Jackson v. City of Lynchburg, VA School Board Brief and Appendix for Appellees

    I N  T H E

UNITED STATES COURT OF APPEALS
FO R T H E  FO U R T H  CIR C U IT

No. 8722
C E C EL IA  JACKSON, an infant, 
et als,

A ppella n ts
v .

T H E  SCHOOL BOARD OF T H E  CITY 
OF LYNCH BURG, V IR G IN IA , et al,

A ppellees

A P P E A L  FROM  T H E  U N IT E D  STATES 
D IST R IC T  COURT FO R T H E  W E ST E R N  
D IS T R IC T  OF V IR G IN IA , LY N CH BU RG  

D IV ISIO N

B R IE F  AND A P P E N D IX  FO R A P P E L L E E S  
T H E  SCHOOL BOARD OF T H E  CITY  OF 

LYNCHBURG, V IR G IN IA  AND 
M. L. CARPER, S U P E R IN T E N D E N T  OF 

SCHOOLS OF T H E  C ITY  OF 
LYNCHBURG, V IR G IN IA

S. B o lling  H obbs C. S h epa r d  N o w l in
Caskie, Frost, Davidson & W atts City Attorney 
925 Church Street City Hall
Lynchburg, Virginia Lynchburg, Virginia

Attorneys for the Appellees 
The School Board of the City of 
Lynchburg, Virginia, and 
M. L. Carper, Superintendent of 
Schools for the City of Lynchburg



1

IN D E X

P age

Statement of C ase_______________________________ 2

Question Involved_______________________________ 2

Statement of F a c ts______________________________ 2

Summary of Proceedings______________________ 2

The Desegregation P la n _______________________ 7

Local Situation and Facts in Support of P la n ___  9

Argument

The Action of the District Court in approving 
the School Board’s Plan of Gradual Desegregation 
was Proper and Within the Guide Lines Pro­
nounced by the Supreme C ourt----------------------------- 21

Conclusion ____________________________________35



11

C ITA TIO N S

Boson v. Rippy (5th Cir. 1960) 285 F. 2d 4 3 ___ 26,
Brown v. Board of Education, 347 U. S. 483, 74

S. Ct. 686, 98 L. Ed. 873 (1954)_______ 21, 30,
Brown v. Board of Education, 349 U. S. 294, 75

S. Ct. 753, 99 L. Ed. 1083 (1955)_______ 2, 21,
Briggs v. Elliott (D. C. E. D., S. C., 1955) 132

F. Supp. 776 ________________________ 24, 29,
Cooper v. Aaron, 358 U. S. 1, 78 S. Ct. 1401, 3 L.

Ed. 2d. 5 (1958)_______________ 2, 23, 27, 31,
Dove v. Panham, 282 F. 2d. 256 ________________
Evans v. Ennis, (3rd Cir. 1960) 281 F. 2d. 385 _____
Goss v. Board of Education of the City of Knox­

ville (6th Cir. 1962) 301 F. 2d. 164_________ 26,
Jones v. School Board of City of Alexandria, 278

F. 2d. 7 2 __________________________________
Jackson v. School Board of City of Lynchburg 201

F. Supp. 620 (W. D. Va. 1962)______________
Jackson v. School Board of City of Lynchburg,

203 F. Supp. 701 (W. D. Va. 1962)_________7,
Kelley v. Board of Education of the City of Nash­

ville (6th Cir. 1959) 270 F. 2d. 209, cert. den.
361 U. S. 925 _______________________ 26, 29,

Mapp v. Board of Education of the City of Chatta­
nooga, (D. C. E. D. Tenn., 1961) 5 Race Rel.
Rep. 1035 ______________________________ 26,

Robinson v. Evans (D. C. S. D., Tex., 1961) 6
Race Rel. Rep. 117_________________________

Thompson v. County School Board of Arlington 
County (D. C. E. D., Va. 1956) 144 F. Supp.
239 ____________________________________24,

STA TU TES

29

32

34

30

34
. 5
.26

33

. 6

. 4

25

33

33

26

29

Code of Virginia, as amended 
Sec. 22-232.1 - 22-232.17 
Sec. 22-232.18 - 22-232.32 .

9
9



IN D E X  TO A P P E N D IX

P age

Motion of Defendants to Approve Pupil School
Assignment Plan for the City of Lynchburg___ la

Plaintiffs’ Exhibit 1 7 a __________________________ 3a

Plaintiffs’ Exhibit 1 7 b __________________________ 4a

Plaintiffs’ Exhibit 1 7 c __________________________5a

Plaintiffs’ Exhibit 1 7 d __________________________6a

Exerpts from hearing of March 15, 1962 ___________ 7a
Direct Examination of M. L. Carper

(for plaintiffs)________________________ 7a

District Court suggestions on modification
of p la n --------------------------   8a

Virginia Pupil Placement A c t__________________ 10a

Ill



I N  T H E

UNITED STATES COURT OF APPEALS
FOB T H E  FO U R T H  CIR C U IT

No. 8 7 2 2
C E C EL IA  JACKSON, an infant, 
et als,

A ppella n ts

v.

T H E  SCHOOL BOARD OF T H E  CITY 
OF LYNCH BURG, V IR G IN IA , et al,

A ppellees

A P P E A L  FROM  T H E  U N IT E D  STATES 
D IS T R IC T  COURT FO R T H E  W E ST E R N  
D IS T R IC T  OF V IR G IN IA , LY N CH BU RG  

D IV ISIO N

B R IE F  AND A P P E N D IX  FOR A P P E L L E E S  
T H E  SCHOOL BOARD OF T H E  CITY  OF 

LYNCHBURG, V IR G IN IA  AND 
M. L. CARPER, S U P E R IN T E N D E N T  OF 

SCHOOLS OF T H E  CITY  OF 
LYNCHBURG, V IR G IN IA



2

STA TEM EN T OF CASE

This appeal was taken by the plaintiff s-appellants 
from an order (Appellants’ App. p. 150a) of the United 
States District Court for the Western District of Vir­
ginia, Thomas J . Michie, Judge, entered on Api'il 18, 
1962, approving a plan of desegregation of the public 
school system of the City of Lynchburg, Virginia.

In  compliance with an order (Appellants; App. p. 
56a) of the Court below entered on January 25, 1962, 
the defendant appellee School Board of the City of 
Lynchburg submitted to the Court on February 24, 1962, 
a plan (Appellants’ App. pp. 57a-59a) for admission of 
pupils to the schools of the City without regard to race.

A t the suggestion of the District Judge at the hear­
ing held on said plan on March 15, 1962 (App. 8a-9a) 
paragraphs 4 and 5 of the plan submitted by the School 
Board were slightly modified and it is from the order of 
the District Court approving said plan as modified that 
this appeal has been taken.

Q U ESTIO N  INV OLV ED

Whether in approving the School Board’s plan of 
desegregation as modified, the District Court committed 
material error or acted improperly in exercising the 
discretion vested in Federal District Courts under the 
decisions of the Supreme Court in the cases of Brown v. 
Board of Education, 349 U. S. 294, and Cooper v. Aaron, 
358 U. S. 1.

STA TEM EN T OF FACTS 
Summary of Proceedings

Following denial by the Pupil Placement Board of 
the State of Virginia of the applications of the four negro 
infant plaintiffs, namely, Cardwell, Woodruff, Jackson



3

and Hughes, for transfer to E. C. Glass High School, a 
previously all white high school, operated by the defend­
ant-appellee School Board in the City of Lynchburg, Vir­
ginia, this action was instituted on September 18, 1961, 
by said infant plaintiffs-appellants by their parents and 
guardians, and by said parents and guardians individually, 
against the defendants-appellees, The School Board of 
the City of Lynchburg, Virginia, M. L. Carper, Super­
intendent of Schools of the City, The Pupil Placement 
Board of the State of Virginia, and the individual mem­
bers thereof, to require the defendants to grant the four 
infant plaintiffs transfers to said E. C. Glass High School, 
and for injunctive relief against the assignment and place­
ment of pupils on the basis of race in the public school 
system of the City of Lynchburg, and to require the de­
fendants to submit to the Court a plan to achieve the 
desegregation of the City schools.

Following a hearing on the merits at which evidence 
was introduced (Plaintiffs’ Exhibits 17 a, 17 b, 17 c, 17 d, 
App. 3a-6a and testimony of E. J . Oglesby, Transcript 
of November 14, 1961, pp. 67-70), giving the results of 
various standard I. Q., academic achievement and aptitude 
tests, which indicated generally that the appellants Card- 
well and Woodruff compared quite favorably in all re­
spects with children in the class to which they were apply­
ing at Glass High School, and which indicated that the 
appellants Jackson and Hughes were, generally speaking, 
below the median of the class to which they applied at 
Glass High School, the Court below by order entered 
November 15, 1961 (Appellants’ App. p. 35a) ordered 
the appellants Cardwell and Woodruff admitted to the 
ninth grade at the E. C. Glass High School at the be­
ginning of the second semester on January 29, 1962, 
denied the requested transfer of the appellants Jackson 
and Hughes to said Glass High School, and took under 
advisement the appellants’ prayer for further and more 
general relief. With regard to the denial of transfer of 
the appellants Jackson and Hughes, the Court, in its



order of November 15, 1961 (Appellants’ App. pp. 35a- 
36a), stated:

“And the Court being of the opinion that it will be 
in the best interests 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.”
No appeal from the Court’s order of November 15, 

1961 was taken by the appellants or by the appellees- 
school officials, but on November 27, 1961, the appellants, 
Jackson and Hughes, who had been denied admission to 
said Glass High School, filed a motion pursuant to Rule 
59 (a) of the Federal Rules of Civil Procedure to set 
aside that portion of the Court’s order of November 15, 
1961 which denied their request for admission to said 
school, and to grant a new trial or rehearing on this issue. 
Counsel for both the appellants and the appellees agreed 
to submit this motion to the Court for decision without 
the taking of further evidence and without further argu­
ment except as set forth in the motion, and said motion 
was overruled by the Court as set out in its opinion of 
January 15, 1962 and reported at 201 F. Supp. 620 
(W. D. Va. 1962) (Appellants’ App., pp. 87a-55a), the 
Court stating in its said opinion:

“In the light of this evidence there can be no doubt 
whatsoever 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 distance involved and academic qualifications, and 
they would never have been forced by the local au­
thorities to submit themselves to the rigid distance and 
academic placement rules of the Pupil Placement 
Board. They have therefore been discriminated against 
because of their race.

“I t  would follow that if this were the only con­
sideration involved all four of the children should now



5

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 comparisons 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 Brendora Evora Hughes, 
to be assigned to Glass. These reasons do not apply to 
the other two plaintiffs, Owen Calvin Cardwell, Jr. 
and Linda Darnell Woodruff, and the court, therefore, 
has already entered an order requiring the school board 
to enter them at Glass on January 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 
attorneys 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.

“I t  is true that the cases appear to be in some con­
fusion or even conflict as to the extent to which the 
academic qualifications 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 governmental 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.



