Hill v. City of Norfolk, VA School Board Appendix to Brief of Appellants

    I n  th e

Itttteb (Emort of Kppmlz
F or t h e  F ourth  C ircu it  

No. 8053

J ulia  E liza beth  H il l , etc., et al.,

—v.-
Appellants,

S chool B oard of t h e  C ity  op N orfolk , V irg in ia , et al.,
Appellees.

appeal from  t h e  u n it e d  states district court for t h e
EASTERN DISTRICT OP VIRGINIA, NORFOLK DIVISION

APPENDIX TO BRIEF OF APPELLANTS

V ictor J .  A sh e
1134 Church Street 
Norfolk, Virginia

J .  H ugh  M adison
1045 Church Street 
Norfolk, Virginia

J o seph  A . J ordan, J r .
721 East Brambleton Avenue 
Norfolk, Virginia

Oliver W . H ill
118 East Leigh Street 
Richmond 19, Virginia

S pottswood W . R obinson , I I I  
623 North Third Street 
Richmond 19, Virginia

T hurgood M arshall 
10 Columbus Circle 
New York 19, New York

Counsel for Appellants



PAGE

I. Opinions and Orders ......................................... 2a
Memorandum, Filed September 8, 1959 ......  2a
Order, Filed September 8, 1959 .....................  14a
Memorandum, Filed May 8, 1959 .................  17a
Memorandum, Filed September 18, 1958 ......  28a

II. Excerpts from Reporter’s Transcript of Trial
Proceedings Had on August 27-28, 1959 ..........  36a

Stipulation ........................... .......................... 37a
J .  J .  Brewbaker ........... ...................... ...... . 42a
E. L. Lamberth ...............................................  63a

III. Excerpts from Reporter’s Transcript of Trial
Proceedings Had on August 18-22, 1958 ........... 110a

J .  J .  Brewbaker ............................................  110a
Thomas H. Henderson __ _______ __ ____  121a

IV. Amended Procedures Relating to the Assign­
ment of Pupils to Public Schools of the City of 
Norfolk, Filed March 6, 1959 ............................. 143a

INDEX TO APPENDIX



A P P E N D I X

I n  t h e

lutttb Bintts (Emtrt nt Kppmlz
F or t h e  F ourth  C ircuit

No. 8053

J ulia  E lizabeth  H ill , etc., et al.,

Appellants,
v.

S chool B oard op t h e  C ity op N orfolk, 
V irg in ia , et al.,

Appellees.

APPEAL PROM THE UNITED STATES DISTRICT COURT POE THE 
EASTERN DISTRICT OP VIRGINIA, NORFOLK DIVISION

Civil Action File No. 2214

L eola P earl B eck ett , et al.,

vs.

T h e  S chool B oard of th e  City  op N orfolk, V a., et al.,



2a

I n* t h e

■201-

Im t^  Emtvxct (to rt
F oe t h e  E astern D istrict oe V irginia  

Norfolk Division 
Civil Action No. 2214

L eola P earl B ec k ett , etc., et al.,
Plaintiffs,

v.

T h e  S chool B oard of t h e  City  op N orfolk, 
V irg in ia , et al.,

Defendants.

Memorandum— Filed Septem ber 8 , 1959

The prior proceedings in this litigation are fully doc­
umented in Beckett v. The School Board of the City of 
Norfolk, 148 F. Supp. 430, aff. sub nom. School Board of 
the City of Norfolk v. Beckett (School Board of the City 
of Newport News v. Atkins), 4 Cir., 246 F. (2d) 325, cert, 
den. sub nom. School Board of City of Newport News, Vir­
ginia, et al v. Atkins, et al, 355 U. S. 855, 78 S. Ct. 83, 
2 L. Ed. (2d) 63; School Board of City of Norfolk, 260 F. 
(2d) 18; Beckett v. The School Board of the City of 
Norfolk (unreported opinion of May 8, 1959). See also, 
the related cases of James v. Almond, 170 F. Supp. 331 
(three-judge court); James v. Duckworth, 170 F. Supp. 
342, aff. sub nom. Duckworth v. James, 4 Cir., 267 F. (2d) 
224; Beckett v. School Board of City of Norfolk, 2 Race Rel. 
L. Rep. 337 (otherwise unreported); Beckett v. School 
Board of City of Norfolk, 3 Race Rel. L. Rep. 942-964



3a

(otherwise unreported); Harrison v. Day, 200 Va. 439, 
106 S. E. (2d) 636; Adkinson v. The School Board of City 
of Newport News (unreported opinion of May 12, 1959).

On August 13, 1959, the School Board and its Division 
Superintendent filed two reports herein, not in response 
to any order, but apparently by reason of a conflict occa­
sioned by action of the Pupil Placement Board, a state 
agency established under the provisions of Sec. 22-232.l  et 
seq., of the Code of Virginia, 1950, as amended. The two re­
ports may generally be characterized as (1) relating to 
action taken on applications of certain Negro children for 
admission into public schools of the City of Norfolk previ­
ously attended solely or predominantly by children of the 
white race for the school year beginning September 8, 1959, 
and (2) relating to action taken with respect to children who 
are affected by the construction of Bosemont Elementary 
School and Coronado Elementary School in areas which 
are predominantly occupied by members of the Negro race.

Upon the filing of said reports the Court convened counsel 
for a pre-trial conference and, having been verbally advised

- 202-

in advance of the filing of said reports that a conflict 
had arisen by reason of the action of the Placement Board 
in declining to follow the recommendation of the School 
Board in assigning at least two Negro children to 
schools attended solely or predominantly by white children, 
the Court invited, but did not command, the attendance 
of counsel for the Placement Board at said pre-trial con­
ference.

The pre-trial conference was held on August 14, 1959, 
attended by counsel for the plaintiffs and the School Board. 
Counsel for the Placement Board could not attend due

Memorandum—Filed September 8, 1959



4a

to other engagements. The plaintiffs verbally moved the 
Court to add the Placement Board and its individual mem­
bers as parties defendant to this action, and further asked 
leave to file amended and/or supplemental pleadings here­
in. In light of the Court’s ruling in Adkinson v. The School 
Board of the City of Newport News, Civil Action No. 642, 
Newport News Division, holding the Pupil Placement Act 
constitutional on its face, it was apparent to the Court 
and counsel for the School Board that the Placement Board 
and its individual members were “conditionally necessary” 
parties to the action. An order was entered on August 14, 
1959, adding the additional parties defendant; reference to 
said order being hereby made.

Within the time prescribed by said order, the plaintiffs 
filed certain motions for further relief, together with a 
motion requesting leave to file a complaint in intervention. 
The Placement Board and its members appeared specially 
and moved to abate the proceedings until such time as these 
defendants were enabled to prepare their defense and an­
swer the appropriate pleadings. The School Board and its 
Division Superintendent likewise filed pleadings in re­
sponse to plaintiffs’ motions, but it is unnecessary to dis­
cuss these matters.

At the hearing held on August 27-28, 1959, the Court, 
without objection of any party, granted the plaintiffs’ 
motion to file a complaint in intervention. Counsel for 
the Placement Board contended that his clients were not 
yet parties to the litigation, but Rule 21, Federal Rules 
of Civil Procedure, clearly grants such authority where it 
is said:

“Parties may be dropped or added by order of the court 
on motion of any party or of its own initiative at any 
stage of the action and on such terms as are just. Any

Memorandum—Filed, September 8, 1959



5a

claim against a party may be severed and proceeded
with, separately.”

To delay the hearing beyond August 27-28 would, in effect, 
deprive the plaintiffs of an opportunity to secure the relief 
sought as the public schools are scheduled to open on 
September 8, 1959, and, with Labor Day weekend inter-

—203—
veiling, it would be impossible to schedule a later hearing 
prior to the opening of the school term. However, as this 
Court said in Adkimson and District Judge Bryan so aptly 
stated in Thompson v. County School Board of Arlington 
County, 166 F. Supp. 529, the impact of any decree would 
be upon the School Board in charge of the schools as the 
local Board and its employees actually admit or reject 
the students.

To afford the Placement Board and its members of an op­
portunity to answer the pleadings and prepare a defense, 
the Court directed the additional parties defendant to file 
an answer or other appropriate pleading within twenty 
days from August 27, 1959. At the same time the Court 
announced that no action taken at the August 27-28 hear­
ings would result in any order directing or prohibiting 
the Placement Board and its members from doing any act 
with respect to said plaintiffs, other than to file the re­
sponsive pleading as aforesaid. By reason of the com­
mencement of the school term on September 8, 1959, the 
Court further stated that it would hear the evidence, in­
cluding the testimony of the individual members of the 
Placement Board who appeared in court in response to 
the order of August 14, 1959, to determine whether the 
Negro children seeking relief were entitled to physical ad­
mission into certain public schools of the City of Norfolk

Memorandum—Filed September 8, 1959



6a

as of September 8, 1959, on a temporary basis, subject to 
further action of this Court in ascertaining whether said 
children should be assigned or enrolled therein after hear­
ing from the Placement Board subsequent to the filing of 
a responsive pleading.

With one exception, the decision of the Court as to the 
temporary admission or denial of the plaintiffs’ requests 
was announced from the bench following the conclusion of 
the evidence and argument of counsel. The Court having 
reserved the right to make more formal findings of fact 
and conclusions of law, this memorandum follows.

Patricia Amelia Turner and Reginald A. Young
These two Negro children attended predominantly white 

schools during the previous school term, February-June, 
1959. They satisfactorily completed their work in these 
schools. If they were white children, they would admittedly 
be assigned and enrolled in Norview High School and 
Maury High School respectively, for the school year be­
ginning September 8, 1959. They reside within the school 
district which would ordinarily suggest that they are en­
titled to attend the schools to which the School Board has 
recommended they be assigned.

—204—
Initially, the School Board did not request any action of 

the Placement Board by way of assignment or enrollment 
into the schools attended predominantly by white children; 
it being the view of the School Board that action with 
respect to these children was a routine promotion. In this 
action, the School Board was in error. Sec. 22-232.7 of the 
Code of Virginia, 1950, as amended. These children grad­
uated from one school to another within the school divi­

Memorandum— Filed\ September 8, 1959



7a

sion, and hence are subject to the legal and constitutional 
actions of the Placement Board.

By letter dated July 21, 1959, the School Board advised 
the Placement Board of the so-called routine promotion of 
these two children into schools attended predominantly by 
white children. The Placement Board immediately re­
quested the School Board to forward applications for en­
rollment pursuant to §22-232.7. The School Board com­
plied.1 At the hearing of August 27-28 the Placement 
Board advised that it had taken no action on these ap­
plications, but suggested that it would act during the fol­
lowing week. On August 28, the Court directed the School 
Board to physically admit, on a temporary basis subject 
to the further order of this Court, the aforesaid Patricia 
Anzella Turner and Reginald A. Young to Norview High 
School and Maury High School respectively.

By letter dated September 3, 1959, addressed to the 
Division Superintendent of Schools, the Placement Board 
advised that the two Negro children had been assigned to 
Booker T. Washington School, a school heretofore at­
tended solely by Negro children. In explanation of this 
action the Placement Board said :

“This action is consistent with its policy that it will 
not place a Negro child in a white school or a pre­
dominantly white school, or a white child in a Negro 
school or a predominantly Negro school, unless or 
until an appeal is made to the Board and a hearing 
held. Such a hearing would provide the Board with 
an opportunity to ascertain the true facts and cir­
cumstances surrounding each particular case and

Memorandum—Filed September 8, 1959

1 The evidence does not reveal whether the School Board forwarded ap­
plications for all so-called routine promotions. Apparently it did not.



8a

thereby enable it, in the exercise of quasi-judicial func­
tions, to take that action which, in the opinion of the 
Board, would be to the best interest of each individ­
ual child.”

—205—
The policy declared by this letter does not appear in the 
statute; nor has it heretofore been placed in written form. 
It came to light during the interrogation of a member 
(Randolph) and the other two members (White and Far­
ley) concurred therein. Both White and Farley stated or 
strongly suggested that they could never vote to assign 
a Negro child, irrespective of the child’s qualifications and 
geographical location of the child’s home, into a school 
attended solely or predominantly by children of the white 
race, as it was their view that such action would not be in 
the best interest of the child.

Issues pertaining to the constitutionality by way of ap­
plication of the action and policy of the Placement Board 
are reserved for further hearing, but it is sufficient to 
state that a prima facie showing of unconstitutional appli­
cation of the Pupil Placement Act has been established to 
justify the action in physically admitting these children 
on a temporary basis to schools other than as designated 
by the Placement Board.

Moreover, the delay in acting upon these two applica­
tions has deprived the parents of these children of an ef­
fective right to protest the Board’s action under §22-232.8. 
The cumbersome procedure set forth in the Act, when con­
sidered in light of the Board’s recently announced policy, 
would result in no action being taken for an approximate 
period of sixty days. In the interim, without intervention 
by the Court, the children would be required to attend 
the school to which they were assigned by the Placement

Memorandum—Filed September 8, 1959



9a

Board. As lias so frequently been said, the administra­
tive remedy must be adequate, not futile.

Daphne Perminter and Anita Mayer
These Negro children were recommended by the School 

Board for assignment and enrollment into Suburban Park 
Elementary School and Maury High School respectively. 
The Placement Board, without considering the aptitude 
tests and interviews so capably conducted by the School 
Board, assigned the children to schools attended solely by 
Negro children, apparently in accordance with its pre­
viously unannounced policy as indicated by its letter of 
September 3, 1959. True, the parents of these children did 
not seek the administrative review by way of protest as 
provided by §22-232.8, but the evidence disclosed that 
neither the Placement Board nor the School Board had 
advised the parents of the action taken by the Placement 
Board. The fifteen day period for making any written 
protest had expired before the court hearing. The Place-

—206—
ment Board conceded that it never notified the parents of 
the action taken, and had never requested the School Board 
to so notify them, although the Placement Board had as­
sumed that the School Board would take such action.2

Upon a review of the tests and interviews, together with 
a consideration of the location of the children’s homes, the 
Court directed that these two children be physically ad­
mitted, on a temporary basis subject to further order of 
the Court, to the schools as recommended by the School 
Board.

2 Apparently the Placement Board has now decided to notify the parents 
in all instances where its action is contrary to the recommendation of the 
School Board, as a copy of the letter of September 3, 1959, was sent to the 
parents.

Memorandum—Filed September 8, 1959



10a

Gloria Scott and Bobby J. Neville
These children, having previously attended schools which 

have heretofore been attended only by children of the 
Negro race, now seek admission into Blair Junior High 
School and Norview Junior High School respectively. They 
were required to take tests and be subjected to interviews 
by the School Board. They graduated from one school to 
another within the school division. They reside within a 
school district which would suggest their attendance at 
Blair and Norview if they were white children.

By its opinion of May 8, 1959, this Court approved the 
requirement of tests and interviews, if equally applied to 
children of the same class and race. Blair and Norview 
are already racially mixed. The Court said:

“It is assumed that, with respect to the schools already 
racially mixed, the ‘unusual circumstances’ would exist, 
and that applicants (both white and Negro) applying 
for transfer to, or initial enrollment in, such racially 
mixed school will be required to submit to tests and 
interviews.”

The School Board incorrectly, but not deliberately, inter­
preted this language as excluding the necessity of giving 
tests and interviews to children of the white race gradu­
ating from one school to another within the school division. 
In commenting upon the language of the United States

—207-
Court of Appeals for the Fourth Circuit in Hamm v. 
County School Board of Arlington County, 4 Cir., 264 F. 
(2d) 945, this Court said in its opinion of May 8, 1959:

“It does suggest, however, that there should be equality 
of treatment as to children seeking admissions to par­
ticular schools under particular conditions.”

Memorandum—Filed September 8, 1959



11a

It is apparent that the School Board has unconstitu­
tionally applied its standards, procedure, and criteria in 
requiring these two Negro children to take tests and sub­
mit to interviews, whereas white children similarly situated 
were excused from compliance. The School Board argues 
that graduation is “in the stream”, but this is a “racial 
stream” so condemned by the decisions of courts of last 
resort.

The unconstitutional application compels temporary ac­
tion by the Court as the tests and interviews must be dis­
regarded. Actually one of these children is on the border­
line scholastically in any event, whereas the other child 
is probably not presently equipped to maintain the work. 
The children have been admitted to the schools of their 
choice on a temporary basis and, in order to make an 
appropriate recommendation to the Placement Board at a 
later date, it is suggested that a study be made of these 
two children for a period of 60 to 90 days and, predicated 
upon their accomplishments (or lack of same) after said 
period, the School Board shall make an appropriate recom­
mendation to the Placement Board as to assignment or 
enrollment, which said recommendation shall be made with­
out regard to the tests and interviews heretofore given. 
If aptitude tests are to be hereafter given to these two 
children, they shall be likewise given to all children in the 
particular grade in which the Negro child is in attendance.

Mary Rose Foxworth
This Negro child has applied for admission into Subur­

ban Park Elementary School, one heretofore attended only 
by white children but racially mixed on a temporary basis 
by reason of the action aforesaid as to Daphne Perminter. 
At the request of all counsel, the evidence as to this child 
was heard in chambers. Prom the statements there made,

Memorandum—Filed September 8, 1959



12a

it appears that the child fulfills every requirement for ad­
mission to Suburban Park. The action of the School Board 
in declining to recommend her assignment is not legally 
sufficient and involves circumstances over which the child 
had no control. The child will be admitted on a temporary 
basis, subject to the further order of the Court, and the 
School Board will, at the expiration of sixty to ninety days, 
make an appropriate recommendation to the Placement 
Board predicated solely upon the child’s accomplishments 
(or lack of same) during said period.

—208—
The Remaining Children

The applications of all other Negro children are denied 
for reasons more adequately stated in the Court’s opinion 
of May 8, 1959. They are either deficient in their school 
work or in their tests as constitutionally administered. 
They fall within the classification that, for the time being 
at least, reasonable tests and standards must be estab­
lished to regulate the procedures to be followed in an or­
derly transition period. There is no challenge made as to 
the honesty and integrity of the School Board in admin­
istering these tests. The decision of the School Board is 
essentially one of judgment and should not be arbitrarily 
disregarded. It is argued that (1) there are white children 
in the same grade who do not maintain the same required 
standards and (2) white children residing within school 
districts in which Negroes are the predominant race are 
not required to attend the school attended solely or pre­
dominantly by Negroes. These facts do not per se prove 
discrimination. They are among the problems which the 
Supreme Court said in Brown must be elucidated, assessed, 
and solved in good faith implementation of governing con­
stitutional principles. Had the Supreme Court intended

Memorandum—Filed September 8, 1959



13a

to confine its ruling to a geographical determination of 
each case, it would have said so. Of course, white children 
living within an area which is predominantly Negro have 
a perfect right to be considered for admission into a pre­
dominantly Negro school, but this does not suggest that 
they must attend such school. Nor is the School Board 
compelled to admit children into a grade, merely because 
other children already in attendance at that grade may be 
of equal or lower mentality.

The Rosemont and Coronado Schools
In predominantly Negro areas, the School Board is now 

constructing two elementary schools which will be attended 
this school year solely by Negroes in the absence of a re­
quest for a white child to attend. The contention is made 
that this action defeats the spirit of the Brown decision. 
To the contrary, the evidence establishes that other schools 
are also being constructed in areas occupied predominantly 
by white children, which schools are substantially the same 
as the Rosemont and Coronado schools. Undeniably, the 
construction of these schools will result in decreased at­
tendance at schools already affected by the mixing of 
races, but to hold in line with plaintiffs’ contention would 
result in a serious impediment to the School Board and 
local governing body in erecting schools when and where

—209-
necessary. The Negro children living within the normal 
Rosemont and Coronado school districts should attend 
these schools or otherwise provide for their education.

W alter E. H offman 
United States District Judge

Norfolk, Virginia 
September 8,1959

Memorandum-Filed. September 8, 1959



14a

I k  t h e

UNITED STATES DISTRICT COURT 
F oe t h e  E astern D istrict oe V irginia  

Norfolk Division 
Civil Action No. 2214

-210-
Order——Filed September 8, 1959

[ same t it l e ]

Upon consideration of the proceeding herein on August 
27-28, 1959, and for reasons stated in a memorandum this 
day filed, which said memorandum is adopted by the Court 
in lieu of specific findings of facts and conclusions of law, 
it is

Ordered :

(1) That plaintiffs’ complaint for intervention be, and 
the same hereby is, filed as of August 27, 1959;

(2) That the responsive pleadings of The School Board 
of the City of Norfolk, Virginia, and J. J. Brewbaker, 
Division Superintendent of Schools be, and the same here­
by are, filed as of August 27,1959;

(3) That the motion of the defendants, Pupil Placement 
Board and its individual members, to abate these proceed­
ings is sustained in part and denied in part, and said de­
fendants shall file their responsive pleadings herein within 
twenty (20) days from August 27,1959;

(4) That the following Negro children shall be physi­
cally admitted to the public schools set forth herein on



15a

Order—Filed September 8, 1959

September 8, 1959, on a temporary basis subject to further 
order of this Court:

Name of Child Admitting School

Patricia Anzella Turner 
Reginald A. Young 
Daphne Perminter 
Anita Mayer 
Gloria Scott 
Bobby J. Neville 
Mary Rose Foxworth

Norview High School
Maury High School
Suburban Park Elementary School
Maury High School
Blair Junior High School
Norview Junior High School
Suburban Park Elementary School

With respect to the children whose last names are Turner, 
Young, Perminter and Mayer, the School Board of the City 
of Norfolk is not required to report further to the Pupil 
Placement Board. With respect to the children whose last 
names are Scott, Neville and Foxworth, the School Board 
of the City of Norfolk shall make such study and there­
after render such report and recommendation to the Pupil 
Placement Board as may be suggested by the memorandum 
filed herein, unless otherwise ordered by the Court.

As to each of said children so physically admitted on a
—211-

temporary basis, subject to the further order of this Court, 
they shall be accorded all of the rights and privileges and 
charged with all of the duties and responsibilities accorded 
to, or imposed upon, white children in the grade and class 
to which they may be directed to attend, pending the fur­
ther order of this Court.

(5) The following children are denied the right to attend 
the following public schools for the school year commenc­
ing September 8,1959:



16a

Order—Filed September 8, 1959

Name of child

Dorothy Elaine Tally 
Calvin Edward Winston 
James Alfred Tatem 
Gladys Lynell Tatem 
Rosa Lee Tatem 
William Henry Neville 
Wilhelmina Scott 
Marian Scott 
Julia Elizabeth Hill 
Phyllis Delores Russell 
Charlene L. Butts 
Minnie Alice Green 
Melvin G. Green, Jr. 
Cloraten Harris 
Rosa Mae Harris 
Glenda Gale Brothers 
Sharon Venita Smith 
Edward H. Smith, III

Requested School Denied

Granby High 
Suburban Park 
Suburban Park 
Suburban Park 
Suburban Park 
Norview High 
Maury 
Maury 
Maury
Norview Elementary 
Norview Elementary 
Norview Elementary 
Norview Elementary 
Norview Elementary 
Norview Elementary 
Norview Elementary 
Norview Elementary 
Norview Elementary

To which action of the Court, the parties adversely af­
fected except.

W alter E. H offman  
United States District Judge

Norfolk, Virginia 
September 8,1959



17a

I n  th e

UNITED STATES DISTRICT COURT 
F oe t h e  E astern D istrict oe V irginia  

Norfolk Division

—149—
Memorandum— Filed May 8, 1959

[ same t it l e ]

This case is again before the Court following the opinion 
of the United States Court of Appeals for the Fourth 
Circuit filed on October 2, 1958. The School Board of the 
City of Norfolk, et al v. Beckett, 4 Cir., 260 F. (2d) 18. As 
to the admission of 17 Negro children into previously all- 
white schools, the action of the School Board in granting 
the applications and the procedure adopted by the Court 
was affirmed. As to the 134 Negro applicants denied ad­
mission by the Board, the case was remanded for further 
action as this Court had reserved for further consideration 
certain questions with respect to the validity of the stand­
ards, criteria and procedures promulgated by the Board 
and applied to the rejected applicants.

There are, therefore, three remaining questions.

I
Following the assignment of the 17 Negro children to 

schools previously attended only by white children, the six 
schools to which these 17 children were assigned were 
closed by operation of certain laws previously enacted by 
the General Assembly of Virginia. Plaintiffs thereupon 
filed a supplemental complaint alleging the unconstitution­
ality of such statutes and requesting an injunction to pro-



18a

Mbit their enforcement. A district court of three judges 
as provided by §2284 of Title 28, U. S. C. A., was desig­
nated, process was issued, various motions were filed, and 
the defendants answered the supplemental complaint.

Since the designation of the three-judge court, the cases 
of Harrison v. Day, 200 Va. 439, 106 S. E. (2d) 636, and 
James v. Almond, 170 F. Supp. 331, have been decided. 
The highest court of Virginia held that several of the laws 
were in violation of the State Constitution. A three-judge 
court in James v. Almond, supra, ruled that certain statutes 
were unconstitutional under the Fourteenth Amendment 
to the Constitution of the United States. The Attorney 
General of Virginia has stated that a suggestion of “moot­
ness” will be filed with the United States Supreme Court

- 1 5 0 -
in James v. Almond as the controverted laws have now 
been repealed. A petition for rehearing has been denied 
in Harrison v. Day.

The three-judge court designated herein is no longer 
necessary subject to the concurrence of the other members 
of that court, an order will be entered dissolving the three- 
judge court to the end that further proceedings wall be 
conducted without regard to the supplemental complaint 
and the motions and answer in response thereto. The plain­
tiffs will recover of said defendants their costs incident 
to the supplemental proceedings.

