solely on the ground of not coming up to this median 
average.

The Witness: Your Honor, as I recall the dis­
cussion, there were some who were below the median 
of the class to which they were asking for admission. 
And that was the main criterion by which we did 
not, in our judgment, think they should be con­
sidered for that transfer.

By the Court:
Q. Would you say this: And I don’t want you to say 

it if it isn’t your considered opinion. If they had been 
up to the median average and not below it, would you 
have recommended that they were eligible for admission 
to the school sought except for that one fact! A. Your 
Honor, I am not trying to evade your question either. I 
think there are certain other circumstances that might be 
taken into consideration other than the fact that they 
would be up to the average of the class.

Q. I am not talking about all of the 39. So, therefore, 
there isn’t any that was excluded solely on the ground that 
they didn’t come up to the median? A. Yes, that is cor­
rect. I wouldn’t say that any single criterion would have 
been applicable within itself. And I don t remember dis­
cussing it in that vein either.

Q. Now, the reason X am asking the question of course,
—34—

this may not be correct. The summary that has been given 
to me indicates that 1, 2, 3, 4, 5, 6, 7, 8, 9 of the students 
denied transfers were denied on the ground that they were 
below the class median—achievement test. And I wanted 
to know whether or not those nine—that wras the sole

E. W. Iiushton—for Plaintiffs■—Direct



48a

ground. So, if it is all we have to do is to determine what 
the median test was and whether it was a fair and equi­
table test—in other words, if you deny a person on the 
grounds of residence and on the grounds of this, maybe 
the residence alone is sufficient to so we don’t have to 
come to the second one, is the point I am getting at. A. 
I  think that that would be the main criterion. I have the 
same list, too, what you have.

—35—
-Y- -Y- -It- -it- -U-•Jp -Sf TF W  TP

By the Court:
Q. I am not asking you to without checking to state 

that the nine pupils listed under Category C were in fact 
denied a transfer on that ground alone. I am merely ask­
ing you if you recommended to the Board any student or 
students to be denied a transfer solely on the ground of 
being below the class median, under the achievement. A. 
Well, sir, I did not make any recommendations at all to 
the Pupil Placement Board. I did not make any recom­
mendations at all. They asked if the School Board made 
a recommendation.

Q. Well, the School Board did? A. And there was no
—3 6 -

recommendation, sir.
Q. There was not? A. No, sir.
Q. Then, I am correct that neither the School Board of 

the City of Roanoke or the Superintendent or any other 
administrative official made any recommendation to the 
Pupil Placement Board in reference to the placement of 
these 30 students or 39 students? A. No, sir. I made that 
clear.

E. W. Rushton—for Plaintiffs■—Direct



Mr. Parham: That is correct, Your Honor.
The Witness: I made that clear that we were 

there to furnish information, which we did.
The Court: The Court misunderstood that, The 

Court understood that the school officials made cer­
tain recommendations and that the Board went along 
in the main with those recommendations. Now, that 
is not correct.

The Witness: That is not correct.
Mr. Parham: Your Honor, Mr. Rushton and his 

staff are asked by the Pupil Placement Board to 
make what in effect was a valued judgment in an­
swering the question which in their opinion could 
not be excluded except on the ground of grades.

The Court: That is the only question they asked 
you?

Mr. Parham: That is the only one that gets into 
this business of medians and testing and all of the 
rest of it.

—37—
By the Court:

Q. Were you asked by the Pupil Placement Board to 
furnish information, statistically or otherwise, m refer­
ence to Pupil No. 1? I am just using that as an example to 
each individual pupil. A. Yes, they asked us to have the 
information about these 39 pupils.

Q. I mean on an individual basis? A. Yes, sir.
Q. Now, is the information that you gave them contained 

in this information that you are going to bring at the noon 
recess? A. Yes, sir.

Q. And you only gave them what is contained therein 
and did not make a recommendation? A. I  did not make 
a recommendation.

E. W. Ru.shton—for Plaintiffs—Direct



50a

Q. How they used that information is something you 
don’t know! A. It is something I don’t know. And when 
they asked me for a recommendation, I said straight­
forwardly that “it is your responsibility to assign pupils; 
we will answer your question.”

Q. You furnished certain factual information? A. Yes, 
sir.

Q. And that is going to be produced in evidence, and 
from then on the Pupil Placement Board made their own 
decision; is that right? A. Yes, sir.

-—38—
By Mr. Nabrit:

Q. Superintendent Rushton, isn’t it true that at this 
meeting with the Pupil Placement Board you presented 
this information about the pupils and discussed them in 
terms of groups of pupils, pupils falling into certain cate­
gories such as residential, relation of those below the 
median, those above the median, those near the median, 
those who had sisters and brothers who were below the 
median; and that only pupils that you identified as not 
being able to be excluded under Mr. Wingo’s question on 
the basis of race were those pupils who did fall into any 
of these categories, the ones who were above the median? 
Is that a fair summary of what happened? A. I couldn’t 
follow you. I am sorry. Would you repeat that?

Q. I will try to break it down. A. Yes, sir. All right.
Q. That you went to the Pupil Placement Board to dis­

cuss these 39 pupils, right? A. At their request, yes.
Q. You gave to them the answer to number one which 

Mr. Wingo asked—nine pupils could be excluded because 
of race? A. No, sir.

Q. You did not? A. No, sir.

E. W. Rushton—for Plaintiffs—Direct



51a

E. W. Rushton—for Plaintiffs—Direct

—39—
Q. What did you tell him about those nine pupils? A. 

I told them that in my opinion if any of these 39 would 
be successful in transferring from a segregated school to 
a desegregated school I thought that these nine would 
probably be more successful. That was my valid judg­
ment. It was not a recommendation. It was just when I 
was asked a judgment as I was in these cases.

Q. I think I understand you. A. All right.
Q. Now, with respect to these other pupils, did you dis­

cuss these others in terms of such things as residence? A. 
Yes, sir.

Q. Below the median? A. Yes, sir.
Q. And others near the median or just average students 

which didn’t have achievement tests—only had incomplete 
information and things like that? A. Beg your pardon?

Q, Well, you had some students in the first or second 
grade that didn’t have any test forms. A. Yes.

Q. But who appeared to be average students? A. We 
had no information for them. We just didn’t have the in­
formation, period.

Q. And was there another group who were described as
—40—

having brothers and sisters in the same school level with 
them in elementary or junior high who were below the 
median? A. Yes, sir.

Q. Now, and perhaps someone who was retained in the 
grade the previous year? A. Yes, that is right.

Q. And another pupil who had some other problems of 
aptitude or individual— A. Yes, sir.

Q. Now, these 30 pupils with respect to whom this in­
formation was presented were subsequently denied trans­



52a

fers by the Pupil Placement Board; is that right? A. 
Yes.

Q. The same day you made this presentation? A. That 
is right.

Q. Do you think that perhaps Mrs. Gibney is better able 
than you are with information that you have there to 
know who these pupils were in these various groups? A. 
Yes, sir, because in this school system of this size I de­
pend upon those who are associated with me to do much 
of the work that is necessary to be done. That is correct.

Q. So we can get who these people are from her? A. 
Yes. I prefer that.

Q. With respect to your general system of school organ-
—41—

ization, again, isn’t it true that you don’t have any special 
elementary school set aside for intelligent kids or bright 
kids; your schools are comprehensive? A. In the elemen­
tary schools we don’t call them comprehensive schools, as 
you know. And we do have some two schools that are 
not separate schools but they are part of schools in which 
we do provide for crippled children and retarded children 
and things of that kind; is that what you mean?

Q. Yes. A. But there are no separate schools. Then, 
when you get to the high schools, you are correct, ours 
are comprehensive schools but within the comprehensive 
schools there are certain offerings that are provided for 
children, not necessarily duplicated all over the city.

Q. Correct. So that your general system of assigning 
students to high schools is based on the feeder system— 
what junior high schools they go to regardless of ability 
and aptitude, and test results and things like that. A. 
That is correct.

Q. They are admitted, depending on what junior high

E. W. Rushton—for Plaintiffs—Direct



53a

schools they go to and if they get promoted to that? A. 
That is right. That is right.

Q. And the same thing is true from elementary to junior
- 4 2 -

high. A. Well, you understand that we have the city 
divided in six sections, as you have indicated already. 
Those six sections take this whole city into consideration. 
The pupils in each sections go to the elementary schools 
in that general section. Then they move from the elemen­
tary schools to the junior high schools in that general 
area, that section, and then from there on up to the senior 
high school. That is the feeder system as we interpret it.

Q. The feeder system is applied to the junior high school 
without being based on achievement tests or—- A. That 
is correct.

Q. Just be promoted to general high school in an area 
under the feeder system. A. Yes, sir.

Q. Now, to enter first grade, to enter elementary schools, 
do you have any—what are the prerequisites there—apply 
to everybody? A. Well, only those that are applied by 
the State. The child must be six years old on such and 
such a date and he enters the first grade. Generally speak­
ing, of course—well, that is it.

Q. You have a neighborhood system where these elemen­
tary schools a re ; the principals of these schools know 
what neighborhoods these schools serve? A. Generally 
speaking, they do, yes. As I said a while ago, with this 
building program there has been shifting back and forth.

—43—
That is in the general section. That is correct.

Q. I think I was advised earlier that there was no zone 
map up to date. Is there one now, as of today? A. No, 
there isn’t.

E. W. Rushton—for Plaintiffs-—Direct



54a

Q. Do yon plan to get together a zone map before next 
year? A. We haven’t done so far.

Q. I understand the last zoning map was about two 
years old. A. That is about right, yes.

Q. And that is posted to the wall over in your building; 
is that right? A. Yes.

Q. Do you have any reproduction of that? A. No, sir.
Q. So, to determine what elementary school the elemen­

tary school children go to is based on this neighborhood 
system, if they are six-year-olds, right? A. Uh-huh. In 
the general that is true.

Q. And you have exceptions to pupils going outside of 
their neighborhood going to elementary schools? A. No 
exceptions that I can recall at the moment.

Q. You must have people that move back during the 
year—who move from one neighborhood to another? A. 
Of course we do. Mobile is one of our requirements.

—44—
Q. What happens there? A. Generally, if a child be­

gins in school and the parents move, our feeling is that it 
is better for the child to remain in that school for the rest 
of the year.

Q. Then the next year he would be moved to a new 
neighborhood school—an elementary school? A. Would be 
moved.

Q. Yes. If he moved during the middle of this year and 
if he followed your program of staying in his present 
school, even though he lived in a different neighborhood, 
the following September he moves to a school in a new 
neighborhood? A. Not necessarily.

Q. Sometimes? A. Sometimes. Yes.
Q. How is that decided? A. Howt is it decided?
Q. Yes.

E. W. Rushton—for Plaintiffs•—Direct



55a

Mr. Scott: All of these questions have anything 
to do with the question involved in this case?

The Court: I don’t think so either. I was waiting 
to see how we are going to get around to it.

Mr. Nabrit: I  think I am almost through.
The Court: What are you after?
Mr. Nabrit: Sir, it is necessary for me to demon-

—45—
strate the routine system in order that I might 
compare it with the procedures and practices used 
with respect to these Negro Plaintiffs.

The Court: It is conceded in my information, if 
my information is correct, that at the present time 
Roanoke City schools do not assign pupils. They are 
assigned by the State Pupil Placement Board. If I 
am incorrect, I  want to be corrected.

Mr. Parham: Entirely correct.
The Court: What difference does it make about 

his feeder system? The question can be asked of 
the Pupil Placement Board members and they are 
here, why they do that, if you think it is illegal. 
It may be.

Mr. Nabrit: I  wasn’t trying to argue at the mo­
ment whether it is illegal. I  was trying to find out 
what the routine procedure, applied, generally is. 
With respect to this problem, who is responsible 
for it—the city is responsible for the outcome or 
the State is? It doesn’t make any difference to my 
case. But this witness knows what the facts are.

The Court: He may or may not know, and I am 
sure he knows the end result. I am here to de­
termine one basic question and that is why the 30

E. W. RusMon—for Plaintiffs—Direct



56a

whose applications were not approved were not ap­
proved. That is all I  want to hear in this case.

—46—
Mr. Nabrit: I am trying to prove that they were 

turned down on the racial discriminatory procedure, 
different criteria were applied to them and this sys­
tem existed on racial basis. I think I can prove it 
by showing that they applied special qualifications 
to these 39 pupils. They don’t apply to the white 
children already there.

The Court: Maybe they do and maybe they don’t. 
I would like to know if they do. And if that is the 
question you want to have answered—

Mr. Nabrit: I  don’t want to ask him that gen­
erally. I want to build up the facts myself. I don’t 
want to ask him the question and for him to an­
swer now.

The Court: Well, build it up.

By Mr. Nabrit:
Q. The situation in the elementary school is, then I take 

it, that you have no elementary school established with 
reference to achievement, ability, intelligence, any kind of 
academic— A. Separate schools, no.

Q. Separate schools. But you did indicate earlier there 
were two schools in which you had classes for retarded 
pupils and crippled children? A. Yes. We have many 
other facilities provided for special education across this 
city.

Mr. Parham: Speak up a little louder.

E. W. Rushton—for Plaintiffs—Direct

—47—



57a

E. W. Rushton—for Plaintiffs—Direct 

By Mr. Nabrit:

Q. But, generally, it is correct to say that all of these 
elementary schools are general elementary schools?

The Court: We have been over that four times. I 
clearly understood that Roanoke has a comprehensive 
school system with no special schools for brilliant 
students. Basically, it is just an ordinary compre­
hensive school system, isn’t that right?

The Witness: Yes, sir.

By Mr. Nabrit:

Q. Do you group by ability within the schools? A. In 
the schools we have the children divided into their ability 
to do subject matter—whether they are above average, 
average or below average, divided into groups in elementary 
schools. We have honor groups in the high school. We 
have certain other facilities by which they can achieve at 
their own level of development.

The Court: And you have that same system in the 
all-white and the all-colored schools?

The Witness: Yes, sir.
The Court: In other words, you classify the colored 

the same as you do the white ones?
The Witness: Yes, sir.

By Mr. Nabrit:
—48—

Q. Is this honor program at the high school level? A. 
Junior and senior high school level.

Q. In every school—every junior and high school? A. 
Where there is a need for it, we do.



58a

Q. Some schools where yon don’t? A. No, sir. Do you 
mean in every school there has to be the same kind of 
honor courses and that kind of thing? We have -

Q. Do the programs differ entirely? A. No, sir. They 
are in terms of the pupils’ abilities and the pupils’ needs 
and the pupils’ programs.

Q. Now, when you compared these pupils, these 39 
pupils against the median, which of the homogeneous 
groups did you measure them against? Did you measure 
them against all of the pupils in that grade, in the school 
involved? A. Would you permit me to ask you to ask 
Miss Gibney how this work was done because I think she 
can do it much better than I can do it.

Q. Very well, sir.
Can you give us your reasoning on this median business ? 

What is your reasoning? Judging that those above the 
median—

Mr. Parham: Your Honor, I don’t believe his 
reasoning is material with the Pupil Placement 
Board.

Mr. Nabrit: I think his reasoning is material, 
Your Honor, since he was the one that introduced 
this median element before the Pupil Placement.

—49—
The Court: Objection overruled. He can question 

him on the fact that he gave to the Board.

By Mr. Nabrit:
Q. What was your reasoning in discussing in terms of 

below the median and above the median or average? A. 
What was our reason for it?

Q. Yes. A. The Pupil Place—

E. W. Rushton—for Plaintiffs—Direct



59a

E. W. Rushton—for Plaintiffs—Direct

Q. What was your reasoning behind it? A. To ask ns 
to bring to them that kind of information, which we did.

The Court: In other words, this was not your idea 
but the Pupil Placement Board’s idea?

The Witness: Yes. They asked me to bring this 
information, which I indicated a while ago, and I 
have to go back to see what they asked me and I can 
very well do it right now.

Mr. Nabrit: Would you do it, please.
The Witness: Showing location of pupil’s aca­

demic record, health record, any other pertinent in­
formation which might be helpful in understanding 
local situation.

The Court: Objection is sustained as to his rea­
soning, because it wasn’t his idea—the Pupil Place­
ment Board.

—50—
By Mr. Nabrit:

Q. My question is why did you select this particular 
academic record—median—that is not a part of these pupils’ 
academic—you couldn’t find them in their academic records 
—the median score? A. Would you give me that record to 
see whether—

Mr. Whittle: I believe that Your Honor is con­
fused with what use Doctor Eushton made of the 
data that he assembled in Eoanoke and carried with 
him to the Pupil Placement Board. Now, for in­
stance, Your Honor has adopted a practice, with 
which I am thoroughly in accord here, of asking some 
questions to straighten out testimony of various wit­
nesses. If I understand it, at the request of the



60a

Board, Doctor Rushton had his staff compile data 
with reference to each of these applicants for transfer 
he took that data with him to Richmond when he was 
asked to come down there by the Board. And from 
that data he refreshed his mind in answering such 
questions as were proposed to him by the Board. I 
don’t think that he intended to leave the Court under 
the impression that he gave the Board all of the evi­
dence regarding each of these children applying for 
transfer. He simply used the data that he carried 
with him to answer certain questions that were asked 
him by the various members of the Board relative 
to the individual children.

—51—
The Court: He has testified that the Board asked 

him to specifically compile statistical information in 
reference to various questions that they had and he 
said he did it or had his staff do it in response to 
the Pupil Placement Board; isn’t that correct?

The Witness: Yes, sir.
The Court: And he compiled this information at 

their request and that he took it down there. And 
that is the information that he is going to bring, 
that he compiled.

Mr. W hittle: So far as you have gone, I under­
stand that to be thoroughly accurate. But when he 
got down there, he did not leave that data or car­
bon copies of it with the Board. And he did not 
read it to the Board nor was the data read by the 
Board, but he simply used the data to answer such 
questions as were asked him by the Board with refer­
ence to the individual applicants for transfer.

E. W. Rushton—for Plaintiffs’—Direct



61a

The Court: Well, Mr. Whittle, if we had a tran­
script of what he was asked by the Board and his 
answers, I would agree that that would be the end 
result. But I am sure the Doctor, in all due respect 
to him, cannot remember every question that was 
asked and cannot remember every specific answer. 
So, wouldn’t his statistical data, which he compiled 
at the request of the Board, be the best available 
evidence of the kind of information that he gave the 
Pupil Placement Board and when acted upon?

—52—
The Witness: With reference to the aggregate but 

not to the specific. But I don’t think I broke down 
and said to the Board that these five—

The Court: He said he didn’t make any recom­
mendations.

The Witness: That is right.
The Court: So that is the reason I wouldn’t allow 

any reasoning.
Mr. Lawson: If Tour Honor please, it seems to 

me that here, according to the statement by Doctor 
Rushton, he was asked to bring certain criteria and 
the last thing he was asked to bring—any other in­
formation which you think will be helpful to the 
Board. That is his reasoning. The Board had given 
him latitude to put anything he wanted to put in and 
these things that we gave you are the things that he 
put in and I think they are pertinent. That was not 
the Board’s idea, according to the testimony in this 
case at this point. According to the testimony at 
this point the idea of the median was not asked for 
by the Board. That was his idea, too. Those are his 
ideas. I  think—

E. W. Rushton—for Plaintiffs—Direct



62a

The Court: So the record will be complete. Doc­
tor, state what additional information, that is in 
general classification, you compiled and gave to the 
Board in addition to the specific information they 
asked for, if any?

—53—
The Witness: Your Honor, we had maps with us.
The Court: They asked for maps ?
The Witness: Yes, sir.
The Court: Tell me what additional information 

you furnished which they didn’t specifically ask for?
The Witness: It seems to me when you say aca­

demic records that means test records, the achieve­
ment records, IQ records and things of that sort 
which are a part of this that we are now talking 
about.

The Court: I would think so, too.
The Witness: So, I would interpret academic rec­

ords to mean that. So, I don’t recall anything else 
that we added.

The Court: In other words, they asked for aca­
demic records?

The Witness: Yes.
The Court: And you furnished the academic rec­

ords as far as you have them?
The Witness: Yes, and I interpreted them the way 

I have just told you.

By Mr. Nabrit:
Q. I think there is perhaps a misunderstanding here 

about some general terms and some specific terms. Do you 
mean by academic records the folders for each of these 
39 pupils containing what they have done in school? Is that

E. W. Rushton—for Plaintiff s—Direct



63a

what you mean by academic records? Now, that is part
—54—-

of it, isn’t it? A. Yes.
Q. Isn’t another part of the academic records, informa­

tion you took to Roanoke, statistics about these classes 
including at least the median score in these classes that they 
were trying to get in; that was another part of the aca­
demic information to Richmond? A. That is right.

Q. Was that latter part asked for by the Pupil Place­
ment Board or was it yours or your staff’s decision to give 
them that additional fact?

The Court: He just answered the question that 
the Board asked him for all academic information 
with reference to this matter and that is an all- 
inclusive word. And he understood the word “aca­
demic” to include those various phases; isn’t that 
right ?

The Witness: Yes.
The Court: Now, he may be wrong in his definition 

of academic, but he said he included all of that in 
academic. What difference does it make on the end 
result ?

Mr. Nabrit: It makes a good bit of difference. 
When I asked him what his reasoning, apparently, 
with these people about the median, that was ob­
jected to.

The Court: That objection is sustained and is still
—55—

sustained.
Mr. Nabrit: Your Honor, may I make an offer of 

proof of excluded evidence by reading the answer he 
gave to that question on the deposition?

E. W. Rushton—for Plaintiffs—Direct



64a

The Court: Objection is sustained. I don’t want 
to hear any evidence on that. The Court has ruled 
that his reasoning is immaterial; no offer of proof 
involved. Now, if I am in error, you make the most 
of it on your exceptions.

Mr. Nabrit: In connection with my exceptions, I 
was trying to establish a record of what I was trying 
to propose to prove under the Federal Rules which 
I am—

The Court: The Appeal Court said if it gets to 
that, that I have to take a man’s reason, then we 
will have to hear this offer. I am willing to hear and 
want to hear all of what he did. Why he did it doesn’t 
make the slightest difference to me; doesn’t make any 
difference about his reasoning. The question is what 
did he do. Because, even though he had a good rea­
son, if it is illegal to do it or wrong to do it, that 
doesn’t help him. And, if he had a bad reason for 
doing it and we got the right answer, that still is all 
right. So, what has his reason got to do with? 
Objection sustained. Let’s get on with the next 
question.

# =£ # #
—56—

# # * # #
By Mr. Nabrit:

Q. Mr. Rushton, is it true that there was no action by 
the Board or response, as such, on the Plaintiffs’ petition 
that came with these individual applications?

Mr. Parham: Which board do you mean ?
Mr. Nabrit: The local School Board.
The Witness: No action with respect to the deci­

sion on these Plaintiffs.

E. W. Rushton—for Plaintiffs•—Direct



65a

E. W. Rushton—for Plaintiffs—Direct 

By Mr. Nabrit:
Q. No, no. On that formal petition that came with the 

Pupil Placement form and letter from Mr. Lawson. A. 
We—if I understand—

Q. Petition denied or petition granted? A. No, no. We 
sent the applications, as I said, we sent them to the Pupil 
Placement Board as they were presented to me.

# * # # #

# # # # #
Q. Now, it doesn’t appear, but in section number 2 those 

are all-Negro schools in that one section? A. That is in 
the elementary schools; yes, sir.

Q. No. You said elementary schools. You mean the 
junior and—

Mr. Parham: Are you referring to Exhibit H? 
Mr. Nabrit: Exhibit H, yes.
The Witness: Exhibit H, this is. The elementary 

schools are divided into six sections and these are 
the schools in section two. We do not have a high 
school section as such. They are in the general area 
of these.

By Mr. Nabrit:
Q. Well, the junior high school, Booker T. Washington, 

and the senior high school, Lucy Adams, on this piece of
—5 9 -

paper are the schools that serve pupils from those ele­
mentary— A. That is right.

Q. And all of these schools on the paper under the sec­
tion are all-Negro schools? A. Yes, that is correct.



66a

Q. What is this sibling relationship bit? Can you explain 
to the Court what that was all about? A. Yes, I can. The 
sibling relationship is that there are more than one or 
more children in the family and they are in a school and 
if they were divided, one in one school and one in another 
school, the relationship, as I understand it, rather vague 
to say it, vague in expressing it, that if one child in ele­
mentary school were living here and one of the children 
were in this school and one the other school, that would 
be breaking their sibling relationship.

Q. The way this has some relationship to this case is 
that some sort of idea of not separating brothers and sis­
ters who were in elementary school in two different ele­
mentary schools; is that right? A. That is right.

Q. Now, where do you get this from, the Pupil Place­
ment Board ask you to bring them a list of the pupils who 
would be separated from brothers and sisters if they were 
transferred? A. They asked me again to bring in these 
things that I have just mentioned and they did have to do 
with the academic records.

Q. So, this relates to the academic? A. It has relation-
— 60-

ship to the academic.
Q. Let me state it this way: That certain of these pupils 

were classified in your presentation to the Pupil Place­
ment Board as being pupils who had brothers and sisters 
who wrnre below the median and who would, therefore, be 
separated from their brothers and sisters if they were 
given transfers; is that right? A. That is right.

Q. And all those pupils who wrere in that situation were 
ultimately denied transfers? A. Yes, that is right. They 
were.

Q. I  think among the nine children who were admitted

E. W. Rushton—for Plaintiffs•—Direct



67a

to the white schools there were three families involved 
who had brothers and sisters. A. That is correct.

Q. So, this is your idea of the -way to do it? It was your 
idea to do it? A. This was information that we discussed 
at the Pupil Placement Board.

Q. Now, you stick to your previous answer. You didn’t 
recommend that the Pupil Placement Board turn down 
people -who had brothers and sisters that wrnre being sepa­
rated? A. Mr. Nabrit, I  made no recommendation to the 
Pupil Placement Board.

Q. What about residential situations. Did you categorize
-— 61—

any pupils on residential basis or nearness to schools or 
zones or what? Did you have any uniform principles that 
you applied? A. We had a map that we carried along with 
us that gave the Pupil Placement Board the information 
that could be easily determined from the standpoint of 
residential sections.

Q. Let me state it and you tell me if I am correct: That 
you did not present the information in terms of any type 
of rigid zones; that this pupil lived in this zone, and that 
you also did not apply any rigid rule that you had to be 
closer to the school to go there. Are both of those true? 
A. We have no zones, as you have indicated. Now7, what 
was your other part of the question ?

Q. That there was no general principle applied that you 
had to be—the pupil had to be nearer to the school that he 
was seeking to enter in order to be admitted; isn’t that so?

The Court: I understood this witness to say that 
he didn’t give recommendations or make recommen­
dations. He merely furnished facts. Ask him what 
residential information he furnished to the Board, if

E. W. Bushton—for Plaintiffs—Direct



68a

that is what you want to find out; not what he didn’t 
do.

Mr. Nabrit: Your Honor, during the brief recess 
that Your Honor was kind enough to give us, I had 
the opportunity to again look at the minutes of the 
Pupil Placement Board that I read at the beginning 
this morning. And I would like to call Your Honor’s

—6 2 -
attention to the fact that these official minutes of the 
Pupil Placement Board—it was agreed that this was 
it—says that the local school authority applied, at 
the request of the Pupil Placement Board, criteria 
and standards dealing with the transfers and assign­
ments of pupils of different races to the schools of 
that school division, which are regarded by this 
Board as valid and reasonable. Now, it seems to me 
that a whole lot of testimony here is kind of unreal.

The Court: It may be but that is what it is.
Mr. Nabrit: I was requesting latitude from the 

Court just to examine him in detail about this prox­
imity or nearness rule, whether there was any—

The Court: You can examine him as much as you 
want as to what he told the Board. What difference 
does it make what he didn’t tell the Board, because 
the Board could not use that which he did not tell 
them.

Mr. Nabrit: Yes, sir.
The Court: Be positive. Ask him. You can ex­

amine him all you want to about what he did tell the 
Board.

E. W. Rushton—for Plaintiffs-—Direct



69a

E. W. BusMon—for Plaintiffs—-Direct 

By Mr. Nabrit:
Q. Did you tell the Board that in the Roanoke City sys­

tem you did not apply any uniform rule of requiring that 
a person go to the nearest school?

—63—
The Court: That is kind of a reversed question. 

