Allen v. County School Board of Prince Edward County Appellants Appendix

    APPELLANTS APPENDIX

In the
UNITED STATES COURT OF APPEALS

for the Fourth Circuit

No. 7463

EVA ALLEN, IDA ALLEN and 
ULYSSES ALLEN, infants, 

etc., et al.,
Appellants,

v.
COUNTY SCHOOL BOARD OF PRINCE 

EDWARD COUNTY, VIRGINIA, 
et al.,

Appellees.

Appeal from the United States District Court For The 
Eastern District of Viryinieh Richmond Division

O l iv e r  W. H il l ,

S po x tsw o o d  W. R o b in s o n , III, 
T h u r g o o d  M a r s h a l l ,

Counsel for Appellants.

The Press of Lawyers Printing Co., Inc., Richmond 7, Va.



INDEX
Page

Mandate ..........................................................................  2
Motion for Hearing on Formulation of Decree and 

Judgment......................      1
Intervenors’ Complaint in Intervention .........................  5

Petition of Defendants...........................................   10
Order on Mandate ........................................-...............  14
Motion for Further Relief ............................................. 15
Answer to Motion for Further Relief................    24
Supplemental Answer and Motion to Dismiss Motion 

for Further Relief .......    28
Opinion ........      29
Order ..............................................................................  48



In the
UNITED STATES COURT OF APPEALS 

for the Fourth Circuit

No. 7463

EVA ALLEN, IDA ALLEN and 
ULYSSES ALLEN, infants, 

etc., et al.,
Appellants,

v.
COUNTY SCHOOL BOARD OF PRINCE 

EDWARD COUNTY, VIRGINIA, 
et al.,

Appellees.

Appeal from the United States District Court For The 
Eastern District of Virginia, Richmond Division

APPELLANTS APPENDIX

MOTION FOR HEARING ON FORMULATION OF 
DECREE AND JUDGMENT

[R. p. 6]

Plaintiffs in the above entitled case respectfully move 
the Court to set this case for an early hearing for the



[ 2 ]

purpose of formulating and entering a decree in conformity 
with the decisions of the Supreme Court of the United 
States heretofore rendered in this action.

MANDATE 

[R. pp. 2-5]
United States of America, ss 

The President of the United States of America,
To the Honorable The Judges of the United States District 

Court For the Eastern District of Virginia

G r e e t in g

Whereas, lately in the United States District Court for 
the Eastern District of Virginia, before you, or some of 
you, in a cause between Dorothy E. Davis, Bertha M. 
Davis, and Inez D. Davis, etc., et al., Plaintiffs, and County 
School Board of Prince Edward County, Virginia, et ah, 
Defendants, Civil Action, No. 1333, wherein the judgment 
of the said District Court, entered in said cause on the 
7th day of March, A. D. 1952, is in the following words, 
viz:

“This cause came on to be heard upon the complaint, 
the answer of the original defendants, as well as the 
answer of the Commonwealth of Virginia, the inter­
vening defendant, and upon the evidence, oral and 
documentary, adduced by all parties, and was argued 
by counsel.

Upon consideration whereof, the Court, for the 
reasons set forth in its written opinion filed herein, 
hereby



1. (a) Denies the prayer of the complaint that the 
Court declare the provisions of section 140, Constitu­
tion of Virginia of 1902, as amended, and section 22- 
221, Code of Virginia of 1950, as amended, as invalid 
and in conflict with the statutes or Constitution of 
the United States; and

(b) Adjudges and Declares that the buildings, 
facilities, curricula and means of transportation fur­
nished for the education of the Negro high school 
students in Prince Edward County, Virginia, are not 
substantially equal to [fo il 103] those provided for 
the white high school students in said county; and 
hereby

2. Adjudges, Orders and Decrees that the defend­
ants, their officers, agents, servants, employees and 
attorneys, and all persons in active concert or partici­
pation with them be, and they are hereby, forthwith and 
perpetually enjoined and restrained from continuing 
to provide, or maintaining, curricula and means of 
transportation for the white high school students in 
said county without providing and maintaining substan­
tially equal curricula and means of transportation to 
the Negro high school students of said county; and it 
is further

3. Adjudged, Ordered and Decreed that the said 
defendants proceed with all reasonable diligence and 
dispatch to remove the unequality existing as aforesaid 
in said buildings and facilities, by building, furnishing 
and providing a high school building and facilities for 
Negro students, in accordance with the program men­
tioned in said opinion and in the testimony on behalf 
of the defendants herein, or otherwise; and it is also



[ 4 ]

4. Ordered that the plaintiffs recover their costs of 
the defendants.

Nothing further remaining to be done in this cause, 
it is stricken from the docket.

Armistead M. Dobie, United States Circuit Judge,
Sterling Hutcheson, United States District Judge;
Albert V. Bryan, United States District Judge.”

as by the inspection of the transcript of the record of the 
said District Court, which was brought into the 
SUPREME COURT OF THE UNITED STATES by 
virtue of an appeal, agreeably to the act of Congress, in 
such case made and provided, fully and at large appears.

And whereas, in the present term of October, in the 
year of our Lord one thousand nine hundred and fifty- 
four, the said cause came on to be heard before the said 
SUPREME COURT, on the said transcript of record, 
and was argued by counsel;

On consideration whereof, It is ordered and adjudged by 
this Court that the judgment of the said District Court, 
in this cause be, and the same is hereby, reversed with 
costs; and that the said plaintiffs, Dorothy E. Davis, et ah, 
recover from the said defendants two thousand nine hun­
dred seventy-five dollars and nineteen cents ($2,975.19) 
for their costs herein expended.

AND IT IS FURTHER ORDERED that this cause 
be, and the same is hereby, remanded to the said District 
Court to take such proceedings and enter such orders and 
decrees consistent with the opinions of this Court as are 
necessary and proper to admit to public schools on a racially



nondiscriminatory basis with all deliberate speed the parties 
to this case.

May 31, 1955.

You, therefore, are hereby commanded that such pro­
ceedings be had in said cause, in conformity with the 
opinions and judgment of this Court, as according to right 
and justice, and the laws of the United States, ought to 
he had, the said appeal notwithstanding.

Witness the Honorable EARL WARREN, Chief Justice 
of the United states, the twenty-seventh day of June, in 
the year of our Lord one thousand nine hundred and fifty- 
five.

H a r o ld  B. W il l e y ,
Clerk of the Supreme Court of the 

United States
By Hugh W. Barr,

Deputy

INTER VENTERS’ COMPLAINT IN 
INTERVENTION

[R. pp. 13-16]

[Caption Omitted]

CIVIL ACTION 
NO. 1333



DOROTHY E. DAVIS, BERTHA M. DAVIS and 
INEZ D. DAVIS, infants, by John Davis, their father 

and next friend, et al.,
Plaintiffs,

vs.
COUNTY SCHOOL BOARD OF PRINCE EDWARD 

COUNTY, VIRGINIA, et al.,
Defendants,

EVA ALLEN, IDA ALLEN and ULYSSES ALLEN, 
infants, by Hal Edward Allen, their father 

and next friend,
MARILYN L. DUPUY, IRENE DUPUY and 

EDWARD F. DUPUY, infants, by Charlie 
Dupuy, their father and next friend,

JOHN A. EARLEY, LAWRENCE A. EARLEY, and 
JOE L. EARLEY, infants, by Susie Earley, their 

mother and next friend,
MAXINE MORGAN and DELORES MORGAN,

infants by Thomas Hall, their guardian and next 
friend,

SAMUEL S. HALL, LEON O. HALL and ROSETTA 
C. HALL, infants, by Harry S. Hall, their father 

and next friend,
CHARLES HICKS and ROY HICKS, infants, by C. W.

