Beer v. United States Judgment and Opinion

    IN THE

United States  Court of Appeals
F oe the F ourth Circuit

Mo. 9418
Glenda Blakeney, et al., Appellants,

v.
F airfax County School B oard, et al., Appellees.

A ppeal from  the  U nited  S tales D istrict Court for the 
E astern  D istrict of V irginia, A lexandria Division

APPELLANTS' APPENDIX

J ames M. Nabrit, III 
10 Columbus Circle 
New York 19, N. Y.

S. W. T ucker 
214 E. Clay Street 
Richmond 19, Virginia

Otto L. T ucker 
901 Princess Street

Of Counsel: Alexandria, Virginia
Allison W. Brown, J r. Attorneys for Appellants

Suite 705
1000 Connecticut Avenue, N. W.
Washington 6, D. C.

P ress or B yro n  S. A d a m s , W a sh in g to n , D. C.

J A M E S  M . NAlBRilT, 111



INDEX

Page
Relevant docket en tries................................................. 4

Findings of fact and conclusions of law, September 22,
1960 ........................................................................  4

Decree of the District Court, November 1,1960 ........... 12
Motion for new trial, November 10,1960 ...................... 14
Motion to intervene, June 14, 1963 ..............................  15
Motion in intervention for further interlocutory and

permanent injunctive relief, June 14,1963 ............... 17
Motion for further interlocutory and permanent injunc­

tive relief, June 21,1963 ................ ........................ 24
Motion to dismiss motion to intervene, July 3,1963 ----  34
Motion to dismiss, July 12,1963 ....................................  36
Excerpts from transcript of proceedings, September

12, 1963 ..................................................................  37
Testimony of George H. Pope—-

D irect............................................................... 37
Cross ............................................................... 46
Re-direct .........................................................  46

Testimony of Eugene L. Newman—
D irect............................................................... 48

Testimony of George IJ. Pope (recalled)—
D irect............................................................... 50

Argument by counsel............................................. 53
Memorandum opinion, March 3, 1964 ............................ 59
Order of the District Court, March 3, 1964 ...................  64



APPELLANTS' APPENDIX

Relevant Docket Entries

Civil Action No. 1967
9-22-60—Findings of Fact and Conclusions of Law entered 

and filed.
11-1-60—Report of Fairfax County School Board to Court 

filed.
11-1-60—Decree entered ordering ‘ ‘ that this action be, and 

it is hereby, stricken from the docket.”
11-1-60—J. S. Closing.
11-10-60—Motion for New Trial on part of the issues 

received and filed.
11-10-60—Memorandum of Points and Authorities received 

and filed.
2-16-61—Notice of Motion for further interlocutory & per­

manent injunctive relief received and filed.
2-16-61—Motion for Further Interlocutory & Permanent 

Injunctive Relief received and filed.
2-16-61—Affidavit in Support of above received and filed.
2-16-61—Plaintiffs’ Memorandum of Points and Author­

ities in support of above received and filed.
2-20-61—Notice received and filed.
4-4-61—Plaintiffs’ Motion for Leave to Withdraw Motion 

for Further Interlocutory and Permanent Injunctive 
Relief received and filed.

4-4-61—Order granting leave to withdraw the pending 
motion for further interlocutory and permanent in­
junctive relief entered and filed.

1963
June 14—Motion to intervene as parties plaintiff filed by 

Plaintiff.
June 14—Points and authorities in support of Motion for 

Intervention filed.



2

June 14—Motion in intervention for further interlocutory 
and permanent injunctive relief filed.

June 21—Motion for further interlocutory and permanent 
injunctive relied—filed.

June 21—Memorandum of points and authorities in 
support of motion for further interlocutory and per­
manent injunctive relief—filed.

July 3, ’63—Motion to Dismiss—Motion to Intervene. 
Filed.

7-12-63—Pre-Trial—on all motions and merits 9-12-63.
7- 12-63—Motion to dismiss filed by defts.
8- 15-63—Motion to add defendants and amend the plead­

ings—filed.
8-15-63—Memorandum of points and authorities in support 

of motion to add defendants and amend the pleadings— 
filed.

Sept. 12—See Entry 3067.
Mar. 9—Notice of Appeal—filed. $5.00 paid.
Mar. 9—Appeal Bond in the amount of two-hundred and 

fifty executed and filed.
Mar. 12—Designation of Contents of Becord on Appeal— 

filed.
Civil Action No. 3067

1963
Sept. 12—Motion to intervene as parties plaintiff—filed.
Sept. 12—Memorandum of points and authorities in 

support of motion for intervention—filed.
Sept. 12—Motion for further interlocutory and permanent 

injunctive relief—filed.
Sept. 12—Plaintiffs’ memorandum of points and author­

ities in support of motion for further interlocutory 
and permanent injunctive relief—filed.

Sept. 12—Motion to dismiss motion to intervene—filed by 
defts.



3

Sept. 12—Motion to dismiss—filed by deft.
Sept. 12—Motion to add defendants and amend pleadings 

—filed by plfs.
Sept. 12—Memorandum of points and authorities in sup­

port of motion to add defendants and amend the 
pleadings—filed.

Sept. 12—Trial Proceedings: This cause came on this day 
to be heard on all pending motions, merits and 
evidence. (1) Motion to add defendants, & amend the 
pleadings. Motion by petitioners to withdraw. Peti­
tioners motion to withdraw motion No. 1 granted. 
(2) Motion to intervene as parties plaintiff filed 
June 14, 1963 came on to be heard. Arguments of 
counsel heard. Motion to intervene granted. Evidence 
fully heard. Arguments of counsel to the Court heard. 
Counsel for defendant announced to the Court that it 
would consent to adopting the pleadings as filed 
June 14, 1963 and thereafter as a new suit and to be 
given a new civil number. The pleadings as filed in 
this case shall be adopted as of June 14, 1963 in the 
new case. Motion to withdraw prayer for counsel fee. 
Motion granted. Court takes this matter under con­
sideration.

Mar. 2—Memorandum Opinion entered and filed. Copies 
sent to counsel.

Mar. 2—Order entered and filed dismissing the intervening 
petition, treated as an original complaint, etc. Copies 
sent as directed.

Mar. 9—Notice of Appeal filed—$5.00 paid.
Mar. 9—Appeal Bond in the amount of two-hundred and 

fifty dollars executed and filed.
Mar. 12—Designation of Contents of Record on Appeal— 

filed.
Mar. 17—Testimony of George H. Pope and Eugene L. 

Newman—dated September 12, 1964. Filed.



4

IN  THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF VIRGINIA

AT ALEXANDRIA

Civil 1967

L awrence E dward Blackwell, et al.

v.
F airfax County School B oard, et al.

Findings of Fact and Conclusions of Law

Thirty-one Negro pupils applied for admission in the 
present session to certain of the pnblie schools in Fairfax 
County, Virginia, formerly attended only by white 
students. The School Board approved five of the applica­
tions, one has not been acted upon, and twenty-five were 
refused. In this suit these twenty-five applicants ask the 
Court to enjoin this refusal by the Board, as based on race 
or color, and, so, offensive to the Federal constitution.

That race was the sole reason for declining the applica­
tions of fifteen (Nos. 1, 2, 15, 16, 17, 18, 19, 21, 22, 23, 24, 
25, 26, 27 and 28) of them is candidly declared by the Board 
in its official statement of its action. However, the 
differentiation for race was only temporary and was 
justified, it explained, as the effect of the first stage of a 
plan for the eventual removal of segregation in all the 
schools. None of the fifteen came within the scope of this 
first step. Additional grounds, such as scholarship and 
residence disqualification, barred the other ten applicants.