6

“Nevertheless, in many cases academic qualifica­
tions 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 Alex­
andria, 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 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 of 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 achieve­
ment 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.” 
(Appellants’ App., pp. 45a-47a).

The appellants, Jackson and Hughes not having filed 
notice of appeal within thirty days after the overruling of 
their motion for a new trial, as contemplated by Rule 
73(a) of the Federal Rules of Civil Procedure, it is the 
position of the defendant appellees that the District 
Court’s order of January 15, 1962, denying transfer of 
the appellants Jackson and Hughes to the Glass High 
School, became final and that such denial is not in issue in 
this appeal. If  the Court should deem that it is a matter 
to be considered in connection with this appeal, it is the 
position of these appellees that such denial was proper,



7

as stated by Judge Michie in his above cited opinion, for 
the orderly desegregation of the public school system of 
the City of Lynchburg, Virginia, pursuant to the plan 
approved by the District Court.

By way of further relief to the plaintiffs-appellants, 
the Court below by order entered January 25, 1962 (Ap­
pellants’ App. p. 56a) directed the appellee School Board 
within thirty days thereafter to present a plan for ad­
mission of pupils to the schools of the City without regard 
to race, in accordance with the Court’s supporting opinion 
of January 15, 1962 (Appellants’ App. pp. 37a-55a). On 
February 24, 1962, the School Board filed with the Court 
a plan of desegregation of the public schools of the City 
of Lynchburg (Appellants’ App. pp. 57a-59a), to which 
plan appellants filed objections on March 12, 1962 (Ap­
pellants’ App. pp. 60a-64a). On motion of the defend- 
ants-appellees School Board and Superintendent of 
Schools (App. la-2a), for the approval of the plan and 
after hearing evidence and argument on behalf of both 
parties, on March 15, 1962 (Appellants’ App. pp. 65a- 
135a) and after the plan had been modified at the sug­
gestion of the District Court (App. 8a-9a), the Court 
by order dated April 18, 1962 ( Appellants’ App. pp. 
150a-151a), and in accordance with its supporting opinion 
of April 10, 1962 reported at 203 F. Supp. 701 (W. D. 
Va., 1962) (Appellants’ App. pp. 136a-149a) ap­
proved the plan as modified and it was from the District 
Court’s order of April 18, 1962 that this appeal was 
taken.

T H E  D E SE G R E G A TIO N  PLA N
The plan of desegregation of the public schools of the 

City of Lynchburg, Virginia, approved by the District 
Court in its order of April 18, 1962 (Appellants’ App. 
p. 150a), provides as follows:

“1. Commencing September 1, 1962, all classes in 
Grade One shall operate on a desegregated basis, and 
each September thereafter at least one additional grade



8

shall be desegregated until all grades have been de­
segregated.
“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 attendance areas for particular school buildings 
based upon the location and capacity of the buildings, 
the latest enrollment, shifts in population, and prac­
tical attendance problems, but without reference to 
race. 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.
“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 neces­
sary 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 consistent with sound school administra­
tion. There shall be no right to re-transfer during the 
same school year *
“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 for any reason 
whatsoever.”*

*The words “during the same school year” were added to 
Clause 4 and the words “for any reason whatsoever” were 
added to Clause 5 of the desegregation, for clarification, 
at the suggestion of Judge Michie of the District Court 
(App. 8a-9a). The School Board of the City of Lynch­
burg adopted the modifications suggested by Judge 
Michie at a meeting held on April 10, 1962 and the 
Court took notice of the modification in its order of 
April 18, 1962, approving the plan, as modified.



LOCAL SIT U A TIO N  AND FACTS IN  
SU PPO R T OF PLA N

9

There are 11,750 pupils in the Lynchburg school sys­
tem, approximately one-fourth of whom are negroes. The 
school system has 23 elementary schools and 2 high schools. 
Prior to the institution of these proceedings 17 of the 
elementary schools were attended only by white pupils 
and 5 of the elementary schools were attended only by 
negro pupils. Dunbar High School, one of the two high 
schools, was attended only by negro pupils and the other, 
E. C. Glass High School, was attended only by white 
pupils (Appellants’ App. p. 24a).

By virtue of the Pupil Placement Act the Virginia 
Legislature has entrusted authority for the enrollment 
and placement of pupils in the public schools of the 
State of Virginia in the Pupil Placement Board, ap­
pointed by the Governor, Code of Virginia, 1950, 1962 
Supp. § 22-232.1 - 232.18 (App., 10a-16a), unless a 
particular locality elects (by ordinance of its governing 
body) to assume responsibility for the placement of pupils, 
Code of Virginia, 1950, 1962 Supp. § 22-232.18 - 232.31 
(App., pp. 16a-23a). The Lynchburg authorities not hav­
ing elected to assume responsibility therefor (Transcript 
of November 14, 1961, p. 88), the authority for the 
placement and enrollment of pupils under State law at 
the time of the advent of these proceedings was in the 
defendant-appellee, Pupil Placement Board. Prior to the 
entry of the order of the Court below on November 15, 
1961 (Appellants’ App. p. 35a), no child had ever been 
placed in a Lynchburg school whose pupils were of 
another race. On April 21, 1961, one or more of the 
infant plaintiffs-appedants mailed written applications for 
transfer to the E. C. Glass High School to the School 
Board (Transcript of testimony September 22, 1961, p. 
61). These were apparently informal applications and on 
or about June 29, 1961, formal applications on behalf of 
the infant plaintiffs-appellants directed to the School



10

Board were made (Plaintiffs’ Exhibit 11). These were 
referred to the defendant-appelle Pupil Placement Board 
for processing and said applications were finally denied by 
the appellee Pupil Placement Board on August 28, 1961 
(Plaintiffs’ Exhibit 5), after administrative appeal as pro­
vided for by the Pupil Placement Act.

As far as the record in this case reveals, no applica­
tions for transfers of negro pupils to previous all white 
schools in the Lynchburg school system had ever been 
received by the School Board or the Pupil Placement 
Board prior to the applications of the infant plaintiffs- 
appellants in April, 1961.

Following the receipt of the applications on April 21, 
1961, the defendant-appellee School Board on its own 
initiative directed its chairman to appoint a committee to 
consider the advisability of adopting a voluntary plan of 
desegregation (Appellants’ App. pp. 6.5a-66a). A four- 
member committee was appointed which made a detailed 
report to the School Board at its meeting on August 8, 
1961, in which a majority of three members recommended 
that the School Board adopt a plan of gradual desegrega­
tion forthwith. (Appellants’ App. pp. 66a-68a). At the 
direction of the School Board at its meeting on August 8, 
1961, which was prior to the final denial by the Pupil Place­
ment Board of the applications of the infant plaintiffs- 
appellants for transfer to the E. C. Glass High School, a 
special committee of the School Board was appointed to 
consider and recommend a plan for the gradual desegrega­
tion of the Lynchburg school system. This committee was 
carrying out its work when the present court proceedings 
were instituted on September 18, 1961. Thereafter the 
committee withheld its report until the District Court’s 
order of January 25, 1962, directing the School Board 
to submit a plan of desegregation. (Appellants’ App. p. 
71a).

The School Board, at a meeting on February 13, 1962, 
adopted the plan recommended by its committee and which



11

was submitted to the District Court on February 24, 1962 
(Appellants’ App. pp. 57a-59a).

On March 15, 1962, at the hearing held by the District 
Court, on the appellees’ motion to approve the plan of 
desegregation submitted by the School Board, the ap­
pellees, as stated in the appellants’ brief at page 7, called 
four witnesses in support of the plan:

B. C. Baldwin, Jr., a member of the School Board 
and chairman of the two special School Board committees 
above referred to; M. Lester Carper, Superintendent of 
Schools of the City of Lynchburg; Herman Lee, Director 
of Guidance and Testing for the Lynchburg schools; and 
Duncan C. Kennedy, Chairman of the Lynchburg School 
Board. The appellants recalled Superintendent Carper 
as a witness.

The testimony of the witnesses is summarized at pages 
7 through 11 of the appellants’ brief and is further sum­
marized below.

TESTIM O N Y  OF B. C. BA LD W IN , JR . (Ap­
pellants’ App. pp. 65a-96a)

The School Board committees, of which Mr. Baldwin 
was chairman, relative to the possible desegregation of 
the Lynchburg school system, studied reports of desegre­
gation of schools in Louisville, Baltimore, Norfolk and 
other school systems (Appellants’ App. p. 66a), con­
sulted with the Lynchburg-By-Racial Committee, and 
conferred with various school authorities in Atlanta, 
Georgia, Texas and Tennessee relative to desegregation 
plans (Appellants’ App. p. 71a). Mr. Baldwin read into 
evidence and was questioned concerning a report of the 
School Board committee appointed to recommend a plan 
of gradual desegregation, which was presented to the 
School Board at its August, 1961, meeting, which report 
states in part as follows:

“As a result of the rapid growth and expansion of
our city in recent years, many of our schools are over-



12

crowded. We are currently having to use six mobile 
units as a measure of relief and it has been necessary to 
adopt a policy denying the admission to our schools 

of any county resident. During the current year, more 
than 2100 pupils enrolled at E. C. Glass High School, 
which school was designed for an enrollment of ap­
proximately 1800. I t  is estimated that by 1964-65 
enrollment there will reach approximately 2800. Be­
cause of this overcrowded condition and other factors, 
recent studies and recommendations by the University 
of Virginia Study Commission indicate an immediate 
need for two additional junior high schools. The de- 
segregation 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 
available facilities and personnel.” (Appellants’ App. 
p. 74a)

Mr. Baldwin testified that the University of Virginia 
Study Commission had been employed by the School 
Board previous to his appointment to the School Board 
(May, 1961), had recommended that two additional junior 
high schools be built in the City, and that the Board was 
considering the recommendations but no definite plans had 
been made relative thereto (Appellants’ App. pp. 84a- 
85a) ; that while Dunbar High School was approximately 
eighty-five percent occupied, trailer units are used adja­
cent to elementary schools to supplement class rooms and 
that many cloak rooms and other rooms in schools not 
designated for class rooms are used; that facilities generally 
throughout the system are crowded; that the School 
Board’s entire program (of construction) hinges largely 
on the study being made by the University of Virginia 
Study Commission Appellants’ App. p. 87a) ; that the 
School Board does not operate bus transportation for 
pupils and that children ride public busses; that finding 
good teachers is a problem (Appellants’ App. pp. 87a- 
88a).



13

TESTIM O N Y  OF M. L E S T E R  C A R PER  (Ap­
pellants’ App. pp. 97a-112a 128a-135a)

The principal points of Superintendent Carper’s testi­
mony can best be pointed out by citing pertinent portions 
of it:

Q. Will you state the problems which you antici­
pate 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 prob­
lem 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 move 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. Presently we have 6,061 children entered. Now, 
some of these schools are not filled completely to 
capacity; some of them .‘ire overcapacited 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



14

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 over- 
capacited. That condition is a progressing condition.