Hicks, their father and next friend, 
FRANKLIN R. HICKS and RUBY M. HICKS, infants, 

by Sarah Elizabeth Hicks, their mother and 
next friend,

LORNELL SHEPPERSON, an infant, by P. H. 
Shepperson, her father and next friend,



m
HAROLD BAGLEY and MCDARNOLD BAGLEY, 

infants, by P. H. Shepperson, their guardian and 
next friend,

JAMES SCOTT, an infant, by Otis Scott, his father and
next friend,

ROBERT THOMPSON, an infant, by W. Howard 
Thompson, his, father and next friend,

EVA I. WILLIAMS and ALICE M. WILLIAMS, 
infants, by Frank Williams, their father and 

next friend,
Interveners.

INTERVENERS’ COMPLAINT IN 
INTERVENTION

The above-named interveners, for their complaint in 
intervention, adopt all of the allegations of the complaint 
herein, and, in addition thereto, allege as follows:

1. Interveners are among those generally classified as 
Negroes, are citizens of the United States and of the Com­
monwealth of Virginia, and are residents of and domiciled 
in the County of Prince Edward, Virginia. They are with­
in the statutory age limits of eligibility to attend the public 
secondary schools of said County and possess all qualifica­
tions and satisfy all requirements for admission thereto. 
They are children or wards, who had not completed the 
public elementary schools when this action was filed, of 
adults who are parties-plaintiff in this action.

2. Defendants, and each of them, and their agents and 
employees, maintain and operate separate public secondary 
schools for Negro and white children, respectively, and deny



[ 8 ]

interveners and all other Negro children, because of their 
race or color, admission to and education in any public 
secondary school operated for white children, and compel 
interveners and all other Negro children, because of their 
race or color, to attend a public secondary school set apart 
and operated exclusively for Negro children, in the en­
forcement and execution of Article IX, Section 140, of 
the Constitution of the Commonwealth of Virginia, and 
Title 22, Chapter 12, Article 1, Section 22-221 of the Code 
of Virginia of 1950, and/or pursuant to a policy, practice, 
custom and usage of segregating, on the basis of race or 
color, all children attending the public secondary schools 
of said County.

3. The aforesaid action of defendants, and each of them, 
denies interveners, and each of them, their liberty with­
out due process of law and the equal protection of the 
laws secured by the Fourteenth Amendment of the Con­
stitution of the United States, Section 1.

4. Notwithstanding that the discriminations aforesaid 
have been of long standing, and have been the subject 
of complaint to defendants and their predecessors in office 
upon numerous occasions in the past, and notwithstanding 
that plaintiffs, in their own behalf and in behalf of all 
other persons, citizens and residents of the County of Prince 
Edward, Virginia, similarly situated, have heretofore 
formally requested and demanded that defendants, and each 
of them, cease and desist therefrom, defendants, and each 
of them, refuse to act favorably upon said requests or 
demands, and will continue to refuse to admit them to, or 
enroll or educate any of them in, the public secondary 
schools maintained and operated in said County without 
regard to their race or color.

5. Defendants, and each of them, will continue to pursue,



and to enforce and execute against interveners., and all 
other Negro children similarly situated residing in the 
County of Prince Edward, Virginia, the laws and/or the 
policies, practices, customs and usages specified in para­
graph 2 hereof, and will continue to deny them admission, 
enrollment and education to and in any public secondary 
school established, maintained and operated for children 
residing in said County who are not Negroes, unless re­
strained and enjoined by this Court from so doing.

6. Interveners, and those similarly situated and affected, 
are suffering irreparable injury and are threatened with 
irreparable injury in the future by reason of the policies, 
practices, customs and usages and the actions of defend­
ants herein complained of. They have no plain, adequate 
or complete remedy to redress the wrongs and illegal acts 
herein complained of other than this complaint for an in­
junction. Any other remedy to which interveners and those 
similarly situated could be remitted would be attended by 
such uncertainties and delays as to deny substantial relief, 
would involve a multiplicity of suits, and would cause fur­
ther irreparable injury and occasion damage, vexation and 
inconvenience.

WHEREFORE, interveners respectfully pray that, upon 
the filing of this complaint, as may appear proper and 
convenient, this Court advance this action on the docket 
and order a speedy hearing of this action according to 
law, and that upon such hearing:

1. This Court grant to interveners all of the relief 
prayed for in the original complaint herein.

2. This Court allow interveners their costs herein, and 
grant such further, other, additional or alternative relief



[ 10 ]

as may appear to be equitable and just in the premises.

PETITION OF DEFENDANTS 
[R. pp. 19-22]

The defendants in this cause, by counsel, respectfully 
show the Court:

(1) On August 30, 1954, following the decision of the 
Supreme Court of the United States on May 17, 1954, 
the Governor of Virginia appointed a Commission on Public 
Education to consider a course of future action in the light 
of the Supreme Court’s decision. The Commission consists 
of 32 members of the General Assembly of Virginia. It 
has met from time to time on numerous occasions since 
its appoinment and has announced that it is in the process 
of formulating a legislative program to be presented to 
the General Assembly of Virginia to govern the future 
operation of the public schools in the State of Virginia. 
The Commission has not yet announced the legislation it 
will propose, but is continuing with its work with as much 
expedition as the magnitude and complexity of the problems 
confronting it will permit. The facts as to the action of 
the Commission appear from the affidavit of Dowell J. 
Howard and from a copy of the Commission’s interim re­
port of June 10, 1955, which are attached hereto as Exhibit
1. The conclusion of the Commission is as follows:

“In the circumstances it is the recommendation of 
this Commission that Your Excellency and the State 
Board of Education declare that it is the policy of



[ 1 1 ]

the State to continue schools throughou the school year 
1955-1956 as presently operated. Further, it is the 
judgment of this Commission that an adjustment, at 
this time, to a school system not based on race would 
not be practicable or feasible from an adminstrative 
standpoint or otherwise.

“Your Commission will continue its work and sub­
mit a further report at its conclusion. The report will 
contain specific bills for enactment by the General As­
sembly. For the foregoing reasons, it is the view of 
the Commission that an extra session of the General 
Assembly should not be called at this time.”

(2) Thereafter on June 23, 1955, the Governor of 
Virginia and the State Board of Education met together to 
consider the problems raised by the decision of the Supreme 
Court in this case of May 31, 1955. After the meeting 
a joint statement was issued which is appended to Exhibit 
1 to the effect that the State Board of Education and local 
political subdivisions cannot initiate a plan consistent with 
the ruling of the Supreme Court until the General Assembly 
has enacted appropriate legislation to be recommended by 
the Commission on Public Education. Accordingly, the 
Governor and the State Board of Education adopted as 
a State policy that the local school authorities to the extent 
possible should open and operate the public schools through­
out the session 1955-1956 on the same basis as they have 
heretofore been operated.

(3) The determination by the State Board of Educa­
tion that immediate integration of the races in the public 
schools during the session 1955-1956 is impossible is amply 
supported by the facts. The Supreme Court of the United



States has recognized that problems relating to administra­
tion, physical condition of school plants, the transportation 
of pupils, personnel, revision of school districts and at­
tendance areas will require time for adjustment. Even if 
no further legislation were required and if immediate in­
tegration were possible in Virginia, the necessary adjust­
ments could not be accomplished in time for the operation 
of integrated schools during the session 1955-1956. But 
there is also the necessity for revision of State statutes, 
and the General Assembly of Virginia cannot act with the 
speed of a private individual. Accordingly, it is factually 
impossible to operate racially integrated schools during the 
session 1955-1956, and the only way in which schools can 
be operated during that session is on the basis on which 
they have heretofore been operated.

In regard to the facts alleged in the preceding para­
graphs, attention is invited to Exhibit 1 filed herewith.

(4) The difficulties faced by the State of Virginia as 
a whole are met with particular intensity in Prince Edward 
County. The facts as to the operation of schools in Prince 
Edward County during the session 1955-1956 and as to 
the events that have occurred there since this case was 
last before this Court are detailed in the affidavit of Thomas 
J. Mcllwaine, attached hereto as Exhibit 2, and the affi­
davit of B. Calvin Bass, attached hereto as Exhibit 3. A 
review of those affidavits will make it clear to the Court 
that the schools of Prince Edward County cannot be op­
erated on an integrated basis during the session 1955-1956.