II

In this Court’s memorandum filed on September 18, 1958, 
there were eight Negro children (included among the 134 
applications remanded to this Court by the Circuit Court 
of Appeals) whose applications were rejected by the Board 
due to the pending construction of a new school known as

Memorandum—Filed May 8, 1959



19a

Rosemont Elementary School scheduled for occupancy by 
September 1, 1959. Reference is also made to the Court’s 
remarks to the School Board under date of August 25, 
1958. The rejections were predicated upon the theory of 
“too frequent transfers” as the evidence suggests that if 
the Rosemont School is ready for occupancy, these eight 
Negro children would ordinarily be assigned to Rosemont 
in September, 1959.

The Court upheld the Board’s action in denying these 
requests for transfer to Norview Elementary School, and 
nothing further could be added to the comments previously 
made. The City Attorney of the City of Norfolk has again 
assured the Court that the Rosemont School will be ready 
for occupancy as of the first day of the regular school 
term in September, 1959. The applications of the eight 
Negro children will remain pending without the necessity 
of further action by said plaintiffs, unless said plaintiffs 
file a supplemental request for assignment elsewhere, and 
if the Rosemont School is not ready for occupancy on the 
assured date, the Board shall comply with its duty to assign 
said children to Norview Elementary School in the absence 
of any good cause indicating that other action should be 
taken; said good cause to the contrary to be reported to 
the Court prior to August 15, 1959. If the Rosemont School 
is ready for occupancy, the Board may make such appro­
priate assignment as it deems best in compliance with the 
law.

I l l
The third and final question concerns the validity of the 

standards, criteria and procedures promulgated by the 
Board pursuant to a resolution adopted July 17, 1958.

—151—
The resolution was amended on September 5, 1958, and

Memorandum—Filed May 8, 1959



20a

counsel agree that the decision of this Court will be under 
the assumption that the amended resolution was in effect.

Of the remaining 126 applicants, approximately 63 failed 
or refused to take the scholastic achievement test, or other­
wise failed or refused to submit to personal interviews, 
in accordance with the procedures adopted by the Board. 
Approximately 34 applicants failed or refused to file written 
objections to the action of the Board, as required by the 
Court’s order fixing a deadline for objections to be filed. 
'One applicant was rejected for geographical reasons, he 
being already assigned to a school nearer to his home 
than the school to wdiieh he was seeking a transfer. The 
remaining 28 applicants were rejected as their scholastic 
achievements and abilities did not justify the transfers 
and enrollments sought.

While there are some differences of opinion as to the 
scholastic achievement necessary to consider the appropri­
ateness of a transfer or initial enrollment, the action of 
the Board on this point is not the subject of attack. All 
concede that it is proper to subject children to reasonable 
achievement tests before authorizing a transfer. Implicit 
in the testimony of plaintiffs’ expert educator is the thought 
that, for the time being at least, reasonable tests and stand­
ards must be established during the transition period. 
Such action is for the benefit of both races as well as the 
children. This is not to say that the attendance of Negro 
children in schools attended predominantly by children of 
the opposite race should forever be confined to such Negro 
children who have superior intelligence. As stated by the 
Supreme Court in Brown, “additional time [may be] nec­
essary to carry out the ruling in an effective manner.”

Before proceeding to a consideration of the constitution­
ality of the standards, criteria and procedures adopted by

Memorandum—Filed May 8, 1959



21a

the Board, it should be noted that, following a closure 
period from September through January, the six affected 
schools of Norfolk were reopened on February 2, 1959, 
with the 17 Negro children in attendance. To the ever­
lasting credit of the School Board, the teachers, the chil­
dren of both races, and the administrative authorities of 
the City of Norfolk and State of Virginia, it can truthfully 
be said that there has been no violence and administrative 
problems have been at a minimum. The attitude of the 
Board, following receipt of the Court’s remarks of August 
25, 1958, has been one of cooperation with a sincere effort

—152—
to comply with the law and, at the same time, to maintain 
public education so essential to this community. The per­
sonnel of the Board may be changed in the future, but 
this Court will have no difficulty in ascertaining when there 
exists a deliberate scheme to violate the law in problems 
confronting the Board and the Court under the Brown 
decision. We must, however, deal with the present and 
not the future.

The plaintiffs contend that the standards, criteria and 
procedures as amended by the resolution of September 5, 
1958, are unconstitutional on their face for the reason that 
the tests and interviews are, and will be, required in all 
“unusual circumstances,” and that a Negro child applying 
for admission into a school attended solely by white chil­
dren or into any school wherein the races are or will be 
mixed constitutes an “unusual circumstance.” Counsel con­
cede that if the tests and interviews are required of all 
children seeking initial enrollment or transfer into a school 
without regard to “unusual circumstances,” the procedure 
would be constitutional on its face.

Memorandum—Filed May 8, 1959



22a

Undoubtedly these standards, criteria and procedures 
may be unconstitutionally applied, but the intent of this 
ruling is to limit the same within the narrow scope of its 
constitutionality without regard to its application. The 
application of such standards, criteria and procedures will 
remain essentially with the Board, subject to scrutiny by 
the Court upon request of the aggrieved child. Much will 
depend upon the Board itself—a cooperative Board has 
no reason to doubt the action of any court—a Board which 
is adamant and refuses to recognize the Brown decision 
will have continuous troubles.

The United States Supreme Court has never suggested 
that mass mixing of races is required in the public schools. 
The underlying ruling is that no child shall be denied ad­
mission to a public school on the sole basis of race or color. 
Indeed, the Supreme Court recognized that a variety of 
local problems would arise when it said:

“Full implementation of these constitutional principles 
may require solution of varied local school problems. 
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. Be­
cause of their proximity to local conditions and the 
possible need for further hearings, the courts which

—153—
originally heard these cases can best perform this 
judicial appraisal.

“ . . . Traditionally, equity has been characterized by 
a practical flexibility in shaping its remedies and by a 
facility for adjusting and reconciling public and pri­

Memorandum—Filed May 8, 1959



23a

vate 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 nondis- 
criminatory 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 . . .

“ . . .  To that end, the courts may consider problems 
related to administration, arising from the physical 
condition of the school plant, the school transportation 
system, personnel, revision of school districts and at­
tendance 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 regu­
lations which may be necessary in solving the fore­
going problems. They will also consider the adequacy 
of any plans the defendants may propose to meet 
these problems and to effectuate a transition to a 
racially nondiscriminatory school system.”

By reason of the Virginia school-closing laws, now de­
clared unconstitutional and recently repealed, the Board 
has been powerless to submit any plan to meet the prob­
lems created by the Brown decision. Whatever the label 
may be, the resolution of July 17, 1958, as amended, is 
nothing more than a plan. It is submitted to the Court 
without the force of law—it is the Board’s view that this 
plan will, for the time being, constitute an orderly transi­
tion to a racially nondiscriminatory school system. It is

Memorandum,—Filed May 8, 1959



24a

subject to change in the future and the case remains within 
the jurisdiction of the Court. If it becomes apparent that 
the Board is repeatedly applying the standards, criteria, 
and procedures in an unconstitutional manner for the pur­
pose of preventing an orderly transition, the Court may 
permit the plaintiffs and subsequent applicants to disre­
gard these requirements.

The Board has, for many years, required tests and inter­
views in “unusual circumstances”. They have been re­
quired of children of all races and colors and will con­
tinue to be so required. The only reason the Board now 
desires to adopt written procedures limiting the tests and 
interviews to “unusual circumstances” is to avoid the ex­
pense and trouble of testing children seeking routine trans­
fers or initial enrollment where there are no complications 
as to scholastic ability, geographical areas, etc. The Board’s

- 1 5 4 -
counsel candidly states that, as to all applications giving 
rise to the mixing of races in public schools, the circum­
stances will be deemed “unusual” for an indefinite period 
of time. It is assumed that, with respect to the schools al­
ready racially mixed, the “unusual circumstance” would 
exist, and that applicants (both white and Negro) ap­
plying for transfer to, or initial enrollment in, such racially 
mixed school will be required to submit to tests and inter­
views.

It cannot be successfully contended that the standards, 
criteria and procedures are unconstitutional on their face. 
The case of Shuttlesworth v. Birmingham Board of Educa­
tion, 162 F. Supp. 372, affirmed on limited grounds, 358 
U. S, 101 is authority for the proposition that the Board 
here may impose standards and criteria which may be 
vague and indefinite. Merely because all applicants for

Memorandum—Filed May 8, 1959



25a

admission to schools which will result in the mixing of 
races will be, for the time being, classified as resulting 
in an “unusual circumstance” affords no basis for saying 
that the applicant is being denied a constitutional right. 
We are here dealing not with the individual right, but with 
the resulting condition brought about by the granting of 
that right. The constitutional right lies in the denial of 
admission because of race-—not in the prerequisites lead­
ing up to such denial. Again, however, the procedures 
adopted must be reasonable and not so burdensome as to 
be tantamount to a denial of the constitutional right. In 
the instant proceeding that question is not before the 
Court; the sole contention being that both white and Negro 
children seeking admission or transfer into schools wherein 
the races will be mixed constitutes an unconstitutional act 
in that it is discriminatory on its face.

Certainly since August, 1958, and during 1959, it cannot, 
be said that the action of the Board is the equivalent of an 
evasive scheme to perpetuate segregation. Proof of this 
statement lies in the fact that 17 Negro children were ad­
mitted under the standards, criteria and procedure so 
established.

It is presumed that the standards, criteria and proce­
dures will be administered fairly by a competent School 
Board upon whom the primary responsibility rests. The 
end result of this holding is merely to say that to classify 
schools attended by children of both races as an “unusual 
circumstance” is not on its face an unconstitutional act.

—155—
If the standards, criteria and procedures should be applied 
in such a manner as to deprive an applicant of his con­
stitutional right to attend the school of his choice without 
regard to race, all other factors being such as to entitle him

Memorandum—Filed May 8, 1959



26a

to enter such school, the Court’s duty would then be plain 
and the standards, criteria and procedures would be de­
clared unconstitutional in their application. Likewise, the 
standards, criteria and procedures must be equally applied 
to all applicants seeking enrollment in or transfer to a 
school already attended by children of both races, but, as 
noted, this falls within the category of the application of 
the procedures promulgated by the Board.

This conclusion is not reached without consideration of 
the recent decision of Hamm v. County School Board of
Arlington County, 4 Cir., -----  F. (2d) -----  (March 19,
1959), in which the court remanded for further proceed­
ings the cases of 26 Negro children whose applications for 
admission were rejected by the Board with this action be­
ing approved by the district judge. A portion of the opinion 
is as follows:

“We find evidence in the record that their applications 
for transfer were subject to tests that were not ap­
plied to the applications of white students asking trans­
fers.”

It will be noted that the court does not specifically state 
that such action is discriminatory per se. It is not said 
that the requirement of tests and interviews pursuant to a 
plan or resolution is unconstitutional on its face. It does 
suggest, however, that there should be equality of treat­
ment as to children seeking admissions to particular schools 
under particular conditions. The Arlington case was re­
ferred back to the trial court for more appropriate con­
sideration prior to the opening of the 1959-60 school year.

It is true that, in the instant case, no white children were 
applicants for admission to a school previously attended 
only by Negro children. Thus, under the plan presented

Memorandum-—Filed May 8, 1959



27a

it became unnecessary to subject any white children to 
tests or interviews as the “condition” was not an “unusual 
circumstance”. Moreover, the Negro children did not tile 
individual applications for admission to specific schools 
until after the close of the normal school year in June, 
1958. It would have been an impossible task to require 
tests and interviews of all children once the school closed 
for the summer season. However, as noted, the Board’s 
standards, criteria and procedures were promulgated to

—156-
meet a “condition” and not to unduly restrict an individual 
right.

Holding that the action of the Board in denying the ap­
plications of 134 Negro children for admission to certain 
public schools previously attended only by white children 
was not arbitrary, capricious or illegal, that the standards, 
criteria and procedures are not unconstitutional on their 
face, the Board’s determination is A pproved.

W alter E. H offman  
United States District Judge

Memorandum—Filed May 8, 1959

Norfolk, Virginia 
May 8,1959



28a

I n  t h e

UNITED STATES DISTRICT COURT 
F or t h e  E a s t e r n  D is t r ic t  o f  V ir g in ia  

Norfolk Division

[ s a m e  t it l e ]

—97-
Memorandum-—Filed September 18, 1958

In lieu of specific findings of fact and conclusions of law, 
this memorandum is prepared in final determination of 
matters pending herein, save and except questions involv­
ing the validity of the assignment plan promulgated by the 
School Board of the City of Norfolk requiring all children 
applying for initial enrollment or transfer into a public 
school formerly attended solely by students of the opposite 
race to submit to certain achievement tests and personal 
interviews.1 Action upon this latter question is deferred 
pending receipt of a brief from defendants and possible fur­
ther argument.

It is unnecessary to relate the history of these proceed­
ings to and including August 29, 1958, as the same is fully 
documented. See Beckett v. School Board of the City of 
Norfolk, 148 F. Supp. 430, 2 Race Rel. L. Rep. 46, holding 
the Pupil Placement Act unconstitutional on its face upon 
consideration of defendants’ motion to dismiss, and 2 Race

1 White children seeking initial enrollment in, or transfer to, a pre­
viously all-Negro school would likewise be required to submit to such tests and 
interviews. Of course, as the resolution is now drawn, if any public school 
in the City of Norfolk is ever attended by a child of the opposite race, the 
resolution of the School Board would no longer be applicable as to that school, 
and tests and interviews would no longer be necessary where the school has 
already been integrated.



29a

Eel. L. Rep. 337 (otherwise unreported) determining the 
merits of the case. The orders entered by this Court, in­
cluding the ruling upon the constitutionality of the Pupil 
Placement Act, were appealed to the United States Court 
of Appeals and affirmed by the latter court, 246 F. (2d) 325. 
Certiorari was denied by the United States Supreme Court, 
355 U. S. 855.

Following the action by the School Board in denying the 
applications of 151 Negro children for enrollment in, or

- 9 8 -
transfer to, certain schools formerly occupied solely by 
white children, the Court, after hearing evidence and argu­
ment of counsel, convened the members of the School Board 
in open court and made certain remarks. Counsel for the 
respective parties agreed that it would be appropriate for 
the Court to advise the School Board members as to the 
applicable law, but counsel were not required to agree to 
the correctness of the legal conclusions as stated by the 
Court—in fact, counsel neither requested advance infor­
mation as to the Court’s remarks, nor were they advised 
of same.

The Court’s remarks to the School Board members on 
August 25, 1958, are attached hereto and incorporated 
herein by reference.

In compliance with the direction of the Court, the School 
Board submitted and filed a report on August 29, 1958, a 
copy of which is attached and incorporated herein by refer­
ence ; the effect of which was to deny the applications of 134 
Negro children, and further stating that 17 Negro children 
“will be assigned to and enrolled in the grades and schools 
set opposite their names for the school year 1958-’59.” Con­
temporaneous with the filing of said report, the School 
Board filed a motion to defer, until September, 1959, the 
enrollment of the 17 Negro children under the assignments

Memorandum—Filed September 18, 1958



30a

set forth in the report of August 29, 1958. By order entered 
on September 2, 1958, the latter motion was denied; the 
Court reserving, however, the right to reconsider its action 
following the argument and determination of the case of 
Aaron v. Cooper, then pending before the United States 
Supreme Court on petition for certiorari to the United 
States Court of Appeals for the Eighth Circuit. On Septem­
ber 12, 1958, the United States Supreme Court affirmed the 
action of the Eighth Circuit, which latter court had reversed 
the decision of .District Judge Lemley from the Eastern 
District of Arkansas. There is no longer any legal or justifi­
able reason further to consider defendants’ request for a 
one year deferment. As long ago as February 12, 1957, the 
Superintendent of Schools testified that, in his opinion, but 
for the enactment of certain laws by the General Assembly 
of Virginia, the City of Norfolk by a process of gradual 
desegregation could achieve good faith implementation and 
compliance with the Supreme Court decision without any 
insurmountable difficulties. More than eighteen months 
later, immediately following their first step toward good 
faith compliance and implementation, a delay of an addi­
tional year is requested. It is urged that time is required to

—99—
“educate the adults” as to the problem presented but defen­
dants concede that they are presently powerless to embark 
upon such an educational program frowned upon by state 
authorities. Moreover, under state law, the affected schools 
must be closed by action of the Governor. To grant a delay 
of one year would only postpone this eventuality. Regret­
table though it may be, conditions have not improved in 
Virginia since the second decision in Brown v. Board of 
Education rendered on May 31, 1955. In all probability the 
people of Virginia will ultimately be required to choose

Memorandum—Filed September 18, 1958



31a

between two alternatives, namely, a complete abolition of 
the public school system throughout the entire State of 
Virginia, or acceptance in some form and to some extent of 
the law of the land as interpreted by the United States 
Supreme Court.

By an order of the Circuit Court of the City of Norfolk, 
Virginia, entered on August 18, 1958, by two Justices of the 
Supreme Court of Appeals of Virginia, the defendants were 
enjoined by the state court from assigning or enrolling any 
children in the public schools of the City of Norfolk. On 
September 12, 1958, the defendants filed a petition in this 
Court, together with a motion for temporary injunction, 
to prevent the state court plaintiffs from interfering fur­
ther, directly or indirectly, with the final order of this Court 
heretofore entered on February 26, 1957. An order to show 
cause was likewise issued against the state court plaintiffs 
and their attorney. These matters were heard on Septem­
ber 17, 1958, and this Court entered an injunction on Sep­
tember 18, 1958, a copy of said injunction and findings of 
facts and conclusions of law being attached hereto and 
incorporated herein by reference. Presumably the School 
Board will now proceed to make the assignments of the 17 
Negro children in accordance with its report of August 29, 
1958.

The School Board took and filed certain exceptions to the 
remarks of the Court submitted to the Board on August 25, 
1958. These exceptions must be overruled. At no time 
did this Court tell the Board that it was required to admit 
any particular child; nor has the Court assigned any child 
to any school. Admittedly the Board was faced with a 
difficult alternative—one being to comply with the law— 
the other being to subject itself and its members to a pos­
sible citation for contempt. The Board elected to comply

Memorandum— Filed September 18, 1958



32a

with the law as interpreted by this Court in light of other 
decisions. The “racial tension” and “isolated child” factors, 
as referred to in the Court’s remarks of August 25, 1958, 
are the only general headings under which the Board ad­
mitted any Negro children into previously all-white schools. 
Racial tension as a defense has been effectively disposed of 
by the decision in Aaron v. Cooper. If the theory of the

— 100—

“isolated child” constitutes just cause for denying the ad­
mission of a Negro child, compliance with the law of the 
land as interpreted by the Supreme Court would never be 
possible in the southern states. Moreover, the so-called 
“token integration” has been approved by district and ap­
pellate courts sitting in other southern states.

Aside from the validity of the Board’s resolution estab­
lishing the criteria and procedure with respect to tests and 
interviews, the plaintiffs and intervenors make only one 
serious attack upon the correctness of the Court’s remarks 
to the Board on August 25, 1958. This involves the subject 
of “Too Frequent Transfers” heretofore discussed in the 
remarks aforesaid. With some variations in mileage not 
deemed pertinent, the following individual applications of 
Negro children were considered and rejected by the Board, 
which action is now approved by the Court. In stating the 
distances to the various schools, references to Oakwood 
indicate a previously all-Negro school ; to Norview a pre­
viously all-white school; and to Rosemont, the new school 
which will be completed by September, 1959, and to which 
school the Board has stated that each Negro applicant 
would be transferred, not because of race or color, at the 
commencement of the 1959-’60 school year. The following 
facts are found:

Memorandum—Filed September 18, 1958



33a

Memorandum—Filed September 18, 1958

Application of Melvin G. Green, Jr.:
Distance from home to Oakwood 1.4 miles
Distance from home to Norview .3 “
Distance from home to Rosemont .3 “

Application of Glenda Brothers: 
Distance from home to Oakwood 
Distance from home to Norview 
Distance from home to Rosemont

1.8 miles 
1.1 “  

1.1 “

Applications of Clorateen and Rosa Mae Harris: 
Distance from home to Oakwood 1.3 miles
Distance from home to Norview .5 “
Distance from home to Rosemont one short block

Application of Charlene Butts:
Distance from home to Oakwood .7 mile
Distance from home to Norview .7 “
Distance from home to Rosemont .4 “

Applications of Slier on and Edward JI. Smith: 
Distance from home to Oakwood 1.3 miles
Distance from home to Norview .7 “
Distance from home to Rosemont .6 “

The Board considered, in line with the Court’s remarks, 
the newT unit area for the Rosemont school, as well as trans­
portation facilities and dangers encountered in crossing 
highways. These questions are essentially for the Board to 
determine and this Court cannot say that the Board’s action

— 101—

is arbitrary, capricious, or discriminatory.
Plaintiffs argue that the Court was in error in holding 

that, in the exercise of sound discretion and where proof 
convincingly establishes that the second transfer must here­



34a

after be made to Rosemont, the constitutional right of the 
child could be deferred for the one year period under these 
peculiar circumstances. Plaintiffs cite a line of pre-Brown 
decisions relating to the “separate but equal” doctrine, 
including Carter v. School Board of Arlington County, 4 
Cir., 182 F. (2d) 531; McKissick v. Carmichael, 4 Cir., 187 
F. (2d) 949; McLaurin v. Oklahoma State Regents, 339 
U. S. 637; and Sweatt v. Painter, 339 U. S. 629. The theme 
of these cases is that the constitutional right is personal 
and present. Plaintiffs overlook, however, the Brown deci­
sion which requires in the public schools (as contrasted 
with state-supported institutions of higher learning) a 
balancing of the public and private needs, and further pro­
vides that “once such a [prompt and reasonable] start has 
been made, the courts may find that additional time is neces­
sary to carry out the ruling in an effective manner.” Can­
didly, plaintiffs’ counsel are unable to explain the constitu­
tional deferment of rights established by recent public 
school decisions approving plans calling for “stair-step” 
desegregation such as Slade v. Board of Education of Har­
ford County, 4 Cir., 252 F. (2d) 291, cert. den. 357 U. S. 906. 
In the latter case the plan provided for gradual desegrega­
tion of public schools. Certainly the constitutional right of 
the child was personal and present but, in balancing the 
public and private needs, the courts gave a stamp of ap­
proval to the deferment of these rights which, in effect, 
totally deprived certain children of such rights as they 
would undoubtedly have completed the public schools before 
their rights could be asserted in some instances. The situ­
ation may be entirely different where no public school is 
available such as in the recent Warren County school case 
from Virginia decided by District Judge Paul in which a 
stay was denied by Chief Judge Sobeloff. In the case

Memorandum—Filed September 18, 1958



35a

at bar there is, at most, a deferment of such rights for a 
period of one year, at the end of which the children may 
again make application. Bearing in mind that the Board 
is better able to determine the adverse effect of “too fre­
quent” transfers, it cannot be said that the Board acted 
arbitrarily, capriciously, or even without wisdom.

An order will be entered in accordance with this memo-
— 102—

randum, which, together with the references attached and 
incorporated herein, is adopted by the Court as its findings 
of fact and conclusions of law.

Memorandum—Filed September 18, 1958

United States District Judge

Norfolk, Virginia 
September 18, 1958



36a

I n  th e

UNITED STATES DISTRICT COURT 
F or t h e  E astern D istrict  op V irginia  

Norfolk Division

Excerpts from Reporter’s Transcript of Trial
Proceedings Had on August 27-28, 1959

[ s a m e  t it l e ]

T rial P roceedings

Norfolk, Virginia 
August 27, 28, 1959

B e f o r e  :
H onorable W alter E. H o pfm an ,

United States District Judge.
— 2—

A p p e a r a n c e s :
S pottswood R obinson , Esq.
Oliver  H il l , Esq.
V ictor A s h e , E sq .
J oseph  J. J ordan, Esq.
J. H ugo M adison, Esq.

Attorneys for the Plaintiffs.
A lbertis S. H arrison , Esq.
W illia m  D. M cI lw a in e , Esq.
L eonard H. D avis, Esq.
L eig h  D. W illia m s , Esq.
W. R. C. C ocke, Esq.

Attorneys for the Defendants.
A. B. S cott, Esq.

Attorney for The Pupil Placement Board.



Stipulation

—40—
The Court: Gentlemen, we have had a nice fifty- 

minute recess. I assume that you probably have 
been working to the end that you may be able to 
shorten the testimony; is that correct!

Mr. Hill: That is correct, sir.
The Court: All right. You may proceed then, 

Mr. Hill.
Mr. Hill: We have decided to let Mr. Davis make 

the initial statement as to what we—
The Court: He is the official stipulator, if I re­

member correctly.
Mr. H ill: Stipulator, yes, sir.
Mr. Davis: If your Honor please, as is obvious, I 

got elected again. If your Honor please, we have 
followed very much the same procedure that was in­
voked in the hearing of these cases last year in these 
respects: We have available, as exhibits for the 
Court—counsel for the plaintiffs have a copy, we 
have a copy, and any witnesses will also have a copy 
from which they can testify—the test records, the 
records of the interviews and the summary sheets 
as to each of the children who applied for admis­
sion, transfer or initial enrollment for the ’59-’60 
school year; and as I recall it, there are, I believe, 
fifteen of those children who are contesting the ac­
tion that was taken by the School Board in its 
recommendations. I say we have those test records

—41—
for all who applied for ’59. I should have said we 
have the test records for all of those fifteen because, 
as I understand it, we are not interested at this time



38a

in any of those who did not file their objections by 
Wednesday of last week, I believe it was.

In addition to those fifteen, there are two children 
who were admitted to previously all white schools 
for the ’58-’59 session who graduated from the schools 
to which they were admitted and whom the School 
Board promoted to higher schools, which are now 
either all white or predominantly all white. I think 
predominantly all white. That makes seventeen. 
Then there were eight other children who are in the 
contesting group; those eight being the eight who 
were denied admission to Nor view Elementary 
School for the ’58-’59 session on the ground of too 
frequent transfer.