“We make every effort to equalize, insofar as pos­
sible, 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 actually 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 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 
remember that this last year we had individual con­
ferences 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 children because they were in a school 
more crowded than the one to which they could go. 
Then beyond that, we transported whole groups of 
children from one school to another. As an illustration, 
we have the seventh grade from Peakland going to 
Garland Rodes.
“By the Court:

“Going permanently? A. Transferring for the 
year. I t  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 running so near capacity in our 
buildings, there will of necessity have to he a great 
number of shifts from one school to another in order 
to equalize loads.



15

“Now, as this relates to this particular problem, 
I  will indicate one situation. The members of the 
School Board did not know that we had been working 
up some information, just purely as information, but 
we wanted to look at our problem to see what it might 
be if we had the greatest amount possible of shifting. 
Here is a school, for instance, Ruffner, with a capacity 
of 255 and Armstrong with 340. Ruffner is now desig­
nated 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 
recall it, the figure was 61 children presently attend­
ing Armstrong 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 Peakland, each of which schools 
are presently overcrowded, and you can see by divid­
ing fifty more youngsters among the schools; over­
crowded condition, would still be worse. In  addition 
to transferring the Seventh Grade and kindergarten 
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 particular 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 passing Ruffner going to Armstrong 
than the capacity of Ruffnei’, so you see, Your Plonor, 
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 immensity of it 
and see what can be done.

“Q. Mr. Carper, with regard to the physical 
plants, can you review the construction that the city



16

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 Chaii-man 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 elementary 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 con­
struction 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.

“I t  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 buildings now existing.

“The University of Virginia Committee has orally 
given us the same opinion. Now the report has not yet 
been submitted. We are expecting to receive that re­
port on the 21st but the Junior High School construc­
tion program would alleviate pressures both in the ele­
mentary 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 elemen­
tary school construction for a few years to come.

“Q. Well, will you state whether the desegregating 
of the schools is going to intensify the overcrowded



17

conditions? A. I t  would seem, yes, that wherever they 
desegregate, that is wherever additional children would 
go into most any 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 
problems 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 probably would be 
limited in scope to the point that we could handle the 
problems that are involved. If  we should become in­
volved in a total situation, which would mean the dis­
location of a fifth or more of our total student body, 
somebody would probably become very aggravated 
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. Of course, the 
pupil is the person 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 smaller 
proportion than it would be if it were a smaller num­
ber of children. I  think also as we work out problems, 
we gain experience; we leam how to handle things in 
a routine fashion rather than create a way of handling



18

them. I believe that the one year in which we could 
woi’k through a more localized or more confined situa­
tion 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.

Q. So you think, as I  gather, that you consider 
this first year as an experimental proposition, to gain 
experience. A. Right. We have no experience along 
that line at all. I t  will be a very experimental year; 
yes, sir.” (Appellants’ App. pp. 98a-103a).

***• *•

Q. I f  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, yes. The scope is such that we can 
work out 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 assessing that. I  have no way of knowing what 
problems will arise from it. (Appellants’ App. pp. 
104a-105a)

Mr. Carper also testified as to the problems arising, 
from the schools’ standpoint, from the mixing of large 
groups of pupils of different abilities (Appellants’ App. 
pp. 132a-134a), pointing out the probability of being 
forced into a same type of ability grouping which at the 
seventh and sixth grade levels would result in one such 
group being predominantly negro and the other white 
(Appellants’ App. p. 134a) ; and also pointing out that 
dropouts (those leaving school) was greater among 
whites than negroes.



19

TESTIM O N Y  OF H ER M A N  L E E  (Appel­
lants’ App. pp. 113a-131a)

Mr. Lee, Director of Guidance and Testing for the 
Lynchburg schools, testified as to the wide disparity be­
tween the academic achievement of negro and white pupils 
in the Lynchburg schools; that it increases markedly in 
the higher grades; that, as an example, in mathematics 
in the ninth grade achievement, considering the national 
norm at mid-point, the City white students had a median 
of 64 percentile while the negro median was at 30 per­
centile. (Appellants’ App. p. 116a). Although the ap­
pellants objected to testimony of this nature, it is the 
position of these appellees that such evidence is relevant 
to the problems to be faced in formulating a plan for the 
desegregation of a formerly segregated school system.

TESTIM O N Y  OF DUNCAN C. K E N N ED Y  
(Appellants’ App. pp. 122a-127a).

Mr. Kennedy, Chairman of the School Board, testified 
that the School Board employed the University of Vir­
ginia (Study Commission) in the fall of 1960 to make an 
overall study of the Lynchburg school system, which was 
expected to be completed within two years thereafter; 
that while they had not made a final report, preliminary 
reports indicate that they would recommend that the City 
go from an elementary-high school system to a 6-3-3 sys­
tem (6 grades of elementary school, 3 grades of junior 
high school and 3 grades of high school) ; and that they 
would recommend the building of two new junior high 
schools; that after the School Board had formally adopted 
such plan it would be necessary to acquire the land, pre­
pare plans, and to receive allocations of fimds, and that the 
earliest occupancy of such buildings would be September 
of 1964.

Mr. Kennedy testified that in the eleven year period 
since January, 1950, the City of Lynchburg had spent in 
capital expenditures on sixteen school projects for the 
City school system the sum of $9,353,000.



20

With regard to the School Board’s consideration of 
the desegregation plan submitted to the Court, Mr. 
Kennedy stated:

“Q. Now, Mr. Kennedy, with regard to the School 
Board’s plan that has been presented to the Court. 
Mr. 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. I t  
was with the approval of all the mem tiers of the 
School Board with the exception of one, Mr. Hutcher­
son, 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 
kept apprised of the progress during the committee’s 
deliberation. The committee reports, both the majority 
and minoi'ity, were mailed to the members of the School 
Board 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 dis­
cussed 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?



21

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. I t  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 working out the details of the 
plan as approved. (Appellants’ App. pp. 124a-125a).

In summary, the evidence presented, clearly demon­
strates the good faith of the school officials in adopting 
and submitting a gradual plan of desegregation as op­
posed to a more abrupt plan and in support thereof points 
out the serious administrative and related problems that 
will result from any plan that would require, particularly 
in the initial stages, any more rapid desegregation then is 
provided in the plan approved by the District Court.

A RG U M EN T

T H E  ACTION OF T H E  D IS T R IC T  COURT 
IN  A PPR O V IN G  T H E  SCHOOL BOARD’S 
PL A N  OF GRADUAL D E SE G R E G A TIO N  

W AS PR O PE R  AND W IT H IN  T H E  G U ID E 
L IN E S  PRONOUNCED BY T H E  SU PR EM E

COURT

Having held that racial discrimination in public edu­
cation was unconstitutional in the case of Brown v. Board 
of Education, 347 U. S. 483, 74 S. Ct. 686, 98 L. Ed. 873 
(1954), the Supreme Court in its supplemental decision 
in Brown v. Board of Education, 349 U. S. 294, 75 S. Ct. 
753, 99 L. Ed. 1083 (1955) considered the manner in 
which relief was to be accorded the numerous plaintiffs 
involved in that particular litigation. In  this connection, 
Chief Justice Warren, in delivering the opinion of the 
Court, stated, 349 U. S. at page 299:



22

“Full implementation of these constitutional prin­
ciples may require solution of varied local school prob­
lems. School authorities have the primary responsibility 
for elucidating, assessing and solving these problems; 
courts will have to consider whether the action of 
school authorities constitutes good faith implementa­
tion of the governing constitutional principles. Because 
of their proximity to local conditions and the possible 
need for further hearings, the courts which originally 
heard these cases can best perform this judicial ap­
praisal. Accordingly, we believe it appropriate 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 prvate 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 non-discriminatory 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 con­
stitutional principles set forth in our May 17, 1954, 
decision. Courts of equity may properly take into ac­
count 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 defend­
ants 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



23

effective manner. The burden rests upon the defend­
ants 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 related to admin­
istration, arising from the physical condition of the 
school plant, the school transportation system, person­
nel, revision of school districts and attendance areas 
into compact units to achieve a system of determining 
admission to the public schools on a nonracial basis, 
and revision of local laws and regulations which may 
be necessary in solving the foregoing problems. They 
will also consider the adequacy of any plans the de­
fendants may propose to meet these problems and to 
effectuate a transition to a racially nondiscriminatory 
school system. During this period of transition, the 
courts will retain jurisdiction of these cases.”

The Supreme Court further amplified its guide lines 
for the handling of school desegregation cases in its opinion 
in the case of Copper v. Aaron, 358 U. S. 1, 78 S. Ct. 1401, 
3 L. Ed. 2d, 5, stating at page 7 of the U. S. Reports:

“Of course, in many locations, obedience to the 
duty of desegregation would require the immediate 
general admission of Negro children, otherwise quali­
fied as students for their appropriate classes, at partic­
ular schools. On the other hand, a District Court, 
after analysis of the relevant factors (which, of course, 
excludes 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 
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. I t  was made



24

plain that delay in any guise in order to deny the 
constitutional rights of Negro children could not be 
countenanced, and that only a prompt start, diligently 
and earnestly pursued, to eliminate racial segregation 
from the public schools could constitute good faith 
and compliance.”

The appellants on the basis of the first Brown case, 
supra, assert in their brief that the appellees have been 
under the positive direction of the Supreme Court since 
1954 to initiate desegregation of the Lynchburg schools, 
completely ignoring the fact that the Lynchburg school 
authorities were not parties to said suit, and the many legal 
obstacles placed in the path of local school boards by virtue 
of various statutes enacted by the Legislature of Virginia, 
from which the School Board’s powers to act in any 
particular are derived.

In  this connection also, it is pointed out that the record 
in this case does not indicate that any request or applica­
tion for transfer or assignment of a negro pupil to a 
previously all white school in the Lynchburg school system 
had ever been made prior to application of one or more 
of the infant plaintiffs in April of 1961. As aptly stated 
in a per curiam, opinion (generally attributed to Judge 
Parker) of the three-Judge District Court in the case of 
Briggs v. Elliott (D. C. E. D., S. C., 1955) 132 F. Supp. 
776, the Supreme Court in the Brown case:

“* * * 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 choosing the schools they attend * * *: or

As stated by Judge Bryan in the case of Thompson v. 
County School Board of Arlington County (D. C. E. D., 
Va., 1956), 144 F. Supp. 239, 240:

“I t  must be remembered that the decisions of the 
Supreme Court of the United States in Brown v.



25

Board of Education * * *, do not compel the mixing 
of different races in the public schools, * * *. The order 
of that Court is simply that no child shall be denied 
admission to a school on the basis of race or color.”

Promptly after receipt of the infant appellants’ re­
quest for transfer to E. C. Glass High School, and not­
withstanding the fact that such transfers under Virginia 
law were at that time being handled by the State Pupil 
Placement Board, the local School Board, as hereinbefore 
set out in the Statement of Facts, initiated action looking 
towards the adoption of a voluntary plan of desegregation.