You are again asking him what he told them in refer­
ence to it. And if you think he told them more, ask 
him about that.

Mr. Nabrit: Is my question disallowed? Can I 
get an answer to that?

The Court: If he understands it.
The Witness: I don’t. That is the reason I hesi­

tate. I don’t quite understand it.

By Mr. Nabrit:

Q. Isn’t it true that among the pupils who were admitted, 
the nine pupils admitted to the all-white schools, there were 
some living much longer distances from those schools than 
pupils who were rejected by you on the ground of residence?

The Court: He didn’t reject anybody, he said.
The Witness: That is right; I  didn’t.
The Court: So, how can he answer that question? 

He said he didn’t reject anybody.
Mr. Nabrit: Rejected by the Pupil Placement 

Board.
The Court: I will sustain the objection to that 

question because he cannot give a reason for wdiat 
the Pupil Placement Board did. You will have to ask 
them that. They are subject to cross-examination.

Mr. Nabrit: I wasn’t aware that I asked for the
reason, sir.



70a

E. W. Rushton—for Plaintiffs—Direct

—64—
The Court: You asked Mm if the Pupil Placement 

Board rejected on the ground of residence. How 
would he know, other than to speculate? You may 
ask that of the Pupil Placement Board, if you want.

Mr. Nabrit: Very well, sir.

By Mr. Nabrit:
Q. Final subject, Mr. Superintendent. Is it true that you 

do make recommendations, generally, on Pupil Placement 
forms when they are forwarded by your staff? A. We get 
these pupil application forms, as you know, which is the 
recommendation here to which the children would be as­
signed, and then we assign that, send it in.

Q. Let me see if I can summarize it. Isn’t this what hap­
pens—fairly typical: That the principal of the school the 
child goes to, if that is the right neighborhood, signs his 
form recommending that assignment, and that you forward 
that to the Pupil Placement Board; is that right? A. Yes.

Q. And that then when the pupils move within your 
feeder system from junior high school, that this same thing 
is done by you. You fill out the Pupil Placement form and 
recommend the assignment in accordance with the feeder 
system. A. Yes—principal.

Q. Do you ever recall a case where you have been operat-
—65—

ing under the Pupil Placement Board when the Board had 
declined to accept your recommendation for assignment 
under this feeder system? A. No, I don’t recall a time 
that they did not accept our recommendation.

Q. Now, had there been any protests—had there been any 
occasions when your local authorities, before these 39, 
when your local authorities didn’t assign a pupil to a school



71a

the parents wanted him to go and then protest it to the 
Pupil Placement Board here in Roanoke? A. We had no 
protests before our Board.

Q. Do you have any large volume of Pupil Placement 
forms going up without recommendations? A. I would not 
say a large number going without recommendation.

Q. How many a year do you think might go up without 
recommendation? A. I would have to count to find out.

Q. What types of people would those normally be?

The Court: Just a minute. What bearing does 
that have on this case ?

Mr. Nabrit: Your Honor, it is the Plaintiffs’ view 
that the local authorities exercise decisive influence. 
Their locally adopted procedures are the ones that 
really count for practical purposes. The Pupil Place-

—66—
ment Board, as we know, as we have heard the testi­
mony, adopts these. So, I have to find out what these 
are.

The Court: The Court understands that. It is my 
understanding that the Roanoke City assigns pupils 
from one school to another or recommends that they 
be transferred to schools that they think they ought 
to be in. And they are sent to the Pupil Placement 
Board. The Pupil Placement Board considers them. 
And the Pupil Placement Board takes the position 
that it doesn’t make any difference what the local 
school officials recommend. That is not binding on 
them. But the practice is that unless the pupil, 
through its guardian or parent, requests a transfer 
to a school other than he would normally be assigned, 
the State Pupil Placement Board accepts as a fact

E. W. Bushton—for Plaintiffs—Direct



72a

that is the desire of the guardian. And, if they do 
object to it, then the State Pupil Placement Board 
makes its individual evaluation of where the child 
ought to be assigned. Now, if I  am incorrect on 
that—■

Mr. Parham: I understand that to be exactly cor­
rect.

Mr. Narbit: Will you stipulate to that.
Mr. Scott: We will stipulate to that.
Mr. Parham: Yes.
The Court: All right. That is their program.
Mr. Nabrit: I would make this comment about my 

stipulation, if I  might. That our stipulation does
—67—■

not include our agreement that the Board is right 
about the desires of these pupils that protest. We 
agree that is what they do.

The Court: That is what they do.
-u. .v . jj.TP W  w

—80—
# # # # *

By Mr. Nabrit:
Q. Is it correct that there were white children last sum­

mer in the schools these Negroes sought to enter who are 
below the median; isn’t that true? By definition, half the 
class is below the median; isn’t that so? A. There would 
be some below the median half.

Q. Half below? A. Median is the mid-point.
Q. So, there is no policy generally applied that those 

white schools of only taking people above the median, be­
cause you have to have the bottom half of the class?

E. W. Rushton—for Plaintiffs—Direct



73a

Mr. Parham: I think all Doctor Bushton is say-
—Sl­

ing is that you are going to have some below and 
some above and we are talking about people being 
transferred from one school to another.

Mr. Nabrit: Perhaps I can rephrase it.
The Court: Objection sustained.

By Mr. Nabrit:
Q. Is it true that there is no program for organizing 

your schools, including those three schools, with reference 
to the median test scores or any test except within the 
schools?

E. W. Rushton—for Plaintiffs—Direct

The Court: Objection sustained.
Mr. Nabrit, the Court has clearly indicated that it 

wants to hear any evidence that you have pertaining 
to transfer, particularly colored, that there is any 
difference in the procedure in transferring a white 
student than there is a colored student. Because the 
Court is operating on the premise that those in the 
schools that have not gone through the transfer 
procedure are there because they choose to be there. 
So, I  want to limit this to transfer applications, both 
colored and white.

By Mr. Nabrit:
Q. Now, sir, in processing transfers, pupils who move 

from one part of the city to another, do you do studies on 
them to determine their test scores and median; has that 
ever been done? A. If the parents have no objection to

—82—
the schools that they attend, there are no scores taken.



74a

The Court: The situation is if a parent applies 
for a transfer from a white school to another dif­
ferent than what the school board thinks they ought 
to be, do you use any different procedure in the case 
of a transfer of a colored student, if so, what?

The Witness: If they transfer from one school to 
another?

The Court: Wherever they want to transfer, if 
they want to make a transfer to a school other than 
that which he has been assigned. Does he have to 
use the same procedure as the petitioners in this 
ease were required to use in order to effect a trans­
fer?

The Witness: If they were transferred from one 
school to another, they normally—our feeder system, 
Your Honor, is such that they generally go through 
the same school which they originally started. If, 
however, there is a transfer, different from what we 
would suggest they transfer, the same procedure 
would follow.

The Court: That is my question.
The Witness: Yes, sir.
The Court: That is, whether a transfer of a white 

student or a colored student?
The Witness: Other than what we would suggest, 

that would be that situation.
—83—

By Mr. Nabrit:
Q. Have you ever previously or have you since you made 

these studies on these pupils ever had occasion to do this 
kind of study—the pupils’ IQ compared with the m edian- 
before?

E. W. Rushton—for Plaintiffs■—Direct



75a

E. W. Rushton—for Plaintiffs-—Direct 

Mr. Parham: Objection.
The Court: Objection sustained. Make that ques­

tion in case of a transfer student and I will allow 
it. That is proper.

Mr. Nabrit: I said in a case of a transfer student. 
The Court: Excuse me. I thought except in a case 

of a requested transfer.

By Mr. Nabrit:
Q. Where a pupil requested a transfer, such as on the 

ground of change of residence, or when a pupil comes into 
the system brand newT at any grade level, do you ever make 
any study of this type'—find out what his IQ is compared 
with the median—before you let him in the school! A. In 
some instances we have because we have this special school 
to which we assign that child to because a crippled child 
or a retarded child, we send him to the particular classes 
in that school.

Q. So, it is only for crippled and mental retarded? A. 
I said in that particular child there would be some differ­
ence. It wouldn’t apply to situations other than what we are

—84—
talking about.

Q. The same thing is true between Negroes, I take it? 
A. There is no difference in the way wTe do this.

Q. Now, can you give us any idea how many people you 
applied this kind of testing to last year, other than these 
39? A. I do not know.

The Court: These tests that you are referring to, 
I understand, are tests given in case the parent or 
guardian wants a child to go to a school other than



76a

that which the school officials have automatically as­
signed him !

Mr. Nabrit: These are tests that are given every 
year to all of the children in first grade, second grade 
and third grade. Those are IQ and achievement tests.

The Witness: We give tests throughout the sys­
tem.

Mr. Nabrit: Your Honor, I did not refer to any 
special test that was given at the time the people 
in the—

The Court: That is all the Court is interested in 
hearing. I  am not interested in whether they teach 
third grade or eighth grade mathematics in the 
fourth grade in Roanoke schools. Neither am I in­
terested in whether they are routine tests given to 
everybody. I am interested in what they do in case 
of transfers, because this is a transfer application 
that we are hearing, and I want to limit the testi­
mony to that.

—85—
By Mr. Nabrit:

Q. Now, the transfer applicants, other than these 39, 
have you ever gone back like you did here and gathered 
together all of their scores on their routine test summaries, 
their records and then compared them with the median 
score in the school they were trying to get in!

The Court: First, have you ever had any other 
applications for transfer other than these 30!

The Witness: We had none.
The Court: That answers it. He couldn’t have 

done it if he didn’t have any other.
The Witness: Wait. Please ask that again.

E. W. Rushton—for Plaintiffs—Direct



77a

The Court: Have you had any other student other 
than the petitioners here file an application for a 
transfer from one school to another, either white or 
colored? Have you had any of them?

The Witness: On the part of the parent, request 
for transfer?

The Court: Yes, sir.
The Witness: Other than what we have done nor­

mally now in our carrying on the allocation of chil­
dren ; no, sir, we haven’t.

The Court: These are the only 30 that ever gone 
through the procedure to be assigned to a school

- 86-

other than the routine transfers by graduation from 
elementary school or by moving or splitting up the 
school and so forth?

The Witness: That is correct. These parents 
asked for a transfer other than which we had nor­
mally done; yes, sir.

By Mr. Nabrit:

Q. Now, do you routinely recommend some transfers 
such as when a teacher who is a parent and the child 
reaches the school and the child wouldn’t normally go to 
that school? Do you have that thing? A. I  don’t think a 
teacher would make any difference.

Q. Ever have them on health? The parents want a par­
ticular child to go to school for health? A. I  would take 
that he didn’t have any—

Mr. Nabrit: Am I not permitted to test these an­
swers?

E. W, Rushton—for Plaintiffs-—Direct



78a

The Court: Yes, you can test him. But the best 
way to test him—you have evidence of any transfers 
other than these 30, it would be in direct contradic­
tion to what he just told me and the best evidence. 
Ask him if you want to.

By Mr. Nabrit:
Q. Will you answer that. Have there ever been any 

pupils who apply for transfers for health reasons from one 
school to another? A. I am sure that there are because 
of conditions of health. If they can be transported to school 
by a parent, it is easy for them to get there, it certainly

—87—
would be done.

Q. It would have been convenience of transportation! 
A. You didn’t—you asked about health.

Q. Transportation is connected with health? A. A per­
son had a heart murmur and taken up and put in a car, 
wouldn’t that be for a health reason?

Q. Yes. A. That is what I am saying.
Q. In such cases, do you check the child’s academic rec­

ord and measure them against the median?

Mr. W hittle: Objection.
The Court: Objection sustained. The question 

that you asked the Professor made it clear to the 
Court that any transfer that he makes or that the 
School Board makes, whether it be for health reason 
or due to overcrowding of the schools or relocation 
or splitting up of the schools and where the parent 
accepts the place where the child is sent to school, 
the child obviously is not protesting. It is only in 
cases where the school officials have assigned these

E. W. Rushton—for Plaintiffs—Direct



79a

pupils and they protest. That is what we are pass­
ing on, not routine transfers. And I understand him 
and I will ask it again to make sure. He has had 
no protesting transfers that were different than 
what the school administrators assigned you except 
the 30 in this case ?

— 88—

The Witness: That is correct.
The Court: That is very clear to me.
Mr. Nabrit: No further questions.

# # # # #

D orothy L . G ib h ey , called as a witness for the Plaintiffs, 
having been duly sworn, testified as follows:

Direct Examination by Mr. Nabrit:
Q. State your name and position in the school system, 

please. A. Dorothy Lawford Gibney.

The Court: And your position?
The Witness: My position at present is Director 

of Personnel of the City Schools.

By Mr. Nabrit:
Q. As part of your duties were you assigned the task of 

gathering information about these 39 Plaintiffs in this case
- 8 9 -

last year sometime? A. Last summer I assisted Mr. 
Camper who was then Director of Instruction in preparing 
some of this material. He had the major responsibility for 
that.

Q. Now, in gathering this material—to save time, let’s 
see if I summarize what you did. Did you go to the schools

Dorothy L. Gibney—for Plaintiffs—Direct



80a

where these pupils presently attend, these Plaintiffs pres­
ently attend, get their school records, study the things that 
were in each of these children’s individual folders, make 
notes on it, on such things as teachers’ comments on the 
pupil, the principal’s comments on the pupil through the 
years, his report card, his grades, his various IQ and 
achievement scores. Did you do those things? A. I did 
not physically go and get the cards but I did examine the 
cards and we did make notes of all of the facts that were 
on the cards; yes, sir.

Q. Now, am I correct in understanding that these intel­
ligence tests and achievement tests which you recorded were 
tests which had been administered routinely in the past? 
A. Yes, sir.

Q. Am I also correct in understanding that your school 
system maintains no centralized analysis or interpretation 
of tests by trained testing personnel but rather you have 
someone to distribute them and then each teacher and 
principal uses them as he sees fit; is that correct? A. To 
a certain extent. The record of back classes is returned

—go­
to the central administrative office to a person who has that 
material. And that has been done for a number of years.

Q. Now, is there anyone in the central office who is a 
professional testing person—someone trained to test aca­
demic and psychological testing and— A. No, there is 
not at present.

Q. And there was not last summer? A. Correct, there 
was not last summer.

*  # # # #

Q. Now, am I also correct in understanding that last 
summer, when you gathered this information, you and 
Mr. Camper made a study of the pupils in the classes, these

Dorothy L. Gibney—for Plaintiffs—Direct



81a

Plaintiffs sought to enter, pupils who yon expected to be 
in those classes and determined their median scores on IQ 
and achievement tests? A. That is correct. Mr. Camper 
with the principals of the schools did that, yes.

Q. Now, is it also true that those materials, those median 
scores are no longer available? You don’t have those any 
more? A. Now, the piece of paper that Mr, Camper himself 
put that material on is not available. The information, of 
course, is available because it was compiled in each school

—91—
by class records. And the information is the same informa­
tion now that it was then. And that median could be 
compiled again, but the piece of paper that he put the 
material on is not. I don’t know where it is.

Q. This piece of paper that he put it on is what you took 
to the Pupil Placement Board? A. It was. I  have his 
work sheet.

Q. And he made an oral report from these work sheets? 
A. That is correct.

Q. Now, at the meeting of the Pupil Placement Board, 
am I correct in understanding that there was a presenta­
tion in terms of several categories of pupils that these 
things were discussed: whether they were out of the resi­
dential area for the school applied; whether some of them 
were retained in school; whether some of them were below 
the class median; whether one had something about low 
aptitude; whether they had sibling relationship that was 
thought to be relevant, and whether some pupils were near 
the median or at the median? Those are the general things? 
A. Mr. Nabrit, everything that the Board asked us to find 
in connection with each individual child was discussed. 
Those were among the things discussed.

Q. These are the things that were among— A. Those 
were among the things discussed, yes.

Dorothy L. Gibney—for Plaintiffs—Direct



82a

Q. From your records that you have available, from your 
memory, can you tell us who were the pupils who were put

—92—-
in these categories among these Plaintiffs? A. As you 
know, from the depositions, when we took that, we did 
reconstruct this material and the facts were the same be­
cause they were already recorded on cards and we recon­
structed the same facts. And I could tell you the test 
results and so on of each individual child, if you so desire?

Q. Now, I wasn’t asking you about the test results just 
yet. All— A. I could tell you the distances from schools, 
sibling relationships and all of those items which—

Q. For which children involved? A. Yes.
Q. Could you tell us which children were out of the 

residential area? A. I would certainly have to look, 
because the numbering seems to have been pretty much at 
random. Of course, as you know from the other, there 
were—

Q. Would you check 2, 3, 4, and 5 and see if those were 
the ones? A. Two, yes, distance was involved. Three, 
yes, distance. Four, yes. Five, sorry, this is not in any 
order so I  cannot find it that way. Five is correct. That is 
correct.

Q. Now, for retained in grade of previous year; was 
there one person, not a Plaintiff here, who is number one?

—93—
A. That is correct.

Q. For those who were below the class median, was that 
on achievement test and/or IQ? Would that be a better 
way of saying it? A. Yes.

Q. Below— A. Or whichever we had were numbers 19—
Q. Would you just check these numbers: 19 through 27. 

A. Now, just a minute. They are not in numerical order.

Dorothy L. Gihney—for Plaintiffs—Direct



83a

I have to find them. Nineteen, yes, that was and there were 
also other factors involved. He happened to be.

Q. There were other factors. We will come back to that. 
A. And you say 19 through 27 consecutively?

Q. That is correct. A. Twenty, twenty-one, twenty-two, 
yes; twenty-three, yes; twenty-four, yes; twenty-five, yes; 
twenty-six, no. I don’t find that on 26. Twenty-seven, I 
do not find that on 27. Twenty-eight—

Q. You don’t find that on 26 and 27. Do you know of 
two others below the median? A. Let’s see if I can find 
26 again. That is not correct on 26.

The Court: Do I understand, so I will follow this, 
there were other grounds, below this median ground, 
as far as 19 was concerned?

Mr. Nabrit: That is my understanding, sir.
—94—

The Court: And did the Court also understand 
that 20, 21, 22, 23, 24 and 25, that the only ground 
of not granting the transfer—

Mr. Nabrit: No, sir, there were other grounds. 
There are never quite clear-cut grounds about these 
things.

The Court: That is what I want to understand. 
Then these groups, that is, 20 to 25 inclusive, the 
below-class median is one fact that you found and 
reported and there were other facts pertaining to 
some or all of these students?

The Witness: Yes, sir. But with 26 that you men­
tioned a little bit ago, that was not one of the factors 
that I have listed on the material that I did.

The Court: To save time, Mr. Nabrit, is there 
available a summary that will record the various

Dorothy L. Gibney—for Plaintiffs—Direct



84a

criteria, if there were more than one, that was pre­
sented to the Pnpil Placement Board actually involv­
ing these various students? Do you have a summary 
made up that way?

I would like to know, for example, in passing on 
student number 20, if I am going to know the ground 
that he was turned down, I  would like to have all of 
them set under 20 and I would know. Is there such 
a summary made up? It is going to be confusing 
otherwise.

Mr. Nabrit: Sir, do you want counsel to answer 
your question, or do you want me to answer it?

—95—
The Court: Do you have any?
Mr. Nabrit: I don’t have any.
Mr. Whittle: I understood Mrs. Gibney to have 

said no such summary has been made.
The Court: No such summary has been made?
Mr. Whittle: That is what I understood her to 

answer your question. I  notice she is reading from 
something. Apparently, she has these students 
listed by numbers. Looking at that paper, she said 
26 and 27 didn’t fall in this below-median class. So, 
she must have some other categories next to 26 and 
27.

The Witness: Your Honor, I do have some mate­
rial. This is not the original material that was taken 
to the Placement Board that Mr. Camper did. We 
have some scratch sheets and some work that he did, 
but we were never able to find that one sheet.

The Court: I understand you didn’t find it.
The Witness: But this I have right here I have 

reconstructed the material as nearly as we could 
from the records.

Dorothy L. Gibney—for Plaintiffs—Direct



85a

The Court: You have reconstructed your summary 
to the best of your ability from the physical data 
that was available at that time?

The Witness: Yes.
—96—

The Court: That is the best evidence. We will 
save a lot of time if we have a copy of that. I  mean, 
somebody has to tell the Court what was presented 
to the Board.

Mr. Nabrit: Sir, I might inform the Court that I  
base this summary sheet that we have before us from 
Mr. Hilton’s statement at the deposition from his 
personal notes and what-have-you. That is how I got 
these.

The Court: I will take both of them, if they are 
different. I mean, I just think we would save a 
lot of time if. this witness has already done that. 
She had them all made from the original records 
which the original work was done. And then if they 
would give us a copy of it and you have an oppor­
tunity to look at it and you think it is something 
other than that, certainly you shall have an oppor­
tunity of showing it. But rather than go through and 
ask each one, I will never be able to remember that 
on 39 applications.

Mr. Nabrit: I  have a problem. I  have a witness 
who is only able to be here up to a certain time this 
afternoon. Perhaps we could excuse the present 
witness and ask her to make up such a list as you 
propose while I question this witness.

The Court: She has already made up a penciled 
list.

The Witness: This is a summary. This is the 
material on every one of these children, question by

Dorothy L. Gibney—for Plaintiffs—Direct



86a

Dorothy L. Gihney—for Plaintiffs—Direct

—97—
question, which Mr. Nabrit has a copy which he 
received at the deposition. This is a sheet that sum­
marizes that material on one piece of paper so 1 
wouldn’t have to look at all of these pieces of paper.

The Court: I  will appreciate your efforts in sum­
marizing all of those little pieces of paper for my 
benefit. And, if you will either let me have that copy, 
but I don’t want you to lose your last one. Give it 
to the Clerk now and let him photostat it. "We will 
all have copies of your summary.

Mr. Nabrit: Your Honor, I admit I am now 
really baffled because the information sheets which 
I have contain raw facts but they don’t contain any 
information putting these pupils in categories. How 
are you able to put them in categories'?

The Court: I don’t know what they contain, but I 
am willing to accept from this witness—this is her 
summary of the official records that were used, the 
school board records, that were used when the de­
ceased member compiled the information that he 
gave to the Pupil Placement Board; is that right?

The Witness: Yes, sir.
The Court: And you have gone back on that orig­

inal information and summarized and you believe 
you have reached the same factual information that 
you would have if you had his summary?

The Witness: Because they were based on the
- 9 8 -

same set of facts.
The Court: Based on the same thing and it is the 

next best evidence that we have. And I would like 
to have it and if nobody wants to introduce it, I will 
introduce it myself.



87a

Mr. Nabrit: Very well, sir. I would prefer they 
would not be Plaintiffs’ exhibit.

The Court: Let the Clerk have it and we will call 
it Court Exhibit and those other papers and it will 
be marked as Court Exhibit No. 1.

You can go ahead and have that done and if you 
have any other questions, proceed.

Mr. Nabrit: Do I understand it was just the 
yellow sheet?

The Court: And those papers that are part of it.
# # # m #

B. 8. Hilton—for Plaintiffs-—Direct

*  # # # #

B. S. H ilt o n , called as a witness for the Plaintiffs, having 
been duly sworn, testified as follows:

Direct Examination by Mr. Nabrit:
Q. State your name and official position, please, sir. 

A. B. S. Hilton, executive secretary of the Virginia Pupil 
Placement Board.

Q. Principal administrative officer of that Board; is that 
correct? A. Yes.

Q. You were present at the meeting of the Pupil Place­
ment Board August 15, 1960, when the— A. I was.

— 100—

Q. During the entire discussion about the Plaintiffs in 
this case and other Roanoke pupils? A. I think I heard 
the entire discussion.

Q. Now, sir, do you recall giving to me at the deposition 
in this case a breakdown of the categories of these various 
pupils from personal notes that you had made, I believe;



88a

do yon remember that? A. I don’t give personal notes. I 
did have the notes, but I don’t think it was a personal note.

Q. You had some notes and you gave me a breakdown? 
A. Yes.

Q. Now, do you still have those same notes, sir? Do you 
have them with you ? A. I have a sheet here that—

The Court: You have the notes that you gave him, 
the breakdown, during the deposition? Do you have 
those notes with you?

The Witness: I have this sheet.
The Court: That is not my question. Do you have 

the notes that you summarized when you were taking 
your deposition?

The Witness: They were not personal notes.
The Court: I  don’t care whose notes; do you have 

them?
The Witness: This is the sheet that they were 

given from.
— 101—

The Court: That is it, whether they are personal 
or not.

Mr. Parham: That represents the notes you were 
referring to.

By Mr. Nabrit:

Q. You have those notes typed up from those sheets; 
is that what it is? A. Yes.

Q. Can you give us the groups, the categories of the 
pupils? Do you have them by name or by number?

Mr. Scott: If Your Honor please, I object to that. 
The members of the Pupil Placement Board are

B. S. Hilton-—for Plaintiffs—Direct



here and he is nothing blit the executive secretary 
and they are here and available to testify, and he 
doesn’t do that. What Mr. Hilton himself did per­
sonally had nothing to do with it.

The Court: Well, of course, I will rule on that, but 
he is the administrative assistant. I understood he 
was present at this oral conference between the 
county officials and the Pupil Placement Board. The 
only way we are going to find out what took place 
is let him testify to the best of his recollection what 
did take place. I understood that he had some notes 
of that meeting. If they are, that is the best evi­
dence and that is the reason I asked Mm to produce 
the notes, whoever they are. Do you have any notes 
that you took at that meeting—let’s have them. Did

— 102—

you take any notes at that meeting?
The Witness: I took no notes. This is a sheet that 

we had handed to us. I don’t know who—
Mr. Scott: I  am afraid that normally we don’t 

have a court reporter there and we have a secretary 
and I don’t think the secretary took notes.

The Court: I  don’t know whether he did. I  want 
to know.

Mr. Scott: I would like to ask, sir, who made this 
up?

The Witness: I don’t know who made it. This 
was a copy of a sheet used at the meeting.

The Court: By the Board and the people in con­
ference?

The Witness: Yes.
The Court: Let’s have that sheet so we don’t need 

to state what is on it, just hand it.

B. 8. 'Hilton—for Plaintiffs—Direct



90a

Mr. Nabrit: I move that this be admitted in evi­
dence.

Mr. Parham: Do yon want to introduce this in 
evidence?

The Clerk: This paper will be Plaintiffs’ Exhibit, 
Your Honor?

The Court: Is that marked on the face of it what 
it is?

Mr. Nabrit: It says at the top of it: Applications, 
1960. That is the only heading.

The Court: I  will direct the Clerk to write on 
there so that the record will know it is not a part 
of the mark—this is a sheet used by the Pupil Place-

—103—
ment Board and the Superintendent of Schools and 
others on the August 15th conference, so that later 
we will know what it is.

Mr. Nabrit: This piece of paper has the pupils’ 
names again. We would like the same rule to apply.

The Court: That exhibit will be sealed except to 
counsel and the court officials.

By Mr. Nabrit:
Q. Mr. Hilton, is this the only record that you have down 

at the Pupil Placement Board indicating what happened at 
that meeting other than the official minutes, which are 
already in evidence? A. Yes.

Q. Am I correct in recalling your testimony to the fact 
that there was a secretary or clerk present throughout the 
meeting but she made no notes or verbatim transcript? A. 
Yes.

Q. The Roanoke City School ever make a presentation of 
this type before in any case of any type to your Board, oral 
presentation of facts like this? A. Not to my knowledge.

B. 8. Hilton—for Plaintiffs—Direct



91a

Q. Any since then? A. From Roanoke City, none that 
I know of.

Q. How long have you been in your present position? 
A. Since July the first, 1959.

-as- .y . -v- ^ -v--A- *A' "A* vv* '7.'

—105—
■M. ■Hz -S&W v r vS ~A~

Mr. Nabrit: I  am not interested in that stipula-
—106—

tion, Mr. Scott. I would like either to ask a question 
—probably easier for me to ask a question whether 
he made any announcements, whether the Board 
issued any public statements formally adopting any­
thing along the lines of desegregation program for 
any community.

Mr. Scott: I will stipulate that there has been no 
such formal statement of any kind.

The Court: Stipulated—never published or made 
any formal statements of that type.

Mr. Scott: Correct, sir.
The Court: For any community. For any com­

munity within the State.
Mr. Scott: Correct, sir.
The Court: So stipulated.
Mr. Nabrit: Stipulate further that there is no 

present contemplation of making any such announce­
ment or develop any such program for any com­
munity?