I. The plan directs the lifting of segregation as a factor 
of exclusion in the first and second grades for the session 
1960-61, and thereafter in the next higher grades, at the 
rate of one grade for each subsequent school year, until 
all elementary and secondary grades are removed from



the rule of segregation. All of the 15-group are beyond 
the second grade.

Their challenge of this plan is directed at the time 
required for its effectuation. Assailing it as laggard, they 
point out that the plan would not accomplish the complete 
annulment of segregation — its purported aim — for ten 
more years. As a consequence, they complain, no Negro 
child now in the third or a more advanced grade would 
ever be freed of the segregation exclusion. For such a 
child the result is to enforce the old practice for many 
years to come. This, they also conclude, proves the plan 
unacceptable in the law as failing the test of all deliberate 
speed.

In justification of the plan, the school authorities testify 
to a necessity for gradualness in the conversion to open 
schools from a school system distinguishing pupils by race 
or color. They observe that Fairfax is still predominantly 
a rural county, the people are not accustomed to un­
segregated schools, and a sudden change in this usage 
would result in an undue and undesirable abrasion of the 
feelings of the people. This, they fear, might result in 
such popular revulsion to an alteration in the policy of 
segregation as to be a substantial obstacle to its entire 
removal. These possibilities can be avoided, or at least 
minimized, they believe, only by a moderately progressive 
transition. They suggest it commence with the school 
beginners—to introduce them early to an unsegregated 
classroom so in later years they may more readily accept 
the presence in their schools of students of another race 
or color. Here the Superintendent and Board members 
emphasize that children of this age enter the schools with­
out prejudgment of the question and would quickly adapt 
to the new arrangement. Such a resolution of the problem, 
in the witnesses’ judgment, could not be as smoothly 
attained in the older-age grades.



6

The good faith of both sides in their differences cannot 
be donbted. Each cites judicial precedent. A somewhat 
similar plan was approved for Nashville, Tennessee by the 
United States Court of Appeals, Sixth Circuit, in Kelley 
v. Board of Education, 270 F. 2d 209 (June 17, 1959), cert, 
den. 361 U.S. 924. There the white students were 17,000 
in number, and the Negroes 10,000, or about 37% of the 
total school population. On the other hand, petitioners 
rely on the United States Court of Appeals for the Third 
Circuit, in its opinions of July 19 and August 29, 1960 
in Evans et al. v. Ennis et al., involving the public schools 
of Delaware. The number of Negro school children in that 
State were 6,813.

But these decisions in truth are not diametrically 
opposed. They have a common doctrine—that resolution 
of these controversies cannot be reached by the application 
of any universal principle, but rather the answer depends 
upon local conditions, such as the number of the students, 
the structure of the school system, the character of the 
community and like personal and objective features. 'While 
the Delaware decision is perhaps nearer, the facts in the 
two cited cases are so far from comparable with those 
present here that, save to declare a general guide of deter­
mination, the opinions are not instantly helpful.

In Fairfax County in June, 1960, there were 53,823 
pupils (including 272 not precisely graded) in the twelve 
grades of the public schools—51,803 White and 2,020 Negro. 
With some increase in the total, this ratio between the 
races in the school population seemingly will continue for 
the current term. The entire school population, say 54,000, 
is spread among 94 school buildings. Among these are 
six schools exclusively for Negro children—five elementary, 
covering grades 1 to 6, and one secondary school caring 
for grades 7 through 12.

In the first grade last session there were 307 Negroes 
and 5,384 Whites, and in the second grade 228 and 5,596



7

Whites. This numerical relationship extended through the 
third, fourth and fifth grades. From the sixth to the 
twelfth, inclusive, the ratio is far lower, running about 
1 to 30 until the final year when it diminishes to 1 to 40. 
These figures disclose that the entire Negro school 
attendance in Fairfax is not comparatively large, indeed, 
less than 4% of the aggregate.

The proportion of White and Negro pupils in the specific
grades and schools now sought by the petitioners, even
if all of them were admitted as requested, would be as
follows:

Grade White Negro
1 5,384 4
2 5,596 3
3 5,463 5
4 5,146 6
5 5,013 2
6 4,969 2
7 4,986 3
8 4,112 2
9 3,300 1

10 3,001 1
11 2,620 1
12 1,979 1

The four Negroes entering 1st grade would be divided 
equally between two schools, Belvedere and Flint Hill; the 
three entering the 2nd grade would be divided among 
three schools, Celar Lane, Flint Hill and Belvedere; the 
five entering the 3rd grade would be divided among Flint 
Hill, Cedar Lane and Belvedere; the six entering the 4th 
grade would be divided: 2 in Cedar Lane, 1 in Hollin Hall, 
1 in Devonshire, and 2 in Belvedere; the two entering the 
5th grade would be in Hollin Hall and Devonshire; the two 
entering the 6th grade would be in Belvedere and Devon­
shire; the three entering the 7th grade would be in Flint



Hill, Parklawn and Lanier; the two entering the 8th grade 
would be in Bryant; the one entering the 9th grade would 
be in Groveton High School; the one entering the 10th grade 
would be in James Madison High School; the one enter­
ing the 11th grade would be in James Madison; and the 
one entering the 12th grade would be in James Madison.

So that if all of the present applicants were received 
into the white schools, only 10 of the 88 “ white” schools 
would be affected. None of these would have more than 
8 Negro students among the entire student body, the dis­
persal being as follows: Belvedere 8, Flint Hill 5; Cedar 
Lane 4; Devonshire 4; Hollin Hall 2; Parklawn 1 ; Lanier 
1; Bryant 2; Groveton 1 ; and James Madison 3. In the 
high schools there would be but 4 Negro students, and 
these in three different schools, with no more than 1 in a 
single class.

In these circumstances the allowance of the instant 
applications would not, and could not, give ground for 
public friction. The present conditions do not indicate 
a need now to project the bar of the applicants into the 
next ten years. Nor does the evidence immediately reveal 
any such foreseeable disruption of the teaching staff or 
strain on the physical facilities as warrant the delay. 
That they are not in the first or second grade is the only 
objection interposed to these fifteen students. In every 
other way, concededly, they are qualified, and hence they 
must be allowed to matriculate now in the schools they 
seek.

II. As to the children turned down on additional grounds, 
we notice first Nos. 6 and 7. In the amended complaint 
they named Flint Hill as their desired school, specifying 
the 10th and 11th grades. This request was disallowed 
because Flint Hill does not offer those grades. The 
evidence shows that originally their applications had been 
for James Madison High School. Further amendment of 
the complaint will be permitted so as to show Nos. 6 and



9

7 request James Madison. As the Board has not had the 
opportunity to pass upon their transfer to James Madison, 
the defendants in their answer to the amended complaint 
will be directed to state their position as to pupils 6 and 
7. At the same time the defendants should report their 
action upon the prayer to enter Bryant of the intervenor, 
No. 31, who came into the suit on September 8, 1960, too 
late for consideration by the Board.

No. 3 also asked to go to Bryant School, 7th grade. 
She has been assigned to Luther Jackson School which is 
an all-Negro school having grades 7 to 12, inclusive, and 
serving as the only high school in the county for Negroes. 
This pupil lives within a city block of the school she 
seeks, while the assigned school is, by road, more than 
13 miles away. The ground of her rejection is “ Because 
of academic record it is believed that applicant’s educa­
tional needs can best be served in Luther Jackson School” . 
For the last session she had a B average, her attendance 
was good and her conduct satisfactory.