If the Court would think it in order, we would 
like to divide this into two phases; first, the phase 
dealing with the seventeen and let the evidence be 
introduced pertaining to those, and then later on 
take up the eight children. I believe it will make for 
less confusion.

With regard to those seventeen, if the Court also 
feels it is in order, possibly the Court would like to 
introduce these papers either as Court exhibits or

—42—
would like for us to do it right now and get those 
into the record. As I recall it last year, the Court 
introduced those as Court exhibits.

The Court: I believe that is correct. We will 
follow the same procedure, then.

Mr. Davis: All right, sir. Would you like for 
me to name these children as I pass these up I

The Court: I  think it would be satisfactory to 
say Court Exhibit No. 1 and the name of the child.

Stipulation



39a

Mr. Davis: Court Exhibit No. 1, Daphne Della 
Perminter; Court Exhibit No. 2, Anita D. Mayer; 
Court Exhibit No. 3, Eosa Lee Tatem; Court Ex­
hibit No. 4, Gladys Lynell Tatem; Court Exhibit No. 
5, James Alford Tatem; Court Exhibit No. 6, Cal­
vin Edward Winston.

If your Honor please, some of these papers have 
numbers on them. I would ask you to disregard 
them. They do not mean anything for this purpose.

Court Exhibit No. 7, Julia Elizabeth Hill; Court 
Exhibit No. 8, Marian Scott; Court Exhibit No. 9, 
Gloria Scott; Court Exhibit No. 10, Wilhelmina 
Scott; Court Exhibit No. 11, William Henry Neville; 
Court Exhibit No. 12, Bobby J. Neville; Court Ex­
hibit No. 13, Dorothy Elaine Tally; Court Exhibit 
No. 14, Phyllis Delores Bussell.

With the Court’s permission, we would like to 
reserve Court Exhibit No. 15. Now—

—43—
The Court: You may just submit that to the Clerk 

and let the Clerk make a notation of it, if you care to, 
and mark it as a Court exhibit.

Mr. Davis: All right, sir.
(The above described documents were marked 

and received in evidence as Court Exhibit Nos. 
1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15, 
respectively.)

Mr. Davis: We do not have any such test papers, 
or interview papers or summary sheets as to Pa­
tricia A. Turner and Beginald Young. They were 
the two who were admitted last year and who went 
up on routine promotions. There was no occasion

Stipulation



40a

to test them or have any interviews with them. With 
reference to the categories, there are two into which 
—correction—I started to say eleven—two into which 
twelve of these children fall; category No. 1, geo­
graphical boundaries, and the child who falls within 
that category is Phyllis Delores Russell. Category 
No. 2 is scholastic achievement, too low. If your 
Honor please, I am not sure that is exactly the ter­
minology that was used last year, but it means the 
same thing. It was felt that the scholastic achieve­
ment of these children was too low to justify recom­
mending that they be transferred or enrolled. The

—4 4 -
eleven children who fall within that category are 
Rosa Lee Tatem, Gladys Lynell Tatem, James Al­
ford Tatem, Calvin Edward Winston, Julia Eliza­
beth Hill, Marian Scott, Gloria Scott, Wilhelmina 
Scott, William Henry Neville, Bobby J. Neville and 
Dorothy Elaine Talley.

That concludes, I believe, the stipulation or infor­
mation with regard to the seventeen children in this 
particular phase of the case.

Have I stated it correctly, gentlemen ?
Mr. Robinson: Yes.
Mr. Hill: Except we also stipulated—
Mr. Davis: Yes, yes. Now, if your Honor please, 

we would also like for the record to show, if it is 
permissible with the Court, that counsel for all par­
ties wish the evidence that has been taken before to 
be considered insofar as it may be relevant to the 
matters which we are considering today.

Am I correct, gentlemen?

Stipulation



41a

The Court: What evidence do you speak of now, 
the evidence taken last year ?

Mr. Davis: Yes.
The Court: At the hearings of last year?
Mr. Davis: Yes, sir.
The Court: Such as the testimony of Mr. Brew- 

baker, Mr. Lamberth and Dr. Henderson—
—45—

Mr. Davis: Yes, sir.
The Court: —and Mr. Schweitzer? I believe that 

is, in substance, most of them.
Mr. Davis: That is correct. We will put on addi­

tional evidence, but there was considerable evidence 
taken last time with reference to qualifications of 
witnesses and these various tests that were used 
and how they were considered, and so forth, and in­
sofar as that evidence is relevant, we thought it 
would save time not to have to review all of that 
again now.

Gentlemen, was there anything else ?
Mr. Hill: Except that you mentioned that there 

were two categories. You only put in one. You are 
not going to put the others in until we get to it; is 
that the idea? Either way.

Mr. Davis: We do not have any such papers as 
these in connection with those eight.

Mr. Hill: Okay.
The Court: There is one other case that counsel 

have conferred with the Court about and I do not 
think there is any need to discuss it.

Mr. Hill: No, sir.
Mr. Davis: None. May we call, then, please, Mr. 

J. J. Brewbaker?

Stipulation



42a

J. J. Brewbaker—for Defendants—Direct

—46—
J. J. B rew baker, ca lled  a s  a  w itn ess  by  a n d  on b eh a lf 

of th e  d e fen d an ts , h a v in g  been  d u ly  sw o rn , te s tif ied  as 
follows:

Direct Examination by Mr. Davis:
# *  # # #

Q. Are you familiar, Mr. Brewbaker, with those assign­
ment standards, criteria and procedures? A. I am familiar 
with those.

Q. Directing your attention to the fifteen children who
—47—

applied for transfers to or initial enrollment in the public 
schools of the city for the ’59-’60 school year, which fifteen 
children are among the seventeen that I named just a 
moment ago, were those procedures applied to those chil­
dren? A. They were, Mr. Davis.

Q. Did the applications of those children involve un­
usual circumstances ? A. They did.

# * # # #
—52—

# * # *
The Court: May I ask Mr. Brewbaker a question

at this point ?
Mr. Davis: Yes, sir.

-5 5 —
* * # # #

Q. What I am driving at is, if I were on the Placement 
Board, for the life of me I could not determine, unless it 
was called to my attention, whether the child was white or 
colored or to what school the child was going to. The Place­
ment Board certainly has no individual or any personal



43a

association with Gwendolyn Smith, I do not believe? A. 
The Placement Board, though, knows which of our schools 
are for colored children and which are for white children, 
and when—

Q. Well, schools are not for colored and white. A. Well, 
they know which schools are occupied by colored children, 
generally speaking—which are predominantly occupied, or 
otherwise.

# # # * #
—57—

Cross Examination by Mr. Robinson:
Q. Mr. Brewbaker, I believe I am correct in my under­

standing that Julia Elizabeth Hill, Marian Scott and Wil- 
helmina Scott applied for a transfer to Maury High School, 
did they not? Julia Elizabeth Hill, Marian Scott and Wil- 
helmina Scott? A. That’s correct, Mr. Bobinson.

Q. Isn’t it also a fact that one or more Negro students 
attended Maury High School for the school session 1958-’59? 
A. Yes, we had one there.

Q. All right, sir. Now, Gloria Scott made application for 
a transfer to Blair Junior High School, correct? A. That’s 
right.

Q. And for the 1958-’59 school session you had one or 
more Negro students enrolled there? A. We had two.

Q. William Henry Neville made application for transfer 
to Norview High School, correct? A. That’s right.

Q. How many Negro students did you have attending 
that school during the last school session? A. We had 
seven.

—58—
Q. Bobby J. Neville made application for a transfer to 

Norview Junior High School. Did you have any Negro

J. J. Brewbaker—for Defendants—Cross



44a

students in attendance during the last school session at 
that school? A. We had five.

Q. Dorothy Elaine Tally made application for transfer 
to Granby High School; isn’t that correct? A. That’s cor­
rect.

Q. Did you have any Negro students attending that 
school during the last school session? A. We had one.

Q. Now, as I understand, Mr. Brewbaker, in the cases 
of all of the—one, two, three, four, five—seven students 
that I mentioned, when their applications for transfer were 
received you submitted them to tests and you called their 
parents down for interviews in connection with those ap­
plications; isn’t that so? A. That’s correct.

Q. You had white children who were seeking transfer 
to Maury High School, to Blair Junior High School, to Nor- 
view High, Norview Junior High and Granby High School 
for the 1959-’60 school session? A. We did.

Q. Did you have any white children making application 
to any of those schools ? A. I ’m sure we did.

—59—
Q. Are you in a position to say that you had white chil­

dren who were seeking transfer to all of those schools for 
the coming school session? A. I wouldn’t say from actual 
knowledge, but I ’m reasonably sure we did.

Q. How about white initial enrollees in those schools, 
are you in a position to say whether you had white chil­
dren making application for initial enrollment in any or 
all of those schools for the 1959-’60 school session? A. I 
am sure we have had.

Q. All right. Did you submit any tests or require any 
interviews with reference to any white child who was seek­
ing initial enrollment in or transfer to any one of these

J . J. Brewbaker—for Defendants—Cross



45a

schools that I have mentioned? A. We have been giving 
tests and interviews.

Q. Did you give those tests and interviews to all of the 
white children seeking admission or initial enrollment in 
those schools? A. I am under the impression we did, Mr. 
Robinson.

Q. Could you verify your impression one way or the 
other, Mr. Brewbaker, not now, but before this hearing 
concludes? A. I think Mr. Lamberth could, because he 
had the general administration of that.

Q. We will ask Mr. Lamberth. Now, Mr. Brewbaker,
—60—

did you administer any tests or interviews for purposes of 
determining whether white children would continue attend­
ing any one of the schools that I have mentioned, the white 
children who were last year enrolled in those schools? If 
my question is not clear, I will try to rephrase it. You had 
a number of white children last year in all of these schools 
that I have mentioned, in each of the five schools that I 
have mentioned. Did you submit any tests or interviews to 
those children or to their parents for purposes of determin­
ing whether they would continue to attend those five schools 
for the 1959-’60 school session? A. You mean continue in 
those schools or go from those schools to another school?

Q. No. My question is: Did you administer tests to chil­
dren or require interviews of parents of children who, dur­
ing the ’58-’59 session, attended those schools for the pur­
pose of determining whether they would continue to attend 
those schools for the 1959-’60 school session? A. I am 
sure we have, Mr. Robinson, because we give tests in un­
usual circumstances at any time that it’s needed in any of 
the schools. Now, I couldn’t give you any cases. We have 
folks here who could, but I ’m sure that is our practice and

J. J. Brewbaker—for Defendants—Cross



46a

I ’m sure that has happened, because often we have a child 
who is maladjusted and we will give that child a test to see 
whether or not—we will give it a battery of tests to see

—61—
whether or not that child should continue in that school or 
whether that child should be transferred to another school.

Q. When did you give these tests, Mr. Brewbaker ? A. 
Whenever the child, mother or whenever the visiting 
teacher, or whenever someone would say, “We think this 
child should be tested for the purpose of determining where 
this child should go.”

Now, we are still giving tests in some of these cases of 
the children being transferred in the school. We are still 
giving tests and having interviews right now for some of 
them.

Q. What you are saying, Mr. Brewbaker, is you are al­
ways giving tests and giving interviews to some of the 
students during the entire school year? A. That’s right, 
they need the tests.

Q. And you have given the same kind of tests that you 
just said you gave to these white children to the thirteen 
Negro applicants who sought transfer to the five schools 
that I mentioned in Suburban Park, did you not? A. No, 
we don’t give all children the same kind of tests that we 
are giving these under unusual circumstances. We may or 
may not.

Q. Here is what I  am trying to find out: Sometime in 
their past school years all of those children have received

—62—
one or more tests at some time; isn’t that correct? I am 
speaking about all children in the school system now, ex­
cept those, of course, who are way down in the very lowest 
grades. Wasn’t that your testimony last year? A. Yes,

J. J. Brewbaker—for Defendants—Cross



47a

that’s a practice. Of course, a child may come in too late to 
have them. If they have been in the school system any 
length of time, Mr. Eobinson—

Q. They are given tests ? A. They are given tests, that’s 
right.

Q. These are not the tests for unusual circumstances that 
you have just averted to, are they? A. Not all the time. 
Now, we give you a lot of State tests. These tests may have 
been given as general tests throughout the school system. 
Now, each test has a number of forms. Now, if we use the 
same test for a child under usual circumstances, we would 
be sure that the form of that test the child did not have. 
Now, I can’t say specifically whether any of these tests, the 
California—I’m sure the California Achievement tests, the 
California Maturity tests have been given from time to 
time in different forms.

Q. At the time you are administering these tests, you 
are not trying, through the administration of the tests, to 
determine a matter that you characterize as an unusual 
circumstance? A. No, no, that’s right.

—63—
Q. All right, sir. Now, at the risk of repetition, as I 

understand, all of these applicants to the six schools that 
I  have made reference to which, of course, includes Subur­
ban Park, all of these applicants at some time in the past 
had received one or more of these tests that were not ad­
ministered for purposes related to unusual circumstances, 
within the meaning of your plan? A. I ’d have to look at 
the record. I don’t remember.

Q. It is a reasonable assumption that they all were— A. 
Eeasonable.

Q. —and the same assumption we could make with refer­
ence to white children who were in attendance or have been

J. J. Brewbaker—for Defendants—Cross



48a

in attendance in the past in these six schools; is that cor­
rect, sir! A. It would be a reasonable assumption.

Q. The test that you gave to the Negro applicants who 
sought admission to these six schools for the next school 
session was a test that was different from the test that you 
had previously administered as a general proposition to 
white and Negro students in the school system; isn’t that 
true? A. At least a different form. It may have been the 
same test, but a different form of the test.

Q. What would be the difference? A. You’d have to 
ask the psychologist that question. Excuse me, I don’t 
know.

—64—
Q. Now, you did not give to white children, who attended 

last year any one of these six schools and who wanted to 
continue to attend one of these six schools for the next 
year, you did not give them the test that was given to these 
Negro applicants sometime this last Summer, did you? A. 
No, neither did we give the Negro applicants the test who 
wanted to attend the same school.

Q. In other words, the people you considered in unusual 
circumstances were the Negro children who made applica­
tion to these schools, correct? A. No, I wouldn’t say so.

Q. For purposes of the test, to which you have testified 
before—let’s put it another way, Mr. Brewbaker. You cer­
tainly considered each of the Negro applicants an unusual 
circumstance, didn’t you? A. That’s correct; that’s cor­
rect.

Q. And you did that simply and solely by reason of the 
fact that it was a Negro applicant making an application 
for a transfer to a school that heretofore has been pre­
dominantly white? Wasn’t that the reason for it? A. 
That’s correct.

J. J. Brewbaker—for Defendants—Cross



49a

Q. And only that reason, am I correct in that regard? 
A. That’s correct.

Q. And the only time you would have given any sort
—65—

of test as an unusual case or an unusual circumstance to 
any white child in attendance at one of these six schools 
would have been for some reason other than the race of the 
child that would make that case unusual, am I correct about 
that too? A. Yes, they were all given tests if we con­
sidered them in unusual circumstances.

Q. All right. A. A white child might have an unusual 
circumstance.

Q. But that unusual circumstance would arise from some 
fact or circumstance other than the fact that the child 
was a white child attending* one of these six schools? A. 
That’s right.

Q. All right. Now, we have been talking, during the last 
part of our conversation, Mr. Brewbaker, about children 
who were in attendance at one of these six schools during 
the 1958-’59 school session. I would like to ask you the same 
series of questions, and maybe you can answer them all in 
a single statement. Isn’t it true that you did not consider 
as unusual circumstances or as unusual cases and you did 
not administer the same battery of tests and require the 
same interviews with reference to white children who were 
seeking initial enrollment or a transfer to one of these 
six schools? A. We were requiring that.

—66—
Q. Of all of them? A. That’s right.
Q. Of all of them? What tests did you give them? Did 

you give them the same tests? A. Gave them the same 
tests.

Q. As you did Negroes? A. That’s right.

J. J. Brewbaker—for Defendants—Cross



50a

Q. Did you make a comparison, Mr. Brewbaker, of the 
results of the tests administered to white children with the 
test results in connection with the tests that were given 
the Negro applicants! A. Those test scores are based on 
a national norm and we compare them with the national 
norm rather than to compare them with each other. We have 
not taken pupil by pupil and made that kind of comparison.

Q. Let me ask you this, s ir : What was the standard that 
you applied in reaching your conclusion that the Negro ap­
plicants whose request for transfers were denied were 
to be denied, transfer to those schools, for scholastic rea­
sons? A. The grade level to which they applied.

Q. Am I correct in understanding, then, that with refer­
ence to each of the Negro children, unless the child scored 
on the test that was given to him for the purpose as an 
unusual circumstance a score that was equal to or above

—67—
the grade to which he sought admission in that particular 
school, you automatically denied his request for transfer? 
A. That’s correct.

Q. What did you do with the white applicants for enroll­
ment, initial enrollment in or transfer to those schools? 
How did you determine the disposition of their requests? 
A. Well, those cases are still under study. We have not 
completed our study of those cases.

Q. You did not make any difference, did you, Mr. Brew­
baker, between Suburban Park, on the one side, which here­
tofore has not had a Negro student in attendance until 
you granted one of these applications here this Summer, 
but which did not have a Negro student in attendance dur­
ing the 1958-’59 school session—did you draw any distinc­
tion between that school and Maury, Blair, Norview High, 
Norview Junior High or Granby High in determining the

J. J. Brewbaker—for Defendants—Cross



51a

disposition that yon would make of the applications of the 
Negro children? A. We did not. We thought the girl who 
applied—the one we recommended there, we thought she 
met all of the requirements there. We recommended the 
assignment.

Q. Beg your pardon? A. We recommended the assign­
ment.

Q. With reference to your systemwide program, do you 
have any sort of rule or regulation that has ever been ap­
plied to students other than this group of Negro applicants

— 68—

deemed by the School Board to be scholastically unqualified, 
which would mean that an application for enrollment or 
transfer to a school is automatically to be denied if, as a 
consequence of the test that is administered, the grade that 
is made on that test is not equal to or above the grade level 
of the grade to which the child made his application for 
transfer? Maybe I got you all mixed up. A. I think I know 
what you mean.

Q. All right. A. We do that quite often. A child may 
apply for a school, and after we have tested that child, it 
is felt that that child should go into another school where 
we have maybe some grade or some program that that child 
could fit in better, we do that.

Q. You say you do that quite often. But what I am try­
ing to find out, Mr. Brewbaker, is whether you do it all 
the time in cases other than the cases of these Negro ap­
plicants? A. I ’m not so sure I understand what you mean 
by “all the time.”

Q. Let me try to reframe it. Do you have an inflexible 
rule that is applied to groups of students other than these 
Negro applicants, which would mean that you would turn 
down their requests for enrollment in or transfer to a

J. J. Brewbak.er—for Defendants—Cross



52a

school where the results of these children on specially
—69—-

administered tests would be below the level of the grade to 
which they seek transfer or enrollment? Do I make myself 
clear now? A. I think so. I don’t believe we have any in­
flexible rule. I think we handle each case on its merits.

Q. You had an inflexible rule so far as these Negro ap­
plicants were concerned, didn’t you? A. Well, no, we 
handled each case—we didn’t handle them as a group. We 
handled each case on its merits.

Q. Did you have any Negro applicant who scored on 
the test below the level of the grade to which the enrollment 
or the transfer was sought whose application you never­
theless granted? A. Not this year.

Q. Can you recall any situations in which you have had 
white children in similar conditions but nevertheless their 
requests have been granted? In other words, Mr. Brew- 
baker— A. I can’t recall that. I don’t know.

Q. Are you in a position to say— A. No, I don’t think 
so.

Q. —that you did no t, apply a different rule to these 
Negro students from what you usually do with reference 
to other students, white children seeking attendance to 
white schools and Negro children seeking attendance to

—70—
heretofore Negro schools? That is what I am trying to 
find out. A. That’s pretty difficult to answer there. I ’m 
not so sure.

Q. Am I correct in my understanding, Mr. Brewbaker, 
that your testing program for unusual cases or circum­
stances is limited to situations where you have a child who 
is seeking initial enrollment in a school or a transfer to a

J. J. Brewbaker—for Defendants—Cross



53a

school I A. I would say generally—no—well, generally 
speaking, that’s true, but we have a few others.

Q. You wTould require it in all such cases irrespective of 
the race of the child? A. We are doing that, yes.

Q. All right. A. But we have some others that wouldn’t 
come in that category.

Q. Yes. In other words, you may have— A. Maladjust­
ment.

Q. By reason of some circumstances not related to race 
or to a transfer— A. That’s right.

Q. —or to an initial enrollment that would make it an 
unusual case and you might test there? A. That’s right.

Q. Of course, these are usually eases of maladjustment,
—71—

are they not? A. That’s right.
Q. All right, sir. Now, in the case of white initial en- 

rollees or transferees, do you also require the interview—• 
A. Yes.

Q. —as you did in this case? A. That’s right.
Q. Do you have a set pattern or set of questions that 

you put to these parents at these interviews? A. They 
have a copy of the same form that they use. These six 
committees in the high schools, they use the same form, 
the same pattern that we use in the administration office.

Q. And you are saying now they ask pretty generally 
the same questions, do they? A. That’s right; that’s right.

Q. All right, Mr. Brewbaker. Let me get down—-

The Court: Let me interrupt.

By the Court:
Q. If I understand correctly, Mr. Brewbaker, all chil­

dren who ordinarily would have left Northside Junior High

J. J. Brewbaker—for Defendants—Cross



54a

School and ordinarily would have entered Granby High 
School this Fall were given the same tests and interviews 
that the Negro children who were leaving one school and

—72—
going to another were given; is that correct? A. My under­
standing is, your Honor, that that is correct.

By Mr. Robinson:

Q. In other words, your graduates moving from one 
school to another in the normal course of promotion, you 
would treat in the same fashion that you would treat trans­
ferees and initial enrollees? A. That’s correct.

Q. I think I am clear. Now, Mr. Brewbaker, let me ask 
you this: Are you in a position to tell me whether or not 
you have any white students in any of these six schools 
that we have been talking about in attendance at those 
schools or who will be in attendance for the school ses­
sion ’59-’60 who are below grade level as revealed by other 
tests that you may have given not for the purpose of 
determining whether they were unusual cases or circum­
stances? A. I have not had occasion to check that, Mr. 
Robinson.

Q. Would you have any means of getting that piece of 
information for me? A. Yes, we could get that informa­
tion.

Q. Certainly you are not in a position to say that every 
white student who is in these schools is at least at grade

- 7 3 -
level or above? A. No, I couldn’t say that.

'*  # # # #

J. J. Brew-baker—for Defendants—Cross



55a

J. J. Brewbaker—for Defendants—Redirect

—75—
# # # # #

Redirect Examination by Mr. Davis:
Q. Mr. Brewbaker, there is some confusion in my mind 

as to whether the record is completely straight about this 
matter of testing. Let me see if we can get that straight. 
The Negro applicants seeking admission to predominantly 
all white schools or previously all white schools were con­
sidered to be unusual circumstance cases and they were 
tested— A. That’s right.

Q. —that’s correct, is it not? Did you consider any 
other children seeking transfers to other schools or initial 
enrollments in schools to be unusual cases? Or, to put it 
another way, what did you do with regard to the white 
children seeking transfers to or initial enrollments in 
the predominantly all white schools, the schools to which 
Negroes were admitted last year?

The Court: That is Northside and Granby.
—76—

Mr. Davis: There were more than that, Judge.
There were six of them, I believe.

The Court: I just gave that—
Mr. Davis: That is right.

By Mr. Davis:
Q. Take the white children who sought admission to the 

three high schools and the three junior high schools to 
which the Judge has just referred, were those children 
tested or interviewed? A. My understanding is that they 
were. We have been working on that. I wonder—I wouldn’t 
say absolutely. Now, Mr. Lamberth has worked more closely 
with that.



56a

Q. I can clear that up with Mr. Lamberth? A. Yes, he 
has been working more closely, but my understanding, this 
year we are testing all of those children. I would have to 
check on that more closely, but that’s my understanding, 
Mr. Davis.

Q. All right, sir. We can ask Mr. Lamberth. A. Yes.
Q. I realize Mr. Lamberth was closer to this testing 

program than you were. A. Yes, he was actually doing 
the work in it.

Q. One other thing, Mr. Brewbaker. Mr. Bobinson has
—77—

asked you if, in all of these cases of the Negro applicants, 
if there was any child who tested below the grade level 
sought by the child who was recommended to be admitted, 
and I understood your answer to be, no! A. That’s right.

Q. In other words, the child had to test equal to the 
grade level or higher? A. That’s right.

Q. Why did you stick so closely to that grade level this 
year? A. Well, Mr. Davis, last year was our first ex­
perience in trying to place these children and last year 
we didn’t stick closely to the grade level. We thought 
that we’d consider other factors and we felt that probably 
these children, particularly if they had been in integrated 
schools, other places and consider their personality—if 
they had a personality we thought they would adjust more 
easily, we took in some that were below the grade level, 
but we found, through experience, those children had a 
pretty difficult time. In fact, one child failed as many as 
three subjects, another one two and several of them failed 
one. So we felt that our experience with that, that it would 
be better for the child that if we’d stick to the grade level, 
we felt that that was a better indication, you might say, of

J. J. Brewbaker—for Defendants—Redirect



57a

success than taking chances on those who didn’t measure
- 7 8 -

up to the grade level on the test.

Mr. Davis: I have no further questions, Judge.

Recross Examination by Mr. Robinson:
Q. From what you say, Mr. Brewbaker, it might be a 

good idea to stick to the grade level on all students; it 
would cut down on your failures.

Mr. Davis: If your Honor please, I do not think 
that necessarily follows.

