Missouri v. Jenkins Supplemental Brief for Respondents

    I n  th e

U m te ft S t a t e s  O In u rt o f  A p jm i l f l
F ob t h e  F o u r th  C ir c u it

No. 8722

C ecelia  J a ckson , et al.,
Appellants,

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

Appellees.

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

WESTERN DISTRICT OF VIRGINIA, LYNCHBURG DIVISION

APPENDIX TO APPELLANTS’ BRIEF

J ack  G reen berg  
J am es M . N abrit , III 
M ic h a e l  M e l t sn e r  
L eroy D. C lark

10 Columbus Circle 
New York 19, New York

R e u b e n  E. L aw son

19 Gilmer Avenue, N.W. 
Roanoke, Virginia

Attorneys for Appellants



INDEX TO APPENDIX

PAGE

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

Complaint ....................................................................  4a

Motion to Dismiss of The School Board .................  16a

Motion to Dismiss of the Pupil Placement Board .... 17a

Answer of Pupil Placement Board ..........................  18a

Answer of School Board ...........................................  19a

Excerpts From Hearing of November 14, 1961 ..........  24a
Direct Examination of M. L. Carper .............. 24a
Direct Examination of Duncan C. Kennedy....... 32a

Order of November 15,1961 .......................................  35a

Opinion of January 15, 1962 ...................................  37a

Order of January 25, 1962 ........................................... 56a

Plan for Admission of Pupils to the Schools of the
City of Lynchburg ........  57a

Resolutions of School Board Annexed to Plan for 
Admission........... .....................................................  58a

Plaintiffs’ Objection to the P lan ................   60a



11

PAGE

Excerpts From Hearing of March 15, 1962 .............. 65a
Direct Examination of B. C. Baldwin, Jr. .......  65a.
Cross Examination of B. C. Baldwin, J r ........... 82a
Redirect Examination of B. C. Baldwin, J r ........  96a
Direct Examination of M. Lester Carper..........  97a
Cross Examination of M. Lester Carper _____ 105a
Direct Examination of Herman Lee ..........   113a
Cross Examination of Herman Lee .................  117a
Redirect Examination of Herman Lee .............. 119a
Recross Examination of Herman Lee .............. . 121a
Direct Examination of Duncan C. Kennedy .... 122a
Cross Examination of Duncan C. Kennedy___  126a
Direct Examination of M. Lester Carper ......  128a

Opinion of April 10, 1962 ...................... ................  136a

Order of April 18, 1962 ............................. .............  150a

Notice of Appeal 152a



Relevant D ocket Entries

9/18/61 

10/ 6/61

10/ 7/61

10/ 9/61

11/13/61

11/14/61

11/14/61

11/16/61

Rec’d and filed Complaint. * * * Rec’d and filed 
Motion for Interlocutory Injunction.
Rec’d and filed Motion Under Rule 12(b) to 
Dismiss Complaint of the defendants, The 
School Board of the City of Lynchburg and 
M. L. Carper, Superintendent of Schools of the 
City of Lynchburg.
Rec’d and filed Motion to Dismiss by the defen­
dants, E. J. Oglesby, Alfred L. Wingo and Ed­
ward T. Justis, Individually and constituting 
the Pupil Placement Board of the Common­
wealth of Virginia. . . .
Rec’d and filed Answer of the Pupil Placement 
Board.
Rec’d and filed Answer of Defendants, The 
School Board of the City of Lynchburg and 
M. L. Carper, Superintendent,
Hearing on motion to dismiss complaint, argu­
ment thereon, motion denied. # *
Evidence adduced on complaint. No evidence 
thereon by defendants. Both parties rested.
Defendants by counsel renewed motion for 
School Board and Mr. Carper to be dismissed. 
Motion overruled, exception noted. Argument— 
Court reserves decision as to 2 pupils but will 
admit 2. Directs memoranda submitted within 
3 weeks from this date.
Rec’d and entered Order signed by Judge 
Michie, November 15, 1961, directing admission 
of plaintiffs Cardwell and Woodruff to the 9th



2a

11/27/61

1/16/62

1/25/62

2/24/62

3/12/62

3/15/62

grade at E. C, Glass High School on 1/29/62 
and denying prayer of plaintiffs Jackson and 
Hughes. Motion for injunction taken under ad­
visement. Memoranda to be submitted on or 
before 12/5/61.
Rec’d Motion for New Trial on Part of the 
Issues with Points and Authorities in Support 
of Motion and Certificate of mailing, filed Nov. 
25, 1961.
Rec’d and filed Opinion, signed by Thomas J. 
Michie, U. S. District Judge, dated January 15, 
1962.
Rec’d and entered Order signed by Thomas J. 
Michie, IT. S. District Judge, dated Jan. 24, 1962, 
ordered the School Board of the City of Lynch­
burg to present to the Court within thirty (30) 
days from this date a plan for admission of 
pupils to the schools of the City without regard 
to race and the entry of a more general injunc­
tion herein will be deferred until such plan has 
been presented.
Plan for Admission of Pupils to the Schools of 
the City of Lynchburg; Certificate of Service 
and Certificate of School Board of Lynchburg 
attached.
Filed Plaintiffs’ Objections to Plan filed by 
School Board of the City of Lynchburg.
Hearing before Judge Thomas J. Michie in open 
Court on Presentation by School Board of Plan 
for Admission of Pupils to Lynchburg City 
Schools. . . . Defendants introduced evidence in

Relevant Docket Entries



3a

support of plan, witnesses were examined by 
counsel for plaintiffs, and Judge Miehie retired 
into chambers with counsel for arguments on 
plan. Order to be submitted at a later date.

3/15/62 Motion of Defendants to Approve Public School 
Assignment Plan for the City of Lynchburg.

4/11/62 Rec’d and filed Opinion, signed by Thomas J.
Miehie, U. S. District Judge, dated April 10, 
1962, approving the plan by the School Board 
for the desegregation of the Lynchburg schools.

4/20/62 Rec’d and entered Order signed by Judge Miehie, 
April 18, 1962, approving the plan of desegre­
gation, as modified, in accordance with the 
court’s suggestions and the defendant School 
Board shall put said plan into effect, etc., said 
plan shall not affect the rights of Owen Calvin 
Cardwell and Linda Woodruff.

5/ 5/62 Rec’d & Filed Notice of Appeals by the plaintiffs 
from the Order approving the defendants’ plan 
of desegregation (and thereby denying part of 
the injunctive relief prayed by plaintiffs), en­
tered April 18, 1962.

Relevant Docket Entries



4a

Bill of Complaint
(Filed: September 18, 1961)

IN THE UNITED STATES DISTRICT COURT 
F oe t h e  W e ster n  D istr ic t  of V ir g in ia  

L y n c h b u r g  D iv isio n  

Civil Action Number 534

C ecelia  J a ck so n , an infant by George F. Jackson, her 
father and next friend,

L in d a  W oo d ru ff , an infant by Edward M. Barksdale and 
Georgia W. Barksdale, her stepfather and mother and 
next friend,

O w e n  C. C ardw ell , J r ., an infant b y  Owen C. Cardwell, 
his father and next friend,

B renda  E. H u g h e s , an infant by Mabel Hughes, her mother 
and next friend,

and
G eorge F. J a ck so n , E dward M. B arksdale, G eorgia W. 

B arksdale , O w e n  C. Cardw ell  a n d  M abel H u g h e s ,

Plaintiffs,

T h e  S chool B oard of t h e  C ity  of L y n c h b u r g , V ir g in ia ,
M. L. C a rper , Superintendent of Schools of the City of 

Lynchburg, Virginia,
and

E. J. O glesby , A lfred  L. W ingo  and E dward T. J u s t is , 
individually and constituting the P u p il  P l a c em en t  
B oard of the Commonwealth of Virginia,

Defendants.

I
1. (a) Jurisdiction of this Court is invoked under Title 

28, United States Code, Section 1331. This action arises



5a

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 contro­
versy, 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, Section 1, 17 
Stat. 13 (Title 42, United States Code, Section 1983), to be 
commenced by any citizen of the United States or other per­
son within the jurisdiction thereof to redress the depriva­
tion under color of state law, statute, ordinance, regulation, 
custom or usage of rights, privileges and immunities 
secured by the Fourteenth Amendment to the Constitution 
of the United States and by the Act 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 jurisdiction of the 
United States as hereafter more fully appears.

II
2. Infant plaintiffs are Negroes, are citizens of the United 

States and of the Commonwealth of Virginia, and are resi­
dents of and domiciled in the political subdivision of Vir­
ginia for which the defendant school board maintains and 
operates public schools. Said infants are within the age 
limits of eligibility to attend, and possess all qualifications

Bill of Complaint



6a

and satisfy all requirements for admission to, said public 
schools.

3. Adult plaintiffs are Negroes, are citizens of the United 
States and of the Commonwealth of Virginia, and are resi­
dents of and domiciled in said political subdivision. They 
are parents or guardians or persons standing in loco 
parentis of one or more of the infant plaintiffs.

4. Plaintiffs bring this action in their own behalf and, 
there being common questions of law and fact affecting 
the rights of all Negro children attending public schools in 
the Commonwealth of Virginia and, particularly, in the 
said political subdivision, and the parents and guardians 
of such children, 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, the plaintiffs also bring this action, pursuant to 
Rule 23(a) of the Federal Rule of Civil Procedure, as a 
class action on behalf of all other Negro children attending 
public schools in the Commonwealth of Virginia and, par­
ticularly, in said political subdivision, and the parents and 
guardians of such children, similarly situated and affected 
with reference to the matters here involved.

I l l
5. The Commonwealth of Virginia has declared public 

education a state function. The Constitution of Virginia, 
Article IX, Section 129, provides:

“Free schools to be maintained. The General As­
sembly shall establish and maintain an efficient system 
of public free schools throughout the State.”

Bill of Complaint



7a

Pursuant to this mandate, the General Assembly of Virginia 
has established a system of public free schools in the Com­
monwealth of Virginia according to a plan set out in Title 
22, Chapters 1 to 15, inclusive, of the Code of Virginia, 1950. 
The establishment, maintenance and administration of the 
public school system of Virginia is vested in a State Board 
of Education, a Superintendent of Public Instruction, Divi­
sion Superintendent of Schools, and County, City and Town 
School Boards (Constitution of Virginia, Article IX, Sec­
tions 130-133; Code of Virginia, 1950, Title 22, Chapter 1, 
Section 22-2).

IV
6. The defendant school board, the corporate name of 

which is stated in the caption, exists pursuant to the Con­
stitution and laws of the Commonwealth of Virginia as an 
administrative department of the Commonwealth, discharg­
ing governmental functions, and is declared by law to be 
a body corporate. Said school board is empowered and 
required to establish, maintain, control and supervise an 
efficient system of public free schools in said political sub­
division, to provide suitable and proper school buildings, 
furniture and equipment, and to maintain, manage and 
control the same, to determine the studies to be pursued 
and the methods of teaching, to make local regulations for 
the conduct of the schools and for the proper discipline of 
the students, to employ teachers, to provide for the trans­
portation of pupils, to enforce the school laws, and to per­
form numerous other duties, activities and functions essen­
tial to the establishment, maintenance and operation of 
the public free schools in said political subdivision. (Con­
stitution of Virginia, Article IX, Section 133. Code of Vir­
ginia, 1950, as amended, Title 22.)

Bill of Complaint



8a

7. The defendant division superintendent of schools, 
whose name as such officer is stated in the caption, holds 
office pursuant to the Constitution and laws of the Common­
wealth of Virginia as an administrative officer of the public 
free school system of Virginia. (Constitution of Virginia, 
Article IX, Section 133. Code of Virginia, 1950, as 
amended, Title 22.) He is under the authority, supervision 
and control of, and acts pursuant to the orders, policies, 
practices, customs and usages of the defendant school board. 
He is made a defendant herein in his official capacity.

V
8. A Virginia statute, first enacted as Chapter 70 of the 

Acts of the 1956 Extra Session of the General Assembly, 
viz, Article 1.1 of Chapter 12 of Title 22 (Sections 22-231.1 
through 22-232.17) of the Code of Virginia, 1950, as 
amended, confers or purports to confer upon the Pupil 
Placement Board all power of enrollment or placement of 
pupils in the public schools in Virginia and to charge said 
Pupil Placement Board to perform numerous duties, activi­
ties and functions pertaining to the enrollment or place­
ment of pupils in, and the determination of school atten­
dance district for, such public schools, except in those 
counties, cities or towns which elect to be bound by the 
provisions of Article 1.2 of Chapter 12 of Title 22 (Sections 
22-232.18 through 22-232.31) of the Code of Virginia, 1950, 
as amended. (Section 22-232.30 of the Code of Virginia, 
1950, as amended.) The names of the individual members 
of the Pupil Placement Board are stated in the cajjtion.

9. Said statute provides that each school child who has 
heretofore attended a public school and who has not moved 
from the. county, city or town in which he resided while

Bill of Complaint



9a

attending said school shall attend the same school which 
he last attended until graduation therefrom unless enrolled, 
for good cause shown, in a different school by the Pupil 
Placement Board. The purposes and effect of said provi­
sion are to continue, in general, the discriminatory effect of 
the pre-existing requirement of the Commonwealth of Vir­
ginia that children in public schools be segregated on the 
basis of race and, also, to prevent local school authorities 
from devoting efforts toward initiating desegregation and 
bringing about the elimination of racial discrimination in 
the public school system and from making any prompt and 
reasonable start toward full compliance with the May 17, 
1954, decision of the Supreme Court inBrown v. Board 
of Education.

10. Said statute further provides that any child who 
desires 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 opening of the session, shall apply to the Pupil 
Placement Board for enrollment and shall be enrolled in 
such school as said Board deems proper. The purpose of 
this provision, the practice thereunder, and the effect there­
of are and have been that throughout the State of Virginia, 
and particularly in the political subdivision hereinabove 
mentioned, all white children are and have been assigned 
to schools generally known and considered as schools for 
white children; and Negro children, with few exceptions, 
if anjq have been assigned to and placed in schools which 
no white children attend.

11. The statute further provides that the parents or 
guardians, if aggrieved by action of the Pupil Placement

Bill of Complaint



10a

Bill of Complaint

Board in enrolling their child in a public school, may file 
with the Board a protest in writing within fifteen days 
after the placement of such child; whereupon the Board will 
hold or cause to be held a hearing after publishing notice 
thereof once a week for two successive weeks in a news­
paper of general circulation in the city or county wherein 
the aggrieved party or parties reside. The calculated effect 
of such publication in the cases of parents who seek for 
their child or children the right to attend public school on 
a racially nondiscriminatory basis is to call the attention 
of the community to the dissidence of the Negro parents 
who seek for their child a racially nonsegregated public 
school education and thus to subject that parent to such 
pressures which may be brought to induce abandonment of 
a federally protected right. Another practice of the Board 
in acting upon the protest is to require both parents and 
the child to appear before the Board, often at a place dis­
tant from their home and usually at considerable expense; 
such practice being calculated to induce the parents to 
forego their child’s federally protected right to a racially 
nonsegregated public school education. Furthermore, the 
Board’s original denial of the application for transfer usu­
ally comes at such time that, after the subsequent protest 
and hearing and action by the Board thereon, judicial 
remedy effective at the commencement of the next school 
term is forestalled.

VI
12. As matters of routine, every white child entering 

school for the first time is initially assigned to and placed 
in a school which predominantly, if not exclusively, is at­
tended by white children; or if otherwise assigned, then, 
upon request of the parents or guardians, such child is



11a

transferred to a school which, being attended exclusively or 
predominantly by white children, is considered as a school 
for white children. Upon graduation from elementary 
school, every white child is routinely assigned to a high 
school or junior high school which is predominantly, if not 
exclusively, attended by white children. Similarly, and 
with few if any exceptions, Negro children entering school 
for the first time are initially assigned to a school which 
none but Negroes attend and upon their graduation from 
elementary school they are routinely assigned to a high 
school or to a junior high school which none but Negroes 
attend. Thus, in the free public schools of the Common­
wealth of Virginia, and particularly in the schools main­
tained and operated by the defendant school board, the 
pre-existing pattern of racial segregation in public schools 
continues unaffected.

12A. The defendant School Board maintains overlapping 
school zones, in that all white high school pupils, regard­
less of their place of residence attend E. C. Glass High 
School (the only high school for white pupils), and all 
Negro pupils attend Dunbar High School (the only high 
school for Negroes).

13. To avoid the discriminatory result of the practice 
described in the paragraph next preceding, the Negro child, 
or his parent or guardian from him, is required to make 
application for transfer from the school which none but 
Negroes attend to a school specifically named. In acting 
upon such application for transfer from the all-Negro 
school, the defendants take in consideration certain criteria 
which defendants do not consider when making initial en­
rollments or placements in any school other than the initial

Bill of Complaint



12a

placement or enrollment of a Negro child in a school which 
white children attend. If such criteria are not met, the 
application for transfer is denied. For example, if the 
home of the applicant is closer to the school to which he has 
been assigned than to the school to which transfer is sought, 
the application is denied notwithstanding the fact that the 
latter school is attended by white children similarly situ­
ated with respect to residence. For further example, if 
intelligence, achievement or other standardized test scores 
or other academic records of the applicant do not compare 
favorably with the best or the better of similar scores or 
records of children attending or assigned to the school 
which the applicant seeks to attend, the application is 
denied notwithstanding the fact that many white children 
attending said school have lower scores or lower academic 
records than the applicant has.

YII
14. The defendants have not devoted efforts toward ini­

tiating nonsegregation and bringing about the elimination 
of racial discrimination in the public school system, neither 
have they made a reasonable start to effectuate a transition 
to a racially nondiscriminatory system, as under paramount 
law it is their duty to do. Deliberately and purposefully, 
and solely because of race, the defendants continue to re­
quire all Negro public school children to attend school were 
none but Negroes are enrolled and to require all white 
public school children to attend school where no Negroes 
are enrolled.

15. Each infant plaintiff has made timely application 
to the defendants for admission to a public school in said 
political subdivision heretofore and now maintained for 
and attended predominantly, if not exclusively, by white

Bill of Complaint



13a

persons; but the defendants, acting pursuant to a policy, 
practice, custom and usage of segregating school children 
on the basis of race and color, have denied the application 
of each of said infant plaintiffs solely on account of their 
race and color.

15A. Each of the plaintiffs herein has made due and 
timely application to the Pupil Placement Board for ad­
mission to E. C. Glass High School (the white high school) 
and upon being denied admission, pursued his wholly in­
adequate remedy of appealing to the Pupil Placement 
Board. Each plaintiff’s request was again denied and no 
reason was given for said denial by the Pupil Placement 
Board except to say . . . “was denied because it is the ojjin- 
ion of this Board that its previous action was correct.”

16. The refusal of the defendants to grant the application 
of each of the plaintiffs for enrollment as requested con­
stitutes a deprivation of liberty without due process of law 
and a denial of the equal protection of the laws secured 
by the Fourteenth Amendment to the Constitution of the 
United States, and a denial of rights secured by Title 42, 
United States Code, Section 1981.

17. Plaintiffs and those similarly situated and affected 
are suffering irreparable injury and are threatened with 
irreparable injury in the future by reason of the policy, 
practice, custom and usage and the actions of the defen­
dants herein complained of. They have no plain, adequate 
or complete remedy to redress the wrongs and illegal acts 
herein complained of other than this complaint for an in­
junction. Any other remedy to which plaintiffs and those 
similarly situated could be remitted would be attended by 
such uncertainties and delays as would deny substantial

Bill of Complaint



14a

relief, would involve a multiplicity of suits, and would 
cause further irreparable injury and occasion damage, 
vexation and inconvenience.

Bill of Complaint

VIII
W h e r e f o r e , plaintiffs respectfully pray:
(A) That this Court enter an interlocutory and a per­

manent injunction restraining and enjoining defendants, 
and each of them, their successors in office, and their agents 
and employees, forthwith from denying infant plaintiffs, or 
either of them, solely on account of race or color, the right 
to be enrolled in, to attend and to be educated in, the public 
schools to which they, respectively, have sought admission;

(B) That this Court enter a permanent injunction re­
straining and enjoining defendants, and each of them, their 
successors in office, and their agents and employees from 
any and all action that regulates or affects, on the basis 
of race or color, the initial assignment, the placement, the 
transfer, the admission, the enrollment or the education of 
any child to and in any public school;

(C) That, specifically, the defendants and each of them, 
their successors in office, and their agents and employees 
be permanently enjoined and restrained from denying the 
application of any Negro child for assignment in or trans­
fer to any public school attended by white children when 
such denial is based solely upon requirements or criteria 
which do not operate to exclude white children from said 
school;

(D) That the defendants be required to submit to the 
Court a plan to achieve a system of determining initial 
assignments, placements or enrollments of children to and



15a

in the public schools on a non-racial basis and be required 
to make periodical reports to the Court of their progress in 
effectuating a transition to a racially non-discriminatory 
school system; and that during the period of such transi­
tion the Court retain jurisdiction of this case;

(E) That defendants pay to plaintiffs the costs of this 
action and attorney’s fees in such amount as to the Court 
may appear reasonable and proper; and

(F) That plaintiffs have such other and further relief 
as is just.

Bill of Complaint



16a

The defendants, The School Board of the City of Lynch­
burg, and M. L. Carper, Superintendent of Schools of the 
City of Lynchburg, by counsel, move the court under Buie 
12(b) of the Buies of Civil Procedure to dismiss the bill 
of complaint filed against them by the plaintiffs on the fol­
lowing grounds:

1. That the bill of complaint fails to state a claim upon 
which relief can be granted;

2. The purpose of the bill of complaint is to obtain the 
entry of an order which will enjoin and restrain the en­
forcement, operation and execution of the Pupil Placement 
Act, by restraining the action of officers of the State of 
Virginia in the enforcement and execution of the statute, 
and of an order or orders made by an administrative board 
or commission acting under such statute, upon the ground 
of the unconstitutionality of the statute; and under the 
provisions of Title 28 U. S. C. A., Section 2281, such an 
injunction cannot be granted by any district court or judge 
thereof unless the application thereof is heard and deter­
mined by a district court of three judges under Title 28, 
IT. S. C. A., section 2284;

3. The validity of sec. 22-231.1 Through sec. 22-232.17 
of the Code of Virginia, as amended by chapter 500 of the 
Acts of Assembly of 1958, known as the Pupil Placement 
Act, should first be determined by the Supreme Court of 
Appeals of Virginia; and

4. These defendants are improperly joined as parties 
defendant as no actual controversy exists between the 
plaintiffs and these defendants.

Motion to Dismiss o f The School Board

(Filed: October 6,1961)



17a

Now come the defendants, E. J. Oglesby, Alfred L. Wingo 
and Edward T. Justis, individually and constituting the 
Pupil Placement Board of the Commonwealth of Virginia, 
and respectfully move the Court to dismiss the complaint 
herein upon the following grounds:

1— The Bill of Complaint fails to state a claim upon 
which relief can be granted.

2— The relief prayed for in general terms has already 
been adjudicated.

3— Any specific relief sought by the plaintiff’s is as indi­
viduals and not as a class, and no specific violation of any 
such individual rights is alleged.

4— To the exent by implication or inference therefrom 
that the Bill of Complaint seeks to obtain the entry of an 
order which will enjoin and restrain the enforcement, oper­
ation and execution of the Pupil Placement Act, by re­
straining the action of officers of the Commonwealth of 
Virginia in the enforcement and execution of the statute, 
and of an order or orders made by an administrative board 
or commission acting under such statute upon the grounds 
of the unconstitutionality of the statute, cannot be con­
sidered or granted by any single District Court or Judge 
thereof, but only if at all, upon application to and hearing 
and determination by a District Court of three Judges.

5— Even so, the validity and constitutionality of the Pupil 
Placement Act, if drawn into question, should first be de­
termined by the Supreme Court of Appeals of the Common­
wealth of Virginia.

Motion to Dismiss o f the Pupil Placem ent Board

(Filed: October 7,1961)



18a

Not waiving but expressly reserving and relying in the 
first instance on their Motion to Dismiss—now, moreover, 
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, Alfred L. Wingo and Edward 
T. Justis, say:

1— The existence of the School Board of the City of 
Lynchburg, Virginia, the further fact that M. L. Carper is 
the Division Superintendent of Schools, and the further 
fact that these defendants constitute the Pupil Placement 
Board of the Commonwealth of Virginia, is all admitted.

2— All of the other allegations of the complaint are 
denied or strict proof thereof is called for, or constitute a 
recital of laws and legal conclusions as to which no answer 
is required.

Answer o f the Pupil Placem ent Board

(Filed: October7,1961)



19a

Answer of Defendants, the School Board of the City of 
Lynchburg and M. L. Carper, Superintendent of 
Schools of the City of Lynchburg to Bill of Complaint 
Reserving Motion to Dismiss the Rill of Complaint

(Filed: October 9,1961)

The defendants, the School Board of the City of Lynch­
burg, Virginia, and M. L. Carper, Superintendent of Schools 
of the City of Lynchburg, Virginia, reserving and without 
waiving their motion to dismiss the bill of complaint here­
tofore filed in this action, for their joint and several an­
swers to the bill of complaint, answer and say:

1. Strict proof of all of the allegations of jurisdiction 
set out in paragraphs 1 and 2 of the bill of complaint is 
called for. These defendants deny that any action of theirs 
or either of them have deprived the plaintiffs or any of 
them of any right, privilege or immunity secured by the 
Constitution of the United States or any amendment thereto 
or any act of congress.

2. These defendants are without full knowledge or in­
formation sufficient to form a belief as to the truth of the 
allegations contained in paragraphs 2 and 3 of the bill of 
complaint.

3. With regard to the allegations of paragraph 4 of the 
bill of complaint, these defendants deny that there are com­
mon questions of law and fact affecting the rights of all 
Negro children attending public schools in the Common­
wealth of Virginia or within the City of Lynchburg and that 
therefore the plaintiffs cannot maintain a class action.