Pupils Nos. 10, 11 and 13 seek the 3rd and 4th grades in 
Cedar Lane. Their assignment is to Louise Archer School. 
Cedar Lane is within 1500 feet of their homes, while even 
in an air-line Archer is more than 2 miles away. No. 10 
failed and was retained one year in each of grades 2 and 
3, but last year her scholastic record was better. No. 11 
has a somewhat similar record, but has missed considerable 
time each year. No. 13 has a comparable record 
scholastically, also with substantial absences charged to 
her. Both 10 and 11 have been rejected on academic 
deficiencies similar to those ascribed supra to No. 3. 
No. 13 was excluded on this ground and also on her 
behavior record, as well as for want of emotional stability 
and social adaptability.

All of these criteria may be valid in apt instances. The 
court is not now ruling upon their validity. The point is



10

that they must be applied to both races equally before they 
can be used to exclude either a White or Negro student. 
Under the practice followed in respect to White children, 
the residences of 3, 10, 11 and 13 entitle them to admission 
to the schools they now request, but their assignments 
have omitted consideration of this factor. Except for 
their erroneous school zone assignment, it seems that they 
would not have been confronted with the examination, for 
it does not appear that White pupils with these same in­
adequacies have been declined admittance to Bryant or 
Cedar Lane. Consequently, as was likewise held in the 
Arlington case decided in this court on September 16, 
1960, these tests cannot be held to bar No. 3 from Bryant 
and 10, 11 and 13 from Cedar Lane.

Students 8, 9 and 14 reside in the attendance area of 
Louise Archer School. They desire to enter Flint Hill 
School. They have been unsuccessful because Flint Hill 
is overcrowded, while Louise Archer has no congestion. 
Moreover, No. 14 lives closer to Louise Archer, and 8 and 
9 are not much farther by road from Louise Archer than 
from Flint Hill. Incidentally, Nos. 9 and 14 are within the 
grades in which the rule of segregation no longer prevails 
under the Board’s plan. There is nothing intimating un­
fair treatment of these applicants and the action of the 
Board has adequate support in the proof.

No. 5 is in the last year of high school at Luther Jackson. 
His i*esidence is near James Madison High School and he 
desires to be admitted there. Because of the imminence 
of his graduation, the school authorities urgently advise 
against the transfer. In this they refer to the weakness 
of his academic record and note he was sent to the school 
psychologist in 1959 for study of his apathy and loss of 
interest. A marginal student, they fear a change from a 
school familiar with his capacity, his potentialities, his 
strength and his weaknesses might cause him to fail of 
graduation. This counsel has been given him in the best



11

of faith. It is an entirely unselfish judgment. The court 
cannot say that the determination of the School Board is 
not without acceptable, as wTell as meritorious, support in 
the evidence. There is here no showing that White students 
in the same situation would not be retained in the school 
of prior attendance. No consideration whatsoever of race 
appears in this decision. In so nicely balanced a question, 
the court should not permit the judgment of the pupil to 
be substituted for that of the school authorities.

The ultimate conclusion of the court is to admit to the 
schools respectively requested 19 of the applicants, that is :

Rayfield Barber, Jr. to G-roveton High;
Doris Jeannette Barber to Bryant;
Doris E. Hunter to Cedar Lane;
Bernice Lee to Parklawn;
Solomon Lee to Belvedere;
Reginald Lyles to Hollin Hall;
Ronald Lyles to Hollin Hall;
Carolyn M. Smith to Lanier;
Pierce Smith to Devonshire;
Mary Ellen Smith to Devonshire;
Sharon Smith to Devonshire;
Brenda Summers to Belvedere;
Carlton T. Summers to Belvedere;
Autra Wheeler to Belvedere;
Karen Wheeler to Belvedere;
Linda Monette Barber to Bryant;
Ethel Marie Brooks to Cedar Lane;
Phoebe Ann Brooks to Cedar Lane; and
William Maurice Brooks to Cedar Lane

The remaining 7 applications are not granted. A general 
injunction is not called for in this case, because the School 
Board and the Superintendent readily recognize their 
obligation to avoid discrimination for race or color and 
have demonstrated a purpose to adhere to this duty.



12

Let petitioner’s attorneys present an order in accordance 
herewith, first submitting it to the opposing attorneys for 
consideration as to form.

(Sgd.) Albert V. Bryan 
United States District Judge

September 22nd, 1960.

Decree

This cause came on to be heard on the 8th and 11th 
days of September, 1960, upon the papers formerly read; 
upon the Amended Complaint; upon the Answer to the 
Amended Complaint and Exhibits attached thereto; upon 
the Motion of Barbara Ann Jackson, infant, and Alfred 
Jackson, her father and next friend, to Intervene, to which 
motion the defendants consented; upon the Complaint in 
Intervention; upon the Motion for leave to correct the 
Amended Complaint, to which the defendants consented; 
and upon consideration of the evidence and arguments of 
counsel for all parties, for the reasons set forth in the 
Findings of Facts and Conclusions of Law filed September 
22, 1960, it is

Ordered:

1. That the Motion for Intervention of Barbara Ann 
Jackson, et al, be granted.

2. That the Motion to Correct the Amended Bill of Com­
plaint be granted.

3. That the defendants, their successors in office, agents 
and employees be and each of them is hereby restrained 
and enjoined from refusing to admit the following plain­
tiffs to, or enroll or educate them in, the said schools to 
which they have made application, this is :



33

Bayfield Barber, Jr. to Groveton High;
Doris Jeannette Barber to Bryant;
Doris E. Hunter to Cedar Lane;
Bernice Lee to Parklawn;
Solomon Lee to Belvedere;
Beginald Lyles to IJollin Hall;
Ronald Lyles to Hollin Hall;
Carolyn. M. Smith to Lanier;
Pierce Smith to Devonshire;
Mary Ellen Smith to Devonshire;
Sharon Smith to Devonshire;
Brenda Summers to Belvedere;
Carlton T. Summers to Belvedere;
Autra Wheeler to Belvedere;
Karen Wheeler to Belvedere;
Linda Monette Barber to Bryant;
Ethel Marie Brooks to Cedar Lane;
Phoebe Ann Brooks to Cedar Lane; and
William Maurice Brooks to Cedar Lane

4. That the action of the defendants in refusing to admit, 
enroll and educate the plaintiffs, Cheryl R. Bigelow in 
James Madison High School; Lawrence E. Blackwell, 
Donna Blackwell and Warren Carter in Flint Hill School, 
be and the same is hereby sustained and the prayers to 
the Amended Complaint are denied as to them and their 
parents.

5. It appearing that the remaining plaintiffs have been 
assigned by the Virginia Pupil Placement Board to the 
schools to which they sought admission and have been 
admitted and enrolled therein, their cases are now moot 
and no action is required by this Court on their prayers 
in the Amended Complaint.

6. That the remaining prayers of the Amended Com­
plaint be and the same are hereby denied.



14

All matters in issue having been disposed of, and it ap­
pearing that all plaintiffs who are entitled to admission into 
the schools to which they applied have been admitted and 
enrolled in such schools, including those described in para­
graph 3 of this Order who were admitted, immediately 
after receipt of copies of the Findings of Fact and Con­
clusions of Law dated September 22, 1960; it is, therefore, 
further

Ordered th a t this action be, and it is hereby, stricken 
from  the docket.