Mr. Scott: I  will stipulate that there is none, as 
far as I know. I can’t speak for whether the Board 
is going to do it, but none that I know of. And I will 
stipulate to that.

The Court: I  will answer the question. The Board

B. 8. Hilton—for Plaintiffs—Direct



92a

itself wouldn’t stipulate what it might or its succes­
sor might do in the future. They can state what 
has been up until now. It couldn’t be binding upon a 
future Board.

—107—
Mr. Nabrit: I didn’t mean to make it—perhaps I 

misstated it. What I meant was there was no pres­
ent intention of announcing any plan or preparing 
any plan along this nature !

Mr. Scott: That is correct, sir.
-n- w  w

D octor J ames A. B aytow, called as a witness for the 
Plaintiffs, having been duly sworn, testified as follows:

Direct Examination by Mr. Nabrit:
Q. State your full name and address. A. James A. 

Bayton, 5908 17th Street, Northwest, Washington, D. C.
Q. Doctor Bayton, what is your present employment, 

your position! A. I have two. One, I am a professor of
- 1 0 8 -

psychology at Howard University. And, second, I am vice 
president of National Analyst Corporation, which is a 
wdiolly-owned subsidiary of Curtis publications.

Q. What does that— A. Psychological research organi­
zation.

Q. Would you state your educational background! A. 
Well, I have a Bachelor of Science degree from Howard 
University, Master of Science from Howard, a Ph.D. from 
the University of Pennsylvania in psychology; additional 
studies at Columbia University.

Q. State your work and experience in the academic field. 
A. From 1939 until 1943, I was head of the Psychology De­
partment at Virginia State College, Petersburg.

Dr. James A. Bayton—for Plaintiffs—Direct



93a

Q. Virginia? A. Yes. And then from 1945 until 1946 
I was head of the Psychology Department at State College 
of Louisiana. 1946 to 1947 I was head of psychology at 
Morgan State College in Baltimore. And from 1947 to date 
I  have been professor of psychology at Howard.

Q. What other work experience in your professional 
field? A. From 1943 until 1945 I was a psychologist with 
the Department of Agriculture in their psychological re­
search group.

Q. Full-time or part-time? A. That was from 1943 to 
1945.

—109—
Q. Was that full-time? A. Full-time. Full-time. And 

then for about four years, 1948 to ’52, I was a part-time 
consultant with the Department of Agriculture in the same 
type of thing. And then from about 1950 to date 1 have 
been associated with National Analyst as a consultant di­
rector of market research and now vice president.

Q. Now, what in your experience particularly relates to 
testing, psychological testing and academic testing and so 
forth? A. One of the main subjects that has to do with 
teaching psychology courses. We also make considerable 
use of psychological testing in my work with National An­
alyst. And then I have a research program at Howard Uni­
versity in which we use a lot of psychological testing on 
research problems.

Q. That is with students? A. Yes; people working on 
graduate degrees and that sort of thing.

Q. And, without listing them, have you published arti­
cles in professional journals or anything like that? A. I 
have about 30 published in psychological literature.

Q. And do you belong to professional societies relating 
to your work? A. Fellow of the American Psychological

Dr. James A. Bayton—for Plaintiffs—Direct



94a

Association, American Marketing Association; Phi Beta 
Kappa; Sigma Xi, a national science honor society.

Q. Now, sir, I am going to ask you to give us definitions
—110—

and explanations of some of the terms and concepts we 
have heard here, and try to keep them in simple, easily 
understood form. Tell me, what is a median? A. Well, a 
median is a statistic. And, when you are in statistics, there 
are two basic kinds of data that you get, one which is infer­
ential. That is what you use—

Mr. Scott: If Your Honor please, are we interested 
in what median generally is? I think we are inter­
ested in median so far as these individual Plaintiffs 
are concerned. And I am very much impressed with 
the witness’ claims, but I  think this is immaterial. 
And I would like to object.

The Court: Objection overruled. He is an expert. 
He can explain data, definition of technical words. 
Go ahead.

The Witness: As I said before, there are two 
classes of statistics. One is inferential. You use 
those in drawing conclusions about experiments. 
Then there is another class known as descriptive 
and a median falls within that category. In other 
words, when you are using a median, you are using 
it to describe something, some group, or in this case 
a class. In other words, it is an attempt to describe 
a class.

By Mr. Nabrit:
Q. What does it describe about a class? A. It describes 

nothing than that half of the people are above that score 
and half are below it.

Dr. James A. Bayton—for Plaintiffs—Direct



95a

—I l l —
The Court: In simple terms, a median is nothing 

more or less than being right in the middle, isn’t it?
The Witness: Yes. It defines the middle point, 

something different from the average. Sometimes 
we get an average thrown in here. It is approxi­
mately average.

The Court: Theoretically, a median is half of this 
group is superior to that line and exactly half is 
inferior to it. So, it is right down the middle?

The Witness: That is all it describes about a 
group.

w  w  w  w  w

By Mr. Nabrit:
Q. Well, what does IQ mean?

The Court: What does what mean?
Mr. Nabrit: IQ.
The Court: All right.
The Witness: Well, Intelligence quotient measures

—112—
the individual’s potential for learning, especially 
academic kind of material. It doesn’t measure howT 
much he knows. It measures his potential for acquisi­
tion of this type of material.

The Court: IQ is measurement of a person’s 
ability to learn, isn’t it?

The Witness: Ability to learn, potential to learn.
The Court: Potential to learn?
The Witness: Yes, sir.

# # # # #
—113—

# # # *  #

Q. I believe you have seen, Doctor, these materials which 
are in Court—Court Exhibit 1—these summary sheets.

Dr. James A. Bayton—for Plaintiffs—Direct



96a

Did you see the names of the various tests that were given 
these children! A. Yes.

Q. You know those tests, what they are! A. Yes.
Q. What can you tell us about those IQ tests that were 

given! A. Well, they have the California Mental—they 
are accepted and widely used intelligence tests that are 
used in these schools.

Q. Well, with reference to those tests, what would you 
say is the difference between a child who had an IQ of 98 
and an IQ of 100! What does the answer mean! A. Well, 
that brings up another question. If you give a child a test 
and he gets a certain score. Say he got a score of 98. 
Nobody would want to swear an oath that his score is pre­
cisely 98. We know it is in some area in there. If a child 
has an IQ of 98, that IQ is somewhere between 93 and 103.

—114—
So, on that basis, you take between 98 and 100. I would 
never say there is really any difference, I wouldn’t say, with 
an IQ of 98 and 100, because you have plus and minus on 
each of them.

The Court: In other words, from your opinion, it 
takes a variable degree—within 10 per cent—5 per­
cent either way ?

The Witness: I don’t feel one child, say, is more 
intelligent unless you get at least 5 IQ points away.

= £ # # # #
Q. What is a normal IQ! A. Well, normal IQ is, usu­

ally, assumes to be 90 and 110. That is in clinical psychology 
which says the normal IQ is 90 to 110.

Q. Well, now, what do you know about the 90 to 110 
range to make you think it is normal! Do a lot of people 
fall in that group! A. Yes, this is the—

Dr. James A. Bayton—for Plaintiffs—Direct



97a

The Court: Accepted standard?
—115—

The Witness: Yes.
The Court: Let’s get on with the questioning. 

This witness understands normal means accepted 
standard. It may not be true but that is what the 
profession accepts.

By Mr. Nabrit:
Q. Tell us something about achievement tests of the type 

that you notice were on these. A. Basically, achievement 
test is a test which attempts to measure how much the 
child has learned with respect to a given grade. If he gets 
a general achievement test score of six, that "would mean 
he has acquired the knowledge which is comparable to what 
the average sixth grade pupil acquired. Of course, that 
goes back again to the standardization procedure—what the 
average sixth grade pupils demonstrated they learned in 
the original testing.

Q. Now, how do you use this in describing a class? Give 
us an example using a median IQ. A. Well, as I  said, the 
median is descriptive. And the only thing it tells you 
about a class, the only thing it describes, it tells you the 
score-half of the people are above and half of the people 
are below. And that is the median description. There are 
other things that you can know about a class that describes 
it. The most important other thing being what we call 
statistical variability. For example, if you had all of the 
data, if you had all of the—let’s suppose you had a class 
of 30 children. Then you can determine their median.

—116—
That would be easy. Then you have something else—stand­
ard deviation. For example, suppose the median IQ of

Dr. James A. Bayton—for Plaintiffs—Direct



98a

this class was 100. If you had all 30 children you might 
discover that the lowest score in that class was, let’s say, 
80 and the highest score was 110. So, in descriptive statis­
tics, you would need not only want to know the median or 
average, you would need to know what this variability is, 
how they are spreading*.

Q. Something like high and low? A. High and low is 
something else again. Let me give you an illustration of 
what I mean. Suppose you have a class in which the median 
IQ was 100 and calculated the deviation, and you discovered 
that this number was five. Then you could say that ap­
proximately two-thirds of the people in that class with 
median of 100—falls between 95 or 100. However, you 
could have the class in which the median IQ was 100 and 
the standard deviation was 10. This class is now different. 
Median is 100, half above that, half below that, but the 
middle two-thirds spread all of the way up to 110. What­
ever this number, you cannot do it until you know that 
number. Of course, the high and low scores, that is some­
thing else again.

Q. Now, the same idea applies to achievement tests, 
school reading tests? A. If you want to describe a class, 
you cannot describe it adequately unless you know these

—117-
two items—median and the variability because it tells how 
far the two-thirds possibly go.

Q. Now,— A. Can I say that another way?
Q. Go ahead. A. Suppose if you had a situation in 

which the median on an achievement for IQ for a class were 
100, and then here comes a given individual who has an 
IQ of 90. He is below the median. But the question now 
is, is he still within that one-third below or is he outside 
of the one-third, away from it? That is the question that 
I am raising. He is not below it, period.

Dr. James A. Bayton—for Plaintiffs—Direct



99a

The Court: You are telling me in substance that 
this means, the testing is not an exact science to 
determine with absolute certainty how good or how 
bad a student is; is that what you are saying in 
substance?

The Witness: The last point I  am saying, how 
good or bad a given student, related to a class, can­
not be told merely by the fact that he is below the 
median. You can be misled by the fact that he is 
10 points of the median. He might be one-third of 
the people below or he might be all of the way down 
at the end of the distribution.

The Court: Those figures are all right, providing 
you know how to use them and you want to make 
them come out to a certain answer?

The Witness: No, sir. I have to disagree with that.
—118—

I say th is: There are proper ways to use them and 
I am telling what the proper way, I understand, is. 
This is the description situation. I tried to point out 
that there are two elements; namely, not only the 
median but how are they spread around this median.

The Court: I am satisfied with this gentleman’s 
qualifications in his field. Let’s get down to the 
basic question on these tests and have an opinion 
on that. I assume that is the purpose of qualifying 
him. He is eminently qualified.

By Mr. Nabrit:
Q. Can you tell us anything from a scientific point of 

view about the child if you have his score on a test and 
the median and that is all you had, as to how he compares 
with that class? A. No. I just said if all I  had was the

Dr. James A. Bayton-—for Plaintiffs—Direct



100a

score for the class that he is trying to get into and his 
score, I still would not want to say something about him 
unless I know this other measure—the standard deviation 
and what defines the middle two-thirds of the class. I 
would want to know that. Because I feel that if you have 
a class that the instruction of the class will most likely be 
tailored to that middle two-thirds of the group, whatever 
their status might happen to be. If it is tight, it is better 
for the teacher. If it is spread, she has more problems. 
They try to hit that middle two-thirds. That absolute 
middle person doesn’t establish it. This middle two-thirds

—119—
establishes it. So, I want to know whether this individual 
is going to fall up two-thirds or two-thirds below the median 
which I cannot tell by the median. So, I cannot tell where 
he belongs.

Q. Now, did you have an opportunity to look at copies 
of Court Exhibit No. 1, those information sheets, and look 
at the various comments attributed, in the exhibit, to 
principals and teachers about personality and behavior 
and so forth? A. Right.

Q. Do you have anything that you care to say in terms 
of scientific use of studies of such teacher comments on 
pupil personality and so forth, anything? A. I know that 
school board policy—teachers will, of course, record such 
things as is the child aggressive and so forth. But you 
find an interesting thing come up. These are written at 
times when it isn’t perhaps realized that this may end up 
in court affairs. But we have here these comments ending- 
up in a Court of Law and this way it is a very serious 
question as to the competency of the person that wrote 
that.

Dr. James A. Baytcm—for Plaintiffs—Direct



101a

Mr. Parham: Isn’t that a legal question?
The Witness: I thought it was a professional 

question. Because the State of Virginia has a 
certification hoard in which the people who want 
to practice clinical psychology have to get qualified. 
This is a movement that they are trying to get in

— 120-

all States and Virginia happens to have it.
The Court: What you are intending to convey, 

Doctor, is that the statistical data that the schools 
in Roanoke have been keeping in reference to their 
students over the years is of no value?

The Witness: No, not the statistical data. The 
question was about teacher comments about stu­
dent personality. That is not statistics.

The Court: That is part of the data—we will 
strike out the word “statistical”—contained in these 
summaries; isn’t that right?

The Witness: If the State of Virginia feels it is 
necessary to have a board certify clinical psycholo­
gists, and you are not supposed to do personality 
analysis in the State of Virginia until you have such 
certification, it seems to me the implication is plain: 
that people who don’t satisfy these certification re­
quirements shouldn’t be doing personality analysis 
when it is going to be a matter of legal implication.

By Mr. Nabrit:
Q. Can you give the Court the type of comment, sample 

comment, that you are talking about? What item on the 
form—

Dr. James A. Bayton—for Plaintiffs—Direct



102a

The Court: Let’s take the first one.
The Witness: One says—I won’t call the name of 

the student—a behavior problem, not well adjusted.
— 121—

The Court: Are we looking at the same one ?
Mr. Nabrit: We have the code number one.
The Witness: I am talking about the comment 

that says so and so presents a behavior problem.
The Court: What page?
The Witness: Item 12, I guess. Presents a be­

havior problem, not well adjusted. I  will stop at 
that one. Certification requirements for clinical 
psychologists says that the people who are supposed 
to make that statement have to be certified by this 
board as a clinical psychologist.

The Court: What you are telling me is that a 
teacher should not be permitted to evaluate a child 
as far as behavior problem is concerned and should 
not be permitted to state that in his or her opinion 
that pupil does not exhibit leadership ability and 
that his home conditions are poor and his parents 
are not cooperative! Now, what has a psychologist 
got to do with that evaluation?

The Witness: I am not saying that the teacher 
should be permitted to use—I am raising the ques­
tion of the competency of a teacher when it gets 
to the place where this individual is involved in a 
legal matter.

The Court: Do I understand, in your opinion, 
a qualified teacher who has had this child under his 
or her observation for a period of years in the 
class directly, if that is the teacher’s honest opinion

Dr. James A. Bayton—for Plaintiffs—Direct



103a

— 122-

in reference to that subject, the Court should not 
give any consideration to it because it is not done 
by a trained psychologist?

The Witness: Frankly, I feel that if it conies to 
a matter of the Court having to make a decision 
about a child on the basis of such a type of state­
ment, that it should be on the basis of a competent 
individual, and the State of Virginia by certification 
requirements says they have to meet certain re­
quirements to make this statement.

The Court: Where would the board find out what 
a child’s behavior problem actually is in the school­
room? What better source could the Court have 
than the teacher who has been physically observing 
that child for, say, five years? What better evidence 
can the Court get?

The Witness: Well, sir, the practice of clinical 
psychology should be a profession now. May I make 
an analogy?

The Court: I want to know what better evidence 
can I get than an honest person examining the child 
for five years every day in the school? I am talking 
about behavior. That teacher sees the child won’t 
obey, won’t do anything, does everything backwards 
or wrong, and they see that for five years. You say 
they are not competent to come in and tell me that 
that child doesn’t have a normal behavior?

The Witness: I would have to go with that, if
—123—

the child steals and they steal, it is obvious.
The Court: I didn’t say steal.
The Witness: I will make a point. If the child

Dr. James A. Dayton—for Plaintiffs—Direct



104a

obviously steals and there is no question about his 
stealing, then the teacher—if that goes in the rec­
ord, I would say all right. All this says is behavior 
problem and is not well adjusted. That is all it 
says.

The Court: That is a conclusion. I will agree with 
you.

The Witness: So, what constitutes the ingredient 
that went into this decision!

The Court: The next?
The Witness: He does not exhibit leadership 

ability.
The Court: That is a fact, not of the teacher.
The Witness: May I talk on that point, sir?
I have had for the last five years an extensive 

research with my graduate students on this prob­
lem of leadership ability, the interest in leadership 
activity and the interest in leadership roles. An 
article on the research is to be published now. The 
thing that has been most challenging in this is that 
we find considerable proportion—I did not say all 
—considerable proportion of individuals who are 
showing leadership ability and leadership interest 
but this seems to be stemming from what they call 
compensatory drive. In other words, these people 
have a lot of hostility and they are maladjusted,

—124—-
aggressive drive and this sort of thing is leading 
them into leadership. Pardon the redundancy. And, 
so, therefore, this is exactly the kind of thing that 
I am talking about in which a person who is not 
competent and doesn’t know most likely about the 
research, the professional research on leadership,

Dr. James A. Bayton—for Plaintiffs—Direct



105a

and I notice I have heen impressed with all these 
records making some comment on leadership ability. 

# & * # *
—129—

* M. M. -St.w  w  w  w

By Mr. Nabrit:
Q. Now, is it yonr professional statement that the com­

ments made by these teachers, at least some of them, are 
clinical psychological evalnations—the type of results you 
try to find out by a professional clinical psychologist mak­
ing the evaluation? A. Yes, sir.

Q. That is the point that you were trying to make with
—130—

the analogy? A. Yes.
Q. Now, do you know any scientific principles that relate 

to this sibling business—the idea of not allowing siblings 
to be separated in different schools where possible? A. It 
is a thing that I discuss a lot in developmental psychology, 
and you get lines on both sides. There is one topic they 
discuss quite often in personality theory known as sibling 
rivalry in which they talk about the conflict between siblings 
as being a source of difficulty. On the other hand you can 
find a lot of discussion in social psychology about broken 
homes and breaking up siblings and so on. You can find 
discussions on one side saying that the sibling relationship 
can be dangerous when it gets too much rivalry. On the 
other hand you have discussion about the problem of sepa­
rating siblings and broken home situations. It is discussed, 
yes.

Q. Now, you tell me that sibling problems are discussed 
in psychology. Do you know of any accepted theories or 
any theory or view held in the field of psychology that it

Dr. James A. Dayton—for Plaintiffs—Direct



106a

is bad to separate brothers and sisters in different schools? 
A. No, I know of no such.

Q. Have you heard of any such thing like that? A. No.
Q. Now,— A. They are both likely to be on a different

—131-
pace, anyway, unless they are twins. So, they get sepa­
rated and they get separated when one goes to junior high 
school and the other is behind.

Q. Do you know of any studies on this idea, scientific 
psychological studies on this idea of restricting admission 
of children to those below the median in a stipulation— 
A. No. An answer like that is ambiguous. Sometimes you 
have situations in which children have been deprived and 
you put them in what is very normal to them, very stimu­
lating situation and they do progress. In New York City, 
what I have read about it, New York City has an educa­
tional project where they have taken culturally deprived 
individuals and with this background and they put them 
in a unique and novel situational organization—all kinds 
of educational things going on. Now they get people going 
to college and so on. So, this is novel and has been bene­
ficial.

Q. You tell me that IQs might change? A. Yes.
Q. Explain how IQ potential to learn, as reflected by 

IQ test, can change? IQ—sounds something like innate 
ability. How does IQ change if this is innate ability? A. 
The kind of test being used here, the child has to read 
the questions. The child has to read the question to get 
whatever the issue is. So, therefore, one of the primary 
things that has been—

Q. Excuse me. The first grader can be administered only
—132—

by a teacher? A. I am talking about the more difficult,

Dr. James A. Bayton—for Plaintiffs—Direct



107a

higher level testings where the child has to read. Now, if 
the child has a reading difficulty, then it would take him 
some extra minutes, say, or seconds, to even get to the 
issue of what the question was about. Once he got to that, 
he could answer, perhaps, just like that, you see. But 
he loses his time in getting through the words to the con­
cepts that they are presenting to him. So, it is not an 
uncommon thing that you can find when children improve 
in their reading ability levels then this permits them to 
make a better score on the intelligence test. This does not 
imply that the intelligence, as such, got better. They have 
better equipment to bring to bear to the test in the first 
place—that kind of thing. And, you have the motivation. 
Some children, when they take the intelligence test, are 
not particularly interested and not highly motivated. If 
they are motivated, they work harder.

Q. Are there any others of this sort of non-obvious 
things that affect IQ test scores? A. Well, I would number 
them all under the general heading of general social cul­
ture level. As I said before, you have to bear in mind what 
this original group was that they made the test up on and 
established the score.

Q. You keep talking about it. Would it be helpful to our 
understanding if you told us what that was! A. The stand-

—133—
ard American intelligence test is the Stanford-Binet for 
school use. That is the standard. Now, that is used in­
dividually by all of them, ties back to those concepts. Now, 
the Stanford-Binet—

Q. You mean the Anderson or whatever it was that they 
gave here—what is this relationship to the Stanford- 
Binet? A. It was in the Stanford-Binet Test that estab­
lished the use of the IQ, Another thing about intelligence

Dr. James A. Bayton—for Plaintiffs—Direct



108a

tests. You are supposed to put the child in a new situation 
when he takes this test. That means that you can only give 
him a certain one. If you give it to him a second time, if 
you give this child an intelligence test at some later date, 
you shouldn’t use the same test because it is not new. You 
are supposed to be giving him new circumstance and situa­
tion. Another problem—you never get all of the IQ if you 
have to test all individually. These California Mentals, 
the main point about them is that they are group tests. 
They are all supposed to stem back to the Stanford-Binet 
and supposedly the IQ is interchangeable. Just a matter 
of one test against another. And, so, since this is supposed 
to be interchangeable you also have to go back to that 
test in that original—in the latest revision of the Stanford- 
Binet Test, if you look at the group of children that they 
used to establish all of the information and norms and 
what the average child does and so on. That was a national 
group of children, but they were all white, for example, 
they are all white children. It says specifically in the book

—134—
about it that they are all white. They made sure that you 
know that the average IQ of a person is related to some 
extent by the social-economic position of his parents. For 
example, if you take a large number of professional—chil­
dren of professional parents, white, and then take a lower 
social-economic group down to white labor, the average 
IQ just goes down and down and down. That is for white. 
And the same thing would be true among Negroes. But, 
in the original group, they didn’t use any Negroes. They 
used white. So, there was no Negro individual used in 
this study at all.

Q. Any clinical practice based on this that you use? 
A. Well, there is a clinical practice, if they had used, as

Dr. James A. Bayton—for Plaintiffs—Direct



109a

the book says on covering this point, if they had taken 
a national sample of children, white and Negro, then ap­
proximately an even percentage of all of the children used 
would have been Negro. The social-economic situation 
being what it is, Negroes fall disproportionately in this 
lower portion—national economic group—than the whites 
do. So, that is why they said in the text they would have 
built up the percentage of the individuals in the lower 
economic level, whether you are white or Negro, contrib­
utes to a lower than average IQ that would pull these 
norms down if they had been in. Therefore, on the basis 
of.that—some clinical—to get to your question.

Q. Where do you come out with all of this? A. Some
- 1 3 5 -

places—not standard—some places say that if you are 
going to get a fix on a Negro child’s IQ, you might just 
add ten points to it. That would be a better fix on it be­
cause he wasn’t even represented in the original group. 
A clinic where I studied, another place, the general prac­
tice—if a Negro gets an IQ of 80, you figure it 90. If he 
gets 140, just add ten points to it.

Q. What clinic was this? A. University of Pennsylvania.
Q. And you say you know of other clinics where it is 

done? A. This is a practice, as I said—this is no order. 
Just a matter of knowing this particular background and 
what can you do with a Negro child’s IQ since there was 
none in the original group.

# # * # #
—136—

# # # #
Q. Most of these things that you have said, the reading 

level test, I notice on some of the papers in Court Exhibit 
No. 1 there is written a notation indicating—would you 
comment on them? Are they like an IQ test or like an

Dr. James A. Bayton—for Plaintiffs—Direct



110a

achievement test? A. That is a score, presuming that the 
tests were given correctly. That is the score.

Q. Some of those scores are expressed in terms of a 
number and decimal and another number. Now, what is 
that? A. Those are years and months.

Q. For example, on achievement you have two point and 
decimal point. Now what does that mean? A. That means 
the grade. That is the second month of the second grade.

# # # # #

—138—
#  #  *  #  #

Q. Is there anything on this material, Court Exhibit 
No. 1,—I will have to use this as a copy. Is there anything 
on these information sheets that let you know the median 
those people were compared with? A. No. Although, in 
this case, for example, here, this person has gone from 
1955-56, an IQ of 85, then it is interesting to note in 1959- 
60 the IQ is up to 96. It is very interesting that this child 
has some kind of growth in the IQ.

Q. That is all number one? A. I wouldn’t know the 
median, any comparison, nor would I know the range of 
scores in the class which that median was conducted.

^

—149—
# # * # #

Redirect Examination by Mr. Nabrit:
Q. From the information summary sheets which are 

included in Court Exhibit No. 1 that you looked at, can 
you tell us where any of those pupils—what the standard 
deviation—how* it applies to that? A. No, because I don’t 
have the information. So far as anything I have seen, 
there are two pieces of information not available: what

Dr. James A. Bayton—for Plaintiffs—Redirect



111a

the means were thought for those classes in the first place, 
which I said would he partial information, and you don’t 
have the standard deviation either. So, therefore, you 
don’t have any description, really, of what this class is, 
for all this data for describing a class, and no data that 
describes this class, I have seen.

— 155—

Dr. James A. Dayton—for Plaintiffs—Redirect

By Mr. Nabrit:
Q. Your statement about the necessity of seeing the 

child, which of the classes of data was this related to? 
Was this related to the statistical data like IQs? A. No. 
I said several times I am willing to accept, myself, the 
testing. The thing I am talking about, seeing the child, 
as relates to personality problem, whether he had diffi­
culties. Studies have been shown where teachers have— 
one very interesting—difficulty in recognizing personality 
problems. Obviously, if the child is going around beating 
up kids all day, but the whole category of behavior prob­
lem in children—what we call the withdrawn type. They 
are withdrawn. They are shy. They don’t mingle. They 
don’t ever create any trouble. But, psychologically, maybe 
it is the most serious one, sitting in the class and doing

— 156—

everything just right. He doesn’t do none of these overt 
things. Well, to a professional, a withdrawn child, a shy 
child could, I am not saying does, he could represent a 
behavior problem. There are studies that show that 
teachers are very prone not to include such individuals.

Q. What do you mean? What do they do with a child— 
A. How many problems you have in this. They always 
put down the bullies, the stealing, the sex problems. That



112a

is all listed down as such—truancy. You practically never 
see withdrawn behavior, extreme shyness and so on. You 
never get any reference to that. This kind of thing—he 
was a model child and so on. They miss these. I doubt 
if anyone said anything about a child who is maladjusted 
because he is withdrawn.

Q. You say a withdrawn child could have a very serious 
problem! A. Being withdrawn could be; could be serious, 
psychological maladjustment.

Q. Now, there was discussion during the time the Court 
was asking you questions about if you had certain addi­
tional information you could fix the child’s position in 
the class. A. Yes.

Q. Well, do you know offhand what additional informa­
tion you would need? A. I said—

The Court: He told me. He needed two addi-
—157—

tional things. And I said, assuming you need to 
know the median of the class to start with and the—

The Witness: And the standard deviation.
The Court: If you have that information, then 

you could proceed accordingly.

By Mr. Nabrit:
Q. This would be the median in that particular class? 

A. I don’t want to get into a discussion about the justi­
fication of fixing that class and the applications difficulty. 
I am talking about what you could with the information.