4. The allegations of paragraph 5 of the bill of com­
plaint are admitted except that these defendants allege that 
the enrollment or placement of pupils in, and the determina­



20a

tion of school attendance districts for the public schools of 
Virginia, including those in the City of Lynchburg, is law­
fully vested in the Pupil Placement Board of the Common­
wealth of Virginia under Article 1.1 of Chapter 12 of Title 
22 (Section 22-232.1 through 22-232.17) of the Code of 
Virginia, 1950 as amended.

5. The allegations of paragraph 6 are admitted, except, 
however, these defendants allege that the enrollment and 
placement of pupils, under their general supervision in 
the City of Lynchburg is lawfully vested in the Pupil Place­
ment Board of the Commonwealth of Virginia as herein­
before set out.

6. The allegations of the first sentence of paragraph 7 
of the bill of complaint are admitted. As to the allegations 
contained in the second sentence of said paragraph, these 
defendants allege that pursuant to Section 22-36 of the Code 
of Virginia, 1950 as amended, the powers and duties of the 
division superintendents is fixed by the State Board of 
Education of the Commonwealth of Virginia.

7. The allegations of paragraph 8 exclusive of the im­
plications arising from the use of the words “or purports to 
confer” are admitted.

8. The allegations of the first sentence of paragraph 9 
of the bill of complaint are admitted, but the plaintiffs’ 
conclusions as stated in the second sentence thereof are 
denied.

9. The allegations of the first sentence of paragraph 10 
of the bill of complaint are admitted but the plaintiffs’ con­
clusions as stated in the second sentence thereof are denied.

Answer of the School Board of the City
of Lynchburg, Etc.



21a

10. The allegations of the first sentence of paragraph 11 
of the bill of complaint are admitted but the plaintiffs’ 
conclusions and other allegations contained in the balance 
of said paragraph 11 are denied.

11. These defendants are without full knowledge or in­
formation to form a belief as to the truth of the allega­
tions contained in paragraph 12 of the bill of complaint in 
that the assignment and placement of pupils in the public 
school system of the Commonwealth of Virginia, and par­
ticularly in the City of Lynchburg is lawfully under the 
direction and control of the Pupil Placement Board of the 
Commonwealth of Virginia, and not these defendants.

12. With regard to the allegations of paragraph 12A. 
of the bill of complaint, these defendants state that at the 
present time the defendant school board of the City of 
Lynchburg operates two public high schools; namely, 
E. C. Glass High School and Dunbar High School; that at 
the present time all students at E. C. Glass High School are 
of the White race and that all students at the Dunbar 
High School are of the Negro race; and that with the ex­
ception of the applications of the plaintiffs in this case, 
no applications for transfer from one high school to the 
other are pending.

13. As the placement and assignment of pupils in the 
public school system of the Commonwealth of Virginia, is, 
insofar as these defendants are concerned, lodged exclu­
sively with the Pupil Placement Board of the Common­
wealth of Virginia, these defendants are without full knowl­
edge or information to form a belief as to the truth of the

Answer of the School Board of the City
of Lynchburg, Etc.



22a

allegations contained in paragraph 13 of the bill of com­
plaint.

14. For answer to the allegations contained in the first 
sentence of paragraph 14 these defendants allege that under 
valid laws of the Commonwealth of Virginia, (i.e., Sections 
22-232.1 through 22-232.17 of the Code of Virginia, 1950 
as amended) the assignment and placement of all pupils 
in the public school system in the City of Lynchburg, is, 
at the present time, under the exclusive control of the Pupil 
Placement Board of the Commonwealth of Virginia and that 
these defendants have no obligation, authority or duty with 
regard to the assignment or placement of pupils. The allega­
tions set out in the second sentence of paragraph 14 of the 
bill of complaint are denied.

15. These defendants admit as alleged in paragraph 15 
of the bill of complaint that the infant plaintiffs applied 
for and were denied admission to certain public schools 
in the City of Lynchburg, but these defendants specifically 
deny the plaintiffs’ conclusion that the applications were 
denied for the reasons stated in said paragraph 15.

16. These defendants admit that the plaintiffs have made 
application to the Pupil Placement Board for admission to 
E. C. Glass High School as alleged in paragraph 15A. of the 
bill of complaint. All conclusions and other statements con­
tained in said paragraph 15A. are denied.

17. These defendants deny the allegations contained in 
paragraphs 16 and 17 of the bill of complaint.

Answer of the School Board of the City
of Lynchburg, Etc.



23a

F u r t h e r  a n s w e r in g :

These defendants make the following allegations of fact:
18. That for a long period of time the School Board 

of the City of Lynchburg has devoted itself to the providing 
of a good and proper education for all children in the pub­
lic school system of the City, without discrimination as to 
race or color; that it has devoted itself to the maintenance 
of good race relationships in the public school system; and 
in that connection has desegregated teachers’ meetings, staff 
meetings and all professional study meetings; that at no 
time has the School Board of the City of Lynchburg or the 
Superintendent of the Lynchburg City School System 
adopted any policy by resolution or otherwise requiring the 
continued segregation of races in the Lynchburg public 
schools; that these defendants are advised and, therefore, 
allege that Sections 22-232.1 through 22-232.17 of the Code 
of Virginia, 1950 as amended, generally known as the Pupil 
Placement Act, is a valid and constitutional law providing 
for the assignment and placement of pupils in the public 
schools in the City of Lynchburg and that these defendants 
cannot be held accountable for any alleged acts of dis­
crimination charged by the plaintiffs in this suit, and that 
therefore no actual controversy exists betw'een the plaintiffs 
and these defendants.

Answer of the School Board of the City
of Lynchburg, Etc.



24a

Excerpts From Hearing November 14, 1961

E v id en ce  I ntroduced  on  B e h a l f  of t h e  P l a in t if f s

The witness, M. L. C a rper , called as an adverse witness 
on behalf of the plaintiffs, on examination testified, as fol­
lows:

Direct Examination by Mr. Nabrit:

Q. Mr. Carper, you are the Superintendent of Schools of 
the city of Lynchburg and have been such since July, 1961? 
A. Since July the 1st, 1961.

Q. I will ask you briefly about basic facts of the school 
system. Is it true you have twenty-three elementary 
schools in the system and that five of those schools are 
attended by only Negro and the rest by only white pupils? 
A., That’s correct.

Q. Those schools were Negro and have all Negro 
teachers and staffs and so forth? A. Those schools have 
all Negro pupils and Negro staffs.

Q. Is it true that the schools with white pupils have all 
white teachers? A. Yes.

Q. Is it true you have 11,750 pupils in the school system?
—9—

A. True.
Q. And about one-fourth of that number are Negroes 

and slightly less than a fourth? A. Approximately.
Q. Is it also true you have two high schools, one called 

E. C. Glass High School, which is attended only by white 
pupils? A. Yes.

# # * # #

— 10—

Q. You have one all Negro high school called Dunbar, is 
that right? A. Yes.

—8—



25a

Q. Now, is it also true that your elementary schools in 
the city have attendance areas or zones they serve? A. 
Yes.

Q. And that you have separate zones for colored and 
white elementary schools? A. Yes, sir.

Q. The colored elementary schools, the areas they serve, 
overlap the areas of some of the white schools? A. Yes.

Q. And so what you have is two sets of zones, one set 
of zones for Negro elementary pupils and another for white 
elementary pupils? A. Yes.

Q. This system has been used here in Lynchburg for 
some time? A. Insofar as I can determine it has been the 
custom throughout the years.

■u. 'V- .y . -y. -y.W  W -ft-

—13—
#  #  #  * *

Q. In Lynchburg when a child finishes—a white child 
finishes elementary school, the school is placed on his form 
by the principal and is always E. C. Glass? A. Correct.

Q. And when a Negro child finishes elementary school, 
the school placed on his form is always Dunbar? A. Cor­
rect. I beg your pardon. When a white elementary child 
completes elementary school, he goes to Robert E. Lee, 
which is the eighth grade.

Q. You have all the eighth grade at Robert E. Lee? A. 
All eighth grade white children at Robert E. Lee, yes, sir.

Q. You have no comparable eighth grade school for
- 1 4 -

Negroes? A. No.
Q. Negroes in Lynchburg go to high school? A. It is 

established on the 7-5 principle. Glass was too crowded to 
maintain the eighth grade and it had to be pulled out a 
few years back and put in Robert E. Lee. Dunbar is still

M. L. Carper—for Plaintiffs—Direct



26a

capable of accommodating the eighth grade in the 7-5 
organization.

Q. When a child finishes the white eighth grade, Robert 
E. Lee, he goes through the procedure again? A. Again.

Q. At this time the principal fills out E. C. Glass on his 
form ? A. Right.

Q. Now, after the principal signs the form, is it then 
sent to your office? A. Sent to my office.

Q. At your office do you routinely sign the forms or does 
your secretary do that for you? A. My secretary or I 
either one sign the forms.

Q. And does your secretary have a general authorization 
to sign them when the principal has made a recommenda­
tion? A. Yes.

Q. Now, at this point, such applications are then sent in
—15—

a group with similar applications to the Pupil Placement 
Board in Richmond? A. Correct.

Q. How do you send them, by mail with a letter of 
transmittal describing the group, what it is? A. So many 
are involved we usually take them to Richmond.

Q. You carry them personally? A. In a box in the car, 
yes.

Q. And when you get there do you tell Mr. Hilton, the 
Executive Secretary, what they are? A. We deliver them 
to the office, yes, and tell him what they are.

Q. Now, when you get a group of forms like this, with 
your recommendation and the local principal’s recommen­
dation on it, are they routinely approved by the Pupil 
Placement Board? A. You will have to ask the Pupil 
Placement Board that question.

Q. Well, I wasn’t trying to find out from you how they 
handle it. What I was trying to find out was the result.

M. L. Carper—-for Plaintiffs—Direct



27a

You get a notice from them as to the result, don’t you? A. 
We get a notice back from them of the result.

Q. That notice is this blue copy of the Pupil Placement
- 1 6 -

Form, isn’t it? A. Correct.
Q. Which has on the bottom of it the name of the school, 

the name of the city or county, a date stamped and a 
stamped signature of C. S. Hilton. That is on all of these 
that come back, is it not? A. Correct.

Q. Now, when your local authorities make a recommenda­
tion do they always come back approved in accordance with 
your recommendation? A. Yes.

Q. Whenever you recommend an assignment in your ex­
perience they have approved it. That’s correct, isn’t it? 
A. Yes.

Q. Now, this routine we have discussed, this sequence of 
events we have been talking about, would this same proce­
dure we have discussed also apply to pupils entering the 
first grade? A. Yes.

Q. I would gather the parents take their children to the 
first grade school in the zone, whether they had some notice, 
from you as to what zone they live in. A. I  don’t know 
how they would be notified heretofore but in general there 
are newspaper statements or were this year indicating that 
those children would report back to the schools which they

—17—
attended last year or the new children, the first grade or 
kindergarten schools, in their general areas. The bound­
aries were never defined. We assumed they would know.

Q. In case of doubt, the principal of the elementary 
school would know what his boundaries were, wouldn’t he? 
A. Eight.

M. L. Carper—for Plaintiffs—Direct



28a

Q. And he would judge whether the child was in his area? 
A. Or refer to my office.

Q. Would that same procedure apply when a child moves 
from one part of the town—an elementary child moves 
from one part of the town to the other? A. Generally, 
yes.

Q. By the same procedure, I mean from the local pro­
cedure, up through the action by the Pupil Placement 
Board. Correct? A. Yes.

Q. Would it be true in elementary school grades you 
have almost 100% of the pupils actually now in school in 
their zones? A. No.

Q. Would you have categories of exceptions to that? 
A. Yes. There are exceptions and mainly because of over-

—18—
crowded conditions in one area and undercrowded in an­
other and administrative adjustments are made between 
the schools to equalize as far as possible the per pupil ratio 
in each school.

Q. Would this be accomplished by transfers of groups of 
children in a neighborhood, all the children in such a block 
moved to another school? A. That has happened in the 
past. However, this year there were some zone lines 
changed. In one particular situation I recall we moved an 
entire seventh grade and an entire kindergarten from one 
compacted school to the other schools that were not com­
pacted.

Q. So you have several methods. You can move a class, 
a neighborhood or change a zone. A. That’s right.

Q. Other than these adjustments which are accomplished 
by your office, would you say the pupils were generally 
assigned in accordance with the zones? A. Yes, sir.

Q. Now, would you have individual exceptions to that for 
handicapped children or something like that? A. Yes.

M. L. Carper-—for Plaintiffs—Direct



29a

Q. Generally, everybody else is in his zone! A. Bight.
Q. Now, with reference to the two high schools in the

—19—
city. They both serve the whole city. A. Bight.

Q. Glass is city-wide for white pupils and Dunbar is 
city-wide for Negro children! A. Yes.

Q. Isn’t it true you have Glass white pupils who live 
closer to Dunbar than to Glass! A. Yes.

Q. That would be true of all the white pupils in gener­
ally the northeast part of the city, wouldn’t it! A. Yes.

Q. In neighborhoods such as the White Bock Hill area, 
Diamond Hill area, Jackson Heights area and areas like 
that! A. Yes.

Q. Indeed there are white pupils right in the neighbor­
hood of Dunbar, are they not! A. Yes.

Q. And all such pupils are assigned to Glass High 
School! A. Yes.

Q. Now, likewise, don’t you have Negro pupils attending 
Dunbar who live closer to Glass than to Dunbar! A. Yes.

Q. And can you tell me a couple of neighborhoods where
— 20—

that is true! Would Dearington School be one! A. Dear- 
ington would be one.

Q. Can you think of others! A. I don’t have a map be­
fore me. I would rather not designate.

Q. Would Fort Hill be one! A. Certain sections of Fort 
Hill.

Q. Now, for elementary purposes, is it true that you 
have Negroes living in almost all of the white elementary 
school zones! A. Not in all but in a great many.

Q. All but a couple! A. All but a few.
# # * # *

M. L. Carper—for Plaintiffs—Direct



30a

M. L. Carper—for Plaintiffs—Direct

— 36—

# * # # #
Q. Now I will ask you about ability grouping in your 

schools. Don’t you have children arranged in the schools 
and within the grades, or at least in some courses, by 
ability and level of advancement! A. In general, yes.

Q. So that, for example, among the first year high school 
students who take several courses, such as English or 
mathematics, they might be divided up within the class at 
Glass or Dunbar as above average students, average stu-

— 37-

dents, lower students or something like that? A. I believe 
all of that was testified by Mr. McCue and Mr. Seay. .

By the Court:

Q. Is that the track system? A. No, it is not the track 
system. There is some special grouping in certain areas 
in mathematics. For instance, they accelerate the more 
capable youngsters. Then in English and in sciences, where 
there are college-bound youngsters, some of them are 
grouped in terms of purpose and ability. No hard and fast 
system is used but all are subject to guidance test data 
information that we have on them.

By Mr. Nabrit (continuing) :
Q. This is carried on within the school after the pupil 

is admitted? A. It may begin before the pupil is admitted 
to a particular school. Your summary is more specifically 
for guidance in the eighth grade and that information is 
transmitted on to the senior high school considerably 
earlier than the youngster would attend so it can be care­
fully scrutinized. The records and grouping of the young­
sters is carefully scrutinized in the areas where they stand

— 38—

the greatest chance of being successful.



31a

Q. Yon have similar but perhaps more simplified ability 
grouping in elementary grades! A. Not to such an extent, 
no.

Q. But would you have, for example, perhaps three first 
grade classes, or two first grade classes within a school 
and have the children divided! A. That may prevail in 
some schools and not in others. Again we do not determine 
this until we understand the child we are working with. 
If it seems better to group the child in terms of ability, 
it would be done; otherwise, it would not be done.

Q. So that it would be generally fair to say in your 
entire system in your educational judgment you think it 
is helpful to group by ability and you do it if you think so ? 
A. Wherever it seems to the advantage of the individual 
pupil. The schools exist for the children and they attempt 
to organize it so that they give every individual the great­
est opportunity possible.

Q. You don’t have any schools set aside, any whole school 
set aside, for smart or average children or below average 
children! A. No.

Q. They are all within the schools. The elementary
—3 9 -

schools take whatever pupils are in their zones and that 
is what they end up with! A. With certain exceptions.

Q. Have there been additional pupils admitted at Glass 
High School say since the beginning of the school year! 
Have you had some new pupils come in! A. There are 
always transfers out and transfers in. The net picture 
gives a smaller enrollment noAV than in September. There 
has been a net loss in pupils since then.

Q. It has been the normal in and out! A. Normal in 
and out, yes.

Q. Is it customary to use these I.Q. tests and achievement

M. L. Carper—for Plaintiffs—Direct



32a

tests by your local personnel to assist them in guiding the 
pupils as to whether they should take college preparatory 
courses or not! A. Guidance is the essential function.

Q. That is the main function of these tests in your sys­
tem? A. Yes, sir.

Q. They also help you evaluate your program you use? 
A. We make very little use of the information, the massed 
results. The essential use for the tests is to help the 
individual.

*  # # # #

—79—

The witness, D u n c a n  C. K e n n e d y , being called as an 
adverse witness by the plaintiffs, having first been duly 
sworn, on examination testified, as follows:

Direct Examination by Mr. Lawson:
Q. Please state for the Court your name, address, offi­

cial position with the Lynchburg City School Board. A. 
Duncan C. Kennedy, Jr. I live at 1540 Parkland Drive,

—80-
Lynchburg, Virginia. I am Chairman of the Lynchburg 
School Board.

Q. How long have you served on the Board? A. A little 
over four years.

Q. How long during that time have you been chairman? 
A. Since the spring of 1961.

—85—
# # * # #

Q. Now you are familiar, I believe, with 1954 Supreme 
Court decision. You have heard about it haven’t you? A. 
I have heard about it.

Q. Since that time, what has the School Board done to

Duncan C. Kennedy—for Plaintiffs—Direct



33a

eliminate segregation in its Lynchburg system? A. I don’t 
know that we have taken any action.

Q. What action do you contemplate taking right now to 
end segregation in the Lynchburg school system? A. I do 
not know.

Q. You don’t know. A. I don’t know.
Q. In other words, you have no knowledge of any action 

to end segregation in the Lynchburg school system. Is that 
what you are telling me ? A. I do not know of any action 
we are going to take.

— 86—

Q. As chairman of the School Board, they won’t take 
action without your knowledge, will they? A. They 
haven’t, no. They have not taken any action.

Q. If any action had been taken you would have knowl­
edge of it right ? A. So I understood.

Q. Have you personally made any recommendation to 
the Board concerning eliminating segregation in Lynch­
burg? A. I have not.

Q. Ho you anticipate making any?' A. Not at this time.
Q. Have you ever made any announcements concerning 

elimination of it to the parents, press or anybody else? 
A. We have a committee which is studying the question of 
presenting the plan for desegregation to the Lynchburg 
School Board.

Q. That committee was appointed when? A. It was ap­
pointed during the summer of 1961.

Q. Subsequent to the time these applications were re­
ceived? A. Yes, sir.

Q. Has that committee made any report back to the
—8 7 -

School Board? A. This present committee has not. We 
had a committee first to study the question as to whether

Duncan C. Kennedy—for Plaintiffs—Direct



34a

it was desirable for the School Board to consider a plan. 
That committee reported in the affirmative and it was so 
approved by the School Board and a second committee was 
appointed to actively develop a plan for consideration.

Q. Do yon have any knowledge of the date when that 
committee was appointed! The second committee. A. 
Sometime around the middle of August.

Q. August 12th or 13th! A. Somewhere around there. 
Q. They have not made any report since that time? A. 

No, sir.
Q. You have had how many School Board Meetings since 

that time? A. Two. Two regular meetings.
Q. This committee is a committee of the School Board; 

it is within the School Board. Are you familiar with 
whether they are working with the P.T.A.’s and various 
other groups who are interested in civic development? A. 
1 do not know whether they are working with them at 
this time.

Q. Can you tell me whether since the school closing 
laws the School Board has made any public announcements

— 88—

to the teachers, to the parents, to the pupils, to the P. T. A. 
or to anybody that they would accept and consider or the 
State Pupil Placement Board or both would accept Negro 
applications to white schools or white applications to Negro 
schools? A. I didn’t understand the question.

(The question was read back by the court reporter.) 
The Witness: We have made no announcement of that.

Q. Is your committee working with the Pupil Placement 
Board to your knowledge? A. They are not to my knowl­
edge.

Duncan C. Kennedy—for Plaintiffs—Direct

= * = * * # #



35a

Order
(Dated: November 15,1961)
(Filed: November 16, 1961)

This cause came on to be heard on November 13th and 
14th, first upon the motion to dismiss the complaint filed 
by E. J. Oglesby, Alfred L. Wingo and Edward T. Justis, 
individually and constituting the Pupil Placement Board of 
the Commonwealth of Virginia, and the motion to dismiss 
the complaint filed by the School Board of the City of 
Lynchburg and M. L. Carper, Superintendent of Schools of 
the City of Lynchburg, and said motions were fully argued 
by counsel for the defendants and the plaintiffs and the 
court thereupon declined to grant either of the motions to 
dismiss the complaint.

Whereupon the evidence of the complainants was heard 
and the defendants at the conclusion of the plaintiffs’ evi­
dence stated that they did not wish to present any evidence 
other than what had been brought out by the complainants 
and by the defendants’ cross-examination of the complain­
ants’ witnesses.

And the court being of the opinion that two of the plain­
tiffs, to-wit, Owen Calvin Cardwell and Linda Darnell 
Woodruff, are entitled as claimed in the complaint to be 
admitted to E. C. Glass High School in Lynchburg, Virginia, 
but that it would be in the interest of said complainants that 
they be not admitted prior to the January break in the 
school year, it is therefore

Ordered
that the defendant' School Board of the City of Lynchburg 
and the defendant M. L. Carper, Superintendent of the 
Schools of Lynchburg, Virginia, do admit the said plain­
tiffs to the 9th grade at E. C. Glass High School on Janu­
ary 29, 1962.



36a

Order of November 16, 1961

And the court being of the opinion that it will be in the 
best interest of the complainants Cecelia Karen Jackson and 
Brenda Evora Hughes to remain in the Dunbar High School 
in Lynchburg, Virginia, rather than to be transferred to the 
E. C. Glass High School, their prayer for assignment to the 
E. C. Glass High School is hereby denied.

And the court, not being sufficiently advised of its opin­
ion with respect thereto, doth take under further considera­
tion the prayer of the complainants that the court enter fur­
ther and more general injunctions against the defendants 
and counsel for the plaintiffs and the defendants are re­
quested to file with the court memoranda in support of their 
contentions with respect to said issue on or before December 
5, 1961.

The deputy clerk of this court will transmit a certified 
copy of this order to Reuben E. Lawson, Esq., 19 Gilmer 
Avenue, N. W., Roanoke, Virginia; to James M. Nabrit, III, 
Esq., 10 Columbus Circle, New York 19, New York; to S. 
Bolling Hobbs, of Caskie, Frost, Davidson & Watts, 925 
Church Street, Lynchburg, Virginia; to C. Shepherd Now­
lin, Esq., City Attorney, City Hall, Lynchburg, Virginia; 
and to A. B. Scott, Esq., of Christian, Marks, Scott and 
Spicer, 1309 State-Planters Bank Building, Richmond 19, 
Virginia.

Enter:
T hom as  J. M ic h ie  

United States District Judge.

A True Copy, Teste:
L e ig h  B. H a n es , J r ., Cleric,
By: O tw ay  P ettic r ew  

Deputy Cleric



37a

(Dated: January 15,1962)
(Filed: January 16,1962)

This is a suit brought by four colored children, by their 
next friends, and also by the parents, guardians or persons 
standing in loco parentis of the infant plaintiffs against 
the School Board of the City of Lynchburg, Virginia, M. C. 
Carper, Superintendent of Schools of the City, and E. J. 
Oglesby, Alfred L. 'Wingo and Edward T. Justis, indi­
vidually and constituting the Pupil Placement Board of the 
Commonwealth of Virginia. The action was brought not 
only on behalf of the plaintiffs but also as a class action on 
behalf of all other Negro children attending public schools 
in the Commonwealth of Virginia and particularly in the 
city of Lynchburg and the parents and guardians of such 
children who are similarly situated to the plaintiffs with 
reference to the matters involved in the suit.

The complaint makes various allegations as to the Con­
stitution and statutes of Virginia relating to public edu­
cation, including the creation and duties of the Pupil Place­
ment Board and the local school board and superintendent 
of schools. It further alleges that the defendants, in assign­
ing pupils to schools in Lynchburg, have discriminated 
against the plaintiffs and all other Negro children in Lynch­
burg in that all Negro children have been assigned to schools 
which no white children attend and all white pupils have 
been assigned to schools which no Negro children attend.

The complaint contains allegations with respect to the 
statutes from which one might infer that the plaintiffs were 
claiming that the Pupil Placement Act (Va. Code, §§22-232.1 
to 22-232.17) is unconstitutional. However no direct allega­
tion to that effect is made and the complaint does allege 
that the plaintiffs have complied with the provisions of the 
Pupil Placement Act but have been denied relief by the

Opinion



38a

Pupil Placement Board. And the question of the con­
stitutionality of the Act is ignored in the pra3̂ er for relief.

The complaint asks for an injunction restraining the 
defendants “from denying infant plaintiffs, or either of 
them, solely on account of race or color, the right to he en­
rolled in, attend and to be educated in, the public schools 
to which they, respectively, have sought admission.” And 
plaintiffs’ counsel explained in argument that this prayer 
for relief should be interpreted as a prayer for an injunction 
against the school board ordering the school board to admit 
the plaintiffs to the all-white E. C. Glass High School (here­
inafter called Glass) for admission to which they had ap­
plied. And the court so interprets the prayer, though it 
might have been more directly stated.