/s /  Albert V. B ryan 
United States District Judge

November 1st, 1960.

[Filed 11/10/1960]

Motion for New Trial on Pari of the Issues Pursuant to 
Rule 59, Federal Rules of Civil Procedure

Plaintiffs, by their attorneys, move the Court to set aside 
that portion of the judgment entered in this cause on 
November 1, 1960, which ordered the case dismissed and 
stricken from the docket, on the ground that this portion 
of the judgment is contrary to law, in that the Court is 
required by controlling precedents to retain jurisdiction 
of the cause until a complete transition from a racially 
segregated school system to a racially non-discriminatory 
system has been effected. In view of the facts plainly 
appearing in this case that the discriminatory system has 
not been completely eliminated, and that there has been no 
change of the policy of making initial assignments on a 
racially segregated basis, and considering that the Court 
decided not to issue either a general order prohibiting 
discrimination or an order prohibiting the defendants’ 
policy of making racially segregated initial assignments,



15

it is submitted that the Court should modify its order to 
provide that jurisdiction of the cause be retained.

Respectfully submitted,

Of Counsel for Plaintiffs
Otto L. T ucker 

901 Princess Street 
Alexandria, Virginia

F rank D. Reeves 
473 Florida Ave., N. W.
Washington 1, D. C.

J ames M. Nabrit, III 
10 Columbus Circle 
New York 19, New York

[Filed 6/14/63]

IN  THE UNITED STATES DISTRICT COURT 
EOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Civil Action No. 1967

L awrence E dward Blackwell, et al., Plaintiffs,
v.

F airfax County School Board, et al., Defendants,

Glenda Blakeney, infant, by Evelyn Blakeney, her 
mother and next friend,
Rte 1, Box 23E,
Alexandria, Virginia,



16

Queen E ster Cox, infant, by Midred Cox, her mother and 
next friend,
Bte 1, Box 504,
Alexandria, Virginia,

Calvin Charles J ackson, infant, by Ada Jackson, his 
mother and next friend,
P.O. Box 135,
Herndon, Virginia,

B oland W ilson Smith , J r., and Derrick Norman Smith ,
infants, by Boland W. Smith, their father and next 

friend,
516 Shreve Street,
Falls Chnrch, Virginia; and

E velyn Blakeney, Mildred Cox, Ada J ackson, and 
B oland W. Smith ,

Applicants for Intervention.

Motion to Intervene as Parties Plaintiff

The above-named applicants respectfully move the Court 
that they be permitted to intervene as parties plaintiff in 
this action and to file their complaint in intervention, upon 
the following grounds:

1. The applicants for intervention are members of the 
class on behalf of which this action was brought.

2. The applicants have a substantial interest in the 
subject matter of the action.

3. They are, and will be bound by, and benefit from, any 
judgment, decree or order entered, or to be entered, in this 
action.

4. Their motion for further relief and the action in which 
they seek to intervene has questions of law and fact in 
common.

5. Their intervention will not to any extent delay or 
prejudice the further adjudication of the rights of the



17

original parties or other members of the class on behalf of 
which this action was brought.

W herefore, applicants pray that this motion and such 
other relief as may be determined by this Court in accord­
ance with the proposed motion in intervention for further 
interlocutory and injunctive relief filed herewith be 
granted.

Otto L. T ucker 
901 Princess Street 
Alexandria, Virginia

S. W. Tucker 
214 East Clay Street 
Richmond 19, Virginia

J ames M. Nabrit, III 
10 Columbus Circle 
New York 19, New York

Attorneys for Applicants
Of Counsel:

Allison W. B rown, J r.
Suite 705
1000 Connecticut Avenue
Washington 6, I), C.

Motion in Intervention for Further Interlocutory and 
Permanent Injunctive Relief

The above-named intervenors respectfully move the 
Court to grant them further necessary and proper relief 
as prayed herein, and as grounds for said motion state:

1. (a) That, as Negroes, they are members of the class 
on behalf of which this action was brought to obtain 
injunctive relief against the defendants County School 
Board of Fairfax County, Virginia, et al., to prohibit the



18

system of racial segregation in the public schools of Fair­
fax County, Virginia.

(b) That this cause came on for trial on September 8 
and 11, 1960, and thereafter the Court entered its Findings 
of Fact and Conclusions of Law on September 22, 1960, 
and an order in accordance therewith on November 1, 1960.

(c) That the order of the Court entered on November 1, 
1960, provided, among other things, that the cause be dis­
missed and struck from the docket. Thereafter, plaintiffs 
filed a timely motion pursuant to Rule 59, Federal Rules 
of Civil Procedure, seeking a rehearing on part of the 
issues and modification of the order of November 1, 1960, 
to provide that jurisdiction of the cause be retained by 
the Court.

(d) That while plaintiffs’ motion for rehearing on part 
of the issues and modification of the order was pending, 
the Court received for filing in this cause a motion by 
plaintiffs for further interlocutory and permanent in­
junctive relief by which motion the plaintiffs requested 
that the Court restrain the defendants from enforcing in 
public schools under their supervision and control any 
policy or regulation requiring racial segregation in inter­
scholastic sports and other school activities. As a result 
of subsequent recision by the defendants of the dis­
criminatory policy complained of, the plaintiffs thereafter 
moved to withdraw their motion for further injunctive 
relief. The plaintiffs’ motion to withdraw was granted 
by order of the Court dated April 14, 1961.

2. That notwithstanding the holding and admonitions in 
Brown v. Board of Education, 347 U.S. 483 and 349 U.S. 
294, and Cooper v. Aaron, 358 U.S. 1, and other controlling 
authorities, and notwithstanding the defendants’ obliga­
tion, noted by this Court in the Findings of Fact and Con-



19

elusions of Law dated September 22, 1960, “ to avoid 
discrimination for race or color,” the defendants, as a 
matter of policy, practice, custom or usage, continue to 
maintain and operate a bi-racial school system in which 
certain schools are designated for Negro children only 
and certain schools are designated for white children. As 
a matter of routine every child entering the Fairfax County 
school system for the first time, if Negro, is initially 
assigned to, and placed in, a school designated for Negro 
children, and every white child is initially assigned to, 
and placed in a school designated for white children.

3. That as a result of the circumstances described in 
paragraph 2 hereof, the pattern of segregated education 
in Fairfax County continues unaffected except in those 
instances in which individual Negroes have sought and 
obtained admission to a school designated for white 
children.

4. That on or before April 5, 1963, applications were 
made to the defendants that the infant intervenors be 
transferred from certain schools which none but Negroes 
attended, and that they be admitted to, and enrolled in, the 
schools to which they would be assigned if it were not 
for the fact that they are Negroes. It was thereafter 
made known to the parent or guardian of each infant 
intervenor that said intervenor’s application had been 
denied. An appeal from said determination was there­
after made on behalf of each infant intervenor to the 
defendant School Board and the Board conducted hearing 
at which each intervenor was represented by legal counsel. 
Notwithstanding the presentation by counsel of various 
arguments supporting the requested transfers, it was 
thereafter made known to the parent or guardian of each 
infant intervenor that said intervenor’s appeal had been 
denied.