Mr. Robinson: That is the question.
Mr. Davis: I did not take it that it involved a 

question.
The Court: What was the question ?
Mr. Robinson: Let me put it another way, your 

Honor.

By Mr. Robinson:

Q. The considerations that you just mentioned that you 
applied to these Negro applicants which involved your 
sticking pretty close to their scores and the relation of 
their scores to grade level is not a consideration that you 
applied to any other group of students any place else in 
the school system, as a general rule; isn’t that so, Mr. Brew- 
baker! You applied it to these, but you never have applied

—79—
it to anybody else? A. That’s a little difficult to answer. 
I t’s hard to remember—when you have around 50,000 
children in school work all the time, it’s a little difficult to 
remember a little incident like that.

J. J. Brewbaker—for Defendants—Recross



58a

Q. But you would remember, Mr. Brewbaker, if you bad 
applied a similar consideration to this fifty thousand ex­
cept this group of Negro applicants, wouldn’t you! A. 
Well, generally speaking, I think you’re probably right, but 
let me make this observation.

Q. Yes, sir, go right ahead. A. When a Negro child 
makes a transfer to a white school into a new environ­
ment—suppose she’s a year behind the grade level, she 
has more than to work to catch up with that grade level. 
She has to do all those other adjustments, social adjust­
ments, emotional adjustment, and all that. So I th in k - 
even if what you say is absolutely correct, I still think that 
when a child of one race is transferred to a school of an­
other race—in a school that’s predominantly of the other 
race, it’s going to take some time. She’s going to have 
more problems than just trying to make up that grade, so 
I really think we are justified in doing that.

Q. Mr. Brewbaker, you have white children who fail 
two and three subjects too, don’t you? A. Now, if they 
were going—

—80—
Q. Would you answer my question, sir? A. Yes, sure, 

we have some that fail all subjects.
Q. I see. A. Both white and Negro.
Q. And you do not stick to the grade level with respect 

to them, do you, the way you did with respect to this group 
of Negro applicants? A. They probably repeated the 
grade, Mr. Robinson.

Q. But you do not put them out of the school or deny 
their request for admission? A. We didn’t put these out 
of the school either.

Q. You would not let them in? A. They were already 
in. We just didn’t transfer them.

J. J. Brewbaker—for Defendants—Recross



59a

Q. There is only one other question I would like to 
ask you, Mr. Brewbaker, if you are in a position to answer. 
Let me see how many children we have. There are eleven 
children in the group that Mr. Davis has nominated those 
denied because of low scholastic achievement. If each of 
those children had scored on the test that you administered 
equal to or above the level for the grade to which they 
sought admission or transfer, would the School Board 
have granted the request for transfer or enrollment of each 
of these students? A. I would say, Mr. Robinson—of

— 81-

course, that’s answering a supposition, but I would say, 
yes, if that were true, because we found nothing else.

Q. Yes, that is what I am trying to find out. The sole 
reason— A. That’s what I mean.

Q. The sole reason for denying these applications was 
that each of them scored below grade level? A. That’s 
correct.

# # # * #
— 83—

# # # # #

Redirect Examination by Mr. Davis:
Q. Go ahead, Mr. Brewbaker. A. Your Honor, when I 

was asked the question about who was tested, I think, 
probably, I was confused about the names of those we sent 
to the Placement Board. We send forms or names of all 
those going from junior to senior and to elementary, but 
in the testing program in the school, we are testing those 
who apply. If they would normally be in that school or 
transferred to that school, we don’t consider that an un­
usual circumstance, but if they apply to come to that school, 
just like these colored children have applied to go to pre­

J. J. Brewbaker—for Defendants—Redirect



60a

dominantly all white schools, so we do test those. So we
- 8 4 -

test only those who apply for admission in these schools. 

By the Court:

Q. Does not a child, let ns say, attending Northside 
School who would ordinarily go to Granby High School 
in the Fall inferentially apply for admission to Granby 
High School? A. I wouldn’t say so, your Honor. If that 
child would normally go to Granby—if that child should 
apply and say, “No, I want to go to Maury,” that child 
would be applying to go to a school other than the one 
the child would administratively be transferred to. Just 
like a child going from Jacox to Maury or Ruffner to 
Maury, we don’t test those. That is an administrative trans­
fer. I ’m sure I gave that impression because I was con­
fused. I wanted to straighten that out. I t’s when they 
apply to a school other than the one they would normally 
go to in an administrative transfer.

J. J. Brewbaker—for Defendants—Recross

The Court: All right. Mr. Robinson, you may wish 
to pursue it further.

Mr. Robinson: I would like to make certain I am 
clear.

Recross Examination by Mr. Robinson:

Q. In other words, you apply your special testing pro­
gram to students who want to transfer or to initially enroll

- 8 5 -
in a particular school as distinguished from students who, 
by reason of completion of one school, would move—in 
other words, there is a difference between the graduating



61a

student and the transferee and the initial enrollee, am I 
correct in that regard, Mr. Brewbaker? A. Well now, 
the initial enrollee—the initial enrollee, if that initial en­
rollee is in the school in which it would normally enroll in, 
I would say that that child would not be tested.

Q. Well, wait a minute. A. But if that child applies to 
other than the one it would normally go to or if that child 
—as I said to his Honor, if a child in Jacox should apply 
to go—we don’t have but one senior high school, but a child 
who would apply to go to a school other than the one he 
normally would be sent to administratively, we would test 
that child, if he makes a special application to go to any 
other school than which he would normally be assigned to 
by us.

Q. When you said the one that he would normally go to 
or the one to which he would normally be assigned, you 
are speaking about something that is normal in the geo­
graphical sense; is that correct? A. That’s right.

Q. If a student applies for a transfer from a school 
to which he would normally attend to one that he would

— 86—

not normally attend through geographical reasons, he would 
be tested— A. That’s right.

Q. —whether white or colored? A. That’s right.
Q. If a student is an initial enrollee and he seeks ad­

mission into a school to which he would not normally be 
assigned or would not normally attend, again owing some­
thing to geographical reasons, he would be tested? A. 
That’s correct.

Q. If a student completes elementary school age and 
he wants to go on to a junior high school, he would be tested 
only if he were seeking admission to a junior high school

J. J. Brewbaker—for Defendants—Recross



62a

other than the one which, by virtue of geographical con­
siderations, he would normally attend? A. That’s so.

By the Court:

Q. If a Negro child lived, let us say, very close to Granby 
High School—take that Bowling Brook section—and that 
child was graduating from an elementary school which has 
previously been and is now all colored, would that child be 
tested? A. It depends on where the—if the child—now, 
if he were in an elementary school, he would be in Titus- 
town. He would normally go to Jacox or Ruffner.

—87—
Q. That is what I want to know. Why would he normally 

go to Jacox or Ruffner? A. That has been our pattern 
of school districts up to this time.

Q. School districts by race? A. That’s right. I might, 
your Honor—if he—if we sent him to a white school and 
he didn’t apply to go, we might be enforcing integration, 
but if he wants to go to the school that he is accustomed to 
going to—

Q. What is he accustomed to going to? A. Either Jacox 
or Ruffner; he would be, his brothers and sisters—

Q. I understood you to answer Mr. Robinson that for 
geographical reasons there is no need to give the child 
a test because the child would normally go to that school. 
Now, from a geographical standpoint, if a child, who lives 
in the Bowling Brook section, leaves an elementary school 
which was heretofore and is now occupied solely by colored 
children, certainly from a geographical standpoint that 
child would go to Granby High School, would he not? A. 
Not according to our school districts.

J. J. Brewbaker—for Defendants—Recross



63a

E. L. Lamberth—for Defendants—Direct 

By Mr. Robinson:
Q. Do you have your school districts set up by race! 

A. We have up to this time, sir.
—88—

 ̂  ̂  ̂ *3̂*
E. L. L am berth , ca lled  as a  w itn e ss  by  a n d  on b e h a lf  of 

th e  d e fen d an ts , h a v in g  been  du ly  sw orn , te s tified  as fo l­
low s :

Direct Examination:

—91—
ji, jt.•3P W IP W

Q. What type of applications did you consider to be un­
usual circumstance applications! A. Down through the 
ages, as Mr. Brewbaker has said, we have done a great 
deal of testing in the Norfolk Public Schools, and even 
before the matter that is before this Court came up we 
had some cases that were more unusual than others, and 
some were so unusual that, in addition to the regular group 
tests, we picked them out and tested them as unusual cases 
and then when we left here last year, we had a new, I think 
—I did, I had a new idea of unusual cases—when a child of 
one race applies to a school that has been attended only 
by children of another race or predominantly by that race, 
that that would be an unusual case—and so we now inter­
pret that if a child were to apply to Granby High School 
who attended Princess Anne High School, who moved into 
the city limits, that that is an unusual case. I think Granby 
has forty or fifty of those that are being tested or who 
have been tested.

# *#



64a

E. L. Lamberth—for Defendants—Cross

—94—
# # # # #

Cross Examination by Mr. H ill:
Q. I just want to check on one or two things, Mr. Lam­

berth. As I understand it now, June 1st was the deadline 
for all of the children who were in Norfolk schools in 1958- 
’59 who wanted to make transfers; is that correct? A. 
Under this plan, we interpreted if they wanted that type

—95—
of unusual transfer that we would have to test during 
June. It said, “Test immediately after June 1st,” and 
practically all of them—all these twenty-three did apply 
before June 1st, They started about April and the last 
one came in on June 1st.

Q. Yes, sir, I understand that, But what I am trying 
to find out is, this applied to the children who were in the 
Norfolk schools— A. That’s right.

Q. —in the’58-’59 session? A. That’s right.
Q. They had to apply by June 1st? A. That’s right,
Q. If they had been in the ’58-’59 session and did not 

apply on June 1st, they would not be eligible to change; 
is that the ruling? A. If they were in the Norfolk schools 
and applied—

Q. Yes. In other words, in the Norfolk schools last 
year— A. That’s right, and they applied for an unusual 
transfer of this type, we would have said, “Well, we are 
already testing,” as we did in one case, I think, “and we 
will have to consider you later.”

Q. And what you call an unusual transfer of this type 
is where a Negro child is transferred or applying to a

—96—
heretofore school, that is, heretofore designated as a white



65a

school? A. Also a white child going to a Negro school or 
predominantly white school. We are interpreting a white 
child going to Granby High School as an unusal case, if he 
is applying for it.

By the Court:

Q. Has the School Board drawn a line by what they 
mean by predominantly? A. Not to my knowledge, Judge.

Q. Fifty-one per cent? A. We have not discussed that, 
but I think the largest number is seven in, say, fifteen 
hundred. I suppose that will have to be discussed in some 
future meeting, but no discussion has taken place, to my 
knowledge, of what predominantly means.

By Mr. H ill:
Q. And all of these applications had to be made by June 

1st; is that correct? A. Unless—I don’t have a copy of 
the procedures and criteria with me here on the stand, but 
as I recall them—and I am rather familiar with them— 
there is a provision in there that if children were not in 
the city or not available, or something to that effect, they 
would be allowed to apply.

—97—
Q. I am talking about children who were in the school 

system, in the Norfolk school system, last year, you would 
still— A. Yes, if they wanted an unusual transfer, they 
would apply before June 1st, yes.

Q. And I say this applied to those white children who 
happened to be going to one of these schools that have a 
few Negroes in them now and it created an unusual circum­
stance then? A. Yes.

Q. Were their parents interviewed also? A. The white 
children?

E. L. Lamberth—for Defendants■—Cross



66a

Q. Yes. A. Who are not routinely in those schools who 
have applied—and there are some. I don’t know how many 
there are up to date, but there are over a hundred—they 
have been tested or are being tested today. I can’t—I 
don’t suppose—they could be being tested today. I don’t 
know. We have four psychologists.

Q. What I am interested in right now, say a child, who 
went to an elementary school in the vicinity of Granby and 
attended this elementary school last year and in May his 
or her parents moved over into another section of the city 
and they decided then they wanted to go to—let’s say they 
continued to live there, but they wanted their child, let’s

- 9 8 -
say, to go to Maury. Now, normally this child, under 
routine procedure, would go to Granby but now they wanted 
him to go to Maury. That, I understand from you, is an 
unusual circumstance? A. That’s right.

Q. A white child and that child had to make his applica­
tion by June 1st? A. Yes.

Q. And would have to be tested? A. That’s right.
Q. And the parents interviewed? A. Yes.
Q. I am asking you, do we have any such tests and in­

terviews of white parents who fell in that category? A. 
We have not. We have tests—I saw some yesterday, taken 
yesterday, of children who have moved into the city, white 
children.

Q. No, I am not getting to those. We are sticking with 
these others right now. A. No, I do not—

Q. Do you have any tests of white children who made 
applications as of June 1st? A. No.

Q. So, why is it? You mean to say there weren’t any
—99—

such applications? A. There were no unusual ones, to my

E. L. Lamberth—for Defendants—Cross



67a

knowledge. All the applications come to nay desk, and we 
have two types now that we have these procedures. We 
have two types of request for transfer. We have the usual 
and the unusual, and—

By the Court:

Q. You have defined, Mr. Lamberth, or, rather, the 
School Board has defined in its procedures as an unusual 
circumstance “of seeking transfers to or initial enrollment 
in public schools of the City previously attended only by 
students of the opposite race and who have already applied 
for transfers or initial enrollments, or any other children 
applying prior to July 25, 1958, for transfers to or initial 
enrollments in public schools of the City previously attended 
only by children of the opposite race * * # ”? A. That’s 
right.

Q. That was fine until you had some Negro children in 
these six schools. Where, under your procedures that you 
have been operating under, do you use the word “predomi­
nantly”? A. I don’t have a copy—

Q. Certainly Granby High School, which had one Negro 
child last year, is no longer a school previously attended 
only by children of the opposite race; isn’t that right? A. 
That’s right.

—100—
Q. Where, in your procedures, standards and criteria 

that the School Board promulgated, do you find the juris­
diction for the predominant race now?

Mr. Davis: If your Honor please, may I inter­
rupt just a moment?

The Court: Yes.

E. L. Lamberth—for Defendants—Cross



68a

Mr. Davis: I think your Honor has been reading 
from a special proviso that was put into the amended 
procedures, not as a definition, but to take care of 
those children who applied last year prior to the 
time that the resolution was amended. Now, I may 
be wrong. I did not have this before me when you 
were reading it, but that is what it sounded like.

The Court: It reads as follows:
“Procedures: No. 1.
“The Superintendent shall inaugurate and adminis­

ter a program of tests to be given, as promptly as 
possible in the current year and between June 1 and 
July 1 of all subsecpient years, to all children who 
apply, or for whom applications are made, for trans­
fers from other schools, either within or without

— 101—

the City of Norfolk, to public schools of the City of 
Norfolk, or who apply, or for whom applications are 
made, for initial enrollments in public schools of the 
City of Norfolk, whose applications involve unusual 
circumstances,” and then we have a semicolon—

Mr. Davis: Right.
The Court: “ * * * provided, however, that in 

the cases of the Negro children whose applications 
involved the unusual circumstances of seeking trans­
fers to or initial enrollments in public schools of 
the City previously attended only by students of 
the opposite race and who have already applied for 
transfers or initial enrollments, or any other children 
applying prior to July 25, 1958, for transfers to or 
initial enrollments in public schools of the City pre­
viously attended only by children of the opposite 
race, such tests shall be given as soon as is reason-

E. L. Lamberth—for Defendants—Cross



69a

ably practicable and not later than August 8, 1958; 
and provided further, however, that as to all children 
so applying, or for whom such applications are 
made, in subsequent years within the time limit fixed

— 102— -

by this Board for making such applications,-stmt 
too late to be tested by July 1, such tests shall be 
given within a reasonable time after such applica­
tions are made; such tests to be applied and adminis­
tered according to the standards and criteria above 
set out and on a racially non-discriminatory basis, 
the same to be a requisite before enrollment in all 
such cases.”

Mr. Davis : That is right.
The Court: You explain it to me, then.
The Witness: I think I know the answer to that 

one.
Mr. Davis: It is not a definition, but it is a sav­

ings clause. You start off by reading this and find 
that these tests are to be given between June 1st and 
July 1st. If you will refer back to the original resolu­
tion, you will find in it a further resolution by the 
School Board to the effect that all applications were 
to be filed prior to July 25, 1958. As to those children 
who met that requirement and filed—

—103—
The Court: Let me ask you: Your applications 

for transfer are nothing more than a Pupil Place­
ment form, aren’t they?

Mr. Davis: Probably so.
The Court: Do you have a special form?
Mr. Davis: What kind ?

E. L. Lamberth—for Defendants—Cross



70a

The Court: Do you have a special form that is 
filled out for applications for transfer?

Mr. Davis: No, no, we do not have any special 
form.

The Court: So it is nothing more than the execu­
tion of a Pupil Placement form.

Mr. Davis: I suppose you could call it that, Judge. 
You do not mean the Pupil Placement form in that 
sense used by the Pupil Placement Board, but just 
generally speaking a Pupil Placement—

The Court: No, I mean as required by law.
Mr. Davis: No, we have no such form as that. On

—104—
these applications of the School Board, it is true that 
that form is filled out but they do not have to fill 
that out.

The Court: I understand that, but it is filled out 
for them.

Mr. Davis: Oh, yes, it is filled out for them.
The Court: Every white child fills out one of those 

forms—
Mr. Davis: Yes.
The Court: —-when they transfer from one school 

to another.
Mr. Davis: Yes, that is right.
The Court: Then these white children—I go

back to the child who gets out of Northside Junior 
High School and goes into Grranby—John Jones, a 
white child—he signs, or his parents sign, a Pupil 
Placement form. He has applied for a transfer, 
hasn’t he?

Mr. Davis: In the eyes of the Pupil Placement 
Board under their rules and regulations that is a

E. L. Lamberth—for Defendants—Cross



71a

transfer such as they should administer; that is 
correct. The Norfolk School Board considers that

—105—-
to be a routine promotion if he is just being pro­
moted from one school to the other, but, Judge, that 
does not have anything to do with this procedure and 
this definition you mentioned a moment ago. That 
is something entirely separate from this. This reso­
lution is not endeavoring to define unusual circum­
stances. In the various orders that were entered 
and the memoranda that were filed in this case when 
we were arguing the validity of the assignment 
standards, criteria and procedures, it was recognized 
in there that among unusual circumstances was the 
unusual circumstance of a Negro child applying for 
admission to a predominantly white school or all 
white school, and vice versa. We do not attempt 
to set the definition out in the resolution.

The Court: I remember your argument, but as I 
construed the Board’s plan and criteria—and I may 
have done so incorrectly when I upheld the validity 
of the same on its face on May 8th—there was noth­
ing in there where you used the word “predomi-

—106—
nantly,” and this is the first time that I have heard 
any suggestion that the applying for transfer was 
anything but the execution of a Pupil Placement 
form. That is the way they transfer in this day and 
time. They must execute those forms or have some­
one execute it for them. That is why we have the 
Pupil Placement Board here.

Mr. Davis: I am afraid, Judge, we are talking 
about two different things. That is right, they have

E. L. Lamberth—for Defendants—Cross



72a

to have the Pupil Placement form executed. I un­
derstood you to ask me, does the School Board re­
quire any special form of its own, and it does not. 
Now, it is true that the Pupil Placement form has 
to be completed, but that is one of the State forms.

The Court: I thought, Mr. Davis, that this would 
be a flag of warning. I do not know whether anybody 
pays any attention to the opinions I write, but I sus­
pect they do not, and I do not blame them, but on 
page 6 of my opinion on May 8th, right at the top 
of the page, this is said: “It is assumed that, with 
respect”—

—107—
Mr. Davis: Excuse me, what page, Judge?
The Court: Page 6 of my opinion on May 8th of 

this year, I said: “It is assumed that, with respect 
to the schools already racially mixed, the ‘unusual 
circumstance’ would exist, and that applicants (both 
white and Negro) applying for transfer to, or initial 
enrollment in, such racially mixed school will be re­
quired to submit to tests and interviews.”

Now, you are putting the word applying for the 
first time'—or, rather, the School Board is—that 
there must be some special form aside from the ex­
ecution of the Pupil Placement form.

Mr. Davis: No, Judge, they are not doing that, 
and the School Board has done exactly what you 
have up there on page 6, and the reason they have 
done it is because you put it in there. They have— 

The Court: Yes, but they have not given the test 
to that white child who may live right next to Granby 
High School who attended Northside and he goes to

E. L. Lamberth—for Defendants—Cross



73a

E. L. Lamberth—for Defendants—Cross

—108—
Granby this Fall, but they have taken the Negro 
child, who lives directly across the street in Bowl­
ing Brook, and said, “Yon must take the test.” That 
is the part that disturbs me.

Mr. Davis: Say that again, please, sir. I think 
I can understand it.

The Court: A white child lives in Talbott Park. 
You know where that is.

Mr. Davis: Yes.
The Court: That child left Northside this year.
Mr. Davis: Yes.
The Court: That is where he should be. When 

he leaves there, he should go to Granby, we know 
that. A Negro child lives in Bowling Brook—

Mr. Davis: Yes.
The Court: —directly across the street from 

Granby High School, within a stone’s throw, that 
child went to Jacox.

Mr. Davis: Yes.
The Court: He is leaving Jacox; he is graduating 

from Jacox. Now, the trouble with the School Board
—109—

is, you still have your districts separated according 
to race. You are still dealing with the racial factor. 
That child, who lives in Bowling Brook, if he had 
been a white child, would go to Granby. No question 
about that, is there?

Mr. Davis: No; that is right; that is right.
The Court: Then I say you can give tests, yes, 

but don’t you have to give that same test to the boy 
who got out of Northside, who lived in Talbott Park, 
who is going to Granby this Fall?



74a

Mr. Davis: If he seeks to go to a school to which 
he does not normally go, yes, but—

The Court: But this Negro child in Bowling Brook 
lives right next to Granby High School and you want 
to send him to Rufirner.

Mr. Davis: But if you tell us that simply because 
he lives there he has to go to Granby—

The Court: Oh, I do not say that. I do not say 
that at all. I say to you that he is entitled to the

— 110-

same equal consideration and treatment as the white 
child, who lives in Talbott Park, to determine 
whether he is eligible to get into Granby. That is all 
I  am saying.

Mr. Davis: Then all he has to do to get that 
treatment is ask to go there, then he gets these tests 
and interviews.

The Court: But you are not giving the same test 
to the white boy who lives in Talbott Park.

Mr. Davis: If the white boy in Talbott Park asks 
to go to Booker T. Washington, then he will be given 
a test.

The Court: Oh, but you are getting into race.
Mr. Davis: To follow your—
The Court: To follow my theory through—and I 

say it in perfect, ordinary English—you have a 
perfect right to give a test; that you have a perfect 
right to reject a child and say, “I am not going to 
let that child in this school because we do not think 
that child can make the grade in this school”— 
that is fine—but when you do that, you have to sub­
ject that white child, not because he wants to go to

E. L. Lamberth—for Defendants—Cross



E. L. Lamherth—for Defendants—Cross

—111-
Booker T. Washington—he is leaving one school and 
going into another—

Mr. Davis: Routinely promoted.
The Court: No more routinely than the Negro 

child who lives in Bowling Park. That Negro child, 
if he was white, you admit he would walk across the 
street and go into Granby High School.

Mr. Davis: And we admit if he lives in that area 
and walks across and goes into Granby High School, 
then we are getting into the field of forced integra­
tion, exactly as Mr. Brewbaker mentioned a moment 
ago.

The Court: No, you’re not.
Mr. Davis: Exactly what Judge Parker said the 

Brown case did not hold.
The Court: No, you’re not, not if you give all 

the tests, and I know from a practical proposition it 
is a terrific burden—

Mr. Davis: Of course it is.
The Court: —but the trouble is, when you adopt 

the plan, you have to give it on an equal basis. It 
is a burden to give them. Of course, it is a burden to

- 112-

give them, and I do not go so far as to say what Mr. 
Robinson was touching on with Mr. Brewbaker 
earlier, “Well, you have a white child here whose 
grades may be a grade or two below his average 
and you have a colored child here, he may be a grade 
or two below your average, and how are you going 
to justify letting a white child in that school and 
not the colored child in there?” Well, you have some 
other factors that you can hang your hat on there,



76a

but I  do not see much justification for saying that 
you can take the Negro children and give them tests, 
and the only other ones you are going to give tests 
to are the ones who write a special letter and say, 
“We want to be assigned into such and such a 
school,” or the newcomers in town.

Mr. Davis: If your Honor please, we are giving 
the tests to everybody, whether they are white or 
colored, in the same category.

The Court: You remember I told you to read 
that opinion pretty carefully, Mr. Davis, after you 
got it.

Mr. Davis: I know you did, Judge, and I read it 
very carefully.

—113—
The Court: You did not ask me any questions.
Mr. Davis: No, sir, I  did not, because I thought 

I  understood it and I still think I understand it.
The Court: All right, sir. Let’s go on with the 

testimony.
Mr. Davis: Yes, sir. Just a minute, please.
Mr. Hill: Mr. Lamberth—
The Court: Just a minute, Mr. Hill. I think Mr. 

Davis has some more questions. No. Were you 
questioning?

Mr. Hill: It does not make any difference.
The Court: Had you finished, Mr. Hill?
Mr. Hill: No, sir, but if he had not finished, it 

is all right.
Mr. Davis: If your Honor please, just one thing. 

I  think, when we got into our discussion, Mr. Lam­
berth said he thought he might have an answer to 
that question.

E. L. Lamberth—for Defendants—Cross



77a

—114—
Redirect Examination by Mr. Davis:

Q. Do you have anything you would like to add? A. I 
think you have answered it.

Mr. Davis: Thank you. That is all we have at 
this time, Judge.

Recross Examination by Mr. Hill:
Q. Last year you had quite a number of children, when 

schools were closed, that went to South Norfolk; is that 
correct? A. When the schools were closed?