As stated by the District Judge in his opinion of 
April 10, 1962, approving the plan in question, reported 
in 203 F. Supp. 701:

“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 else­
where 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 litiga­
tion. As far as I  am advised Eynchburg 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.

“And that the Lynchburg Board is still cooperat­
ing is shown by their failure to appeal the order of 
January 24th requiring them to file a plan of desegre­
gation 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



26

arising from North Carolina mentioned in the opinion 
of January 15, 1962, which seem to require the 
exhaustion of legal remedies through the Pupil Place­
ment Board by each child who might wish to go to an 
integrated school.” (Appellants’ App. pp. 138a-139a).

In  opposing the plan generally, on the basis that it 
wdl require a longer period of time than is necessary to 
bring about the desegregation of the Lynchburg school 
system, appellants contend that the Lynchburg plan is a 
“Twelve Year Plan” or a “Grade a Year Plan”. While 
grade a year” plans of school desegregation have in 

several cases not been approved by the courts, depending 
on the particular factual circumstances, Evans v. Ennis, 
(Del.) (3rd Cir. 1960), 281 F. 2d, 385, Goss v. Board of 
Education of the City of Knoxville, Tennessee (6th Cir. 
1962), 301 F. 2d, 164, such plans have also been approved 
in a number of cases, Kelly v. Board of Education of the 
City of Nashville (6th Cir. 1959), 270 F. 2d, 209, Cert, 
den. 361 U. S. 925, Robinson v. Evans (Galveston) 
D. C. S. D. Texas 1961, 6 Race Rel. Rep. 117, Mapp. v. 
Board of Education of the City of C hattanooga, 
D. C. E. D. Tenn., 1961, 5 Race Rel. Rep. 1035. See also 
Boson v. Rippy, (5th Cir. 1960), 285 F. 2d. 43, which left 
the matter up to the District Court.

While the Court below under the facts and circum­
stances of this case might well have been justified in 
approving a grade a year plan, the plan submitted to 
and approved by the District Court is obviously not, and 
is not intended by the appellees to be a grade a year plan. 
By its express terms it provides:

“1. 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 de­
segregated.”



27

The school officials testified that the first year of the 
plan was to be a trial or experimental period to work out 
problems and to gain experience in the handling of a 
desegregated school system (Appellants’ App. p. 103a). 
The District Court was clearly satisfied with the good faith 
of the school authorities in moving ahead with the desegre­
gation program as expeditiously as circumstances permit, 
and very wisely agreed to a plan that would not limit or 
commit the School Board to only one grade a year if the 
problems encountered proved easier or more quickly solved 
than anticipated. In  any event, however, as the District 
Court will retain jurisdiction of the case, if in the future 
as the plan begins to operate, a showing is made to the 
effect that more time is being taken than is necessary, 
the District Court would have the power to see that the 
plan of gradual desegregation is accelerated at a greater 
rate than now provided. Aaron v. Cooper, 8tli Cir. 1957), 
243 F. 2d. 361.

The appellants contend that no substantial adminis­
trative problems have been shown to justify a gradual 
plan of desegregation. To anyone cognizant with the prob­
lems of school administration in Virginia and in most other 
Southern States, common sense alone would indicate the 
numerous administrative problems involved in the chang­
ing of a school system, which has been historically segre­
gated as to race since the beginning of a public school 
system, into any form of integrated system. Regardless of 
this, however, there is ample testimony by the school of­
ficials in this case to show that any desegregation in the 
higher grades at this time will greatly increase the already 
serious overci-owding at the high school level, which will 
continue until two new junior high schools contemplated 
by the School Board can be built; that population shifts 
have created problems in the overcrowding of certain 
elementary schools which desegregation can only intensify; 
that satisfactory academic adjustment between the negro 
pupils and white pupils made necessary by a wide gap 
between the median of the present academic achievement



28

and ability of the two races in the same grades, can be 
made in a satisfactory manner only by dealing in small 
numbers and in the lower grades. The evidence also indi­
cates and there will undoubtedly be problems which will 
require time to solve in teacher procurement, scheduling, 
counseling, patron and public acceptance and dropouts 
of pupils that will be created even by a gradual de- 
segregation and that could become completely insurmount­
able if the entire school system or a substantial portion 
thereof should be desegregated at this time.*

*A repo rt of the Sub-Committee To Investigate Public School S tand­
ards And The Conditions And Juvenile D elinquency In  The D istric t 
Of Columbia Of The Committee On The D istric t O f Columbia, House 
Of Representatives E igh ty-Fourth  Congress Second Session, United 
S tates P rin ting  Office 1957, while criticized in some circles as being 
extrem e, nevertheless points up the numerous problem s th a t can 
resu lt or partia lly  resu lt from an abrupt change from a segregated to 
an in tegrated  school system, page 44:

“FINDINGS AND CONCLUSIONS
H aving heretofore set out in considerable detail the various 

phases of the D istric t of Columbia school operation and the problem 
of juvenile delinquency as perta in ing  to said schools, the subcommittee 
a fte r a careful review of the established facts, concludes and finds th a t:

“ 1. The B oard of Education w ithout sufficient consideration of the 
enormous problem, with scant preparation , and w ithout adequate study 
or survey of known in tegrated  school systems, too hastily  ordered 
the integration  of the D istric t of Columbia schools.

“2. The forced in tegration of the schools in the D istric t of 
Columbia grea tly  accelerated an exodus of the white residents to the 
suburban areas of V irginia and M aryland. The presen t exodus seri­
ously threatens the educational, economic, cultural, religious and social 
foundation of the D istrict. I f  the exodus continues a t its presen t rate , 
the D istric t will become a predom inantly Negro community in the 
not too d istan t future.

“3. The in tegration  of the schools in the D istric t of Columbia has 
focused attention upon the differences in ability  to learn  and edu­
cational achievement between the average white and Negro students, 
as reflected by the national standardized tests.

“4. The wide d isparity  in m ental ability to learn and educational 
achievement between the white and Negro students has created a most 
difficult teaching situation in the in tegrated  schools. So much of the 
time of the teachers is being taken up in teaching the re ta rded  students 
tha t the capable students are not receiving the proper time and at-



29

The other principal objection of the appellants to the 
desegregation plan approved by the District Court ap­
pears to be Clause 5, reading:

“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 consistent with sound school administra­
tion. There shall be no right to re-transfer during the 
same school year.”

The appellants apparently would like to eliminate all 
freedom of choice relative to the plan. We believe, as did 
the District Court, that this clause should be upheld under 
the principles of freedom of choice expressed in Briggs v. 
Elliott, supra, and by Judge Bryan in Thompson v. School 
Board of Arlington County, supra. While this principle of 
choice was completely ignored by the Court of Appeals for 
the Fifth Circuit in Boson v. Hippy, supra, which rejected 
such a clause, the Sixth Circuit in the case of Kelly v. 
Board of Education of the City of Nashville, supra, 
expressly recognizing the principles expressed in Briggs 
v. Elliott, supra, approved a similar clause in the Nash­
ville plan. The reasoning of the Sixth Circuit in said

tention and are therefore failing to develop in accordance w ith their 
educational ability.

“5. The m ajo rity  of white principals and teachers faced the 
challenge presented by integration  with high morale, cooperation, and 
determ ination. A t the outset many felt th a t in tegration was correct. 
A fter 2 years of tria l, many of these same principals and teachers 
testified th a t the in tegration of the schools has been of little  or no 
benefit to either race. The morale of some has been shattered, the ir 
health  has been im paired, and some have separated  themselves from 
the school system by resignation and early  retirem ent. The replace­
ment of these teachers presents a very serious problem to the D istric t 
schools because white teacher applications have declined m aterially.

“6. D iscipline problem s and delinquency resu lting  from the in te­
gration of the schools have been appalling. I t  was unexpected and 
came as a g reat shock.

“W hile there were no new discipline problem s in the schools th a t 
were not m aterially  integrated , the unpreparedness for the turm oil



30

latter case, and which we deem to be legally sound, is set 
out in the opinion of Judge McAllister in the following 
language, 270 F. 2d at page 228:

“ (6) We come, then, to the transfer provision of 
the plan, allowing the voluntary transfer of white and 
Negro students, who would otherwise be required to 
attend schools previously serving only members of the 
other race; and allowing the voluntary transfer of any 
student from a school where the majority of the stu­
dents are of a different race. This provision does not 
fall within the ban of the maintenance of segregated 
public schools by cities where permitted — though not 
required — by statute, such as was condemned by the 
Supreme Court in Brown v. Education, 347 U. S. 483, 
74 S. Ct. 686, 98 L. Ed. 873. The district court, in the 
instant case, considered that, in accordance with the 
reasoning in Briggs v. Elliott, D. C. S. C., 132 F. 
Supp. 776, 777, the transfer provisions did not violate 
the equal protection clause of the Fourteenth Amend­
ment. In  the Briggs case, it was declared, as we have 
heretofore mentioned, that the Supreme Court has not 
decided that the states must deprive persons of the

th a t ensued d isrupted  the orderly  adm inistration of the predom inantly 
in tegrated  schools.

“ This condition had a very pronounced effect in re ta rd ing  the 
educational progress of the students.

“A continuation of this situation will ultim ately destroy the ef­
fectiveness of teaching in the in tegrated  schools.

“7. T hat sex problems in the predom inantly in tegrated  schools 
have become a m atter of vital concern to  the parents.

“One out of every four Negro children born in the D istric t of 
Columbia is illegitimate.

“The number of cases of venereal disease among Negroes of school 
age has been found to be astounding and tragic.

“The Negro has dem onstrated a sex attitude from  the p rim ary  to 
high school grades th a t has g reatly  alarm ed white paren ts and is a 
contributing cause of the exodus of the white residents of the D istric t 
of Columbia.

“The in tegrated  schools have found it necessary to curtail greatly , 
and in many cases eliminate completely social activities form erly con­



31

right of choosing what schools they attend, but that 
all 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,’ said the court, as we 
have previously quoted, on another aspect of this case, 
‘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 attend different schools. 
* * * ‘Appellants say that the transfer plan is only a 
scheme to evade the decisions of the Supreme Court. 
In Cooper v. Aaron, 358 U. S. 1, 17, 78 S. Ct. 1401, 
1409, 3 L. Ed. 2d 5, it was said: ‘In  short, the con­
stitutional rights of children not to be discriminated 
against in school admission on grounds of race or color 
declared by this court in the Brown case, can neither 
be nullified openly and directly by state legislators or 
state executive or judicial officers, nor nullified in­
directly by them through evasive schemes for segre­
gation w h e t h e r  a t t e m p t e d  “ingeniously or in­
genuously.” ’ There is no evidence before us that the 
transfer plan is an evasive scheme for segregation. If  
the child is free to attend an integrated school, and 
his parents voluntarily choose a school where only one 
race attends, he is not being deprived of his constitu­
tional rights. I t  is conceivable that the parent may

sidered a vital element in the education of students in the segregated 
schools.