The complaint also asks for a permanent injunction 
against all of the defendants restraining them “from any 
and all action that regulates or affects, on the basis of race 
or color, the initial assignment, the placement, the transfer, 
the admission, the enrollment or the education of any 
child to and in any public school”, together with other 
prayers to substantially the same effect, and further that 
“the defendants be required to submit to the Court a plan 
to achieve a system of determining initial assignments, 
placements or enrollments of children to and in the public 
schools on a non-raeial basis and be required to make pe­
riodical reports to the Court of their progress in effectuat­
ing a transition to a racially non-discriminatory school 
system.” This latter prayer, as applied to the defendant 
Pupil Placement Board and its members, obviously asks 
that the Pupil Placement Board be required to bring in a 
plan of desegregation for the entire state. Counsel for the 
plaintiffs, however, stated that they had not intended to 
ask for such relief but had intended this particular prayer 
for relief to apply only to the Lynchburg School Board 
and the Superintendent of Schools of Lynchburg and the

Opinion D ated J anuary 15,1962



39a

court will therefore limit its consideration of this prayer 
to those defendants.

A motion for an interlocutory injunction was filed and 
heard on September 22,1961. The motion was denied on the 
ground that there had been no adequate showing that the 
plaintiffs would be irreparably damaged if the entering of 
such injunctions as they might be entitled to were deferred 
until after a hearing on the merits of the case.

Motions to dismiss the complaint were made by the 
defendants, the grounds of which were that the bill of com­
plaint attacked the constitutionality of the Pupil Placement 
Act and therefore could be heard only bĵ  a three-judge court 
under Title 28 USCA, sections 2281-2284, and that the 
validity of the Virginia Pupil Placement Act should first 
be determined by the Supreme Court of Appeals of Virginia 
and a motion was also made to dismiss the local school 
board and Superintendent of Schools on the ground that 
they were not proper parties. In view of the concession of 
plaintiffs’ counsel that the constitutionality of the Pupil 
Placement Act was not involved in the case and the allega­
tions that the plaintiffs had complied with the provisions of 
the Act, the motions to dismiss the complaint were overruled 
and the motion to dismiss the local defendants was like­
wise overruled for reasons which will sufficiently ajjpear in 
the following discussion.

The evidence showed in detail the placement system fol­
lowed in Lynchburg and, apparently, in all other school 
divisions of the state except those which do not work 
through the Pupil Placement Board, either because they 
are operating under court injunctions which expressly or 
impliedly exempt them from so doing or because under 
the provisions of section 22-232.30 of the Code of Virginia 
they have elected to place all pupils locally rather than 
through the Pupil Placement Board.

Opinion Dated January 15,1962



40a

The Pupil Placement Board has a form number 1 desig­
nated “Application for Placement of Pupil”. This form 
gives certain fundamental data with respect to the pupil 
and contains space for a parent’s or guardian’s signature. 
At the bottom is a place for certain information to be filled 
in by the local school board including a recommendation as 
to the school to which the pupil should be assigned. In 
Lynchburg all white pupils eligible to enter high school are 
tentatively assigned by the several local school officials 
to Glass and all colored children to Dunbar High School 
(hereinafter called Dunbar). If these assignments are satis­
factory to the parents of the child, who are required to 
sign the form, the name of the school to which the pupil is 
tentatively assigned by the local board is filled in on this 
part of the form. If, however, the parents object to the 
proposed assignment no recommendation for assignment 
is made by the local school board. Thus when the form 
reaches the Pupil Placement Board in Richmond the 
Board’s clerical employees can ascertain by a quick glance 
at the form whether or not there is a dispute between the 
pupil’s parents and the local authorities as to the school 
in which the pupil should be enrolled.

There are of course thousands of these forms filled out in 
a city the size of Lynchburg and they are brought together 
and all taken to Richmond and handed in a bundle to the 
appropriate personnel of the Pupil Placement Board.

Of course in the vast majority of cases the parents have 
been satisfied with the assignments and the individual ap­
plications in these cases are never seen by the individual 
members of the Pupil Placement Board itself. It adopts a 
general resolution assigning all of such pupils en masse 
to the schools to which they have been tentatively assigned 
by the local school authorities.

Opinion Dated January 15,1962



41a

Thus while the Pupil Placement Board is theoretically 
charged by the Pupil Placement Act with the duty of as­
signing to the respective public schools of the state all of 
the children in the state who desire to enter such schools, 
it does not, and obviously could not, in fact consider all of 
the many thousand placements involved. It simply rubber 
stamps the vast majority which are non-controversial and 
acts in effect as an appeal board in those relatively few cases 
in which the child’s parents and the local authorities are in 
disagreement as to the proper placement.

In the cases in which the child’s parents have not been 
satisfied with the assignment that the local school board 
wished to make, the applications are individually considered 
by the Board. But before acting on such an application the 
Pupil Placement Board asks the local school board to 
supply it with certain information. This information in­
cludes a statement of the distance between the home of 
the child and the school which the child wishes to attend 
and the distance between the home of the child and the 
school to which the local authorities would have recom­
mended assignment had not the parents disagreed with such 
assignment. It also includes data with respect to the records 
of the children on certain achievement tests. In the case of 
three of the pupils involved in this case the tests were the 
Standard Achievement Test taken by them in the Fifth 
G-rade, the California Mental Maturity Test taken by them 
in the Seventh Grade and a test designated on the form as 
D.A.T., apparently taken in the Eighth Grade and made up 
of a number of different parts. In the case of the fourth 
applicant the tests used were the same except that ap­
parently that applicant had never taken the Standard 
Achievement Test.

Upon receipt of this information by the Pupil Placement 
Board the results of the tests that had been taken by the

Opinion Dated J anuary 15,1962



42a

applicant are then compared with the results of the same 
tests given the other pupils enrolled in the grade with the 
applicant at the time the tests were taken, broken down into 
groups which roughly would correspond with the average 
group in the class, the below average group and the better- 
than-average group. And the individual applicant’s results 
are then also compared with the averages on the same tests 
of the children in the same grades in the school the applicant 
seeks to enter, again roughly divided into the average group, 
the below average group and the better-than-average group.

In actually making the assignments the Chairman of the 
Board testified that the Board used only two criteria, first, 
distances between the child’s home and the two schools and 
second, aptitude as determined by the above mentioned 
comparisons of test results. If the child lives at a greater 
distance from the school he wishes to attend than the school 
the school board would prefer to assign him to, he would be 
assigned by the Pupil Placement Board to the school to 
which the local board wished to assign him. And likewise if 
the results of the aptitude tests showed that the child would 
be in the below average group in the grade in the school to 
which he wanted to transfer, and substantially so, so that 
there would be real danger of his failing in that school, 
he would be denied the transfer sought even though he 
might live nearer to the school to which he wished to trans­
fer than to the school to which the local authorities wished to 
assign him. If the child lived nearer to the school to which 
he wished to go than to the school to which the local au­
thorities wished to assign him and if it appeared from the 
test results that he would do reasonably well in the school 
to which he wished to go he would be assigned to that school.

In the case at bar all four of the applicants were denied 
transfer on the ground that they lived nearer to Dunbar

Opinion Dated January 15,1962



43a

than to Glass and two of them were also denied transfer 
because of “lack of academic qualifications.”

It was testified that the present Pupil Placement Board 
had, sinee the present members took office, assigned several 
hundred Negro students to white schools in the state and 
had denied transfers to a number of white students seeking 
transfer from one white school to another on the same bases 
that it had used in denying the transfers of the colored 
children involved in this case. There is no evidence to 
indicate that the Pupil Placement Board in its actions has 
been swayed in any way in making the relatively few assign­
ments that it has made (aside from the wholesale ratification 
of the assignments agreed upon by the local boards and 
the childrens’ parents) by any consideration of race. It 
has apparently applied its rigid formulae of distance and 
academic qualifications in the same manner to requests for 
transfers made by both colored and white children.

And of course the court recognizes the applicability and 
desirability of geographical or location or distance tests in 
many, perhaps most, plans of school assignment. The loca­
tion of the child with respect to the school is perhaps the 
simplest and also one of the most important of all of the 
criteria which have been considered in the various plans 
that have been adopted. But to be valid the criterion of 
location or distance must be applied alike to colored and 
white children and cannot be used as an excuse for keeping- 
certain colored children out of white schools when white 
children living in the same vicinity as such colored children 
are assigned to those same white schools.*

* Nor does it follow that, if a plan of desegregation based on geographical 
considerations is adopted, all children in each geographical area must neces­
sarily go to the school in that area to which those children are initially assigned. 
Most such plans provide for applications for transfers to other schools for a 
variety of reasons. The highly successful Louisville plan—one of the earliest— 
which was devised and put into offect by Omer Carmichael, a former superin­

Opinion Dated January 15,1962



44a

The difficulty here comes not, however, from discrimina­
tory application by the Pupil Placement Board of its rather 
rigid assignment formulae but from the fact that the local 
authorities in Lynchburg have been giving effect to con­
siderations involving the race of the children in the initial 
tentative placements and thereby putting colored children 
to the necessity of appealing to the Pupil Placement Board 
and thus subjecting themselves to its assignment formulae 
when white children similarly situated are not so subjected. 
The Lynchburg Superintendent of Schools testified that 
the practice of the school system was to recommend assign­
ment of all white children to all-white schools and of all 
colored children to all-colored schools. Of course as above 
stated when the parents objected to the assignment no 
recommendation was made by the school board and the 
matter was referred to the Pupil Placement Board. The 
lack of recommendation was of course a flag to the Pupil

Opinion D ated January 15,1962

tendent of schools of Lynchburg, was based primarily on geographic assign­
ments but with the provision that anyone dissatisfied with his assignment could 
apply for a transfer and with the further provision that in such event the 
request would be granted “within the capacities of the schools” and with due 
regard to certain other factors. And see also Judge John Paul’s most recent, 
and as yet unreported, opinion in A lle n  v. S c h o o l B o a r d , the Charlottesville 
school case, in which he upholds the Board’s practice of transferring upon 
request both white and Negro pupils whose initial assignments, based on home 
locations, placed them in schools in which they would have been in a racial 
minority. And the Sixth Circuit has in K e l le y  v. B o a r d  o f  E d u c a t io n , 270 
F. 2d 209 (cert. den. 361 IT. S. 924), approved a plan containing a provision 
that, upon application of a pupil assigned on such a geographical basis to a 
school in which he would be in the racial minority, such pupil would have the 
absolute right, upon request, to be assigned to a school in which he would be 
in the racial majority. The Fifth Circuit on the contrary has held that such 
a provision would be unconstitutional as being based on race, B o s o n  v. B ip p y ,  
285 F. 2d 43. The position of the Sixth Circuit and of Judge Paul is obviously 
that such a transfer is not based on race but on the child’s preference. And 
it has not yet been held to be unconstitutional for individuals to prefer to 
associate with others of their own race, class, background or, if  you like, 
prejudices.



45a

Placement Board which indicated that the parents and the 
school officials had not agreed on an assignment.

The Superintendent testified that there were Negro chil­
dren who lived closer to Glass than to Dunbar but were 
nevertheless invariably assigned to Dunbar. He also testi­
fied that there were white children who lived nearer to 
Dunbar than to Glass but who were nevertheless invariably 
assigned to Glass. He also testified that if a white child 
moved from elsewhere into Lynchburg and his family set­
tled in an area near the homes of the colored children in­
volved in this suit and nearer to Dunbar than to Glass he 
would be assigned to Glass; and vice versa, of course, with 
respect to a colored child moving into an area nearer to 
Glass.

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

It would follow that if this were the only consideration 
involved all four of the children should now be assigned to 
Glass. However, the welfare of the child must also be taken 
into consideration by the court. The court has examined 
with care all of the exhibits in evidence with respect to these 
children, including the results of the various aptitude. tests 
and the comparison of the results thereof with results ob­
tained at the same time in the same grades at Glass. As a 
result the court has come to the conclusion that it would 
not be in the best interest of two of the plaintiffs, Cecelia 
Karen Jackson and Brenda Evora Hughes, to be assigned

Opinion Dated January 15,1962



46a

to Glass. These reasons do not apply to the other two plain­
tiffs, Owen Calvin Cardwell, Jr. and Linda Darnell Wood­
ruff, and the court, therefore, has already entered an order 
requiring the school board to enter them at Glass on Janu­
ary 29, 1962 which is the first school day after the so-called 
“January break” in the school year.

Subsequent to the entry of the order aforesaid the attor­
neys for the plaintiffs Cecelia Jackson and Brenda Hughes 
and their parents and next friends filed a “Motion for New 
Trial on Part of the Issues”, in effect asking the court to 
reconsider its refusal to assign those two children to Glass. 
Counsel for both sides agreed to submit this motion to the 
court for decision without the taking of further evidence 
and without further argument except as set forth in the 
motion. I have reconsidered the matter and am still of the 
same opinion and therefore overrule the motion.

It is true that the cases appear to be in some confusion or 
even conflict as to the extent to which the academic qualifi­
cations of applicants for transfer to another school may 
properly be considered in these desegregation cases and it 
has been stated that “An individual cannot be deprived of 
the enjoyment of a constitutional right, because some gov­
ernmental organ may believe that it is better for him and 
for others that he not have this particular enjoyment.” 
Dove v. Parham, 282 F. 2d 256, 258.

Nevertheless, in many cases academic qualifications have 
been considered and placements based thereon approved by 
the courts, at least in the initial steps towards establishing 
a desegregated school system. In Jones v. School Board of 
City of Alexandria, 278 F. 2d 72, our Court of Appeals said 
at p. 77:

“The two criteria of residence and academic pre­
paredness, applied to pupils seeking enrollment and

Opinion Dated January 15,1962



47a

transfers, could be properly used as a plan to bring 
about racial desegregation in accordance with the 
Supreme Court’s directive.”

The Court was there speaking of a plan to be followed by 
the school board in making assignments and transfers to 
bring about a desegregated school system. But if they can 
be so used by a school board they obviously can likewise be 
so used by a court when called to pass upon the propriety 
of what a school board or the Pupil Placement Board has 
done. And it is the judgment of this court that it is not only 
best for these two children but also for the achievement of 
a successful and orderly desegregation of Glass that these 
two children not be assigned to Glass in its first year of 
highly limited desegregation.

There remains for consideration the question of whether 
or not an injunction should be issued against the defendant 
school board and the Superintendent of Schools of the city 
of Lynchburg enjoining them from taking any action in 
connection with the assignment of pupils to schools in 
Lynchburg on the basis of race or color.

In a series of cases that arose under the North Carolina 
Pupil Placement Act, the Court of Appeals for this Circuit 
has held that a suit asking for a mandatory injunction for 
admission to a white school may not be brought by a 
colored pupil who has not exhausted his administrative 
remedies under that Act. The North Carolina Act is some­
what similar to the Virginia Act but there is no state-wide 
pupil placement board endowed with the theoretical duty 
of assigning all of the pupils in the state or to which an 
appeal can be made from the placements made by the local 
boards. Appeal is made from the initial assignment to the 
local school board and from the local board to the courts.

Opinion Bated January 15,1962



48a

In the cases above referred to, Carson v. Board of Edu­
cation, 227 F. 2d 789, Carson v. Warlick, 238 F. 2d 724, 
Covington v. Edwards, 264 F. 2d 780 and Holt v. Raleigh 
City Board of Education, 265 F. 2d 95, none of the plaintiffs 
had properly exhausted their administrative remedies be­
fore the local boards and the court held that the suits could 
not be maintained. The question of whether or not a gen­
eral injunction could be issued on behalf of other persons 
similarly situated was never reached since the plaintiffs 
were held to be without standing to maintain their respec­
tive suits.

The defendants here contend with some force that the 
logical result of these cases is that such an injunction can 
never be issued in a state in which there is a pupil place­
ment act in effect which is valid on its face. Those pupils 
who have exhausted their remedy against the local school 
board can file a joint suit as have the plaintiffs in this case; 
and there presumably are no others who have exhausted 
their remedies (and there is no evidence in this case that 
there are any such others) and therefore there are no other 
persons “similarly situated” on whose behalf such an in­
junction may be issued.

That position may seem logical if stated as a result of 
the cases arising under the North Carolina Act and without 
reference to the facts as disclosed in the case at bar. How­
ever in this case we have heard from the testimony of the 
Chairman of the Pupil Placement Board that it would be 
idle for any Negro child situated as these plaintiffs are,
i.e., with homes located nearer to the colored than the white 
school, to exhaust their administrative remedies by appeal­
ing to the Pupil Placement Board. They know in advance 
that such an appeal would be denied. And, as has been 
demonstrated above, the discrimination of which these

Opinion Dated January 15,1962



49a

plaintiffs complain and which is admittedly practiced 
against other colored children similarly situated comes not 
from the Pupil Placement Board which does not in fact 
make the initial assignments but from the initial assign­
ments made by the local authorities on an admittedly racial 
basis, thus requiring what is in effect an appeal to the Pupil 
Placement Board, though that Board will not consider 
whether or not the initial assignment was racially inspired 
but merely whether the pupil in question lives closer to one 
school than to another and, if he lives closer to the school 
for assignment to which he has applied, whether his grades 
are good enough to justify the assumption that he will be 
fairly certain to pass in that school.

If the Pupil Placement Board is not going to fulfill the 
duty, with which it has been charged by statute, of making 
the initial assignments throughout the state (and obviously 
it cannot), then the only remedy for the discrimination 
found to exist in the initial assignments is by injunction 
directed to the appropriate school board and school officials 
who are in fact (though not in theory) in charge of making 
the initial assignments. When the initial assignments are 
admittedly made on a racial basis as is the case here, and 
the Pupil Placement Board on appeal to it will not consider 
whether the initial placements have been made on a racial 
basis but only the location of the appellant’s home and, 
if that location would entitle him to go to the school to 
which he has applied, his grades, requiring the exhaustion 
of such a “remedy” would be merely an exercise in futility.

In other words the gravamen of the complaint of these 
plaintiffs is not directed against the action of the Pupil 
Placement Board, which refused their transfers on the 
same basis that it would refuse a transfer to a white pupil, 
but against the initial assignment on a racial basis which 
necessitated an appeal to the Pupil Placement Board with

Opinion Dated January 15,1962



50a

full knowledge that under the circumstances of these plain­
tiffs the appeal would be of no avail.

And, as to these initial discriminatory assignments by 
the local authorities which are the true cause of their com­
plaint, the situation of these plaintiffs is the same as all 
other Negro children in Lynchburg. And the fact that the 
plaintiffs in this case have exhausted their own administra­
tive remedies, though there was no possibility under exist­
ing practice of their appeal being successful, becomes irrele­
vant to the issues before us—and perhaps indicates that 
a suit by these plaintiffs might have been heard before 
their administrative remedies were exhausted despite the 
cases above mentioned arising under the North Carolina 
Act. For the law never requires the doing of a vain thing. 
As said by Judge Soper in McCoy v. Greensboro City 
Board of Education, 283 F. 2d 667 at p. 670:

“ . . .  It is well settled that administrative remedies 
need not be sought if they are inherently inadequate 
or are applied in such a manner as in effect to deny 
the petitioners their rights . . . ”

Before a class action can be maintained in a state which 
has a pupil placement act it must be shown that exhausting 
administrative remedies in individual cases cannot, under 
existing practice, result in remedying the individual 
wrongs. These plaintiffs have done that. And since the 
Pupil Placement Board frankly does not purport to remedy 
on appeal all assignments on a racial basis but only certain 
assignments where the pupil lives nearer to the school to 
which he has applied, such an appeal is useless as far as 
eliminating the initial discrimination is concerned. And, 
as noted above, the law does not require the doing of a 
vain thing.

Opinion Dated January 15,1962



51a

If the Pupil Placement Board is not going to make the 
initial placements of all public school students in the state 
(and, as indicated above, it obviously cannot) and if on 
appeal it is not going to consider whether or not those 
placements have been made on a discriminatory and racial 
basis, then obviously the appeal to the Pupil Placement 
Board can afford no adequate remedy to those children 
who have been discriminated against because of their race 
unless perchance they happen to live nearer to the school 
they wish to attend. Under these circumstances it would 
be almost a cruel joke to say that administrative remedies 
must be exhausted when it is known that such exhaustion 
of remedies will not terminate the pattern of racial assign­
ment but will lead to a remedy only in a few given cases 
based on geography—a consideration which has been dis­
regarded in the assignment of white pupils.

There is another result that would also flow from the 
acceptance of the defendants’ argument which will be 
clearly contrary to the intent of the United States Supreme 
Court as indicated in the second Brown case (Brown v. 
Board of Education, 349 U. S. 294) and Cooper v. Aaron, 
358 U. S. 1. These cases indicate that it is the duty of the 
federal district courts to supervise the process of desegre­
gation of the schools in their respective districts. In the 
Brown case the court said at pp. 299-301:

“Full implementation of these constitutional prin­
ciples may require solution of varied local school prob­
lems. School authorities have the primary responsi­
bility for elucidating, assessing, and solving these 
problems; courts will have to consider whether the ac­
tion of school authorities constitutes good faith imple­
mentation of the governing constitutional principles. 
Because of their proximity to local conditions and the

Opinion Dated J anuary 15,1962



52a

possible need for further hearings, the courts which 
originally heard these cases can best perform this 
judicial appraisal. Accordingly, we believe it appro­
priate to remand the cases to those courts.

“In fashioning and effectuating the decrees, the 
courts will be guided by equitable principles. Tradi­
tionally, equity has been characterized by a practical 
flexibility in shaping its remedies and by a facility for 
adjusting and reconciling public and private needs. 
These cases call for the exercise of these traditional 
attributes of equity power. At stake is the personal 
interest of the plaintiffs in admission to public schools 
as soon as practicable on a nondiscriminatory basis. 
To effectuate this interest may call for elimination of 
a variety of obstacles in making the transition to school 
systems operated in accordance with the constitutional 
principles set forth in our May 17, 1954, decision. 
Courts of equity may properly take into account the 
public interest in the elimination of such obstacles in 
a systematic and effective manner. But it should go 
without saying that the vitality of these constitutional 
principles cannot be allowed to yield simply because 
of disagreement with them.

“While giving weight to these public and private 
considerations, the courts will require that the defen­
dants make a prompt and reasonable start toward full 
compliance with our May 17, 1954, ruling. Once such 
a start has been made, the courts may find that addi­
tional time is necessary to carry out the ruling in an 
effective manner. The burden rests upon the defen­
dants to establish that such time is necessary in the 
public interest and is consistent with good faith com­
pliance at the earliest practicable date. To that end, 
the courts may consider problems relating to admin­

Opinion Dated J anuary 15,1962



53a

istration, arising from the physical condition of the 
school plant, the school transportation system, per­
sonnel, revision of school districts and attendance 
areas into compact units to achieve a system of deter­
mining admission to the public schools on a nonracial 
basis, and revision of local laws and regulations which 
may be necessary in solving the foregoing problems. 
They will also consider the adequacy of any plans the 
defendants may propose to meet these problems and 
to effectuate a transition to a racially nondiserimina- 
tory school system. During this period of transition, 
the courts will retain jurisdiction of these cases.”

These remarks were obviously directed to the cases that 
were then before the court, but that the court expects those 
principles to be generally applicable to the process of de­
segregation is indicated by the Aaron case, which of course 
was not one of the cases decided by the Brown case, but 
one commenced later, and in which the court said at p. 7:

“Under such circumstances, the District Courts were 
directed to require ‘a prompt and reasonable start 
toward full compliance,’ and to take such action as was 
necessary to bring about the end of racial segregation 
in the public schools ‘with all deliberate speed.’ Ibid. 
Of course, in many locations, obedience to the duty of 
desegregation would require the immediate general 
admission of Negro children, otherwise qualified as 
students for their appropriate classes, at particular 
schools. On the other hand, a District Court, after 
analysis of the relevant factors (which, of course, ex­
cludes hostility to racial desegregation), might con­
clude that justification existed for not requiring the 
present nonsegregated admission of all qualified Negro 
children. In such circumstances, however, the courts

Opinion Dated January 15,1962



54a

should scrutinize the program of the school authorities 
to make sure that they had developed arrangements 
pointed toward the earliest practicable completion of 
desegregation, and had taken appropriate steps to put 
their program into effective operation. It was made 
plain that delay in any guise in order to deny the con­
stitutional rights of Negro children could not be coun­
tenanced, and that only a prompt start, diligently and 
earnestly pursued, to eliminate racial segregation from 
the public schools could constitute good faith compli­
ance. State authorities were thus duty bound to devote 
every effort toward initiating desegregation and bring­
ing about the elimination of racial discrimination in 
the public school system.”

It is obvious that, if a general injunction requiring de­
segregation can never be issued against a school board or 
other assignment authority in a state in which a pupil 
placement act is in effect, then the courts can never per­
form this supervisory function which the United States 
Supreme Court has told them they should perform.

Furthermore, our own Court of Appeals which decided 
the cases relied on by the defendant has, in Allen v. School 
Board, 266 F. 2d 507, decided May 5, 1959 (by which time 
the Pupil Placement Act had assumed its present form), 
directed the District Judge to enter a general injunction 
against the County School Board of Prince Edward County, 
saying at p. 511:

“The order of the District Court in the pending 
case will therefore be reversed and the case remanded 
with direction that the District Judge issue an order 
enjoining the defendants from any action that regulates 
or affects on the basis of color the admission, enroll­

Opinion Dated January 15,1962



55a

ment or education of infant plaintiffs, or any other 
Negro children similarly situated, to the high schools 
operated by the defendants in the County; and requir­
ing the defendants to receive and consider the applica­
tions of such persons for admission to the white high 
school of the County on a non-racial basis without 
regard to race or color; and to take immediate steps in 
this regard to the end that the applications be con­
sidered so as to permit the entrance of qualified per­
sons into the white school in the school term beginning 
September 1959; and also requiring the School Board 
to make plans for the admission of pupils in the ele­
mentary schools of the County without regard to race 
and to receive and consider applications to this end at 
the earliest practical day. The order of the District 
Judge shall also provide that state laws as to the as­
signment of pupils to classes in the public schools of 
the County shall be observed so long as such laws do 
not cause discrimination based on race or color, and 
that the administrative remedies therein provided must 
be exhausted before application is made to the court 
for relief on the ground that its injunction is being- 
violated; and the order shall further provide that the 
suit remain upon the docket of the court and that the 
court retain jurisdiction thereof for such further action 
as may be necessary, including the power to enlarge, 
reduce or otherwise modify the provisions of the de­
cree.”

An order will be entered herein in accordance with the 
direction of the Court of Appeals in the Allen case.