Q. Yes, sir. A. Yes, sir.
Q. And then at the end of the year they came back to 

Norfolk, did they not, or applied to come back? A. That’s 
right, some of them did. I don’t remember how many. 
Some did.

Q. Well now, when those children reapplied were they 
tested? A. They were not, because that was an unusual, 
unusual circumstance in which they were our children and 
just off on vacation. I think you can understand why they 
weren’t tested. They were being educated for us.

—115—
Q. I can easily understand that. But the only thing, 

when you boil it all down, the only time when you have 
the really unusual circumstance in any particular case 
to amount to anything is when a Negro child wants to go to 
one of these white schools; is that correct? A. I can’t 
agree with that, Mr. Hill, because I testified here last year 
that ten years ago or twenty years ago, or a little longer 
than that, when I started working for the Norfolk Public 
Schools we had unusual cases and, as Judge Hoffman just 
read—the matter that you say is one of the unusual cases

E. L. Lamberth—for Defendants—Redirect—Recross



78a

of which we had a large Dumber last year and have twenty- 
three this year, but Miss Winslow’s department has un­
usual cases every week in the school year and we keep 
them on in the summertime long before this occurred be­
cause of unusual eases. I can’t agree that that’s the only 
type of unusual case, no, sir.

Q. That only applies, though, to—what do we call— 
a maladjusted child, a child emotionally disturbed, or things 
of that nature; they apply to white and Negro children, do 
they not? A. That’s absolutely true.

Q. These types of psychological examinations that you 
are talking about now that were given ten years ago, you 
only gave them to children who were emotionally dis­
turbed or who, due to family problems at home, were in

—116—
some way emotionally disturbed—well, let me ask you this: 
Ten years ago did you examine and test a Negro child to 
go to Jacox or Booker T., or any of those Negro schools? 
A. If  a child—one thing that hasn’t been brought out here, 
when I said I had the answers, in the Norfolk Public 
Schools, as long as I can remember, we have worked under 
the principle that a child was in a school and he was 
routinely promoted from grade to grade; he went with his 
class to the junior high school which that elementary school 
fed into; he went to the senior high school from which that 
junior high school fed into the senior high school. We have 
always, since I can remember, had unusual requests, just 
like these twenty-three and the 151 were last year, for 
people to get out of that usual routine promotion, that’s 
written on the report card—“You did well; you are pro­
moted to the sixth grade,” or, “You did well; you are pro­
moted to Jacox or Booker T. Washington.” We have always 
had applications to get out of the stream and do differently.

E. L, Lamberth—for Defendants—Recross



79a

Since I have been assistant superintendent that has been 
one of the jobs of my office, to try to assign pupils correctly, 
and I have always used the office known as the adjustive 
services—two of their representatives are here today— 
to help me whenever there was a question in my mind as 
to whether that child should be granted that application. I 
testified to that last year, you will recall, and while these

—117—
numbers last year were largely of one race wanting to go 
to another school, it was not the first time that we had a 
child apply and be referred to testing and interviewing 
and then finally make a decision. That’s been going on 
week after week and this formulized plan is a writing 
down of what we have always done.

Q. The only thing that I was trying to ask you, Mr. 
Lamberth, was, though, that where a perfectly normal 
child who had made a reasonable number of A’s and B’s 
in his class and was promoted and he wanted to go to a 
different school from the rest of the members of his class, 
that was merely regarded as a routine situation, was it not! 
A. Had one last week just like you describe. Mrs. Winslow 
is working on it now.

Q. No, we are talking about before this racial business 
now. We are talking about before this. A. Yes, it could 
have happened before. We could have taken him out and 
tested him, absolutely, if we wanted to. You have experts, 
you want to use them. Just like a child who is sick, you 
send him to a physician and let the physician decide. I 
don’t want to decide.

Q. Just one other question. You had these committees 
set up to test these children, and certainly one of the big 
factors was the fact that a child of one race wanted to go

E. L. Lamberth—for Defendants—Recross



80a

to a school predominantly attended by children of a differ-
— 118—

ent race? A. That’s one of the unusual circumstances.
Q. I say that is one of what you regarded as unusual 

circumstances. And you had these various committees set 
up to test these children? A. That’s right.

Q. And interview their parents on this interracial mat­
ter? A. That’s right.

Q. The members of the committee, were they all mem­
bers of the one race? A. I think Mr. Brewbaker testified 
last year—he appoints the committee.

Q. No, we are talking about this year now. A. He testi­
fied last year the same as I am testifying now.

Q. We are not asking you the reason why. We are asking 
you what the fact is. A. None was on there and he testi­
fied he didn’t want to embarrass none of our school per­
sonnel, and that’s the reason we didn’t do it.

By the Court:

Q. If a child leaves Northside is there any official state­
ment made on his report card or is there a letter sent to 
him that he will go to Granby High School, let us say,

— 119—

next year, or does he just go as a matter of course? A. 
Before he leaves Northside, it is probable that a repre­
sentative of Granby High School in the Spring would go 
there and check over with his principal, guidance person, 
who is from Granby, what he had said—you see, when you 
get that high in high school, you are selecting different 
areas of study and there would be—that would be done in 
April or May.

Q. Of course, that is someone from Granby High School 
going to interview a member of the faculty at Northside? 
A. He would actually talk to the children, too.

E. L. Lamberth—for Defendants—Recross



81a

Q. And would probably talk to the children as a group, 
would he not! A. Yes, as a group, that’s right.

Q. Just telling them what they could expect at Granby, 
and so on? A. That’s right; that’s been going on as long 
as we have had guidance.

# # #  #  *

—128—
* # # # #

Q. Would you enroll a Negro child in a predominantly 
white school on a temporary basis for a period of fifteen 
days ? A. I don’t think I would.

Q. It does not say fifteen days, but a stated period? A. 
I don’t think I would, Judge.

Q. You do not think you would. Does that temporary 
enrollment apply to white children in your mind; is that it ? 
A. It would apply to Negro children in Booker T. Wash­
ington, Judge.

The Court: I guess the race situation still remains 
with us, gentlemen. All right, let’s go on. Nothing 
more?

Mr. Hill: I  do not have anything further right 
now.

The Court: Mr. Scott, Mr. Davis ?
Mr. Davis: May I ask, your Honor, one or two 

more questions?
—129—

Redirect Examination by Mr. Davis:
Q, Mr. Lamberth, let me refer specifically to the state­

ment which the Judge incorporated in his memorandum 
filed May 8, 1959, which he read just a moment ago. Let 
me read it to you, please, sir, and then ask you a question 
in connection with it. It reads this way: “It is assumed

E. L. Lamberth—for Defendants—Redirect



82a

that, with respect to the schools already racially mixed, 
the ‘unusual circumstance’ would exist, and that applicants 
(both white and Negro) applying for transfer to or initial 
enrollment in, such racially mixed school will be required 
to submit to tests and interviews.” Now, the question is 
this: Have applicants, both white and Negro, applying for 
transfer to or initial enrollment in such racially mixed 
schools been required to submit to tests and interviews ? A. 
They have, sir.

By the Court:
Q. Let’s clarify that again. I  go back to that white 

child at Northside. I  do not understand, even though a 
Placement form is filled out for him in which he seeks to 
go to Granby, that child is given any test or interview; 
is that correct? A. That’s true, but we, in the Norfolk 
City School System, Judge—the Placement form is a 
State law and we have abided by it to the word of the law.

—130—-
Q. I understand. A. But we have never let it substitute 

for our own procedures that we have adopted or for our 
own procedures that we followed for generations. I  mean 
just because a child filled that out, we would not give up all 
the guidance and administrative features that we have had 
in making the transition from junior to senior high school 
for a child. The way Mr. Davis read that, right or wrong, 
we interpreted that to mean that when a child applied for a 
transfer, we just—we might be wrong, but we have never 
interpreted a child as applying for a transfer when he is 
promoted. I  mean that might be wrong, but we just never— 
it never occurred to us that a child who is promoted is ap­
plying for a transfer.

E. L. Lamberth—for Defendants—Redirect

Mr. Davis: Now, Mr. Lamberth-



83a

E. L. Lamberth—for Defendants—Redirect 

By the Court:
Q. Isn’t lie applying for initial enrollment at Granby 

High School! It is the initial enrollment of that child, a 
white child. He is applying for initial enrollment in Granby 
High School. A. Judge, administratively, Granby and 
Northside are one and the same. A child in Northside may 
be on the varsity team—

Q. I do not want to use Granby and Northside as 
the schools. I think you understand the principles are

—131—
the same. A. The same thing is true in Ruffner and Booker 
T. Washington. The league to which Booker T. Washington 
belongs and the league to which Ruffner belongs are the 
same. A child in the ninth grade—we had a champion state 
Avrestler in Northside on the team one year. He wrestled 
all day at school at Granby High School—and they are part 
of the same system—and for us to have thought—even 
using that word “apply”—that each one of those was a 
transfer was out of the pattern of thought. Now, a while 
ago you said everybody should be tested and it wouldn’t 
be a big job. Certainly, it wouldn’t be a big job, as far as I 
am concerned, if we think it ought to be done in the future. 
We can do it—

Q. I do not have a thing to do with it. You can do it or 
not, as I  see it.

* = & # # #
—132—

#  * # *  #

By Mr. Davis:
Q. Now, Mr. Lamberth, when children graduate from 

an elementary school to a junior high school or from a 
junior high school to a senior high school, do they apply for



84a

transfer to or initial enrollment in the higher school? A.
No.

The Court: I thought that the School Board did 
not have any authority to enroll a child.

Mr. Davis: If your Honor please, again we get 
back to this question of enrollment. The child in 
that situation is simply graduating from one school 
to another school. It is not a matter of enrollment

—133-
all over again, but his whole class just rises up from 
the sixth grade to the seventh grade. If it happens 
to be where there are six grades in the elementary 
school and the seventh starts in junior high school or 
if there are seven in the elementary and the junior 
high school starts at eight, he simply routinely is 
promoted from the lower grade into the higher grade 
and he changes the school because there isn’t enough 
room in one school to put all twelve grades. It is 
not a transfer or an initial enrollment. That is what 
I was attempting to say a moment ago and possibly 
did not say it very clearly. I read what you put 
in this memorandum. I read it very carefully, and 
yon put in here “applicants, both white and Negro, 
applying for transfer to, or initial enrollment in,” 
and these children who routinely graduate from one 
school to another are not applying for transfer to or 
initial enrollment in.

The Court: I go along with you if you—you do
—134—

not have such a thing as a routine transfer except 
by geographical location.

Mr. Davis: No, I do not use “routine” that way, 
Judge. I mean a child who passed his work and is

E. L. Lamberth—for Defendants—Redirect



85a

entitled to go from one grade to a higher grade, that 
is the way I use “routine” in that sense.

The Court: I understand. But do you use the 
same routine for that child who lives in Bowling 
Brook?

Mr. Davis: We do, if your Honor please. We do. 
But you have said, in this opinion, that “applicants 
(both white and Negro) applying for transfer or 
enrollment.” I am trying to say to you, Judge, that 
the child who graduates is not applying for transfer 
or enrollment. He is graduating. That is all he is 
doing.

The Court: So does the child who leaves Jaeox 
and who lives in Bowling Brook, he has graduated.

Now, there is no need to argue it now but, of 
course, when I wrote my opinion on May 8th I had, 
staring me in the face, some very strong language 
from the Circuit Court of Appeals for the Fourth

—135-
Circuit in Hamm against the School Board of Arling­
ton County where they reversed Judge Bryan, and 
it is not a very lengthy opinion. The sum and sub­
stance of it is, the Court said: “We find evidence 
in the record that their applications for transfer 
were subject to tests that were not applied to the 
applications for white students asking transfers.”

Now, I go on and say: “It will be noted that the 
court does not specifically state that such action is 
discriminatory per se. It is not said that the re­
quirement of tests and interviews pursuant to a plan 
or resolution is unconstitutional on its face. It does 
suggest, however, that there should be equality of 
treatment as to children seeking admissions to par­
ticular schools under particular conditions.”

E. L. Lamberth—for Defendants—Redirect



86a

Now, I know wliat yon are emphasizing. You are 
emphasizing the words “applying for,” but when you 
get into initial enrollment, a child is initially en­
rolled when he initially enters in Virginia pursuant, 
of course, to the action of the Pupil Placement Board.

—136—
Mr. Davis: Judge, this evidence must show to 

you that these children seeking admission, as Judge 
Bryan put it, have been all treated exactly alike.

The Court: But Judge Bryan was reversed.
Mr. Davis: I  am talking about the language. The 

Circuit Court of Appeals said that there had been 
inequality of treatment as to those seeking admis­
sion. Isn’t that what they said ?

The Court: That is right.
Mr. Davis: And these, in this case, I say to you, 

seeking admission have all been treated exactly alike. 
All of the evidence is to that effect.

The Court: If you could show me where that 
white child who left Northside and went into Granby 
was given tests and interviews, I would go along 
with you, but you bypass that.

Mr. Davis: No, I do not bypass it. I simply say 
that child is not subject to tests. That is what I 
am talking about.

The Court: That is your view.
Mr. Davis: That is it.

—137—
Mr. Robinson: I  do not know whether I could do 

this or not, but since we are talking about it, I would 
like to get it clear from Mr. Davis—take the case of 
Gloria Scott, wdiich is No. 9, and Bobby J. Neville, 
No. 12, these two kids were submitted to the tests.

E. L. Lamberth—for Defendants—Redirect



87a

The Court: I do not know anything about them 
individually. I have not looked at them.

Mr. Robinson: No. 9 and No. 12.
Mr. Davis: If your Honor please, I do not under­

stand his question. If I can get his question clear, 
if this is a proper time to do it, I will try to answer 
it.

Mr. Robinson: What I understood, Mr. Davis, 
your position to be, that when a child completes an 
elementary school and goes to a junior high school 
or completes a junior high school and goes to a senior 
high school, that in that instance you do not have 
a transfer, you do not have an initial enrollment 
and, therefore, the testing requirement is inappli­
cable, and that is what I understood your position

—138—
with the Court to be. If I am incorrect in that re­
gard, I am simply pointing out that in the instance 
of the two children, whose names I mentioned, we 
had exactly that type of situation; in each we had a 
person who had completed the elementary school 
and sought to be admitted to a junior high school 
and each was submitted to the tests.

Mr. Davis: If your Honor please, Mr. Robinson 
is taking out of context the remarks that I just 
made. He is now switching to the unusual circum­
stance case, and m the unusual circumstance case, 
of course, the test is applied, as authorized by the 
assignment standard criteria and procedures.

Mr. Robinson: No, Mr. Davis, you just answer 
my question.

The Court: I think I understand the situation.
 ̂ ^

E. L. Lamberth—for Defendants—Redirect



88a

—140—
E. L. L am bebth , re ca lled  as a  w itn ess , te s tified  fu r th e r  

as follows:

Redirect Examination by Mr. Davis:

Q. Mr. Lamberth, would you explain to us, please, sir, 
the difference between the terms initial enrollment and 
transfer and promotion?

Mr. Cocke: In the school system.

A. Well, in the Norfolk Public Schools, initial enrollment 
has always meant to us, and is so designated by various 
administrative acts that we perform, as the first time a child 
enters the school system or the stream which he is going to 
follow until he graduates from high school. For instance, 
a child, upon his first enrollment in the Norfolk Public 
Schools, presents a birth certificate, certain forms are ex­
ecuted, which come to our office and are kept there and are 
only—are never substituted for but are changed by a 
change order from the school if he moves his residence, or 
something of that sort, but that is kept on his record, and 
he moves by normal promotion and by graduation through 
a certain pattern of schools which has been set up by the 
administration so that five or ten elementary schools feed 
into a junior high school and they, in turn, feed into a

—141—
senior high school, and that is done for many, many pur­
poses. One of them—of course, one of the most important 
is to keep the schools in balance so far as school popula­
tion is concerned. It would be next to impossible to ad­
minister the schools if we did not know, for instance, which 
elementary schools were to feed into which junior high 
schools naturally and normally, and so on, into the senior

E. L. Lamberth—for Defendants—Redirect



89a

high schools, because we now have ten junior, senior high 
schools and nearly fifty elementary schools. We will have 
fifty-two very soon.

Then the word “promotion” means to us finishing the 
work of one grade and following that same group or group 
of children with whom you were initially enrolled through 
a natural stream to the twelfth grade and being graduated 
from the twelfth grade of that feeder school system.

The word “transfer” has always meant to us that a child 
wishes to transfer from that place where he was initially 
enrolled, where he would normally be, to a situation in 
which he would not, and that is the reason several times 
today and a year ago I have referred to unusual transfers 
in that some people, regardless of any question of race 
here, for various reasons want to get out of that normal 
stream of promotions and go to some certain schools, and 
we even have administrative transfers in which we, our­
selves, in extreme cases, where we have special classes for 
mentally retarded children, go through the unusual transfer

- 1 4 2 -
procedure exactly, though less formal, perhaps, as this pro­
cedure is written here—it is not written down—but it is 
exactly the same procedure as the placement of children in 
special reading classes, speech classes or classes for men­
tally retarded children.

So initial enrollment to us means showing your birth 
certificate, proving you are old enough to go to school, 
filling out a form, which is never again filled out for you, 
and going through that natural progress that the group 
with which you enrolled goes.

Mr. Davis: Thank you, sir. That is all.

E. L. Lamberth—for Defendants—Redirect



90a

E. L. Lamberth—for Defendants—Redirect 

By the Court:
Q. Then where, in the procedures specified by the School 

Board, Mr. Lamberth, is there authority to give the tests 
to Negro children who are promoted, as you have defined 
the term? Here are your standards and procedures. A. 
Well, they routinely—of course, of these twenty-three, 
Judge, who have applied, he meant—the counsel there men­
tioned two cases of children who were being graduated, 
I believe, from junior high school. In those junior high 
schools there were, perhaps, two hundred children who 
were routinely going to high school. These two children, 
who are applying for—as we understood your decision, 
to get out of that stream and have an exception made for

—143—
them and they have been tested and interviewed and a 
decision has been made as to whether they should. In two 
cases, Anita Mayer and one other, the recommendation 
was made affirmatively and the others it was made nega­
tively, but if they were the only two finishing their schools, 
they wouldn’t be unusual, but they are among a large 
number who are finishing those schools.

The Court: I go back to what I said one time to 
the School Board. They are at liberty, at any time, 
to ask for any clarification of my ruling. You are 
entitled to know what goes on in my mind, if it is 
possible to find out, and I have tried to settle it, but 
if there is no motion for clarification of an opinion 
and if there is no appeal from that opinion—and 
there was not in this case by either side—I do not 
know how anyone could be that confused by that 
language; but be that as it may, that is your view, 
gentlemen, and that is it.



91a

E. L. Lamberth—for Defendants—Recross 

Anything further ?
Mr. Hill: Just one or two things, your Honor.

—144—
Recross Examination by Mr. H ill:

Q. Mr. Lamberth, these streams that you have been re­
ferring to, they have existed for a long number of years! 
A. That’s right.

Q. And they were originally created under the segre­
gated school laws? A. Yes.

Q. And now they are being continued and maintained? 
A. Well, the routine promotions from a school that is pre­
dominantly, yes, of one race or another.

Q. Under your procedures, the only way a Negro child 
could get out is to apply for a transfer and successfully 
pass that transfer and all the other criteria; is that cor­
rect? A. We have been under the impression, Mr. Hill, 
if we followed any other procedure that we would be forc­
ing that child to go with children of another race and we 
also would be forcing the children in the school to go with 
children of another race, and we were under the impres­
sion that we shouldn’t compel people to go with children 
of another race.

Q. If I state I want my child to go to another school 
and my child states he wants to go to another school, why 
are you forcing him to do something than just let him go

- 1 4 5 -
over to that school? A. If he applies, he goes, if he is 
qualified according to our criteria.

Q. And the sole purpose of this criteria is to block him, 
if possible? A. No, sir.

Q. What other reason is there? He has indicated his 
willingness to go. A. If the sole purpose was to block 
him, they wouldn’t be in any of our schools.



92a

Q. Well, some people survive all blocks. That is all. 
Now, do you have available with you, Mr. Lamberth, the 
geographical boundaries of these various schools? A. Not 
in court today, no, sir. They were presented last year, I 
think.

Q. Have they been changed f A. None have been changed 
except where a new school might have been built. I mean 
they are the same as last year except that we have built 
some new buildings.

Q. And when you build new buildings, you establish new 
lines? A. I beg your pardon? None have been made, but 
some additions have been made to include the annexed 
area. I almost overlooked seven thousand children. We 
have seven thousand new children and some additions have 
been made and some new buildings built.

—146—
Q. And where you built the new buildings and made the 

additions, you established new lines? A. That’s right.
Q. They are available? A. Yes, we have—they have 

been in the paper, those additions.
Q. Could you get us copies of those? A. Yes, sir, I could 

get them. I don’t know whether I could get them over 
here today or not.

Q. No, I think I heard someone suggest tomorrow morn­
ing. I think that would be all right. A. That will be all 
right.

Q. Thank you. Now, there is one other thing that we 
are not quite certain about. You may have testified con­
cerning it. If you did, you can tell us. As we understand 
it, the children who stayed in the school or any child who 
stayed within the stream that has heretofore been estab­
lished were not tested, whether there were white and Negro

E. L. Lamberth—for Defendants—Recross



93a

children in the school or not; is that correct? A. That’s 
correct.

Q. In other words, there were a few white and Negro 
children in Granby last year—one or two—the children 
who came along in the normal stream, the feeder junior 
highs, were not tested! A. No. For instance, Patricia

- M i -
Turner, for whom we recommended to the Pupil Place­
ment Board placement in Norview Senior High from the 
Junior High, was not tested, no. She is in the stream by 
placement of the School Board, initial enrollment in that 
stream, and she stays there.

Q. Now, say, Sylvia Smith, who happens to be white— 
A. She wasn’t tested either.

Q. She was not tested either. But did you also have to 
advise the Pupil Placement Board about her going on! 
A. Yes. The Placement Board regulation is that we send 
in a placement blank whenever a child changes schools, 
but we don’t consider a placement blank an initial enroll­
ment. I t’s part of an initial enrollment, but it’s also part 
of a lot of other things. When a child moves from one 
school district to another, he has to fill out one of those. 
That’s not our form. That’s a State form.

Q. In other words, you do not regard it as an initial 
transfer; if a child was leaving, say, Norview Junior High 
School and going to Blair Junior High School, that, in 
your contemplation, is not a transfer? A. Norview Junior 
High School to Blair Junior High School?

Q. Yes. A. If he had moved his district, no.
Q. He had moved, that is what I am saying. His parents

- M S -
moved. A. No. If he were in the normal stream at Nor­
view and he asked for just some special purpose that he

E. L. Lamberth—for Defendants—Recross



94a

thought he could do better or get a better education at 
Blair, then he would be treated as an unusual circum­
stance.

Q. If his parents moved, that would not be I A. That’s 
right.

Q. On the other hand, if a child were attending Booker 
T. Washington High School and his parents can move all 
around Norfolk, he could still either go to Booker T. Wash­
ington High School or it would be an unusual circum­
stance; is that correct? A. He could apply wherever he 
wanted to and go through this jmoeedure.

Q. I say he could apply, but go through this procedure 
because it is an unusual circumstance? A. That’s correct.

Q. And the only thing that makes it unusual is his race ? 
A. Is that Maury is predominantly a white school, all ex­
cept one child.

Q. Another question we would like to ask you is, a child, 
say, in the tenth grade at Maury—that’s the first grade, 
isn’t it? The first year, isn’t it? A. The first year of 
senior high school, yes.

—149—
Q. —was in the tenth grade last year and would, of 

course, go in the eleventh grade this year. Were any of 
those children tested? A. They weren’t tested through 
this procedure. They may have been tested in the State 
testing plan.

Q. But they were not tested in this procedure? A. 
Neither were the children—well, Louis Cousins, who was 
placed there last year—I don’t know what grade—he is 
going to the eleventh or twelfth grades—that’s right.

# # # # #

E. L. Lamberth—for Defendants—Recross



95a

E. L. Lamberth—for Defendants—Recross

—194—
August 28, 1959

Jf, -Sf. .4r,w  w  w

—242—
# # * # *

Recross Examination by Mr. Ashe:
Q. Mr. Lamberth, I believe you are familiar with the dis­

tricting of the schools in the City of Norfolk? A. Yes, sir.
Q. I believe you allowed me to look at this map where 

you have the designated lines of the districts in the Coro- 
nado-Rosemont-Norview section? A. That’s right, sir.

* -Af. -a/. .y . .vu■ff* W W TV-

—245—
# * # # #

Q. What grades do you have in the Rosemont School?
A. Six grades.

Q. From what grade? A. First grade through the sixth. 
Q. First through six? A. That’s right.
Q. What grades will you have in the Coronado School? 

A. First through six.
Q. Now, in the Rosemont district, proposed district, all 

of the people who have children who live in that district 
will have to attend, assuming that they are in this grade, 
the Rosemont School, am I correct in that? A. Well, our 
policy, as I stated yesterday, has been for the School 
Board, on the recommendation of the administration, to 
set up school attendance districts, and if anyone wanted 
to get out of the district or leave the district, he usually 
applied at the—he had to apply—his principals have no 
authority to—to remove children from one school to an­
other without consulting someone else, because we will soon 
have sixty-two schools. You can see what chaos we would 
have with sixty-two people making that decision.



E. L. Lamberth—for Defendants—Recross

—246—
Q. And the same thing would apply to the Coronado 

district? A. That’s right, the people in that area set up 
by the School Board would attend that school.

Q. Do I understand that normally all of the children 
in that district, assuming that they fit into these grades, 
would go to either the Rosemont School, if they are in that 
district, or the Coronado School, if they are in that district? 
A. That’s right.