“8. The operation and maintenance of the D istric t schools have 
been more adequately financed than  the average school system. From  
this standpoint they compare favorably w ith the outstanding school 
systems in  the N ation. The teachers’ salary  scale is among the highest.

“The 2 years’ experience with the operation of the in tegrated  
D istric t school system has conclusively shown th a t the cost of oper­
ating  the in tegrated  schools will be substantially  increased.

“Requests for additional funds by the school adm inistration and 
the increased budget and capital outlay substantiate this finding.

“These demands are being made in the light of the fact th a t the 
to ta l school population has not m aterially  increased in the past 3 years.



32

have made the choice from a variety of reasons -— 
concern that his child might otherwise not be treated 
in a kindly way; personal fear of some kind of eco­
nomic reprisal; or a feeling that the child’s life will be 
more harmonious with members of his own race. In  
common justice, the choice should be a free choice un­
influenced by fear of injury, physical or economic, or 
by anxieties on the part of a child or his parents. The 
choice, provided in the plan of the Board, is, in law, 
a free and voluntary choice. I t  is the denial of the 
right to attend a nonsegregated school that violates the 
child’s constitutional rights. I t  is the exclusion of chil­
dren from such a school that ‘generates a feeling of 
inferiority as to their status in the community that may 
affect their hearts and minds in a way unlikely ever 
to be undone,’ as observed in Brown v. Board of Edu­
cation, 317 U. S. 483, 494, 74 S. Ct. 686, 691, 98 L. 
Ed. 873. Such may be the tragic result, when children 
realize that society is imposing a restriction upon them 
because of their race or coloi\ The Supreme Court 
remarked in the foregoing case that the effect of the 
separation of students because of race was ‘well stated’ 
by the district court in the case, then on review, when 
it declared:

“ ‘Segregation of white and colored children in 
public schools has a detrimental effect upon the 
colored children. The impact is greater when it has 
the sanction of law; for the policy of separating 
the races is usually interpreted as denoting the

“9. On the average, the Negro students, because of lim ited 
achievements, are unable to compete scholastically w ith the more ad­
vanced white students. This condition imposes upon the  slower stu­
dents a psychological barrier denoting inferiority , and m anifests itse lf 
in social misbehavior.

“ 10. The committee concludes th a t the in tegrated  school system 
of the D istric t of Columbia is not a model to  be copied by other 
communities in the U nited States. On the contrary, it finds th a t the 
in tegrated  school system in the D istric t of Columbia cannot be copied 
by those who seek an orderly and successful school operation.”



33

inferiority of the Negro group. A sense of in­
feriority affects the motivation of the child to learn. 
Segregation with the sanction of law, therefore, 
has a tendency to (retard) the educational and 
mental development of Negro children and to de­
prive them of some of the benefits they would 
receive in a racial (ly) integrated school system.’ ”

“Nevertheless, as stated in Brown v. Board of 
Education, D. C., 139 F. Supp. 468, 469, 470, sub­
sequent to the decision of the Supreme Court in the 
prior Brown case:

“ ‘Desegregation does not mean that there must 
be intermingling of the races in all school districts. 
I t  means only that they may not be prevented 
from intermingling or going to school together 
because of race or color.

I f  it is a fact, as we understand it is, with 
respect to Buchanan School that the district is in­
habited by colored students, no violation of any 
constitutional right results because they are com­
pelled to attend the school in the district in which 
they live.’
“ (7) While, in the instant case, the parent makes 

the choice for the small child, that is the only reason­
able method if such a choice may be made. We see no 
deprivation of right, under the evidence before us.”

The Supreme Court denied certiorari in the Kelly 
case, supra, 361 U. S. 924. The right of transfer of those 
of a minority race in a particular school was also approved 
in Mapp v. Board of Education of the City of Chatta­
nooga, supra, and the Sixth Circuit Court of Appeals reaf­
firmed its ruling in the Kelly case, supra, in the recent case 
of Goss v. Board of Education, supra (1962), recognizing 
and pointing out, however, that such right of transfer 
could not be used by the school authorities for the pur­
pose of perpetuating segregation.



34

The appellants also object to the last sentence of 
Clause 2 of the plan, which grants the School Superin­
tendent the right to reserve one or more buildings to 
provide facilities within which to place pupils who are 
granted transfers. This provision is obviously one to meet 
administrative problems in the event there are substantial 
transfers and is certainly not invalid on its face. The ap­
pellees recognize that this right cannot be used by the 
school authorities for the purpose of perpetuating segre­
gation.

The remaining objections of the appellants to the 
desegregation plan approved by the District Court con­
cern the desegregation of the kindergarten, the summer 
school program, adult education programs and spelling 
bees and other activities sponsored in the schools by out­
side agencies (all of which are voluntary and not required 
school programs). The appellants objections with regard 
to these matters were all dealt with effectively and we 
submit properly by the District Court in its opinion of 
April 10, 1962, reported in 203 F. Supp. 701, and set 
out in Appellants’ App. pp. 136a-149a, at page 147a. In  
general these are matters that can be considered and 
dealt with by the District Court from time to time as de­
segregation progresses under the approved plan or persons 
are denied participation in them.*

In both the second Brown case, supra, and Cooper v. 
Aaron, supra, the Supreme Court recognized that the Dis­
trict Court, because of its proximity to local conditions,

*Some of these m atters already appear to  be moot in view of the fact 
th a t on Ju ly  5, 1962, the School B oard of the City of Lynchburg 
adopted a policy resolution reading as follows:

“W henever any contest is offered by an outside agency to any 
grade or age group, all pupils in such grades or age groups in 
the Lynchburg school system shall be eligible to  p artic ipa te ,”

and on August 14, 1962, approved the recommendation of its instruc­
tional committee to combine the electronics classes (adult education) 
previously offered in the D unbar H igh School vocational departm ent 
and the E. C. Glass H igh School vocational departm ent into a single 
program  to be held a t n ight a t the E. C. G lass H igh School.



35

can best perform the judicial appraisal needed to fit a 
desegregation plan to the local conditions and problems 
involved, and it is submitted that the plan formulated, 
adopted and supported by the local School Board (which 
has the primary responsibility, second Brown case, supra), 
in fitting their requirements in the transition period, and 
approved by the District Court in this case, and which 
has already been put into effect is necessary in the public 
interest and will result in the desegregation of the Lynch­
burg school system at “the earliest practicable date.”

CONCLUSION

The action of the District Court is correct and the 
judgment appealed from should be affirmed.

Respectfully submitted,

S. B o llin g  H obbs 
C. S h epa rd  N o w l in ,

Attorneys for the appellees
The School Board of the City
of Lynchburg, Virginia,
and M. L. Carper, Superintendent
of Schools for the City of Lynchburg

S. B o llin g  H obbs 
Caskie, Frost, Davidson & W atts 
925 Church Street 
Lynchburg, Virginia

C S h epa rd  N o w lin  
City Attorney 
City Hall
Lynchburg, Virginia



la

A P P E N D IX

IN  T H E  U N IT E D  STA TES D IST R IC T  
COURT FO R T H E  W E ST E R N  

D IS T R IC T  OF V IR G IN IA  
LY N CH BU RG  D IV ISIO N

C E C E L IA  JACKSON, etc., et al,
P l a in t if f s

Civil Action 
No. 534

v.

T H E  SCHOOL BOARD OF T H E  CITY  
OF LYNCH BURG, et al,

D efen d a n ts

M OTION OF D E FE N D A N T S TO A PPRO V E 
PU B LIC  SCHOOL A SSIG N M EN T PL A N  FOR 

T H E  C ITY  OF LY N CH BU RG

Come now the School Board of the City of Lynch­
burg, Virginia, and M. L. Carper, Superintendent of 
Schools of the City of Lynchburg, Virginia, by counsel, 
and move the Court to approve the plan of the School 
Board of the City of Lynchburg, for the admission of 
pupils to the schools of the City of Lynchburg filed in 
this suit on February 24, 1962, and to continue this 
case on the docket for such further orders as may from 
time to time seem appropriate on the grounds: that said 
plan is necessary in the public interest; constitutes good 
faith compliance with the former order of this Court to 
present a plan for the admission of pupils to the schools 
of the City without regard to race; is adequate to ef­
fectuate an orderly, systematic and effective transition 
to a racially non-discriminatory school system in the City 
of Lynchburg at the earliest practicable date, under the 
circumstances existing in said City, and in accordance



2a

with the criteria laid down in the case of Brown v. 
Board of Education, 349 U. S. 294.

T H E  SCHOOL BOARD OF T H E  
C ITY  OF LYNCH BURG, V IR G IN IA  
AND M. L. CARPER, S U P E R IN ­
T E N D E N T  OF SCHOOLS OF T H E  
C ITY  OF LYNCH BURG, V IR G IN IA

B y  S. B o lling  H obbs 
Of counsel

S. B o llin g  H obbs,
Caskie, Frost, Davidson & W atts
Attorneys
925 Church Street
Lynchburg, Virginia
C. S h e p h e r d  N o w lin  
City Attorney 
City Hall
Lynchburg, Virginia

Attorneys for the School Board of the City 
of Lynchburg

C E R T IF IC A T E  OF SERVICE
I hereby certify that service of the foregoing motion 

was made on Reuben E. Lawson, 19 Gilmer Avenue, 
N.W., Roanoke, Virginia; James M. Nabrit, I I I ,  10 
Columbus Circle, New York 19, New York, attorneys 
for the plaintiffs, and A. B. Scott, Peyton, Beverly, 
Scott and Randolph, 1200 Travelers Building, Rich­
mond 19, Virginia, attorney for the co-defendant, Pupil 
Placement Board, by personally delivering a copy of 
same to each of them, this 15th day of March, 1962.

S. B o lling  H obbs

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



P
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A
IN

T
IF

F
’S

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X

H
IB

IT
 I

T
C a r d w e l l , O w e n  C a l v i n , J r .

Col. 1 Col. 2 Col. 3 Col. 4 Col. 5

Dunbar High School Gr. 5: Stan. Achiev. 50th %tile E. C. Glass 50th %tile
1958—G.E. 8.2 G.E. 6.2 G.E. 7.6

66 Gr. 7: Calif. Ment. Mat. I. Q. u I. Q.
1959—1. Q. 115 79-88-98 94-104-114

66 Gr. 7: Iowa Sil. Read. G.E. 66 G.E.
1960—G.E. 8.3 5.1-6.0-6.8 6.8-8.3-9.8

66 *Gr. 8: Diff. Aptitude (Boys)
Verbal Reas. %tile 80 3-20-35 66 35-55-80
Num. Abil. 60 10-15-30 35-60-75
Abstract Reas. 90 10-20-35 25-45-75
Space Relations 60 15-30-50 20-45-70
Mech. Reas. 20 5-15-30 25-50-75
Clerical Speed 75 15-25-50 20-50-75
Lang.-Spell. 95 20-40-75 40-65-85
Lang.-Sent. 95 3-25-45 30-70-85

*D .A .T. norms different for boys and girls



P
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 1

7 
b

W o o d r u f f , L i n d a  D a r n e l l

Col. 1 Col. 2 Col. 3 Col. 4 Col. 5
Dunbar High School Gr. 5. Stan. Achiev. 50th %tile E. C. Glass 50th %tile

1958—G.E. 6.5 G.E. 6.2 G.E. 7.6
66 Gr. 7. Calif. Men. Mat. I. Q. 66 I. Q.