(5) The State of Virginia is proceeding with all de­
liberate speed to accommodate the administration of its 
public school system to the new conditions resulting from 
the decision of the Supreme Court in this case. The method



of operation of the schools in Prince Edward County cannot 
be changed until appropriate action has been taken on the 
State level to accomplish necessary legislative changes and 
to establish a new pattern for public school operation. If 
the Court should direct that the high schools in Prince 
Edward County be operated during the session 1955-1956 
otherwise than in the manner in which they have heretofore 
been operated, the school authorities of Prince Edward 
County will have no alternative other than to close the 
schools in the County during the session 1955-1956 to the 
lasting detriment of the school children of both races.

Accordingly, the defendants petition the Court that it 
enter an order that

i will permit the operation of the high schools in Prince 
Edward County, Virginia, during the session 1955-1956 
as heretofore operated pending the further order of this 
Court; and

ii will require the defendants to report to this Court 
not later than August 1, 1956, the steps that they have 
taken to adjust to the decision of the Supreme Court of 
the United States in this case; and

in will continue this case on the docket of the Court 
pending the filing of such report.

The defendants are prepared to present testimony in 
support of the allegations of fact contained in this petition.

[Exhibits Omitted]



[ 1 4 ]

ORDER ON MANDATE 
[R. pp. 44-46]

This cause came on to be heard upon the papers and 
orders heretofore filed, upon the mandate of the Supreme 
Court of the United States received on June 28, 1955, 
upon the motions of the plaintiffs for the formulation and 
entry of a decree on the said mandate, and upon the petition 
of the defendants, as well as the drafts of the decrees 
proposed by each side, and was argued by counsel.

Upon consideration whereof the Court is of the opinion 
that the said mandate requires it to, and accordingly it 
does hereby,

ADJUDGE, ORDER, DECLARE and DECREE:

1. That the decree entered by this Court on the 7th day 
of March, 1952, be, and it is hereby, vacated and set aside 
to the extent that it denies the prayer of the complaint 
herein for a declaration that section 140, Constitution of 
Virginia of 1902, as amended, and section 22-221, Code 
of Virginia of 1950, as amended, insofar as they direct 
that white and colored persons shall not be taught in the 
same school, are unenforceable because invalid as in con­
flict with the statutes or Constitution of the United States;

2. That insofar as they direct that white and colored 
persons, solely on account of their race or color, shall not 
be taught in the same schools, neither said section 140, 
Constitution of Virginia of 1902, as amended, nor said 
section 22-221, Code of Virginia of 1950, as amended, 
shall be enforced by the defendants, because the provisions 
of said sections are in violation of the clauses of the Four­
teenth Amendment to the Constitution of the United States



1. 15]

forbidding any State to deny to any person within its juris­
diction the equal protection of the laws;

3. That the defendants be, and they are hereby, re­
strained and enjoined from refusing on account of race 
or color to admit to any school under their supervision 
any child qualified to enter such school, from and after 
such time as the defendants may have made the necessary 
arrangements for admission of children to such school on 
a nondiscriminatory basis with all deliberate speed as re­
quired by the decision of the Supreme Court in this cause; 
but the Court finds that it would not be practicable, because 
of the adjustment and rearrangement required for the pur­
pose, to place the Public School System of Prince Edward 
County, Virginia, upon a nondiscriminatory basis before 
the commencement of the regular school term in September 
1955, as requested by the plaintiffs, and the Court is of 
the opinion that the refusal of the Court to require such 
adjustment and rearrangement to be made in time for the 
said September 1955 school term is not inconsistent with 
the public interest or with the decision of the Supreme 
Court;

4. That jurisdiction of this cause be retained for further 
consideration and action from time to time, if the neces­
sity shall occur, in respect to any issue pertinent to, or 
arising from, the said injunction.

MOTION FOR FURTHER RELIEF 
[R. pp. 47-53]

Plaintiffs move the Court to grant them further neces-



[16]

sary and proper relief and, in support thereof, state:

1. On May 17, 1954, the Supreme Court of the United 
States rendered an opinion in this action and its companion 
cases wherein it declared

“. . . that in the field of public education the doctrine 
of ‘separate but equal’ has no place. Separate educa­
tional facilities are inherently unequal. Therefore, we 
hold that the plaintiffs and others similarly situated 
for whom the actions have been brought are, by reason 
of the segregation complained of, deprived of the equal 
protection of the laws guaranteed by the Fourteenth 
Amendment.”

2. On May 31, 1955, the Supreme Court of the United 
States rendered another opinion in this action and its com­
panion cases wherein it declared that

“All provisions of federal, state, or local law re­
quiring or permitting such discrimination must yield 
to this principle . . .

“. . . the viatlity of these constitutional principles 
cannot be allowed to yield simply because of disagree­
ment 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 
effective manner. The burden rests upon the defend­
ants to establish that such time is necessary in the



[17]

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 admini­
stration, arising from the physical condition of the 
school plant, the school transportation system, per­
sonnel, revision of school districts and attendance areas 
into compact units to achieve a system of 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 judgments below, except that in the Delaware 
case, are accordingly reversed and remanded to the 
district courts to take such proceedings and enter such 
orders and decrees consistent with this opinion as are 
necessary and proper to admit to public schools on a 
racially non-discriminatory basis with all deliberate 
speed the parties to these cases.”

3. On July 18, 1955, this Court entered a decree in this 
action which, among other things, adjudged, ordered, de­
clared and decreed

“2. That insofar as they direct that white and 
colored persons, solely on account of their race or color, 
shall not be taught in the same schools, neither said 
section 140, Constitution of Virginia of 1902, as 
amended, nor said section 22-221, Code of Virginia 
of 1950, as amended, shall be enforced by the defend-



[ 18]

ants, because the provisions of said section are in 
violation of the clauses of the Fourteenth Amendment 
to the Constitution of the United States forbidding 
any State to deny to any person within its jurisdic­
tion the equal protection of the laws;

“3. That the defendants be, and they are hereby, 
restrained and enjoined from refusing on account of 
race or color to admit to any school under their super­
vision any child qualified to enter such school, from and 
after such time as the defendants may have made the 
necessary arrangements for admission of children to 
such school on a non-discriminatory basis with all de­
liberate speed as required by the decision of the Su­
preme Court in this cause; but the Court finds that 
it would not be practicable, because of the adjustment 
and rearrangement required for the purpose, to place 
the Public School System of Prince Edward County, 
Virginia, upon a nondiscriminatory basis before the 
commencement of the regular school term in September 
1955, as requested by the plaintiffs, and the Court is 
of the opinion that the refusal of the Court to require 
such adjustment and rearrangement to be made in time 
for the said September 1955 school term is not incon­
sistent with the public interest or with the decision 
of the Supreme Court;

“A. That jurisdiction of this cause be retained for 
further consideration and action from time to time, 
if the necessity shall occur, in respect to any issue 
pertinent to, or arising from the said injunction.”

4. Plaintiffs are informed and believe, and therefore al­
lege on information and belief, that neither defendant 
County School Board of Prince Edward County, Virginia,



L 19]

nor defendant T. J. Mcllwaine, Division Superintendent 
of Schools of Prince Edward County, Virginia, has made 
a reasonable start toward compliance with the decisions of 
the Supreme Court of the United States or the injunction 
of this Court, nor has either made or started making any 
arrangements for the admission of plaintiffs to the public 
secondary schools of Prince Edward County, Virginia, on 
a racially nondiscriminatory basis.

5. Plaintiffs are informed and believe, and therefore al­
lege on information and belief, that defendants County 
School Board of Prince Edward County, Virginia, and T. 
J. Mcllwaine, Division Superintendent of Schools of Prince 
Edward County, Virginia, are awaiting formulation by 
defendant Commonwealth of Virginia of policy and plans 
to be pursued in the public schools of Virginia with refer­
ence to the aforesaid decisions and do not propose to take 
any action to effectuate a transition to a racially nondis­
criminatory school system unless and until defendant Com­
monwealth of Virginia formulates policy and plans there­
for.