Q. Now, with reference to making a judgment about a 
child’s personality and assuming you could get a pretty 
good picture of the child’s personality by whatever scien­
tific mechanics you had and you got a panel of five psychol­

Dr. James A. Bayton—for Plaintiffs—Redirect



113a

ogists and they just happen to come up in agreement about 
this particular child, about his personality situation, to 
determine how he would get along in a specified group of 
people, would you need to know any more? A. Yes. Need 
to know something about the group of people. You have 
again something like the sibling question. You find, ex­
amining children who have been in situations, and they 
are put in a stiffer environment where demands are made 
on them and they respond to that and some of them break 
down. I know of no general principle you can apply. I 
know of no law that says this will happen if you do this to 
all children. I can tell you plenty of individuals where

—158—
this happens and the other cases they break down. I  don’t 
know.

Q. So that I am correct in understanding that, you are 
telling me—if I  am misstating it—

The Court: I understand what he says. He made 
it very clear to me.

Mr. Nabrit: Maybe I have something else then. 
I am not sure.

By Mr. Nabrit:
Q. Would you need to test the child and the group that 

you compare him with on a personality test to determine 
—any chance of finding out how he is going to— A. Let 
me speak. I know of no information that you would be 
looking for as you test this group—I will try to answer 
this point. I know of no research that has been done to 
show what is going to happen when you take a given child 
out of this situation and put him in there. I know of no 
information. So, I couldn’t even tell you what informa­

Dr. James A. Bayton—for Plaintiffs—Redirect



114a

tion you would want to find out about this group that 
would tell you what most likely would happen when you 
put him in there.

Q. You don’t know of any way to determine how the 
child is going to adjust in a class on the basis of a person­
ality test? A. No, because when you talk about this class 
and the personality factor, you are talking about the 
personality character of this child and you get these five 
competent psychologists and come to the same conclusion

—159—
about the personality of the child and say he has a mal­
adjusted personality and here is a class of 30 bodies, 
30 bodies over here. You don’t know anything about them. 
Now, at the moment, I don’t know what kind of psycho­
logical information you are going to get about those 30 
bodies. Now, if they all happen to be angelic and very 
friendly and budding over with the spirit of humanitarian- 
ism, and were this individual maladjusted, they might have 
a warm compliment for him and help. I don’t know what 
they might do. Or they might be a bunch of bullies, just 
fighting each other, and any new-comers, they don’t want 
him to join. I don’t know of any scientific or any other 
kind of information unless you establish a law of what you 
say this is going to happen.

* * * * #

—162—
* * * * *

D orothy L. G ibn ey , recalled as a witness for the Plain­
tiffs, having been previously sworn, testified further as 
follows:

Direct Examination by Mr. Nabrit (Continued) :
Q. Miss Gibney, I pass to you a copy of Court Exhibit 

No. 1, the portion of that exhibit which is in your hand­

Dorothy L. Gibney—for Plaintiffs—Recalled—Direct



115a

writing—summary sheets. Did you make that out! A. 
Yes.

Q. Now, would you explain to us, going across the top, 
what the various columns are and how the symbols are 
used? A. Yes. The first column is the name. The second 
column is the grade.

Q. How are those numbers indicated? A. By a five— 
fifth grade, and—

Q. Is that for the current year? A. Yes, that is. You 
see, I did this in January or February for the information 
prior to the deposition.

Q. How is distance—

The Court: Just a minute. Does the decimal mean 
anything ?

The Witness: I would like to explain that. When
—163—

I made a summary I had—I am sure that I had 
everybody taken care. That is my check mark.

The next is the distance from the school, from the 
applicant’s home to the school.

The Court: In other words, plus 19 means what?
The Witness: Means she is farther away from the 

school that she attends to the school that she re­
quests.

The Court: In other words, the school that she 
requested she is now 19 what—blocks or what?

The Witness: Blocks.
The Court: She is 19 blocks farther away from the 

school she applied for than the school she is then 
attending?

The Witness: No. She is closer to the school that 
she applied for than she is—

Dorothy L. Gibney—for Plaintiffs—Recalled—Direct



116a

The Court: Nineteen blocks closer?
The Witness: So, the distance in this case was no 

factor.
Mr. Nabrit: Excuse me just a minute. Before we 

go on, Your Honor, I think I would, perhaps for 
clarity, call the Court’s attention now to the fact 
that we have some of these code numbers reversed 
inadvertently in translating things. I think they got 
transposed. 26 and 17 should be reversed.

The Court: Twenty-six?
—164—

Mr. Nabrit: On this number sheet only. Only on 
this Court Exhibit No. 1.

The Court: Seventeen is now 27, corrected ac­
cordingly, and 26 is now 17.

Mr. Nabrit: That is correct.
The Court: Where is 26 on there ?
Mr. Nabrit: If you can check those first names 

against our key number list.
Now, there is one more like that where brother and 

sister got transposed. Just below that number 13 
should be 8 and two lines below that number 8 should 
13.

The Court: Thirteen should be 8; is that right?
Mr. Nabrit: That is correct, sir. I have corrected 

them on the original exhibit in red pencil.

By Mr. Nabrit:

Q. Now, conversely, on this distance where it says plus 
four then minus four means that the school she was attend­
ing is four blocks closer to her home than the school she 
applied to ? A. Correct.

Q. What is the next column? A. Deviation from the

Dorothy L. Gihney—for Plaintiffs—Recalled—Direct



117a

median IQ—that median IQ of the class that she would 
have attended.

The Court: Now, the plus, she had a higher IQ, 
and minus, she means, has points below the average ?

—165—
The Witness: Yes.

Dorothy L. Gibney—for Plaintiffs—Recalled—Direct

By Mr. Nabrit:

Q. Now, these are expressed in terms of IQ points? A. 
That is correct.

Q. Ten points number IQ points? A. That is correct.
Q. Has nothing to do with the standard deviation? A. 

No.
Q. Now, tell me if this is right. Do I understand it cor­

rectly. You took the median of all of the pupils, for ex­
ample, the 7th grade and the school the child was trying 
to attend; is that correct? A. I myself did not. The per­
son who works with the testing did take that of all of the 
children in this, say, we will take the 7th grade, not any 
one particular class, because—

Q. Might have a slow section or fast section? A. We 
might have divided them that way. So we took all of the 
children of that grade.

Q. Correct me if I am wrong. I understood in some of 
your grades you may have different sections in a school 
with slower students, average students and above average, 
in some schools in some grades. A. In some schools in 
some grades. That is not the general policy.

—166—
Q. Did you know if any of these were in there ? A. When 

we took the 7th grade, that was not the case.
Q. Any of these 30 on the sheet? A. I do not set up



118a

this. And I have not checked this fall. I really couldn’t 
answer that definitely. I would say probably not. I would 
say most of them are grouped either alphabetically, take a 
certain number from the alphabet, or that the principal and 
the teacher grouped the children in order to allow some 
grouping within each class so that they would be easy for 
the teacher to work with reading groups, not to have five or 
six reading groups, to group them so that there would be 
a slow, fast and average group within each class.

Q. Within each classroom? A. Within each classroom. 
That is our normal pattern.

Q. But you do have some schools which do otherwise but 
you don’t know? A. I  think maybe the elementary super­
visor has been letting some of the principals try out a few 
experimental things of that kind, but I  wouldn’t know the 
details.

Q. The next column, deviation from the median grade 
level, that is the same formula on achievement tests? A. 
That is correct and where there is a break that means that 
the child has not taken the test that we give them, the 
achievement, or we did not have a median grade to com­
pare it with.

—167—
Q. Now, these are expressed in years and months? A. 

That is correct.
Q. Number on the left is, decimal, year and on the right 

is month? A. That is not a decimal point precisely. That 
is dividing the year from the month.

Q. Now—

The Court: So that I understand it. Take the first 
one, on that line at the 5th grade; is that right?

The Witness: Yes.

Dorothy L. Gibney—for Plaintiffs—Recalled—Direct



119a

The Court: And you got a minus one. Does that 
mean median is first grade, fourth month?

The Witness: No. It means a minus one point for 
this particular individual pupil—one grade and four 
months below the median of the class she would have 
attended.

The Court: Now, the one that says plus one?
The Witness: That means she is above.
The Court: She is one year above the average 

age of that class ?
The Witness: On this particular test.
The Court: I  understand.

By Mr. Nabrit:

Q. Now, grade number—the top says this is over-all 
grades? A. This was more or less an over-all average,

—168—
not a specific average. You have the specific grades on this 
detailed summary sheet that you have. But this was more 
or less an over-all summary of the work that this child had 
done last fall.

Q. This is fall of 1960? A. Fall of 1960, yes.
Q. Now, P means poor? A. Yes, it does.
Q. M means median? A. Yes.
Q. And G means good? A. And E is excellent and F 

would be failing. You have all of the grades since they 
have attended school on that completed summary sheet.

Q. On the summary sheet in Court Exhibit No. 1? A. 
Yes.

Q. Now, citizenship, what is that, behavior or something? 
A. That would be an estimated grade that a teacher would 
give about a child’s behavior for this period of time.

Q. And the period, again, is the fall of 1960? A. Fall of

Dorothy L. Gihney—for Plaintiffs—Recalled—Direct



120a

1960. You, again have all of the citizenship grades since 
the child entered the first grade in the completed material.

Q. You mean in the individual sheets? A. But on the 
summary sheet this is just for the fall of 1960.

—169—
Q. Now, the next column, tell us the next two columns. 

A. Those others are just comments for my use of things 
that the teacher might have mentioned.

Q. When you say others, you mean the group on the 
left? A. The second from the lefthand is just some com­
ments picked up from the comments that we received from 
the teachers that are in detail on the sheets that you have 
the completed record for. The last is the indication of about 
where the distance was a factor, whether they were above 
or below the median of the class, and other factors that you 
can read that are listed there. As I told you, this was my 
effort to reconstruct this material.

Q. Do I understand that this extreme righthand column 
represents your best effort to reconstruct what was com­
municated or available to the Pupil Placement Board last 
August 15th? A. Yes, it was. And I used the same set of 
facts because we took down all of the test information and 
all of that material.

Q. Now, the things I see in this column are principally 
distance, sibling and below median and maybe one poor 
adjustment. Were each of these that I have mentioned 
subjects that the Pupil Placement Board asked you ques­
tions about and you told them about and they listened to? 
A. According to my recollection, they were, yes.

Q. Now, I notice circles around below median in certain
—170—

of the copies. Does that have any significance in the under­
standing of the child? A. No, just to separate. There are

Dorothy L. Gibney—for Plaintiffs—Recalled—Direct



121a

a good many things there, as I talked with yon that day, 
I think I just circled them because, as you recall—

Q. At the deposition you did the circling? A. Yes be­
cause you asked me about each individual students, you 
recall at that time.

Q. That is correct. A. And after we had mentioned that 
phase, I just circled that—no particular significance at all.

Q. Now, at this meeting on August 15, 1960, with the 
Pupil Placement Board, did you at that time give them 
information about social adjustment, any information and 
nature of these teachers’ comments—item 12 on the indi­
vidual summary sheets? A. We did not have that in the 
detail, Mr. Nabrit, that we did get in January. We had 
some information. As I have told you, that was Mr. Cam­
per’s principal responsibility and I did not find informa­
tion. I am sure we must have discussed some of the social 
adjustments in some specific children.

Q. At this August 15th meeting? A. Yes.
Q. Did you discuss this relative percentage of capacity 

of the school in question at that meeting in any cases that
—171—

would be an item on the various individual summary sheets ? 
A. I don’t recall in detail but we probably did discuss the 
enrollment of the classes, but I don’t recall that. I  have 
no memorandum that came from that.

Q. Now, how about contemplated school construction; 
was that discussed with the Placement Board? A. I am 
sure it must have been because that building was contem­
plated at that time.

Q. The only individual sheets which have any informa­
tion under item 10 refer to Hurt Park School. A. Yes, 
that is the only one that is being built.

Q. Am I correct in that Hurt Park School, which is sched­

Dorothy L. Gibney—for Plaintiffs—Recalled—Direct



122a

uled to be open next September and that it will serve grades 
one through five? A. That is correct.

Q. Now, Hurt Park is mentioned on several of these 
individual summaries and on a few of them it is mentioned 
and crossed out. I assume that that was because the child 
would be above— A. Would be above that grade, I imag­
ine so.

#  #  #  #  *

—175—
* * * * *

Q. Am I correct in understanding that the adjustment 
comments under item 12—

The Court: Now, which page are you on?
Mr. Nabrit: Item 12, any summary sheet.
The Court: Number 12?
Mr. Nabrit: No, item 12. I am still working with

—176-
number one. Item 12 is disciplinary and other fac­
tors, at the bottom of the second page, sir.

By Mr. Nabrit:
Q. Do I understand correctly that this represents a 

resume of teachers’ comments throughout the length of 
time the pupil had been in school? A. That is correct. No 
one more capable than the teachers that had the child for 
a number of years.

Q. The teachers did not make this resume that appear 
on this form. I understood you prepared this resume from 
reading their comments in the child’s record. A. That is 
correct.

Q. Are these verbatim? A. Why, yes. There wouldn’t 
be anything—I don’t know the child. There would be no 
way I could make a judgment of them.

Dorothy L. Gihney—for Plaintiffs—Recalled—Direct



123a

Q. Do they represent, item 12, all of the comments, of 
the child, made throughout his career or selected comments ? 
A. I am not sure that they represent everything.

Q. How often does a teacher make a comment on the 
child’s record—every time he gets a report card or some­
thing like that? A. Usually, four times a year from the 
report card. Much of that information was taken off of 
the report card. Some of it was taken from accumulated 
record cards.

—177—
Q. As an example, pupil number one, in the 7th grade, 

and, apparently, has been in the system since first grade 
and attended three different schools. He obviously had 
a lot more teachers comment on him in seven years in 
school than those three sentences? A. I am sure he did. 
If we had all of his report cards for the seven years, we 
would have several pages of comments. But I did not go 
back and get all of the report cards. I got the report card 
for the last spring and the report card at the mid-term, 
but I did not go back.

Q. When you say last spring, the spring semester of 
1960? A. That is correct and the fall semester of 1960. 
They are the only report cards that I have ever seen. I 
did not go back and get his report cards from the first 
grade on up.

Q. So, over on the next page of all of the summary 
sheets, the last page of these sheets, where we have com­
ments by present teachers and present principal, where 
did you get those—the fall 1960 report cards? A. Yes. 
This summary was done January, 1960. The present re­
port card was for the period semester of 1960 and that was 
the present teacher at that time.

Q. Now, the comment—behavior—entered by the pres­

Dorothy L. Gibney—for Plaintiffs—Recalled—Direct



124a

ent principal—where did you get those? A. Yes, the prin­
cipal wrote a record there.

—178—-
Q. Now, was this some routine record that the principal 

makes on all of the pupils? A. Sometimes the principal 
makes the record. At this time he did, yes.

Q. The principal for these 28 Negro pupils made a sum­
mary sheet for—asked to make up special comments on 
those 28 pupils? A. In January, yes. They did not do 
that before the meeting of the Pupil Placement Board. 
This was information that I prepared by a set of questions 
that was given to me.

Q. By your attorney? A. Yes. Mr. Parham asked that 
we prepare this information.

Q. And you asked the principal to give you comments 
on these 28? A. Yes.

Q. It is your general recollection that this information 
was sought, typed and given to the Pupil Placement Board 
in August? A. We did not give any principals’ comments 
at all in August.

Q. You gave teachers’ comments? A. If they were ma­
terial on the accumulative records.

Q. But you did give teachers’ comments? A. Yes, and 
we did have copies of the report cards for the spring 
semester.

Q. When the academic records of these pupils were dis-
—179—

cussed with the Pupil Placement Board, was it just in 
terms of whether the child is above, below or average? 
A. In most of the cases, it was given the simple fact of 
what their test record was.

Q. That is his relationship to the median. A. In gen­
eral, that was the information on the paper.

Dorothy L. Gibney—for Plaintiffs—Recalled—Direct



125a

Q. Paper information? A. Information that was on 
the paper, the information that we had from the accumu­
lative cards.

Q. Did you tell— I assume that you communicated the 
information to the Pupil Placement Board on this? I as­
sume that you gave the Pupil Placement Board informa­
tion as to the relation between the child’s score and the 
median? A. Yes, that is correct.

Q. Now, how about this business of dangerous crossings, 
under item 8, on the summaries; was that discussed with 
the Placement Board? A. No, that was not.

Q.. That was not discussed? A. No, not to my recollec­
tion. That was additional information that we prepared.

Q. But the distance in blocks was discussed? A. Yes.
Q. How about this other information about parents’ 

names and occupations; was that discussed with the Plaee-
—180—

ment Board in any cases? A. We had that information. 
I don’t recall that we went through each one and discussed 
their names and occupations. I don’t recall that we did.

Q. When you came there with this information, to the 
Pupil Placement Board’s meeting on August 15th, was it 
an entirely oral presentation or did you have papers spread 
out for everybody to look at o:r what? A. We had a set 
of papers on each child—we brought them over at noon 
yesterday—that gave the child’s name, his parents name, 
his address, the test record and so on. I do not recall that 
they took each one and went over each individual item.

Q. But this was passed around? A. They were in Mr. 
Camper’s possession. I am sure if he was asked for them, 
they were passed around. We also had the accumulative 
cards and report cards with us at that time.

Dorothy L. Gibney—for Plaintiffs—Recalled—Direct



126a

Q. You had such things as parents’ occupations and that 
type of thing? A. Yes.

Q. By the way a lot of these occupations—with the rail­
road company? A. Norfolk and Western Railroad Com­
pany.

Q. Miss Gibney, on this sibling relationship matter which 
is discussed in your handwritten sheets summarizing all

—181—
of these pupils there is no discussion of this on these in­
dividual summary sheets; is that correct? A. That is cor­
rect.

Q. Can you tell me what was explained to the Placement 
Board, at least general explanation of this was to the 
Placement Board, the sibling relationship matter in cases 
where it was mentioned? A. Mr. Nab lit, I have been in 
education for a long time and known lots of boys and girls 
not only as a teacher but as an elementary school princi­
pal—

Q. Excuse me. I don’t like to interrupt you. But what 
I was asking you is what you told the Placement .Board 
about sibling relationship, and I will ask you at this time 
was it explained to the Placement Board that the cases 
where the sibling relationship was mentioned that those 
were children who had brothers and sisters who were below 
the median? A. That is correct.

Q. And that if these children were brothers and sisters 
below the median were allowed to transfer as requested, 
they would be separated in different schools from brothers 
and sisters? A. That is correct.

The Court: You are asking such and such were 
told. Why don’t you ask her specifically and ask 
her what she told the Board?

Dorothy L. Gibney—for Plaintiffs—Recalled—Direct



127a

—182—
Mr. Nabrit: I am trying to get my understanding 

of it.
Your Honor will recall just a moment ago when 

I asked about sibling relationship, the witness be­
gan to tell me about her educational experiences. 
I told her—

The Court: I don’t want to argue the question. 
Just ask what she said, what the Board was told. 
If you want to ask her what somebody else was 
told that is perfectly all right because I can evaluate 
this evidence better if I get it firsthand from the 
principals. What did you do, if anything, in re­
ference to the sibling relationship?

The Witness: Now, I, myself—
The Court: What was told in your presence?
The Witness: In my presence it was told that we 

considered it highly inadvisable to separate children. 
Now, obviously, if a child is in elementary grade 
and his brother or sister is in high, junior high, he 
expects to be separated from his sibling. However, 
if there are three children all of whom are in an 
elementary school, we consider it very bad practice 
to separate them and we do not do that with any 
children and have never done it.

The Court: You told the Board that?
The Witness: And from my experience as a prin­

cipal that I would never recommend it and would 
never allow it, if I could possibly avoid it.

—183—
The Court: And that is what the Board was told?
The Witness: That is what the Board was told.
The Court: What did the Board say about it in

Dorothy L. Gibney—for Plaintiffs—B,ecalled—Direct



128a

your presence, if anything; that is, members of the 
Pupil Placement Board? What responses did they 
give, if any?

The Witness: I certainly could not remember their 
exact words.

The Court: Well, in substance.
The Witness: I think they accepted that, but I 

don’t know how much they agreed. I think that is 
a matter of opinion.

By Mr. Nabrit:

Q. In your explanations to the Court, I  understood you 
to say that in the school system you have never separated 
brothers and sisters in the school. I am going to ask you 
about some cases which I suggest are exceptions to that. 
A. I told you except in some exceptions, I  would never 
recommend it.

Q. Do those exceptions include cases—it is true here, 
one pupil is assigned to a school like Hurt Park, with only 
grades one through five, and his brothers go to another 
school? A. Well, he couldn’t be assigned to Hurt Park 
as long as there are no grades there. But I would consider 
that the same as a child being separated from his sibling 
if he were in elementary school and another one in junior 
high school. That is the way our grades are set up.

—184—
Q. But the 6th grade, I don’t understand to be in junior 

high school. A. It is not and it would—
Q. You say this analogy— A. It would be in another 

elementary school. We simply could not have enough rooms 
to take care of the children in grades one through six in 
that school.

Q. I am going to ask you about this sibling relationship

Dorothy L. Gibney—for Plaintiffs—Recalled—Direct



129a

in terms of three of these Plaintiffs who were brothers and 
sisters. Dealing with pupils number 8, 9 and 13, they are 
all in one family, brothers and sisters? A. Yes, they are.

Q. My notes indicated that you mentioned in your sum­
mary sheet you mentioned sibling number 13. A. Yes.

Q. Now, looking at the individual summary form for 
number 13, I find that pupil with academic skills above the 
median. A. Yes, his IQ is.

Q. And both of his brothers and sisters have scores, 
listed on your summary, above the median? A. They are 
IQ scores. There are no achievement scores there.

Q. We have three brothers and a sister here—let’s see,
- 1 8 5 -

two boys and a girl. A. Two boys and a girl.
Q. Number 13 is a boy and number 13 is turned down 

because he is a sibling—and two pupils both above the 
median. That leaves me totally confused in terms of your 
definition. Would you explain what that is? A. If you 
will notice pupil number 8, there was a question of distance 
involved in that school.

Q. Number 8 was a question of distance. Number 8 is 
a 12-year-old child in the 7th grade and number 13 was 
rejected for being his brother, 11-year-old child in the 
6th grade, and they are going to different schools already 
this year, right? A. Yes, that is correct.

Q. Thirteen is going to Harrison already? A. That is 
correct.

Q. Eight is going to Washington Lee? A. That is cor­
rect.

Q. Let’s look at the other brother, number 9. This is 
a summary sheet for number 9—shows here to be a second 
grade child, IQ of 121—27 point 1 above the median. Num­
ber 13 wasn’t turned down because of her low IQ or her 
IQ score, was she? A. No.

Dorothy L. Gibney—for Plaintiffs—Recalled—Direct



130a

Q. And he wasn’t turned down because I see a note here 
—strike that. Number 9 is suppose to go to Hurt Park

—186—
Elementary next year? A. She is now in there.

Q. She is now in? A. So would number 13 would have 
been allowed if they had a sixth grade.

Q. But he was separated? A. Yes.
Q. And he will be separated next year because he cannot 

go to Hurt Park? A. That is correct.
Q. So, in any case, these three siblings are going to be 

separated now. Each one is in a different school now. 
Each one has an IQ above the median and yet number 13 
was turned down because of some sort of sibling rivalry. 
Can you explain to me what that was? A. Now, when you 
say turned down, you understand I made no judgment 
about any of these. This is my summary. He is a brother 
of 8 and a brother of 9.

Q. Now, in your column, looking at your handwritten 
column, in the righthand side, you have tried to list all 
of the sibling people that had brothers and sisters because 
we have a lot of families that have brothers don’t have 
sibling beside their names, right? A. Yes, that is correct, 
most of them.

Q. Most of them you say. I  see a lot of children right
—187—

there next to each other with the same name. These are 
grouped by families, if you start at the top of the page. 
You have only siblings in one, two, three, four, five, six 
cases marked—put it that way, siblings beside number 
13’s name didn’t mean something more than he had brothers 
and a sister ; is that all it means? A. Is that all it means?

Q. What does it mean? A. Of course, I could have put 
sibling beside number 8 and number 13, because they are 
all—

Dorothy L. Gibney—for Plaintiffs—Recalled—Direct



131a

Q. But that was not your pattern of writing down 
sibling in this column? A. No, that is correct.

Q. Isn’t it probable that sibling doesn’t belong beside 
number 13, at least used in relation to the other pupils? 
A. Since they were in different schools, that probably 
would have been the case. They would have been separated 
by different schools they would have been going to.

Q. Very well. Now, I  want to ask you about , some of 
these distance cases. These three pupils—mentioned some 
comments about that they will attend the new Hurt Paik 
Elementary School September, ’61. Let’s take number 9. 
Number 9 was a pupil seeking to enter the second grade 
last year, transfer applied to West End School, assigned 
to Loudin. A. That is correct.

—188—
Q. Overcrowded and uncrowded situation Loudin and 

West End—clearly there on the exhibit that Loudin is a 
lot more crowded. A. Yes, it is.

Q. Now, as I understand it, am I correct in understand­
ing that Hurt Park Elementary School, which is going to 
open for the first time next September, is going to open 
as an overcrowded school; isn’t that so? A. Yes.

Q. That is indicated on these estimated enrollments for 
next year which is already in evidence. A. That is correct.

Q. Now, this pupil wasn’t assigned last year to an over­
crowded school. For some reason he will be assigned to 
an overcrowded school and be denied admittance to a 
school that is not full. A. I don’t believe she has been 
assigned to that school. I assume she will attend there, 
will attend the school which is four blocks from her home 
and it will be crowded, yes.

Q. Now, she went to a school this year that was farther 
from her home than the one that she applied to even though 
it was more crowded. A. That is correct.

Dorothy L. Gibney—for Plaintiffs—Recalled—Direct



132a

Q. Loudin is an all-Negro school and West End is an
—189—

all-white school? A. West End School has three Negro 
children.

Q. Three were admitted in West End last September? 
A. That is trne.

Q. Other than that? A. Yes.
Q. Also mention something about Hurt Park with pupil 

number 16. You can look at the summary sheet again 
with me. This is a pupil at Gillmore School in the 4th 
grade, sought to get into West End School, which is again 
more crowded. A. Yes.

Q. Gillmore is 119 and West End is 17 per cent of the 
class? A. That is right,

Q. This child on this sheet will attend Hurt Park 
Elementary School next year? A. She will be just three 
blocks from her home, I believe it says.

Q. It will be overcrowded next year? A. That is correct.
Q. This year she is going 22 blocks to a more crowded 

school than the one she applied to. The school she applied 
to—just six blocks from her home, correct? A. That is 
correct.

Q. This new Hurt Park and the West End School are 
not going to be very far apart if she lives six blocks of

—190—
the one and three of the other? A. No. You will notice, 
she is transported by bus to this school.

Q. I didn’t ask you about transportation. I am trying to 
establish where she lives. This child lives three blocks 
from Hurt Park and six blocks from West End? A. As 
it says right there, yes.

Q. And Hurt Park is going to open as a brand new 
building, overcrowded, and West End is not even up to 
class? A. That is correct.

Dorothy L. Gihney—for Plaintiffs—Recalled—Direct



133a

Q. West End is a white school? A. That is right,
Q. Except for the three Negroes that have been there? 

A. Hurt Park will be operating on double sessions. They 
will be operating on double sessions in the first grade. 
It will not affect this particular pupil because she will not 
be on double session.

Q. You said Hurt Park is going to be operated on double 
session next fall? A. First and second grades.

Q. West End won’t be? A. No, you have that in your 
information.

—192—
* * * * *

By Mr. Nabr.it:
Q. Referring to pupil number 14 and 20, I believe— 

A. May I see their names? Numbers are so blurred here.
Q. They are brother and sister, are they not? A. Yes, 

they are.
Q. Now, is it correct that these two pupils, by their 

names, by 20 you have below median and 14 you have be­
low median and sibling? A. That is right.

Q. Isn’t it true that both of these pupils live within one 
block of the Gillmore School they sought to attend? I am

—193—
sorry. They live within one block of the Melrose School 
they sought to attend but are assigned 20 blocks away to 
Gillmore. That is the way it appears on this sheet? A. 
Yes.

Q. Twenty blocks to Gillmore? A. Yes.
Q. And one block from Melrose? A. That is correct.
Q. And that, again, Melrose is more crowded? A. That 

is right. Gillmore is more crowded.