20
5. That the schools to which the infant intervenors seek 

assignment, and to which they would, as a matter of 
routine, be assigned if they were white are as follows:
Glenda Blakeney 

Queen Ester Cox

Stratford Landing Elementary 
School

Stratford Landing Elementary 
School

Calvin Charles Jackson Herndon Elementary School 
Roland Wilson Smith, Jr. Pine Spring Elementary School 
Herrick Norman Smith Pine Spring Elementary School

6. That the refusal of the defendants to permit the 
infant intervenors to be admitted to, and enrolled in, the 
schools designated in paragraph 5 hereof is arbitrary, 
capricious and discriminatory, the purpose of the defend­
ants in limiting transfers of Negro children to schools 
which white children attend being to maintain a school or 
schools which none but Negroes attend and in which none 
but Negroes teach.

7. That but for the deliberate purpose of the defendants 
to avoid performance of their duty as mentioned in para­
graph 2 hereof, the intervenors would have no need to 
apply for attendance at the schools specified. But for 
the fact that they are Negroes, the intervenors would have 
been assigned as a matter of routine to the schools which 
they seek to attend.

8. That for reasons stated in paragraph 2 through 7 
hereof, and for reasons apparent upon the face of the 
Virginia Statute pertaining to Local Enrollment or Place­
ment of Pupils (Sections 22-232.18 through 22-232.31 of 
the Code of Virginia, 1950, as amended), the said statute 
does not provide an adequate remedy for the relief the 
intervenors seek.



21

9. That the refusal of the defendants to grant the 
requested assignments, viewed in the light of the refusal 
of the defendants to bring about the elimination of racial 
segregation in the public school system of Fairfax County 
constitutes a denial to the intervenors, and others similarly 
situated and affected, of due process of law and the equal 
protection of the laws secured by the Fourteenth Amend­
ment to the Constitution, as well as the rights secured by 
Title 42, United States Code, Section 1981.

10. That the intervenors, and others similarly situated 
and affected, are suffering irreparable injury and are 
threatened with irreparable injury in the future by reason 
of the policy, practice, custom, usage and actions herein 
complained of. They have no plain, adequate or complete 
remedy to redress the wrongs and illegal acts herein com­
plained of, other than by this Court’s granting injunctive 
relief. Any other remedy to which the intervenors and 
others similarly situated could be remitted would be 
attended by such uncertainties and delays as would deny 
substantial relief, would involve a multiplicity of suits, and 
would cause further irreparable injury and occasion 
damage, vexation and inconveniences.

W herefore, intervenors respectfully pray that the Court 
enter an interlocutory and permanent injunction:

(a) Restraining and enjoining the defendants, and each 
of them, their successors in office, and their agents and 
employees, from refusing to admit, enroll and educate 
forthwith the infant intervenors, and other children 
similarly situated, in the designated schools for which they 
have applied, or may apply, or in such other schools under 
the jurisdiction and control of the defendants for which 
said children are otherwise qualified and eligible for 
admission, enrollment and education, on the basis of the 
same standards and criteria applied in determining the



22

admission of all children in said schools, excluding any 
and all consideration of their race or color.

(b) Restraining and enjoining the defendants from 
making initial assignments of Negro children to schools 
which none hut Negroes attend.

Intervenors pray that this Court allow them their costs 
herein and reasonable attorneys’ fees, and grant such 
other and further relief as may he just and equitable in 
the premises.

/ s /  .........................................
Otto L. T ucker 

901 Princess Street 
Alexandria, Virginia

S. W. Tucker 
214 East Clay Street 
Richmond 19, Virginia

J ames M. Nabrit, III 
10 Columbus Circle 
New York 19, New York

Attorneys for Intervenors

Of Counsel:
Allison W. Brown, J r.

Suite 705
1000 Connecticut Avenue
Washington 6, D. C.



23

Affidavit

State of Virginia, ) .
City of Alexandria. 3

Otto L. Tucker, being duly sworn according to law, de­
poses and says as follows:

1. That he, in association with others, is attorney for the 
intervenors in the above-entitled cause.

2. That he is informed and believes that all of the allega­
tions of fact set forth in the motion in intervention for fur­
ther interlocutory and permanent relief herein are true.

/ s /  Otto L. T ucker

Subscribed and sworn to before me 
this day of 1963.

M ......................................................
Notary Public



24

[Filed 6/21/63]
IN  THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF VIRGINIA 

ALEXANDRIA DIVISION

Civil Action No. 1967
L awrence E dward Blackwell, P hyllis R osetta Black- 

well, and Donna Blackwell, infants, by Lillian S. 
Blackwell, their mother and next friend,
R.F.D. #2, Box 77, Vienna, Virginia,

R ayfield Barber, J r., Doris J eanette Barber, and L inda 
Monette Barber, infants, by Beatrice S. Barber, their 
mother and next friend,
610 Emmitt Drive, Alexandria, Virginia,

Bernice Lee and Solomon L ee, infants, by Constance Lee, 
their mother and next friend,
4202 First Street, Alexandria, Virginia,

R eginald W. L yles and Ronald L. L yles, infants, by Major 
W. Lyles, their father and next friend,
423 E. Boulevard Drive, Alexandria, Virginia,

Mary E llen Smith , P ierce A. Smith , and Sharon Smith , 
infants, by William P. Smith, their father and next 
friend,
1553 Lee Highway, Falls Church, Virginia

A utra W heeler, and K aren A. W heeler, infants, by Ethel 
Wheeler, their mother and next friend,
Route 4, Box 604, Annandale, Virginia,

W arren Brent Carter, infant, by Wyndell W. Carter, his 
father and next friend,
356 Lawyer Road, Box 151, Vienna, Virginia,

E thel Marie Brooks, W illiam Maurice Brooks, and 
P hoebe Ann Brooks, infants, by Ethel Brooks, their 
mother and next friend,
Route 5, Box 301, Vienna, Virginia,



25

Doris E. H unter, infant, by Evelyn Hunter, her mother 
and next friend,
Rte 5, Box 301, Vienna, Virginia,

Brenda E. Summers and Carlton T. Summers, infants, by 
Lillian J. Summers, their mother and next friend,
Rte 4, Box 595A, Annandale, Virginia,

Barbara Ann J ackson, infant, by Alfred Jackson, her 
father and next friend,
872B Quander Road, Alexandria, Virginia; and

L illian S. Blackwell, Beatrice S. B arber, Constance L ee, 
Major W. L yles, W illiam P. Smith , E thel W heeler, 
W yndell W. Carter, E thel Brooks, E velyn H unter, 
L illian J. Summers and Alfred J ackson,

Plaintiffs,
v.

F airfax County School Board, a body corporate, Fairfax, 
Virginia, and

E arl C. F underburk, Division Superintendent, Fairfax 
County Public Schools, Fairfax, Virginia,

Defendants.

Motion for Further Interlocutory and 
Permanent Injunctive Relief

The above-named plaintiffs respectfully move the Court 
to grant them and others of the class they represent fur­
ther necessary and proper relief as prayed herein, and as 
grounds for said motion state:

1. (a) That they are among the group of Negro plain­
tiffs in this class action which they brought on behalf of 
themselves and others similarly situated to obtain injunc­
tive relief against the defendants County School Board of 
Fairfax County, Virginia, et al., to prohibit the system of



2 6

racial segregation in the public schools of Fairfax County, 
Virginia.

(b) That the cause came on for trial on September 8 and 
11, 1960, and thereafter the Court entered its Findings of 
Fact and Conclusions of Law on September 22, 1960, and 
an order in accordance therewith on November 1, 1960.