1959—I. Q. 105 79-88-98 66 94-104-114
66 Gr. 7. Iowa Sil. Bead. G.E. 66 G.E.

1960—G.E. 8.7 5.1-6.0-6.8 6.8-8.3-9.8
66 *Gr. 8. D.A.T. %tiles

Verb. Reas. 40 5-20-45 66 25-50-70
Num. Abil. 70 10-15-35 25-50-75
Abs. Reas. 20 10-25-40 20-50-80
Sp. Relat. 40 20-35-45 20-40-65
Mech. Reas. 10 10-20-40 20-45-70
Cl. Speed 60 15-35-60 15-45-75
Lang.-Spell. 80 25-35-60 35-60-80
Lang.-Sent. 50 10-25-40 30-50-75

* Girls norms.
os *D.A.T. Norms different for boys and girls.



P
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IF

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X

H
IB

IT
 1

7
H u g h e s , B r e n d a  E v e r a

Col. 1 Col. 2 Col. 3 Col. 4 Col. 5

Dunbar High School Gr. 5. Stan. Achiev. 50th %tile E. C. Glass 50th %tile
1958 Gr. Eq. 6.0 G.E. 6.2 G.E. 7.6

a Gr. 7. Calif. Ment. Mat. I. Q. 66 I. Q.
1959—1. Q. 92 79-88-98 94-104-114

<c Gr. 7. Iowa Sil. Read.
1960—G.E. 8.7 5.1-6.0-6.8 G.E 66 6.8-8.3-9.8 G.E.

66 *Gr. 8: Diff. Aptitude (Girls)
Verb. Reas. % ti le 40 5-20-45 66 25-50-70
Num. Ability 70 10-15-35 25-50-75
Abstract Reas. 20 10-25-40 20-50-80
Space Relations 40 20-35-45 20-40-65
Mech. Reas. 10 10-20-40 20-45-70
Cler. Speed 60 15-35-60 15-45-75
Lang.-Spell 80 25-35-60 35-60-80
Lang.-Sent. 50 10-25-40 30-50-75

*D .A .T. Norms different for boys and girls



J a c k s o n , C e c e l i a  K a r e n

Col. 1 Col. 2 Col. 3 Col. 4

Dunbar High School Gr. 7: Calif. Ment. Mat. I. Q. E. C. Glass
T3 1959—1. Q. 85 79-88-98
rH

Fh
CC Gr. 7 : Iowa Sil. Read. G.E. u

M
pq 1960—G.E. 7.1 5.1-6.0-6.8
M
a *Gr. 8: Diff. Aptitude (Girls)
X Verb. Reas. %tile 50 5-20-45 i C

H Num. Ability 25 10-15-35
cn Abs. Reas. 90 10-25-40
Pm Space Relations 70 20-35-45
M
H Mech. Reas. 30 10-20-40
£ Clerical Speed 60 15-35-60
(-H
< Lang.-Spell 40 25-35-60
a
Pm

Lang.-Sent. 50 10-25-40

* Girls norms.
D .A .T . norms different for boys and girls

Col. 5

I. Q.
94-104-114

G.E.
6.8-8.8-9.8

25-50-70
25-50-75
20-50-80
20-40-65
20-45-70
15-45-75
35-60-80
30-50-75



7a

E X E R P T S  OF TR A X SC R IPT  OF H E A R IN G  
ON M ARCH 15, 1962, PA G E  101

Evidence introduced on behalf of the Plaintiffs.
The witness, M. Lester Carper, having previously been 

sworn, on examination testified, as follows:
Direct Examination by Mr. Nabrit:

*  *  *

Q. Now, you mentioned dropout. Is it true in the 
Lynchburg Schools that you have a much higher dropout 
ratio for Negro boys than you do for any other groups?

A. I  believe it would be exactly opposite.

Q. More Negro girls?
A. No, white boys probably.

Q. White boys dropout?
A. Would probably be the highest dropout. The drop­

out figure over the years has been greater among the 
whites than among the Negroes.

Q. This is percentagewise?
A. Yes.

Q. We have no further questions.

(No questions on cross-examination)

The witness stands aside.



8a

E X C E R PT S OF TRA N SC R IPT OF H E A R IN G  
ON M ARCH 15, 1962, PA G ES 155-157

T H E  COURT: Let me see. I t  seems to me I  had
one or two thoughts about that simply in clarification. 
Does the last sentence of paragraph four of the plan 
govern also transfers made under Section 5?

MR. B A L D W IN : I don’t think it is anything in­
consistent in the two sentences.

T H E  COURT: Once you transfer you could not
transfer back?

MR. B A L D W IN : You have got no right of trans­
fer. Number 5 says it is nothing to prevent the School 
Board from writing a request if you ask for it.

T H E  COURT: I  think your construction is right.
I  don’t think it is.

MR. N A B R IT: We have not discussed it. We ob­
ject to this, no right of transfer provision, because you 
would have to make a firm election for one school year, 
but to find pupils six months before they enter the first 
grade, who perhaps would remain in segregated schools 
for the rest of the twelve years, seems unduly severe.

MR. B A L D W IN : This was not intended to oper­
ate more than one year.

T H E  COURT: Couldn’t you add to that “during
the same school year” ?

MR. B A L D W IN : Yes, sir.

T H E  COURT: Let’s have your School Board
amend the plan to that extent. I  think it is a good ob­
jection.

MR. HOBBS: Add the words “during the same
school year”.



9a

T H E  COURT: Now we have been talking about
nothing but race. Number 5 here says “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”. I wonder if it wouldn’t be well to add 
there “for any reason at all or for any reason which may be 
deemed proper”. In  other words, I  want to get away from 
the complication there that is only talking about race. 
This is preserving the right to transfer at the request 
for any reason at all.

MR. N A B R IT: I  am still stuck with the same
difficulty.

T H E  C O U R T: Did you mean this to apply to any
reason whatsoever?

MR. HOBBS: If  it is a valid a reason it would be
granted. If it was not valid, it would not be.

T H E  COURT: I t  is up to the School Board. Just
because you don’t like the red-haired girl who sits next 
to you the School Board can grant it or turn it down?

MR. B A L D W IN : Because my class is crowded
and I walk (want) to get to another school or my teacher 
is in the other school or my friends are in the other side 
of town. We have had those for years.

T H E  COURT: I would be glad to see “for any
reason whatsoever” added to it. We have already passed 
on the transfer because of race. I  have said I  am going to 
approve that at least for the time being. This is something 
you can’t very well object to once you have jumped the 
big hurdle.

MR. N A B R IT: I  am still at my objection that I
don’t know what it means.



10a

A P P E N D IX

V IR G IN IA  P U P IL  PLA C EM EN T ACT 
Code of Virginia 1950, 1962 Supp.

Sec. 22-232.1-22-232.31

Sec. 22-232.1. Power of enrollment or placement 
and determination of attendance districts vested in Pupil 
Placement Board; rules and regulations. — All power 
of enrollment or placement of pupils in and determination 
of school attendance districts for the public schools in 
Virginia is hereby vested in a Pupil Placement Board as 
hereinafter provided for. The local school boards and 
division superintendents are hereby divested of all au­
thority now or at any future time to determine the school 
to which any child shall be admitted. The Pupil Place­
ment Board is hereby empowered to adopt rules and 
regulations for such enrollment of pupils as are not in­
consistent with the provisions hereinafter set forth. Such 
rules and regulations shall not be subject to chapter 1.1 
(§ 9-6.1, et. seq.) of Title 9 of the Code of Virginia, the 
short title of which is “General Administrative Agencies 
Act.” (1956, Ex. Sess., c. 70; 1958, c. 500.)

Sec. 22-232.2. Creation of Board; m e m b e r s h i p ,  
terms and compensation. — There is hereby created a 
board to be known as the Pupil Placement Board which 
shall consist of three residents of the State, who shall be 
appointed by the Governor and serve during the pleasure 
of the Governor. Members of the Board shall receive as 
compensation for their services a per diem of twenty 
dollars for each day actually spent in the performance of 
their duties and shall be entitled to reimbursement for 
their necessary expenses incurred in connection therewith. 
(1956, Ex. Sess., c. 70, 1958, c. 500.)

Sec. 22-232.3. Appointment of agents; authority to 
hold hearings, take testimony and submit recommenda­
tions; administration of oaths; compelling attendance of 
witnesses and production of documents; contempt. — The 
Pupil Place Board may designate, appoint and employ 
such agents as it may deem desirable and necessary in the 
administration of this article. I t  may authorize such agents



11a

to hold the hearings hereinafter provided for and take 
testimony and submit recommendations in any and all 
cases referred to them by said Board. The Pupil Place­
ment Board and any of its agents shall have authority to 
administer oaths to those who appear before said Board 
or any of its agents in connection with the administration 
of this article. The Pupil Placement Board and any of 
its agents shall also have authority to issue subpoenas in 
the name of the Commonwealth to compel the attendance 
of witnesses and the production of documents. All such 
subpoenas shall be served by the sheriff, sergeant, con­
stable, or any deputy thereof, of the county, city, town or 
school division to which the same is directed. Should any 
person fail or refuse to obey any subpoena issued by the 
Board or any of its agents, any court of record of the 
Commonwealth shall have jurisdiction, upon application 
by the Board or its representative, to compel such person 
to appear before the Board or any of its agents and give 
testimony or produce documents as ordered. Should any 
person fail or refuse to obey an order of the court issued 
in accordance with this section, he may be punished by the 
court issuing the same as for contempt thereof. (1956, 
Ex. Sess., c. 70; 1958, c. 500.)

Sec. 22-282.4. Promulgation of rules, regulations 
and procedures; prescribing forms and requiring com­
pliance. — For the conduct of such hearings and to 
facilitate the performance of the duties imposed upon it 
and its agents under this article, the Pupil Placement 
Board is authorized to promulgate all such rules and reg­
ulations and procedures and prescribe such uniform forms 
as it deems appropriate and needful and to require strict 
compliance with the same by all persons concerned. (1956, 
Ex. Sess., c. 70.)

Sec. 22-232.5. Principles governing enrollment of 
pupils. — The Pupil Placement Board shall enroll each 
pupil in a school in each school district so as to provide 
for the orderly administration of such public schools, the 
competent instruction of the pupils enrolled and the 
health, safety and general welfare of such pupils. (1956, 
Ex. Sess., c. 70; 1958, c. 500.)