Dorothy L. Gibney—for Plaintiffs—Recalled—Direct



134a

Q. Yes. G-illmore is more crowded. Gillmore is a school 
attended only by Negroes? A. That is right.

Q. And Melrose has three Negro pupils? A. Four.
Q. First time this year? A. First time this year.

-Y-w  *a'  v r "A~

—197—
#  *  *  #

F ewest J. Oglesby, called as a witness for the Plaintiffs, 
was duly sworn and testified as follows:

Direct Examination by Mr. Nabrit:

Q. Am I correct in addressing you as Doctor, sir? A. I 
have an honorary degree, not an earned degree. I prefer 
to be called mister.

Q. Mr. Oglesby, state your name and official position. 
A. I am Ernest Jackson Oglesby. I teach mathematics in 
the School of Engineering at the University of Virginia.

Q. And what is your connection with the Virginia Pupil 
Placement Board? A. I  am Chairman of the State Pupil 
Placement Board.

Q. Since what date, sir? A. I don’t know the exact date;
—198—

about the middle of July.
Q. 1960? A. 1960.
Q. The other two members of that Board are Mr. Wingo 

and Mr. Justis? A. Yes.
Q. Who joined the Board when you did? A. Same time. 
Q. Since you have been on the Board, you have assigned 

pupils for the current school term, school term going on 
now? A. That is correct.

Ernest J. Oglesby-—for Plaintiffs—Direct



135a

Q. In your program assignment last summer, prior to 
the 1960-61 school term, what procedure did you follow 
assigning the number of pupils who you had to assign 
around the State? A. To begin with, the Board considered 
only those cases where there was a disagreement between 
the parents and the assignments made in the ordinary 
course of business by the local school board.

Q. Ordinary course of business; sir, what do you mean 
by that? A. Beg pardon?

Q. What do you mean by the ordinary course of business ? 
A. If you will give me time, I  will go into that.

Q. Can’t you do it now?
—199—

The Court: Let him answer it. Go ahead and ex­
plain your procedure. I  am interested in it myself.

The Witness: A parent asked for a school that 
he wanted his child to be in. The local school au­
thorities said where they would place that child if 
they were doing the placement. In at least 99.99 per 
cent of the time, those two were in agreement. There 
was no dispute. In something less than, 100 of 1 per 
cent the child or the parent was asking for a school 
different from the one in which the local school au­
thority would place him. That came before our 
Board. We then attempted to determine whether or 
not that child was being discriminated against, not 
only because of race, creed or color or any other 
reason, because, remember, we have had not only 
cases where a Negro child is asking for a place dif­
ferent from where they are putting him but we also 
have had white cases of the same kind. We then at­
tempt to get the facts the best way we could and we 
try to decide without prejudice where we put the

Ernest J. Oglesby-—for Plaintiffs—Direct



136a

child. We took exactly the same action in the case 
of Roanoke City. We asked the Roanoke people to 
come down and tell us all they could. I do not re­
member the details of the 39 cases because we de­
cided many other cases before and since then. I  do 
know this. That after we had—

Mr. Nabrit: May I interrupt?
— 200—

The Witness: You want to know what the proce­
dure was. I am trying to tell you.

Mr. Nabrit: Your Honor, the witness has gone 
beyond my original question.

The Court: The objection is overruled.
I want him to explain his procedure for the benefit 

of the Court and I want to get it from the Chairman 
so this Court will know what they do in Roanoke. I 
think it is very pertinent. Proceed.

The Witness: Your Honor, we spent most of an 
afternoon, it is my recollection, it might have been 
more, we spent a good part of the day considering 
these 39 cases. We got all of the information they 
could give us. At the end of that time, based upon 
everything that we had, we decided that in the case 
of 30 of these students they were poor risks. What I 
mean by that is, in some cases they would definitely 
pull down the standards of the school they went into. 
But in general our feeling was that the child was 
not prepared to do the work that he would have 
to do in that school; that he would probably fail. I 
don’t mean all of them would fail. But what I do 
mean is that in each case I felt there was at least 
more than an even chance that he couldn’t do the 
work. As a gambling proposition, I think—statistics

Ernest J. Oglesby•—for Plaintiffs—Direct



137a

and probability are so tied together that the simplest
—201-

way to talk about statistics is talk in terms of prob­
ability. And the easiest way to make that clear, clear 
as a gambling proposition, I would have felt if some­
body had been willing to offer me a bet, an even bet, 
for $100 on each one of those pupils, if I was betting 
in the ordinary course of events, that child would not 
make good in the school that he wants to be put in. 
I wouldn’t consider it a gambling case for the 30. I 
would consider it an investment. We are not in­
fallible. All we did was to judge the facts as we had 
—the best we could get. That was our feeling about 
it. I believe that it would have been a profitable 
gamble on the basis of my having to give, say, two to 
one on the odds. That is, of course, again, just guess­
ing. That is the way we decided it. That is about 
all we can do.

# * # *
—202—

#  *  #  *  *

By Mr. Nabrit:
Q. Now, Mr. Oglesby, approximately how many assign­

ments did you make last year around the State—Pupil 
Placement Board—last September? A. May I ask you 
—do you mean total assignments?

Q. That is right. A. I would have to guess on that. I 
would say probably 150,000. Most of those are purely 
routine. We made several hundred that are under dis­
pute.

Q. These routines are handled by your administrative 
staff without your personal attention? A. That is cor­
rect.

Ernest J. Oglesby—for Plaintiffs—Direct



138a

Q. Now, am I also correct in understanding that the 
administrative staff gets Pupil Placement forms from these 
routine students from the local school authorities in 
bundles? A. That is correct.

Q. I have in my hand Pupil Placement forms. These 
are the ones you used, these? A. These are the—I don’t

- 2 0 3 -
know what these apply to—the Roanoke City cases. These 
are the typical looking Pupil Placement forms.

Q. They happen to be Plaintiffs’ Exhibit P.

Mr. Scott: We stipulate that they are the forms 
in these cases.

The Court: These are the one in this case.
Mr. Nabrit: They are in evidence already.
The Court: The question is that they are the origi­

nal applications in the case of these students.
Mr. Scott: That is correct.

By Mr. Nabrit:
Q. Now, would you confirm for me the fact—tell me if 

I  am wrong. It seems to me, on examining this form, that 
there is no place here—line calling for the parent or pupil 
to indicate the name of the school he desires; is that true? 
A. I don’t know whether it is or not. I know that we knew 
what schools they were applying to and examine this to see 
if they had it written on here or not. But we had a list 
of those in the schools and the schools they were asking for. 
You can tell what is on there better than I can. I would 
have to look back and see.

The Court: Is it on there or not? It speaks for 
itself.

Ernest J. Oglesby■—for Plaintiffs—Direct



139a

The Witness: We had the facts.
The Court: Isn’t the school they applied for on 

the forms f
—204—

Mr. Nabrit: Sir, the Pupil Placement form, as I 
remember, as I look at it now, it contains no place 
whatsoever for any parent anywhere to indicate what 
school he wants his child to go. That is my under­
standing.

May I proceed, your Honor?
The Court: Only place it is on here—on some of 

them—that is the recommendations as to the school 
which pupil should be assigned as designated by the 
local school board; I mean, as far as the application 
is concerned.

Mr. Nabrit: What I refer to is no line here for the 
parent to indicate.

The Court: That is obvious. The form speaks for 
itself.

By Mr. Nabrit:
Q. Now, when you received this 99 per cent of the cases 

of the Pupil Placement forms, were the 99 per cent of the 
cases in Roanoke—pardon me—in the School Placement 
Office in Richmond; your information on the child is this 
form, right? A. I believe that that sort of a question 
can be answered much better by our routine staff by Mr. 
Hilton as exactly the form that comes in. As Chairman 
for the Board I have only a certain amount of time to give 
to it and that time is given to those cases that are under 
dispute. Whether the name was or was not on the blank 
where the child wanted to go, we knew where the child

Ernest J. Oglesby—for Plaintiffs—Direct



140a

Ernest J. Oglesby—for Plaintiffs—Direct

—205—
wanted to go, and we tried to do the best we could to act 
accordingly. I frankly do not know that detail.

Q. Now, is what happens, in fact, that these routine 
cases don’t come to your personal attention? Is it a fact 
that your Board approves the assignments recommended 
by the local authorities as indicated on the Pupil Placement 
Form? Is that what happens in the vast bulk of the cases? 
A. We receive the ordinary blanks where there is no dis­
pute. They are handled in a routine way.

Q. Eight. A. If the parent is asking for a different 
assignment for the one he would be given by the local, 
that comes to our attention and we spend all of our time 
on it. We do the best we can to find out all of the facts. 
We figure—

Q. I wasn’t asking you about that class of cases. I am 
asking you for the moment about the class of cases that 
don’t come to your personal attention and you have your 
routine procedure. Now, I was just trying to clarify some­
thing. I am trying to perhaps—summarizing, that this 
large group of pupils who are recommended to a school 
by the local school board gets assigned there by your Board. 
Is that what happens? A. If they have not asked for a 
different assignment.

Q. That is right. A. They are assigned there by our 
Board; that is correct.

—206—
Q. And that consists merely of someone—Mr. Hilton 

would fill in the name of the school and the name of the 
county and place? A. You’d better ask Mr. Hilton that 
cpiestion. You will have to ask Mr. Hilton that. I don’t 
know.

Q. Very well, sir.



141a

The Court: I  think it is very clear. He said that 
the Pupil Placement Board, right or wrong, does not 
even examine any applications for a transfer that is 
not protested by the assignment made by the local 
board; isn’t that what they do?

The Witness: That is correct, sir.
The Court: That is what he said they do.
Mr. Nabrit: He traced it in another way also. The 

other way he traced it, as I understand, was that 
they don’t examine them personally, where the parent 
—unless the parent and the school board are in dis­
agreement on this.

The Court: That is the same thing. If the school 
board assigns a child to a school that is not acceptable 
to the parent, Mr. Oglesby says those cases are 
brought to the immediate attention of the Board and 
they proceed to investigate them on an individual 
manner. Otherwise, they approve all assignments 
made by the local school boards; is that correct?

The Witness: That is correct.
—207—

# * # # #
By Mr. Nabrit:

Q. Does your Board have any knowledge or awareness 
of it prior to this case—did you have any routine procedure 
for finding out the various systems used by these local 
school authorities—as sort of feeder arrangement de­
scribed in Roanoke testimony? A. We knew that the 
Roanoke City School Board had applications which were in 
dispute.

Q. That is not what I was asking, sir. What I was ask­
ing you—let’s take another example. Is your Board aware 
that in some communities they have school zones ? A. We

Ernest J. Oglesby-—for Plaintiffs—Direct



142a

are aware that some undoubtedly—some communities do 
have because I, for example, know that they have some

—208-
school zones in the City of Charlottesville. We have had 
no prior knowledge to Roanoke, at least I had none.

Q. You don’t know anything about this feeder system? 
A. I didn’t know the slightest thing about how they oper­
ate their schools in Roanoke, not the slightest.

Q. Now, do you have any type of program of your Pupil 
Placement Board for periodic or single reviews of the 
routine assignments or routine practices of this category— 
zoning, neighborhood schooling, and feeder systems— 
around the State? A. We do not. But, may I add, we 
have had one case that I remember of an application from 
a school system to look over a prospective change they 
were making in school zones and see whether or not we 
considered that was a fair change. The objection to that 
change was that certain pupils, certain white pupils will 
be moved from one school in one neighborhood to another 
school in another neighborhood and they wanted to know 
whether we felt that was a fair way of setting up a dis­
trict.

Q. This example you gave me was the case where the local 
school board came to you with its problem and you didn’t 
make any; but your answer is still that you don’t have 
any program of going around to school boards and find out 
what is going on? A. Absolutely. That is my answer.

Q. So, local school boards have things like separate 
colored and white schools. You don’t go around—you don’t

—209-
have a program of going around finding out? A. Cer­
tainly haven’t.

Q. Now, coming back to this meeting in August 15th, if I

Ernest J. Oglesby-—for Plaintiffs—Direct



143a

understand, you presided at that meeting involving the 
pupils in Roanoke? A. That is correct.

The Court: If you are about to get into the August 
15th meeting, the Court would like to hear that. So 
we will take a ten-minute recess.

* # # * #
The Court: For clarification, before you get into 

August 15, on these forms, what is that eshibit?
The Clerk: This is Exhibit 5.
The Court: On the original applications I mean, 

you know, and we stipulated. I notice that it is typed 
on there Monroe and it is typed under protest. The 
rest of it is filled out in ink. Who typed that Monroe 
Junior High School on there and that under protest 
and that date?

Mr. Nabrit: I think I can find out in just a second.
I can explain this. Some of these Pupil Placement 

forms that had typed in various places—
The Court: Who typed it in, if you know?
Mr. Nabrit: Counsel for the applicants, the coun-

— 210—

sel for the applicants.
The Court: Filled it in?
Mr. Nabrit: Had this information filled in.

# * # # #
—211—# # # # #

The Court: In other words, the Court then under­
stands, and it is stipulated and made a part of the 
record, that these applicants were attending at the 
time the applications were filed some other school

Ernest J. Oglesby—for Plaintiffs—Direct



144a

to which they had heretofore been duly assigned by 
the school officials of the City of Roanoke. I mean, 
that is why they were in the original school, and they

—212—
sought application blanks for a change from the 
school in which they were then attending to the 
school that they designated on that blank; is that 
correct?

Mr. Parham: That is correct.
Mr. Lawson: The entire—
The Court: That stipulation applies to all students 

who were going to school but it doesn’t apply to a 
student who is entering school for the first time.

Mr. Lawson: That is correct.
The Court: What is the situation for the student 

who was entering for the first time ? Was he assigned 
to a school by the Roanoke County or City officials 
and requested a different school?

# # # #
—213—

# # * # *
The Court: You have some there that are original 

students. You have two. Mr. Lawson, since you 
handled it, what are the facts in the case of those two 
applications ?

Mr. Lawson: Their parents attended a PTA meet­
ing and they were given applications—Pupil Place­
ment forms to fill out.

The Court: For a specific school?
Mr. Lawson: We put the specific school in there. 

The newspapers make an announcement through the 
Superintendent’s Office in the spring of the year, as 
of now, that you have pre-school registration for

Ernest J. Oglesby■—for Plaintiffs—Direct



145a

these first-grade students. And they list it by neigh­
borhood more or less where they are supposed to go

— 214—

to get their pre-school information and get ac­
quainted with the teacher and those little things that 
they do. So, these parents consulted me and told me 
that they lived closer to these white schools and they 
wanted their students to be assigned to the white 
schools. So, I asked them what schools and they 
filled out the form and then under protest was put in 
there because I take the position that—

The Court: I don’t know what position you took. 
I want the facts.

Mr. Lawson: Those are the facts.
Mr. Parham: One step further—
Mr. Lawson: Then they were filed with the Super­

intendent’s Office.
Mr. Parham: But the parent and the children 

never went to the pre-school—
Mr. Lawson: That I don’t know. I don’t know 

what they did.
Mr. Nabrit: Do we have a stipulation?
The Court: In the case of the two applicants who 

had not heretofore attended school, they were ad­
vised through the press to attend a pre-school regis­
tration meeting and that these two applicants, the 
parents of them, consulted with Mr. Lawson and 
advised him that they wanted their children to go to 
a certain school which was closer than the ones that

— 215—

they thought they would be assigned under this rou­
tine and he filed an application for those schools; is 
that correct?

Ernest J. Oglesby-—for Plaintiffs—Direct



146a

Mr. Lawson: The parents filed an application. 
The Court: The parents filed. Whether you filed 

it for them, the parents filed for—
Mr. Nabrit: I didn’t understand your statement 

to be Mr. Lawson’s previous statement.
The Court: Why do we argue these. Mr. Lawson 

filed these applications. I don’t want to put him 
under oath and ask him what happened. I want him 
to state for the record what happened.

Mr. Scott: The exhibits which are in show how 
they were filed by Mr. Lawson.

The Court: I  am willing to accept his statement 
of what he did for the parents. You state for the 
record what you did.

Mr. Lawson: I think I tried to state, Your Honor, 
that these parents received these applications and 
consulted with me relative—they stated they wanted 
their children to go to the schools closest to their 
homes and the information they had previously— 
whether they would be assigned to certain schools, 
certain colored schools, and they wanted the schools 
that were the closest. So, they filled out the forms, 
and under my direction put the school that they told 
me that they wanted them to go and they were filed

—216-
in the Superintendent’s Office, together with the peti­
tion, the other petition.

The Court: The Court accepts that as the pro­
cedure and the facts insofar as the two applicants 
who heretofore had not gone to school.

Mr. Parham: I would like to add to that statement 
that those forms which were filed were not received 
routinely by these children or their parents but 
obtained by Mr. Lawson.

Ernest J. Oglesby—for Plaintiffs—Direct



147a

Ernest J. Oglesby■—for Plaintiffs—Direct

The Court: What difference does it make?
Mr. Parham: Impression was that they had re­

ceived them from the school authorities.
Mr. Lawson: A good number of these were re­

ceived at the PTA meeting when I wTas present. It 
is true that I got some others; yes, sir. There is 
no question about that.

The Court: That is immaterial, as far as the 
Court is concerned. I want the record to show where 
they came from.

You may go ahead and examine this witness on 
August the 15th.

I can’t understand why it is so difficult in this 
case to get a few simple facts, that ought not to be 
any dispute with. It is much too long, to get the 
facts. And they are not in dispute. And, I don’t 
know why we don’t go ahead and produce them and 
let’s draw our conclusion therefrom.

Mr. Nabrit: May I proceed, sir?
—217—

The Court: Yes.

By Mr. Nabrit:

Q. Mr. Oglesby, at the August 15th meeting— A. I 
can’t hear you. Speak more distinctly, please.

Q. At the meeting of the Pupil Placement Board on Au­
gust 15, 1960, your Board considered the 39 applications of 
Negro students from Roanoke seeking to enter white 
schools? A. We did.

Q. And, did your Board listen to and receive requests 
or what information on the nearness as one thing, the near­
ness of the school to a pupil’s home, school applied for, a 
school attended, with respect to some pupils? A. We asked



148a

for and received all the information we could get with re­
spect to those 39 people; that, undoubtedly, included. Al­
though I don’t remember any specific detail how many 
questions of distance as well as tests and other matters 
that were brought before us that we asked for.

Q. Among these tests and other matters, did you receive 
information about the median score about the pupils and 
intelligence and achievement scores as they related to the 
median scores and classes they sought to enter? A. We 
did.

Q. Did you receive information about sibling relation­
ship as connected with this action? A. Very little said

—218—
about that, but there was some information of that sort. 
I don’t remember how many pupils implied.

Q. How about the effect of proposed new school con­
struction? Did you get some facts on that? A. I don’t 
remember anything about new school construction in con­
nection with it. I  don’t remember it ever being mentioned. 
I don’t say it wasn’t. We had a long session and I don’t 
remember everything that was said.

Q. Do you remember about facts as relating to adjust­
ment, teachers’ comments on behavior and things like that? 
A. Oh, yes, certainly. We were trying to get all of the 
information we could and we could think of nothing more 
important to a clear understanding of our part so we can 
do a square job on the thing than what the teachers thought 
about the ability of what they could do.

Q. You said this was one of the most important? A. One 
of the important things, certainly, one of the important 
things.

Q. I thought you said nothing more important, a minute 
ago? A. It comes—putting it on the normal error curve

Ernest J. Oglesby■—for Plaintiffs—Direct



149a

as to how important it was with something, I think it was 
one of the important items. I don’t rate it higher or lower 
or something else. But I  would certainly consider that the

—219-
teachers that these children have had know them better 
than anybody else; and that any information that we could 
get of that sort we should have in order that we may render 
a fair judgment.

Q. So it was important but not the most important? A. 
I don’t know. It might have been in some cases most im­
portant but I  could not rate that with relative importance.

Q. How about the relative overcrowding, uncrowding 
conditions at the schools the children sought to enter and 
then were attending? A. I don’t remember that there was 
any overcrowding conditions of any sort brought before us 
that would make us think that that was more important 
than the ability of that child to go into the environment 
he is going into and make good. I simply don’t remember 
the amount or the importance of any such information.

Q. But you do remember hearing some facts about over­
crowding? A. To tell you the truth, I don’t. Maybe some 
mention but I don’t remember talking about overcrowded 
schools or overcrowded classrooms.

Q. And you don’t remember seeking any such informa­
tion? A. We—no, I don’t remember seeking that informa­
tion. We tried to find out about the children, get every­
thing we could.

Q. Now, how about such things as the names and occupa­
tions of parents? A. I don’t remember anything about the

—220-
names of children. Thought the names were there. I saw 
them.

Ernest J, Oglesby■—for Plaintiffs—Direct



150a

Q. The parents’ occupations ? A. I don’t remember any­
thing about the names or occupations of the parents.

Q. You don’t remember any discussion about occupa­
tions? A. I don’t remember. I don’t say there wasn’t any. 
We talked about this case for two or three hours. It was 
nothing that made any difference to me. If it was discussed, 
I  didn’t pay any attention to it. I don’t think it was.

Q. Do you know of the existence of any written records 
of what happened at this August 15th meeting other than 
the official Board minutes which we have in the record and 
Mr. Hilton’s paper, any records on your end opposed to 
the local end? A. Now, you have to ask the first part of 
that question, which I didn’t hear.

Q. I am sorry. We have in Court two records of this 
August 15th meeting that came from Pupil Placement 
Board. One is your official Board minutes, which I read 
yesterday morning. You know what they are? A. Yes. I 
have seen them. I  don’t remember what they say.

Q. And the other is Mr. Hilton’s notes which are Ex­
hibit—

Ernest J. Oglesby■—for Plaintiffs-—Direct

The Court: That is in evidence.
Mr. Nabrit: I am trying to find out if there are 

any other records other than these two.
— 221—

The Witness: Your Honor, I  can answer right 
now that I know of no other records.

By Mr. Nabrit:

Q. Other than this ? A. I  know of no other records.
Q. All right. Now, I understand you had a secretary 

present during this two- or three-hour meeting? A. That 
is true, though, I  am not sure that the secretary was present



151a

every minute. The secretary did not take down anything 
that was said in the way of discussion of conversation dur­
ing that period. If she did, we would have had to slow 
down. Instead of taking two or three hours, it would have 
taken all day, as a secretary cannot keep up with it at the 
rate that we go on one of those meetings. So, we don’t 
make any attempt to have a verbatim record of everything 
that is going on.

Q. Her job is to prepare what goes into the formal min­
utes, right, or your official minutes! Is that her job? A. 
One of her jobs.

Q. What else does she do? A. Goes out and prepares 
papers for us and does various things that we ask. She is 
sort of an assistant to our executive secretary. But it is 
not her job to get a record of everything that is said by 
people at the meeting.

Q. So, there is no record. Is it true that there is no
— 222-

record, no statement made or no written record from Au­
gust 15th meeting as to the Board’s reasons, conclusions, 
findings of facts that they deem important for rejecting the 
applications? A. None, except what might be in the min­
utes.

Q. Now, the minutes contain a statement which I read 
in the record yesterday by stipulation and, as I look at 
them, the only pupils they mention are the nine pupils 
who were granted transfers and doesn’t even mention the 
names of the other pupils, the other 30 pupils mentioned 
by group. Would you tell me what the action was to those 
30? A. Yes. Immediately they were notified. Their par­
ents were sent letters immediately saying that they were 
not—saying what schools they were put in, which in fact 
amounted to the same as saying we are not putting you 
where you are asking to go, we are putting you somewhere

Ernest J. Oglesby—for Plaintiffs—Direct



152a

else. They were notified at that time. These parents were 
notified if they did not like the assignment they were get­
ting, they could protest. All they had to do was protest 
in writing to us, in writing, in 15 days, which is called for 
by the law and we would grant a hearing.

Q. Just a minute. Don’t volunteer information. I  am 
familiar with the law that you raise. The Court will take 
notice of that. You don’t have to explain it. One of the 
exhibits in the record is Plaintiffs’ Exhibit D which is three 
letters, one of them is stipulated to be a specimen of the

- 2 2 3 -
letter from Mr. Hilton to one of the parents who was un­
successful in getting a transfer. Is that what you refer to? 
Those went out to the parents, this letter? A. If it is a 
letter of that type, it would.

Q. Do you know any other notice that went out to the 
parents? A. I do not. I have known of letters that did 
carry that further statement with respect to application 
for rehearing. They may not have been on these letters. 
We were feeling our way at that time.

Q. I wasn’t asking you about any other applications 
other than these, these 39 Plaintiffs. In other words, the 
only written document—there is no written document giv­
ing the reasons at all? A. Not that I know of.

Mr. Nabrit: May it please the Court, unfortu­
nately, we don’t have the minutes in written form 
except as the document I read into the record; if 
Your Honor would like to look at that.

The Court: I understand that. It only refers to 
the nine.

Mr. Nabrit: It contains other reference. One 
thing, it mentions race.

Ernest J. Oglesby—for Plaintiffs—Direct



153a

Ernest J . Oglesby—for Plaintiffs—Direct 

By Mr. Nabrit:
Q. Did I understand you to tell me, Mr. Oglesby, that 

you personally had no way of telling me the reason any
—224—

of these pupils who were rejected were rejected? You 
don’t have any recollection or any way of refreshing— 
A. I might be able to by looking over the record to guess 
in the ease of certain ones that must have been the reason. 
But we have a man present that you can call and he can 
give you all of the details on the tests, Mr. Wingo is our 
expert on that. My decision that afternoon was made en­
tirely based upon the belief that these 30 wmuld not be 
able to do the work. That belief was based upon a number 
of different reasons.

Q. But, you cannot remember the reason that applied to 
any particular child? A. That is correct, exactly correct.

Q. You understand that Mr. Wingo remembers? A. I 
think Mr. Wingo can look at the test grades and interpret 
them much better than I can.

Q. I see. Have you ever had any occasion to give this 
kind of personal attention to any other Roanoke City pupils 
that these 39 got? A. The only attention we ever given to 
any Roanoke City children since I have been on this Board 
were the 39 who we had up in connection with the August 
15th date. There was no reason to consider the rest of 
them. There was never any dispute with them since I have 
been on the Board. It might have happened before that.

Q. All I am asking, since you have been on the Board,
—225—

these 39 are the only Roanoke City pupils you have con­
sidered personally? A. Absolutely.

#  *  #  *  #



154a

Cross Examination by Mr. Scott:
Q. Mr. Oglesby, how often does the Board meet regu­

larly? A. We meet on the second Monday of every month 
and we have met for a number of special meetings.

Q. I beg your pardon. A. We had ten meetings between 
August and December and we have had something more 
than an average of one a month since the first of the year.

Q. In other words, you have special meetings when the 
occasion— A. Whenever anything needs quick action we 
have special meetings.

Q. Just briefly, what is the normal agenda at one of your 
meetings? And by that, bring in for the Court’s benefit, 
how are these routine, so-called, applications presented? 
A. First we read the minutes and then we have the routine 
applications. And for an ordinary morning—a good Mon­
day, we get—that would be 10,000, and those are acted on

—226—
as a body. We don’t see any of the names. We don’t know 
anything about those except that they are perfectly routine 
and go through as such.

Q. Where are they? A. The applications are there in 
the office. They have been worked on and—what is the 
technical term that they use ?

Q. Processed. A. Processed by our force and they are 
well-trained people and we don’t have to worry about those.

Q. Now, Mr. Oglesby, since you have been on the Pupil 
Placement Board, have you had protests involving white 
people as well as protests involving Negro people? A. 
We have, sir.

Q. Has your treatment of whites been any different from 
that of the Negroes?

Ernest J. Oglesby—for Plaintiffs—Cross



155a

Mr. Nabrit: Objection. The question is leading 
and suggestive and calls for a conclusion of the 
question.

The Witness: I am sorry. I  didn’t hear the ques­
tion.

Mr. Scott: I will phrase it this way: Did you treat 
protests in both of those instances in accordance 
with the same routine1?

Mr. Nabrit: Same objection.
The Court: Objection is overruled.
The Witness: We do.

*  #  #  #  #

—230—
# # # * #

Q. Can you say approximately how many Negro chil­
dren you have assigned to heretofore predominantly white 
schools since you have been on the Pupil Placement Board? 
A. I will have to stop and do a little counting up. When 
you put in—no, I think I can answer that—about 60.