6. Plaintiffs are informed and believe, and therefore al­
lege on information and belief, that defendant Common­
wealth of Virginia has not made or started making any 
arrangements for the admission of plaintiffs to the public 
secondary schools of Prince Edward County, Virginia, on 
a racially nondiscriminatory basis, and that it has not taken 
any substantial action toward formulation of policy and 
plans to be pursued in the public schools of Virginia with 
reference to the decisions aforesaid except as follows:

(a) On or about November 11, 1955, the Virginia Com­
mission on Public Education, a 32-member all-white legis­
lative commission appointed by the Governor of Virginia



[ 2 0 ]

to examine the effect of the aforesaid decisions and to make 
such recommendations as it deemed proper, submitted to 
the Governor of Virginia its report, a copy of which is 
attached hereto as Exhibit A. In this report the Commis­
sion was highly critical of the decision of May 17, 1954, of 
the "Supreme Court of the United States in this action 
and its companion cases and stated:

“This Commission believes that separate facilities 
in our public schools are in the best interest of both 
races, educationally and otherwise, and that compul­
sory integration should be resisted by all proper means 
in our power.”

Among other things, the Commission recommended that 
a special session of the General Assembly of Virginia be 
called for the purpose of initiating a constitutional con­
vention to amend Section 141 of the Constitution of 
Virginia to permit the appropriation of public funds for 
expenditure in furtherance of elementary, secondary, col­
legiate and graduate education of Virginia students in 
nonsectarian public and private schools and institutions of 
learning in addition to those owned or exclusively controlled 
by the state or some political subdivision thereof, and that, 
upon such amendment being adopted, legislation be enacted 
conferring a broad discretion on local school authorities 
to make pupil assignments, and permitting tuition grants 
from public funds to parents and guardians who might 
object to having their children attend nonsegregated schools.

(b) On December 3, 1955, the General Assembly of 
Virginia, in special session, enacted a bill, a copy of which 
is attached hereto as Exhibit B, submitting to the qualified 
electors of Virginia the question whether there should be



[ 21]

a convention to revise and amend Section 141 of the Con­
stitution of Virginia.

(c) On January 9, 1956, the electors of Virginia voted 
to have a convention to revise and amend Section 141 of 
the Constitution of Virginia.

(d) On January 19, 1956, the General Assembly of Vir­
ginia, in regular session, enacted a bill, a copy of which 
is attached hereto as Exhibit C, providing for the election 
of delegates to such constitutional convention, the issuance 
of a writ for the same, the convening of such delegates, the 
organization and functioning of such convention, and ap­
propriating funds to defray the expenses of the same.

(e) On February 1, 1956, the General Assembly of Vir­
ginia, in regular session, adopted a resolution, a copy of 
which is attached hereto as Exhibit D, characterizing said 
decision of May 17, 1954, “a deliberate, palpable, and dan­
gerous attempt by the court itself to usurp the amendatory 
power that lies solely with not fewer than three-fourths 
of the States,” and asserting that a “question of contested 
power” exists between the aforesaid decision and this 
resolution, and appealing to other states of the United 
States to join Virginia “in taking appropriate steps, pur­
suant to Article V of the Constitution, by which an amend­
ment, designed to settle the issue of contested power here 
asserted, may be proposed to all the States,” and declaring 
“that until the question here asserted by the State of Vir­
ginia be settled by clear Constitutional amendment, we 
pledge our firm intention to take all appropriate measures 
honorably, legally and constitutionally available to us, to 
resist this illegal encroachment upon our sovereign 
powers, . . .”



[22]

(f) On March 7, 1956, in the aforesaid constitutional 
convention ordained a revision and amendment of Section 
141 of the Constitution of Virginia permitting the appro­
priation of public funds for expenditure in furtherance of 
elementary, secondary, collegiate and graduate education of 
Virginia students public and nonsectarian private schools 
and institutions of learning in addition to those owned or 
exclusively controlled by the State or some political sub­
division thereof, a copy of which ordinance is attached here­
to as Exhibit E.

(g) On March 10, 1956, the General Assembly of Vir­
ginia, in regular session, adopted a resolution, a copy of 
which is attached hereto as Exhibit F, declaring that “it 
is the public policy of Virginia that no athletic team of 
any public free school should engage in any athletic contest 
of any nature within the State of Virginia with another 
team on which persons of the white and colored race are 
members, nor should any such school schedule or permit 
any member of its student body to engage in any athletic 
contest within the State of Virginia with a person of the 
white and colored race while such student is a member of 
such student body.”

7. By their failure to effectuate a transition to a racially 
nondiscriminatory school system, defendants continue, and 
will continue, to deny plaintiffs, and other Negro children 
of public school age similarly situated, the equal protection 
of the laws secured by the Fourteenth Amendment of the 
Constitution of the United States.

8. Plaintiffs are informed and believe, and therefore al­
lege on information and belief, that no additional time 
is necessary to carry out the rulings aforesaid in an effective



[ 23]

manner, or is necessary in the public interest, or is con­
sistent with good faith compliance at the earliest practicable 
date.

9. Plaintiffs are informed and believe, and therefore 
allege on information and belief, that defendants continue 
to operate the public schools of Prince Edward County, 
Virginia, on the same racially separate basis that obtained 
prior to the aforesaid decisions and will indefinitely continue 
to do so unless specifically ordered (a) to make an im­
mediate start toward desegregation and (b) to complete 
this desegregation within a prescribed period of time.

Wherefore, plaintiffs respectfully pray that upon the 
filing of this motion, as may appear proper and convenient 
to the Court, this motion be advanced on the docket and 
a speedy hearing hereof be ordered according to law, and 
that upon such hearing

(a) This Court enter a decree ordering and directing 
defendants, and each of them, their successors in office, 
and their agents and employees, to make a prompt and 
reasonable start toward compliance with the ruling of the 
Supreme Court of the United States of May 17, 1954, and 
permanently restraining and enjoining defendants, and each 
of them, their successors in office, and their agents and 
employees, from using race as a basis of determining ad­
mission, assignment or attendance in any public secondary 
school in Prince Edward County, Virginia, so that at a 
time no later than the school term commencing in Septem­
ber, 1956, plaintiffs, and all other Negro children of public 
school age similarly situated, will be attending schools on 
a basis not involving race, and ordering defendants, and 
each of them, and their successors in office, to file with 
this Court interim reports showing the plans and steps they



L24]

are making to change the existing method of determining 
the public schools pupils attend so that as of September, 
1956, race will no longer be used as a criterion for public 
school attendance.

(b) That this Court allow plaintiffs their costs herein.

(c) That this Court retain jurisdiction of this cause for 
further consideration and action from time to time, if the 
necessity shall occur, in respect to any issue pertinent to, 
or arising from, any injunction issued against defendants.

[Exhibits Omitted]

ANSWER TO MOTION FOR FURTHER RELIEF 
[R. pp. 73-77]

The Defendants, in answer to the Motion for Further 
Relief filed by the Plaintiffs herein, say:

1. The Defendants, County School Board of Prince 
Edward County and T. J. Mcllwaine, admit that they are 
awaiting the formulation by the Commonwealth of Vir­
ginia of plans and policies to be followed in rearranging 
its school laws in the light of the decisions of the Supreme 
Court of the United States and assert that they are re­
quired to do so under valid laws of the Commonwealth.

2. The Defendants assert that the Commonwealth has 
made great strides toward the rearrangement of its school 
laws. The details of the steps taken are outlined below:

(a) Promptly after the decision of this Court on July 
18, 1955, it became apparent to the Governor that certain



[25]

provisions of Section 141 of the Constitution of Virginia 
might inhibit certain legislation deemed desirable in con­
nection with the solution of these problems. Accordingly, 
a judicial interpretation of this section was required. Action 
was promptly instituted in the Supreme Court of Appeals 
of Virginia. On November 7, 1955, that Court decided 
that the State could not pay money to private educational 
institutions for tuition purposes. Almond v. Day, 197 Va. 
419.