Sec. 22-232.6. Pupil to attend same school until 
graduation; exceptions. — After December 29, 1956, each



12a

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 attending such school shall at­
tend the same school which he last attended until gradua­
tion therefrom unless enrolled, for good cause shown, in a 
different school by the Pupil Placement Board. (1956, 
Ex. Sess., c. 70.)

Sec. 22-232.7. Application for enrollment. — Any 
child who desires to enter a public school for the first time 
following December 29, 1956, and any child who is grad­
uated 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 in such form as it may prescribe, and shall be 
enrolled in such school as the Board deems proper under 
the provisions of this article. Such application shall be 
made on behalf of the child by his parent, guardian or 
other person having custody of the child; provided, how­
ever, that any parent, guardian or other person having 
custody of a child, who conscientiously objects to the sign­
ing of an application, may execute the required applica­
tion “under protest” in order to secure the prompt place­
ment of the child in the public school system, without 
waiving any right to which such parent, guardian, other 
person or child are or may he properly entitled.

In the event that any parent, guardian, or other per­
son, in violation of this section, refuses or fails to execute 
an application for placement either voluntarily or “under 
protest,” the Board may issue subpoena to compel such 
parent, guardian or other person to appear before it and 
furnish such information as may be necessary to assign the 
child to a proper school; and pending the receipt of such 
information, the Board may take such action as to the 
placement of such child as, in its discretion, it may deem 
proper. (1956, Ex. Sess., c. 70; 1958, c. 500.)

Sec. 22-232.8. Protest of enrollment and hearing 
thereon; publication of notice; decision of Board; inter­
vention of interested pai'ties. — Both parents, if living, or 
the parent or guardian of a pupil in any school in which 
a child is enrolled by action of the Pupil Placement Board,



13a

if aggrieved by an action of the Board, may file with the 
Board a protest in writing within fifteen days after the 
placement of such pupil. Upon receipt of such protest the 
Board shall hold or cause to be held a hearing, within 
not more than thirty days, to consider the protest and at 
the hearing shall receive the testimony of witnesses and 
exhibits filed by such parents, guardians or other persons, 
and shall hear such other testimony and consider such 
other exhibits as the Board shall deem proper. The Board 
shall consider and decide each individual case separately 
on its merits. The Board shall publish a notice once a 
week for two successive weeks in a newspaper of general 
circulation in the city or county wherein the aggrieved 
party or parties reside. The notice shall contain the name 
of the applicant and the pertinent facts concerning his 
application including the school he seeks to enter and the 
time and place of the hearing. The Board shall, within not 
more than thirty days after the hearing, file in writing its 
decision, enrolling such pupil in the school originally desig­
nated or in such other school as it shall deem proper. The 
written decision of the Board shall set forth the findings 
upon which the decision is based. Any parent, guardian or 
other person having custody of any child in the particular 
school in which a child is enrolled by action of the Board 
shall be deemed an interested party and shall have the 
right to intervene in such proceeding in furtherance of his 
interest. (1956, Ex. Sess., c. 70.)

Sec. 22-232.9.: Repealed by Acts 1958, c. 500.

Sec. 22-232.10. Review of Board’s decision by circuit 
or corporation court. — Any party aggrieved by a decision 
of the Pupil Placement Board under this article or any 
party defined as an interested party in § 22-232.8 may 
obtain a review of such decision by filing in the clerk’s 
office of the circuit court of the county or corporation court 
of the city in the jurisdiction of which which party resides, 
within fifteen days after such decision, a petition in writ­
ing, specifying the decision sought to be reviewed, and the 
actions taken by the Pupil Placement Board, together 
with a statement of the grounds on which the petitioner is 
aggrieved or by reason of which he is an interested party. 
The petitioner shall file with his petition a copy of the 
decision of the Pupil Placement Board and a transcript of



14a

the proceedings before the Pupil Placement Board, which 
shall be furnished to the petitioner by the Pupil Place­
ment Board within ten days after the request therefor 
upon payment of the costs of such transcript by the 
petitioner. (1956, Ex. Sess., c. 70; 1958, c. 500.)

Sec. 22-232.11. Intervention in proceeding for re­
view of Board’s decision; evidence of interested parties. — 
Any interested party, as defined in § 22-232.8. may, by 
petition, intervene for the purpose of making known and 
supporting his interest, in any proceedings for review of 
the Pupil Placement Board’s decision instituted by an 
aggrieved party or by another interested party; and the 
court having jurisdiction of such review proceedings shall 
hear the evidence of as many interested parties, as defined 
in § 22-232.8, in any such review proceeding, as in its 
discretion it may deem proper, whether or not such in­
terested parties shall have petitioned for such review or 
petitioned to intervene therein. (1956, Ex. Sess., c. 70.)

Sec. 22-232.12. Notice of petition or application; 
when proceedings matured for hearing, heard and deter­
mined. — Upon the filing of the petition the clerk of 
the court shall forthwith notify the Pupil Placement 
Board, requiring it to answer the statements contained in 
the application within twenty-one days, but failure to do 
so shall not be taken as an admission of the truth of the 
facts and allegations set forth therein. The clerk of the 
court shall publish a notice of the filing of such application 
once a week for two successive weeks in a newspaper of 
general circulation in the county or city for which the 
court sits and shall in addition, post the same at the dooi 
of the courthouse. The notice shall contain the name of the 
applicant and the pertinent facts concerning his applica­
tion including the school he seeks to enter, and shall set 
forth the time and place for the hearing. The proceedings 
shall be matured for hearing upon expiration of twenty- 
one days from the issuance of the notice to the Pupil 
Placement Board by the clerk of the court and heard 
and determined by the judge of such court, either m term 
or vacation. (1956, Ex. Sess., c. 70.)

Sec 22-232.13. Finality of Board’s findings of fact. 
— The findings of fact of the Pupil Placement Board shall



15a

be considered final, if supported by substantial evidence 
on the record. (1956, Ex. Sess., c. 70.)

Sec. 22-232.14. Appeal to Supreme Court of A p­
peals. — From the final order of the court an appeal may 
be taken by the affrieved party or any interested part, as 
defined in § 22-232.8, to the Supreme Court of Appeals 
as an appeal of right, in the same manner as appeals of 
right are taken from the State Corporation Commission. 
(1956, Ex. Sess., c. 70.)

Sec. 22-232.15. Injunction proceedings. — An in­
junction proceeding may be brought in any State court of 
competent jurisdiction by the Commonwealth, or by any 
interested party as defined in § 22-232.8, for the purpose 
of restraining the performance of any act, or any intended 
or threatened act, which may be in evasion of, in disregard 
of, or at variance with, any of the foregoing provisions. 
(1956, Ex. Sess., c. 70.)

Sec. 22-232.16. Immunity of Board and agents to 
charges of libel, slander or insulting words. — Neither 
the Pupil Placement Board nor its agents shall be answer- 
able to a charge of libel, slander or insulting words, 
whether criminal or civil, by reason of any finding or 
statement contained in the written findings of fact or 
decisions or by reason of any written or oral statement 
made during the proceedings or deliberations. (1956, Ex. 
Sess., c. 70.)

Sec. 22-232.17. Provisions declared severable. — The 
provisions of this article are hereby declared to be sever­
able. If  any of its section, provisions, clauses, phrases, or 
parts, be held unconstitutional or invalid, the remainder 
of this article, shall, nevertheless, remain in full force and 
effect. (1958, c. 500.)

Sec. 22-232.18. Rules and regulat ions by State 
Board of Education. — The State Board of Education 
shall promulgate rules and regulations to be used and ap­
plied by school boards in their respective jurisdictions 
in making placements of individual pupils in particular 
public schools so as to provide for the orderly administra­
tion of such schools, the competent instruction of the



16a

pupils enrolled and the health, safety, best interest and 
general welfare of such pupils. (1959, Ex. Sess., c. 71.)

Sec. 22-232.19. Placement to be made by school 
boards; authority to fix attendance areas and adopt addi­
tional rules and regulations. — The placement of pupils 
in accordance with the rules and regulations adopted by 
the State Board of Education shall be made by school 
boards which are hereby authorized to fix attendance areas 
and adopt such other additional rules and regulations, not 
inconsistent with the rules and regulations of the State 
Board, relating to the placement of pupils as may be to 
the best interest of their respective school districts and the 
pupils therein. (1959, Ex. Sess., c. 71.)

Sec. 22-232.20. Initial placements; notice to parents, 
etc.; duty of parents, etc., to notify school board of change 
of address; application for placement; failure to make 
application. — School boards are authorized to designate 
agents who may be division superintendents, or other 
school officials or employees, to make all initial placements 
in the manner required by this article. All such place­
ments must be made not later than April 15 preceding 
the school year to which placements are to be applicable 
and shall become final within ten days after notices thereof 
have been mailed to the last known address of the parents, 
guardians or other persons having custody of the pupils 
so placed and copies thereof delivered by mail, or other­
wise, to the office of the principal of the school in which 
the pupil has been placed. The mailing of the notices 
of placement as required herein shall be prirna facie 
evidence of receipt of same.

Parents, guardians or other persons having custody of 
pupils in the public school system are hereby required to 
notify their school board of any change of address or 
residence. The placement of any pupil whose parent, 
guardian or other person fails to so notify his board shall 
be final.

Any child who has not previously attended the public 
schools, any child whose residence has been moved from a 
county, city or town in which such child formerly at­
tended school and any child who wishes to attend a school 
other than the school which he attended the preceding



17a

school year shall not be eligible for placement in a par­
ticular school unless application is made therefor, on or 
before April 5 preceding the school year to which the 
placement requested is to be applicable, by the parent, 
guardian or other person having custody of such child to 
the division superintendent having control of the school 
to which such child seeks admission. Such application shall 
be in writing on forms provided therefor by the State 
Board of Education and shall set forth the relationship 
of the applicant to the child and such other information as 
may be required by the State Board or requested by the 
school board. The action of the school board, or its repre­
sentative, in making the placement of any pupil, whose 
parent, guardian or other person having custody of such 
pupil fails to make application within the time required 
herein, shall be final. (1959, Ex. Sess., c. 71.)

Sec. 22-232.21. Review of placement  by school 
board; applications for review; action upon application. 
— If any parent, guardian, or other person having custody 
of a pupil, shall feel aggrieved by the placement of such 
pupil in a particular school under the provisions of 
§ 22-232.20 or §22-232.27 of this article then such parent, 
guardian, or other person may, at any time prior to the 
placement becoming final, make application in writing to 
the school board for a review of such action, setting out 
therein the relationship of the applicant to the pupil and 
the specific reasons why such pupil should not attend the 
school in which placed and also setting out the particular 
reasons why such pupil should be placed in some other 
school to be named in such application. The school board 
shall review the initial placement within twenty days after 
receipt of such application for review. In  making the 
review the school board shall have the authority to examine 
all records, files and other data pertinent to a considera­
tion of the proper placement of the pupil involved, and 
shall have the further authority to require any person, 
including the applicant and the pupil, to appear and 
present evidence concerning the placement. The applicant 
shall be notified of the time and place of review and 
given the opportunity to appear if he so requests in his 
application. After review, the local board shall determine 
whether the placement sought in such application should 
be allowed and shall promptly enter an order either affirm­



18a

ing the initial placement or changing the same. All such 
orders shall be entered on or before May 20 preceding the 
school year to which they are applicable and copies thereof 
furnished the applicants. (1959, Ex. Sess., c. 71.)