Q. And in various localities? A. In various localities.

Mr. Scott: I have no further questions.
# * # # #

—236—
* * # # #

Redirect Examination by Mr. Nabrit:
Q. Were all of these 60 cases, Mr. Oglesby, were cases 

assigned to predominantly white schools, did all of those 
cases get careful attention by your Board? A. They cer­
tainly did.

Q. None of these routine cases? A. Never a case where 
we decide anything under protest, white or colored, that

Ernest J. Oglesby—for Plaintiffs—Redirect



156a

we haven’t had all of the information that we could get.
Q. All of these Negro pupils who were assigned to pre­

dominantly white schools got personal attention? A. They 
did.

Q. No Negro ever got into a white school in this 10,000- 
a-month routine? A. That is not a routine application. 
That would be a case where—now, yes, we have had cases 
sent to us with a recommendation from Norfolk or other 
places where they were ordinarily routine. I am talking 
about the ones we assigned—I mean that were assigned 
under protest.

—237—
Q. I understood you to tell me very clearly that you gave 

careful attention to every one of these 60 Negro pupils 
that you assigned to a predominantly white school? A. I 
meant that, as I understood your question. You have 
changed your question a little bit now. I  don’t know wheth­
er I understood.

Q. None of them were in this group that your staff 
handles as opposed to your Board? A. The 60 that I am 
talking about were not in that group.

Mr. Nabrit: Your Honor, I have no further ques­
tions.

By the Court:
Q. Did the Board in the Roanoke ease, at the time they 

had these applications under consideration, know or was 
it brought to their attention that the applicants were all 
colored or what their race was? A. Yes, sir, we knew they 
were colored.

Q. How did you know that? A. By the fact that they 
had been ordinarily assigned to schools that we could look

Ernest J. Oglesby—for Plaintiffs—By the Court



157a

up and see where they were colored and also by the fact 
that we were told by the Roanoke people that these were 
cases of colored people applying for white schools.

Q. Does the Board have a policy when it gets an appli­
cation that requires its particular attention have its secre­
tary or someone else look up to ascertain whether or not

—238—
the applicant is colored or white by any means, whether it 
be from the previous school attended or the present school 
or otherwise? Do they want to know that information? 
A. I think that the answer to that would, in general, be yes.

Q. Do you think the knowledge that the applicant is 
colored or white, in the hearing of the application, in any 
manner has any influence upon the Board one way or the 
other ?

Mr. Nabrit: Your Honor, with leave, may I regis­
ter an exception to the question on the ground that 
it calls for a conclusion?

The Court: You may except all you want to but 
the Court is asking this for the Court’s information 
because it thinks it is very pertinent information that 
neither counsel brought out. You may answer the 
question.

The Witness: I  think, sir, that we have certainly 
tried to be completely impartial with respect to that.

By the Court:
Q. I understand that is your intention and what you hope 

to do. I was asking you whether or not having knowledge 
of the race of the applicant in any manner influences your 
decision? A. I think the answer is no. It is my belief that 
it did not.

Ernest J. Oglesby—for Plaintiffs—By the Court



158a

Q. Would you tell me why the Board seeks to learn in
—239-

advance of the hearing the race of the applicant for trans­
fer? What is the purpose of getting that information? A. 
I  don’t know that we do get that in advance of the hearing. 
When those forms that are under protest come before us, 
we then try to find out all of the facts we can about them.

Q. Then, if you get it at the beginning, what I am get­
ting at, from the Board’s standpoint, from your observa­
tions of the functioning of the Board, what is the pertinency 
or the relevancy of having either the name or the race? 
Couldn’t you do it just as well if the applicant was cata­
logued by number or otherwise? A. That might be, sir.

Q. Would you agree if the Board did not have that 
knowledge at the time of the hearing, that is, didn’t know 
the identity of the applicant until such time as it may or 
may not be necessary for a personal interview, such as 
under the protest, could they in your opinion give a fair 
determination of the situation? A. I don’t know, sir. I 
doubt it. I don’t know.

Q. Do you think it is necessary to know the applicant 
other than by identification number in order to render a 
fair verdict; is that right? A. I  think so, sir.

Q. Now, does the Board or did the Board have at the 
time of the Roanoke hearing had the Board itself, pre­
vious thereto, established any standards or criteria which

—240—
they used in connection with evaluating each of these 
applications? A. We had been in existence, I believe, less 
than a month. We haven’t had very much time for estab­
lishing criteria. We had not established anything and we 
have not as of now established any that would be considered. 
I  think we just took the cases as they were and tried to 
make a decision on our best judgment as it appeared to us.

Ernest J. Oglesby—for Plaintiffs—By the Court



159a

Q. Then the Court understands that yon didn’t have any 
advance criteria or standard to compare these applicants 
with at the time of the Roanoke hearing and you do not 
have any now? A. That’s right.

Q. How can you make all transfers equal insofar as 
meeting or coming close to a fixed standard throughout the 
State if you don’t have a standard to go by? A. I don’t 
know, sir.

Q. What? A. I don’t know the answer to that, sir. We 
have tried not to put a child in a situation where he couldn’t 
handle himself, where we felt he was going to fail. The 
criteria for that would vary from place to place.

Q. I appreciate that. A. And we have, of course, gradu­
ally formulated certain ideas, but as for having written out 
firm criteria, I don’t think we have them.

—241—
Q. Now, you do use and you did use then in the Roanoke 

case, as one of the criteria, the considered judgment of the 
Board pertaining to the qualifications of the applicant to 
fit in with the group he was seeking to enroll? A. Yes, sir.

Q. And, insofar as that criteria is concerned, it would 
obviously be different from locality to locality? A. Yes, 
sir.

Q. Because the reason he was seeking, obviously might 
be different? A. Yes, sir.

Q. What other oral criteria did the Board have in mind 
and use in addition to this fitness in the case of the Roanoke 
applicants? A. My recollection, Your Honor, was very 
little else except in the case, I believe, about four of them, 
the matter of distance.

Q. But did you have any distance criteria? Did the 
Board at that time have more or less a standard policy 
subject to minimum or variation that distance would be

Ernest J. Oglesby—for Plaintiffs—By the Court



160a

one of the controlling criteria in approving or disapproving 
applicants? A. Yes, sir.

Q. And did you have any other except distance and the 
Board’s opinion after investigating all of the facts you 
could get as to the fitness of the child to co-mingle with

—242—-
those he sought to enroll with? A. I  believe everything 
else could be listed in that second classification in this case, 
my idea of it. That is what I meant by that classification.

Q. That exhibit that was just handed to you was an ex­
hibit that was introduced when Mr. Hilton was on the 
stand as a resume or form that was used by the Pupil 
Placement Board in considering the Roanoke applications. 
Are you familiar with that exhibit? A. Yes, sir.

Q. Have you seen it before? A. Yes, sir.
Q. And is it or is it not the work of the Pupil Placement 

Board? I mean, those qualifications were put on there at 
the direction of the Board? A. We had it before us at that 
hearing. I don’t know who prepared it.

Q. Well, did you approve it? A. We approved it in the 
sense that we believed it to be correct. We used it as a 
guide.

Q. Now on that exhibit that you have—39 at the top, is 
that right? A. Yes.

Q. And you have minus four in the first group. And be­
side that you have the word residence. Does that mean that

—243—
those four were denied transfer solely on the ground of 
residence? A. I can’t tell you.

Q. In distance to school? A. I don’t know, sir.
Q. Who does know? A. I think probably Mr. Wingo can 

probably testify more accurately on that because he would 
have to look at the test scores over in connection with that.

Ernest J. Oglesby—for Plaintiffs—By the Court



161a

Q. If you cannot tell me, I will call Mr. Wingo now. 
If you can, I want to know. You said the Board approved 
that classification for that group and I want the Board 
to explain it to me, only so I might better understand it. 
Now, if Mr. Wingo can do it better, I  will ask you to step 
down and ask Mr. Wingo to take the stand. A. I think 
that would be a good idea. He knows more about it than 
I do.

Mr. Scott: If Your Honor please, before you do 
that, may I ask him a question as to whether or not 
the testimony of yesterday about distance and aca­
demic achievement were the two most important? 
I  want to make sure.

The Court: I have reason to believe that perhaps 
both you and maybe Mr. Nabrit will have some ques­
tions to put.

Will you step down and let Mr. Wingo take the 
stand.

(The witness withdrew from the witness stand.)
—244-—

A. L. Wingo—for Defendants—By the Court

A. L. W ingo , called as a witness b y  the Court, was duly 
sworn and testified as follows:

Examination by the Court:
Q. Mr. Wingo, are you familiar with that exhibit that 

you have in your hand? A. Yes, I have seen it, Your 
Honor.

Q. Now, is it, that exhibit, or is it not a summary that 
was made and was approved in connection with the depo­
sition of the Roanoke applicants, in connection with the 
Roanoke hearing? A. As I recall, it is a summary of the



162a

kind or at least some of tlie kind of information that was 
furnished by the Roanoke local school authorities.

Q. Now, there are 39—I assume that is the number of 
students that you had under consideration? A. Yes.

Q. And the first column gives four names and has the 
word residence. What does that residence mean? A. 
Meaning that they were closer to the—they were not as 
close to the school to which they were applying to which 
the schools they had been assigned.

Q. As a member of the Board, since there are no minutes 
on it, so the Court is informed, can you state whether or 
not the Board by an affirmative vote or by more or less

- 2 4 5 -
acquiescence, unanimous agreement, decided that after 
hearing all of the evidence that those four students or appli­
cants under that first category were denied transfer sought 
on the ground, on the fact, that they lived closer to the 
school they were attending ? A. As I recall it, that was the 
decision of the Board by acquiescence.

Q. Now, the next grouping below it, it takes a minus two 
and it has the word retained. What does that retain mean? 
A. Means that in the judgment—of course, we were asking 
for a valued judgment. It meant in their judgment that 
they would not be likely—would not be promoted academi­
cally. They had been retained in the schools that they were 
enrolled. They were denied because it was thought by the 
Board that they would not be able to meet the challenge 
of the schools to which they were applying.

Q. That means that the facts that you had before you 
that those two applicants had not progressed sufficiently to 
be promoted to the grade they sought to be enrolled? A. 
Right.

Q. In other words, they academically failed to pass that

A. L. Wingo—for Defendants—By the Court



163a

year’s work and couldn’t go to the next grade? A. Yes. 
They had a record of failure which seems to me they were 
poor prospects academically—shouldn’t be going in a situ­
ation where they would not be able to make out.

Q. Now, the next group that you have there is a minus
—246-

nine and it is listed below median. What does that mean? 
A. The median as was explained yesterday by the witness 
as a point of score—50 above and 50 below—percent of it. 
We have chosen this median deliberately because we want 
to make sure that the individuals involved in such classes 
will not lower the standard, the academic standard of the 
class. So, that is the reason we are using the median rather 
than the arithmetical mean, which doesn’t necessarily mean 
the spot where half the children fall below and half the 
children above. For example, in average or arithmetical 
mean, 65 per cent of the children could be below and 35 per 
cent above or vice versa. So, we are very much concerned 
about the academic standard and that is why the median is 
chosen. Now, there is another point that ought to be 
thoroughly introduced at this point. The Kulman-Ander- 
son Test, administered at the second grade level, has an 
IQ standard of roughly five points which means simply 
th is: That the true score for a child would be plus or minus 
five points. Now, the reason for that is this: Every stand­
ardized test is, out of necessity, a sampling instrument. 
You can recall your law examinations and you know, of 
course, the kind of questions to which you responded. Now, 
here is the way we use these test results. If a child, except 
by other counts, by his academic record, by his conduct, 
by evidence that the teacher has, if he has apparently what 
it takes for progress through record and actual attainment 
and so on, that sort of thing, and still misses the median of

A. L. Wingo—for Defendants—By the Court



164a

the class by, say, not more than one standard error of the 
measure, we have in many cases said, “All right. Appar­
ently, he is academically qualified.” Now, on the other 
hand there are many pupils who may have as much as a 
standard error of measure above the class, above the 
median of the class for which he is applying. Because of 
his failure in the past, because of the kind of evidence that 
we have, we frequently or sometimes at least come to the 
conclusion that that child would—sometimes deny those 
because we regard them also as bad risks both from the 
standpoint of the classes they are applying and also from 
the standpoint of the individual. We are deeply concerned 
about not placing children in discouraging situations, in 
which they cannot meet the challenge. We have made no 
exhaustive follow-up studies, but we are told all that we 
have placed this past year have done quite well.

Q. Now, Doctor Wingo, you used the word in that group 
—below median. A. That means they are all definitely 
below that.

Q. Arid none above it, does that mean, or did you have 
before you when you passed on those nine the degree of 
below median? In other words, you could be below and 
right next to it or you could be way down at the bottom and 
still be below. A. Below the median, down to perhaps a 
lower 10 or 15. Incidentally, we do not take the position as 
was discussed yesterday that we got to go one standard 
deviation below and it makes no sense that they are below

—248—
the median because there is no statistical relationship. The 
only way that standard deviation is in connection with an 
average. But that would take us down to the lowest 15 
and so per cent of the group.

A. L. Wingo—for Defendants—By the Court

— 247—



165a

Q. I am not indicating that yon should only take the low 
15 per cent. I  merely want to know what this below the 
median— A. Yes. It means that they range, the same 
measure of range test, below or down near the bottom of 
the distribution for which they are applying.

Q. Then the Court takes it that these nine, it would be 
the Board’s unanimous conclusion by agreement, acquies­
cence, that their transfer should be denied on that ground? 
A. Yes. Undoubtedly, insofar as test records are con­
cerned, would be bad risks both for them and in the class.

Q. The next one you have, one in that category, and it 
says aptitude very low. What does that mean? A. Of course, 
not having more records before me, but as I  recall, here 
we were trying to get from the local school authorities 
general information. As I would recall, that simply indi­
cates that there may not have been a test score. I am not 
sure. But it indicates from all of the evidence they had, 
his likelihood of succeeding in the situation for which he 
was applying wras slight. In other words, without our other 
evidence, we were trying to get the kind of information 
that the local school authorities had and make a judgment

—249—
on the kind of information that they could give which had 
to do with study habits and, of course, scores where they 
had them and, of course, academic records.

Q. By aptitude, do you mean as distinguished from below 
a median, that would be an educational standard? A. Yes.

Q. Aptitude means personality or not a good mixer or, 
I call it, acclimative relationship as distinguished from 
IQ? A. Yes. Aptitude—educational—has a very technical 
definition. In simple statement it is : The ability to improve 
with training or to grow with training in certain areas of

A. L. Wingo—for Defendants—By the Court



166a

study. Now, I can—I might have to go back to other notes 
that I  have.

Q. Is the converse of that—if his aptitude is very poor 
that he is a dullard, without getting into any individuals? 
A. Generally speaking, it refers to certain areas of ability, 
certain aspects, rather than over-all general ability to 
learn or do academic work.

Q. Now, the next category you have there is six— A. 
Sibling relationship.

Q. I know what sibling relationship is. I learned it by 
the dictionary early, and then I have heard a lot about it 
here. I knew what the relationship was but not the name 
of it. A. As I recall, Your Honor, and I am basing this on 
memory on many other cases, the local school authorities

—250—
pointed out that it was their policy, locally, not to divide 
the brothers and sisters at the elementary school level. And 
the thing that impressed me mostly they said it had been a 
long established policy. But, so far as I know, we made no 
comment—we thank you for that information and that sort 
of thing. We made no judgment on that. So far as I was 
personally concerned, the sibling relationship had another 
significance and that was a predictor of success of academic 
success in school. I  know this was explained from the 
standpoint of probability. This has some pitfalls. But, 
generally speaking, the children in a family will be more 
or less alike. There will be exceptions insofar as their 
school work is concerned. So, one of the things—

Q. For the record, I  have three brothers. They are not 
all the same. A. I also come from a family where there 
is an exception. But, here, I am dealing with the proba­
bility and not the exception. And we were using, at least 
I was in my own mind, as a possible clue if we didn’t have

A. L. Wingo—for Defendants—By the Court



167a

more, get more information as to the probabilities. Now, 
they didn’t mention that and we didn’t mention it to the 
local school authorities. I kept it in my mind as a possi­
bility.

Q. Was it the decision of the Board that these six were 
denied their transfer on the ground that they were siblings 
or fell in that category? A. That was apparently the con­
trolling influence, yes.

—251—
Q. Now, let me ask you this. Did these six meet all of 

the other qualifications for transfer; namely, above the 
median, proper residence, their aptitude was all right, 
except they were siblings? A. I don’t think so. Do you 
want me to check some notes here?

Q. Yes, sir, I want to know whether they were excluded 
solely on the ground of being siblings. A. I don’t even find 
the first name that is listed here.

Mr. Nabrit: I might volunteer one in that group— 
is not a Plaintiff. Last name begins with an A.

The Witness: That is the one I couldn’t find. In 
the case of the next one listed there—-four in paren­
thesis, Your Honor, I find from the notes that I have 
here, which are not complete—

Mr. Scott: Is that number four?
The Witness: Number four in parenthesis.
Mr. Nabrit: Those are not the code numbers. I 

assume that is the grade this year.
Mr. Scott: Number 17, I think—
The Witness: Number 17, that is what I  have here.
The Court: I don’t care about the individual. But 

at this time I just want you to tell me, if you have 
records, to tell me whether or not the Board used

A. L. Wingo—for Defendants—By the Court



168a

A. L. Wingo—for Defendants—By the Court

- 2 5 2 -
sibling relationship as there—I don’t know whether 
it is justified or not—whether they used that as the 
sole ground of not granting the transfer? Now, if 
you have this distance, if you have below median, 
if you have a sibling relationship, and a poor apti­
tude, obviously, you have a collection of reasons to 
why the transfer should not be granted.

The Witness: I have no test information that 
would indicate that they should not be granted. I 
have no information about residence which was in­
dicated that they should not be granted. At least it 
concludes to me that the reason was sibling relation­
ship.

By the Court:
Q. Does that apply to all six of them? A. I have to do 

more checking.
Q. It is getting near lunch time. In connection with that, 

if the Board can with reasonable effort—because I think 
it is very material, it is in my determination—if there are 
more than one ground used by the Board in denying a 
transfer, I would like to know it rather than to have them 
in these categories unexplained because I can only assume 
that that is the ground. And I am not saying whether it 
is a justifiable ground or not for denying transfer. A. 
You are speaking of this group—sibling?

Q. I  am speaking of the whole category—like the four 
you denied on residence. I want to be fair to the Board.

—253—
If you denied them on the ground of residence and on the 
ground of sibling relationship and on the ground of below 
median., you certainly would be on stronger ground to



169a

deny the transfer than yon would if you had one particular 
—if the one was found not to be a proper ground for denial. 
Do you follow me, what I mean? A. You want all cate­
gories treated?

Q. If you have that data, if you can at lunch time.
Now, the next one is number eight. You have eight of 

them, those that are only slightly above the median. The 
other group you had nine below. What does it mean— 
slightly above the median—better than— A. While I was 
explaining, not more than one standard error, which statis­
tically is not significant. Apparently other records, aca­
demic records, were not particularly outstanding.

Q. It is my understanding that these eight were denied 
transfer, assuming that you do not have other grounds in 
your statistics, on the ground that they are slightly above 
the average median of the class to which they were to be 
assigned? That is, they are a little better than the average 
but not much better; is that correct? A. Plus the fact that 
they did not have other strong, qualifying characteristics.

Q. What I am trying to get at—is this a fair classifica­
tion. If somebody is in excess of the average in the class 
and otherwise qualified, I would need an explanation as to

—254—
why he was denied. I  mean, if he was above average and 
fits all of the others, and that was the reason. I  want the 
Board to have full opportunity to give me the full classifi­
cations on the grounds.

Now, then, the bottom one, the nine, they are the ones 
that were in fact admitted? A. Yes.

Q. All right. After conferring with your colleagues and 
your counsel, and if you think you can, it would be helpful 
to the Court, to revise this list if they fall in more than 
one category, as to individuals. The Court would be glad 
to receive it.

A. L. Wingo—for Defendants—By the Court



170a

The Court will recess for lunch until quarter of 
two.

(Whereupon the luncheon recess was taken.)

(The hearing was resumed at 2 o’clock p.m., with 
the same appearances as at the morning session.)

(The witness resumed the witness stand.)
* * * # *

—255—
# * * * *

By the Court:
Q. Mr. Wingo, have you had an opportunity, during the 

short lunch period, to check your records in order to ascer­
tain whether or not these classifications on the exhibit that 
I handed you are the sole grounds for the denying of the 
transfer applications for the persons named thereon or 
whether there were more than one ground for some of 
them? A. Yes, I have and there were. I  have gone over

—256—
additional information which was before us at the time. 
I am prepared to go through by number to indicate, if you’d 
like.

Q. All right. I would like for you to do that. A. Num­
ber 20, below median was the sole—

Q. Number 20—below median was the sole ground? A. 
Yes, sir. Number 14, sibling relationship with 20.

Q. Number, sibling relationship only? A. Yes. And, 
actually, below the median, too, but not low enough. So 
we were not counting that.

Number 2, residence and a slow pupil, as indicated by 
test scores.

A. L. Wingo—for Defendants—By the Court



171a

Mr. Nabrit: I am sorry. I couldn’t hear you.
The Witness: Residence.

By the Court:
Q. And slow achievement ? A. A very slow achievement. 
Number 4, residence only.
Number 5, slightly above the median. That was the sole 

ground.
Q. Slightly above the median. That was the sole ground.

Mr. Scott: That was above the median or below? 
The Witness: Above.

A. (Continuing) Number 11, at or slightly below median, 
and the sole ground.

—257—
Number 17, below the median, definitely.
Number 26, a sibling relationship with 17.
Number 15, a sibling relationship with 17 and 16. They 

were the sole grounds.
Number 7, slightly above the median.
Number 28, aptitude very low—in that sheet you saw. 

That was it, but it was very low all of the way. Over a 
series of years, consistently, scores were low all of the way. 

Number 13, at or slightly below median and also distance. 
Number 9, that was listed as at or slightly below median 

on that sheet that categorized it. That seems to be in error 
because that person doesn’t seem to be, according to the 
other records that we have—seems to have made satisfac­
tory progress.

Q. What is the ground for that one then? A. Apparently 
we were in error on that one.

Q. In other words, you concede that you have no ground 
for denying the transfer on that one— A. Yes.

A. L. Wingo—for Defendants■—By the Court



172a

Q. —according to the report. What is that number? A. 
Nine.

Number 25, below median and also distance or residence.
Number 16, sibling relationship, sole grounds.
Number 24, below median.
That is, 16 is sibling of 24—below the median.

- 2 5 8 -
Number 10, at or above median—was listed on the sheet 

that you had. That also appears to be in error but, actually, 
the other reason was distance.

Q. So, it is in error as to the classification on the sheet? 
A. But distance.

Q. So, you are using distance as your criterion now for 
that applicant? A. That is right.

Q. That means distance alone is the ground? A. That is 
right.

Number 5, the residence, listed on the sheet that you 
have, I think; also, below the median and with a record of 
poor adjustment in school.

Number 23, below the median, well below.
Number 22, below the median; a rather spotty record, 

as far as testing goes.
Number 18, a sibling and also a very—just a fair student, 

according to the records.
Number 3, residence, sole grounds.
Number 19, below median and also distance. Below 

median was listed on the sheet that you had.
Number 1, failing in school and also distance and below 

median.
- 2 5 9 -

Number 27, below median and also distance and sibling 
relation.

Number 12, at or slightly below the median.

A. L. Wingo—for Defendants—By the Court



173a

Number 21, below the median and also distance.
I believe that completes the list.
Q. Mr. Wingo, can you state for the record whether or 

not the Board in considering those few that they rejected 
on the ground of sibling relationship alone that the fact that 
that has been a policy in Roanoke schools played a sub­
stantial part in the decision of the Board for denying those 
applicants? Or does the Board take the position that in 
cases of both white and colored that, with the few excep­
tions, they would disapprove a transfer if on the ground 
of sibling relationship alone, assuming that otherwise a 
student is qualified? A. Yes. I think I am speaking for 
the Board that since that appeared to be an established 
policy in Roanoke City, it seems to us, well, that we go 
along with it.

Q. If it were not an established policy either in the case 
of a white child or a colored child from another jurisdic­
tion in Virginia and the child was otherwise, according 
to your standards, qualified to be transferred, and the child 
in question was a sibling, would you deny the transfer on 
that ground alone ? A. Speaking for myself, I am not sure 
about the other members of the Board, I don’t think I

—260—
would have in other situations in which the policies were 
not established.

Q. Where there is no policy to that effect? A. That is 
right, I  would not have.

The Court: Thank you very much for the informa­
tion.

A. L. Wingo—for Defendants—By the Court



174a

Cross Examination by Mr. Scott:
Q. Mr. Wingo, for the benefit of the Court, I don’t think 

the record shows anything about your academic attainment 
or what your present position is. Would you state your aca­
demic qualifications and what your present position is and 
how long have you been in that other than the member of 
the Virginia State Placement Board? A. I have a Bachelor 
of Arts degree from the University of Virginia, consider­
able amount of graduate work at the University of Virginia, 
including graduate work in statistics and a number of 
courses in testing and measurements and administration 
courses. I have been a member of the Department of Edu­
cation at Richmond since 1944. My present title is Co­
ordinator of Guidance, Testing and Research.

Q. In what? A. In the Department of Education; in 
the State Department of Education.

Q. How long have you been in that position? A. In the 
present position, that is, with the present title and re­
sponsibilities, since May 1959. Beginning in 1944 I be-

—261—
came supervisor of conservation education. In 1947 I be­
came supervisor of research. And, at that time, one of my 
main responsibilities was to conduct a State-wide testing 
program. That responsibility stayed with me ever since. 
In addition, I picked up along the way responsibilities for 
school building surveys, chairman of the committee to 
writing out reports and guidance, as of 1959.

Q. These several cases that you referred to, it was dur­
ing the noon recess the first time that you discovered where 
these errors were? A. That is right.

The Court: Mr. Wingo, I forgot one question.

A. L. Wingo—for Defendants—Cross



175a

A. L. Wingo—for Defendants—Cross 

By the Court:
Q. I believe, and I might be wrong, that there was still 

one or two of the applicants who had a slightly above the 
average median and that was the only ground that the Board 
had now designated as their justification for denying the 
applications. Can you tell me, since the report does not 
have any official minutes on the subject, the Board’s position 
as expressed by the members in their conferences, why a 
child who otherwise qualifies could not be transferred 
when he is above the average median in that class? What 
is behind that? A. Primarily, the fact—well, let me say— 
let me again, please. If the score is not more than one 
standard error measure above the median, it isn’t highly 
significant statistically because it can work the other way,

—262—
too. I am looking at number six who was classified as above 
the median. Actually, the third grade the test grade equiva­
lent was 3 point 0, on that particular test, somewhat be­
low, because the test was given at the beginning of her 
school year. In the spring, though, this pupil picked up to 
3 point 7, which was probably just at the median. In the 
4th grade the IQ is 93. Although there had been an IQ of 
103 at an earlier grade—as a matter of fact, in the 2nd 
grade; well, there wasn’t a sufficiently consistent record 
here to cause us to believe that this person would be a 
highly likely prospect to succeed in the school to which she 
was applying.

Q. Well, would you state whether or not it is the policy 
of the Board in reviewing applications for transfer in the 
cases of both white and colored students that both cate­
gories, in order to get approval on their transfer, that they 
should be at least equal or a little better than the average



176a

median of the class they seek to attend? A. Yes, with one 
reservation, Yonr Honor. In the case of Negroes trans­
ferring from schools that were Negro schools to pre­
dominantly white schools, if these transfers or these at­
tempts to transfer are randomly made, the chances are 
three out of fonr that each one that applies will be below 
the median for the white school or predominantly white 
school to which he is applying. That is a matter of course, 
if they are selected at random—three to four. On the other 
hand, if whites are applying for transfer to a white school,

—263—
the chances are one in two that they are below or one in 
two above. In other words, the thing becomes an academic 
situation in the case of the whites. But in the case of the 
Negro applying for—to enter the white school, that dif­
ference makes it a statistical problem.

Q. Then, in that particular category, color does have a 
bearing on it? A. I am sorry?

Q. Then, in that particular category, color does in fact 
have a bearing on the decision? A. It does insofar as our 
concern for scholarship qualifications are concerned, yes.