T h o m a s  J. M ic h ie

U. S. District Judge
January 15, 1962.

Opinion Dated January 15,1962



56a

Order
(Filed: January 25,1962)

- 7 2 -

In accordance with opinion filed in this case on January 
15,1962, it is

O e d e b e d

that the School Board of the City of Lynchburg present 
to the Court within thirty (30) days from this date a plan 
for admission of pupils to the schools of the City without 
regard to race and the entry of a more general injunction 
herein will be deferred until such plan has been presented.

E n t e r  :

T hom as  J. M ic h ie

V. 8. District Judge



57a

Plan for Admission of Pupils to the Schools 
of the City of Lynchburg
(Filed: February 24,1962)

The defendant, School Board of the City of Lynchburg, 
Virginia, by counsel, and in compliance with the order of 
the Court entered in this cause on, to-wit, January 24, 1962, 
does hereby present to the Court a plan for admission of 
pupils to the schools of the City of Lynchburg without 
regard to race, which said plan is set out in a certified copy 
of resolutions of said School Board heretofore duly adopted 
on February 13, 1962, attached hereto as a part hereof.

T h e  S chool  B oard of t h e  C ity  of L y n c h b u r g

By S. B o llin g  H obbs 
Of counsel

Cer tific a te  of S ervice

I hereby certify that service of the foregoing writing and 
the resolutions attached thereto was made on Reuben E. 
Lawson, 19 Gilmer Avenue, N.W., Roanoke, Virginia; 
James M’. Nabrit, III, 10 Columbus Circle, New York 19, 
New York, attorneys for the plaintiff, and A. B. Scott, 
Peyton, Beverly, Scott and Randolph, 1200 Travelers Build­
ing, Richmond 19, Virginia, attorney for the co-defendants, 
Pupil Placement Board, by mailing a copy of same to each 
of them at the addresses above by United States mail, 
postage prepaid, this 23rd day of February, 1962.

S. B ollin g  H obbs

Of counsel for the defendant, The School
Board of the City of Lynchburg, Virginia



58a

RESOLUTIONS OF SCHOOL BOARD ANNEXED 
TO PLAN FOR ADMISSION

SCHOOL BOARD OF LYNCHBURG 
Cer tific a te

The undersigned, Chairman and Clerk of the Lynchburg 
School Board, hereby certify that the following resolutions 
were duly adopted at a meeting of the Board held on Feb­
ruary 13, 1962, at which meeting a quorum was present and 
acting throughout:

R esolved by the Lynchburg School Board that the ma­
jority report of the Committee to Recommend a Grad­
ual Plan of Desegregation, a copy of which is ordered 
filed with the minutes of this meeting, is hereby ap­
proved.
R esolved , f u r t h e r , that the Board, pursuant to the 
opinion and order of the United States District Court 
for the Western District of Virginia and subject to the 
approval of the Court, hereby adopts the following 
plan for the admission of pupils to the schools of the 
City without regard to race:

1. Commencing September 1, 1962, all classes in 
Grade One shall operate on a desegregated basis, 
and each September thereafter at least one addi­
tional grade shall be desegregated until all grades 
have been desegregated.
2. In assigning pupils to the first grade and to 
other grades as each of them is hereafter desegre­
gated, the Superintendent of Schools shall determine 
annually the attendance areas for particular school 
buildings based upon the location and. capacity of 
the buildings, the latest enrollment, shifts in popu­
lation, and practical attendance problems, but with-



59a

Resolutions of School Board Annexed to 
Plan for Admission

out reference to race. One or more school buildings 
may be reserved, in the discretion of the Superin­
tendent, to provide facilities within which to place 
pupils who are granted transfers.
3. Each pupil entering a desegregated grade will be 
assigned, on or before April 15 preceding the school 
year, to the school in the attendance area in which 
he resides subject to rules and regulations promul­
gated by the State Board of Education or as may 
be necessary in particular instances, provided only 
that the race of the pupil concerned shall not be a 
consideration.
4. Each pupil whose race is minority in his school 
or class may transfer on request. The Superintend­
ent will determine the school to which such pupil 
is to be transferred consistent with sound school 
administration. There shall be no right to re­
transfer.
5. Nothing herein shall be construed to prevent the 
assignment or transfer of a pupil at his request or 
at the request of his parent or guardian.

The undersigned hereby certify that the foregoing reso­
lutions have not been amended or revoked and remain in 
full force and effect without alteration.

In w it n e s s  w h e b e o e , w e have set our hands this 13 day 
of February, 1962.

D. C. K en n ed y  J e . 
Chairman

C. K. S aunders 
Clerk



60a

Plaintiffs’ Objections to Plan Filed by School Board 
of the City of Lynchburg

(Filed: March 12,1962)

Plaintiffs, by their attorneys, respectfully object to the 
plan filed in this cause on or about February 24, 1962, by 
the School Board of the City of Lynchburg, and specify 
as grounds of objection, the following:

1. The period of delay requested by the School Board 
(through submission of its plan) for completing desegre­
gation of the school system, is not “necessary in the public 
interest” and “consistent with good faith compliance at the 
earliest practicable date” as required by Brown v. Board 
of Education, 349 U. S. 294 (1955).

2. The requested delay in desegregation is not necessi­
tated by school administrative problems of the type 
specified by Brown v. Board of Education, supra. The de­
fendants have filed no pleading indicating the nature of 
any school administrative problems which require any 
delay in desegregation of the system, or the manner in 
which any administrative problems which do exist are ra­
tionally related to the period of delay requested. The plan 
does not take into account the period of time which has 
elapsed since the Supreme Court’s decision in Brown v. 
Board of Education, during which defendants took no steps 
to initiate desegregation or to make a prompt start toward 
full compliance.

3. The plan submitted makes no provision for the plain­
tiffs (who now attend high school grades) to ever obtain 
a desegregated education. Similarly, it contains no provi­
sion assuring that any pupils now attending the public 
school system will ever attend nonsegregated classes. While 
Paragraph No. 1 in the plan provides that “at least one



61a

additional grade shall be desegregated” each year after 
desegregation of grade one in September 1962, it is ap­
parent that unless the grade-a-year desegregation is ac­
celerated, no pupils now attending the twelve grades of the 
system would ever attend desegregated classes. The plan 
provides no standards or formula for determining whether 
or not more than one grade a year will be desegregated, 
thus making the opportunities of all pupils now in the 
school system to attend desegregated classes a matter in 
the complete discretion of the City School Board.

4. Paragraph 2 of the plan includes the following sen­
tence: “One or more school buildings may be reserved, in 
the discretion of the Superintendent, to provide facilities 
within which to place pupils who are granted transfers.” 
When this provision is read in conjunction with other pro­
visions of the plan permitting transfers (on the basis of 
racial minority within a school), it is apparent that the 
defendants seek to reserve discretion to maintain certain 
all-white or all-Negro schools which will continue to exclude 
pupils on the basis of race and in which pupils will not be 
assigned by school attendance areas as provided for other 
schools in Paragraph 2 of the plan.

5. Paragraph 2 of the plan indicates generally the basis 
for determining school attendance areas. The formulation 
of standards for determining attendance areas is, of course, 
within the control of the defendants so long as race is not 
used in determining zones, selecting school sites, ete. How­
ever, the general statement made in the plan, without any 
indication of specific school zones to be used either next 
year or in any subsequent years, affords the Court no basis 
upon which to appraise the practical impact of an order 
approving the plan or any part of it. It is not possible to

Plaintiffs’ Objections to Plan Filed by School Board



62a

determine whether or not the plan would in fact accomplish 
any desegregation of the school system.

6. Paragraph 3 of the plan provides that pupils in de­
segregated grade levels will be assigned to the school in 
their attendance areas on or before April 15 of the pre­
ceding school years. This provision is vague and uncertain 
in that it does not appear how the special deadline, estab­
lished only for desegregated grades, will operate. The plan 
does not indicate how beginning students who do not make 
themselves known to the school authorities before April 15 
will be assigned, or the manner in which pupils moving 
into the community between April 15 and the opening of 
school or during the school year will be assigned.

7. Plaintiffs object to Paragraph No. 4 of the plan on 
the ground that it is vague and uncertain, and on the fur­
ther ground that the provision for granting transfers on 
the basis of a pupil’s racial minority within a school or class 
is racially discriminatory and must necessarily operate to 
limit the extent of desegregation. The plan is vague in that 
it does not specify when and how a determination will be 
made as to which race or races is in a minority in the schools 
or classes. The provision is discriminatory in that it will 
permit pupils in a racial minority to transfer out of their 
school zones on the basis of their race, while denying this 
choice or privilege to pupils in a racial majority in a par­
ticular area on the basis of their race. The provision al­
lowing transfers out of a pupil’s residential area when it 
would operate to limit desegregation and failing to provide 
for transfer out of a pupil’s residential zone when it would 
operate to promote or extend desegregation, renders the 
plan legally inadequate. An adequate plan should be de­

Plaintiffs’ Objections to Plan Filed by School Board



63a

signed to insure elimination of the prior racial assignment 
practices and the segregated pattern which they created. 
The present plan improperly continues racial classification 
of schools.

8. Paragraph No. 5 of the plan is vague and indefinite. 
If it refers only to transfers of pupils based upon the re­
quirements and conveniences of the individual pupils and 
the school system and without regard to race, plaintiffs 
have no constitutional objection. However, plaintiffs object 
to the provision in its present form on the ground that it 
apparently confers unlimited discretion to transfer pupils, 
including racially determined transfers.

9. Plaintiffs object to the plan in that it omits any pro­
vision for the assignment or reassignment of teachers and 
staff of the schools on a nonracial basis. In this connec­
tion, plaintiffs assert their personal rights to attend a school 
system in which there is no racial segregation or discrimina­
tion in the assignment and selection of teachers.

10. Plaintiffs object to the plan in that it fails to pro­
vide any arrangement for the desegregation of special 
educational programs now conducted or which may be con­
ducted in the future, including such things as special classes 
for handicapped or gifted pupils, kindergarten or other 
pre-school programs, adult education programs, summer 
school programs, etc.

11. Plaintiffs further object that the plan makes no pro­
vision for pupils seeking or needing education in special­
ized courses, including, for example, vocational education, 
commercial education and distributive education programs, 
to obtain desegregated instruction.

Plaintiffs’ Objections to Plan Filed by School Board



64a

12. The plan is objectionable in that it makes no pro­
vision for pupils who are unable to obtain courses of in­
struction that they desire or need in the segregated schools, 
to transfer to nonsegregated schools notwithstanding the 
fact that desegregation is not provided for at their grade 
levels by the plan.

13. Plaintiffs object to the plan for its failure to pro­
vide a method for notifying parents and pupils of their 
opportunities under the plan to obtain desegregation, or 
of any necessary steps they must take to obtain desegre­
gation.

14. For each of the foregoing reasons, plaintiffs submit 
that the entire plan submitted is inadequate and not in 
accordance with the requirements of the due process and 
equal protection clauses of the Fourteenth Amendment to 
the Constitution of the United States, and the “all delib­
erate speed” doctrine set forth in Brown v. Board of Edu­
cation, supra.

W h e r e f o r e , plaintiffs pray that the Court enter an order:
1. disapproving the plan submitted by the defendants 

on the ground that it is inadequate and invalid under the 
due process and equal protection clauses of the Fourteenth 
Amendment;

2. directing the defendant Board to promptly submit a 
new, alternative, or amended plan within a specified time 
period;

3. granting the relief prayed in the complaint and such 
other and further relief as the Court may deem just and 
proper.

Plaintiffs’ Objections to Plan Filed by School Board

Respectfully submitted.



65a

Excerpts From Hearing of March 15, 1962

Mr. Hobbs: This is a motion of the defendants to approve 
the plans that have been submitted.

The Court: All right. I understand from a telephone 
conversation with Mr. Hobbs that he feels that he has the 
burden of proving the propriety of this plan and would 
like to go forward with the evidence, if there is no objection.

Mr. Lawson : No objection, sir.
Mr. Hobbs: I -would like to call Mr. Baldwin as my first 

witness, Mr. B. C. Baldwin, Jr.

—4—

The witness, B. C. B a l d w in , J r ., having first been duly 
sworn, on examination testified, as follows:

Direct Examination by Mr. Hobbs:
Q. Will you please state your full name, age, residence 

and occupation? A. Bernard C. Baldwin, Jr.; 50; and 
resident of the city of Lynchburg. I practice law.

Q. You are a member of the Lynchburg City School
—5—

Board? A. Yes, sir.
Q. How long have you been a member? A. I was ap­

pointed in April of last year, I believe.
Q. Mr. Baldwin, the School Board has presented to the 

Court a plan for the admission of pupils to the Lynchburg 
city schools. Will you please inform us as to the back­
ground leading up to the preparation and presentation of 
that plan'? A. The first meeting of the School Board that 
I attended was in May of 1961, as I recall, and at that 
meeting or possibly at the June meeting the matter of the 
possibility of the Lynchburg School Board adopting volun­
tarily a plan of desegregation was brought up for discus­
sion. On motion of Mr. Hutcherson, the Board decided to



appoint a committee to consider the advisability of adopt­
ing a voluntary plan of desegregation. The chairman of the 
Board appointed four members of the Board to that com­
mittee and designated me as chairman of it. We got from 
as many sources as we could available literature on the 
matter, including a book on the Louisville story, the de- 
segregation in the Baltimore city schools, the desegregation 
in the Norfolk schools, and Mr. Hutcherson distributed a 
copy of a Guide to Integration. We had a booklet on the 
Emotional Aspects of Desegregation. We had considerable 
literature from the Southern Regional Council and a num­
ber of plans adopted by other school systems. Each mem-

— 6—

ber of the committee was asked to make a study of the 
available material. We held a number of meetings and 
made a report at the second meeting following our appoint­
ment, which was in August of 1961. I have that report if 
you would like for me to produce it.

Q. This is the report of the committee looking into the 
advisability of adopting a voluntary plan, is that correct? 
A. That’s correct.

Q. And it was presented to the full Board on August 
the 7th? A. Yes, sir.

Q. Would you read that report, please? A . “ R eport  of 
C o m m it t e e  to C onsider  t h e  A dvisability  of A d o ptin g  an

O rderly  P la n  of D esegregation .
To t h e  S chool B oard .-

Your Committee has made a careful study of many pub­
lications pertaining to desegregation before beginning its 
discussions of this problem. At the outset, it was agreed 
that each member must purge himself of any prejudices, 
or at least, learn to control them.

B. C. Baldwin, Jr.—for Defendants—Direct



67a

The Supreme Court of the United States in 1954 decided, 
and stated emphatically, that compulsory racial segregation 
in public education is unconstitutional. The court’s ruling 
is the ‘ law of the land” and good citizens for generations

—7—
have affirmed the wisdom of obedience to law. Thus, At­
torney General Malcolm Sewell of North Carolina, has said: 

* " whatever our thoughts about the Supreme Court 
of the United States, its interpretations of the constitution 
of the United States becomes the law of the land, and, what­
ever our personal feelings about that law may be, the signs 
at the crossroad where we now stand as a people clearly 
spell out to us that there can be neither defiance nor eva­
sion of the law of the land.”

The question then is not whether desegregation shall 
take place—that has been decided. The questions are how 
to follow the law; how to follow it with the least interrup­
tion of the educational program; which of the methods 
available for following the law is the most practical for 
our community. Again, it is not important how you and I 
feel on the issue. No matter how we feel personally, all of 
us agree that we do not want violence and that we do not 
want to harm race relations in Lynchburg. We hope to 
work out the problem the best way we can, with a minimum 
of disturbance and tension.

There appear to be three alternatives.
1. Complete desegregation at once.
2. Gradual desegregation.
3. No move at present.

The Circuit Court of Appeals for the Fourth Circuit has 
held in effect that pupils are not required to enter desegre-

B. C. Baldwin, Jr.—for Defendants—Direct



68a

B. C. Baldwin, Jr.—for Defendants—Direct

— 8—

gated schools. It is merely unlawful for the City to continue 
a forced program of segregation. Therefore, some freedom 
of choice may be allowed Negro and white students alike. 
This makes it possible for a white student not wanting to 
attend a previously all-Negro school or a school in which a 
majority of the students are Negro to ask for a transfer 
from that school; at the same time, Negro students who do 
not want to attend a previously all-white school or a school 
in which a majority of the students are white may ask for 
a transfer from that school.

Is it not better to initiate constructively a voluntary pro­
gram than wait for the inevitable court order which might 
cause disruption of children’s education, great legal ex­
penses, and harsh feelings between the races? We believe 
it is.

We deem it our first job to assure the continuous oper­
ation of public schools in the City of Lynchburg. It is our 
conviction that the time taken to assure comparable facili­
ties, curricula, and standards has been well spent. How­
ever, school board members may now be in violation of 
the law; and a majority of this Committee has concluded 
that it should recommend to the School Board, and it hereby 
does recommend, that a plan of gradual desegregation be 
adopted forthwith.

B. C. Baldwin, Jr., Chairman 
Clem A. Sydnor 
Carl B. Hutcherson

—9—
Walter A. G-arbee, Dissents.”

Q. Was there a Minority Report to that report? A. Yes, 
Mr. Garbee filed a Minority Report.



69a

Q. Would you read that, please, sir? A. “Minority Re­
port of Committee to Consider the Advisability of Adopt­
ing an Orderly Plan of Desegregation.

To the School Board:

I am unable to concur with the other members of our 
committee in recommending to the School Board that a plan 
of gradual desegregation be adopted in the Lynchburg 
School System at this time.

The Supreme Court in its second decision in 1955 in the 
Brown vs Topeka case recognized, “problems related to 
administration arising from the physical condition of the 
school plant, the school transportation system, personnel, 
revision of school districts and attendance area and revi­
sion of local laws and regulations which may be necessary”. 
I feel that all of these factors should be considered before 
any Board action is taken on this matter.

There are other questions which arise when we consider 
this problem as it relates to our local situation, and I would 
like to submit the following questions to the Board for 
consideration:

1. We are now under the State Pupil Placement Board.
— 10-

Does the committee majority report mean we will withdraw 
from the jurisdiction of this Board?

2. We have a new school Superintendent. Would it not 
be better to delay action on this matter until he has time 
to study the situation?

3. What is the attitude of our teachers toward a plan 
of desegregation? Are the teachers of Lynchburg ready to 
accept a plan?

B. C. Baldwin, Jr.—for Defendants—Direct



70a

4. How will a plan effect our colored teachers! Will we 
need fewer colored teachers or will they teach white chil­
dren f

5. What about social functions at integrated schools! 
Will White P. T. A. groups be open to colored parents!

6. There has been much written on the effect on negro 
children attending segregated schools. Are we to consider 
the effect on white & negro children attending integrated 
schools!

7. The four negro applicants to E. C. Glass are appeal­
ing the decision of the State Pupil Placement Board. 
Should we not delay any action on this question until this 
matter is settled!

8. Have we assurance that a plan would be acceptable to 
the court! Would any plan satisfy the radical groups in 
our community!

I realize that the stock answer to most of the questions
— 11—

I have raised is* “It’s the law of the land”. I have no inten­
tion of suggesting to this board that we disobey the law of 
the land, but I do feel that our present status under the 
State Pupil Placement Board is not in violation of the law 
and strongly urge this Board to take no action at this time 
on the recommendation of the committee. (Signed) W. A.
Garbee, Jr.”

Q. Following this report, Mr. Baldwin, what action did 
the School Board take! A. The School Board adopted a 
motion that the chairman of the School Board be instructed 
to appoint a special committee to consider and recommend

B. C. Baldwin, Jr.—for Defendants—Direct



71a

a plan for the gradual desegregation of the Lynchburg- 
public schools.

Q. Now, did the chairman appoint such a committee? A. 
The chairman appointed such a committee within a week or 
so after that meeting in August.

Q. And was it composed of the same persons who were 
on the original committee? A. It was.

Q. And you were chairman of that second committee?
A. Yes, sir.

Q. Now, what actions did that committee take in formu­
lating a plan as directed by the School Board? A. Of 
course, we had already considered a number of plans and 
had already recommended that a gradual plan be adopted.

— 12—

We discussed the matter with a number of people. We 
took the matter up with the Lynchburg Bi-Racial Com­
mittee to request their viewpoint. We sent Mr. Carper and 
one of the members of our committee to Atlanta to confer 
with the school officials there over the operation of the 
Atlanta plan. We corresponded with and conferred by tele­
phone with several of the systems in Texas and Tennessee. 
We were fairly well along, I would say, when this present 
litigation was started, and once it was started, we were 
advised to with-hold a report, pending the outcome of this 
suit.

Q. And so after the litigation and this suit was started, 
I believe in September, the committee held in abeyance 
further work on the plan until the Court ordered that the 
School Board submit a plan for the admission of pupils 
without regard to race? A. I wouldn’t say we held in abey­
ance further work in consideration. We did continue to 
work with the matter feeling that we were prepared to go 
forward at any time we were permitted to. The yearly

B. C. Baldwin, Jr.—for Defendants—Direct



72a

number of meetings and discused it during the period of 
this litigation.

Q. Did your committee make a report to the School 
Board relative to the plan that has been presented to the 
Court! A. Yes, it did.

Q. Do you have a copy of that plan? A. Yes.
—13—

Q. That report? A. I do have it.
Q- Would you read that into the record, please. ( A copy 

is handed to Mr. Lawson.) A. “ R eport  of C o m m it t t e e  
A ppo in t e d  to R eco m m en d  a P la n  of G radual D esegrega­
t io n .

B. C. Baldwin, Jr.—for Defendants—Direct

T o t h e  M em bers  of t h e  L y n c h b u r g  S chool  B oard :

Your committee, appointed last August, has done its 
work deliberately, steadily, and without haste, striving to 
formulate what we consider to be the most practicable plan 
of desegregation for our school system and community.

One factor that has delayed the completion of this report 
was the filing of a complaint against the School Board in 
the United States Court for the Western District of Vir­
ginia soon after the appointment of the committee. This 
complaint asked for an injunction against the defendants in 
connection with the assignment, placement, transfer, admis­
sion, enrollment and education of children in the Lynchburg 
School System. The committee has withheld its recom­
mendations pending the outcome of this suit.

The 1954 Supreme Court decision left no choice in regard 
to the inevitability of desegregation. The District Court, 
following the Supreme Court ruling, entered an order on 
January 24, 1962, directing the Lynchburg School Board 
to submit a plan for admission of pupils to the schools of



73a

B. C. Baldwin, Jr.—for Defendants—Direct

—14—
the City without regard to race. The committee has been, 
advised and has acted on the doctrine that the courts leave 
to the individual school systems considerable freedom to 
make their own choice of how their rulings should be imple­
mented.

Sections 22-232.1 through 22-232.17 of the Code of Vir­
ginia provide for the establishment of the State Pupil 
Placement Board, and charge it with the duty of assigning 
children to the public schools of the state. Although the 
statute provides that “the local school boards and division 
superintendents are hereby divested of all authority now 
or at any future time to determine the school to which any 
child shall be admitted’’ the District Court found that the 
Pupil Placement Board does not fulfill its duty of making 
the initial assignments and held that the local school boards 
and officials are in fact (although not in theory) in charge 
of making initial assignments. The practice is that the local 
school board recommends where each pupil in its system 
should be enrolled. In effect, it makes the initial place­
ment, and the Pupil Placement Board hears requests for 
the transfers from such initial placement.

Sections 22-232.18 through 22-232.31 of the Code of Vir­
ginia prescribe a method for local enrollment or placement 
where City Council elects this approach in lieu of the State 
Pupil Placement Board procedure. We do not feel that it 
is either necessary or desirable that Lynchburg withdraws

—15—
from the State Pupil Placement Board at this time and the 
Court does not suggest such action.

The plan we recommend deals with the initial placement 
of pupils, and pursuant to the Court order, this is to be done 
on a non-racial basis. The right of appeal to the Pupil



74a

Placement Board is available to pupils (and/or their par­
ents or guardians) who feel aggrieved by such placement.

As a result of the rapid growth and expansion of our 
city in recent years, many of our schools are over-crowded. 
We are currently having to use six mobile units as a mea­
sure of relief and it has been necessary to adopt a policy 
denying the admission to our schools of any county resi­
dent. During the current year, more than 2100 pupils en­
rolled at It. C. Glass High School, which school was 
designed for an enrollment of approximately 1800. It is esti­
mated that by 1964-65 enrollment there will reach approxi­
mately 2800. Because of this overcrowded condition and 
other factors, recent studies and recommendations by the 
University of Virginia Study Commission indicate an im­
mediate need for two additional junior high schools. The 
desegregation of all the high school grades at this time 
and the admission of a substantial number of Negroes will 
impose an excessive and intolerable burden on the avail­
able facilities and personnel.

Accordingly, we recommend that the abolition of com­
pulsory segregation begin in the First Grade of the elemen-

—16—
tary schools and that the public schools of Lynchburg be 
desegregated according to the following plan and schedule:

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

2. In assigning pupils to the first grade and to other 
grades as each of them is hereafter desegregated, the 
Superintendent of Schools shall determine annually the at­
tendance areas for particular school buildings based upon

B. C. Baldwin, Jr.—for Defendants—Direct



75a

the location and capacity of the buildings, the latest enroll­
ment, shifts in population, and practical attendance prob­
lems, but without reference to race. One or more school 
buildings may be reserved, in the discretion of the Super­
intendent, to provide facilities within which to place pupils 
who are granted transfers.

3. Each pupil entering a desegregated grade will be 
assigned, on or before April 15 preceding the. school year, 
to the school in the attendance area in which he resides 
subject to rules and regulations promulgated by the State 
Board of Education or as may be necessary in particular 
instances, provided only that the race of the pupil concerned 
shall not be a consideration.

4. Each pupil whose race is minority in his school or 
class may transfer on request. The Superintendent will 
determine the school to which such pupil is to be transferred

— 17—

consistent with sound school administration. There shall be 
no right of re-transfer during the same school year.

5. Nothing herein shall be construed to prevent the as­
signment or transfer of a pupil at his request or at the 
request of his parent or guardian, for any reason whatso­
ever.