(b) Promptly after this decision, the Commission on 
Public Education on November 11, 1955, presented its re­
port to the Governor. A copy of this report is filed herewith 
as Exhibit A. This report recommended that an amendment 
of Section 141 of the Constitution of Virginia be proposed.

(c) On November 14, 1955, the Governor of Virginia 
summoned the General Assembly of Virginia to meet in 
special session on November 30, 1955, to consider the rec­
ommendation of the Commission on Public Education.

(d) On November 30, 1955, the General Assembly met 
in special session. It adopted an act, approved by the 
Governor on December 3, 1955, authorizing an election to 
determine whether a constitutional convention should be 
called to consider the amendment of Section 141 of the 
Constitution of Virginia.

(e) On January 9, 1956, the question so propounded 
was presented to the voters. The State Board of Elections 
certified to the Governor on January 16, 1956, that the 
electorate had voted in favor of such constitutional con­
vention by a vote of 304,154 in favor and 146,164 against.

(f) The General Assembly of Virginia met in regular



[ 2 6 ]

session on January 11, 1956. In obedience to the mandate 
of the electorate, a bill was promptly introduced to provide 
for the election of delegates to a constitutional convention 
and its. meeting. This bill was enacted by the General As­
sembly and approved by the Governor on January 19, 1956.

(g) Delegates to the Constitutional Convention were 
elected by the people in their respective districts on February 
21, 1956. This election was promptly canvassed.

(h) The Constitutional Convention met on March 5, 
1956. After deliberation, it promulgated Section 141 of 
the Constitution in amended form on March 7, 1956.

(i) The General Assembly adjourned at the conclusion 
of its regular session of 60 days duration on March 10, 
1956, 3 days after the promulgation of the Constitutional 
amendment.

(j) Section 22-122 requires the Division Superintend­
ent of Schools, with the advice of the School Board, to 
present to the Board of Supervisors a budget for the en­
suing school session on or before April 1 of each year. 
This budget is a part of the general County budget which 
must be acted on during the month of May. It is apparent, 
therefore, that no action taken by the General Assembly 
after the adjournment of the Constitutional Convention 
could have been effective for the session 1956-57.

(k) The Governor of Virginia has stated publicly that 
he proposes to call the General Assembly in special session 
within 90 days after June 6, 1956, to consider and take 
action on these problems. The statutes enacted at this ses­
sion will be effective for the session 1957-58.



[ 2 7 ]

3. Accordingly, the Defendants assert that the Common­
wealth has taken every reasonable step to proceed as 
rapidly as possible toward a reasonable solution of the prob­
lems raised by the decisions in this case.

4. The Defendants assert that any requirement by this 
Court that the high schools be no longer operated for the 
session 1956-57 on the basis on which they have been op­
erated in the past would result in the closing of such schools, 
increased racial tension and possible violence, to the lasting 
detriment of the citizens of Prince Edward County, whether 
they be children or adults, white or Negro. In support 
of this allegation, the Defendants present the affidavits of 
the persons listed below filed herewith as exhibits lettered 
as indicated opposite their names below:

Name of Affiant Exhibit Letter
Lester E. Andrews A
B. Calvin Bass B
James T. Clark C
Carter 0 . Lowance D
Thomas J. Mcllwaine E
Vernon C. Womack F

THE DEFENDANTS, therefore, request that the 
Motion for Further Relief filed by the Plaintiffs be denied.

[Exhibits Omitted]



[ 2 8 ]

SUPPLEMENTAL ANSWER AND MOTION TO 
DISMISS MOTION FOR FURTHER RELIEF

[R. pp. 100-101]

The Defendants respectfully move the Court to dismiss 
the Motion for Further Relief filed by the Plaintiffs herein 
on the following grounds:

L  On September 29, 1956, the Governor of Virginia 
approved Chapter 70 of the Acts of Assembly of Virginia 
for the Extra Session of 1956. This act, to become effective 
on December 28, 1956, provides a comprehensive program 
for the assignment of students to various schools, including 
provisions for administrative appeals with judicial review. 
A copy of this act appears on page 47 of the pamphlet 
attached hereto as Exhibit A, the pamphlet containing all 
of the statutes relating to the public schools enacted at such 
Extra Session. This act will be in effect before the opening 
of the next term of the public schools of Prince Edward 
County. The act provides effective administrative proce­
dures for the plaintiffs by which they can obtain the relief 
that they seek in this case to the extent that they are entitled 
to relief. The plaintiffs should not be permitted to seek 
relief now in this court until all administrative remedies 
provided by the act have been exhausted.

2. The order entered herein on July 18, 1955, was a 
final order and adequate remedies are available to the plain­
tiffs for the enforcement of that order. Accordingly, further 
relief in the form of an amendment of or supplement to 
that order should not be awarded to the plaintiffs.

[Exhibit Omitted]



[ 29]

OPINION 

[R. pp. 104-136]

This case originated in the Richmond Division upon the 
filing of a complaint on May 21, 1951. The declared object 
of the complaint was, in substance, to obtain a declaratory 
judgment holding that segregation of pupils in the public 
schools in the county by races constituted discrimination 
in violation of the Fourteenth Amendment to the Consti­
tution of the United States. There were also allegations 
concerning the inequality of school facilities, which last 
constituted a somewhat unimportant part of the contro­
versy.

The case was heard February 25-29, 1952, by a three- 
judge court, which had been convened in accordance with 
the provisions of the statute. The opinion of that Court 
was filed on March 7, 1952, and is reported in 103 Fed. 
Supp. 337. An appeal was allowed on May 5, 1952, and 
on May 17, 1954, the Supreme Court handed down its 
opinion, reversing the findings and conclusions of this 
Court, the case having been consolidated with four other 
cases then pending before it. See Brown v. Board of Edu­
cation, 347 U S ., 483. At the suggestion of the Court the 
case was further argued as to specific questions hereafter 
more fully discussed, and the Court filed its second opinion 
on May 31, 1955. 349 US., 294. The mandate having 
been received by this Court on June 28, 1955, the case was 
called for further proceedings and on July 18, 1955, the 
three-judge court entered an order directing compliance 
with the terms of the mandate, but finding that it was 
not practicable to effect a change in the operation of the 
public schools of the county during the session beginning 
September 1955.



[ 3 0 ]

On April 23, 1956, plaintiffs filed a motion seeking an 
order fixing a time limit within which compliance with 
the order should be had, to which answer of the defendants 
was filed on June 29, 1956. On July 9, 1956, the three- 
judge court was reconvened and, pursuant to order pre­
viously entered, heard argument on the sole question of 
whether it should continue to function or if the case should 
be returned to the resident District Judge in whose division 
suit was instituted. On July 19, 1956, the Court announced 
its unanimous decision that since the constitutional question 
involved had been determined, the three-judge court should 
no longer function and the matter should be heard by the 
resident District Judge. On October 17, 1956, defendants 
filed a motion seeking the dismissal of the case upon the 
ground that the General Assembly of Virginia in extra 
session 1956 had provided the plaintiffs an adequate remedy 
at law in the courts of the Commonwealth.

The respective motions were argued on November 14, 
1956, and the case is now before me as the resident Dis­
trict Judge for disposition of the motions upon the plead- 
ings and certain exhibits which have been filed pertaining 
to the motions.

I am mindful that other District Courts have dealt with 
similar cases but in each case the Court was dealing with 
the record before it and with the problems of the partic­
ular locality affected by its order. Consequently, those de­
cisions afford little, if any, aid in dealing with this case.

The questions raised by the supplemental answer and 
motion to dismiss the motion for further relief filed by the 
defendants on October 17, 1956, and the arguments there-



[3 1]

on, may be stated as follows:

(a) Should the three-judge District Court be re­
convened ?