Q. So, to that extent, there is a different standard in the 
ease of a white applicant and a colored applicant? In other 
words, he is required to have an average above the median 
to a greater degree than a white student would require ? A. 
Well, the situation is this: Whites selected randomly for 
transfers will not change the picture. Negroes selected 
randomly, without application of test scores and academic 
qualifications, generally, will lower the standards.

Q. You mean they will lower the standard? A. That 
existed prior to that.

Q. The mean standard of that class? A. Yes.

A. L. Wingo—for Defendants—By the Court



177a

A. L. Wingo—for Defendants—Cross

—264—
Q. Because due to this ratio—one to four ratio as com­

pared to this one to two, you are going to get a lesser 
aptitude out of the colored than you will out of the white? 
A. The chances are three to four.

Q. Now, would that same condition exist in an application 
for a transfer to a predominantly white school by a colored 
applicant even though the school was predominantly white 
it had several years a limited number of Negro students 
therein? In other words, would the addition of one more, 
if it had four or five students, be noticeable in the standing 
of the school or the class, to make it clear? In other words, 
if you had transferred three to a class, on your theory you 
could bring the average down in the law of averages ? A. 
Yes.

Q. Now, once you had the three, would the addition of one 
more make any material difference on the median standing 
of the whole class? A. It depends upon the score of the 
one who—

Q. Assuming that he was the average—at or near? A. 
If he were at or near the average, it wouldn’t change. It 
wouldn’t change it significantly.

The Court: That is all. 

By Mr. Nabrit:
—265-

Q. On the last thing that you mentioned, Mr. Wingo, 
adding an average person to a group, adding a person 
to a group when he is average within that group doesn’t 
change the average at all—average or median? A. That is 
what I said.

The Court: That is obvious.



178a

A. L. Wingo—for Defendants—Cross 

By Mr. Nabrit:

Q. I thought I detected some possible confusion in this 
sibling relationship. Let’s see if I can state it. Pupils who 
have brothers and sisters below the median, a brother or 
sister below the median, were not transferred if they would, 
by the transfer requested, be separated from that brother 
or sister below the median; is that the idea? A. Yes, that 
is part of the idea.

Q. Well, does that represent what you tried to do? You 
tried to look at the records and not grant transfers to pupils 
who had a brother or sister below the median if they were 
going to be separated from them and would be together if 
you denied both transfers; is that the idea? A. We gave 
some credence to the established policy in Eoanoke City, 
as I explained to Iiis Honor a while ago. We were con­
cerned about disrupting the family by putting one child in 
one school, particularly at the elementary level. And I also

—266—
said—I think I am the only one on the Board that shares 
this—but I also stated that as far as I was concerned, 
as we are trying to make up our minds, I took into con­
sideration the standing of the sibling, too, when we didn’t 
have much information about a younger sibling, a possible 
indication of the academic qualifications and so on. I 
doubt if the other members of the Board share my interest 
in that sort of thing, but—

Q. You didn’t hear anything like that from the Eoanoke 
people? A. No, no.

Q. And, I think you indicate— A. That policy is based 
upon the fact that they don’t separate the children. No, I 
didn’t get that from them. I will tell you, Mr. Nabrit, the 
thing that we probably haven’t conveyed to you in this 
whole thing is that we are so concerned about the indi­



179a

viduals not being placed in situations that would be educa­
tional frustrating and upsetting and lead to failures.

Q. So, the idea in the case of these children in this type 
situation is to do something to protect them. This is your 
justification for rejecting transfers? A. Yes.

Q. On the sibling relationship theory? A. Yes.
—267—

Q. Now,— A. We don’t intend, on the other hand, that 
we can prove beyond a shadow of a doubt that the separa­
tion of brothers and sisters would necessarily cause harm. 
We just don’t want to take a chance.

Q. Now, I think you have stated—let’s go back to another 
term that was used a number of times in your testimony. 
You referred any number of times in answer to the Court’s 
questions the standard error of measurement. A. Yes.

*  # # # #

—268—
# * * # #

A. L. Wingo—for Defendants—Cross

By Mr. Nabrit:

Q. Go ahead. A. The standard error of measure of a 
test indicates the band of error or the band of change 
that would take place if a child were tested with a succes­
sive number of tests. Many times over equivalent forms 
of the test, his score would vary. In the case that illustrates 
that, we are using five points below any score that he 
might start could vary about five points. That means you

—269-
get a so-called band of error. And a case of standard 
deviation, that is a measure of the middle two-thirds of a 
group that has been tested.

Q. So, one term is measure of a test and one has to do 
with the individual? A. One has to do with a theoretical



180a

number of individual scores which become a group and, 
statistically, the thing is treated if they are made a group 
of scores but made by one individual. The standard devia­
tion deals with scores made by a number of people in 
the group—their relationship. But they are different.

Q. Now, tell me th is: Does the standard error of meas­
urement give you the same kind of description of a group 
that that standard deviation does? A. Standard measure 
doesn’t give you a description of the group at all. It gives 
you an individual.

Q. Now, did you have available when you considered 
these any other statistics to help you describe those classes 
other than the medians? A. No, and we didn’t need it 
because—

Q. I asked if you had it? A. No, we didn’t have it.
Q. I  thank you. Now—-

The Court: Go ahead and tell me why you didn’t 
need it. I  want all of the facts. Tell me why you 
didn’t need it.

The Witness: We didn’t need it, Your Honor, be-
—270-

cause we were seeking to find out where that middle 
point was. And, from our point of view, anyone be­
low it would reduce the level. Now, this thing of 
standard deviation, is a measure which indicates 
whether the group fills out up in the middle or is 
spread out. As far as we were concerned, if it was 
below the median the general level would be lower.

By Mr. Nabrit:

Q. All you wanted to know is where the median was— 
decided in advance this was going to be your governing 
thing—above and below the median? A. Bight.

A. L. Wingo—for Defendants—Cross



181a

Q. Now, you had no statistics before you then to enable 
you to determine where a pupil—these Plaintiffs here— 
with a given score how he related to the cluster of pupils 
around him, did you ? A. No deviation with probable error, 
we wouldn’t have it. And we weren’t concerned about the 
cluster.

Q. Now, you didn’t have high or low scores, you didn’t 
have the range, did you? A. No.

Q. Even knowing the high and low scores would tell 
you a little more than just the median about describing 
this class, if you are comparing— A. Yes.

—271—
Q. But you didn’t have that? A. We didn’t need it. We 

didn’t ask for it.
Q. Now, did I understand your testimony during ex­

amination by the Court that—let me try to find my notes on 
this. I won’t waste the time. Did you have some testimony 
that you were looking for people who you thought confi­
dent, say, would be highly successful if they were granted 
a transfer? A. I didn’t use the word highly successful. 
At least I can say this that we were concerned about mak­
ing sure that we didn’t place any who would be failures.

Q. I think you used the word likely prospect to succeed. 
That is what you were looking for, right? I am not trying 
to commit you to that quote, but that is the general idea.

Mr. Scott: I  believe it was Mr. Oglesby who said 
that.

The Witness: I think so, too. If I  may answer 
your question now, if you want me to say what I 
mean about that, I will do it.

The Court: Go ahead and say it.

A. L. Wingo—for Defendants—Cross



182a

The Witness: We were seeking always, insofar 
as we were using academic qualifications, to make 
sure that the chances of success were reasonably 
good, reasonably high. We know, of course, that we 
cannot expect perfection.

By Mr. Nabrit:

Q. The theory behind this is the same as your theory—
—272—

the same general reasoning here is that you gave me with 
respect to the sibling, that you were concerned with these 
pupils? A. Yes.

Q. And you only want those transferred who are fairly 
likely to succeed? A. We feel the situation.

Q. The nine that your Board granted transfers to were 
they all pupils who were well above average academically? 
A. Yes.

Q. And in all other respects that you considered? A. 
Yes.

Q. And there were a good number of average pupils— 
several standards—I am not going to commit you to the 
number. But what was your position on average pupils— 
put it that way—why they should be average ? A. Average 
for what group ?

Q. Such pupils as those who were reported at or slightly 
above average or slightly below the academic median, what 
is your philosophy on those pupils? A. Well, we were 
told yesterday that an average IQ range is from 90 to 110. 
Now, that depends upon the test. For example, a test like 
the Culman-Anderson—a standard deviation of 16 means 
that the middle two-thirds would lay between 84 and 116. 
On the other hand, a test like the Lordstone-Dicky, which I

A. L. Wingo—for Defendants—Cross



183a

A. L. Wingo—for Defendants—Cross

—273—
understand has a deviation of 14, means that the middle 
two-thirds would lay between 114 and 86. And, generally 
speaking, I would say that the average, as teachers think 
of children, would range in terms of IQ, from approximately 
90, early 90, to around 108 or 10.

Q. This was because what the Stamford-Binet 1937 used! 
A. Bight.

Q. Go ahead. What is your philosophy. This is interest­
ing about tests. I  thought you were coming to how this 
helped you. Is this the real reasoning again for rejecting 
these pupils, that it is better for them? A. Yes. And we 
have in this—I am not sure about these cases—but we have 
a number of cases admitted individuals whose scores were 
at least one standard error of measure below the median 
for the class for which they were applying. But where 
we have done that—

The Court: Let him answer.
The Witness: You are asking for a theory and 

you are asking for a principle and this is it.

By Mr. Nabrit:

Q. Go ahead. A. At least it appears to be what you 
are asking for.

Q. I  thought you have answered it.

The Court: Don’t interrupt. Let him answer.
The Witness: We have done that in a number of

—274-
instances. I  am not sure that I can remember all 
of the individuals in this case. There seems to be 
other evidence in terms of drive, ambition, school



184a

marks and so on which would indicate that the indi­
vidual would make out all right; that he would in 
that more challenging situation do quite well. On 
the other hand, we had in some instances here denied 
some even though their scores ranged as much as 
one standard error above the median, because other 
indications were that the child lacked perhaps other 
qualities which were necessary to succeed in this 
situation for which he was applying. In other words, 
we do not rely altogether on test groups. We are 
trying to use a standard error of measure as one 
effort, as one kind of interpretation which would 
help us to come to some decision about problems of 
success.

By Mr. Nabri t:

Q. Do I understand what you are telling me—you use 
this in conjunction with these appraisal of personality 
ability to adjust that you had before you? A. Well, we 
didn’t have any formalized appraisals—personality.

Q. Item 12 on those summary sheets—you are not famil­
iar with them. Are you familiar with Court Exhibit No. 1? 
A. No.

Q. Well, what did you have before you last August 15th
—275—

on personality ability to adjust that you used—oral pres­
entation of remarks by the Roanoke School staff? A. 
Primarily, kinds of progress they have made in school, 
study habits and that sort of thing; whether they seemed 
to be interested in school work.

Q. Now, sir, do you have any graduate degrees in psy­
chology? A. No, I  do not.

A. L. Wingo—for Defendants—Cross



185a

Q. For testing? A. Well, in standard statistics, not 
graduate degree; but I have graduate work.

Q. Do you have any graduate degrees in any psycho­
logical specialties relating to personality? A. Only gradu­
ate degree that I have mentioned is a Master of Arts.

Q. What was the subject? A. Major was education and 
instruction in teachers’ college.

Q. Now, where did you find this information that you 
brought back after recess? Where did you find these addi­
tional facts, these new additional reasons in addition to 
what was on Mr. Hilton’s summary there? A. Mr. Hilton’s 
summary turned out to be the least important information 
furnished to us. What we had to use-—the sheet—we didn’t 
have them with us.

—276—-
Q. You got from the school authorities during lunch? 

A. Yes, and they are the same. They are copies of the 
same sheets that we had before us.

Q. Was it these—

The Court: Now, it was the information to be 
brought over yesterday to be put in evidence which 
I still want in evidence, and that is the statistical 
data that the Board had available at the time they 
made these decisions. They haven’t been introduced. 
The Court asked for them and expects them to be 
introduced.

Mr. Nabrit: May I look at them and see what they 
are?

The Court: Let’s introduce them first and then 
you may look at them. Put them all together in one 
bundle so they can be identified.

Mr. Nabrit: I cannot look at them before they 
are introduced?

A. L. Wingo—for Defendants—Cross



186a

The Court: Because the Court asked for them and 
I want them introduced whether they are favorable 
or unfavorable to you. You certainly have the right 
to examine them for the purpose of cross-examina­
tion. But the Court wants them in evidence because 
the testimony is that this material was before the 
Board at the time they made their decision.

Mr. Nabrit: May I proceed with my examination 
or do you want Counsel for the Board to introduce 
this now?

—277—
Mr. Parham: Your Honor would like this intro­

duced in evidence ?
The Court: I  want all of the data that the school 

officials had with them, all of the original records 
or what it was they had with them on the conference 
of the 15th, which information was available for use 
for the Pupil Placement Board during their study 
of this matter.

Mr. Parham: If Your Honor please, included in 
this information are the accumulative records of 
each one of these pupils. Could this be offered in 
evidence and withdrawn—a tremendous job of photo­
stating—and it is the school record for each one 
of these children.

The Court: They certainly can be withdrawn at 
the conclusion of this case if there is no appeal from 
either side of the decision. It cannot be withdrawn 
with an appeal pending. Being official records of the 
students, I will direct the Clerk to seal that evidence 
and not make it available to anyone except Counsel 
and the Court, because I do not want to have any­
thing published individually about a child. And, of 
course—

A. L. Wingo—for Defendants—Cross



187a

Mr. Parham: Also make available to the local 
school authorities because they have to have some 
duplicates to start keeping while—

The Court: I  will make them. The Court now is
—278—

to allow the superintendent or his authorized repre­
sentative to examine the records in the Clerk’s Office 
any time he wants to.

Now, if you will furnish photostatic copies of the 
parts you want to retain, of course they can be sub­
stituted, and the superintendent may have all of 
these original records back.

Let’s put them all in now. Put all of them either 
in a big jacket or a sack. Don’t need each one of 
them identified and they will be marked as informa­
tion before the Pupil Placement Board on August 
the 15th as furnished by the school officials of 
Roanoke City.

Now, the Court will take a ten-minute recess for 
the purpose of giving Counsel for the petitioners 
the opportunity to examine that information so that 
they may examine Mr. Wingo or anybody else on it 
that they want to.

(Whereupon a short recess was taken.)
(The witness returned to the witness stand.)
Mr. Nabrit: Do you want to proceed, sir?
The Court: Yes, sir.

By Mr. Nabrit:

Q. Mr. Wingo, part of Court Exhibit No. 2, Court Ex­
hibit No. 2 includes, as I have examined it briefly, the 
accumulative records of the number of pupils—appear to

A. L. Wingo—for Defendants—Cross



188a

be Plaintiffs—I haven’t seen them all, a large chart on a 
piece of graph paper, and a set of individual sheets 21 
individual sheets of paper, which I have in my hand. Is

—279—-
that what I understand was before you last September? 
A. Yes, as I recall.

Q. Last August 15th? A. August 15th.
Q. Now, are those the 21 pieces of paper, was this de­

livered to your office and did you keep a copy of this or 
what? A. No, apparently we didn’t, I thought we had 
copies until we got ready to come up here. But they were 
brought along with the other material. They were brought 
before us.

Q. Just for the record, referring to pupils divided up 
on these sheets by families, that is why there are 21? A. 
That is right.

Q. Now, you also confirm that on front of this accumula­
tive record, first box of information at the top lefthand 
corner of the first outside cover here—card, is space indi­
cating race and filled in Negro on each one; is that correct? 
A. Well, we didn’t examine all of those closely. But I see 
the ones that I see now do have race indicated.

The Court: To save time, the Court has already 
clearly indicated that it is going to consider that all 
of this additional data was made available to the 
Pupil Placement Board by the school board officials 
of Roanoke City. And it was there for them to use. 
Whether they used it or not really doesn’t make any 
difference. But they are charged with that statistical

- 2 8 0 -
data and it was brought in at their request and made 
available for their use. No need to ask him what

A. L. Wingo—for Defendants—Cross



189a

the particular document said, you may use it in 
argument. But the Court will be able to read what 
is on each one of those so far as is necessary.

Mr. Nabrit: Very well, sir. I didn’t have any 
purpose. I  was just trying to identify what these 
documents were.

The Court: The part I am trying to get over to 
you, regardless of whether Mr. Wingo personally 
recall having seen the individual exhibit, it was all 
there for his use and he used as much as he deemed 
necessary to reach a decision.

Mr. Nabrit: Well, his answers were in those 
terms. All I wanted to know—what was in the upper 
lefthand corner of the card and that was race.

The Court: Don’t you think I could read that as 
well as you can!

Mr. Nabrit: My only purpose was it was rather 
voluminous.

The Court: I want to get through with this case 
tonight. Let’s proceed.

By Mr. Nabrit:
Q. Do you recognize this and do you understand it at 

all—this graph that is part of Court Exhibit No. 2? A. 
No, this is not a graph.

—281—
Q. It is on graph paper! A. Yes. It is simply a chart 

showing scores by certain tests which are available for 
these children.

Q. Can you tell me what the various columns are! A. 
Oh, yes. First grade—Readiness Test; second grade— 
Culman-Anderson Test—mental age; third grade -Culman- 
Anderson Test—mental age; fourth grade is RA Achieve-

A. L. Wingo-—for Defendants—Cross



190a

rnent, composition and I am not sure of that word but it is 
a two-subject test, referring to two other tests. Lord 
Thorndike-Dick Intelligence Test and spaces for scores and 
RA Achievement Test and spaces for scores, again the 
Lord Thorndike-Dick verbal and non-verbal. That is what 
I think this is. I couldn’t read it. They happen to be two- 
subject tests and SR Achievement. I am not so sure that 
they are referring to the two-subject test. The sixth grade 
—verbal and non-verbal—spaces for scores—non-verbal 
scores. Our reading test for the second grade. Place of 
the total score—that apparently refers to one of the sub­
ject tests. Second grade—California Test of Mental Ma­
turity—space with mental age. Eighth grade—reading test, 
space for—I am not sure of that. Also space for total 
scores. There are eight subject tests.

Q. As far as you can see, this large graph here contains 
only individual pupils’ scores? A. That is right.

Q. And it has no information at all about median or 
classes that they were seeking to enter? A. That is right,

—282—
Q. And the individual scores here are in the form of 

mental age which has to be converted to IQs and subject 
totals which have to be converted before you get scores 
such as IQs and grades? This is real raw data? A. No, 
sir. These are equivalents.

Q. It is already grade equivalent on the achievement 
test? A. Yes.

Q. The IQs are not? A. Let’s see if we can find an IQ. 
Qnlman-Anderson—that is mental age. But mental age is 
not a raw score. It is one important score that we use in 
the intelligence test.

Q. You have to know the chronological age before it 
makes any sense? A. Yes, if you are concerned about get­

A. L. Wingo—for Defendants—Cross



191a

ting IQ. But, if you are concerned about the level of 
ability of a child in a particular grade, the mental age is 
important. For example, a child 14 years of age could have 
a mental age of 10. And, if he were in a class with chil­
dren whose age, mental age was close to 10, he would be 
expected to keep up with that group, part of the year at 
least. As the year progress, he would fall behind, because 
he is over-age. Mental age is important for grouping. IQs, 
apparently, are not given here.

Q. So you have just one of the figures used in deriving
—283—

IQ on this mental age? A. On this particular chart.
# #  * *

—284—

B. 8. Hilton—for Plaintiffs—Recalled—Redirect

B. S. H ilt o n , recalled as a witness for the Plaintiffs, 
having been previously sworn, testified further as follows:

Redirect Examination:
The Court: Have you testified in this ease?
The Witness: Yes, I have.

By Mr. Nabrit:
Q. Nov7, Mr. Hilton, in these routine groups of assign­

ments handled by the Pupil Placement Board, the groups 
that are handled administratively, you know when I speak 
of that? A. Yes, I think so.

Q. Now, what information do you have about such pupils? 
You have just the Pupil Placement forms when you— 
A. Just what is ordinarily on the Pupil Placement form. 

Q. When you handle such Pupil Placement? A. Yes.



192a

Q. Do you know whether—I think I asked this question 
in respect to the present Board. Did you follow that same 
procedure under the previous Board?

Mr. Scott: Objection.
The Court: Objection sustained.
I am not interested in what the previous Board 

did. It has no bearing on this case. Objection sus­
tained. Ask a new question.

* * * * *

—285—
* * * * *

Q. Well, do I understand, when you get these routine 
groups of pupils, the only information that you have about 
the individual pupils is what is on the Pupil Placement 
forms; is that normally what happens? A. I  think I told 
you that.

The Court: That is what he said.

By Mr. Nabrit:
Q. Not supplemented by any further information from 

any other source? A. Unless the application is incomplete 
with information which we need.

Q. And that would be incomplete in terms of the informa-
—286—

t io n  called for by the form? A. By the form.
* * * * *

B. S. Hilton—for Plaintiffs—Recalled—Redirect



193a

REUBEN E. LAWSON 
A ttorney  at L aw

P h o n e  D I amond 49751
L awson B u ilding  

19 G ilm er  A ye. N. W. 
R oanoke, V irginia

May 25,1960

Dr. E. W. Rushton, Superintendent 
Roanoke City Public Schools 
School Administration Building 
Roanoke, Virginia
Dear Dr. Rushton:

Enclosed you will find, properly executed, Pupil Place­
ment Application Forms for 30 students, seeking transfers 
to N on-S egregated schools nearest their homes, together 
with a petition requesting desegregation of the Roanoke 
City Public Schools.

Please rest assured that it is the desire of all of these 
applicants to cooperate with you and the School Board of 
Roanoke, Virginia in any and all lawful ways in effectuat­
ing the process of de-segregation in the City of Roanoke.

I hope that you will feel free to call upon the undersigned 
to lend any assistance and experience which he may have 
gained since 1955 in this matter.

With very best regards, I remain
Very truly yours,
/ s /  R eu ben  E. L awson 

Reuben E. Lawson
REL :e 
Enclosures

P la in tiffs’ E xh ib it A



194a

Plaintiffs’ Exhibit A 

PETITION

To: The School Board of Boanoke City, Virginia
Mr. E. W. Bushton, Superintendent of Schools 
The State Pupil Placement Board, and/or any other 
agency having the responsibility of assigning stu­
dents to schools.

We, the persons whose signatures are attached hereto, 
are parents or guardians of children of school age eligible 
to attend public elementary or secondary schools under 
your jurisdiction.

On May 17, 1954, the Supreme Court of the United States 
ruled that racial segregation in public schools is a viola­
tion of the Constitution of the United States. The Supreme 
Court reaffirmed that principle on May 31, 1955, and 
directed “good faith compliance at the earliest practicable 
date.” You have the responsibility of reorganizing the 
school system under your jurisdiction so that children of 
school age attending and entitled to attend public schools 
would not be denied admission to any school or be assigned 
to a particular school solely because of race or color.

We, therefore, call upon you to take immediate steps 
to reorganize the public schools under your jurisdiction, 
so that children may attend them without regard to their 
race or color.

The May 31st decision of the Supreme Court, to us, means 
that the time for delay, evasion or procrastination is past. 
Whatever the difficulties in according our children their 
constitutional rights, it is clear that the school board must 
meet and seek a solution to that question in accordance 
with the law of the land. As we interpret the decision, 
you are duty bound to take immediate concrete steps lead­
ing to early elimination of segregation in the public schools.



195a

Plaintiffs’ Exhibit A

Please rest assured of our willingness to serve in any way 
we can to aid you in dealing with this question. We fur­
ther request that all communications pertaining to this 
petition be sent to our counsel, Mr. Reuben E. Lawson, 
whose address is 19 Gilmer Avenue, Northwest, Roanoke, 
Virginia.

Enclosed you will find, properly executed, pupil place­
ment Applications for all Student petitioners.

The following parents and/or guardians request that 
their children be assigned to the designated school, to-wit:—

MONROE JUNIOR HIGH SCHOOL

Parents or Guardians 
Rev. & Mbs. E. L. Green

Dk. & M bs. F. R. L ogan

Mr. & Mbs. W alter L. W h eato n , J b.

Mbs. H azel A ndrews

Mr. & M bs. P urcell S trawbeidge

Mr. & M rs. W. C. P oindexter

Mr. & M rs. George W . W arren

Mr. & M rs. J ames L ong

Mr. & M rs. J ack T. L ong

Mr. & Mrs. G. R. L ong

Mrs. E m m a  B rown

Mr. & Mrs. R ichard H . P e n n ix

Mr. & M rs. C harles W illiam s

Students and Ages 
Cy n th ia  D . Gr een , 12

D e n n is  G. L ogan, 11

W alter L . W heaton  III, 13
R ichard H . A ndrew s, 12

Curtis  S trawbridge, 12

E ula  A . P oindexter, 11

G eorge W . W arren , 15
B everly E. W arren, 13
Carolyn J. W arren , 11

R obert L ong, 13

J ack T. L ong , J r ., 12
Cecelia  L ong, 12

T heodore B row n , 13

C harles H . P e n n ix , 12

C harlotte I . W illia m s , 12



196a

Plaintiffs’ Exhibit A

MELROSE ELEMENTARY SCHOOL

Parents or Guardians Students and Ages
R ev. & M rs. E. L. Green P aula L. Green 9

A l e n e  Y. Green 6

M rs. H azel A ndrews J oyce J .  A ndrews 7

M r . & M rs . G. R . L ong R osiland L ong 10
M ilto n  L ong 7

M r . & M rs. M elvin  C. A nderson L inda  L. A nderson 10
M elvin  A nderson  III 8

R ev. & M rs. R aymond R . W il k in so n Cassandra R. W il k in so n 7
N adine L. W ilk in so n 6

M r. & M rs. M elvin  D . F r a n k lin M elvin  D. F r a n k l in , J r . 6

WEST END ELEMENTARY SCHOOL

M r . & M rs . R. E. J ames, J r . C harles E. J ames 11
J u d it h  A. J ames 5

M r . & M rs. J ack T. L ong B renson  E. L ong 11
S ylvia K . L ong 6

M r . & M rs. W . C. P oindexter D arlene K im  P oindexter 8

By / s /  R eu ben  E. L awson

Their Attorney

Reuben E. Lawson, Counsel 
Lawson Building 
19 Gilmer Avenue, Northwest 
Roanoke, Virginia



197a

ROANOKE CITY PUBLIC SCHOOLS
R oanoke, V irginia

Plaintiffs’ Exhibit H

Office of the Superintendent

School
B elm ont

J amison

M o r n in g s id e

R iv e r d a l e

T otal

J ackson J r . 

J efferson  Hi .

School
G ilm er  
H arrison 
H urt P ark 
L inco ln  T err. 
L oudon

T otal

B ooker T . W a sh . 

L ucy A ddison

H ousing  of P u pil s

1961-1962

S ection  No. I

Grades
No.

Classrooms
1- 6 18
1- 6 23
1- 6 14
1- 4 4

7- 9 
10-12

59

S ection No. II

Grades
No.

Classrooms
1- 6 13
1- 6 19
1- 5 8
1- 6 18
1- 6 18

7- 8
8- 12

76

February 21,1961

Capacity
Est. Enrl. 
Sept. 19'61

540 515
690 555
420 365
120 110

1,770 1,545

800 715

1,150 775

Est. Enrl.
Capacity Sept. 1961

390 390
570 655
240 295
540 500
540 665

2,280 2,505

500 625

850 930



198a

Plaintiffs’ Exhibit H

Section No. I l l

School Grades
No.

Classrooms Capacity
Est. Enrl. 
Sept. 1961

H u ee  L ane 1- 6 14 420 395
M onterey 1- 6 8 240 188
Oakland 1- 6 17 510 496
P reston P ark 1- 6 14 420 412
.Round H ill 1- 6 14 420 394

T otal 67 2,010 1,885

B reckenridge 7- 9 700 960

F l e m in g  H ig h 10-12 1,200 940

S ection  No. IV

School Grades
No-

Classrooms Capacity
Est. Enrl. 
Sept. 1961

F airview 1- 6 8 240 235
F orest P ark 1- 6 19 570 560
M elrose 1- 6 21 630 450
W estside 1- 6 8 240 235
W a sh . H ts . 1- 6 9 270 170

T otal 65 1,950 1,650

M onroe J r . 7- 9 700 740

F lem in g  H ig h 10-12 1,200 940



199a

Plaintiffs’ Exhibit H

S ection  N o. V

School Grades
No.