The committee wishes to make it clear that we do not 
labor under the delusion that the plan we suggest is the 
only answer, or that any plan will not have to be reviewed 
and modified as the years pass and experience is acquired. 
There are, as most of us know, many approaches to the 
possible solution of this problem; various modifications can 
be made to any of them, and, no doubt, should be made from

B. C. Baldwin, Jr.—for Defendants—Direct



76a

time to time. Every community is different and faces 
unique problems for which only the people of that com­
munity can find a satisfactory solution. We believe only 
that the plan we suggest is the initial approach which is 
the most practicable for this community under present cir­
cumstances. Many that are similar to it have been approved 
by District Courts in other jurisdictions.

Time is needed to accomplish desegregation with the 
careful thoroughness that it demands. By proceeding step 
by step, administrative attention can be concentrated on 
the particular grade or grades undergoing transition and 
there will be fewer mistakes and fewer misunderstandings. 
The plan suggested should provide orderly desegregation 
of schools with a minimum disruption of the education of

—1 8 -
students which, after all, is our primary concern.

Respectfully submitted,

B. C. Baldwin, Jr., Chairman
Walter A. Garbee, Jr.
C. A. Sydnor
Carl B. Hutcherson—dissents”

Q. Was there a Minority Report! A. Mr. Hutcherson 
filed a Minority Report.

Q. Will you read that! A. “ M in o r it y  R eport  to L y n c h ­
burg  S chool  B oard. “Plan of Gradual Desegregation For 
the Lynchburg Public Schools”

The committee appointed for the study of this question 
has carried on its deliberations in an atmosphere of quiet 
dedication to a search for an adequate answer to a very 
difficult and complex problem. Many possible approaches

B. C. Baldwin, Jr.—for Defendants—Direct



77a

to the solution of this problem have been studied and ex­
plored. During these explorations there have been honest 
differences of opinion. It should be said, however, that this 
assignment was concluded with as much mutual trust and 
respect as there was at the beginning. We have held the 
following objectives constantly before us:

1—To devise a plan which met the requirements of the 
district court

B. C. Baldwin, Jr.—for Defendants—Direct

2—To devise a plan which was fair to all the citizens
—19—

of our city

3 To devise a plan which could be dealt with success­
fully in the light of present and proposed building facili­
ties

4— To devise a plan which was orderly and capable of 
implementation with a minimum of disruption to the proc­
ess of giving a quality education to all the children of 
Lynchburg

5— To devise a plan which was reasonable and acceptable 
to a majority of the citizens of both races in our city.

Obviously, this was no ordinary assignment. The final 
adoption of any plan by the full Board will require a meet­
ing of minds and a determination to do what we must do 
with equity and “deliberate speed.”

The majority report recommends a grade-a-year plan 
of desegregation beginning in the first grade in September 
of the year 1962-1963. I find myself in disagreement with 
this plan for the following reasons:



1. This plan, in my opinion, is not likely to meet the 
approval of the court. We therefore run the needless risk 
of having it thrown out and an immediate injunction ap­
plied directing us to accomplish the whole task forthwith. 
To put it mildly, this would result in chaos and confusion 
in a school system which has been carefully nurtured to its

— 20—

present status of respect and admiration.

2. The grade-a-year plan would take 12 years to com­
plete (1978). This appears to be unrealistic in relation to 
the cultural, religious and educational background of the 
people of this city as well as the civic and social maturity of 
the majority of our citizens.

3. No Negro child currently enrolled in the schools of 
this city would have an opportunity to participate in the 
plan without the necessity of appealing his assignment to 
the Pupil Placement Board and thus subjecting himself to 
an undue burden not required of other pupils.

4. It would plague the citizens of this city with litigation, 
agitation and conflict for a period of time longer than seems 
necessary or desirable to complete an orderly transition.

I sincerely believe that good faith implementation can 
be accomplished in a much shorter period of time, without 
abandoning any of the objectives enumerated in part one 
of this report, by the adoption of another plan of action.
I, therefore, suggest the following plan:

Alternate Plan

; L That beginning in September of the school year 1962- 
63 grades 1, 5 and 9 be desegregated.

B. C. Baldwin, Jr. for Defendants—Direct



79a

2. That each year thereafter for the next three years
— 21—

(1963-’64, 1964-’65, 1965-’66) the same grades be desegre­
gated. The last grades (4, 8 and 12) will come under the 
plan in 1965-’66 as may be seen from the table below:

B. C. Baldwin, Jr.—for Defendants—Direct

Grades 1962-’63 1963-’64 1964-’65 1965-'66

1 * # * #
2 X X X
3 X X
4 X
5 * *

6 X X X
7 X X
8 X
9 * * *

10 X X X
11 X X
12 X
* Original desegregation.

X Automatic sequence.

This plan could be completed in four years. All pupils 
currently enrolled except those now in grades 10, 11, 12 
would have an opportunity to participate. It is orderly, 
controlled, and in my opinion, reasonable for the citizens 
of Lynchburg.

Respectfully submitted,

Carl B. Hutcherson.”
— 22—

Q. Now that report and the Minority Report were pre­
sented to the School Board, I believe, on February the 13th



80a

B. C. Baldwin, Jr.—for Defendants—Direct

at their meeting, or was it presented prior to that time? 
Did it then adopt a plan at that time? A. I don’t recall 
the date. It was at the next meeting of the School Board 
following the order of the1' Court on January the 24th. 
The date probably was February the 13th.

Q. And what action did the School Board take on the 
recommendation of the committee? A. The School Board 
adopted the Majority Report of the committee and adopted 
the plan subject to the approval of the Court. I might say 
that the Minority Report was not filed at that meeting but 
was submitted at a later date.

Q. All right. In arriving at the conclusions expressed 
in both the first and second reports of this committee, were 
local factors considered? A. Yes, indeed.

Q. Was the advice of the Superintendent sought? A. 
Yes.

Q. Was the report of this committee worked out by the 
committee as a whole? Did it represent the thinking of the 
committee as a whole? A. Each member of the committee 
was quite active. Mr. Sydnor at one stage submitted in

—2 3 -
writing a plan. Mr. Garbee proposed another plan. I don’t 
believe he ever reduced it to writing but he was quite spe­
cific in presenting another plan so I would say that each of 
the members of the committee were quite active and ex­
pressed their opinions freely.

Q. Now, Mr. Baldwin, speaking for the School Board 
as a member of the School Board, would you interpret the 
first clause of the plan, what was intended thereby ? A. I 
don’t know that I understand the question, Mr. Hobbs. I 
feel that the plan speaks for itself and I would prefer to 
answer specific questions about it.

Q. All right, sir. The plan provides in paragraph one



81a

that 1. the first grade be operated on a desegregated basis 
commencing September the 1st, 1962, and each September 
thereafter at least one additional grade shall be desegre­
gated. Now most of the plans of the Nashville schools, 
Houston and Galveston schools, and numerous plans, con­
templated a straight grade-a-year plan but this is not con­
templated necessarily by this plan, is that correct ? A. This 
could not be called a grade-a-year plan. We refer to it as 
a step-by-step plan.

Q. In other words, if the administrative problems were 
overcome that are anticipated, all are not as great as antici­
pated after the first year, then the desegregation could be 
accelerated under this plan.

Mr. Lawson: I realize we don’t have a jury but
—24—

I think counsel should stick to the rules of examining 
his own witness. I object to his leading the witness 
despite the fact that we do not have a jury.

The Court: I suppose the objection should be sus­
tained. In a situation like this the thing speaks for 
itself.

Mr. Hobbs: Well, since the plaintiff seems to think 
the plan speaks for itself, and I think it does, I have 
no further questions with regard to it.

Mr. Lawson: I will not object to his asking about 
the plan. I object to his explaining the plan to an 
expert witness, who also happens to be a lawyer.

The Court: I think he would not have been intimi­
dated by your objection if he thought he could ac­
complish anything more by examining the witness.

Mr. Hobbs: I have no further questions of this 
witness.

B. C. Baldwin, Jr.—for Defendants—Direct



82a

Cross Examination by Mr. Nabrit:

Q. Mr. Baldwin, referring to the first report which you
- 2 5 -

read, the reports submitted to the School Board on August 
the 8th, was this made public at that time? A. Yes, it was.

Q. Was the second report? A. Yes, it was.
Q. It was made available to the public in the press, etc.! 

A. Yes, indeed, and both reports received editorial com­
ments from both newspapers.

Q. Now, can you tell me when the majority of your com­
mittee,—and when I speak of your committee, I am talking 
about the committee which was to formulate the plan— 
when did the majority of the committee reach agreement 
on what type of plan it favored or would submit? A. Well, 
strictly speaking, the majority reached full agreement on 
August 4th. I beg your pardon. Excuse me. I am mixed 
up on the report, on the date. It was on February the 9th.

Q. August the 4tli? A. On Saturday before the Tues­
day on which it was presented.

Q. Now you said “strictly speaking”. A. That was the 
date on which the report was signed and it was changed 
then in some details up until that time.

—26—
Q. Now approximately when were the broad outlines of 

it agreed upon? For example, the grade-a-year feature, 
paragraph one, was that at an earlier date? A. Actually, 
as has been pointed out, we have not adopted a grade-a-year 
plan.

Q. I did not mean to characterize it. I refer to paragraph 
one. A. I cannot say.

Q. Was it during the fall, during last autumn? A. Well, 
the grade-a-year plan and the possibility of adopting a plan

B. C. Baldwin, Jr.—for Defendants—Cross



83a

beginning in the first grade was mentioned the first day we 
met and it was under consideration throughout the period.

Q. Well, the reason I am pressing you, you said, “strictly 
speaking” you agreed to it on the date in February when you 
signed it. I assume it was a previous occasion when it had 
become a concensus of agreement of the majority. A. I 
don’t know when the date was.

Q. Was it just before that, a week before, or a month 
before? A. I would say possibly three weeks before that.

Q. Now, would I be correct in stating that your committee, 
that your first committee, was appointed shortly after the 
four plaintiffs in this case communicated with the Super-

—27—
intendent and asked for transfer? A. I believe that’s cor­
rect.

Q. At the time this case was brought before the Courts 
in September, 1961, from your first report that you read 
today, I would take it that the Board had already voted that 
it would appoint a committee to propose a gradual plan, is 
that right? A. That’s correct and it had been publicized. 
If we had adopted a voluntary plan, we would have been the 
first school system in the State of Virginia to have adopted 
a voluntary plan. We thought we were taking considerable 
initiative in the matter.

Q. Now, when the law suit was filed, you never brought 
this forward and offered to file a voluntary plan with the 
Court, your Board did not, did it? A. No.

Q. Did your Board instruct your attorneys to defend 
the law suit completely and resist being required to file a 
plan? A. No.

Q. This was never discussed as such? A. It was dis­
cussed and we requested him to limit the time for filing the 
report to the shortest time possible because we were not

B. C. Baldwin, Jr.—for Defendants-—Cross



84a

seeking any delay. We wanted to get on with this thing as 
rapidly as we could. It is a little late already for the year

—28—
1962-’63.

Q. I think we’re talking about different times. You were 
just speaking of the period after the Court’s opinion. I was 
speaking of the time earlier in the fall when the case was 
first prepared or after the hearing we had here in Novem­
ber, whether or not your Board instructed your attorneys to 
offer to submit a voluntary plan, or you decided to see 
whether the Court would require you to submit a plan.

Mr. Hobbs: I ’m not sure this is a proper line of 
questioning by this attorney.

The Court: Whether this plan is good and not 
whether they delayed is what we have got before us 
now.

Mr. Hobbs: The record speaks for itself. I am the 
attorney appointed to defend the School Board. I 
rather resent his apparent effort to get the School 
Board to say specifically exactly what they wanted 
their attorneys to do. I don’t think it is within a 
proper question.

Mr. Nabrit: May it please the Court, I gathered 
that the thrust of part of the School Board’s case here

—29—
was that this law suit delayed them.

The Court: I don’t see that it makes any difference 
whether it did or not. It does not have any bearing 
on anything before us now.

By Mr. Nabrit (continuing) :

Q. Now Mr. Baldwin, your committee’s report refers to a 
recommendation by the University of Virginia Study Com­

B. C. Baldwin, Jr.—for Defendants—Cross



85a

mission, and there are two additional or will be two addi­
tional junior high schools established and built here in the 
city. First I ask you whether or not you can tell me when 
that recommendation was made? A. I would say twro or 
three months ago. Two months ago maybe.

Q. Now, was this the first time— What steps has the 
Board taken along this line? Have there been any prior 
action by your local Board? A. Along what lines?

Q. Along the lines of planning or discussing two junior 
high schools or was this the first time the matter had been 
brought to the Board’s attention? A. The employment of 
the Study Commission was a matter that had arisen prior 
to the time that I was appointed to the School Board and 1 
don’t know how long they have been working on a study of

-—30—
our overall curriculum building needs and our entire pro­
gram.

Q. Well, that was not my question. My question was, 
has there been any plan to build these two junior high 
schools independent of this recommendation or prior to this, 
or is there one now? A. There is none now' and it has been 
under consideration for some period of time.

Q. Was it under consideration w7hen you first came on the 
Board, the idea of building two junior high schools? A. 
Yes, the possibility. As a matter of fact, the determination 
to go to the junior high school, or the 6-3-3 system, has not 
definitely been determined but it was under consideration, 
yes.

Q. I see. Well, would I be correct in understanding then 
that as of now there is no definite plan to build two junior 
high schools. There has been no selection of sites or 
letting of contracts, beginning of construction or anything 
like that. A. That’s correct.

B. C. Baldwin, Jr.—for Defendants-—Cross



86a

Q. And that you would not be in any position to tell me 
when these schools would be available or if they would be 
built at all. A. No.

—31—
Q. Now, how about the construction of the schools at the 

high school level! Is there any present plan of construc­
tion! A. Well, the reason the junior high school program 
is important to the high school is that if the junior high 
schools are built, they will house the 7th, 8th, and 9th 
grades, which will relieve the elementary schools of one 
grade and will relieve the high schools of one grade, so 
instead of having the 9th, 10th, 11th, and 12th grades in high 
school, we would only have the 10th, 11th and 12th.

Q. Now my recollection, from the previous testimony in 
this case, was that at Glass High School, Glass served 
grades 8 through 12. A. Correct.

Q. And I think Lee School served the 8th grade for white 
pupils. A. Correct.

Q. And that at the Dunbar School, the Negro high school, 
it served grades 8 through 12. A. That’s correct.

Q. Well, now, did the Virginia Study Commission recom­
mend that these schools be set up, one for Negroes and one 
for white? A. I don’t recall that they specified.

Q. May I inquire whether you have a copy of that re-
—3 2 -

port! A. I do not have. I might say that this report says 
that they indicated it. At the time this statement was made, 
the report had not been received by me.

Q. Now, in regard to the capacity of these two schools, 
I think your report contains figures from Glass High School. 
Can you tell me whether or not Dunbar High School is also 
overcrowded? A. I don’t think that it is. We were told 
that it was 85% occupied, approximately.

B. C. Baldwin, Jr.—for Defendants■—Cross



87a

Q. And the report also mentions mobile units. How are 
these used and where, for elementary schools, high schools 
or what? A. They are used in elementary schools.

Q. What are these, sort of trailers, single classroom af­
fair of a trailer? A. That’s corrrect.

Q. They are used to supplement classes and are adjacent 
to existing buildings? A. Existing buildings and do ac­
commodate classes.

Q. Your Board purchases these from time to time as 
needed? A. That’s correct. I would say that in addi­
tion to that, many cloak rooms and other rooms in the

- 3 3 -
schools that are not designed for classrooms are being 
utilized so that the facilities generally throughout the sys­
tem are crowded.

Q. What sort of construction program do you have at 
the elementary school level? Can you tell me what schools 
have been planned, which ones are under contract, or the 
site selected, or under construction? Can you give me a 
breakdown on that? A. Our entire program is going to 
hinge largely upon this study that is being made of our 
system and for that reason we have not gotten along any 
farther than we have. We have been delayed in receiving 
this report.

Q. I was led to believe and was informed one school 
would be available this year, a new school. A. Paul Monroe 
School will be a new school open this year. Of course, that 
determination was made several years ago and has been 
under construction.

Q. Aside from that school, there are no other schools 
presently under construction? A. No.

Q. Does your school system have any bus transporta­
tion for pupils that is administered by the system? Do you

B. C. Baldwin, Jr.—for Defendants-—Cross



88a

run school bus routes? A. No, the local transit company 
handles it.

Q. That is children ride the ordinary public buses? A.
- 3 4 -

Yes.
Q. During your committee’s study, what data, if any, 

was gathered by your committee relating to personnel 
requirements at present or in the future? Was there any 
study of this kind of statistics or anything of that kind? 
A. No especial consideration was given to personnel. We, 
of course, were all familiar with the personnel problems that 
face us currently.

Q. Would I be correct in assuming that is a continuing 
problem of finding good teachers? A. That’s correct.

Q. It is a long-term problem, isn’t it? A. That’s correct. 
Q. Now, what, if anything, did your committee do con­

cerning school zones or the modification of school zones? 
Did you have any studies made as to the location of pupils 
or anything like that? Has there been any census made or 
anything like that? A. Yes, we had the staff put various 
colored pins in maps of the city to show us where the 
children reside who are currently in the system.

Q. Well, has your Board or the committee agreed upon 
any school zones to be used next year or in any future years? 
A. No.

Q. Well, from that would it be true to state that your
—35—

committee would have no way of knowing without knowing 
what the school zones are going to be in the future, how 
many pupils would be eligible for desegregation under any 
sort of plan? A. No, we would not. The matter of the 
zones is something that changes currently from year to year 
and if necessarily have to continue to change and we do

B. C. Baldwin, Jr.—for Defendants■■—Cross



89a

not feel that we were in a position at the time we were 
considering it to establish zones for the coming year and 
certainty not any future year.

Q. You have zones now for Negro and white pupils, don’t 
you? A. Yes.

Q. Well now, did you have the superintendent or any 
of his staff tell you how many Negroes would be eligible 
to attend the various white schools, if they went to the 
schools in the zones they now live in, the white zones ! A. 
We had no way of knowing that. We cannot undertake to 
determine exactly how many it will be. We did study the 
maps in a general way and felt that was as good as we could 
get at it.

Q. Do you have any idea how long it would take or what 
your present plans for zones would be if the Court approves 
your plan that you submitted? When do you propose to an­
nounce the school zones? A. As I say, it is a little late for

—36—
this coming year. In other year our plan contemplates 
that the school officials will receive applications for admis­
sion to schools and would determine their zones and make 
assignments prior to April the 15th of that year.

Q. Well, now, are you suggesting this April the 15th date 
will have no significance to this current year? Perhaps I 
don’t understand. A. I am suggesting that it may not 
because we may not know exactly under what plan we are 
operating.

Q. Perhaps I don’t understand what the April 15th date 
is for and what is to happen on April the 15th under the 
plan. A. Assignment of all applications is to be made 
on or before that date. We adopted that date and I guess 
we were influenced in adopting that date by the fact that 
the state law contemplates assignment will be made by May

B. C. Baldwin, Jr.—for Defendants■—Cross



90a

the 1st. There is a schedule which enables those peoples 
not satisfied with the assignment to appeal the decision and 
we felt that if we were to have the right of transfer, that it 
would require at least an additional fifteen days to accomo­
date this plan.

Q. Well now, you correct me if I am wrong. I  understood 
this was supposed to be a date for you to make initial as­
signments. You said something a moment ago about ap­
plications. What sort of applications did you refer to? 
Did you mean applications by Negro children, for example,

—37—
to go to white schools in his zone or something like that? 
A. Well, yes, I mean an application to enter the school 
system. For instance, we have had applications—all enter­
ing students file an application to come into the school 
system.

Q. Is this now a requirement that all pupils who are go­
ing to go to school this fall and September must let the 
School Board know in April, on April the 15th, they plan 
to enroll the following September? A. Or prior to April 
the 15th.

Q. Is this satisfactory? Will there be exceptions to this 
rule? A. Well, of course, there will have to be exceptions 
to it.

Q. What will they be? A. People moving into the com­
munity who were not residents of the city of Lynchburg, 
who come in after April the 15th, and make their applica­
tion after they arrive presumably. Necessarily there have 
always been applications coming in as late as August.

Q. From people living in the city ? A. No, not from peo­
ple living in the city but people who move.

Q. Are you familiar enough with the details of this—

B. C. Baldwin-, Jr.—for Defendants-—Cross



91a

B. C. Baldwin, Jr.—for Defendants-—Cross

— 38—

By Mr. Nabrit (continuing):
Q. Is that the case? You’re not sure whether or not 

some pupils living in the city might file? A. That is true. 
I am not familiar with the details of that.

# # # # #

— 39—

* # # * *
Q. Well now, your plan in paragraph 2, in the last

—40—
sentence in paragraph number 2, indicates that one or more 
school buildings might be reserved and the discretion of the 
superintendent to provide facilities within which to place 
pupils granted transfer. I want to ask you if under this the 
superintendent would be allowed to designate certain 
schools to which he might assign pupils who sought to 
transfer because they found themselves attending desegre­
gated schools. Is that correct? A. That’s correct. I might 
say this. There is nothing mysterious intended by that pro­
vision. It is because of the overcrowded conditions. We 
know that we already have a tremendous administration 
problem in connection with the assignment of pupils and 
we felt that this would magnify the problem and it was 
thought that possibly some of the schools in the downtown 
area, and most of the elementary schools are located in the 
downtown area, that because of shifts in population we 
might have a school building, one or more perhaps, that 
could be withheld from the initial assignment in order to 
have some place to transfer pupils if all the other schools 
are going to be crowded, for the betterment of the education 
of all. It would simply be better not to put additional 
pupils in classes that already have thirty or forty or more 
pupils.



92a

Q. Well, I want to make sure I understand Mr. Baldwin. 
I am not trying to pin you down. Are these going to be 
schools that would, for example, be set aside for all white

—41—
pupils, or for all Negro pupils? A. Not necessarily. We 
didn’t designate it as such. It could be that it would work 
out that way.

Q. These would be schools that, in other words, you would 
use if you had a large number of white pupils who lived 
in a Negro school zone and they sought to transfer, and they 
might be assigned to this school. A. It could be.

Q. Under another provision of your plan? A. That’s 
correct.

Q. Negro pupils, if this was one of these reserved school 
zones, would not be allowed to enter that school and by the 
same token, if you had a reserved school for Negroes, 
whites would not be allowed to enter, is that correct? A. 
There is nothing to forbid entrance of a Negro to any 
school. We simply suggested the reservation of a school 
as a place to put transfers, with no thought of perpetuating 
segregation thereby. We feel that the sooner we can de­
segregate the entire situation, the better off everybody will 
be. It is not an effort to perpetuate segregation.

Q. I am not inquiring about your motives. I am trying 
to find out how this is going to work. Let me ask you about 
your transfer provision, paragraph 4. A. All right.

—42—
Q. All right. As I understand, if a white pupil lives in a 

predominant Negro neighborhood, he would be permitted 
to transfer to another school and the superintendent would 
designate it if he asked for a transfer. A. If he is in the 
minority in his school or class he would be permitted to 
transfer.

B. C. Baldwin, Jr.—for Defendants■—Cross



93a

Q. And he would be permitted to transfer out of his 
school zone that he lived in? A. He would be permitted 
to transfer out of the particular school or class.

Q. Now, if he was going to be originally assigned on the 
basis of zones, he’d be permitted to go outside the zone. 
A. He may be transferred outside the zone or may be 
transferred within the zone.

Q. Are you going to have more than one school within a 
zone? A. I don’t know. I haven’t seen the zones.

Q. Well now, in any event, going back to such a case, 
would a pupil in the majority race in such a school be per­
mitted to transfer? A. No.

Q. He would not? A. He would not.
Q. So has the Board or your committee given any

—4 3 -
thought to the question of when you are to determine several 
things, when you make this count of which is the majority 
race in the school, and second, when you have to apply for 
one of these transfers under paragraph 4? A. No. No ad­
ministrative rules for carrying out the plan have been 
adopted.

Q. There is no time limit? A. No time limit.
Q. The problem I mention is that it is conceivable that 

the racial majority in a school could change. When that 
happens, would pupils be allowed to transfer without regard 
to any deadline? A. It would be very unlikely for it to 
change within a year and we would expect these transfers to 
be requested prior to the beginning of the school year in­
volved.

Q. Now, in that paragraph 4, you say “there shall 
be no right of re-transfer”. Does that mean that if a 
pupil finds himself in a school where he is in the racial 
minority, and he is entering first grade, at that point he

B. C. Baldwin, Jr.—for Defendants■—Cross



94a

makes a choice under your paragraph 4 that he wants to go 
to another school where he is in the racial majority and he 
will never be permitted to come back? A. It doesn’t mean 
he will never be permitted to come back. It means he has 
absolutely no right as a matter of right to come back. He 
is given a right to transfer out or he has no right to get

—4 4 -
back. He might request it and it might be granted.

Q. So, the effect of what that means is then you have a 
right to make a transfer to get with the majority of your 
race but you have no right to make a transfer to get in a 
desegregated situation, is that the idea! A. That’s right, 
you have no right. As I say, if a white pupil who is in the 
minority requested to be transferred. and if he happens 
to be transferred to a school that he feels is inconvenient, 
and he changes his mind and insists upon going back to 
where he came from or to another school, now he may re­
quest it and his request may be granted. That is pursuant 
to the fifth provision in this plan but he has no absolute 
rights.

Q. I see. Now on what basis will that determination be 
made? Is that entirely up to the discretion of the super­
intendent, the fifth provision? A. Yes, for what he con­
siders is best for the educational program of our city.

Q. And your committee has in mind no particular stand­
ards for governing this descretion, nothing particular in 
mind?

B. C. Baldwin, Jr.—for Defendants■—Cross

The Court: All we have before us is this plan. It 
seems to me you’re going into a lot of things not 
covered by this plan. This plan could be approved

—45—
and it could be non-discriminatory on its face and



95a

could be carried out in a discriminatory way. That 
could be done by the way the barriers are set up.

Mr. Nabrit: I don’t know whether the Court has 
had an opportunity to see the pleadings of the plain­
tiffs filed.