(c) That the order of the Court entered on November 1, 
1960, provided, among other things that the cause be dis­
missed and struck from the docket. Thereafter, plaintiffs 
filed a timely motion pursuant to Rule 59, of the Federal 
Rules of Civil Procedure, seeking a rehearing on part of 
the issues and modification of the order of November 1, 
1960, to provide that jurisdiction of the cause be retained 
by the Court.

(d) That while plaintiffs’ motion for rehearing on part 
of the issues and modification of the order was pending, 
the Court received for filing in this cause a motion by plain­
tiffs for further interlocutory and permanent injunctive 
relief by which motion the plaintiffs requested that the 
Court restrain the defendants from enforcing in public 
schools under their supervision and control any policy or 
regulation requiring racial segregation in interscholastic 
sports or other school activities. As a result of subsequent 
rescision by the defendants of the discriminatory policy 
complained of, the plaintiffs thereafter moved to withdraw 
their motion for further injunctive relief. The plaintiffs’ 
motion to withdraw was granted by order of the Court 
dated April 14, 1961.

2. That notwithstanding the holding and admonitions in 
Brown v. Board of Education, 347 U.S. 483 and 349 U.S. 
294, and Cooper v. Aaron, 358 U.S. 1, and other controlling 
authorities, and notwithstanding the defendants’ obliga­
tion, noted by this Court in its Findings of Fact and Con­
clusions of Law dated September 22, 1960, “ to avoid dis­
crimination for race or color,” the defendants, as a matter



27

of policy, practice, custom or usage, continue to maintain 
and operate a bi-racial school system in which certain 
schools are designated for Negro children only and are 
staffed by Negro principals, teachers and administrative 
personnel, and certain schools are designated for white 
children and are staffed by white principals, teachers and 
administrative personnel. A dual set of school zone lines 
is also maintained. These lines are based solely upon race 
and color. One set of lines relates to the attendance areas 
for the Negro schools; these lines overlap the lines bound­
ing attendance areas for the white schools.

3. That the pattern of segregated education in Fairfax 
County continues unaffected except in those instances in 
which individual Negroes have sought and obtained admis­
sion to a school designated for white students.

4. That as a matter of routine, every white child enter­
ing the Fairfax County school system for the first time is 
initially assigned to, and placed in, a school designated for 
white children. Every white child, upon promotion from 
the highest grade in elementary school, is routinely as­
signed to an intermediate school designated for white 
children, and upon graduation from intermediate school 
every white child is routinely assigned to a high school 
designated as one for the education of white children.

5. That as a matter of routine, every Negro child enter­
ing the Fairfax County school system for the first time is 
initially assigned to, and placed in, a school which none but 
Negroes attend, and upon promotion from the highest 
grade in elementary school, such Negro child is routinely 
assigned to the Luther Jackson school, an all-Negro com­
bined intermediate and high school located in Fairfax 
County which is operated by, and under the supervision 
and control of, the defendants.

6. That to avoid the racially discriminatory result of the 
practice described in the two paragraphs next preceding,



28

a Negro child’s parent, guardian or other person having 
custody of the child is required to make application for 
transfer of the child from the school which none but Ne­
groes attend to a school specifically named. Such assign­
ment application must be made on a specially prepared 
form which can only be obtained upon specific request at 
the administrative offices of the defendant School Board, 
Fairfax, Virginia. This special application form, a copy 
of which is attached hereto as Exhibit “ A”, requires in­
formation to be supplied concerning Negro children, such 
as the reason why the specific assignment is sought, the 
child’s aptitudes, its handicaps or disabilities, as well as 
other matters. Since such information is not required 
from white children assigned to the same school to which 
the Negro child seeks assignment, the application form is 
in itself inherently discriminatory.

(b) That the application to transfer a Negro child out 
of an all-Negro school must be filed at a particular time of 
the year—the deadline, except in the case of new residents 
in the County and certain others, being April 5 preceding 
the school year to which the placement requested is to be 
applicable. Neither this unnecessarily early deadline nor 
the procedure for transferring out of Negro schools has 
been specially publicized by the defendants. Each year 
there are Negro families that apply, after the April 5 dead­
line, to transfer their children out of the all-Negro schools, 
but the defendants, as a matter of course, deny such ap­
plications.

(c) That in each of the three years that the foregoing 
transfer procedure has been in effect in Fairfax County, 
certain of the applications on behalf of Negro children to 
transfer from all-Negro schools have been initially turned 
down, with the result that the parent, guardian or other 
person having custody of such child, who seeks reversal of 
such initial determination, has been required to pursue an 
appeal procedure as set forth in Section 22-232.21, Code of 
Virginia of 1950, as amended. The nature of this appeal



29

procedure is such, that the Negro families pursuing this 
remedy have in virtually every instance felt the need to 
engage the services of legal counsel to represent their in­
terests before the defendant School Board.

7. That the assignment and transfer procedures de­
scribed in paragraph 6 and its subparagraphs do not sat­
isfy the Due Process and Equal Protection requirements 
of the Fourteenth Amendment to the Constitution, for by 
reason of the existing segregation pattern it is Negro 
children, primarily, who seek transfers and they are thus 
subjected to administrative burdens and inconveniences 
not experienced by white children.

8. That the plaintiffs and members of their class are 
injured by the defendants ’ policy, practice, custom or usage 
of assigning principals, teachers and administrative per­
sonnel on the basis of the race or color of the person as­
signed, and that such policy, practice, custom or usage 
violates the right of plaintiffs and members of their class, 
arising under the Due Process and Equal Protection clauses 
of the Constitution, with respect to the public school system 
of which they are a part to have that system operated on 
a non-racial basis.

9. That the defendants ’ policy, practice, custom or usage 
of continuing to operate a bi-racial school system consti­
tutes a denial to the plaintiffs and members of their class 
of due process of law and the equal protection of the laws 
secured by the Fourteenth Amendment to the Constitution, 
as well as the rights secured by Title 42, United States 
Code, Section 1981.

10. That the plaintiffs and members of their class are 
suffering irreparable injury and are threatened with ir­
reparable injury in the future by reason of the policy, 
practice, custom, usage and actions herein complained of. 
They have no plain, adequate or complete remedy to re­
dress the wrongs and illegal acts herein complained of, 
other than by this Court’s granting injunctive relief. Any



30

other remedy to which the plaintiffs and members of their 
class could he remitted would he attended by such uncer­
tainties and delays as would deny substantial relief, would 
involve a multiplicity of suits, and would cause further 
irreparable injury and occasion damage, vexation and in­
conveniences.

W herefore, plaintiffs respectfully pray that this Court 
enter an interlocutory and permanent injunction:

(a) Restraining and enjoining the defendants, and each 
of them, their successors in office, and their agents and em­
ployees (1 ) from any and all action that regulates or af­
fects, on the basis of race or color, the initial assignment, 
the placement, the transfer, the admission, the enrollment 
or the education of any child to and in any public school 
under the defendants’ supervision and control; (2) from 
using any separate racial attendance area maps or zones 
or their equivalent in determining the placement of chil­
dren in schools; (3) from requiring any applicants for 
transfer from Negro to white schools to submit to any 
futile, burdensome, or discriminatory administrative pro­
cedures in order to obtain such transfers, including (but 
not limited to) the use of any criteria or standards for de­
termining such requests which are not generally and uni­
formly used in assigning all pupils, as well as the require­
ment of administrative hearings or other procedures not 
uniformly applied in assigning pupils; (4) from employing 
or assigning principals, teachers or other school personnel 
on the basis of the race or color of the person employed or 
assigned, or on the basis of the race or color of the pupils 
attending the school to which such person is assigned.