Sec. 22-232.22. State Board of Education consti­
tuted Board of Appeals; compensation of members. — 
The State Board of Education shall hear appeals taken 
under the subsequent provisions of this article with respect 
to the placement of pupils made by school boards and for 
the purpose is hereinafter sometimes referred to as the 
Board of Appeals. Whenever the words “Board of Ap­
peals” are used in this article, they shall mean the State 
Board of Education.

The members of the State Board of Education shall 
receive as compensation for their services under the pro­
visions of this article a per diem of twenty-five dollars for 
each day actually spent in the performance of such duties 
and shall be entitled to reimbursement for their necessary 
expenses incurred in connection therewith. (1959, Ex. 
Sess., c. 71.)

Sec. 22-232.23. Power and authority of Board of 
Appeals generally; subpoenas, etc. — The Board of Ap­
peals may retain counsel and designate, appoint and em­
ploy such agents as it may deem desirable and necessary 
in the administration of its duties. I t  may designate any 
of its members or agents to hold the hearings hereinafter 
provided for and take testimony and submit recommenda­
tions in any and all cases referred to them by it. The 
Board of Appeals, or any member thereof, and any of its 
agents shall have authority to administer oaths to those 
who appear before it, any member thereof, or any of its 
agents, in connection with the administration of its duties. 
The Board of Appeals, or any member thei’eof, and any 
of its agents shall also have the authority to issue subpoenas 
in the name of the Commonwealth to compel the attend­
ance of witnesses and the production of documents. All 
such subpoenas shall be served by the sheriff, sergeant, 
constable, or any deputy thereof, of the county, city or 
town to which the same is directed. Should any person 
fail or refuse to obey any subpoena so issued, any court 
of record of the Commonwealth shall have jurisdiction,



19a

upon application of the Board of Appeals, a member 
thereof or its agent, to compel such person to appear 
before the Board of Appeals, or any member or agent, 
and give testimony or produce documents as ordered. 
Should any person fail or refuse to obey an order of the 
court issued in accordance with this section, he may be 
punished by the court issuing the same as for contempt 
thereof. (1959 Ex. Sess., c. 71.)

Sec. 22-232.24. Authority of Board of Appeals to 
promulgate rules, regulations and procedures; prescribing 
forms and requiring compliance. — For the conduct of 
hearings and to facilitate the performance of the duties 
imposed upon it, its members and agents under this article, 
the Board of Appeals is authorized to promulgate all 
such rules and regulations and procedures and prescribe 
such uniform forms as it deems appropriate and needful 
and to require strict compliance with the same by all 
persons concerned. (1959, Ex. Sess., c. 71.)

Sec. 22-232.25. Review of school board’s placement 
by Board of Appeals; petition for review; hearing; de­
termination of Board. — I f  the parent, guardian, or other 
person having custody of a pupil who has been placed in 
a particular public school, or five interested heads of 
families as described in § 22-232.28 of this article, shall 
feel aggrieved by the final decision of the school board 
making such placement, such person or heads of families 
may at any time within ten days from the date of such 
final decision appeal therefrom to the Board of Appeals. 
Such appeal shall be by petition with copy thereof de­
livered to the clerk or chairman of the school board, 
alleging therein the decision complained of and the ob­
jections thereto, and specifying the relief sought.

The Board of Appeals shall thereupon be charged with 
the duty of reviewing the placement made by the school 
board and of determining whether or not the petitioner 
is entitled to the relief requested.

Upon filing the petition for review, the Board of Ap­
peals shall fix the time and place for hearing, which shall 
be held at Richmond, or a place reasonably accessible to 
the county, city or town in which the petitioner resides if 
so requested in the petition, and mail notices thereof to



20a

the petitioner and the school board. Upon receipt of a 
copy of the petition, the school board shall immediately 
certify to the Board of Appeals all records, exhibits and 
other information considered by it in making the final 
placement of the pupil concerned. The school board, or its 
representative, may appear at the hearing, and shall do so 
upon request of the Board of Appeals, and present such 
facts and information as may be deemed material for a 
proper review of the placement.

After consideration of the petition, the information 
furnished by the school board and the evidenced adduced 
at the hearing, if any, the Board of Appeals shall deter­
mine the school in which the pupil should be placed and 
enrolled and enter an order accordingly. Such order shall 
be entered within thirty days from the date the petition 
was filed. (1959, Ex. Sess., c. 71.)

Sec. 22-232.26. Review of Board of Appeals’ action 
by circuit or corporation court; appeals to Supreme Court 
of Appeals. — If  the parent or guardian, or other person 
having custody of the pupil, or five interested heads of 
families described in § 22-232.28 of this article, shall feel 
aggrieved by the final order of the Board of Appeals, such 
persons or heads of families may at any time within ten 
days from the date of such order appeal therefrom to the 
circuit court of the county or corporation court of the city 
wherein such child resides. Such appeal shall be by petition 
against the Board of Appeals as defendant, alleging 
therein the order complained of and the objections thereto, 
and specifying the relief sought. Upon the filing of the 
petition for appeal the clerk of the court shall forthwith 
issue a summons returnable within twenty-one days. On 
or before the return day of such summons, the Board of 
Appeals may file its plea, demurrer, or answer to the 
allegations contained in the petition, but failure to do so 
shall not be taken as an admission of the truth of the facts 
set forth therein. The record on appeal shall consist of the 
petition to the Board of Appeals and the order complained 
of duly certified by such board, which shall be filed with 
the clerk of the court on or before the return day of such 
summons. The case shall be matured for hearing upon 
the return date of such summons, and heard and deter­
mined de novo by the court without a jury, either in term 
or vacation.



21a

If  the decision of the court be that the order of the 
Board of Appeals shall be set aside, the court may adjudge 
that such pupil is entitled to attend the school as claimed 
in the petition to the Board of Appeals, or such other 
school as it may find such pupil is entitled to attend, and, 
in such case, such pupil shall be admitted to such school 
by the school board. From the final order of the court an 
appeal may be taken by either party to the Supreme 
Court of Appeals in the same manner as other appeals 
are taken from judgments in civil actions. (1959, Ex. 
Sess., c. 71.)

Sec. 22-232.27. Placement of children whose resi­
dence is established subsequent to the 5th of March. — 
Notwithstanding the requirements of § 22-232.20, any 
child whose residence is established in any county, city or 
town subsequent to March 5 preceding the school year in 
which he wishes to attend school shall make application 
to the school board for placement through his parent, 
guardian or other person having custody of such child 
within thirty days after such residence is established. The 
school board, or its designated agent, shall make the initial 
placement within ten days after receipt of such application. 
Such application shall be in the same form as required by 
§ 22-232.20 and the procedure to be followed, except inso­
far as altered by this section, shall be mutatis mutandis the 
same as prescribed by the preceding sections of this article.

The action of the school board, or its representative, in 
making the placement of any pupil, whose parent, guard­
ian or other person having custody of such pupil fails to 
make application within the time required by this section, 
shall be final.

All final orders of school boards concerning applica­
tions for review of the placements made by parents, guard­
ians or other persons having custody of children whose 
residences are established in any county, city or town 
subsequent to March 5 preceding the school year in which 
they wish to attend school shall be entered within thirty 
days after receipt of such applications for review. (1959, 
Ex. Sess., c. 71.)

Sec. 22-232.28. Right of five interested heads of 
families to apply for review of placements. — Any five



22a

intei’ested heads of families who are residents of the county, 
city or town and patrons of the public school involved in 
the placement or placements required by this article, who 
may feel themselves aggrieved by the action of the school 
board, or any of its agents or representatives, in making 
the initial placement or placements required by this article, 
may apply for review within ten days from the date all 
placements must be made, pursuant to the provisions of 
§ 22-232.20, or within ten days after the making of the 
initial placements under § 22-232.27, by making applica­
tion in writing to the school board setting forth the par­
ticular objections to the placement or placements involved.
Upon receipt of such application, the school board shall 
review the placement or placements complained of in the 
same manner as required by § 22-232.21. If  the relief re­
quested is not granted, a petition may be filed with the 
Board of Appeals and the circuit or corporation court, as 
the case may be, in the same manner as is provided in the 
case of an aggrieved parent, guardian or other person 
having custody of a pupil. (1959, Ex. Sess., c. 71.)

Sec. 22-232.29. Schools operated jointly by more 
than one political subdivision. — In any case where schools 
are operated jointly by more than one political subdivision, 
any final placement must be approved by a majority of 
the school board if a single board has been formed pursuant 
to the provisions of chapter 6 of article 5 (§ 22-100.1 et. 
seq.) of Title 22 of the Code and if such single board has 
not been formed then such final placement must be ap­
proved by a majority of the members of each participating 
board, which said hoards shall sit jointly but vote sepa­
rately. (1959, Ex. Sess., c. 71.)

Sec. 22-232.30. Applicability of article. — This 
article shall not be applicable to or effective in any county, 
city or town, if such town be a separate school district, un­
less such county, city or town, elects to be bound by the 
provisions of this article in lieu of § § 22-232.1 through 
22-232.17 of the Code of Virginia as amended. Such elec­
tion may he made from time to time by ordiance duly 
adopted by the governing body upon recommendation of 
the school board of the county, city or town to be affected 
thereby. In the event that § § 22-232.1 through 22-232.17



23a

should be finally adjudicated invalid by a court of com­
petent jurisdiction, the provisions of the preceding sec­
tions of this article shall be in full force and effect through­
out the State; and in the event that the provisions of 
§ § 22-232.1 through 22-232.17 or any part, sentence, 
clause or phrase thereof, should be finally adjudicated 
inapplicable to the placement of pupils in public schools 
in any county, city or town, if such town be a separate 
school district, the provisions of the preceding sections 
of this article shall be in full force and effect in such 
county, city or town. (1959, Ex. Sess., c. 71.)

Sec. 22-232.31. Partial invalidity. — If  any part or 
parts, section, subsection, sentence, clause or phrase of this 
article or the application thereof to any person or circum­
stances is for any reason declared unconstitutional, such 
decision shall not affect the validity of the remaining 
portions of this article which shall remain in force as if 
such article had been passed with the unconstitutional part 
or parts, section, subsection, sentence, clause, phrase or 
such application thereof eliminated; and the General As­
sembly hereby declares that it would have passed this 
article if such unconstitutional part or parts, section, sub­
section, sentence, clause or phrase had not been included 
therein, or if such application had not been made. (1959, 
Ex. Sess., c. 71.)