The Court: Yes, I have.
Mr. Nabrit: One of the things we claim that is 

vague.
The Court: You can argue that just as well with­

out cross-examining him on the objects of the plan.

By Mr. Nabrit (continuing):
Q. You mentioned that during your committee meetings 

that at least two other and perhaps more different plans 
were recommended by members of the committee. Can you 
tell us what those were?

The Court: Really what bearing have they got on 
the propriety of this plan! You can argue that you 
could have thought of a better plan.

Mr. Nabrit: That is not my argument.
—46—

The Court: I just don’t see what bearing that has 
on whether this is an appropriate plan for carry­
ing out the Court’s order. I am going to over-rule 
that without an objection.

By Mr. Nabrit (continuing):

Q. Were any faster plans proposed or any slower plans? 
A. A grade-a-year plan was proposed and three-grades-a- 
year was proposed. Three-grades-a-year was the fastest 
and a grade-a-year was the slowest.

B. C. Baldivin, Jr.—for Defendants■—Cross

The Court: Do you have any further questions?



96a

By Mr. Nabrit (continuing) :
Q. Mr. Baldwin, does your plan contemplate that pupils 

in the high grades, that is the grades above grade 1, next 
year would be permitted to transfer on a desegregated basis 
under any arrangement? A. They, of course, have a right 
to appeal to the Pupil Placement Board under the current 
law in Virginia.

Q. But your Board would not recommend any such trans­
fer, is that the idea? A. Well, whether it would recom­
mend it or not would depend on the particular application, I 
am sure.

—47—
Mr. Nabrit: No further questions.

Redirect Examination by Mr. Hobbs -.
Q. Mr. Baldwin, Mr. Nabrit in his questioning appar­

ently has been attempting to point up the administrative 
problems that might arise under the plan. They are no 
more varied than the administrative problems that arise in 
the school system every day, are they? A. I think they 
would be more varied and greater, yes.

Q. He asked you about the school building program. Can 
you testify as to the buildings that might have been built 
in the last five years in the City School System and the cost 
of them? A. No.

B. C. Baldwin, Jr.—for Defendants—Redirect



97a

M. Lester Carper—for Defendants—Direct

-4 9 —
The witness, M. L ester  C a rper , having first been duly 

sworn, on examination, testified, as follows:

Direct Examination by Mr. Hobbs:
Q. Mr. Carper, please state your name, age, and position. 

A. M. Lester Carper; 57; Superintendent of Lynchburg 
Public Schools.

Q. Mr. Carper, are you familiar with the plan that has 
been adopted by the School Board for the admission of 
children on a non-racial basis? A. I have it in my posses­
sion. I  have worked with the committee and I hope I am 
familiar with it. There may be some things about which I 
am still a little hazy.

Q. In connection with the plan and the committee’s work 
in connection with it, did you advise with the committee? 
A. I did not meet with the committee every time it met; 
I did on several occasions. I did not put myself in a posi­
tion of advising the committee; I tried to submit them 
information and discussed various aspects of it with them 
in terms of possible administration and so on. I felt that 
in my position, as administrative officer for the School 
Board, I should not put myself in the position of creating 
the thing which I would administer.

Q. Mr. Carper, what experience have you had in school 
systems and what is your educational background?

—50—
Mr. Lawson: All of that is in the record. We will 

admit all of that; we will admit every bit of it.
The Court: This is after all still the same case, 

you know.
Mr. Hobbs: All right.



98a

Q. Will you state the problems which you anticipate 
would arise from a desegregation of the school system, 
either gradually or on the basis outlined by the plan that 
has been presented? A. The one problem that I can see 
and define most clearly is the physical problem pertaining 
to building space. The second which may well be a problem 
but not nearly so well defined at the moment would be that 
matter involving human relationships between people who 
are uprooted and moved in one direction, new associations, 
etc., so I shall first discuss the building situation.

Lynchburg is facing a rather critical building problem 
at the moment. I have here the latest figures, broken down 
by elementary schools, high schools, white and negro, as 
now classified, as to their capacity and the enrollment in 
those schools on the 26th day of January, which was the 
latest report available from all the principals’ offices.

The capacity of the white elementary schools is 6,005.
—51—

Presently we have 6,061 children entered. Now, some of 
these schools are not filled completely to capacity; some of 
them are overeapacitied a hundred or more pupils. I 
combined E. C. Glass and Robert E. Lee, because at the 
present time we are committed to the seven-five school 
organization, so the five years in high school are in those 
two buildings. The capacity at the present time is 2,550. 
The enrollment is 2,901. In the negro elementary schools 
the capacity is 2,420. The enrollment at the present time 
is 2,185. In Dunbar High School the capacity is 840 and 
the enrollment is 773. The problem of buildings is further 
intensified by the fact that many of the buildings are not 
located where the people live. People are moving away 
from the central section of town, for instance, to the out­
skirts. The buildings in the center of the town are not

M. Lester Carper—for Defendants—Direct



99a

running at capacity and those on the outside are over- 
capacitied. That condition is a progressing condition.

We make every effort to equalize, insofar as possible, the 
pupil-teacher ratios within the schools and between schools 
but, because of the mobility of people and because of the 
dislocation of buildings, we can never completely determine 
the total student body of the school or the zone lines actu­
ally until mid-summer or later, and even after we do that, 
doing the best we can, not gerrymandering, Your Honor, 
but being practical and setting up zone lines so we can 
eliminate as many hazards as possible for the children to

—5 2 -
cross to put them as close to the school as they can possibly 
be to the one which they attend. Even at that, I can re­
member that this last year we had individual conferences 
with better than a hundred parents, some of whom wanted 
to transfer their children out of or into a crowded school; 
some of whom we were requesting to transfer their chil­
dren because they were in a school more crowded than the 
one to which they could go. Then beyond that, we trans­
ported whole groups of children from one school to another. 
As an illustration, we have the seventh grade from Peak- 
land going to Garland-Rodes.

By the Court:

Q. Going permanently? A. Transferring for the year. 
It can be nothing permanent about it because of the shift 
in population. As would be indicated right now that the 
same transfers this next year will not solve the problem 
which they solved this past year. So, as long as we are run­
ning so near capacity in our buildings, there will of neces­
sity have to be a great number of shifts from one school 
to another in order to equalize loads.

Now, as this relates to this particular problem, I will

M. Lester Carper—for Defendants—Direct



100a

indicate one situation. The members of the School Board 
did not know that we had been working up some informa­
tion, just purely as information, but we wanted to look at 
our problem to see what it might be if we had the greatest

—5 3 -
amount possible of shifting. Here is a school, for instance, 
Ruffner, with a capacity of 255 and Armstrong, with 340. 
Ruffner is now designated a white school and Armstrong a 
negro school. A large number of Negro youngsters pass 
Ruffner going to Armstrong. In the first grade situation, 
all of these youngsters would not go to Ruffner. As I re­
call it, the figure was 61 children presently attending Arm­
strong in the first grade. If they should go to the school 
nearer them, there would be only eleven left in Armstrong, 
and they would go into Ruffner, Garland-Rodes and Peak- 
land, each of which schools are presently overcrowded, and 
you can see by dividing fifty more youngsters among the 
schools’ overcrowded conditions, would still be worse. In 
addition to transferring the Seventh Grade and kinder­
garten out of Peakland, we might have to get down to the 
Sixth or Fifth or even further. We wanted to look at the 
maximum displacement. Now, I give you that as one par­
ticular instance.

By Mr. Hobbs:
Q. And that example involved only the first grade? A. 

That example involved only the first grade; yes, sir. I 
believe we found that there were more Negro children pass­
ing Ruffner going to Armstrong than the capacity of Ruff­
ner, so you see, Your Honor, we have a sudden shift—when 
we have a sudden shift like this, no one can say how the 
problem is going to be worked out; we have to see the im-

—54—
mensity of it and see what can be done.

M. Lester Carper—for Defendants—Direct



101a

Q. Mr. Carper, with regard to the physical plants, can 
you review the construction that the city has undertaken in 
the school system in the last few years? A. I will attempt 
to do it. I don’t have the figures here before me. The 
Chairman of the Board is here, who has worked through 
that, and he may want to correct me.

At the present time it’s been mentioned that the Paul 
Monroe School is under construction. I know of four new 
schools: Bedford Hills; Sheffield, two white elementary 
schools; Dearington and Carl B. Hutcherson, two Negro ele­
mentary schools, which I would assume have been built 
within the last four or five years.

I would like to clear up one other situation if I may. The 
question was raised about the school construction and the 
University of Virginia Survey. The School Board employed 
the University of Virginia to make certain surveys because 
the problems were so intense, so much was involved, that it 
thought they should secure the best judgment possible in 
future planning in school house construction.

It had been thought for some little time that the city 
was at the size, for instance, that it would be appropriate 
to move from the seven-five organization to the six-three 
organization, both with size and the nature of the build­
ings now existing.

—55—
The University of Virginia Committee has orally given us 

the same opinion. Now the report has not yet been sub­
mitted. We are expecting to receive that report on the 21st 
but the Junior High School construction program would 
alleviate pressures both in the elementary schools and high 
schools, inasmuch as they would pull the Seventh Grade out 
of the elementary and the Ninth Grade out of the high 
school, thereby possibly eliminating any need for additional 
elementary school construction for a few years to come.

M. Lester Carper—for Defendants—Direct



102a

Q. Well, will you state whether the desegregating of the 
schools is going to intensify the overcrowded conditions'? 
A. It would seem, yes, that wherever they desegregate, that 
is wherever additional children would go into most an> 
school in the city, it will overcrowd that school and some 
other children will have to come out of it if we are going to 
maintain a reasonable pupil-teacher ratio across the city. 
If there is any major dislocation,—and I would say in a 
school of 255, fifteen new pupils is a major dislocation.

Q. Do you contemplate any other administrative prob­
lems relative to the plan proposed by the School Board? 
A. I concur in that plan simply because it will give us one 
year of time to more nearly assess the problems that are 
involved and probabty would be limited in scope to the 
point that we could handle the problems that are involved.

—56—
If we should become involved in a total situation, which 
would mean the dislocation of a fifth or more of our total 
student body, somebody would probably become very ag­
gravated and some people hurt in the shifting process. The 
problem is so big that we don’t have elbow room in which to 
work, neither do we have the personnel to work through 
all the problems, and there will be some problems that will 
not be solved very satisfactorily.

Q. What are your views on a gradual plan as against 
a whole plan from an academic or scholastic viewpoint of 
the pupils involved? A. Af course, the pupil is the per­
son most involved and most concerned, and the pupil is 
my greatest concern. Any adjustment for a child from one 
educational situation into another one creates problems, of 
course, and require attention. If you have a large number 
of children requiring special attention, the time available is 
going to be divided between all of those children in a much

M. Lester Carper—for Defendants—Direct



103a

smaller proportion than it would be if it were a smaller 
number of children. I think also as we work out problems, 
we gain experience; we learn how to handle things in a 
routine fashion rather than create a way of handling them. 
I believe that the one year in which we could work through a 
more localized or more confined situation would give us 
sufficient experience to routinize a number of things we 
wouldn’t have to put a great deal of time on next year, and 
leave us with more time to work with individual problems.

—57—
Q. So you think, as I gather, that you consider this first 

year as an experimental proposition, to gain experience. 
A. Eight. We have no experience along that line at all. It 
will be a very experimental year; yes, sir.

Q. From the individual student’s standpoint, in your 
judgment as an educator, is it better for them to start in 
a new school system at the first grade or the middle of the 
fifth grade or the ninth grade! A. Well, it is rather diffi­
cult to generalize on the student because we have 11,750 
different students. Some will adjust into any situation they 
go into; others will not. Generally speaking, you will have 
the best adjustment to the group when a child begins early 
in that group and stays with that group. There are always 
more intense problems of adjustment as we move on through 
school because of differentials, involving elements of the 
atmosphere, your teacher, your social structure; everything 
that is involved in that situation has elements in it that 
are different than the ones from which they came. Those 
children have routinized themselves, in a sense, to handling 
certain situations. Here you have a completely new situ­
ation, where they have to adjust themselves completely. I 
don’t say it isn’t valuable when you learn to adjust. Our 
society is built on the basis of adjustments from one situa­

M. Lester Carper—for Defendants—Direct



104a

tion to another of individuals. Frequently the problems are 
more intense as it is delayed.

—58—
Q. Do you have a testing program in the school system 

with regard to educational progress in the vdiite and colored 
schools? A. We have general testing program in which all 
children are tested periodically, from the first grade on 
through the twelfth grade, yes, and those test scores being 
available for every individual are also available in mass,— 
class groups, school groups, racial groups, and so on; yes.

Q. Do you have a breakdown on statistical information 
of these educational progress tests for white and colored 
in the city at the first grade level and at certain other- 
grade levels? A. Yes, we have. I might indicate this. 
These were not available on the racial basis until they 
were set up on that basis for purposes of this hearing, 
if they were considered important to it. Mr. Lee, who 
was one of our staff persons, generally in charge of testing, 
worked up these figures yesterday at my request because 
we thought maybe somebody might want the information. 
We do not generally use it on that basis, mass test results. 
They do not serve nearly as important a purpose as the 
individual tests, working with the individual children.

Q. If I understand, you said you endorsed the plan of 
the city schools; you believe it is a workable plan and one 
that the administration can live with? A. I believe that,

—5 9 -
yes. The scope is such that we can work our way through 
it. Certainly in connection with the building situation, 
it is still going to be a problem but I believe we can work 
ourselves out of that if we do not involve too many people.

Now, in regard to the second problem, acceptance of 
people generally to the whole idea, I have no way of assess­

M. Lester Carper—for Defendants—Direct



105a

ing that. I have no way of knowing what problems will 
arise from it.

Q. All right. I  have no further questions.

Cross Examination by Mr. Nabrit:
Q. Mr. Superintendent, in regard to these testing re­

sults, perhaps I was distracted. You did not indicate what 
they were, did you, about these racial ones? A. No.

Q. Now, during your testimony you at one point men­
tioned that you would have considerable problems with 
overcrowding if you had this dislocation with complete de­
segregation. You said something about dislocation of a 
fifth of the student body. What do you base that figure on? 
A. That was a very rough estimate but I said we could 
possibly have a shift from one school to another of ap­
proximately a fifth. That would be over and above the 
normal shifts we already have from the Seventh Grade

—60—
to the Eighth Grade, or from the Seventh into the Eighth, 
in either situation in the white schools from the Eighth 
to the Ninth. We already have a large number of shifts 
but this shift,—if anyone makes application to go into— 
Well, let us just lay it on the line. If a Negro child makes 
application, or a group of Negro children make application 
to go into a white school, then a like number of white 
children will probably have to come out of that school. 
Now, our problem is, where do they go. We have been 
thinking at least on that assumption that, just as we could 
force no one to attend a segregated school, neither could 
we force someone to attend an integrated school. That 
being true, I can anticipate quite a large number of the 
people wanting to come out of the integrated school and 
going to some other school, but I can also anticipate, if

M. Lester Carper—for Defendants—Cross



106a

we get great numbers coming into the schools, that some 
of the people are going to have to be asked to move out 
of this particular school into another school.

Q. On the latter problem, in terms of your plan at the 
first grade level pupils who never attended school before, 
you would have no way of knowing now how many pupils, 
you have no way of knowing at all in any individual case 
how many Negro pupils will be wanting to go to white 
schools or how many white pupils will want to move out, 
do you? A. We know how many are involved approxi­
mately but we don’t know.

—61—
Q. How many are entering first grade? A. About 1,100.
Q. And divided— A. Well, it would be about 800 white 

children and 300 Negro children, approximately.
Q. Now, of those 300 Negroes, Negro children, do you 

have any idea how many would be eligible to go to white 
schools? A. I indicated we had calculated, if we had the 
maximum changeover with Euffner and Armstrong, and we 
have had no decision on this. We have not established an 
administrative procedure, whether we would zone for first 
grades one set of zone lines and then say that those parents 
who objected to the zoning, to the particular school, could 
make application to go to another school, or whether we 
would just assume that at the present the present zone lines 
would have to be changed, and those persons who didn’t 
want to go to the school they had been zoned to could apply 
to go to some other school. We have not crystallized the 
procedure because we don’t know the plan we are going to 
work under, and it is no point in using the time to do that 
sort of thing.

Q. I understand you to say you wouldn’t be able to zone 
for the first grade until the middle of the coming summer.

M. Lester Carper—for Defendants—Cross



107a

A. We never have been able to do it before. I think it was 
done a couple of years ago, and all the trouble that was

—62—
created toward the end sort of indicated the wisdom of hold­
ing it until the very last, until you knew what your problem 
was.

Q. What is the significance of April 15th date in the 
plan then? The plan says you are going to assign pupils 
April 15th in accordance with school zones. A. We don’t 
know what the problem is. We don’t know how many pupils 
are going to transfer. This will give us some indication of 
the intensity, the size of the problem we will have to meet 
through zoning or some other procedure. If we wait until 
the middle of the summer to find out the wishes of the 
people, we wouldn’t be able to take care of the children the 
first of September, so as to give us time to look at the prob­
lem and its full impact upon us.

Q. This April 15th day is to find out how many Negroes 
want to go to white schools? A. That’s right.

Q. But you do not anticipate assigning all the pupils in 
the system in accordance with school zones on April 15th. 
A. No, we can’t. We want to see the size of our problem. 

Q. I see.

By the Court:

Q. How can you tell if you don’t know what the zones 
are going to be? How do you know whether a pupil will be

—6 3 -
entering a desegregated school if you haven’t zoned them? 
A. Well, we may first survey, Your Honor, to determine 
how many people would like to transfer from the school 
they are in and how many would want to go to integrated 
schools. I am saying that is a possibility. We would want

M. Lester Carper—for Defendants—Cross



108a

to know how many people. After all, I think we are follow­
ing pretty closely the principle we don’t want to force any­
body to do anything against his will, so I think the first step 
is to determine what the desires of the people are. Once 
we find that, then we can determine whether zoning will do 
it or whether we would have a system of application or 
what type of procedure we might set up.

Q. You are stuck with a system of zones here. A. Not 
so much. They are a starting point. You can look at the 
spot map of the children of the city and you will find we 
have them attending schools from all over the city. They 
are only a starting point. They are broken over because of 
the crowded situation, some at our request, some at the 
request of the parents.

By Mr. Nabrit (continuing):
Q. Now, when you mentioned this occasion and you men­

tioned Negro students moving into white schools and white 
pupils having to go out, I gather from all of this it is no 
intention of assigning white pupils who live in Negro school 
zones to that school, that is telling them, “You are assigned

—64—
to this school”, then, as a second step, advising them that 
they are permitted to transfer out under paragraph four? 
A. I didn’t say if we draw single zones that is exactly what 
we would do. I did say we are working under the assump­
tion that, we could not force somebody into an integrated 
school against his will, just as we would not be able to force 
somebody into a segregated school against his will. We 
don’t want to push people in either situation. The Court 
may decide otherwise. If it does, we will operate within 
the limits of the Court.

M. Lester Carper—for Defendants—Cross



109a

M. Lester Carper—for Defendants—Cross 

By the Court:

Q. Does that mean if one Negro child is assigned to a 
white school and all of the white children in there object, 
you will move them all out somewhere else? A. The plan 
says if they are in a minority, does it not?

Q. Exactly. Then if you keep the white children there, 
you are forcing them into an integrated school in which 
they are in racial majority. A. In that case I don’t believe 
so. After all, the parent is the sole guardian of the child. 
If he wanted to withdraw the child from the school,—

Q. Or send him to some other school, or he could take 
him out of school, if you don’t have the compulsory eduea-

—65—
tion law here. A. We have that.

Q. As you just said. A. I didn’t intend to leave that 
impression. We would work, of course, within whatever 
plan is established.

By Mr. Nahrit (continuing):
Q. I mean this determination not to assign white pupils 

living in Negro school zones to now Negro schools. That 
affects your overcrowded situation, doesn’t it? A. I said— 
We didn’t say we determined that. I said that is one of the 
problems involved in the situation and that up to the pres­
ent time we had not been thinking in terms of forcing them, 
or I haven’t. The School Board Committee set up the plan. 
I really have no part in that. I have been thinking in terms 
of administering the plan but I have no crystallized plan 
and will have none until we know the limits within which 
we have to work.

Q. Let us assume that you have a school zone with a 
majority of Negro pupils but a substantial number of



110a

white pupils living in it, and all of those white pupils apply 
under Paragraph four for transfers out and want to go to 
other predominantly all white schools, that affects your 
overcrowded problems in the white schools. A. Right.

Q. Is there any plan to give a preference or priority in 
this overcrowding business to Negroes living in the white

- 66-

school zone over whites living outside trying to come in? 
A. There are no plans at all at the moment. As I men­
tioned before, we need to see the nature of the problem 
before we make a plan. It would be foolish to make a plan, 
not knowing who is involved in it or what the problem is. 
We need to know how many people are involved. From the 
standpoint of administration, I need to know the wishes of 
those people. I can’t very well imagine a plan and impose 
it on people.

Q. Are the Negro elementary schools under-capacitied 
somewhat? A. Generally running fairly close to capacity. 
The one that is running more under capacity is Payne, 
which has a capacity of 1,080 and probably has 896 in it. 
Armstrong and Dearington are a little under capacitied. 
Yoder is under capacity. Hutcherson is slightly under.

Q. You have some white schools, I believe you said, under 
capacitied and some over capacitied? A. Yes; that’s right.

Q. Are there not situations whereby you might, by using 
this expedient you used before, that is transporting pupils, 
actually help you relieve the overcrowded conditions? A. 
It is p o s s ib le ,  assuming, of course, that white people will 
be willing to go into the Negro schools. Whenever the 
Negro child transfers out of the Negro school without being

—67—
replaced by somebody else, you are increasing your under 
loading in that particular school.

M. Lester Carper—for Defendants—Cross



111a

Q. Would an example of that be the case of the Hutcher­
son School being somewhat undercrowded? A. Well, that 
could be.

Q. And white people living in that area? A. That’s 
right, and children coming to that from White Rock and 
Marce Jones coming to Hutcherson, yes.

Q. You have Negro schools under capacitied and I am 
informed there are white people all around there. A. In 
that case the white schools are approximately at capacity 
I think.

Q. I said Hutcherson School is under capacitied. A. 
Slightly.

Q. I am informed there are white pupils living all around 
that neighborhood and they go to other schools. A. That’s 
right.

Q. In the past in your building program you have been 
constructing schools which are planned and designated as 
Negro schools and white schools. When the last four or 
five were built, it was determined they would be located to 
serve racial groups and given a given neighborhood? A. 
They were located to serve the need. They followed the 
usual patterns, the usual customs.

— 68—

Q. The size of the building would be planned in terms of 
the people expected to attend it in that area? A. Gen­
erally, yes.

Q. Now, have you, as Administrator, undertaken any 
planning of a new school, future school facilities, on the 
basis of desegregated system, planning them on terms of 
the total population of neighborhoods rather than Negro 
and white? A. We have been waiting throughout the year 
for the University of Virginia Report, which will be a

M. Lester Carper—for Defendants—Cross



112a

basic, fundamental report, from which we would extend 
our building program.

Q. Was there any request by you or local authorities that 
the University of Virginia Study Commission consider this 
problem of desegregating part of the building program! 
A. I think they are considering it in the light of present 
conditions. There have been no instructions. The Bureau of 
Population Research is under study. I think that the posi­
tion of the School Board, since they were experienced in 
this sort of thing, was to leave them completely free, with­
out influencing them one way or other, or the results would 
not be worth anything to us, if they were what we want to 
begin with. There have been no particular instructions. I 
don’t know what they are going to recommend.

Q. In planning Junior High Schools, for example, would 
it make a difference in terms of the size of the school and

- 6 9 -
location of the school whether or not you planned it as a 
desegregated school or white school! A. I  can say this. 
As far as the School Board Committee, they have not taken 
it into consideration at all. They looked at the total popu­
lation. The University will not locate the high schools; 
only indicate the need in lump sum figures. The specific 
planning will need to be done by the local school board.

Q. Now you have a substantially smaller Negro popula­
tion in the Seventh and Ninth Grades than white popula­
tion! A. Yes.

Q. So, it would make a difference, for example, whether 
you planned two schools of equal size, or one larger and 
one smaller. A. There are a number of other factors in the 
City of Lynchburg, and one is accessibility.

Q. I have no further questions.

M. Lester Carper—for Defendants—Cross

The witness stands aside.



113a

Herman Lee—for Defendants—Direct

—70—
The witness, H e r m a n  L e e , having first been duly sworn, 

on examination testified, as follows:

Direct Examination by Mr. Hobbs:
Q. Please state your name, age and occupation. A. Her­

man Lee, 38, General Supervisor, Lynchburg Public Schools.
Q. Mr. Lee, will you give your general background rela­

tive to education and training as a school supervisor? A. 
I received my Bachelor of Arts from Westminster In­
stitute; Master of Arts from Madison College; and taught 
nine years. I was Director of Guidance and Testing at 
Robert Lee School. One of my assigned duties as General 
Supervisor is the Director of Standardized Testing for the 
schools.

Q. Will you describe the testing program that takes 
place in the city relative to the education progress? A. We 
follow the State Testing Program which sets up a mental 
ability standardized test for the fourth grade, a reading- 
test at the seventh grade level, and an Aptitude Battery 
Series at the eighth grade level, and the Achievement and 
Collegeability at the ninth and eleventh grade levels. We 
follow that program, plus additional Readiness Tests for 
kindergarten and for first grade students who do not at­
tend kindergarten. All of our first graders don’t attend 
kindergarten. We have Achievement Tests in grades 1, 
2, and 3.

—71—
Q. Relative to the children in the ninth grade, have you 

compiled any statistical data relative to their educational 
progress in the white and colored schools in Lynchburg 
and relative to the national average and Virginia average? 
A. Yes, sir. It is better known as the Step Test given



114a

to the ninth grades, Form 2A. We have been furnished 
these by the Bureau of Testing Research and State Depart­
ment, Mr. Wingo’s office, as to the state norms or averages. 
I beg your pardon. It is the medians. We use the median 
here for the state, county and city, as to white and Negro. 
This was published every year. This report on the State 
Testing Program was published in all the newspapers in 
the state last year. This was public knowledge. What I 
have done is to compute our own figures for Glass and 
Dunbar and compared them on the basis of all of them.