Classrooms Capacity
Est. Enrl. 
Sept. 1961

Garden C ity 1- 6 12 360 380
H ighland  P ark 1- 6 25 750 490
T in k e r 1- 6 6 180 150
W est E nd 1- 6 19 570 395

T otal 62 1,860 1,415

L ee J unior 7- 9 750 505

J efferson  Hi. 10-12 1,150 775

S ection No. VI

School Grades
No.

Classrooms Capacity
Est. Enrl. 
Sept. 1961

Crystal S pring 1- 6 16 480 445
F ish b u r n  P ark 1- 6 8 240 180
Grandin  C ourt 1- 6 16 480 260
P ark V iew 1- 5 4 120 70
R aleigh  Court 1- 6 10 300 275
V irginia  H ts . 1- 6 20 600 570
W asena 1- 6 12 360 365

T otal 86 2,585 2,165

W . W ilson 7- 8 700 740

P atrick  H enry 9-12 1,200 1,158



200a

(Sheet used by Pupil Placement Board and 
Superintendent during August 15th Conference)

39 applicants

Plaintiffs’ Exhibit J

-  4 because of resi­ (Theodore Brown (7) Beverly Coleman (7)
dence Charles Pennix (7) Curtis Strawbridge (7)

35
-  2 retained (Beverly Warren (7) Richard Andrews (6)

33
-  9 below the median (Cynthia Green (7) Robert Long (8)

of the class Nannie Roberson (7) Carolyn Warren (7)
George Warren (9) Charlotte Williams (7)
Phyllis Martin (2) 
Roberta Roberson (5)

Linda Anderson (5)

24
-  1 aptitude very low (Dennis Logan (7)

23
-  6 sibling relation­ (Joyce Andrews (3) Robert Roberson (3)

ship Paula Green (4) Alene Green (1)
Nancy Martin (4) Melvin Anderson (3)

17
-  8 those at or only (Brenson Long (6) Sylvia Long (2)

slightly above Walter Wheaton (8) Jack Long (7)
the median Jerome Croan (5) 

Melvin Franklin (2) 
Christopher Kaiser (2)

Marzenia Moore (5)

9 Cecilia Long (7) Nadine Wilkinson (2)
Monroe

Milton Long (2)
Melrose

Melrose Darlene Poindexter (4)
Rosalind Long (5) West End
Melrose Charles James (6)

Eula Poindexter (7) West End
Monroe Judith James (1)

Cassandra Wilkinson (3) 
Melrose

West End



201a

Plaintiffs’ Exhibit I

Key Numbers for Pupils
1 . Beverly Warren
2. Theodore Brown
3. Curtis Strawbridge
4. Beverly Coleman
5. Charles Pennix
6. Jerome Croan
7. Christopher Kaiser

13 8. Jack T. Long, Jr.
9. Sylvia Long

10. Marzenia Moore
11. Melvin Franklin
12. Walter Wheaton

8 43. Brenson Long
14. Melvin Anderson
15. Alene Green
16. Nancy Lee Martin

26 44. Paula Lee Green
18. Robert Harry Roberson
19. George Wendell Warren
20. Linda Lavern Anderson
21. Charlotte Williams
22. Roberta Roberson
23. Nannie Roberson
24. Phyllis Diane Martin
25. Robert T. Long

17 26. Cynthia Green
27. Carolyn J. Warren
28. Dennis G. Logan

(* Italicized material are penciled notations that apply to 
memorandum used by Mrs. Gibboney. Court’s Exhibit 
#1)



202a

[ c a p t io n  o m i t t e d ]

(Filed: July 10,1961)

Under date of August 20, 1960, twenty-eight Negro chil­
dren instituted a suit in this Court against the School Board 
of the City of Roanoke, its Division Superintendent, E. W. 
Rushton, and E. G. Oglesby, Edward T. Justice and Alfred 
L. Wingo, individually and constituting the Pupil Place­
ment Board of the Commonwealth of Virginia, praying, 
among other things, that the Court enter a judgment de­
claring that the enforcement, operation or execution of 
certain sections of the Code of Virginia, commonly known 
as the Pupil Placement Act, violated the Due Process and 
Equal Protection Clauses of Section 1 of the Fourteenth 
Amendment of the Constitution of the United States, and 
that the procedure sections of the Pupil Placement Act need 
not be pursued as a condition precedent to judicial relief 
from the imposition of segregation requirements based 
on race or color; and that the action of the members of the 
Pupil Placement Board, in administering and enforcing the 
provisions of the Pupil Placement Act, deprives them of 
their liberty without due process and equal protection of 
the laws secured by the Constitution of the United States.

The plaintiffs further pray that the Court enter a tem­
porary and permanent injunction, restraining the defen­
dant School Board and its Division Superintendent from 
any and all action that regulates or affects, on the basis 
of race or color, the admission, enrollment or education of 
the infant plaintiffs, or any other Negro children similarly 
situated, to and in any public school operated by the defen­
dants; and that an order be entered directing the defen­
dants to present to this Court, within ten days, a complete

Memorandum Opinion



203a

and comprehensive plan, which shall provide for a prompt 
and reasonable start toward desegregation of the public 
schools under their jurisdiction and control.

The School Board of the City of Roanoke filed a motion 
to dismiss the complaint and under date of August 24, 
1960, Senior Judge John Paul entered an order denying 
the motion to dismiss and motion for an interlocutory in­
junction.

Whereupon, the defendants filed their responsive plead­
ings, generally denying the allegations of the complaint 
and asserting that all powers of assignment and enroll­
ment of students in the public schools of the City of 
Roanoke were vested in the Pupil Placement Board.

The matter was then fully heard on the merits and the 
record thus made discloses the following facts:

Thirty-nine Negro children made timely application for 
transfer to schools of their choice on forms supplied by 
the Pupil Placement Board. All of the said applications, 
together with all information furnished by the applicants 
were forwarded without comment or recommendation to 
the Pupil Placement Board for processing.

The School Board of the City of Roanoke, at the request 
of the Pupil Placement Board, compiled from its school 
records additional information pertaining to each appli­
cant, the said information consisting in the main, as fol­
lows :

Name and age of applicant ; parents’ name and occupa­
tion; school applied for; school and grade last attended; 
names of other school children in family, and the schools 
attended by them; the proximity of the attended schools 
to applicant’s home; the proximity of the requested school 
to applicant’s home; will near-future school construction 
affect placement of child; result of scholastic aptitude and

Memorandum Opinion



204a

achievement test for each child; and disciplinary and other 
factors pertinent to social adjustment of child in a strange 
environment.

The School Superintendent and other Roanoke City 
School Officials met with the Pupil Placement Board in 
Richmond, at which time all of the data secured by the 
school officials, together with the applicants’ school records, 
were submitted to the Pupil Placement Board for its use 
and consideration. The Roanoke school officials answered 
all questions asked pertaining to the applicants. They did 
not make any recommendations in re the assignment of 
any of the said applicants. The assignments in all cases 
were made by the Pupil Placement Board after it had ex­
amined the records and completed its discussions.

Nine of the applicants were assigned by the Pupil Place­
ment Board to predominantly white schools. Thirty of 
the applicants were assigned to the schools they formerly 
attended for various and sundry reasons. All of the ap­
plicants were notified by letter of their respective assign­
ments. This letter made no reference to the necessity of 
protesting the decision, if aggrieved, or set the time and 
place for the hearing thereof.

None of the plaintiffs noted a protest or indicated they 
were aggrieved by the assignments made by the Pupil 
Placement Board.

All of the infant plaintiffs enrolled in the schools to 
which they were assigned. Two of the children were not 
joined as parties plaintiff in this suit.

Several members of the Roanoke City schools and two 
members of the Pupil Placement Board testified at length. 
Each of them explained in detail the source of the data 
obtained in reference to each of the applicants and the dis­
cussions had with the members of the Pupil Placement

Memorandum Opinion



205a

Board while in Richmond. All of the documents, including 
the original school records that were before the Pupil 
Placement Board, during its deliberations, were introduced 
into evidence as exhibits. Members of the Pupil Placement 
Board testified that they did not knowingly make any as­
signment on account of race or color. The determinate 
criterion used in assigning children to schools was the 
residence of the applicant, his scholastic aptitude and 
achievement, and sibling relationship.

Expert psychologists testified in behalf of both the plain­
tiffs and defendants. They agreed in principle as to the 
value and propriety of the scholastic aptitude and achieve­
ment tests. They differed in the methods employed, in 
evaluating the results of these tests.

The evidence further indicated that the Roanoke City 
School System operated under what is known as a “geo­
graphical system”. Normally, white students residing in 
a geographical area attend the elementary, junior and 
senior high school located in the area. Geographical terri­
tories are likewise maintained for Negro students. They 
normally attend the elementary, junior and senior high 
schools in the area in which they reside. All students en­
rolled in school after December 29, 1956, remained in the 
school formerly attended until graduation, except in the 
case of approved transfer. New students, and those who 
change their residence within the city prior to graduation 
are assigned to the appropriate schools by the Pupil Place­
ment Board.

The defendants seriously contend that this suit ought to 
be dismissed because the infant plaintiffs did not exhaust 
the administrative remedies provided for in the statute, 
namely, they did not protest against the assignment made 
by the Pupil Placement Board. Under ordinary circum­

Memorandum Opinion



206a

stances we would not disagree with this contention. In this 
case, the transfer requests were denied five or six days 
prior to the commencement of the school term. Obviously 
there was insufficient time to have heard a protest if one 
had been filed. Therefore, the Court is of the opinion that 
a complete exhaustion of the administrative remedies 
should not be required as a condition prerequisite to the 
Court’s review of the denied applications in order to deter­
mine whether or not any of the plaintiffs’ constitutional 
rights have, in fact, been violated. (See Memorandum on 
Formulation of Decree on Mandate, Civil Action 1341, 
Clarissa S. Thompson, et al. v. County School Board of 
Arlington, Virginia, et al., United States District Court for 
the Eastern District of Virginia, Alexandria Division.)

A careful examination of all of the denied transfer ap­
plications, together with all of the exhibits that were con­
sidered by the Pupil Placement Board when making the 
said assignments, discloses the applicants were denied 
transfers solely on the grounds hereinafter set forth.

Applicant # 9  was denied a transfer on the ground that 
she was at or only slightly above the median. The mem­
bers of the Pupil Placement Board, in open court, frankly 
conceded they were apparently in error in this case and 
stated they did not have any ground for denying this trans­
fer. Therefore, this applicant must be transferred to the 
school applied for, effective with the commencement of the 
1961 Term.

Three of the applicants, namely, #3 , # 4  and #10, were 
denied transfers solely on the ground of residence. These 
cases do not indicate any discrimination on the ground of 
race or color and the action of the Pupil Placement Board 
will be affirmed.

Memorandum Opinion



207a

Eight of the applicants, namely, #1, #2 , #5 , #13, #19, 
#21, #25, and #27, were denied transfers on the ground 
of residence and on the further ground they were below 
the median of the class they sought to attend. These cases 
do not indicate any discrimination on the ground of race 
or color and the action of the Pupil Placement Board will 
be affirmed.

Applicant #28 was very, very low in the aptitude test. 
This case does not indicate any discrimination on the 
ground of race or color and the action of the Pupil Place­
ment Board will be affirmed.

Five of the applicants, namely, #17, #20, #22, #23 
and #24, were denied transfers solely because they were 
below the median of the class they sought to attend. The 
Court cannot determine, from the evidence, the j)ercentum 
below the median, of these children; therefore these ap­
plications should be reexamined by the Pupil Placement 
Board.

Two of the applicants, namely, #11 and #12, were denied 
transfers on the ground that they were slightly below or 
even with the median average of the class they sought to 
attend. This ground alone would appear to be discrimina­
tory on account of race or color; therefore these applica­
tions should be reexamined by the Pupil Placement Board.

Three of the applicants, namely, #6, # 7  and #8, were 
denied transfers solely on the ground that they 'were only 
slightly above the median of the class they sought to at­
tend. The Board, in explaining the reason for the denial 
of these applications, frankly conceded that Negro appli­
cants seeking transfers to predominantly white schools, 
should be above the average median of the class they are 
to attend because the probabilities are that three out of 
four of them will not thereafter maintain that average.

Memorandum Opinion



208a

The Court is of the opinion that this criterion is obviously 
discriminatory in that it is not equally applied in the case 
of white and Negro children. Unless, upon reexamination, 
the Board establishes nondiscriminatory reasons for deny­
ing these applications, an order will be entered herein, di­
recting that they be admitted to the schools of their choice 
commencing with the 1961 Fall Term.

Five applicants, namely, #14, #15, #16, #18 and #26, 
were denied transfers solely on the ground of a sibling rela­
tionship. Unless the Board is in a position to establish 
affirmatively that a sibling relationship is uniformly being 
followed in denying transfers to white and colored stu­
dents alike, these applications should not be denied solely 
on that ground. These applications should likewise be re­
examined by the Board.

Accordingly, an order will be entered herein, directing 
the Pupil Placement Board to reexamine the transfer ap­
plications of students numbered 6, 7, 8, 11, 12, 14, 15, 16, 
17, 18, 20, 22, 23, 24 and 26, and to advise them, or their 
parents, on or before August 20, 1961, of the action taken 
on such reexaminations and the reasons therefor; and 
directing the Pupil Placement Board to file a similar report 
at the same time with the Court, The reconsideration of 
the applications and the action thereon must be without 
regard to race or color and with the use only of just, 
reasonable and nondiscriminating criterion fairly applied.

The defendants will be heard upon the report of the 
reexamination and any exceptions thereto, at a date to be 
fixed by the Court.

The plaintiffs pray that this Court enter judgment, de­
claring the administrative procedures provided for in Title 
22, Sections 232.8 to 232.14, inclusive, of the Code of Vir­
ginia are inadequate to secure and protect the rights of

Memorandum Opinion



Memorandum Opinion

the infant plaintiffs to nonsegregated education and need 
not be pursued as a condition precedent to judicial relief 
from the imposition of segregation requirements based on 
race or color. Without passing on the constitutionality of 
these sections of the Virginia Code, the Court is of the 
opinion the administrative procedures set forth therein 
are not unreasonable and must be complied with except 
in unusual cases.1 They apply equally to all, regardless 
of race, color or creed.

The Court of Appeals for the Fourth Circuit has con­
sistently required Negro pupils desirous of being reas­
signed to schools without regard to race to pursue estab­
lished administrative procedures before seeking interven­
tion of a federal court. Farley v. Turner, 281 F. 2d 131.

The appeals to the state courts which these statutes pro­
vide, are judicial, not administrative remedies; after ad­
ministrative remedies before the Pupil Placement Board 
have been exhausted, judicial remedies for denial of con­
stitutional rights may be pursued at once in the federal 
courts without pursuing state court remedies.

There is no question as to the right of the infant plaintiffs 
to be admitted to the schools of the City of Roanoke with­
out discrimination on the ground of race. They are ad­
mitted, however, as individuals, not as a class or group, 
and it is as individuals that their rights under the Con­
stitution are asserted. (Henderson v. United States, 339 
U. S. 816.) It is the Pupil Placement Board of Virginia

1 In order to obviate the necessity for the Court to determine in each 
case whether or not the administrative remedies must be exhausted as a pre­
requisite to the filing of a suit in the Federal Court, it is suggested for the 
consideration of the Pupil Placement Board, it consider the advisability of 
establishing a date sufficiently in advance of the commencement of the school 
session to permit a timely and orderly hearing in protest eases. It is further 
suggested that the applicant be notified of the necessity of filing a protest 
simultaneously with the notification of the denial of the transfer sought.



210a

which must pass in the first instance on their right to be 
admitted to any particular school. They can not enroll 
themselves and we can think of no one better qualified to 
undertake the task than the officials having that respon­
sibility. It is to be presumed that these officials will obey 
the laws, observe the standards prescribed by the legisla­
ture and avoid the discrimination on account of race which 
the Constitution forbids. Not until they have been applied 
to and have failed to give relief shall the federal courts be 
asked to interfere in school administration. (With minor 
changes in order to comply with the factual situation in 
this case, the above was quoted from Chief Judge Parker’s 
opinion in Carson v. Warlick, 238 F. 2d 724.)

The plaintiffs further pray that this Court enter a de­
claratory judgment construing certain sections of the Code 
of Virginia, commonly known as the Pupil Placement Act. 
As these sections of the Virginia Code are not facially 
unconstitutional, this Court deems it improper to pass upon 
the validity of these statutes under the doctrine of federal 
abstention. See Harrison v. NAACP, 360 U. S. 167. Con­
struction and/or the constitutionality of the Pupil Place­
ment Act should first be determined by the Supreme Court 
of Appeals of Virginia. The plaintiffs or other persons 
similarly situated, should so file if they are thusly advised.

There is no evidence in this case to justify the prayer 
of the plaintiffs that the present members of the Pupil 
Placement Board are administering and enforcing the pro­
visions of the Pupil Placement Act so as to preserve, per­
petuate and effectuate the policy, practice, custom and 
usage of assigning children to separate public schools on 
the basis of their race or color. To the contrary, the evi­
dence clearly indicates that the members of the Pupil 
Placement Board are conscientiously endeavoring to per-

Memorandum Opinion



211a

form their official duties in accordance with law and with­
out regard to race, color or creed. These prayers are there­
fore denied.

The Supreme Court of Appeals of Virginia in DeFebio 
v. County School Board of Fairfax County, Virginia, 100 
S. E. 2d 760, has heretofore held that the enrollment or 
placement of pupils in the public schools of Virginia, is 
vested in the State Pupil Placement Board; further there 
is no evidence indicating that the School Board of the City 
of Roanoke or its Division Superintendent are, in fact, per­
forming these duties; therefore, there is no legal justifica­
tion for the entry of a permanent injunction, and the motion 
so requesting is herewith denied.

Counsel for the plaintiffs should prepare an appropriate 
order in accordance with this opinion, submit the same to 
counsel for the defendants for approval as to form, and 
it will be entered accordingly.

Costs will be assessed against the Pupil Placement Board.

Obex  R. L ew is 
United States District Judge

Richmond, Virginia 
July 7, 1961

Memorandum Opinion



212a

P la in tiffs’ O bjections to  R ep o rt o f  
P u p il P lacem en t B oard

[ caption  o m itted]

Plaintiffs object and except to the report filed in this 
case by the defendant Pupil Placement Board in accordance 
with the opinion herein dated July 7, 1961 and state as 
follows:

1. The opinion of July 7, 1961 directed the Pupil Place­
ment Board to reconsider the assignment of fifteen desig­
nated minor plaintiffs “without regard to race or color 
and with the use only of just, reasonable and nondiscrim­
inating criterion fairly applied”, and to report its action on 
or before August 20, 1961.

2. The report filed by the Pupil Placement Board in­
dicated that five pupils would be granted the requested 
transfers (pupils numbers 6, 7, 8, 15 and 26) and that ten 
pupils had been denied requested transfers (pupils num­
bers 11, 12, 14, 16, 17, 18, 20, 22, 23, 24). The reasons 
stated for rejecting these ten pupils related to residence, 
academic achievement, and sibling relationships. The re­
port also stated that pupil number 9 would not be granted 
a requested transfer because of residence closer to a newly 
completed school.

3. Plaintiffs object to denial of the requested transfer 
for pupil number 9 to the West End Elementary School. 
In the opinion filed July 7, this Court stated “this applicant 
must be transferred to the school applied for effective with 
the commencement of the 1961 term.” There was no direc­
tion to the defendants to re-examine or reconsider this ap­
plicant, but merely a direction to grant the requested trans-



213a

Plaintiffs’ Objections to Report of Pupil Placement Board

fer. The proposed assignment of this pupil to the Hurt 
Park School, a new all-Negro school, is not in conformity 
with the direction of the Court, Pupil number 9 was and 
is still being excluded from West End Elementary School 
on a racial basis in violation of her rights under the equal 
protection clause of the Fourteenth Amendment to the Con­
stitution of the United States.

4. Plaintiffs object and except to the denial of requested 
transfers for each of the ten other pupils rejected by the 
defendants (pupils numbers 11, 12, 14, 16, 17, 18, 20, 22, 
23 and 24) and state that these pupils were denied requested 
transfers on the basis of assignment criteria and qualifica­
tion standards which are not uniformly applied to white 
pupils attending the several schools involved. The as­
signment procedures and criteria used by the defendant 
board are racially discriminatory and operated to per­
petuate the presently existing state-created pattern of 
racial segregation in the city school system in that:

a. All Negro pupils are initially assigned on a racially 
segregated basis to all-Negro schools and are assigned to 
other all-Negro schools as they progress through the school 
system;

b. Negro pupils who seek to transfer to all-white or pre­
dominantly white schools are denied transfers if they reside 
closer to an all-Negro school, even though Negro pupils 
residing closer to all-white schools are not assigned to such 
schools and even though white pupils residing closer to all- 
Negro schools are assigned to other all-white schools not­
withstanding their place of residence;

c. Negro pupils who seek to transfer to all-white or pre­
dominantly white schools are denied transfers if they do



214a

Plaintiffs’ Objections to Report of Pupil Placement Board

not meet various undefined academic standards related to 
academic achievement or ability which are not applied to 
white pupils who attend the schools concerned;

d. Negro pupils who apply to all-white or predominantly 
white school are denied transfers if they would be separated 
from brothers or sisters attending the schools; this quali­
fication standard thereby operates to extend the effect of 
the academic screening discrimination to the siblings of 
pupils disqualified by the academic screening.

The foregoing assignment procedures and criteria used 
in denying the applications of the ten pledntiffs mentioned 
above are racially discriminatory and violate plaintiffs’ 
rights under the equal protection clause of the Fourteenth 
Amendment to the Constitution of the United States.

5. W herefore  plaintiffs pray that the Court enter an  
order:

a. restraining the defendants from refusing to admit 
each of the minor plaintiffs in the schools they applied to 
attend;

b. restrain the defendants from determining the admis­
sion of Negro pupils applying for admission to all-white or 
predominantly white schools on the basis of any qualifica­
tion standards not used in determining the admission of 
white pupils attending such schools, and specifically pro­
hibiting the practice of screening Negro applicants to white 
schools on the basis of academic criteria if white pupils 
are either initially assigned or transferred to such schools 
without reference to such academic standards;

c. restraining the defendants from continuing the prac­
tice of initially assigning all Negro pupils on the basis of



215a

Plaintiffs’ Objections to Report of Pupil Placement Board

race to all-Negro schools, and the practice of assigning all 
white pupils on the basis of race to all-white or predom­
inantly white schools, and requiring defendants to adopt 
and implement a plan or procedure for making initial as­
signments on an objective basis without regard to race or 
color and to eliminate the dual racial system;

d. granting such other and further relief as may be just 
and proper.

R eu ben  E. L awson

19 Gilmer Avenue, Northwest 
Roanoke, Virginia

J ames M. N abbit, III 
10 Columbus Circle 

New York, New York

Attorneys for Plaintiffs.



216a

[ caption  om itted]

Entered October 4,1961

This cause came on for trial before the Court sitting 
without a jury, and the Court having considered the plead­
ings, and having heard and received oral evidence and ex­
hibits in open court, and having entered and filed a Memo­
randum Opinion dated July 7,1961, in accordance therewith 
it is therefore, A djudged , Ordered and D ecr eed :

1. That the Pupil Placement Board of the Common­
wealth of Virginia (hereinafter referred to as the Pupil 
Placement Board) is directed to reexamine the transfer 
applications of the following named students and advise 
them or their parents on or before August 20, 1961, of the 
action taken on such reexaminations and the reasons there­
for, and that the Pupil Placement Board shall file a similar 
report at the same time with the Court:

a. Jerome Groan
b. Christopher Kaiser
c. Jack T. Long, Jr.
d. Melvin Franklin
e. Walter Wheaton
f. Melvin Anderson
g. Alene Green
h. Nancy Lee Martin
i. Paula Lee Green

Judgment



217a

j. Robert Harry Roberson
k. Linda Lavern Anderson

l. Roberta Roberson
m. Nannie Roberson
n. Phyllis I). Martin

o. Cynthia Green

The reconsideration of these applications and the action 
thereon must be without regard to race or color and with 
the use only of just, reasonable and nondiscriminatory cri­
teria fairly applied. The defendants will be heard upon the 
report of the reexamination and any exceptions thereto, at 
a date to be fixed by the Court;

2. That the Pupil Placement Board is hereby ordered 
to transfer the minor plaintiff, Sylvia Long, to the West 
End Elementary School effective with the commencement 
of the 1961-1962 school term;

3. That injunctive relief is denied as to applications of 
the following named minor plaintiffs for admission or 
transfer to the particular schools they sought to enter:

a. Beverly Warren
b. Theodore Brown
c. Curtis Strawbridge
d. Beverly Coleman
e. Charles Pennix
f . Marzenia Moore

Judgment



Judgment

g. Brenson Long
h. George W. Warren
i. Charlotte Williams

j. Robert T. Long
k. Carolyn J. Warren

l. Dennis G. Logan

4. That the plaintiffs’ prayer for declaratory judgment 
in the nature of a declaration that plaintiffs and others 
similarly situated are being deprived of rights protected 
by the due process and equal protection clauses of the 
Fourteenth Amendment by the defendants’ administration 
of the Virginia Pujhl Placement Act, and for a declaration 
that the procedures provided by the said Act are inadequate 
and unreasonable administrative remedies which need not 
be exhausted by plaintiffs and others similarly situated as 
a prerequisite to judicial relief, are denied;

5. That the plaintiffs’ prayers for an injunction restrain­
ing the defendants from any and all action that regulates 
or affects, on the basis of race or color, the admission, en­
rollment or education of the infant plaintiffs, or any other 
Negro children similarly situated, to and in any public 
school under the jurisdiction and control of the defendants, 
is denied;

6. That the plaintiffs’ prayer for an injunctive order 
directing the defendants to present to the Court a complete 
plan for desegregation of the schools under their jurisdic­
tion and control, is denied to all of which the plaintiffs, by 
counsel, objected and excepted;



219a

7. That costs in this action will be assessed against the 
defendant Pupil Placement Board.

Oben  R . L ew is  
United States District Judge

Date: Oct. 4,1961.

We have seen
R eu b en  E. L awson, for Plaintiffs
S. K. P akham , J e. for School Board of the City of Roanoke 
A. B. S cott, Counsel for Pupil Placement Board 
Name Illegible, Attorney General of Virginia

Judgment



220a

Notice of Appeal

[ caption om itted]

(Filed: November 1, 1961)

Notice is hereby given that Cynthia !). Green, an infant, 
and Rev. Emmett L. Green, her father and next friend; 
Dennis Gordon Logan, an infant, and Farris R. Logan and 
Dorothy Logan, his father and mother and next friends; 
Walter L. Wheaton, III, an infant, and Walter S. Wheaton, 
Jr., his father and next friend; Melvin D. Franklin, an 
infant, and Dollie L. Franklin and Melvin D. Franklin, his 
mother and father and next friends; George W. Warren, 
Beverly E. Warren and Carolyn J. Warren, infants, and 
George Willie Warren and Pearl T. Warren, their father 
and mother and next friends; Theodore Brown, an infant, 
and Emma Brown, his mother and next friend; Linda L. 
Anderson and Melvin C. Anderson, III, infants, and Melvin 
C. Anderson and Elsie A. Anderson, their father and 
mother and next friends; Marzennia Gayle Moore, an in­
fant and Zennie Moore, her mother and next friend; Nancy 
Lee Martin and Phyllis Diane Martin, infants, and Vernard 
Martin, their mother and next friend; Beverly Arlene Cole­
man, an infant, and Jessie Coleman, her mother and next 
friend; Nannie Doretha Roberson, Roberta Louis Roberson 
and Robert Harry Roberson, infants, and Lucille Roberson, 
their mother and next friend; Charles H. Pennix, an infant, 
and Richard H. Pennix, his father and next friend; 
Charlotte Inez Williams, an infant, and Charles Williams, 
her father and next friend, and Robert Long, an infant, 
and James Long, his father and next friend, plaintiffs here­
in, hereby appeal to the United States Court of Appeals



221a

Notice of Appeal

for the Fourth Circuit from the judgment entered in this 
cause on October 4, 1961, denying injunctive relief.

Date: November 1, 1961

R eu ben  E. L awson

19 Gilmer Avenue, Northwest 
Roanoke 17, Virginia

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

Attorneys for Plaintiff



38