Q. If there were white families living in either of those 
districts and had children, what school would they go to? 
A. They are already attending the Norview Elementary 
School, if there are any.

Q. But they are in the Rosemont or Coronado district, 
are they not? A. I am pretty sure there are none in the 
Rosemont district. I have been on every street out there. 
I  haven’t seen any. I don’t know whether they are in Coro­
nado or not, but if they are in the Norview Elementary, 
they were placed there and that area was in a different 
district and they were also placed there by the State Pupil 
Placement Board, and we would see no reason to force 
them to move. We haven’t asked anybody to move unless

—247—
we build a new school building, or something of that sort.

Q. But you do not know whether you have any in the 
Rosemont district? A. I am pretty sure that there—I 
mean I couldn’t say. I don’t know everybody that lives 
out there.

By the Court:
Q. What do you do with respect to the white child who 

may live in the Coronado School district who is applying 
for initial enrollment? A. Initial enrollment? To my



97a

knowledge, we have had none this year. I can say that truth­
fully, to my knowledge. I am sure that the two communities 
are so nearly one hundred per cent of one race that if 
there are any children there, they are already assigned to 
school.

By Mr. Ashe:
Q. Well, assuming— A. In previous years.
Q. Assuming that at the beginning of this school term 

you had one, a white child, enrolling for the first time, 
what school would he be assigned to? A. I suppose, un­
less he attended the school that he had applied to before, 
it would come to me and I would have to take action or 
recommend action on it when it occurred. I have not had 
such a case. I don’t think I ’m likely to have one of a white 
family moving into Coronado now. I mean it’s very 
unlikely.

—248—
Q. What action would you take? A. I would not like 

to say what I would do before I know I would even have 
one.

Q. When you have other districts and a situation arises 
when there is a child entering school for the first time, 
what do you do in that case? A. We will follow the plan 
that we have been following since I have been employed 
by the Norfolk School System of putting him in the dis­
trict which we have had for years for that particular area, 
except that you have here, of course, a case where we 
have built a new school, but the City is divided up into 
districts, just as it was before the Supreme Court decision 
in 1954, and children enter those districts and go straight 
through from the first grade through the twelfth grade 
unless they seek entrance in some other school.

E. L. Lamberth—for Defendants—Recross



98a

Q. Then if a white child were to apply in the Coronado 
district, normally he would go to the Coronado School, 
under your original plan? A. That’s right, if he had ap­
plied to the Coronado School and he lived in Coronado, 
he would go to the Coronado School—normally, he would.

Q. Now, isn’t he assigned to the school because of his
- 2 4 9 -

district? A. It depends upon how you are using the word 
“assignment.” See, he would be assigned—

Q. Let me explain what I mean. A. Let me see. The 
Pupil Placement Board calls it “placing.” I don’t believe 
they call it “assignment.”

Q. We will call it placing, enrolling or entering. Assum­
ing he were a white child living on Wolcott Avenue— A. 
A white child living on Wolcott Avenue applied—

Q. He is applying, enrolling, or entering, or whatever 
you want to call it, for the first time; under your general 
plan that you have had for many years, as you stated, 
he would normally go into the school within that district, 
would he not, in the district in which he lives? A. Well, 
our plan, which we have had for many years, Mr. Ashe— 
of course, because we— it dates far before this particular 
case or this year. It took into consideration race.

Q. Then your geographical locations and your assign­
ments were based primarily on race? A. The old ones 
that we had before this case are, but they have been 
changed by this case, yes.

# * # # #
—252—

# # # * *
Q. I would like to get the geographical lines, Mr. Lam­

berth. A. I ’d like to—may I say something, your Honor? 
I ’d like to say that we have been—you have, not I, you— 
you have been using the words “geographical,” and while

E. L. Lamberth—for Defendants—Recross



99a

that is generally true, I would like to have it in the record 
that, regardless of race, that our school districts cannot be 
perfectly situated so as to accommodate people geographi­
cally. If we did, we would have many empty rooms and 
many children going to school at night to get into the 
building. It is impossible, in a city as large as Norfolk, 
to build buildings in the center of every school district. 
Buildings have been built, They are there. New buildings 
have to be built and land cannot be bought at the center

—253—
of the district, and while it is generally true that, geo­
graphically, children—the districts suit the children as 
much as possible, there are cases where two all Negro 
schools, which have remained all Negro, are in an area 
of Norfolk—or two all white schools—where the line is 
nowhere near the mid-distance between the two schools. 
You understand that? It is just physically impossible to 
use your buildings efficiently and to have the line right 
where every child will have the same distance to walk to 
school.

# * # # #
—257—

* # # # *
By the Court:

Q. All of these boundaries that you have spoken of, Mr. 
Lamberth, are boundaries set up for the operation of the 
elementary schools? A. That’s right.

Q. Grades one through six? A. There will be about 
fifty of them this Fall and they are set up in the older 
sections of the city just as they were before—well, some 
of them go back to the ’30’s, I suppose.

—258—
Q. When you get into the junior high group, you have 

to have a different setup? A. That’s right.

E. L. Lamberth—for Defendants—Recross



100a

Q. And the senior high group, you have to have a dif­
ferent setup again? A. And certain elementary schools, 
as I explained it yesterday, always fed into certain junior 
high schools; certain junior high schools into certain senior 
high schools.

# # # # #
—288—

By Mr. H ill:

Q. In varying school districts, Mr. Lamberth, you have 
white and Negro children residing in the same school dis­
trict, do you not? A. In some instances, yes.

Q. And in each one of those situations, either the Negro 
children go out to another school in another district or the 
white children go out to another school in another district; 
is that correct? A. That’s true.

The Court: Well now, that is not true.

By the Court:

Q. You had seventeen Negro children in the schools this 
past term that were—they must live in a predominantly 
white district, don’t they? A. He didn’t say in all. He 
said in some cases they do.

The Court: I think he said in all.
The Witness: I beg your pardon.
May I have that question again?

By Mr. H ill:

—289—
Q. Maybe we can— A. Some cases that’s true.
Q. Yes. That is what I understood you to say, in some 

cases. A. I beg your pardon.

E. L. Lamberth—for Defendants—Recross



101a

Q. And if you have a Negro child residing in a school 
district which, under the existing system or stream, as I 
think you had it before, those children attended a white 
school, that child would normally be assigned out to an­
other school, would he not? A. He would normally be 
in a different stream from the very beginning.

Q. Tes. A. And he can always, as has been said, ask 
for a placement wdierever he wants.

Q. But his normal stream would carry him out of his 
school district? A. That’s right.

Q. Assuming a Negro child living in a predominantly 
white district, the only way he could alter that stream is 
to make an application to the white school and survive the 
various criteria that are established for such transfers; 
isn’t that correct? A. That’s true.

—318-
Cross Examination by Mr. Robinson:

Q. Mr. Lamberth, we are talking about grade levels here. 
What are wre talking about, the national norm on the Cali­
fornia Achievement Tests, the same thing we vTere talking 
about last year? A. The same evidence exactly.

Q. So that when you say a student, such as Bobby J. 
Neville, has a grade ecpiivalent of 6.5, you are making 
reference to the national average or the media, the na­
tional media, the national norm, on the California Achieve­
ment Tests for the entire country, are you not? A. That’s 
right.

Q. Let me ask you this: Do you have any white children 
in Norviewr Junior High School that are as much as one 
half a grade below the national norm for that particular 
grade? A. I have none at hand that I can name, but I 
feel sure that there are, yes.

E. L. Lamberth—for Defendants—Cross



102a

Q. Would there be any real question about that in your 
mind! A. No.

Q. Isn’t it a matter of fact, as was established last year,
—319—

that exactly one half of the students would be above the 
norm and exactly one half would be below the norm, speak­
ing on a national basis; isn’t that correct? A. On a na­
tional basis, but not necessarily in the Norfolk schools.

Q. You anticipated my next question. What would the 
degree of variation be there? A. In the Norfolk schools 
most of our testing—and we have been testing a long time-— 
shows that our schools that have formerly been occupied 
by all white children score above the national norm on 
most tests.

Q. You would still be reasonably sure in your own mind 
that you would have students in your white schools, not 
only this one, but in all of them who would be in particular 
grades whose grade scores would be more than one half 
a point off the grade they attend? A. Certain to be one.

Q. All right. It isn’t true, is it, that everybody who is 
in the seventh grade at Norview Junior High School is 
exactly the same age? A. Oh, no, no, they are not exactly.

Q. How much variation would you reasonably expect to 
find in the average grade in your schools here? A. It 
would be difficult to tell unless you went to school, because 
there are illnesses, transfers, but it would be reasonable to

—320—
expect that there’d be a year’s difference.

Q. Yes. So that there is nothing unusual about this 
Neville boy being one year older than the average in your 
Norfolk schools? A. The only thing unusual is that he 
has applied for an unusual transfer.

Q. You mean the only thing unusual about it is that he

E. L. Lamberfh—for Defendants—Cross



103a

is a Negro! A. No, I didn’t say that. 1 said that he has 
applied for an unusual transfer.

Q. All right. Let’s take a look at Gloria Scott. I take it, 
Mr. Lamberth, that you have very carefully, yourself, re­
viewed all of the data that was submitted to the Court 
relative to this student, correct ? A. I have it here in my 
hand, sir.

Q. All right, sir. Would you look on the page that is next 
to the last and in the upper right-hand corner is page num­
ber 3. It says: “Adaptability of student probably excel­
lent.” Would that have any significance with reference to 
her application for the seventh grade at Blair Junior High 
School? A. It certainly would.

Q. Explain to the Court what significance that would 
have. A. If a child were capable, in the opinion of the

- 3 2 1 -
School Board, I think, of doing the academic work and 
were adaptable, the School Board would look at it in one 
light. If the child were completely unadaptable and a 
genius, the School Board might look at it in a different 
light.

Q. I think I follow you now. Now, let’s look on the re­
verse side of the second page of this application, Mr. 
Lamberth. In terms of achievement and in terms of intel­
ligence, as I understand, this student is average; is that 
correct! You have four different classes there and she is 
in the second class, which is the average class? A. Where 
is this? What page are you on?

Q. That is on the second page, the second page on the 
reverse side. A. I don’t see where—oh, oh, these cate­
gories, standardized test records and intelligence classifica­
tion.

Q. All right. And I believe you also testified that her 
score or her indication of scholastic achievement on her

E. L. Lamberth—for Defendants■—Cross



104a

achievement record there is “S”, which is satisfactory? A, 
Yes, and I might say that—no—that’s right, you’re right.

Q. As a matter of fact, satisfactory is the second highest 
grading that you have in elementary schools, isn’t it? A. 
That’s right.

Q. And it is actually above average, isn’t it, satisfactory?
—322—

A. I don’t think so. For my children, it might be, but I 
never thought that satisfactory was anything but average. 
I have one in school—two in school.

Q. You really have four different categories, haven’t 
you? A. Yes.

Q. You have four categories and satisfactory is the sec­
ond category from the top? A. But the last two are un­
satisfactory.

Q. Yes. Well, I understand that. But what I am saying 
is, when you have an “S” classification, you have something 
above average, don’t you? A. Not in my family.

Q. Mr. Lamberth, let me ask you this; are you in a po­
sition to testify that you have no students, no white stu­
dents, at Blair Junior High School whose achievement level 
is as much as two years off the grade that those students 
attend? A. I am not in a position to give you an answer 
on that, but my best judgment—and I am pretty close to 
the situation-—is that if they are, they are in a small group 
of special students who are giving us already all the trouble 
we can handle at Blair Junior High School. They are called 
classes for mentally retarded children, and if they are not

- 3 2 3 -
in there, they are waiting to get in until we have enough 
teachers for that division.

Q. You mean to say all the students— A. I didn’t say 
that. I didn’t say all the students anywhere. I say if there

E. L. Lamberth—for Defendants—Cross



105a

are students two years behind, they are either dropping 
out—well, we no longer have a compulsory law. We can’t 
stop them from dropping out, but if a child were measuring 
much lower than this, he would either be getting special 
attention or he would have come to my office or adjustive 
services and probably be put in a special class.

Q. Special attention would not necessarily mean a special 
class ? A. That’s what it results in insofar as our facilities 
are capable of taking care of them.

Q. What would you have done with this application had 
this child been white ? A. I would not have had this same 
information because a white child going to Blair would not 
have taken this test.

Q. If you had had the same information and the child 
had been white? A. I don’t know. I wouldn’t have done 
anything. The School Board would have made the decision.

Q. Suppose you had to make a judgment as an official in 
the school system, what would that judgment have been?

—324-—
A. I would have—first of all, I would have certainly done 
what I have done three times in the past week—turn it over 
to our psychologists and the department of adjustive serv­
ices and awaited their recommendation.

Q. I see. You certainly would not take the responsi­
bility of denying— A. I certainly would not. I would 
take the responsibility of making a recommendation, but 
I would have had all the evidence in.

Q. Would you have more evidence than the School Board 
had in this case? A. It might be more or less. Now, these 
cases were worked up in the same routine that we would 
work up any child who had an unusual request or who had— 
or were referred to psychologists. These were tested by 
psychologists, and how much material you get on each 
child depends on the cooperativeness of the parents. You 
never know how much material you are going to have.

E. L. Lamberth—for Defendants—Cross



106a

Q. When I asked you this, you looked at this as an un­
usual case ? A. It was an unusual case.

Q. When I asked you the question, if this child were 
white with this record, this case would not have been un-

—325-
usual? A. I think I testified here yesterday and last year 
that the thing that I have difficulty in having people under­
stand is that our present unusual transfer procedure, which 
is now formalized into a Court document, is mainly based 
upon something that we have been doing ever since I have 
been employed in the Norfolk Public Schools, and that is 
to place children where they will succeed insofar as our 
facilities will enable us to find that out.

Q. In any event, Mr. Lambert— A. So a white child 
might have gotten all this treatment going into a white 
school.

Q. If Gloria Scott were white and was already in the 
school, she would not be excluded by reason of this rec­
ord. At the very worst, she would have been given special 
attention; isn’t that so? A. There is a possibility she 
would be transferred to another school if we did not have 
the facilities there. For instance, we have a certain num­
ber of classes. I did know the number—I should know, 
but I don’t know it right now. It is above twenty classes 
for special help, not just in speech, or anything like that, 
but in special academic help, and sometimes a child has 
to be tested, interviewed and transferred to one of those 
classes, although he hasn’t asked for it. Sometimes his 
parents will ask for it. So it’s possible that if a white

- 3 2 6 -
child of this academic achievement were in Blair he might 
be transferred to another school if he could do better in 
the situation in the other school. That’s possible.

E. L. Lamberth—for Defendants—Cross



107a

Q. I am not talking about whether he could do better 
in the other school. Would he be transferred there or 
she be transferred there simply because of the difference 
of two years between achievement and the level of the 
grade to which the application is made! A. Well, the 
difference would be the reason he could do better, one is 
dependent upon the other. In other words, the child 
wouldn’t be having any problem if he weren’t below grade, 
so that is the basic reason why he would be transferred, 
yes.

Q. In the testimony last year it was brought out that 
the middle sixty per cent of a given class, in other words, 
the range or variation, the middle sixty per cent of a 
given class, on the California Achievement Tests may be 
as much as three years. Do you recall that testimony? 
A. I  don’t recall it.

Q. Is that your recollection of the experience in admin­
istering the California Achievement Tests? A. I would 
not like to go on record on that, because I am not a psy­
chologist nor a professional person solely in tests, and I 
think I—

Q. Are you familiar with the ranges— A. Yes.
—327—

Q. —of the departure in media in that— A. But I 
don’t know the exact amount, and if that was in the 
evidence last year, no doubt that is true.

Q. What I am getting to, you would put a range of 
difference of one hundred per cent of your classes at 
Blair Junior High at much less than what is the national 
experience with a much broader range or variation in 
the middle sixty per cent of the class, and what I would 
like to know is, what do you base your statement on that 
it is improbable that without these students getting special

E. L. Lamberth—for Defendants—Cross



108a

attention, or on their way to getting special attention, 
yonr departure at Blair Junior High is not as much as 
two years from the national norm? A. I think you are 
using two years below. You would have to go two years 
above. You are really using four years’ departure.

Q. What do you mean? A. You see, half the children 
are above and half below.

Q. I am talking about the media. A. I am talking about 
the media too.

Q. I asked in the very beginning—and I understood 
that the achievement level of Gloria Scott, two years be­
low her grade level, is two years below the national norm;

—328—
is that correct? A. That’s true.

Q. All right, sir. Now, I also understood your testi­
mony to be that except children who were receiving spe­
cial attention or were perhaps headed in that direction, 
you would not find among white children attending Blair 
Junior High School a variation of as much as that same 
two years, am I correct? A. I don’t think I said that.

Q. If you did not, sir, I would like to know whether 
or not, so far as you can testify here today, there are 
no students, no white students, in Blair Junior High 
School as much as two years below his or her grade level? 
A. I do not know the grade level of the children indi­
vidually in Blair Junior High School.

Q. All right, sir. A. I do know that we have a special 
class there for children who are below grade level.

Q. So you do not know? A. That’s right.
Q. Let me ask you this. I want to be perfectly clear 

about this. I understand that you have grades nine 
through twelve at Norview Senior High School and at 
Maury High School. A. Nine through twelve.

E. L. Lamberth—for Defendants—Cross



109a

E. L. Lamberth—for Defendants—Cross

—329—
Q. Nine through twelve! A. Yes.
Q. At Norview Senior High and at Maury, which is also 

a senior high school! A. We have some ninth graders 
in each school.

Q. I see. A. That’s right. That is a building problem.
Q. Now, how do white students get in the ninth grade 

at either Norview or Maury Senior High Schools! A. 
How do they get there!

Q. In the ninth grade! Ordinarily they would be grades 
ten, eleven and twelve in senior high schools. A. They 
are there because the six-three-three system, which we 
have, does not work perfectly in some sections of the city. 
If we did do that, we might have a vacant room in the 
elementary school and be overcrowded in the junior high, 
and because it is impossible to build buildings so that 
they fit those exact six-three-three standards, certain num­
bers of ninth graders have to be placed in the senior high 
when there is room and kept back in the junior high again 
when there isn’t room.

Q. Well, how would the ninth graders of these two 
high schools be placed in the ninth grade! By the School 
Board! Or if not, how! A. They were placed there by

—330—
administrative transfer—even the Placement Board recog­
nizes that as an administrative transfer when you have to 
do it for building needs.

Q. That would be true of all of the ninth graders in 
both of those two schools! A. That’s right, to be ideal 
it would be six-three-three.

* # # # #



110a

Excerpts from  R eporter’s Transcript o f Trial 
Proceedings Had on August 18-22, 1 9 5 8

August 18, 1958
—25—

* * # # #
J. J. B rew bakeb, ca lled  a s  an  ad v e rse  w itn ess  by  th e  

p la in tif fs , h a v in g  been  d u ly  sw orn , te s tif ied  as fo llo w s:

Direct Examination by Mr. Robinson:
 ̂ ^

—26—
Q. Mr. Brewbaker, you are familiar with the assignment 

procedure that was pursued in the Public School System 
of the City of Norfolk prior to the adoption of the reso­
lution of the School Board of Norfolk that has been the 
subject of some previous testimony in this case? A. I am 
familiar.

Q. Are you familiar with the resolution that was recently 
adopted by the City School Board? A. I am familiar with 
that.

* * # * *
—27—

# * # * #
Q. Thank you very much. Before we get into that, I 

would like to clarify a few things about your pre-existing 
assignment procedure. I understand that prior to the 
adoption of this resolution, and I would like for you to 
understand that the questions that I am about to ask you 
are questions which have to deal with the situation before 
this resolution was adopted, that prior to the adoption of 
this resolution a child could be assigned from one school 
to another school in the Public School System only upon 
being given permission by the school authorities to do so; 
am I correct in that regard?

* # # # #



J. J. Brewbaker—for Plaintiffs—Direct

—28—
Jfe •it Jfe Jfcw w w w w

Q. Do you understand my question? A. Tou are cor­
rect, Mr. Robinson. May I make a statement—

Q. Surely. A. —with reference to our procedure?
I think that is not generally known that we have one 

of the best Adjustive Services Department, including the 
Psychological Services Department, anywhere to be found. 
We have a Director of Adjustive Services and three other 
psychologists working full time and a psychometrist who 
assist the psychologists in scoring and in doing the statis­
tical work in connection with test giving.

- 2 9 -
Now, we give, every year, certain tests. Our testing 

program usually begins in the third grade. I have jotted 
down here, for fear I would forget it, the test that we 
have given this year, and I think that would be helpful 
to you. We started in the third grade. We gave the third 
grade the California test of mental maturity, all third 
grade pupils.

Q. In the entire school system? A. In the entire school, 
2,490 white and 1,045 negro children were given, in the 
third grade, the California test of mental maturity. These 
tests are given by the City. These are City tests. We have 
State tests in addition to this.

This past year we gave the fourth—the 4-L grade—well, 
I better say 4-L, meaning beginning grade and 4-H, the 
last half. We gave the 4-L group the California achieve­
ment test. We gave the 5-L group the California test of 
mental maturity; the 6-H group, the California arithmetic 
test; the 8-L group, the California achievement test.

What I want to show is this: This is not an unusual 
procedure. Now, we have given all pupils a test of this



112a

kind, then the State would give three or four tests which 
are given throughout the whole State.

Now, the procedure we use in transferring children is
—30—

this: We have administrative transfers where we transfer 
groups of children. Well, we use these group tests on that, 
but wherever we have a child transferred from one school 
to another and asked to be transferred for any particular 
purpose, we test that child, if we think it is necessary, 
and have interviews with the child and its parents. That 
has been our procedure now for a long, long time.

Q. Let me ask you this on that score, Mr. Brewbaker: 
Suppose you have a child who is freshly entering the school 
system, how did you, prior to the adoption of this reso­
lution, go about assigning that pupil to a school? A. It 
depends on the amount of information that we have on 
that pupil.

Q. Did you put the child through any sort of test or in­
terview to determine what school he should be assigned? 
A. If we are not sure we do. Any child coming in—now, 
we are interested—we want to place every child where he 
will have the opportunity to do the best work. Now, wher­
ever we are not sure of the placement of any child we have-— 
we even employ one of our psychologists during the sum­
mer to give tests to any of the children who need testing, 
and if we are unsure we let him be tested and interview 
his parents.

—31—
Q. As I understand it, you would do that on a student 

freshly coming into the system only in the event that you 
had some reason to suspect that the enrollment of the 
child at the particular school in which the child’s enroll­
ment was sought would not be proper? A. That’s true.

J. J. Brewbaker—for Plaintiffs—Direct



113a

Q. Now, getting back to the question as to what you were 
doing with respect to your other students. As I under­
stand it, periodically, over a long period of time, you have 
been giving tests, not for purposes of transfer, but you 
have been testing your students at various grade levels 
in the school system; isn’t that correct? A. That’s correct.

Q. How about your secondary school system? Have you 
tested or do you regularly give tests to students who are 
in the high and junior high schools as well as in the ele­
mentary school? A. Yes, the 8-L group is in the junior 
high. This year we gave an 8-L achievement test to all 
pupils in that grade. The State has three tests—two—three 
tests. The seventh grade, we give the test to the seventh 
grade; we gave one to the eighth grade; we give the A.C.E., 
psychological examination to all tenth grade students. 
That’s the American Council on Education. We give that 
to all tenth grade children.

—32—
Q. Let’s see if we can sum this up, Mr. Brew’baker. Has 

this testing program been going on the whole time you 
have been Division Superintendent? A. It has been going 
on—I wouldn’t say it has been quite as complete as it is 
today, but we built up that service. You know how divi­
sions and how services are built up in the school system. 
We found it wTas good. We started with one psychologist 
and we kept adding psychologists, but for the last several 
years, I would say the last four, five or six years, this 
testing program has been going on at about this level.

Q. I see. At what grade do you commence giving those 
tests, at what grade in the school system? Do you start off 
in the first grade? A. Sometimes we do. Sometimes we 
give the test for initial enrollment. Now, we used to give 
all children tests for initial enrollment, but if we find a

J. J. Brewbaker—for Plaintiffs—Direct



114a

child is not getting along very well we give him—that’s an 
individual test. Of course, he doesn’t know how to read 
and write when he enters the first grade. That’s the initial 
test we give for initial enrollment and many of the stu­
dents we find are not ready, and that usually takes place 
after—

Q. Now, how high in the school system grade-wise do 
you go in giving these tests? Do you go through all grades? 
Are you apt to go through all grades from one through

- 3 3 -
twelve in your present— A. At the present time I be­
lieve it goes to the tenth. Now, that A. C. E. test did go 
to the twelfth, but I believe at the present time it is the 
tenth. I believe that’s as far we go right now in testing, 
to the tenth grade. We brought that down to the tenth 
instead of the twelfth.

Q. All right. How frequently would a particular child 
in the normal operation of your pre-existing testing pro­
gram be submitted to a test? A. At the present time— 
if we take last year, for example, we gave a test in the 
third grade, one in the fourth grade, one in the fifth, 
sixth—see, they would take the test—and one in the eighth. 
They would take the test as they reached those grades.

Q. Yes. But I do not think you got my question. Did 
that testing program operate in such fashion that a child, 
a given child, would normally receive one of these tests 
each year or two within the period of a year or just how 
frequently would the child, as the thing would normally 
operate on the average, receive a test of the character 
that you have mentioned! A. If the child has been in 
the Norfolk Public Schools continuously—now, they come 
and go. We have a transient population.

J. J. Brewbaker-—for Plaintiffs—Direct



115a

J. J. Brewbaker—for Plaintiffs—Direct

—34—
Q. Yes, I understand that. A. I would say they con­

tinuously got a test at least every other year.
Q. Every other year? A. Unless the attendance of that 

child—now, sometimes the attendance of that child would 
interfere. If you do not find all of the tests listed, it may 
be that that child was not present at that time.