Mr. Lawson: I would like to see a copy of this.
(A copy is handed to Mr. Lawson.)
The Witness: Mr. Carper has a copy. I wouldn’t 

attempt to give this from memory because I can’t.

Q. Will you give the results of the various tests in the 
ninth grade in the Negro and white schools?

Mr. Nabrit: This is irrelevant and immaterial.
—72—

The Court: I have been wondering about that 
myself.

Mr. Hobbs: It is relevant in the overall problem 
of integrating all of the school systems, if it is 
shown that there is a large differential in their edu­
cational progress. If we are going to interpret them 
at all levels, it is going to create considerable prob­
lems to the detriment of the educational system as a 
whole and to the individual child, both white and 
colored, and I therefore think it is pertinent.

Mr. Nabrit: Do you want to hear from me on that, 
Your Honor? May it please the Court, this type

Herman Lee—for Defendants—■Direct



115a

of presentation in school segregation cases, contrast­
ing achievement test scores for whites and Negroes, 
goes back to the Brown Case. The state of Virginia 
in that case made essentially the same argument, 
that you can’t desegregate a group because Negro 
pupils are of lower test scores than the white pupils 
as a group. This type of presentation was not ac­
cepted then by the Court as a basis for decision.

—73—
The Court: Certainly it is not a basis for continu­

ing segregation. It is perhaps receivable on the prob­
lems of a changeover from segregated to desegre­
gated basis. That is what I am wondering, whether 
this might not be relevant, and a reason for doing 
it a grade at a time instead of all at once.

Mr. Nabrit: What it does is to preserve the dis­
abilities of the Negro pupils. In other words, the 
presentation shows that the pupils start out much 
closer together than they end up after twelve years 
of school. If it continues over a longer period of 
time, desegregation may be easier but what does it 
do for the pupils 1

The Court: That is a different argument you are 
on now. That is a different argument against the 
plan.

Mr. Nabrit: I don’t know that I expressed it very 
clearly. What I was trying to say was that the 
longer you keep pupils in a situation where they 
are getting farther and farther behind, the worse 
off they get.

The Court: It may be that goes to the heart
—74—

of the one-grade-a-year plan but this evidence might

Herman Lee—for Defendants—Direct



116a

tend to show that you are going to have enough 
trouble in the first year, and maybe working just 
with the first year group you can prevent the sepa­
ration from coming about and at least tend to keep 
the group close together, and that will minimize 
your administrative problems as that group and 
other groups come along. You never will have prob­
lems of mixing diverse ages which you will if you 
desegregate all the grades at once.

My first thought was that I would rule the evi­
dence out. As I have been arguing with myself about 
it, I have come around to the view it ought to be 
admitted.

By Mr. Hobbs (continuing) :

Q. All right, go ahead, Mr. Lee. A. I want to say first 
the comparisons are by median score percentiles. A per­
centile is .0 scale of 1 to 99, showing the relationships. 
The median is the mid-point score of a group, a point 
at which the same number of scores are above as below 
the step. I only have the first four. Time was important. 
I do have math, science, social studies and reading. I con-

—75—
sider these the four most important. Time did not permit 
me to do it all. In math in the ninth grade achievement, 
considering the national norm at mid-point, the city white 
schools had a median of 61 percentile. This was Virginia 
city white schools. Virginia city Negro schools was at 20 
percentile. As to the Glass and Dunbar scores, Glass was 
at 64 percentile and Dunbar at 30 percentile. Let me recap 
that. Glass, compared with the city white medians, was at 
64 percentile as opposed to 61. Dunbar, as opposed to city 
Negro medians, was at 30, compared with the city Negro

Herman Lee—for Defendants—Direct



117a

median of 20. That is on math. In science the city white 
schools were 62 percentile, the city Negro schools, 18 per­
centile. Continuing on in science, comparing Glass now 
with the city white norrnes, the Glass percentile was 72 
and the city white norm 62. Dunbar norms were 29 com­
pared with the city Negro norms of 18. In social studies, 
the city white schools, 63 percentile; the city Negro schools, 
19 percentile. Comparing the two local schools again, Glass 
scored 68 percentile compared with white 63. Dunbar at 
31 percentile as to the city Negro percentile of 19. Reading, 
city white percentile, 62; city Negro percentile, 21. Com­
paring our local schools, Glass at 65 percentile, as com­
pared with the city white of 62; Dunbar at 39 percentile, 
compared with the city Negro of 21. Now these are com­
parisons of the ninth grade. I will start the preparation 
back at the first grade.

— 76—

Cross Examination by Mr. Nabrit:

Q. You say this does show a continuing thing, whereas 
at the first grade level there is little, if any, discernment of 
differential on the scores of achievement! A. Reading- 
readiness at the second grade spreads and is continuous 
through the ninth grade. I have the figures on this. There 
is a spread all the way through.

Q. I want to make sure I understand your last state­
ment. What you are indicating is that the disparity be­
tween the achievement of the Negro and white increases in 
higher grades! A. That’s right. These are groups, of 
course. I think we all understand there are exceptions. 
There are extremes at both ends that develop the median 
in the first place. These are group averages.

Q. Is a part of your duties as Supervisor, General Super­
visor for Public Schools, relating to guidance and tests! 
A. Correction, just testing.

Herman Lee—for Defendants—Cross



118a

Q. Just testing? A. Yes, sir. 1 was formerly in guidance. 
Perhaps that is where I misled you.

Q. Do any part of your duties relate to grouping pupils 
within the schools? A. Not at the present time. I did as

—7 7 -
Director of Guidance in junior high level or the eighth 
grade, but not now.

Q. All right. Do you know whether or not the pupils 
are still grouped by ability within the schools, ability 
achievement? A. I will have to say I can’t tell for sure. 
That is not a policy at the present time because when it 
was done at junior high level and I use that term advisedly 
because we still refer to Lee School as junior high, I did 
it there and it was classified more or loss as an esperiment. 
It had not been done in those schools. If there is a group­
ing, there is no conscious grouping. I think people tend 
to group themselves. They have areas of interest. There 
are no definite ability groupings when class rolls are set 
up, no, sir.

Q. What about within classes. At elementary level teach­
ers divide their classes in groups for the purpose of teach­
ing reading. A. It is basic and it is necessary sometimes. 
It varies from one room to the other.

Q. Within a 30-pupil elementary class at the early educa­
tional level would they follow the practice of dividing- 
classrooms of 30 children into groups that are slow in 
reading and fast in reading and things like that? A. I 
know what you are getting at. There is no pat answer. 
You have to teach them at their rate. There is a type of

- 7 8 -
rate at which they can go. I still say they sit at certain 
tables and the students don’t know they are grouped as 
such.

Herman Lee—for Defendants—Cross



119a

Q. The students don’t know? A. I would like to retract 
that. Students often know when they can do something 
quicker than the teachers know. They realize they are 
grouped. It is basic that they teach them where they are. 
It has to be some type of organization, otherwise you sim­
ply put in time. We all recognize that.

Q. I gather then from the absence of a program of 
ability grouping, the policy of ability grouping, that the 
administration or whoever determines this policy has 
viewed that as not being necessary except in connection 
with your one experiment. A. I think there’s been a text 
written on one side of the argument. It is no agreement 
among educators on the advantage or disadvantage of 
homogeneous grouping. There is a certain autonomy within 
each school. Each school has to have the privilege, the 
right of organizing the school the way they think they 
can best serve the needs of students.

Q. So, it is left to the principals and teachers? A. It 
has to be a certain autonomy within the schools, certainly.

Q. I think you said a moment ago many educational 
authorities argue against grouping of pupils homogeneously

— 7 9 —

but as for some people they think it is a good idea to have 
pupils with divergent abilities in a class. A. Yes, my 
opponents, very fine authorities, disagree very strongly 
with me on this.

Q. And your local School Board has taken no official 
position? A. No official position, that’s right.

Redirect Examination by Mr. Hobbs:
Q. Mr. Lee, does having a group of children of diverse 

ability at the ninth grade level increase the teachers prob­
lems? A. I think at the upper level it definitely does.

Herman Lee—for Defendants—Redirect



120a

We were speaking of the elementary level. It develops 
in the ninth grade that they beg;in to group themselves by 
their election of studies and they are in definite tracts at 
this point. You don’t call them tracts as such but whether 
they are preparing for college entrance or vocational or a 
commercial program, they tend to group themselves at that 
level.

Q. I gather that your opinion is that homogeneous group­
ing of ability was preferable. A. Let me make myself 
very clear. I believe insofar as the subject matter here is 
concerned that definitely students can make better progress 
when grouped together as to like abilities and at the same

- 80-

time with activities available for them in other things in 
which they participate in more heterogeneous grouping. 
In the junior high level we have the subject matter grouped 
homogeneously and in all the other activities, such as physi­
cal education and things of that nature where grades were 
not a concern and credits not a concern, they were grouped 
on a heterogeneous basis. That I believe you should carry 
through. You should not take one group and set up a group 
of eggheads. I don’t want to be put in that category. 
Students learn better grouped together and can learn at 
a similar time. This does not constitute endorsement by 
my boss. This is not a policy in the Lynchburg public 
schools. You asked my opinion at this point.

Q. With regard to this divergence between the Negro 
and white, is all that based on the result of a difference 
in the school system or are there other factors involved? 
A. This is a question which would be improper for me to 
answer, Mr. Hobbs. I don’t believe I am man enough to 
tackle that. It has been debated in many many publica­
tions.

Herman Lee—for Defendants—Redirect



121a

Recross Examination by Mr. Nabrit:
Q. Mr. Lee, at your secondary level where a pupil would 

take subjects and go from teacher to teacher and take 
different subjects, would they not! A. Yes, sir, that starts 
at the eighth grade level.

— 81—

Q- That starts at the eighth grade level? A. Yes, sir.
Q. Now, is it true that at that level there is also some 

intermixing of grade levels in the class! In other words, 
might we not have a science class with some tenth grade 
pupils and some eleventh grade pupils in it or something 
like that? A. Yes, I can see that happen. General science 
classes are primarily designed for it at the secondary level 
and for non-college pupils. Beyond the eighth grade for 
non-college preparation there are failures among those and 
of course it would be a duplication but very seldom more 
than one grade apart. It could be but it is very seldom. In 
other words, you may have the ninth or tenth grade or 
the tenth grade taking ninth grade science. You very sel­
dom have the eleventh grade. In the first place, the pupil 
wouldn’t be in it if you didn’t pass enough subjects to get 
to that level.

Q. Aren’t there some elective courses a pupil might 
choose at the tenth grade level that they might not try to 
choose until at the eleventh grade level? A. You wouldn’t 
put seniors with freshmen. You hold it as close together as 
possible. I can see two exceptions and that would be in fine 
arts such as music and art, where there would be a cross­
over but not in the academic area, no.

Herman Lee—for Defendants—Recross

The witness stands aside.



122a

—82—
The witness, D u n c a n  C. K e n n e d y , having first been duly 

sworn, on examination testified, as follows:

Direct Examination by Mr. Hobbs:

Q. For the record, will you state your name, age, oc­
cupation and position relative to the Lynchburg school sys­
tem? A. Duncan C. Kennedy, Jr., age 50, District Man­
ager, Appalachian Power Company, Lynchburg, presently 
Chairinan of the Lynchburg School Board.

Q. How long have you been Chairman of the School 
Board, Mr. Kennedy? A. Since spring of 1961.

Q. How long have you been a member? A. Approxi­
mately four and a half years.

Q. There has been some testimony here relative to the 
School Board employing the University of Virginia, or 
some segment of it, to make a survey of their schools. To 
clarify it, can you state when the School Board sought the 
assistance of the University and what the stage of it is 
now? A. Yes, sir. In the summer or early fall of 1960, 
the School Board entered into a contract with the Univer­
sity of Virginia to make an overall study which they expect 
to be completed within two years. The first year from 
September to June, September, 1960, to June, 1961, would 
be used mainly to collect factual information in Lynchburg 
about our school system and then beginning in the fall of

—83—
1961 they would send their staff in for conferences and 
their final recommendations would be available before July 
the 1st, 1962. We have had all through this last year dis­
cussions and preliminary reports from the University of 
Virginia and we are expecting the first written reports 
sometime this month and additional reports will come in

Duncan C. Kennedy—for Defendants—Direct



123a

from now until the end of the school year, when it will be 
completed.

Q. They have not given a final report. Have they given 
any indication of what their general recommendations will 
be in regard to additional schools? A. As Mr. Baldwin 
said, in a verbal report to us they indicated their final 
report will contain a provision that we should go to a 6-3-3 
system, and that they will recommend the building of two 
additional junior high schools in this city.

Q. Will you outline the procedure by which the school 
system acquires a new school building once the need is 
determined? A. Once the need is determined, we requst 
th City Manager to obtain the actual school location of 
land and he proceeds with the City Council to get the alloca­
tion of money and the city actually purchases the land for 
the school. Then the School Board, working with the ad­
ministration, determines the size of the school and we 
obtain permission from City Council to employ an architect. 
After that is done, we appear before Council for permis-

—84—
sion to take bids on the structure. Once the bids are in. 
we go before Council and get the allocation of funds to 
complete the school.

Q. And how long a period does it usually take or has your 
experience been, from the time the School Board deter­
mines they need a building until the time it is ready for 
occupancy? A. Roughly I would estimate it takes from 
two to three years from the inception to the completion of 
the building for occupancy.

Q. Now, Mr. Carper has testified about the crowded con­
dition in certain of the shcools in various areas of the city. 
If the University of Virginia group recommends the School 
Board accept the junior high principle, then it would be two

Duncan C. Kennedy-—for Defendants—Direct



124a

or three years before any relief could be acquired in the 
erection of a new building, is that what you are saying? 
A. Relief from the new buildings, I ’d say the earliest occu­
pancy would be in September of 1964, which would be two 
years from next September.

Q. Are you familiar with the various school construction 
projects that have been undertaken in the past few years? 
A. I am, yes, sir.

Q- Would you review for the Court, the projects and the 
amount of money that has been spent by the city on school 
buildings? A. I have a report that was prepared by the

- 8 5 -
city administration which lists some approximately fifteen 
school projects which have been completed since January, 
1950, which was a period of a little over eleven years. The 
total expenditures, capital expenditures for schools in that 
period, $9,353,000. It is an average of almost a million 
dollars a year spent in capital improvements since 1950. 
I can give that in detail if you wish.

Q. How many buildings have there been since 1950? 
A. There are sixteen different items on here. Some of the 
items, for instance, one that I recall, says remodeling 
Dunbar, Payne and Lee. These were three schools that 
were remodeled at one time.

Q. Now, Mr. Kennedy, with regard to the School Board’s 
plan that has been presented to the Court. M’r. Baldwin 
has reviewed in detail the facts leading up to this. Was this 
the action of the School Board as a whole, the adoption of 
this plan? A. Yes. It was with the approval of all the 
members of the School Board with the exception of one, 
Mr. Hutcherson, who dissented. I think the members of 
the School Board discussed individually and with members 
of Mr. Baldwin’s committee these facts so that they were

Duncan C. Kennedy—for Defendants—Direct



125a

kept apprised of the progress during the committee’s delib­
eration. The committee reports, both the majority and 
minority, were mailed to the members of the School Board

— 86-

prior to our February meeting and it was at the February 
meeting that the School Board approved the plan of the 
majority which had been presented to them. I would say 
that with that one exception every member of the School 
Board was in favor of this particular plan.

Q. Has the School Board over the past year discussed 
problems that might arise from integration? A. We have 
had very many discussions on that question.

Q. What is your personal view about the plan presented? 
A. I didn’t vote on the plan because normally the Chairman 
of the School Board does not vote except in case of ties. 
I have worked close enough with the committee and I 
endorse the plan. I think it is the best plan I know of that 
could be adopted at this time for the City of Lynchburg.

Q. Has the School Board any policy about how fast 
they might go with integration under the plan? A. They 
have not. I think the School Board approved the idea of 
having it flexible, as it is listed in the report, and it is 
not a grade-a-year plan necessarily. It is an experimental 
plan and based upon the experience that we gain in this 
next year on it, when the plan says we will desegregate 
the first grade, the Board will then determine, under the 
guidance of the Court, that what we do is acceptable in

- 8 7 -
working out the details of the plan as approved.

Q. All right. I have no further questions.

Duncan C. Kennedy—for Defendants—Direct



126a

Cross Examination by Mr. Lawson:
Q. Mr. Kennedy, I want to ask you a couple of questions 

for clarification. As I understand the facilities of the spe­
cial committee from the University of Virginia were re­
tained by contract of 1960, is that correct! A. That’s cor­
rect.

Q. Is it further correct that they verbally recommended 
to you the 6-3-3- system for the city of Lynchburg, that 
is six grades elementary, 3 junior high, and three years 
high school! A. As I understand from the meeting we had 
with them in January, it is my understanding that they 
would recommend that in their final report, yes, sir.

Q. Since getting that information and knowledge, what 
has the School Board done towards effecting such a system! 
A. That was sixty days ago. To my knowledge we have not 
done anything officially as a School Board.

Q. Has anybody done anything! A. Not that I know of.
Q. Not that you know of! You said it would take from

— 88-

two to three years from the inception of the proposed 
school to the completion of the building for occupancy, is 
that correct? A. That’s correct. Let me go back. You said 
we haven’t done anything.

Q. You said that. I didn’t say that. A. I realize I over­
looked something that I had done myself and other mem­
bers of the School Board have done. We have surveyed 
the city, individually, not the School Board, and we have 
certain locations in mind where these sites may be located.

Q. You already have several in mind? A. Yes, sir.
Q. Is one of them located in a predominantly Negro 

neighborhood and the other in a predominantly white 
neighborhood? A. The ones that I have seen are not 
necessarily so.

Duncan C. Kennedy—for Defendants—Cross



127a

Q. I don’t mean necessarily so. Yon are familiar with 
the school zones as set up now, are you not? A. I have 
four or five sites in mind. Some of them are in colored 
areas and some are in white areas.

Q. That answers my question. You have some of both 
in mind. You have spent close to $10,000,000 on the school 
program since 1950. How much have you spent since 1954?

—89—
A. Including 1954?

Q. No, since the Supreme Court decision of May the 17th, 
1954.

Dumcan C. Kennedy—for Defendants—Cross

The Court: What has that got to do with this? I 
see no use in going into recriminations about what 
has been done.

Mr. Lawson: The addition to Dunbar was made 
since 1954 and it perpetuates segregation.

The Court: What’s that got to do with it, what 
was done before the case was started? You’re con­
cerned with the plan here and not what they have 
done in the past.

Mr. Lawson: I will withdraw the question.

By Mr. Lawson (continuing):
Q. You mentioned about the meeting in which you all 

adopted this plan. Isn’t it true there were several Negro 
groups who appeared at the meeting and protested the 
plan? A. Yes, sir.

Q. Isn’t it further true that no plan whatsoever was 
ever proposed or anything else prior to the filing of the

—9 0 -
application by these four plaintiffs? A. In this Court?

Q. Yes, sir. A. It was no definite plan proposed.
# *  # # #



128a

M. Lester Carper—for Plaintiffs—Direct

—91-
(At 2 :00 o’clock Court was reconvened.) 

E vidence  I ntroduced  on  B e h a l f  of t h e  P l a in t if f s

The witness, M. L ester  Ca rper , having previously been 
sworn, on examination testified, as follows:

Direct Examination by Mr. Nabrit:

Q. Mr. Carper, I believe you have been previously sworn. 
Mr. Carper, does your school system operate kindergarten 
classes in most of the elementary schools? A. Kinder­
gartens are not in all of the elementary schools. They are 
not actually a part of the overall State Plan. Kinder­
gartens have been operated here for some time, and ap­
proximately 75% of the children who would be in the first 
grade next year attend kindergarten.

Q. Have you or has the Board taken any action with 
respect to desegregating kindergarten classes or made any 
recommendation? A. No.

Q. Has it been discussed in Board Meetings or anything? 
A. No.

Q. In the kindergarten program, is that a free public 
education program? A. Yes.

Q. How about summer schools? Do you have summer 
school programs? A. Yes, limited.

—92—
Q. Has there been any Board discussion of desegrega­

tion of the summer schools or plans about that? A. No. 
Plans for the coming summer have not been yet crystal­
lized at all.



129a

Q. My question is has it been any plan for desegregation 
for summer school programs? What levels are they? A. 
Mainly high school and in some few instances, elementary 
schools. That is very limited.

Q. Do you have any overcrowding problem in summer 
school? A. I could answer that one but I think the high 
school principals could answer it more accurately. I think 
not.

Q. Now, what about adult education programs? Do you 
have those? A. Adult Education Programs? Again that 
is a very limited program because we have several institu­
tions of higher learning in the community as well as the 
University of Virginia. The distinction is very limited.

Q. What do you teach, courses for adults in the evenings 
in high school? Is that the idea? A. To some people, yes.

Q. These also operate on a segregated basis ? A. On the 
basis of application. Courses are announced and persons 
apply for them. If there is a sufficient number of persons

—93—
applying for the course, it is offered; if not, it is not.

Q. Have you had any desegregation of these classes? 
A. No. I am not certain. I have been here only one year. 
I haven’t heard of any except in some of the extension 
classes and they have been desegregated.

Q. The extension classes? What are they, sir? A. Per­
sonal classes offered through the University of Virginia 
Extension for adults.

Q. This is not part of your Lynchburg City Program. 
A. In association with Lynchburg City, yes.

Q. You have adult education classes now attended pre­
dominantly by Negroes, solely by Negroes, at Dunbar and 
solely by whites at Class? A. Yes.

Q. Are there any courses offered at Glass not offered at 
Dunbar? A. Any course will be offered?

M. Lester Carper—for Plaintiffs—Direct



130 a

Q. At present. A. I don’t know what is being offered in 
either one.

Q. Now, sir, would you briefly describe the Distributive 
Education Program to the Court ? A. Distributive Educa­
tion is a program in retail selling, those persons in the

—9 4 -
last two years of high school who possibly will go into a 
job out of high school, into retail selling, into the stores 
and other places where you deal with people. It is part- 
time work in school and in courses on the job under super­
vision.

Q. These pupils go to school less than a regular day? 
A. Yes, sir.

Q. And what do they have, school supervised work with 
business organizations ? A. Right. It is cooperative super­
vision program. The employer, as well as the teacher from 
the school.

Q. Am I correct in understanding this program has not 
been available for Negro students in the city? A. Right.

Q. Have there been any plans to make it available? A. 
It has been some discussion of it. They are dependent upon 
the individuals securing employment in retail sales. If he 
can not receive employment, then the course would not be 
available to him.

Q. Are there certain employers that you deal with year 
after year ? A. Yes.

—95—
Q. There are? A. Yes.
Q. So the school system is in the position to assist pupils 

in finding employment. A. Oh, yes, the director of the 
program will assist people for placement.

Q. Now, I understood the City School System is engaged 
in co-sponsorship cooperating with a National Spelling Bee

M. Lester Carper—for Plaintiffs—Direct



131a

Contest, available only for white people. Is that correct? 
A. Yes.

Q. And this Spelling Bee has contests operated by it, 
that is the tests are administered by the teachers to the 
pupils at schools, and during regular school hours. A. It 
is sponsored by the Lynchburg News. The schools partic­
ipate by invitation and selections are made from the reg­
ular students in the school, yes.

Q. Are the tests administered by the school teachers who 
work on this and do it during regular school hours? A. 
They have spelling bees.

Q. At the schools ? A. Yes, sir.
Q. Well, the participation of the newspaper is to furnish 

the rules and prizes, etc.? A. Well, the newspaper is 
sponsor of the contest. They invite the participation of

- 9 6 -
schools and they invite the white schools only, or did when 
the program was instituted, in I can’t remember whether it 
was 1938 or 1948, some few years ago.

Q. And I understand during recent months some individ­
uals or groups representing Negroes have made request to 
the School Board that Negroes be allowed to participate in 
this program; that the only action the Board has taken 
thus far is to say it will study the matter. A. The Board 
has authorized the Chairman to name a committee to study 
all activities within the schools that have outside connec­
tion in any way whatsoever, the purpose of that being for 
evaluation of all activities that might have some sort of 
relationship just such as this to the school program.

Q. Well, now, has that committee—When was that com­
mittee appointed? Was it during February? A. That com­
mittee was just authorized at one of the February School 
Board Meetings, I believe.

M. Lester Carper—for Plaintiffs—Direct



132a

Q. Has there been any report on that? A. No.
Q. Has this—Has there been any desegregation? A. 

No, pending the study by the committee.
Q. Has it been any action taken on it? A. No, pending 

study by the committee.
Q. As part of your regular school program at the schools

—9 7 -
do you have extra curricular activities entirely operated by 
the schools, such as science clubs, language clubs, bands, 
sports events, things like that? A. Those things are spon­
sored individually by schools.

Q. Has there been any statement of the School Board 
Policy or action taken, study made, on this with relation 
to desegregation problem? A. Not to my knowledge, no.

Q. Do you have any general authority, as Chief Adminis­
trator of the School System, to desegregate these activities 
or allow pupils to participate in them? A. Not as an 
individual, without a School Board Policy on the matter.

Q. Now, with regard to the testing program and the 
manner of homogeneous grouping, first let me direct your 
attention to that subject and ask you whether or not it 
isn’t true in the white schools throughout the city you have 
a fairly broad range of abilities in achievement levels in 
the schools? A. The range will vary. As you go through 
school generally, the range will be greater in the primary 
grades than at high school, where the range gradually nar­
rows down in each of the schools as you move through the 
school. I am not saying that is desirable at all. I have a 
feeling they should be the other way but it isn’t. That is 
what happens from the high score to the low score within 
a group.

Q. Within a classroom? A. Yes.

M. Lester Carper—for Plaintiffs—Direct

—98—



133a

Q. But within a school, at high school level, you would 
still have pupils with low achievement? A. Yes, you have 
a range in the low, yes.