(b) Restraining and enjoining the defendants, and each 
of them, their successors in office, and their agents and em­
ployees, from operating a hi-racial school system.

Plaintiffs pray that this Court allow them their costs 
herein and reasonable attorneys’ fees, and grant such other



31

and further relief as may be just and equitable in the 
premises.

/ s /  Otto L. T ucker
901 Princess Street 
Alexandria, Virginia

Of Counsel:

S. W. T ucker 
214 East Clay Street 
Richmond 19, Virginia

J ames E. Nabrit, III 
10 Columbus Circle 
New York 19, N. Y.

Attorneys for Plaintiffs

Aluisox W. Browx, J r. 
Suite 705
1000 Connecticut Avenue 
Washington 6, D. C.

Affidavit

State of Virginia, } .
City of Alexandria. )

Otto L. Tucker, being duly sworn according to law, de­
poses and says as follows:

1. That he, in association with others, is attorney for the 
plaintiffs in the above-entitled cause.

2. That he is informed and believes that all of the allega­
tions of fact set forth in the motion for further inter­
locutory and permanent relief herein are true.

/ s /  Otto L. Tucker

Subscribed and sworn to before me 
this 21st day June 1963.

N  ........................................
Notary Public



32

Exhibit "A"

PUPIL PLACEMENT APPLICATION
I, the undersigned as .........................................................

(Insert relation, such as parent, legal guardian, etc.) 
of the child named below, request that the child named in
this application be placed in the ....................grade of the
.......................  School, ............................... County, City,
or Town for th e .................................. school session.
Pull Name of Child: ...........................................................

First Middle Last
Address: ...............................................................................

(Street or R.F.D. Number)
Post office .............................................................................
S e x :.........Race: ...........Year and Date of Birth* : ...........
Place of Birth: ....................................................................
Total number of years child has attended school (including
present year): ......................................................................
Name and address of school attended by child previous
year: .................................................................... ...............
...................................................... Grade: .........................
Name and address of school child is attending this year:
...................................................... Grade: .........................
Physical or mental handicaps or disabilities: .....................
Reason(s) for this request:................................................

Particular aptitudes:

Name and location of school or schools in Virginia in which 
other children for whom I am legally responsible are en­
rolled : .................................................................................



33

The foregoing is certified on oath or affirmation to he 
true and complete.

Signed: .......................................................
(Name of Parent, Guardian or Custodian)

Street or P.O. A ddress..............................
City, Town, and S ta te ................................

Date: ..............................

*A birth certificate or photostatic copy thereof shall be 
attached to this application if the pupil:

(1) Has moved to Virginia from another state,
(2) has moved from another county or City within the 

State,
(3) has not previously been enrolled in any school 

(those entering first grade).

INFORMATION REQUESTED BY THE 
LOCAL SCHOOL BOARD

Principal’s Recommendation. (Optional at the discretion 
of the local school board)
In my judgement, the transfer and/or placement o f .........
..................................  to (in) the .....................................

(name of child)
School would be ..................................... in his (her) best

Would not b e ................................
educational interest.
Date: .....................
Name of School . . .

Signed:
Principal

School Address



34

Action taken by the school board or its agent and reason(s) 
therefor

(Date on which official placement is made)
School Board of

(County or City)
By:

Motion io Dismiss Motion to Intervene

Without admitting the right of the applicants to inter­
vene in this cause, the defendant, Fairfax County School 
Board, moves the Court to dismiss the motion to intervene 
filed by Glenda Blakeney, et al, on the following grounds:

That at a meeting of the Fairfax County School Board 
held on July 1, 1963, a resolution was adopted rescinding 
the action of the Board previously taken with respect to the 
applications of Glenda Blackeney, et al, and at the same 
time granting the applications of the following named 
children to attend the schools indicated:

Glenda Blakeney—Stratford Landing Elementary School
Queen Esther Cox—Stratford Landing Elementary 

School
Calvin Charles Jackson—Herndon Elementary School
Roland Wilson Smith, Jr.-—Pine Spring Elementary 

School
Derrick Norman Smith—Pine Spring Elementary School
A copy of said resolution is hereto attached and prayed 

to be read as a part hereof.
J ames K eith 

Attorney for Defendant 
200 South Payne Street 
Fairfax, Virginia



35

OFFICE OF
FAIRFAX COUNTY SCHOOL BOARD

400 Jones Street
FAIRFAX, VIRGINIA

E. C. FUNDERBURK, DIVISION SUPERINTENDENT 
W. CLEMENT JACOBS, CLERK

July 2, 1963
Mr. James Keith 
Pickett, Keith & Mackall 
200 South Payne Street 
Fairfax, Virginia
Dear Mr. Keith:

Following is action of the Fairfax County School Board 
at its meeting of July 1, 1963, with respect to pupil 
placements:

“ Mr. Clark moved that the Board publicly reaffirm its 
action of June 24, 1963, by which it rescinded its May 20 
denial of placement appeals on behalf of five negro students, 
on advice of its attorney that the School Board was in an 
indefensible position in the suit filed by the appellants in 
protest of original assignments, thereby permitting attend­
ance of these five applicants at schools as follows, in lieu 
of previous assignments to negro schools:

Glenda Blakeney—Stratford Landing Elem.
Queen Ester Cox— Stratford Landing Elem.
Roland Wilson Smith, Jr.—Pine Spring Elem.
Derrick Norman Smith—Pine Spring Elem.
Calvin Charles Jackson—Herndon Elem.

“ Mrs. Lahr seconded the motion and it carried by vote of 
three in favor (Mrs. Gertwagen, Mr. Clark and Mrs. Lahr) 
and two against (Messrs. Hoofnagle and Futch), the Chair­
man abstaining from voting.”

X hereby certify that the foregoing is a true and accurate 
excerpt from the minutes of a meeting of the Fairfax



36

County School Board on July 1, 1963, in its Administration 
Building.

W. Clement J acobs 
W. Clement Jacobs, Clerk, County 

School Board of Fairfax County, 
st Virginia

Motion to Dismiss

The defendants move the Court as follows:
1) To dismiss the motion for further interlocutory and 

permanent injunctive relief filed by the attorneys for the 
plaintiffs on July 21, 1963, because there has been entered 
in this cause a final order or decree which ordered that 
“ this action be . . . stricken from the docket,” which order 
or decree was entered on November 1,1960, and which order 
has not been amended in any form or fashion by the Court.

2) To dismiss said motion on the ground that this Court 
is without jurisdiction to hear the same because a final 
order was entered in this cause on November 1, 1960.

3) To dismiss said motion because it constitutes an 
amendment of plaintiffs ’ pleadings and is not done by leave 
of Court as required by Rule 15.

4) To dismiss said motion because it undertakes to raise 
issues already raised in the former proceedings in this cause 
and already decided by the order or decree of November 
1, 1960.

J ames K eith 
James Keith 

Attorney for Defendants 
200 South Payne Street 
Fairfax, Virginia



37

Excerpts from Transcript of Proceedings

2 IN  THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Civil Action No. 3067 
Glenda Blakeney, infant, et al., Plaintiff, 

v.
F airfax County School Board, et al., Defendants.

Before United States District Judge 
H on. Oren R. Lewis

September 12, 1963
Appearances:

Otto L. Tucker, E sq.
S. W. Tucker, E sq., and 
Allison W. Brown, J r., E sq.,

For the Plaintiff.
J ames K eith , E sq.,

For the Defendants.