(b) Are certain statutes passed by the General As­
sembly of Virginia in extra session 1956 constitu­
tional ?; and

(c) Should plaintiffs be required to exhaust ad­
ministrative remedies provided by the state statutes?

I shall first consider the questions presented in the last 
mentioned motion in the order stated.

From an examination of the applicable statute (Title 
28, Section 2281, United States Code), and upon consid­
eration of its purpose I reach the conclusion that in the 
present state of the record in this case it is not appro­
priate to request the convening of a three-judge court. There 
is no application before me for an order to restrain or 
enjoin the action of any officer of the state in the enforce­
ment or execution of any state statute or order such as 
contemplated by the Act of Congress.

In the present state of the record of this particular case 
I do not consider the constitutionality of the state statutes 
referred to or the relief there provided proper subjects of 
inquiry. They were the subject of argument at the hearing 
on November 14, 1956, and I shall dispose of the questions 
so raised without extended discussion.

The situation before me was aptly summed up by Judge 
Parker in Carson v. Warlick, decided November 14, 1956, 
in which he used the following language:



[ 3 2 ]

“It is argued that the Pupil Enrollment Act is un­
constitutional; but we can not hold that that statute 
is unconstitutional upon its face and the question as 
to whether it has been unconstitutionally applied is not 
before us, as the administrative remedy which it pro­
vides has not been invoked.”

And further:

“It is to be presumed that these (the officials of 
the schools and the school boards) will obey the law, 
observe the standard prescribed by the legislature, and 
avoid the discrimination on account of race which the 
Constitution forbids. Not until they have been applied 
to and have failed to give relief should the courts be 
asked to interfere in school administration. As said 
by the Supreme Court in Brown, et al v. Board of 
Education, et al, 349 U.S., 294, 299:

“ ‘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.’ ”

The opinion in The School Board of the City of Charlottes­
ville, et al v. Doris Mane Allen, et al, and County School 
Board of Arlington County, Virginia, et al v. Clarissa S. 
Thompson, et al (4th Cir.) decided December 31, 1956, 
contains language pertinent here. The Court again speaking 
through Chief Judge Parker, in referring to administrative 
remedies provided under Section 22-27 of the Code of Vir­
ginia, and after pointing out that the pupil placement law 
recently enacted by the General Assembly of Virginia had 
not become effective when the cases were heard (although



[ 33 ]

it was effective at the time that opinion was rendered, as 
is the situation here) said:

“* * *. Reliance is placed upon our decision in 
Carson v. Warlick, 4 Cir. F. 2d. . In that
case, however, an adequate administrative remedy had 
been prescribed by statute, the plaintiffs there had failed 
to pursue the remedy as outlined in the decision of 
the Supreme Court of the State and there was nothing 
upon which a court could say that if they had followed 
such remedy their rights under the Constitution would 
have been denied them.'” (Emphasis supplied)

See also Hood v. Board of Trustees, etc., 232 Fed. (2d), 
626 (4th Cir.), and Robinson v. Board of Education, etc., 
143 Fed. Supp., 4 8I (District of Maryland).

The quoted language appears in point in so far as the 
constitutional question is concerned. While the statutes in­
volved are not identical, the principle announced is appli­
cable.

Turning to the proposal that the plaintiffs be required to 
exhaust the administrative remedies provided by the state 
statutes, I am again confronted by the record before me. 
Being of opinion I am not in a position to pass upon the 
constitutionality of the statutes setting up the administra­
tive remedy, it is my thought that I should not undertake 
to require the plaintiffs to seek any particular remedy. 
They are free to do so and thereby test the constitutionality 
of the statutes should they desire. However, that is a right, 
not an obligation. In the meantime, this is a matter of 
school administration in which I should not interfere.



[ 3 4 ]

It follows that the motion of the defendants, to dismiss 
the motion for further relief should not be granted at this 
time. However, I incline to the view that instead of being 
dismissed it should be retained on the docket of the Court 
for final disposition at a later time should further pro­
ceedings develop an issue properly determinable in this case.

In undertaking to approach a solution to the trouble­
some problems involved in this case which are presented 
by the record and properly before me for determination, 
including the motion for further relief filed by the plain­
tiffs, it is to be borne in mind that the Supreme Court has 
decided only one legal principle which is concisely stated 
in the syllabus appearing in 347 U S., 483, as follows:

“Segregation of white and Negro children in the 
public schools of a state solely on the basis of race, 
pursuant to state laws permitting or requiring such 
segregation, denies to negro children the equal pro­
tection of the laws guaranteed by the Fourteenth 
Amendment * *

A study of the opinions of May 17, 1954, and May 31, 
1955, reveals no other principle of law to serve as precedent 
or landmark in undertaking to apply the law to the facts, 
although certain well-recognized equitable principles are 
mentioned. For a clearer understanding of the question here 
presented, some discussion of those opinions at this point 
may be helpful.

In the 1954 opinion, which will be referred to as the 
First Brown Case, at page 495, the Court, after stating 
that “because of the wide applicability of this decision, and 
because of the great variety of local conditions, the formu-



[ 35]

lation of decrees in these cases presents problems of con­
siderable complexity”, requested counsel to present further 
argument on questions which may be briefly summarized 
as follows: Whether a decree would necessarily follow pro­
viding that negro- children should forthwith be admitted 
to schools of their choice, or whether the Court should 
permit an effective gradual adjustment to be brought about 
to a system not based on color distinctions; whether the 
Supreme Court should formulate detailed decrees in the 
cases; if so, what specific issues should be reached there­
by ; if the appointment of a special master to hear evidence 
with a view of recommending specific terms for the decrees 
would be desirable; and finally, whether that Court should 
remand the cases to the courts of first instance with direc­
tions to frame decrees, and if that policy were followed, 
what general directions should the decrees of the Supreme 
Court include and what procedures should the courts of 
first instance follow in arriving at the specific terms of 
more detailed decrees. For full text of the questions pro­
pounded and argued see 345 U.S., 972.

Following elaborate argument upon these questions, in 
which the Attorneys General of the affected states and the 
Solicitor General of the United States presented their views, 
the Court filed its opinion on May 31, 1955, which will 
be referred to as the Second Brown Case. With knowledge 
of what was considered by the Court, as revealed by the 
questions, the language of the opinion in the Second Brown 
Case takes on added significance, both with respect to what 
was not said as well as to what was said. Certain portions 
of that opinion follow:

“Full implementation of these constitutional prin­
ciples may require solution of varied local school



[ 3 6 ]

problems. School authorities have the primary re­
sponsibility for elucidating, assessing, and solving these 
problems; courts will have to consider whether the 
action of school authorities constitutes good faith im­
plementation 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 appraisal. Accordingly, we believe it appro­
priate to remand the cases to those courts.”

The Court then proceeded to announce the following 
principles which should receive attention of the District 
Courts:

“In fashioning and effectuating the decrees, the 
courts will be guided by equitable principles. Tradi­
tionally, equity has been characterized by a practical 
flexibility in shaping its remedies and by a facility 
for adjusting and reconciling public and private needs. 
These cases call for the exercise of these traditional 
attributes of equity power. At stake is the personal 
interest of the plaintiffs in admission to public schools 
as soon as practicable on a nondiscriminatory basis. 
To effectuate this interest may call for elimination of 
a variety of obstacles in making the transition to school 
systems operated in accordance with the constitutional 
principles set forth in our May 17, 1954, decision. 
Courts of equity may properly take into account the 
public interest in the elimination of such obstacles in 
a systematic and effective manner. But it should go 
without saying that the vitality of these constitutional



[37]

principles cannot be allowed to yield simply because 
of disagreement with them.”

From the foregoing it is clear that the law must be 
enforced but the Court is acutely conscious of the variety 
of problems of a local nature constituting factors to be 
considered in the enforcement. Further emphasis upon this 
point is found on page 298, where the Court said:

“Because these cases arose under different local con­
ditions and their disposition will involve a variety of 
local problems, we requested further argument on the 
question of relief.”