Q. Mr. Brewbaker, the tests that you have been talking 
about have generally been of the written sort as distin­
guished from an oral interview? A. Yes, standardized 
test.

Q. All right. Now, under your pre-existing practice what, 
if anything, did you do about interviews for any purpose, 
assignment or otherwise, during the course of a particular 
student’s public school career? A. Mr. Robinson, when­
ever we had children going from one school to another in 
unusual circumstances—■

Q. I see. A. —that child was tested and he was inter­
viewed at the receiving school by the principal counselors; 
if they are in the high school, visiting teachers, and often 
and usually the parent will be called in, too, in the interview.

Q. That was the only occasion under the old practice of 
interviewing a student; in other words, if you had a trans-

—35—
feree who sought a transfer under, as you said, unusual 
circumstances he might be submitted to the interview— 
A. That’s correct.

Q. —otherwise, there would be no interview? Now, may 
I ask you this question: How about examinations sjjecifi- 
cally for the purpose of transfer under your pre-existing 
practice; am I correct in my understanding from the tes­
timony of the previous witness that that examination of 
a written character might or might not be given when a



116a

student sought transfer from one school to another? A. 
I  think that would depend upon the circumstances. I  say, 
if it’s an unusual case.

Q. Yes. A. If it’s a normal case, everything seems to 
be exactly normal in every way, I think it would not be 
required, but in an unusual case it would be required.

Q. And if you did not require it, you would do so on 
the basis of the record made by the particular student as 
recorded on the card, which is one of the exhibits in this 
case? A. Now, when you say “record”, what do you in­
clude ?

Q. Let me show you. A. I know what’s on the card. You
- 3 6 -

in elude the boy’s academic record?
Q. No. Here is what I have reference to, Mr. Brewbaker. 

I show you Plaintiff’s Exhibit No. 3. It has been intro­
duced in evidence in this case. It has been testified that 
that is a record of a cumulative character that is kept 
with reference to elementary students; is that correct? A. 
That’s right.

Q. It has also been testified that some of the records 
are kept on similar cards for secondary students; is that 
correct? A. That’s right.

Q. Am I correct in my understanding that when these 
tests are had, concerning which you have given testimony, 
the results of those tests are recorded on that card? A. 
That’s right.

Q. On that card for elementary students and on another 
card for secondary students ? A. That’s right. I might say 
this about this cumulative record. This record has not been 
operating but a few years, two or three years, for high 
school. I t’s just beginning, and you won’t find all of this 
information you speak of from the first grade up on this 
record, because we haven’t been using the record.

J. J. Brewbaker—for Plaintiffs—Direct



J. J. Brewbaker—for Plaintiffs—Direct

—37—
Q. All right. But you kept some sort of record— A. 

Oh, yes.
Q. —did you not, of the tests that you gave to elemen­

tary and high school students prior to the time you started 
using these cards? A. That’s right. We had special cards 
for that.

Q. In other words, you would have a record in your 
office, although not on that particular card, but informa­
tion comparable to the kind that the card requires, is that 
so? A. That’s right.

Q. So, therefore, when a student sought a transfer you 
could look at your records, and in many instances in the 
normal situation, you say, you could make a determination 
with reference to his transfer by simply consulting the 
information you had on file without consulting an addi­
tional test or interview; is that right? A. That’s right.

Q. What was the date of the adoption of this resolution, 
Mr. Brewbaker? A. July 17th.

Q. Before I leave the other, I would like to ask this ques­
tion: The plaintiffs in this case, the parties, the Negro 
students, in Norfolk, whether plaintiffs or not, who are 
seeking transfers to a school that heretofore has been an

- 3 8 -
all white school, are you familiar with whether or not they 
had been submitted to the testing and interviewing pro­
cedures that you have mentioned before ? A. Some of them 
had; some of them hadn’t.

Q. You heard the testimony of the previous witness, 
and you would say that that would be substantially cor­
rect? A. That’s correct ; some of them came from private 
schools and some of them were here a short time.

Q. Let’s get that straight. The transferees who came



118a

into the system from a private school, you would not have 
any test results on file? A. No.

Q. What other classes or categories of these Negro stu­
dents seeking transfers would you not have testing records 
on? A. Those who have come in recently and those who 
may have been absent ; they have been here a short time 
and have been absent during the test.

Q. I see. I understand, those who were not present at 
the time the test was given. Now, you say those who had 
been in the system for only a short time? A. They could 
have missed a test. These tests are given usually in Octo­
ber. A child who comes in a year after October would miss 
the test. We try to give them right after school opens.

—39—
Q. I see. But with reference to other classes and cate­

gories of these students you would have the results of what 
other tests they may have submitted to during the time 
they were in the Norfolk Public Schools; is that correct? 
A. That’s correct.

Q. All right. Now, I was about to ask you, Mr. Brew- 
baker, what was the date of the adoption of this resolution. 
A. You did ask.

Q. Did I? Did you answer it? A. July 17th.
Q. I beg your pardon? What is the date again? A. 

July 17th.
Q. Can you state for the information of the Court as to 

whether this resolution has application to any student other 
than—1 am speaking about the resolution now—to any stu­
dent other than a Negro student seeking enrollment in a 
previously all white school or to a white student who might 
seek enrollment in a previously all Negro school?

Mr. Cocke: We think the resolution shows on its 
face what the purpose was, if your Honor please.

J. J. Brewbaker—for Plaintiffs—Direct



J. J. Brewbaker—for Plaintiffs—Direct

—40—•
Mr. Robinson: I just want to clear it up as to 

the way I read it.
The Witness: That’s correct.
Mr. Cocke: The purpose of it shows on its face.

By Mr. Robinson:

Q. Mr. Brewbaker, you stated that you participated in 
the preparation of this plan. Looking at Factor No. 1, 
the assignment— A. I have a copy if you would like for 
me to—

Q. Would you? Well, I am going to read it anyway to 
get it into the record. If you need a copy to refer to to 
make your answers, just let me know and I will get you 
one up there. A. That’s right.

Q. “The assignment shall not endanger the health or 
safety of the child assigned to or the children already en­
rolled in the school.” Would you tell us what that cri­
terion—in other words, what does that criterion mean?

* -y- -y- jz .Vi' VT -A- Vi'

—42—
* 44, Jfe .At JZ.'A ' vv VA W

A. I think that I would have to go into the analysis of 
what we do when we consider an applicant.

Q. That might help us. Will it take very long? A. 
That depends. I will try to make my part short.

Q. Would you, please. A. When you consider an ap­
plicant, Mr. Robinson, the transfer of a pupil to a school 
of the opposite race, there are a number of things that 
you’d have to consider that you would not consider if that 
transfer would be of a pupil to a school of the same race. 
I want to make that statement first.



120a

In making a study of this—you laid a lot of emphasis
—13—

on tests. Tests indicate only one thing, and that’s an aca­
demic achievement of that child. That one criteria doesn’t 
mean that that child would fit and he adjusted and he 
received into a school. Of course, it is important for a 
child to be at the grade level in academic achievement. 
If he is not at grade level he will have a difficult time 
adjusting in a new school, but when you consider, is it 
best for this child in placing this child, is it best for his 
safety, particularly his safety, and his health, to transfer 
him from this school to the other school, would anything 
happen to him if the transfer is effected, how would the 
other children accept him, would it be best for the children 
in that school; and, in my opinion, we have to consider, 
is it best for this child and the children in the school where 
he’s going, for us to transfer him.

Q. Let me ask you this, Mr. Brewbaker—this may save 
a lot of time—the ten standards and criteria that are listed 
in this resolution under Standards and Criteria are stand­
ards and criteria that the School Board considered neces­
sary to apply in the situation only of students who are 
transferring from a Negro school to a previously all white 
school or from a white school to a previously all Negro 
school; is that correct? A. That’s correct.

-—44—-
Q. These are special standards and criteria applicable

to those transferring students alone? A. That’s correct.
# * * * #

— 16—

* * * # #
Q. Mr. Brewbaker, it is also true, is it not, that what 

you have just said with reference to standards and cri­
teria No. 1 would apply to the nine remaining of the ten

J. J. Brewbaker—for Plaintiffs—Direct



121a

criteria explained in this plan! A. I think No. 1 is one 
of the harder ones, but I think, generally speaking—gen­
erally speaking, I think that’s true. In some of them, you 
wouldn’t have to go into the community as much, but, gen­
erally speaking, I would say it is true.

Q. All right. A. If you are going to make a thorough 
study of it, I think that’s true.

Q. I have a final question. The present plan of assign­
ing any student in the Norfolk Public Schools consist in 
your old pre-existing assignment procedure as modified by 
this resolution? In other words, your old assignment pro­
cedure is still in force and effect in the public schools

—47—
of Norfolk except as this resolution may have application 
to particular groups of students; is that correct? A. That’s 
right.

August 22, 1958
August 22, 1958 

* # # * #
—423—

T h o m a s  H ow ard  H e n d e r s o n , called as a witness by and 
on behalf of the plaintiffs, having been duly sworn, testified 
as follows:

—425—
Direct Examination by Mr. Hill:

# # # * *
Q. Dr. Henderson, in your capacity as Dean of the 

College, have you had contact with students who have at­
tended, in their elementary and secondary school educa­
tion, schools of a segregated nature and of a desegregated 
nature? A. I talked with students who have attended 
both, including some who have attended parochial schools 
that have recently been desegregated in the City of Rich­
mond.

Thomas H. Henderson—for Plaintiffs—Direct



122a

# # # # #

Q. You mentioned contact with students from parochial 
schools. Have you had similar contacts with children from 
public schools? A. Not from public schools that have re­
cently been desegregated, but from integrated public 
schools.

Q. With respect to the situation of a lone Negro child 
attending a school in which the other population is of other 
racial groups, we will say, by virtue of your experience 
with children and from your experience as a public edu­
cator, will you tell us whether or not such a child will 
necessarily be handicapped? A. There are many factors 
that affect educational achievement; and Dr. Brewbaker 
is right in that a sense of isolation or a sense of being ac­
cepted is one of them, but it is just one of many. Offsetting 
that factor is, very frequently, a sense of motivation that

—427—
that comes as a result of isolation. I was interested in the 
testimony of Doctor—of the Chairman of the School Board 
yesterday. I, too, have felt keenly isolated. Mr. Brew- 
baker would say this is at the graduate level, but, perhaps, 
this is introducing qualifications, so if I may go ahead—

Q. Go right ahead. A. At the time I was preparing for 
my preliminary examination for a Doctor’s Degree, I knew 
it would be five days of written examination and I also 
knew that the papers would be graded without any iden­
tifying marks except a number. The teacher would not 
know whose paper it was; but preparing for those examina­
tions there were twenty white students and I was the only 
colored student, and I wanted very much to study with 
them and get together, because I thought we were in com­
mon difficulties, but I found myself isolated. That served 
to motivate me, and because of the determination not to

Thomas H. Henderson—for Plaintiffs—Direct

—426—



123a

let the isolation handicap me, well, I came in first out of 
the twenty-one.

Q. Dr. Henderson, do you see any substantial difference 
between say, a situation such as Mr. Schweitzer mentioned 
yesterday, where he, as a white child, was located with a 
large number of Mexican children forty-five years ago, 
and suffered a feeling of isolation, he said, and a Negro 
child entering a white school today, even though he may

—428—
be the lone Negro child? A. The basic difference is that 
these Negro children expect to be isolated so isolation is 
not a shock and does not have the damaging effect on their 
learning as it would have if it came as a shock, as it must 
have to Mr. Schweitzer. Their whole life is conditioned 
not to be readily accepted by white people. On the other 
hand, I would like to point out that no child in any school 
of 1,100 students is accepted by all of the students. Ac­
ceptance is a matter of just having a circle of people that 
you know better and who will tolerate you better, and 
that goes whether it is all white children in an all white 
school or all colored children in an all colored school, or 
Negro children in desegregated schools. In a recently de­
segregated school, the Negro children do not find a great 
deal of students who will accept them as people.

Q. In this day and time and circumstances in which we 
live would there be any considerable difference so far as 
isolation or the impact on a Negro child entering elemen­
tary school, junior high school or high school, in your 
opinion ?

*  #  # #  #

—429—
A. There would be a considerable number of students 

who would have to learn to accept a person of a different

Thomas H. Henderson—for Plaintiffs—Direct



124a

race. Your Honor, I use the term “different” rather than 
“opposite”. I just think that way. That would be true 
at any grade level; elementary, secondary, high, collegiate 
or graduate professional. It is true that personal rela­
tionships get to be quite important in junior high school 
and high school years, but I insist that even at those years, 
there are some students who will accept a person as a per­
son, particularly students of the same section. The boys 
who have gone to parochial schools have no trouble—where 
they are all boys schools, have no trouble being accepted. 
The girls who have gone to recently desegregated schools 
will be accepted not as much as boys. There will be a few 
who will be accepted and some who will not; there will be 
some hostility under those conditions, but you get your 
strength from those who accept you.

Q. But even, in some cases, you get your hostility even 
in some schools of the same race? A. That is quite true.

Q. With respect to this matter of feeling isolated or the
- I S O -

detrimental effect upon a child’s education, is it or is it 
not true that being sent to segregated schools and given 
the impression that he is not fit to associate with other 
children so far as the whole personality of the child is 
concerned affect him just as much as studying for, say, 
English or French or civics, or whatnot, in a particular 
school? A. I think, perhaps, you are referring to the fact 
that all of these applications have been denied, and that 
must create in the students a sense of not being wanted. 
That is true, but as I have said, that follows a long back­
ground of feeling in the South that at certain situations 
they are not wanted; they are not too welcome; they are 
not accepted—restaurants, hotels, and so forth—so they 
can take that in stride, and it will not nearly have as much

Thomas H. Henderson—for Plaintiffs—Direct



125a

the damaging effect on them as might be supposed by 
people who are not familiar with it—sort of get immnned 
to it.

Q. Now, coming to the category of these cases which 
have been classified as “lack of scholastic achievement” 
you, sir, are familiar with the California Achievement 
Tests, are you not? A. Yes.

Q. As I understand it, the California Achievement Tests 
was the one that was given these children in these tests?

—433—
A. I believe that is correct.

Q. Will you give us a brief resume of the situation now 
in some of their statements that these children failed to 
reach minimum standards as a result of their examination 
on these tests? Will you tell us something about these 
tests, these norms and— A. I believe that’s a very im­
portant question, Mr. Hill, because the term is used, in 
some of the documents, “minimum standards for grade.” I 
would like to point out that the term “minimum standard” 
is, perhaps, not used at all by the publishers of the Cali­
fornia Test. These tests are made and standardized on a 
sample that’s representative of the population of the na­
tion, and they come up with scores of what the average 
child at a given grade, given number of months in that 
grade, may achieve. That’s the average child. When I 
says “average”, we must bear in mind that fifty percent 
of them are above that average and fifty percent of them 
are below that average. I t’s nationally standardized. I 
might say that in general, for a variety of reasons, South­
ern schools do not come up to the national averages,, so 
that, actually, some publishers of tests prepare and dis­
tribute separate norms for Southern institutions. I might 
also say that, in my listening to the testimony this week,

Thomas E. Henderson—for Plaintiffs—Direct



126a

—432—
there has not been introduced any evidence that the chil­
dren who are applying to go to certain schools—well, I 
didn’t say that sentence correctly—that these norms wrould 
be the norms for the children at those schools that they 
are seeking to enter. In other words, I am not at all sure 
that at Blair or at Norview, or at any of the other schools, 
the average child in a given grade would make as high a 
score as the average in the national norms. The only way 
you could determine that would be by giving tests, because 
it ranges quite a bit from school to school and from place 
to place. In Atlanta, for example, it was found recently 
that there was extreme variations among some of the 
white schools and among the colored schools that were 
actually overlapping, but the fundamental consideration 
is that if a child, you say, has a total score at the, say, 
eighth grade level, that means he makes this score that 
the middle child across the nation makes.

Now, if you take any eighth grade at any typical school 
you will find many children scoring above that. You will 
find many children scoring below that. I am afraid the 
impression has been created, by one who reads this, that 
unless a child comes to the eighth grade level on the tests 
he cannot do eighth grade work, when the fact is, that 
any school in Norfolk, or anywhere else, the chances are 
you will find about half the students or more above the

- 4 3 3 -
eighth grade level, according to this test, and below the 
eighth grade level, if they are all located in the eighth 
grade. This is not a minimum standard. This is rather 
a descriptive term of what the average student does, and 
there are quite a number of students in any school getting 
along reasonably well in their grades who fall below that

Thomas E. Henderson—for Plaintiffs—Direct



127a

grade achievement score of the California Achievement 
Tests.

By the Court:

Q. Doctor, do you agree that scholastic achievement 
should be considered by the School Board and, in turn, 
considered by the courts, if necessary, thereafter in deter­
mining whether or not a Negro child should be admitted 
into a previously all white school or vice versa? A. For the 
present, Honorable Sir, I think it should be taken into 
consideration.

Q. Bearing in mind that the Supreme Court has said 
that these things must be gradual? A. We, perhaps, will 
come to the day when it will not matter but, for the mo­
ment, these students, who are to make the transition—I 
would not like to see, personally, in my position as an edu­
cator, I would not like to see the initial group transferred 
to a grade where they will be in the lower third of the 
class, where they will be singled out because they cannot

—434-
meet along an average. They should, at least, come up to 
the middle third or the upper third. That’s just for the 
initial group.

Q. The reason for that is because if that group works 
out, then the tension will gradually subside, perhaps? A. 
Yes, that’s a practical consideration and not in terms of 
any Constitutional rights, because I concede that at—at 
that white school, of course, there would be students in the 
lower third.

Q. Technically, the Constitutional right existed from the 
day that the Supreme Court decision was rendered, but 
the Constitutional right must also be applied with some rea­
son on both sides. Now, if you agree that scholastic achieve­
ment is one of the elements that should be taken into con­

Thomas H. Henderson—for Plaintiffs—Direct



128a

sideration in determining whether or not a Negro child 
should go into the public school system of the City of 
Norfolk in September, if the schools are open, will you 
please tell me what you would have suggested that the 
Norfolk City School Board do, bearing in mind that there 
has been a tendency on the part of all school boards in 
the South to, I will use the term “drag feet”? Now, what 
would you have suggested that should be done ? A. Do you 
mean as pertaining to the testing and selection of stu­
dents, ruling on the applications for admission?

—435—
Q. Determining the scholastic ability of these children if 

you had been in Mr. Brewbaker’s position? And whether 
the School Board dragged feet or did not drag feet, the 
final result was they did not do anything about these tests 
until they adopted this resolution on July 17, 1958. Now, 
what tests would you have, at that late stage, if you had 
been in Mr. Brewbaker’s position, suggested be given, and 
if the California Achievement Tests is not the proper one, 
tell me what should be done? It was an impossible situa­
tion on July 17, 1958, to go back and test all the white 
children in Norview School and every other school. They 
are all scattered. Now, we know that. That is out. That 
would have been the ideal, but put yourself now in the 
shoes of Mr. Brewbaker and from your standpoint as an 
outstanding colored citizen, eminently qualified in your 
field, what would you have done? A. Honorable Sir, I 
would like to say that the procedures described by Mr. 
Brewbaker in administering and conducting and interpret­
ing the tests seemed to have been entirely sound. I cer­
tainly do not want you to get the impression that I am 
objecting to the California Tests. It is a good test. There 
are other good tests, and, obviously, the School Board had 
to make a choice, and it had to be a secret choice, because

Thomas H. Henderson—for Plaintiffs—Direct



129a

—436—
you couldn’t announce which tests you were going to give. 
The whole thing would have been invalid. Another time 
they will have to use a different one, perhaps, and it was 
certainly sound, and you look at the test score and, in 
addition, how well this student performed in the school he 
was, because he took the whole picture, which is one line 
of evidence. The thing I was trying to clarify is how we 
interpret the test score, and not thinking of the medium 
as being the correct standard.

Q. I caught your point there. A. I would have given 
the tests; I would have looked at the scores, and out of 
practical considerations from my own standpoint, I would, 
to make—insure the smooth operation of this new proce­
dure, I would have insisted—I would have—that the ini­
tial students transferring would not be in the lower third; 
they would come in the middle third or upper third. After 
the first year I ’d take them as they came.

Q, You mean take them in the upper third or middle 
third from the classes of the colored school they were at­
tending? A. Yes. Now, that would have been taken into 
consideration in light of the test. In other words, I don’t 
think I would have picked students that would be academic 
failures.

—437-—
Q. Who is to do that job? If the California Achieve­

ment Tests would be submitted to me as against this little 
girl, Patricia—whatever her name is— A. Godbolt.

Q. —I would be very much embarrassed, I am afraid. 
Whom do you think is the one who should determine 
whether or not a child has met the appropriate academic 
standards and the appropriate achievement test to go into 
a school under these circumstances that exist today? A.

Thomas II. Henderson—for Plaintiffs-—Direct



130a

Well, the responsibility, as I see it, is the responsibility 
of the employees of the School Board.

Q. That is right. Yon have indicated that they were 
pretty thorough, bearing in mind the difficulties they had. 
In future years, if the schools are in operation, the School 
Board could well give tests throughout the year, test the 
white schools and the Negro schools, and so forth, and be 
in a far better position, but we are faced with a par­
ticular emergency that exists at a particular time, and I 
want to know from you in what respect, if you had been 
in Mr. Brewbaker’s shoes, so to speak, what you would 
have done differently. A. About the only thing, sir, is to 
have been a little bit less zealous than Mr. Brewbaker and 
his staff appeared to have been in trying to assure that

- 4 3 8 -
all the colored students marked as academically qualified 
would unquestionably succeed in the white schools.

Q. Well, now— A. He used—perhaps they were so 
anxious to have them succeed that they didn’t go quite 
down below enough to saying that some of these cases—• 
that these students would get along all right academically.

Q. But you have already said that you quite agree that 
it would be far better for the Negro children to succeed 
during this transition period of the first few years, where 
we meet this inevitable problem that is here and has been 
here, but just has been delayed. Now, I agree with that 
statement. In doing that, of course, certain individual rights 
have been lost of individual children. In other words, there 
are certain children, from an academic standpoint, because 
of what you have described as zealousness on the part of 
the parties who have placed these standards on these vari­
ous children, certain of these children, maybe five years from 
now, would undoubtedly be admitted, but they have their 
individual rights and their individual rights are not to be

Thomas H. Henderson—for Plaintiffs—Direct



131a

sacrificed. I am recognizing the law in that respect. On 
the other hand, there must be, under the Supreme Court’s 
decision, considerable latitude granted to the School Board 
in determining this initial transition period; and I want to

- 4 3 9 -
know whether you have any specific case that you think 
where a child has been clearly discriminated against from 
the standpoint of the scholastic end. I am not talking 
about this isolation theory and the racial friction theory. 
I am talking now about the scholastic end. A. That is a 
very good question, sir, and a fair question. I believe that 
in no school in the City of Norfolk would the percentage 
of failures be as high as thirty percent. I think it wTould 
run somewhere between five and, say, twenty-five. I be­
lieve, then, that if a child would come up, according to the 
tests, as a—within the top seventy percent for his grade, 
that even though we have not given these tests at the white 
schools and know what those children would actually do, 
that that would be a reasonably fair breaking point. The 
manuals for the tests will give for each grade in which 
the child is to be placed the score of the 30 percentile. 
That would mean the score of the student who exceeds only 
thirty percent of the students at that grade. It would give 
it for forty, it would give it for fifty, and in using the 
interpretation throughout this, they seem pretty generally 
to rely on the 50 percentile, that is, taking the score of the 
average child who exceeds fifty percent of the students in

—440—
his class. I think it would have been a little bit, perhaps, 
fairer if you used something like the 30 percentile. These 
manuals do contain the table for finding out the actual per­
centile score of each student; and I am just suggesting that 
thirty percent would have virtually guaranteed success if 
the tests were a fair measure of the achievement.

Thomas H. Henderson—for Plaintiffs—Direct



132a

Q. Thirty percent may well be the criteria that will ul­
timately be determined, but bearing in mind that nowhere 
in Virginia has a Negro child entered a public school up 
to this time, and with full knowledge of the fact that what 
the friction is that exists and what will inevitably occur 
if the schools are open, that the friction will increase for 
a wdiile, but which, in my judgment, can be competently 
handled under the able leadership of the Chief of Police 
of the City of Norfolk, bearing that in mind, do you think 
this School Board has discriminated against any child here 
because they selected the 50 percentile rather than the 30 
percentile? Isn’t that a matter of individual judgment that 
the Court should not interfere with? Your view is thirty 
percent. But do you think, weighing all of the factors, that 
Mr. Brewbaker and his associates have been wrong, per­
haps, not only wrong, but to the extent of discriminating 
against children by reason of selecting the fifty percent? 
A. I t’s a matter of judgment. As I tried to say, actually,

—441—
the child who exceeds only one percent has the same Con­
stitutional right and, perhaps, his achievement should not 
be taken into consideration. Practical considerations 
should, because any person, interested in a wholesome and 
as peaceful a transition as possible, would want these first 
children to succeed. I think thirty percent is a clear enough 
margin against the percentage of failure that is in actual 
operation at the schools to just about guarantee the suc­
cess. I don’t think, at any school in the City, would the 
percentage of students who fail approach fifty percent. 
That’s the basis for my judgment of thirty percent, but 
they had to select something, and I was just giving my 
opinion that fifty percent was rather high criteria.