Q. Comparing the pupils in the Negro and white schools, 
you have a large area of overlap of abilities, do you not ? 
A. You will have areas of overlap but if you want to use 
some concrete figures that might be illustrative. Let’s say 
your range of scores within this white group is from 40 to 
75 and then the range in the Negro group might well be 25 
to 55. Now, put the two groups together and naturally you 
have extended the range of abilities of the individuals within 
that group that is combined.

Q. That, I take it, is a hypothetical case. A. Well, it is 
not hypothetical in the sense that I know it exists. I ’d have 
to go to the records to pick the cases. It does exist.

Q. Won’t you have examples in Negro schools having 
scores as high or higher than anyone in the white schools, 
and pupils in the white schools being low or lower? A. If 
you superimpose the curves, one on the other.

Q. Individual cases. A. Let me explain the curve is 
built upon the number of samples. In your case it is what 
you call normal probability curve. In a few instances up to 
your high scores, the medians falling in the middle super-

—99—
impose one upon the other ■ the tail end of it going up into 
the upper quarter of the white. However, your bulge, which 
is the median, will be some few intervals below the bulge of 
the white. Then you will have a number of individuals in 
the neighborhood of falling far below the bottom of the 
curve for the whites, which has this effect of increasing the 
range of the abilities of the people within the group when 
the two are combined.

M. Lester Carper—for Plaintiffs—Direct



134a

Q. Now, if these two groups were both put within a 
single school, you would have to divide them into classes 
in any event. A. Well, yes. I am glad you raised that 
question. You would in all probability be forced into a 
type of ability grouping, if the ranges become too great 
for the individuals to work effectively in the same group, 
and if you should do that, after combining let’s say the 
Seventh Grade and Sixth Grade youngsters, where you 
have increased the range, if you divide them into two 
groups, split them in the middle even, one group will be 
predominantly Negro and the other group predominantly 
white, if you do it homogeneously.

Q. It might be two sections of English Class in the same 
school? A. Yes.

Q. Now, at your secondary level, E. C. Glass is about 
three times the size of Dunbar more or less? A. Yes.

— 100—

Q. What, in your basic high school subjects, are your 
class sizes? Would they run thirty, thirty-five, something 
like that? A. We predicate those—We presented those 
at an earlier hearing. The average size of a class will go 
within the range of 29, 30, 31, something like that. At 
Dunbar the class would be 17 to 22 or 23. Your pupil- 
teacher ratio at Glass is approaching thirty, in general 
classes, whereas at Dunbar it is more nearly approaching 
twenty.

Q. At Glass, with subjects such as English, Math, History, 
at the Tenth Grade level you’d have a good number of Eng­
lish classes and a good number of the other classes? A. 
Yes.

Q. You would have smaller numbers or members of 
classes at Dunbar because you have less students. A. 
Smaller numbers of classes and smaller classes.

M. Lester Carper—for Plaintiffs—Direct



135a

Q. Now, you mentioned a moment ago there was less at 
the higher levels, less spread between pupils. Is this a 
policy matter? A. No.

Q. To group them by ability or is it accidentally, or what? 
A. Two or three things affect it. One of these is dropout 
picture. Those at the lower end begin to drop out, Another

— 101—

is the result of mass teaching in education, teaching in 
the mass rather than individuals. When you teach in the 
mass, there is a tendency to draw the two extremes together, 
so it is the result of a teaching process forced upon us by 
numbers.

Q. So, you think over a number of years the pupils are 
exposed to the same type of teaching and they tend to 
achieve it at lower or closer levels, subjected to the same 
influences? A. Under normal conditions the faster stu­
dent doesn’t achieve as much but the teaching in mass is 
directed more to the average than to either extreme.

# # *  *  #

M. Lester Carper—for Plaintiffs—Direct



(Dated: April 10,1962) 

(Filed: April 11,1962)

Opinion

Pursuant to opinion filed in this cause on January 15, 
1962 and order entered thereon on January 24, 1962, the 
defendant School Board filed herein on February 24, 1962 
a plan for the desegregation of the Lynchburg schools in 
accordance with the order aforesaid. The plaintiffs filed 
objections to the plan and the court heard evidence in 
support thereof and argument of the plaintiffs and defen­
dants with respect thereto on March 15, 1962 at which 
time the defendants filed a formal motion for the approval 
of the plan.

The principal objections related to two features of the 
plan and there were other objections to other features and 
to the failure of the plan to cover certain other matters.

The two principal objections were, first, to the provision 
of the plan that “Commencing September 1, 1962, all classes 
in Grade One shall operate on a desegregated basis, and 
each September thereafter at least one additional grade 
shall be desegregated until all grades have been desegre­
gated” and to the following provision: “Each pupil whose 
race is minority in his school or class may transfer on 
request.”

These two important objections to the plan will first be 
taken up and then the other objections.



137a

I. Desegregation of at Least One Grade a Year.
It should be noted to begin with that the plan is not 

strictly a grade-a-year plan inasmuch as it provides for the 
desegregation of uat least one additional grade a year.” 
Members of the School Board testified to their reasons for 
being unable to commit themselves to a speedier rate of 
desegregation in the earlier years, at the same time ex­
pressing their belief that greater progress would be made 
after certain immediate obstructions to general desegre­
gation were overcome.

Mr. Carper, the Superintendent of Schools, testified that 
the capacity of the white elementary schools at present is 
6,005 and that there are 6,061 children in those schools. 
In the white high school the capacity is 2,550 and the enroll­
ment 2,901. On the other hand the Negro schools are not 
quite full.

Mr. Carper also testified:
“The problem of buildings is further intensified by 

the fact that many of the buildings are not located 
where the people live. People are moving away from 
the central section of town, for instance, to the out­
skirts. The buildings in the center of the town are 
not running at capacity and those on the outside are 
overcapacited. That condition is a progressing con­
dition.”

Bealizing that additional capacity would be necessary in 
the near future the School Board some time ago employed 
the University of Virginia Department of Education to 
make a survey and recommendations with respect to the 
Lynchburg schools. The final report of this survey had not 
been received at the time of the hearing but the survey 
was sufficiently far advanced for the Education Depart­

Opinion Dated A p r il 10, 1962



138a

ment of the University to have advised the Lynchburg 
School Board that they had definitely determined to advise 
the Lynchburg School Board to adopt what is known as a 
6-3-3 plan throughout the city. This would mean 6 years 
of elementary school in one set of buildings, 3 years of 
junior high school in another set of buildings and 3 years 
of regular high school in a third set of buildings. To put 
this plan into effect would require the building of several 
new buildings to be used as junior high schools. The School 
Board has already begun to look for sites for these new 
buildings. When these new buildings have been made avail­
able the problems of space will have been solved, for the 
time being at least, and the Board and the Superintendent 
feel that more rapid progress could then be made toward 
desegregation than is now practicable. But there was testi­
mony that several years always elapse between the time 
that a decision to build a new school is made and the time 
when it is ready for occupancy. For this reason the Board 
does not feel that it can commit itself to more than a 
grade-a-year of desegregation at this time but expects to 
be in a position to do so within several years.

The good faith of the Board cannot be questioned. Before 
this suit was instituted the -School Board had already 
appointed its own committee on desegregation which had 
studied desegregation plans adopted elsewhere and had 
made good progress towards working out a plan which 
would probably have been put into effect this September 
even if there had been no litigation. As far as I am ad­
vised Lynchburg is the only community in the state of 
Virginia or, perhaps, in the entire territory of the Old 
Confederate States that has voluntarily undertaken to plan 
for desegregation, all of the others having awaited the 
start of litigation against them before taking any steps of 
their own.

Opinion Dated April 10, 1962



139a

And that the Lynchburg Board is still cooperating is 
shown by their failure to appeal the order of January 24th 
requiring them to file a plan of desegregation within 30 
days. Most segregation orders are appealed by the local 
board as a matter of course and no one could have felt 
that an appeal in this case would have been frivolous as 
there was a serious question as to the right of the court 
to order the Board to file a plan in view of the cases in 
this Circuit arising from North Carolina mentioned in the 
opinion of January 15, 1962 which seem to require the 
exhaustion of legal remedies through the Pupil Placement 
Board by each child who might wish to go to an integrated 
school.

Though, as indicated above, the Lynchburg plan is not 
strictly speaking a grade-a-year plan there is ample au­
thority for approving a grade-a-year plan. The leading 
case on the subject is perhaps Kelley v. Board of Education 
of the City of Nashville, etc,., 270 F. 2d 209 (cert. den. 361 
U. S. 924—though the denial noted that the Chief Justice 
and Justices Douglas and Brennan would grant certiorari 
limited to the question of the constitutionality of the pro­
vision that “explicitly recognized race as an absolute 
ground for the transfer of students between schools”). 
Other cases in which similar year-by-year plans have been 
upheld are Bush v. Orleans Parish School Board, 242 F. 2d 
156; Goss v. Board of Education of Knoxville, 186 F. Supp. 
559; and Ross v. President, etc., relating to Houston, Texas, 
referred to in Evans v. Ennis, 281 F. 2d 385, as having been 
decided on August 4, 1960 without an opinion.

Evans v. Ennis, supra, is the only case which I have found 
which disapproved a grade-a-year plan. That case, decided 
by a divided court with Judge Goodrich dissenting, in­
volved the integration of the entire school system of the 
State of Delaware.

Opinion Dated April 10, 1962



140a

The opinion disapproved a grade-a-year plan largely 
because of the small number of Negro children it felt would 
take advantage of the opportunity to attend integrated 
schools so that the absorption of all of them at once would 
present no difficulty, but it also stressed other factors 
which differentiated the situation in Delaware from that 
in Nashville where the grade-a-year plan had been ap­
proved in the Kelley case. In fact it can hardly be said 
that the majority of the court in the Evans case took the 
view that the Kelley case had been erroneously decided. 
On the contrary they carefully distinguished the situation 
in Nashville from that in Delaware, saying at p. 393:

“. . . Fifth, the circumstances of Kelley v. Board of 
Education of Nashville, supra, are not analogous to 
those at bar. The number of Negro children involved 
in the Nashville schools was substantially larger than 
the number with which we are concerned in the cases 
at bar. Nashville is a city of approximately 173,000 
persons, of whom more than 28% are classified as 
Negroes. Many of the School Districts and High 
School areas of Delaware with which we are con­
cerned are in rural or semi-rural areas and the number 
of presently segregated Negro school children involved 
in the whole of Delaware is much less than the number 
involved at Nashville. Integration problems are more 
difficult of solution in heavily populated urban areas. 
Moreover the City of Nashville lies in the deep South, 
a part of our Nation where emotional reactions con­
cerning school integration are more intense than in our 
own State of Delaware. We think that the Court of 
Appeals for the Sixth Circuit had this fact in mind 
when it formulated its decision in the Nashville 
case . . .”

Opinion Dated April 10, 1962



141a

While probably no two integration problems are ever 
exactly alike the situation in Lynchburg is certainly much 
more comparable to that in Nashville than to that in the 
State of Delaware. The percentage of Negroes among the 
school children in Lynchburg is approximately 25% as 
against 28% in Nashville. The percentage of Negro chil­
dren in the Delaware schools is nowhere stated in the 
opinion but the total number of Negro children is stated 
to have been only 6,813. The state had a population of 
446,292 by the 1960 census while Lynchburg had then a 
population of 54,415. The total number of school children 
in Lynchburg is 11,920 or approximately 22% of its total 
population. If the percentage of school children to total 
population in Delaware is approximately the same as in 
Lynchburg there would be approximately 98,000 school 
children in Delaware of whom the 6,813 Negro pupils would 
amount to slightly less than 7%—as compared with 25% 
in Lynchburg.

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

Some of the difficulties in adjustment that this situation 
brings about were mentioned in the testimony of the Super­
intendent of Schools quoted in the Kelley case at p. 217 :

“. . . There are a lot of adjustments to be made on the 
part of the Negro children (it’s something they’re not 
accustomed to), on the part of the white children (it’s 
something they’re not accustomed to), on the part of

Opinion Dated April 10, 1962



142a

the parents, and on the part of teachers. It’s some­
thing none of us are accustomed to. It involves more 
difficulty in adjustment than someone just looking on 
from the sidelines would recognize or realize, and I 
firmly believe that this adjustment can be made with 
less friction, it can be made with less disadvantage to 
everybody concerned, it can be made with less diffi­
culty, psychologically, educationally, socially, and 
otherwise if it is done slowly . . .”

And Mr. Carper, the Lynchburg Superintendent of 
Schools, testified in this case as follows:

“Of course, the pupil is the person most involved 
and most concerned, and the pupil is my greatest con­
cern. Any adjustment for a child from one educational 
situation into another one creates problems, of course, 
and requires attention. If you have a large number of 
children requiring special attention, the time available 
is going to be divided between all of those children in 
a much smaller proportion than it would be if it were a 
smaller number of children. I think also as we work 
out problems, we gain experience; we learn how to 
handle things in a routine fashion rather than create 
a way of handling them.”

I believe therefore that while Evans v. Ennis, supra, 
might be considered as properly decided under the situa­
tion existing in Delaware the situation existing in Lynch­
burg is substantially different, as it was in Nashville, New 
Orleans and other places in the South, and justifies a 
different result.

Opinion Bated April 10, 1962



143a

Opinion Dated April 10, 1962

II. The Right to Transfer.
Kelley v. Board, supra, is again authority on this point. 

The Nashville plan included a transfer system allowing 
the transfer of white and Negro students who would other­
wise be required to attend schools previously serving only 
members of the other race and allowing the transfer of 
any student from a school where the majority of the stu­
dents were of a different race. The court in the Kelley 
case quoted from the well-known opinion of Judge Parker 
in Briggs v. Elliott, 132 F. Supp. 776, which is quite perti­
nent on this point. In that case Judge Parker said at p. 777:

“Having said this, it is important that we point out 
exactly what the Supreme Court has decided and what 
it has not decided in this case. It has not decided that 
the federal courts are to take over or regulate the 
public schools of the states. It has not decided that the 
states must mix persons of different races in the 
schools or must require them to attend schools or 
must deprive them of the right of ehoosing the schools 
they attend. What it has decided, and all that it has 
decided, is that a state may not deny to any person on 
account of race the right to attend any school that it 
maintains. This, under the decision of the Supreme 
Court, the state may not do directly or indirectly; but 
if the schools which it maintains are open to children 
of all races, no violation of the Constitution is involved 
even though the children of different races voluntarily 
attend different schools, as they attend different 
churches. Nothing in the Constitution or in the deci­
sion of the Supreme Court takes away from the people 
freedom to choose the schools they attend. The Con­
stitution, in other words, does not require integration. 
It merely forbids discrimination. It does not forbid



144a

sucli segregation as occurs as the result of voluntary 
action. It merely forbids the use of governmental 
power to enforce segregation. The Fourteenth Amend­
ment is a limitation upon the exercise of power by the 
state or state agencies, not a limitation upon the free­
dom of individuals.

On the other hand it must be admitted that in Boson v. 
Rippy, 285 F. 2d 43, the Court of Appeals for the Fifth 
Circuit came to the opposite conclusion, deeming a similar 
transfer provision to constitute a classification according 
to race saying at p. 48:

“Nevertheless, with deference to the views of the 
Sixth Circuit, it seems to us that classification accord­
ing to race for purposes of transfer is hardly less 
unconstitutional than such classification for purposes 
of original assignment to a public school.”

However, the court in the Boson case also held the trans­
fer provision invalid as in diminution of the powers of the 
local school board in violation of certain Texas statutes, 
so that the expressed disapproval of the transfer provision 
as a violation of the United States Constitution can be 
regarded as merely dictum.

And as I noted in my original opinion in this case, Judge 
Paul, in his most recent, and as yet unreported, opinion 
in the Charlottesville school case, Allen v. School Board, 
upheld the Board’s practice of transferring upon request 
both white and Negro pupils whose initial assignments, 
based upon home locations, placed them in schools in which 
they would have been in a racial minority. The fact that 
such transfers would, as a matter of right, be made upon 
request was not stated in the Charlottesville plan but the

Opinion Dated A p r il  10, 1962



145a

consistent practice was freely admitted in the hearing and 
the failure to state the practice in black and white could 
hardly make constitutional action which would be uncon­
stitutional if stated.

The plaintiffs here in attacking the transfer provision 
rely upon the New Rochelle, N. Y., school case, Taylor v. 
Board of Education, 294 F. 2d 36. In this ease the city of 
New Rochelle was divided into various school districts 
surrounding each school and the children were all required 
to attend the school in the district in which they lived, no 
transfers being permitted. The school in the zone in which 
the plaintiffs lived was 94% Negro and 6% white. The 
plaintiffs contended that this made it a “segregated” school 
and insisted that they should be allowed to transfer to 
predominantly white schools in other school zones. And 
the District and Circuit courts, with strong dissent in each 
case, upheld the plaintiffs’ position and ordered the Board 
to permit transfers.

There was, indeed, some testimony in the New Rochelle 
case that the School Board, by drawing the zone boundaries 
as it had, had deliberately brought about this condition 
back in 1930 and 1949. And apparently the case would not 
have been decided by the courts as it was had they not 
believed this testimony.

Nevertheless, the opinion in the case seems to me to 
disregard completely the statement of Judge Parker above 
quoted and in effect to hold that there is an obligation under 
the Constitution to provide every colored child with an 
opportunity to go to a predominantly white school, the 
District Court opinion (191 F. Supp. 181), saying with 
reference to the Brown case, at page 192:

. . The Court further emphasized the necessity of 
giving these minority-group children the opportunity

Opinion D ated April 10, 1962



146a

for extensive contact with other children at an early 
stage in their educational experience, finding such con­
tact to be indispensable if children of all races and 
creeds were to become inculcated with a meaningful 
understanding of the essentials of our democratic way 
of life. That the benefits inherent in an integrated 
education are essential to the proper development of 
all children has been reiterated time and again by the 
many witnesses in the present case, including those 
called by the defendant.” (Emphasis supplied.)

And again at p. 193:
“. . . Necessarily implied in its proscription of segrega­
tion was the positive obligation of eliminating it . .

And in a later opinion of the District Court (195 F. Supj). 
231, 235) the court said:

“Therefore, I find that at this time the device of 
permissive transfers will afford the Negro children in 
the Lincoln district their constitutional rights . . . ”

This theory upon which the New Rochelle case was de­
cided is, of course, contrary to Briggs v. Elliott, supra, 
and all the other decisions in the field. And it is interesting 
to note that reliance upon this case approving a provision 
for mandatory transfers upon request of Negro pupils out 
of the zone of their residence is being used in this case in 
opposition to a provision for mandatory transfers upon 
request of white children out of their zones of residence.

There is another factor which should tend to the ap­
proval of the transfer provision in this case unless it is 
clearly unconstitutional. If the transfer provision is not 
approved some white children will be compelled to go to

Opinion Dated April 10, 1962



147a

predominantly colored schools if they are to go to public 
school at all. Given the temper of the times in the South, 
it seems most unlikely that this would occur in any sub­
stantial number of cases, if at all. One of three things 
would happen to the white children so affected: (1) Their 
parents would find the money, with the help of the tuition 
grants provided under Chapter 7.3 of Title 22 of the Code 
of Virginia, to send the children to private schools; (2) the 
children would remain without education since the compul­
sory education laws, formerly §§22.251 to 22.275 of the 
Virginia Code, were repealed by the General Assembly in 
the Extra Session of 1959; or (3) the family, possibly at 
some financial sacrifice, would move out of the predomi­
nantly colored school zone to a predominantly or exclu­
sively white zone. None of these alternatives would help 
towards the more complete integration which the plaintiffs 
apparently desire. And certainly they could only harm 
the cause of race relations in the South.

Of course these last considerations do not bear on the 
constitutionality of the transfer clause but they do bear 
upon its wisdom, if it is found to be constitutional. And if 
Judge Parker’s statement in Briggs v. Elliott, supra, is 
good law the transfer clause is clearly constitutional and 
hence, for the reasons above stated, should be retained in 
the Lynchburg plan.

III. Other Objections.
There are a number of other objections raised by the 

plaintiffs to the plan which may be more summarily dis­
posed of.

(1) It is objected that pupils in the upper grades will 
never obtain a desegregated education but this of course is 
true of any plan of gradual desegregation.

Opinion Dated April 10, 1962



148a

(2) Objection is made to a sentence in paragraph 2 of 
the plan as follows:

“One or more school buildings may be reserved in the 
discretion of the Superintendent, to provide facilities 
within which to place pupils who are granted trans­
fers.”

The objection made to this was that the defendants seek 
thereby to maintain certain all-white or all-Negro schools. 
It is possible that the provision could be used for this 
purpose but it is also obvious that it might well facilitate 
the general operation of the plan. The court fully intends 
to keep this case on the docket for some years and if this 
provision is improperly used there will be time enough for 
the plaintiffs to object at that time.

(3) The fifth objection of the plaintiffs is to the fact 
that the school attendance areas are not set forth in the 
plan and that until they are it is not possible to determine 
whether any desegregation would be accomplished. Again 
objection on this point can be made when the areas are 
established by the Superintendent.

(4) The sixth objection is that certain details with re­
spect to assignments, deadlines, etc., are not spelled out. 
These details also can be contested at the proper time when 
they have been worked out if in fact they should operate 
to the prejudice of the plaintiffs.

(5) Objection number eight is based on the fear that 
transfers will be used improperly. Again it will be time 
to complain of that if it happens.

(6) Objection number nine is that the plan does not 
provide for assignment of teachers and staff on a non- 
racial basis. This matter is not mentioned in the bill of

Opinion Dated April 10, 1962



149a

complaint and therefore cannot be raised at this time in 
this suit.

(7) Objections ten and eleven likewise relate in the main 
to matters not covered by the bill of complaint such as 
special classes for handicapped or gifted children, adult 
education classes, vocational education, commercial educa­
tion, etc.

(8) Objection number twelve is to the failure of the plan 
to make provision for the transfer to non-segregated 
schools of pupils in segregated schools who desire to take 
certain courses which are not given in the segregated 
schools. The provisions of paragraph 5 of the plan, to 
which the plaintiffs object on the ground that they are too 
broad, are in fact broad enough to provide for such trans­
fers and thus cover this objection of the plaintiffs.

(9) Objection number thirteen is to the effect that the 
plan does not provide a method for notifying parents and 
children of their rights under the plan and the steps that 
they must take to take advantage of them. Needless to say 
these details need not be put in a general plan.

(10) Finally objection number fourteen is a catch-all to 
the effect that the plan is inadequate and not in accordance 
with the requirements of the Constitution. But I think it is.

I have therefore approved the plan and an order will be 
entered accordingly.

Opinion Dated April 10, 1962

T hom as  J .  M ic h ie  
U. S. District Judge.



150a

Order

(Dated: April 18,1962)
(Filed: April 20,1962)

Pursuant to opinion filed by the court on January 15 
1962 and order thereon entered January 24 1962 the defen­
dant, the School Board of the City of Lynchburg, filed a 
plan of desegregation on February 24 1962 (the Clerk’s 
Office in Lynchburg having been closed on February 23rd 
due to the illness of the deputy clerk and the time for filing- 
having therefore been extended by the court) and filed a 
formal motion for the approval thereof on March 15 1962. 
The plaintiffs filed objections to that plan on March 12 
1962 and the court heard argument on the motion and the 
objections on March 15 1962. At the conclusion of that 
hearing the court suggested certain minor verbal clarifica­
tions in the plan and stated that it would approve the 
plan. An opinion to that effect was filed April 10 1962. 
On April 11 1962 the School Board officially modified the 
plan in accordance with the court’s suggestions made at 
the hearing on March 15 1962. Therefore at this time the 
court doth Adjudge, Order and Decree:

(1) That the plan as submitted, as modified as aforesaid, 
be and it is hereby approved and the defendant School 
Board shall put said plan into effect and said School Board 
of the City of Lynchburg and M. L. Carper, Superintendent 
of the Schools of the City of Lynchburg, their agents, em­
ployees and successors in office and all persons acting in 
concert with them, be and they hereby are restrained and 
enjoined in carrying out said plan as so modified from any 
action that regulates or affects on the basis of race or color 
the admission, enrollment or education of the infant plain-



151a

Order of April 18, 1962

tiffs heretofore ordered admitted to E. C. Glass High 
School and any other Negro children to the schools operated 
by the defendants in the City except in accordance with said 
plan and that the defendant receive and consider the ap­
plications of such persons for admission to such schools in 
accordance with the provisions of said plan as so modified 
without regard to race or color except as aforesaid, it being 
distinctly understood and hereby further ordered that the 
adoption and approval of such plan shall not affect the 
rights of Owen Calvin Cardwell and Linda Darnell Wood­
ruff to remain in E. C. Glass High School and that their 
right to remain there shall in all respects be the same as 
the rights of the white children enrolled in said school, 
despite the fact that the plan aforesaid does not provide 
for integration at the high school level at this time.

The deputy clerk of this court at Lynchburg will transmit 
a certified copy of this order to all counsel of record.

E n t e r  :

T hom as  J. M ic h ie  
U. 8. District Judge.

A T r u e  C o py , T e s t e :

L e ig h  B. H a n es , J r., Clerk
By: O tw ay  P ettic r ew  

Deputy Clerk



152a

Notice of Appeal
(Filed: May 5,1962)

Notice is hereby given that Cecelia Jackson, an infant 
by George F. Jackson, her father and next friend; Linda 
Woodruff, an infant by Edward M. Barksdale and Georgia
W. Barksdale, her stepfather and mother and next friends; 
Owen C. Cardwell, Jr., an infant by Owen C. Cardwell, his 
father and next friend, and Brenda E. Hughes, an infant 
by Mabel Hughes, her mother and next friend, plaintiffs in 
this cause, hereby appeal to the United States Court of 
Appeals for the Fourth Circuit from the Order approving 
the defendants’ plan of desegregation (and thereby deny- 
ing part of the injunctive relief prayed by plaintiffs), en­
tered in this cause on April 18, 1962.

R e u b e n  E. L aw son  
Lawson Building 
19 Gilmer Avenue, N. W. 
Roanoke 17, Virginia

Attorney for Plaintiffs

J am es M. N a bbit , III 
10 Columbus Circle 
New York 19, New York

Of Counsel