Bearing in mind that the only legal issue in this case 
pertains to a right guaranteed by the Constitution, this 
language coupled with the action of the Court, takes on 
significance which can hardly be over emphasized. It is 
elementary law that one deprived of a right guaranteed by 
the Constitution ordinarily is afforded immediate relief. 
Notwithstanding this fundamental principle, the Supreme 
Court in this case has seen fit to specifically declare that 
while the plaintiffs are entitled to the exercise of a con­
stitutional right, in view of the grave and perplexing prob­
lems involved, the exercise of that right must be deferred. 
With that declaration the Court used equally forceful lan­
guage indicating that it realizes that conditions vary in 
different localities. Consequently, instead of simply declar­
ing the right and entering a mandate accordingly, it has 
seen fit in the exercise of its equity powers to not only 
defer until a later date the time when the right may be 
exercised, but to clearly indicate that the time of exercising 
such right may vary with conditions. A realization of the



effect of this action on the part of the Court is of supreme 
importance to an understanding of the course to be pursued 
by the Courts of first instance. At the risk of being rep­
etitious, I again recall that: Before laying down those 
principles, the Court considered and rejected the suggestion 
that negro children should be forthwith admitted to schools 
of their choice; rejected the suggestion that it formulate 
detailed decrees; rejected the suggestion that a special 
master be appointed by it to hear evidence with a view 
to recommending specific terms for such decrees and 
adopted the proposal that the Court in the exercise of 
equity powers direct an effective gradual adjustment under 
the order of the Courts of first instance. Further, the Court 
considered and rejected the suggestion that a specified rule 
of procedure be established for the District Courts but placed 
upon those Courts the responsibility of considering, weigh­
ing and being guided by conditions found to prevail in 
each of the several communities to be affected by their 
decrees.

In the absence of precedent, in undertaking* to follow 
the mandate of the Supreme Court, the District Courts 
are confronted with the necessity of following an uncharted 
course in applying the sole legal principle announced in 
the First Brown Case. One idea which emerges clearly is 
that procedural rules adopted in one locality may be al­
together inapplicable to conditions in another.

Boiled down to its essence, in the Second Brown Case 
the Court after pointing out that the local school author­
ities have the primary responsibility of finding a solution 
to the varied local problems, proceeded to observe that the 
District Courts are to consider whether the actions of the 
local authorities are in good faith; and that by reason of



1 3 9]

their proximity to local conditions those Courts can best 
appraise the conduct of the local authorities. It is then 
pointed out that in so appraising, the Courts should be 
guided by the traditionally flexible principles of equity for 
adjusting and reconciling public and private needs. To be 
considered is the personal interest of the plaintiffs, as well 
as the public interest in the elimination of obstacles in a 
systematic and effective manner. During this period the 
Courts should retain jurisdiction of the cases. The Court 
has here clearly and in unmistakable terms placed upon 
the District Judges the responsibility of weighing the 
various factors which prevail in the respective localities 
affected. There is here a recognition of the obvious fact 
that in one locality in which conditions permit, a change 
may be effected almost immediately. In other localities a 
specified period appropriate in each case may be feasible 
and a definite time limit fixed accordingly. In yet other 
communities a greater time for compliance may be found 
necessary. It is clear that the Court anticipated the appli­
cation of a test of expediency in such cases so that an 
orderly change may be accomplished without causing a 
sudden disruption of the way of life of the multitude of 
people affected.

While the Supreme Court made no reference to yet an­
other interest, there is one of a semi-public nature. This 
involves the teachers of the county, both white and colored, 
and their families, dependent upon them for support.

The conflicting rights and interests of racial and national 
groups in this country is nothing new. It is not confined to 
the negro race but numerous illustrations might be used. 
A striking illustration is found in the situation of persons 
of Oriental origin who have come to this country. It is



[ 4 0 ]

worthy of passing note to recall that the opinion appearing 
in the official reports immediately preceding the First Brown 
Case involves the rights of persons of Mexican descent. 
Hernandez v. Texas, 347 U.S., 475. It must be borne in 
mind that these conflicts and the cases arising therefrom 
are the result of customs, traditions, manners and emotions 
which have existed for generations. In this particular case 
the customs to be changed have been not only generally 
accepted but repeatedly and expressly declared the law of 
the land since 1896.1 While lawyers may have been con­
scious of the evolution of the law during this period and 
prepared to anticipate the possibility of a change, the 
average layman affected may not be charged with such 
prescience. Patience, time and a sympathetic approach are 
imperative to accomplish a change of conditions in an 
orderly and peaceful manner and with a minimum of fric­
tion.

In seeking a solution it is necessary to know and to 
understand the background upon which the factual situation 
is cast. In this connection it is necessary to examine briefly 
the present conditions in Prince Edward County, Virginia, 
historically and as revealed by the record in this case.2

Prince Edward County being inland from the easily navi­
gable tidal reaches of the streams watering that region, 
was not settled until the first half of the 18th century, 
after the power of the Indians had been broken. At that 
time the pattern of life in the Colony had become established 
and the early residents carried with them the manners and

1 Plessy V. Ferguson, 163 U.S., S37; Gong Lum  v. Rice, 275 U.S., 78

2 See “History of Prince Edward County, Virginia”—H erbert Clarence 
Bradshaw—1955



[ 4 1 ]

customs prevailing in the more populous regions of Vir­
ginia. By 1783 the population consisted of 1,552 white and 
1,468 colored residents. The 1950 census showed a popu­
lation of 15,396, with the white and colored races approxi­
mately equal in number. During the intervening years the 
relations between the races have been harmonious, with 
a minimum of friction and tension as compared with some 
regions. During several decades prior to the War Between 
the States the processes of orderly and gradual adjustment 
which were becoming increasingly evident were interrupted 
by being involved in the political issues confronting the 
growing nation, with particular reference to regional dif­
ferences and the clash of economic rivalries of various 
sections. Unfortunately this resulted in accentuating racial 
tension and hostility which became somewhat acute at times. 
While these conditions were common to the southeastern 
and southern parts of the country, it was felt less in Prince 
Edward and the surrounding area than in many other sec­
tions.

In the days following 1861-65 the entire section was 
poverty stricken. For the rank and file of both races there 
was a struggle for existence and education was of secondary 
importance. It is true that in this situation with the local 
government controlled by members of the white race and 
with severely limited means, there was inequality in the 
division, but members of the negro race were not excluded 
from sharing, although to a lesser extent. This was due 
in part to an understandable, if erroneous, feeling that those 
upon whom the greater tax burden fell should receive the 
greater benefit. During the second quarter of the present 
century the economy of the section most seriously concerned 
has shown a marked improvement. Due to that improve-



[ 42]

ment, corresponding advantages have resulted in housing, 
education and knowledge on the part of both races. Marked 
improvement in racial relationship resulted although many 
firmly fixed ancient customs and manners remain. With 
an improvement in the economic condition of the county 
and the resulting- increase in available financial resources, 
an awareness of public sentiment, the mandatory require­
ments of the Virginia constitution and statutes upon the 
subject, coupled with suits brought in Federal Courts in 
other localities, the responsible authorities of Prince Ed­
ward County made plans for the erection of new school 
buildings exclusively for negroes, which are now concededly 
equal if not superior to those occupied by the white pupils.