Q. If you took the Negro child in the middle thirty-three 
and a third percent in his class in a Negro school and if

Thomas H. Henderson—for Plaintiffs—Direct



133a

you put him into the white school and if he did not make 
out, what would be the effect, in your opinion, on future 
success of a continuance of what we now all must face as 
contrasted with the effect of the Negro child wrho is the 
so-called cream of the crop and who goes into the white 
school and makes an outstanding success scholastically and, 
secondly, isn’t it also true, not necessarily so, but isn’t it 
also true that the brighter the child scholastically that there

—442—
is a tendency that that child will be better able to cope with 
problems that might arise by reason of this situation? A. 
That is true, good things tend to go together, the brighter 
he is scholastically, the more likely he is to be healthier, 
emotionally stable, and so forth. I would like to point out, 
on the other hand, in reply to the first question, that there 
is some danger in having just the cream of the crop attend 
the schools on a desegregated basis, because then there is a 
tendency to look for excellence or superiority in every Ne­
gro who transfers or wishes to transfer, and I think they 
want more than anything else to be just regarded as people 
and not specially able or specially weak.

The Court: I go along with you, that there is some 
danger in anything you do in this day and time, I 
mean, the problems.

All right, gentlemen.

By Mr. Hill:
Q. I would like to go back to one of the Court’s earlier 

questions. I think the Court asked you a question as to 
whether or not we should pick the children to go to school, 
or words to that effect, if I am quoting the Court correctly, 
and you stated that, in your opinion, you would select the 
children of the upper part of their class, then later of the

Thomas H. Henderson—for Plaintiffs—Direct



134a

- 4 4 3 -
upper third, then later the question was related about the 
middle third. Now, when you use “percentile”, you were 
not talking about the third of the class, were you? A. I 
think there was some confusion, your Honor, in that point. 
I was thinking about the 30 percentile on the tests.

By the Court:

Q. On the California Achievement Tests? A. Which 
would put them in the upper seventy percent of the stu­
dents nationally, and in connection with that you might 
consider students from both the highest and the middle 
third of their class in the former school, not simply the 
highest third, but the highest two-thirds.

By Mr. Hill:

Q. Coming back to another matter, a child, say, applies 
for a transfer to a school for the seventh grade, we will 
say, and is given a fairly conducted achievement test, exam­
ination, and makes, say, 5.7 or 8 • now, that child could still 
be enrolled in the school, could it not? A. First, let me 
comment on that before I answer your question.

—444—
Q. All right. A. These tests are standardized on the 

basis of giving them to students during the regular school 
year in the regular classroom situation.

Q. By the classroom teacher? A. By the classroom 
teacher in the main. It would be expected that all of the 
scores are somewhat lower than they otherwise would be. 
They were given during the vacation period, unusual cir­
cumstances, and it’s recognized that there would be a drop 
in the scores at that point. That has to be taken into con­
sideration.

Thomas H. Henderson—for Plaintiffs—Direct



135a

Thomas H. Henderson—for Plaintiffs—Direct 

By the Court:

Q. Of course, Doctor, all of this fault does not rest with 
the School Board. A. I understand.

Q. Since October 21, 1957, no Negro child applied for 
admission effective in September 1958, and they could have 
applied any time after October 21st. So therefore, the 
School Board did not have these applications during the 
year, so we do not have the ideal. A. I understand, your 
Honor. I am just making that point as far as the inter­
pretation of the test score. See, that’s one of the reasons 
why I would argue for some sort of a liberal interpretation 
of the scores.

The Court: I think some children undoubtedly 
would have done better during the school year. I do

—145—
not think there is any question about that.

By Mr. Hill-.

Q. Let me ask you this: As a normal public school situa­
tion, if a child comes in and scores lower, isn’t that child 
placed in a class ? A. Tests are used in a normal situation 
along with whatever other evidence you can get of the 
child’s achievement to give him a tentative classification, 
subject to depressing or raising in the light of your ac­
tually working with the child. I don’t think it would be 
valid to assign the child permanently for all times a grade 
classification on the basis of one test. Teachers just don’t 
work that one way. They find students who need to be 
moved up or moved down.

Q. And so the mere fact that, using the illustration I 
used, a child applied for the seventh grade and made 5.7 
on the achievement tests and that was all the information,



136a

we will say, we assume they had, which was a very unusual 
case, that was all the information you had, you still could 
make a tentative placement of a child in that school, could 
you not? A. Yes.

—449—-
# # # # #

Q. My only point that I wanted to make with this witness 
was that even assuming you had nothing else to determine 
a grade level, that a grade level could be determined in 
any particular school with respect to the intelligence test, 
could it not, so far as the enrollment of the school is con­
cerned? A. With respect to the achievement test.

Q. I  mean with respect to the achievement test, yes.

By the Court:

Q. Let me ask you, Doctor: Going along with my argu-
—450—

ment with Mr. Hill that I just got into, at this particular 
time, bearing in mind the present conditions, do you think 
the School Board of the City of Norfolk should say to a 
Negro child who may have attained the sixth grade in his 
school that he has been attending, “All right, we will give 
you an opportunity to come into a white school in grade 
number four, whereas you would ordinarily go into grade 
number seven or six in another school,” do you think that is 
for the best interest of the child? A. Oh, definitely, sir.

Q. You think so? A. Now here’s why—
Q. You think the fact of the ability to attend an inte­

grated school is paramount to losing two or three years 
in school? A. Here’s the problem, your Honor: At the 
present—

Q. Will you answer my question? A. At the present, in 
Virginia, the public and elementary schools are segregated, 
but beyond that there is desegregation or there is the ap­

Thomas H. Henderson—for Plaintiffs—Direct



137a

plication of uniform examinations for Civil Service posi­
tions or in the Army, where they are in the professional 
school to enter the practice of law or the practice of medi-

—451—
cine, there is going to be this necessity to be measured by 
a common standard with a white child. I do not think 
there is much question in the minds of most people that 
the separate school has, in fact, been unequal.

Q. Do I understand that you, as an eminent educator, 
then believe that this child, this Negro child, who would 
ordinarily go into the seventh grade and whose age would 
be proportionate, in the judgment of the School Board if he 
only meets the standards of the fourth grade that he should 
be admitted into the fourth grade when he is considerably 
older, say three years older, than the children in that par­
ticular grade ? A. I recognize the disadvantages there, sir, 
but many parents only want for their children a certificate 
showing that they have completed the public school. There 
are a number of parents, however, who are very much con­
cerned about their children getting a sound education.

Q. I am not worrying about the parents. I am interested 
in the child. The parents are answering the will of some­
body else, perhaps, who might answer their will. A. Many 
children are very anxious to get a sound education. There 
are many children who feel they are not getting that sound 
education in the schools that they attend, and they want to

—452—
be prepared to compete on equal terms in the future.

Q. I think you are right as far as the child who comes 
into the first grade, maybe, to start in, but I am talking 
about—would you say that it is for the best interest of 
that child to drop him back three years, to put him in a class 
where the white children would be some three years

Thomas H. Henderson—for Plaintiffs—Direct



138a

younger, the mere fact that, as you say, and as the Su­
preme Court of the United States has accepted the fact, 
that segregation is a detriment to the child? Now, you 
say that that one factor will override all of these other 
factors? A. Not for every parent, but for some it will.

Q. I am not talking about the parents. I do not care 
about them. A. I  mean for some children. We have had 
quite a bit of experience with that phenomenon. Some of 
our public schools have been, in times past, much, much 
worse than they are now, and I could cite you case after 
case of people who have finished the high school, as they 
thought, then would go off to private schools—as you re­
call, fifty or sixty years ago our better colleges for Negroes 
were the private ones—where they would be put in the fifth 
grade as a result of being in these segregated schools, put 
back in the fifth grade after graduating from high school, 
but they were so happy to get an education that they en-

—453,—
tered the fifth grade and came up the line all over again 
to get the Doctor’s Degree fifteen years later because their 
focus was on getting a good education.

Q. If they are going into a private school I do not know 
whether that makes any difference. A. Well, in those days 
the good schools for Negroes were only white schools; but 
we have had quite a bit of experience of having to be put 
back because we found what we were getting was really not 
what it should have been, and there are parents today and 
children today who would rather go back two or three years 
now because the longer they stay in an inferior situation, 
the greater they accumulate a deficit.

#  #  #  *  #

Thomas H. Henderson—for Plaintiffs—-Direct



139a

---4:51----
# # # # #

By Mr. H ill:

Q. Now, Dr. Henderson, will you give us the range of the 
middle sixty percent on the California Achievement Tests! 
A. Most of these tests—the published ranges between the 
student who exceeds eighty percent of his classes and the 
student who exceeds only twenty percent is about a span of 
three years, so that in the typical class at our schools as 
we have them, both white and Negro, that would be about 
a three year range in achievement in the middle sixty per­
cent of the class and, of course, a greater range if you are 
going to take the entire class.

—456—
# # ' # # #

Q. Dr. Henderson, as I understand your testimony to be, 
that so far as the conduct of the examination was con­
cerned, the School Board was fair in its procedures? A. I 
have no evidence at all on the conduct of the examination, 
but I take—-I was commenting on Dr. Brewbaker’s testi­
mony on the interpretation of the results of the tests and 
how he used everything else that pertained to the academic 
achievement. I don’t know who administered the tests. 
That didn’t come before us. We just assumed that that—

Q. What I was talking about, the question of judgment 
as to whether or not they would enroll a child in a school 
and put him at the proper placement level, you did not 
testify to that, did you? A. No.

Q. I did not understand you to. Is it not true that the 
class or category of applicants that we have termed “lack 
of scholastic achievement” ranged from a few months on 
the tests all the way up to two or three years? A. As I 
remember it, the students in that category ranged from

Thomas H. Henderson—for Plaintiffs—Direct



140a

—457—
about half year to as many as four, I believe. I should say 
this, though, that for those who range just a half year, they 
could have been classified in one of the other categories. 
Just for the convenience of presenting it to the Court, they 
could classify it one way or the other. For example, they 
could have been classified, not, perhaps, the isolation group, 
but, perhaps, the Norview situation or some others.

Q. Tension? A. Yes. Generally most of them are a year 
or more, I think that’s right.

—458—
* # # #

Q. Dr. Henderson, as I recall, just before the luncheon 
recess, we had some questions relating to the enrollment in 
schools, and in answer to one of the Judge’s questions and 
a statement thereafter, it appears to us that the Judge 
was under the impression that upon the basis of the appli­
cations by the children within the category of lack of 
achievement there is no evidence of discrimination in de­
nying their assignments in schools, that is, no evidence of 
discrimination by the School Board in denying their as-

—459—
signments in schools now and only a question of judgment. 
Have I made myself clear? A. I suppose so.

Q. Is that your evidence, is that your judgment? A. I 
think Judge Hoffman asked me if I could cite cases where 
the students in that category were discriminated against 
in their denial, and I did not mention any particular child.

Q. Let me cut you off for just a minute. I am not 
speaking about any particular instance right this minute. 
I am just talking about this particular category. We sepa­
rated these things into lack of achievement. Is there any 
evidence in that category of applications of discrimination 
on the part of the School Board in denying the appli­

Thomas II. Henderson—for Plaintiffs—Direct



141a

cations? A. The fact that I did not cite a case to his 
Honor does not mean that I—that I was not familiar with 
the applications that—familiar with them at the time. I 
think we have two issues here in which there is difference 
of legal opinion that I don’t know anything about. I was 
trying to make the point that I think the School Board— 
and I would agree that the students assigned anywhere in 
a desegregated situation for the first time in the first year of 
such desegregation ought to be put in the situation where

—460—
they had reasonably good prospects of doing well. If that 
means putting them into a lower grade than the one to 
which they had been expecting to go is a matter that you 
will take up with Judge Hoffman later. I was not concerned 
with that at all. I think we agreed that they ought to be 
put in a situation where they ought to have a reasonably 
good chance of succeeding. We did differ in the level of 
expectation. I think they wanted to insist on a higher level 
than I would have insisted upon, but if you grant that 
they are going to be put where they can succeed, then it 
would be discrimination to deny them a chance to come 
.into the school at all.

By the Court:
Q. The trouble with the word “discrimination”, it must 

be coupled with both a legal and an educational viewpoint, 
isn’t that right? You would have to treat them together? 
A. Yes.

By Mr. H ill:
Q. But has it not only been judicially determined by the 

United States Supreme Court, but is it not also the con­
sensus of outstanding educators that to keep a child in a

Thomas H. Henderson—for Plaintiffs—Direct



142a

segregated school is educationally unsound? A. That is 
correct.

— 461—

Q. From the cases within that category that we are talk­
ing about, can you give us any illustration of just this point 
we have been discussing where it would be better to put 
the child in the school even though he may be put back a 
grade? A. Well, I think the case of James Collins, Court 
Exhibit No. 39, James is a seven year old boy who has 
attended school for one year. In the judgment of those 
who examined his record, he would not succeed in the sec­
ond grade at the school for which he applied. It is my 
opinion that it would be better for James Collins to go back 
to the first grade in the desegregated school than to keep 
on under the illusion that he was doing really a year ahead 
than what he really is, because this discrepancy will worsen 
as time goes on, and it’s better to take him now and let 
him be one year behind at this point. As a matter of fact, 
James Collins lives two blocks from the former white school 
that he wishes to transfer to and about two miles from 
the colored school he attended last year. We have every 
reason to believe that perhaps his attitude to school and 
his school work would improve if he went to the nearer 
school.

Q. At least he would only lose one year in getting an 
education under educationally sound principles? A. It is 
better to correct that error and lose one year now than to 
find himself three or four years behind later on.

— 462—

Q. Is it not also true that the disparity, that is, these 
various tests that they gave, the intelligence test and 
achievement test, and what not, show a wider disparity as 
you go along? A. That is correct.

Thomas E. Henderson—for Plaintiffs—Hired

#



143a

Amended Procedures Relating to the Assignment o f  
Pupils to Public Schools o f the City o f N orfolk—  

Filed March 6 ,1 9 5 9

In compliance with the Order of the Court, entered on 
February 17,1959, the defendants herein, The School Board 
of the City of Norfolk, Virginia, and J. J. Brewbaker, 
Division Superintendent of Schools of the City of Norfolk, 
Virginia, file herewith a certified copy of a Resolution 
adopted by said School Board on September 5, 1958, to 
which is attached a certified copy of a Resolution adopted 
by said School Board on July 17, 1958, which Resolution 
of September 5, 1958 amended and re-adopted, as therein 
set forth, the P rocedures relating to the assignment of 
pupils to public schools of the City of Norfolk which were 
promulgated by said Resolution of July 17, 1958.

T h e  S chool B oard oe t h e  C ity  of N orfolk, 
V irginia , a n d  J. J. B rew baker, D ivision  
S u perin tend en t  of S chools of t h e  C ity  
of N orfolk, V irginia

By L eonard H. D avis 
W. R. C. C ocke 
L eig h  D . W illiam s

—141—

—142-
Mr. Victor J. Ashe 

1134 Church Street 
Norfolk, Virginia

Mr. Spottswood W. Robinson, III 
623 N. Third Street 

Richmond 19, Virginia
Mr. Joseph A. Jordan, Jr.

721 E. Brambleton Avenue 
Norfolk, Virginia

Mr. J. Hugo Madison 
1045 Church Street 

Norfolk, Virginia
Mr. Oliver W. Hill 

118 E. Leigh Street 
Richmond 19, Virginia

Counsel



144a

W hereas, by Resolution adopted July 17, 1958, The 
School Board of the City of Norfolk adopted certain stand­
ards, criteria and procedures relating to the assignment of 
pupils to public schools of the City of Norfolk; and

W hereas, said Resolution provided for the procedures 
set forth therein to be applicable “to all children who ap­
ply, or for whom applications are made, for transfer from 
any other school, either within or without the City of 
Norfolk, to any public school of the City of Norfolk here­
tofore attended only by students of the opposite race, or 
who apply, or for whom applications are made, for initial 
enrollment in any public school of the City of Norfolk here­
tofore attended only by students of the opposite race” ; and

W hereas , said procedures are substantially the same as 
those which the administrative officials of the public schools 
of the City of Norfolk, with the informal approval of the 
School Board, have followed for many years in determining 
whether or not applications for transfers and initial enroll­
ments which involved unusual circumstances should be 
granted, although such procedures had not been reduced 
to writing or formally adopted by the School Board prior 
to July 17, 1958; and

W hereas, it was the intent of the School Board, on July 
17, 1958, that said administrative officials continue to fol­
low substantially the same procedures as those set forth in 
said Resolution in determining whether or not applications 
for transfers and initial enrollments should be granted 
when they involve unusual circumstances other than those 
set forth in said Resolution; and

—143-
Resolution of th e  School Board of the

City of Norfolk, Virginia



Resolution of the School Board of the City
of Norfolk, Virginia

—144—
W hereas, it is now the judgment of the School Board 

that all applications for transfers and initial enrollments 
which involve unusual circumstances be handled in accord­
ance with the procedures set forth in said Resolution;

Now, T herefore , Be It R esolved that the assignment 
procedures set forth in and adopted by a certain Resolution 
of this Board, a copy of which is attached hereto, adopted 
July 17, 1958, are hereby amended so as to read as follows, 
and, as so amended, are hereby re-adopted, effective as of 
July 17, 1958:

PROCEDURES
1. The Superintendent shall inaugurate and administer 

a program of tests to be given, as promptly as pos­
sible in the current year and between June 1 and July 
1 of all subsequent years, to all children who apply, 
or for whom applications are made, for transfers from 
other schools, either within or without the City of 
Norfolk, to public schools of the City of Norfolk, or 
who apply, or for whom applications are made, for 
initial enrollments in public schools of the City of 
Norfolk, whose applications involve unusual circum­
stances; provided, however, that in the cases of the 
Negro children whose applications involved the un­
usual circumstances of seeking transfers to or initial 
enrollments in public schools of the City previously 
attended only by students of the opposite race and 
who have already applied for transfers or initial en­
rollments, or any other children applying prior to 
July 25, 1958, for transfers to or initial enrollments 
in public schools of the City previously attended only



146a

by children of the opposite race, such tests shall be 
given as soon as is reasonably practicable and not 
later than August 8, 1958; and provided further, how­
ever, that as to all children so applying, or for whom 
such applications are made, in subsequent years with­
in the time limit fixed by this Board for making such 
applications, but too late to be tested by July 1, such 
tests shall be given within a reasonable time after 
such applications are made; such tests to be applied 
and administered according to the standards and cri­
teria above set out and on a racially non-discrimina- 
tory basis, the same to be a requisite before enroll­
ment in all such cases.

2. The Superintendent shall appoint from the personnel 
of the City School System one or more committees of 
five members each, including himself as chairman, 
with the direction that one of such committees shall 
interview each tested child, and his or her parents or 
guardians, who applies, or for whom application is 
made, for transfer or initial enrollment and whose 
application involves unusual circumstances, in order 
to determine whether or not such child meets the 
standards and criteria above set forth, and whether 
or not the requested transfer or initial enrollment 
is in accordance with the wishes of the particular

—145-
child involved and of his or her parents or guardians, 
and thereafter promptly report its findings and rec­
ommendations, in writing, to this Board. Such inter­
views shall be conducted as promptly as possible in 
the current year and between July 1 and August 1 of 
all subsequent years; provided, however, that in the 
cases of the tested Negro children whose applications

Resolution of the School Board of the City
of Norfolk, Virginia



147a

involved the unusual circumstances of seeking trans­
fers to or initial enrollments in public schools of the 
City previously attended only by students of the op­
posite race and who have already applied for trans­
fers or initial enrollments, or any other tested chil­
dren applying prior to July 25, 1958, for transfers to 
or initial enrollments in public schools of the City 
previously attended only by children of the opposite 
race, such interviews shall be conducted as soon as is 
reasonably practicable and not later than August 8, 
1958; and provided further, however, that as to all 
tested children so applying, or for whom such appli­
cations are made, in subsequent years within the time 
limit fixed by this Board for making such applica­
tions but too late to be interviewed by August 1, such 
interviews shall be conducted within a reasonable time 
after the aforesaid tests are completed.

3. No pupil required to comply with the provisions of 
paragraphs 1 and 2 above shall be enrolled in any 
school except by the affirmative act of this Board, 
which shall in all cases exercise its proper discretion 
in making such assignments in the light of all the 
pertinent facts, but, as to children seeking transfers 
to or initial enrollments in public schools of the City 
previously attended only by students of the opposite 
race, without regard to race or color.

A dopted : September 5, 1958.
A  T rue Copy, T este :

/ s /  W. W. B rew ster,
Clerk of The School Board 

of the City of Norfolk.

Resolution of the School Board of the City
of Norfolk, Virginia



148a

W hereas, the School Board of the City of Norfolk, hav­
ing fully considered the questions involved in the applica­
tions of Negro children for transfers to or initial enroll­
ments in previously all white schools of the City of Norfolk, 
and having been advised by its attorneys of its duties and 
obligations under the order of the District Court of the 
United States, For the Eastern District of Virginia, en­
tered in the cause of Leola Pearl Beckett, et al. v. The School 
Board of the City of Norfolk, et al., the 26th day of Feb­
ruary, 1957, and being fully conscious of its responsibilities 
in the premises, recognizes that under the said order and 
in the light of the hearing before the Court held on June 
7, 1958, that all applications received from Negro children, 
or their parents, seeking enrollment in schools of the City 
previously attended by only white children, must be acted 
upon with reasonable promptness and that all questions as 
to the rights of such children to be enrolled in any such 
school must be determined by the school authorities, with­
out regard to race or color; and

W hereas, the School Board considers that it has the clear 
responsibility to treat all public school pupils fairly and 
justly in according to them the best educational facilities 
available and to avoid the assignment of any child to a 
grade level or curriculum not best adapted to the degree 
of mental abilities and present scholastic achievements of 
such child; and

W hereas, the School Board recognizes its duty to  oper­
ate all of the schools in the City School System with full 
regard for the public interest and for the proper interests 
of all pupils, regardless of race or color, and, therefore,

—146—
Resolution of the School Board of the

City of Norfolk, Virginia



149a

must not unnecessarily burden any class or classroom or 
any entire school by the assignment thereto of more than

. — 147—

a proper and workable proportion of the total number of 
students in the public schools of the City; and

W h e b e a s , for the accomplishment of the purposes and 
ends described in the preceding preambles it is deemed 
both desirable and necessary that this Board adopt and 
apply assignment standards, criteria and procedures for 
their application,

Now, T h e r e f o r e , Be It R eso lv ed  that the assignment 
standards, criteria and procedures hereinafter set forth be, 
and the same are hereby, adopted.

R eso lv ed  F u r t h e r  that it being necessary to set a time 
limit for the making of applications for transfer from a 
previously all Negro school to or for initial enrollment in 
a previously all white school, or from a white school to 
a Negro school, no such application shall be considered or 
acted upon unless made to the proper school authorities 
prior to the 25th day of July, 1958.

STANDARDS AND CRITERIA
1. The assignment shall not endanger the health or 

safety of the child assigned to or the children already 
enrolled in the school.

2. The assignment shall not interfere with the proper 
administration of the school.

3. The assignment shall not interfere with proper in­
struction of pupils already enrolled in the school.

Resolution of the School Board of the City
of Norfolk, Virginia



150a

4, The assignment shall be made after consideration 
of the applicant’s academic achievement and the aca­
demic achievement of the pupils already within the 
school to which he is applying.

5. The assignment shall be made with consideration for 
the residence of the applicant.

6. The assignment shall consider the physical and moral 
fitness of the applicant and their relation to the gen­
eral health and welfare of the pupils already enrolled 
in the school.

7. The assignment shall consider the mental ability of 
the applicant seeking enrollment.

8. The assignment shall take into consideration the so­
cial adaptability of the applicant seeking enrollment.

—148—
9. The assignment shall take into consideration the 

expected emotional and social adjustment of the 
pupil to the school to which he is assigned.

10. The assignment shall take into consideration the 
cultural background of the applicant and the pupils 
already enrolled in the schools.

PROCEDURES
1. The Superintendent shall inaugurate and administer 

a program of tests to be given, as promptly as possible 
in the current year and between July 1st and August 
20th of all subsequent years, to all children who 
apply, or for whom applications are made, for transfer 
from any other school, either within or without the 
City of Norfolk, to any public school of the City of

Resolution of the School Board of the City
of Norfolk, Virginia



151a.

Norfolk heretofore attended only by students of the 
opposite race, or who apply, or for whom applications 
are made, for initial enrollment in any public school 
of the City of Norfolk heretofore attended only by 
students of the opposite race, provided, however, that 
in the cases of the Negro children who have already 
applied for transfers or initial enrollments, or any 
others applying before July 25, 1958, such tests shall 
be given as soon as is reasonably practicable and not 
later than August 8, 1958, such tests to be applied 
and administered according to the standards and cri­
teria above set out and on a racially non-discrimina- 
tory basis, the same to be a requisite before enroll­
ment in all such cases.

2. The Superintendent shall appoint from the personnel 
of the City School System one or more committees of 
five members each, including himself as chairman, 
with the direction that each committee shall, before 
the 8th day of August of this year, and between July 
1st and August 20th of all subsequent years, inter­
view each student, and his or her parents or guardians, 
who applies or for whom application is made to be 
assigned to and enrolled in a school of the city here­
tofore attended only by students of the opposite race, 
in order to determine whether such student meets the 
standards and criteria above set forth, and whether 
the requested assignment and enrollment are in ac­
cordance with the wishes of the particular student 
involved and of his or her parents or guardians, and 
thereafter promptly report its findings and recom­
mendations, in writing, to this Board.

Resolution of the School Board of the City
of Norfolk, Virginia



152a

Resolution of the School Board of the City 
of Norfolk, Virginia

3. No pupil required to comply with the provisions of 
paragraphs 1 and 2 above shall be enrolled in any 
school except by the affirmative act of this Board, 
which shall in all cases exercise its proper discretion 
in making such assignments in the light of all the 
pertinent facts, but without regard to race or color.

A dopted : July 17, 1958.

A T ru e  Copy, T este :

/ s /  W . W . B rew ster ,
Clerk of The School Board 
of the City of Norfolk.



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