Before these plans could be completed, this suit was filed. 
Since the decision in the Brown case these plans have been 
completed. The defendants, who are the Superintendent and 
members of the School Board, and aŝ  such charged with 
the “primary responsibility for elucidating, assessing and 
solving” their problems, have proceeded with the operation 
of the schools in the county in accordance with the practice 
which has prevailed. They have prepared and submitted 
to the Board of Supervisors of the county annual budgets 
for the operation of the schools. In this connection it is 
to be borne in mind that the defendants have no authority 
under the law to levy or assess taxes nor to raise funds 
except in a limited manner by borrowing under certain con­
ditions not pertinent here. Responsibility for providing local 
funds for the operation of schools rests upon the Board of 
Supervisors who are not defendants before this Court. The 
School Board consists of members appointed by the school 
trustee electoral board, the members of which in turn are 
appointed by the local state court. The members of the



Board of Supervisors are elected by the people. Buttressed 
by popular demand of the people of the county since the 
decision in the First Brown Case, evidence in part by 
a petition signed by more than 4,000 residents, the Board 
of Supervisors has declined to allocate funds for the opera­
tion of schools on an annual basis. Instead it appropriates 
the necessary operating expenses on a monthly basis, with 
a publically declared intention of discontinuing such ap­
propriation if schools in the county are mixed racially at 
this time. In this connection attention is invited to the 
statutes recently enacted by the Virginia General Assem­
bly under which the funds provided by the state may be 
withheld. Pending final interpretation of those statutes time 
valuable in the educational opportunities of the children in­
volved might be irretrievably lost. Affidavits filed in this 
case and in no way controverted or mentioned, by counsel 
for the plaintiffs, declare racial relations in the county to 
be more strained than at any time during the present gen­
eration.

In this state- of facts I am called upon to fix a time 
when the defendants should be required to comply with 
the terms of the injunction issued by the three-judge court 
in obedience to the mandate of the Supreme Court. To 
do this I am to “adjust and reconcile public and private 
needs”, by weighing and considering the personal interests 
of the plaintiffs as well as the interest of the public, in 
the elimination of obstacles in order that there may be 
a systematic, orderly and effective transition of the school 
system in accordance with the constitutional principles 
announced in the Brown case.

I believe the problems to be capable of solution but they 
will require patience, time and a sympathetic understanding.



[44]

They can not be solved by zealous advocates, by an 
emotional approach, nor by those with selfish interests to 
advance. The law has been announced by the Supreme Court 
and must be observed but the solution must be discovered 
by those affected under the guidance of sensible leader­
ship. These facts should be self evident to all responsible 
people.

The children of both races, constituting an entire genera­
tion of this county, are the persons to be affected by what­
ever action may be taken and it follows that theirs is the 
real interest at stake, although closely connected with that 
of their parents and guardians.

Should the public schools of the county be closed for 
any reason, approximately three thousand children, includ­
ing those of an age at which they are peculiarly impression­
able, will be released from attendance. An interrupted 
education of one year or even six months at that age places 
a serious handicap upon the child which the average one 
may not overcome. Among those of the older group there 
are some for whom it will mean the end of an education. 
Should the schools be resumed after an interruption, those 
among the younger group will be retarded in acquiring 
an education as compared with their contemporaries in other 
communities. With the release from discipline brought about 
by compulsory attendance at school, problems concerning 
juvenile conduct will be intensified with resulting injury 
to both children and the community and a resulting in­
crease of racial tension with members of each race blaming 
the other for the lack of schools. In this connection it is 
to be remembered that the police protection of rural com­
munities is different from that afforded in more populous 
areas. The salaries paid teachers in the state are not such



[ 45 ]

as to enable them to accumulate a fund sufficient to support 
themselves and their families over a protracted period of 
unemployment. Loss of employment would be a serious con­
sequence to many teachers of both races who are established 
in the community. Tentative and substantial plans have 
been made for continuation by private means of the edu­
cation of white children of the county. There is no such 
provision for negro children. These considerations all in­
volve the public and private interests of the community as 
distinguished from the quandary of the members of the 
School Board.

The admonition of the Supreme Court that the personal 
interests of the plaintiffs in admission to public schools 
as soon as practicable on a nondiscriminatory basis is a 
consideration of which I am mindful. In response to a ques­
tion from the bench, counsel for the plaintiffs stated that 
so far as he knew none of the original plaintiffs are now 
attending the schools. However, additional named plaintiffs 
have intervened and it is to be recalled that this is a class 
action. Should the plaintiffs be deprived of education or 
suffer an interruption in their education they will be handi­
capped. Concededly, their opportunities in so far as physical 
equipment and curriculum are concerned, are equal if not 
superior to those available to children of the white race. 
It has been held by the Court that segregation of white 
and colored children in public schools has a detrimental 
psychological effect upon the colored children. That is pri­
marily the basis upon which the Brown case is founded. 
It is my belief that at this time a continuation of present 
methods could not be so harmful as an interrupted educa­
tion.

Laying aside for the moment the probability of the



[ 46J
schools being closed, in the present state of unrest and 
racial tension in the county it would be unwise to attempt 
to force a change of the system until the entire situation 
can be considered and adjustments gradually brought about. 
This must be accomplished by the reasonable, clear-thinking 
people of both races in that locality. This objective can 
not be achieved quickly. It does not require the opinion of 
a psychologist to understand that disaffection, uneasiness 
and uncertainty of the adult world around them creates 
emotional problems for children concerned. A sudden dis­
ruption of reasonably amicable racial relations which have 
been laboriously built up over a period of more than three 
and a quarter centuries would be deplorable. At any reason­
able cost, it must be avoided.

I conceive the immediate problems of the Court to be 
to determine whether the School Board is acting in good 
faith and whether the facts before the Court at this time 
are such that an order fixing a time limit for compliance 
with the decree is proper, taking* into consideration the 
various factors outlined in the Brown case to which con­
sideration has been given. I do not conceive it to be within 
the power of this Court to forecast conditions which may 
exist in the future. Stated differently, I must reach a con­
clusion based upon the facts existing at this time in the 
locality to be affected.

The passage of time with apparent inaction on the part 
of the defendants of itself does not necessarily show non- 
compliance. This is illustrated by the fact that after the 
appeal in this case was granted in May, 1952, more than 
three years elapsed before the mandate of the Supreme 
Court was received. I find that the defendants by submitting 
the usual budget requesting appropriations have done all



[47

that reasonably could be required of them in this period 
of transition. Action which might cause mixing the schools 
at this time, resulting in closing them, would be highly 
and permanently injurious to children of both races. Re­
lations between the members of the two races in the county 
would be adversely affected and a final solution of the 
vexing problems delayed as a consequence.

At this time the children of both races are being af­
forded opportunities for an education under an adequate 
system that has been formulated over the years. If an order 
should result in racially integrated schools, the school system 
of itself would change greatly. Plans should be made to 
keep within bounds the automatic adjustments that would 
follow in order that society not be too drastically affected.

Many minds are now engaged in seeking an equitable 
solution of the problem, including those of the defendants. 
As was said by a great stateman, “The march of the human 
mind is slow”.3 It is inconceivable that any of the litigants 
or other persons affected would willingly see the public 
school system abolished or an interruption in the educa­
tion of the children of the county. Either result would be 
disastrous to both public and private interests of the county.

It is imperative that additional time be allowed the de­
fendants in this case, who find themselves in a position 
of helplessness unless the Court considers their situation 
from an equitable and reasonable viewpoint.

Considering all the factors, it is my conclusion that de­
cision of the motion for further relief filed by the plaintiffs

8 —Edmund Burke—“Speech on the Conciliation of America”



[ 4 8 ]

should be withheld at this time, with the reservation to 
the plaintiffs of the right to renew the motion at a later 
date after the defendants have been afforded a reasonable 
time to effect a solution.

In conclusion, attention is again called to the following 
language of the Supreme Court which is the law of this 
case and must be observed:

“But it should go without saying that the vitality 
of these constitutional principles can not be allowed 
to yield simply because of disagreement with them.”

ORDER 
[R. p, 137]

For reasons stated in the opinion filed herein on January 
23, 1957; it is

ORDERED that (a) the Court does not pass on the 
matters raised in the defendant’s motion to dismiss the 
motion for further relief (including any and all questions 
involving the constitutionality of the statutes of the Com­
monwealth of Virginia there mentioned) ; (b) the motion 
that a three-judge court be convened to consider and pass 
on questions before the Court at this time is denied; and 
(c) the motion for further relief filed by the plaintiffs 
herein is denied at this time.

It is further ORDERED that this action be retained 
on the docket of this Court for such further proceedings 
as may be appropriate.