3 George H. Pope

called as a witness in behalf of the plaintiff, and having 
first been duly sworn, was examined and testified as fol­
lows :

Direct Examination
By Mr. S. W. Tucker:

Q. Will you state your name and official position? A. I 
am George H. Pope. I am Associate Superintendent of 
the schools in Fairfax County. 
* * * * * * * * * *  
5 Q. Will you tell us how many schools remain in

Fairfax County, speaking about public schools in 
the school system— A. Yes, sir.



Q. —identifying them by name, if you can, which are 
peculiar in that none but negroes attend those schools and 
none but negroes may teach in those schools, in other 
words, what I am trying to find out is how many and 
what are the negro schools in Fairfax County. A. Oh, 
there are presently 7 schools attended entirely by pupils 
of the colored race.

Q. And, I believe, one of those is the Luther Jackson 
School? A. That is true.

Q. That is a combination school, running all grades from 
1 through 12? A. No, sir. That is a combination junior 
and senior high school, with two classes for retarded chil­

dren assigned there. They do not run the gamut of
6 grades 1 through 12.

Q. And the other six schools that you mentioned 
in this category are elementary schools, then? A. That is 
true.

Q. I want to ask you, with reference to the Luther 
Jackson Junior and Senior High School, if you may call it 
that—■ A. Officially, it is an Intermediate and Senior High 
School. We use the word, intermediate school, rather than 
a junior high school, for grades 7 and 8.

7 Q. All right. So that, as far as the County 
Schools are concerned, the only elementary schools which 
feed the Jackson Intermediate and Senior School are these 
six schools which we have identified as being peculiar in 
that none but negroses attend or teach there? A. That has 
been the case up to this point.

Q. Now, as to the children who attend these seven 
schools which we are identifying now as negro schools, 
do they ride in separate school buses from other children 
in the county? A. Well, if your—

Q. What I want to know is whether these children who 
attend these all negro schools ride special buses that serve 
those schools only, or whether they ride buses with other 
children in the county. A. In the regular term, they ride



39

buses that serve those schools only because that is the 
way we assign all of our buses, to specific schools.

Q. All right. So that it results, then, that these
8 six elementary schools and the Luther Jackson Inter­

mediate and Senior School and the buses that serve
those schools are used and operated by negroes? A. They 
are attended—

Q. Excuse me. A. —by negro pupils.
Q. Exclusively? A. They are staffed by negro staffs.
Q. Now, can you tell us, approximately, how many chil­

dren attend those seven schools? A. If you bear with me 
just a moment, sir.

Q. If you have had the figures for the schools separate, 
we would probably rather have it that way. A. 2101 of 
them. 2101 pupils attending those schools.

Q. Approximately how many pupils do you have in the 
entire school system? A. 80,558. Of the number that I 
gave you of 2101, that does not include all negro pupils in 
the county. Maybe your question was, attending those 
seven schools?

Q. That is correct. A. I have 428 more.
Q. There are 428 negro children attending schools with 

white children? A. Yes, sir.
# * # # # * * # * *

9 Q. Now, with reference to your school system, 
generally, and I am speaking now with reference to

white children, what is your system by which a child knows 
where he attends school? A. Well, we have general attend­
ance areas, not too well defined, in our county because of 
our tremendous growth, recognizing that we have over 
7600 more pupils now than we had when the schools closed 
last June, so, in that situation, it is impossible to define for 
one and for all time school attendance areas because they 
shift even from, certainly from year to year and some­
times from month to month because of opening of new sub­
divisions and relocation of people and new persons moving 
into areas where before there were no residents of school



40

age. So we have a general consensus, general understand­
ing, of the service area of each of our schools consistent 
with the capacity of each of the schools. And it doesn’t, 
necessarily, mean that it always serves all pupils nearest 
to it because we have one school, say, of 25 class rooms 
and another of 10. Obviously, the 25 class room school can 
reach farther out from it with its service area than can the 
small one.

Q. So, even though the lines may shift from time to time, 
at any given time, it is possible to define a geo-

10 graphic area and relate that area to each of your 
elementary schools? A. For practical purposes, that

is true.
Q. The same thing would be true with reference to your 

intermediate schools? A. Yes, sir.
Q. And the same thing would be true with reference to 

your senior high schools? A. Yes, sir. I think, at that 
point, there is probably a little more information than just 
yes or no—

Q. All right. A. -—because I think it is related, if you 
please, to a statement that I just made, for practical pur­
poses this is true. These are not completely and totally 
and perfectly binding. We do have a great deal of latitude 
on the part of individuals within the framework of law 
to move from one school to another, as they have done, 
even with these 428 colored pupils I referred to a moment 
ago.

Q. But, as a general rule, with the exceptions that you 
have mentioned allowed for, a white child’s school attend­
ance is determined by the location of his home? A. Yes, 
sir.

Q. All right. Now, as to these six elementary schools 
that we have identified as negro schools, do they have 

attendance areas? A. In part, with particular ref-
11 erence where there are concentrations of pupils 

around a school. There are a few of these six ele­
mentary schools that we have described as serving all 
colored pupils that exist right in a community that is pre-



41

dominantly negro community. That particular community 
has not been zoned into any other type of school.

Q. But, that particular community, so far as the land 
area is concerned, would be contained within one of the 
areas for the white schools, would it not? A. No. That is 
what I just said. Where there is this defined negro com­
munity with a school existing in it, we have not zoned that 
in. I don’t think, anywhere, would you find that that has 
been zoned into one of the white elementary communities 
that you were describing earlier.

Q. In other words, if we had an elementary school map 
showing the zones of each school, you are saying that the 
negro community would be isolated from the zones for the 
white elementary schools? A. I said that part of it right 
around the school, recognizing that there are negro pupils 
who live outside of those communities, and they are not 
zoned on any map that I know anything about into the 
school community of that particular school.

Q. All right. Now, as to those negro pupils who live 
outside of those specific communities, are they, initially, 

assigned to the school serving the zone in which they 
12 live, and I mean by that the school which white 

children attend which serves the zone in which they 
live? A. Are initially assigned?

Q. Initially assigned to that school or initially assigned 
to the nearest negro school. A. The initial assignment you 
are referring to, the first time they come to school, two 
things can happen there. It depends altogether where they 
seek admission or where they come to register for a school. 
Now, I am talking about initial assignment, rather than 
transfers. Now, we have just—I was going to say dozens— 
I wouldn’t be sure that that would be just right, but numer­
ous instances where colored pupils, negro pupils living 
in an area that is served predominantly by white schools 
have gone directly to white schools to register and attend 
there now without ever having been in a negro school, with­
out ever having been placed in a negro school to apply out.

Q. "Well, under your regulations—



42

The Court: Just a minute. So I have it perfectly correct, 
a colored eligible student living in Fairfax County in an 
area which would be within, what we will say, at least 
tentative physical boundaries for white school A, as it is 
called, and he goes to school for the first time, do I under­
stand that if he, through his parents, of course, goes to 

the school nearest his home, which happens to be a 
13 white school, and he applies for admission, that he 

is admitted without question?
The Witness: He is admitted there if that is his desire 

in terms now with the assignment law that we are follow­
ing in Virginia at the moment. That is true.

The Court: What do you mean, “ within terms of the 
assignment law ’ ’ that you are applying, so I understand it ?

The Witness: We are operating under a local assign­
ment law at the moment in Fairfax County, as opposed to 
the—

The Court: Pupil Placement Law?
The Witness: Pupil Placement Law.

28 Q. Let’s take a child in the 3rd or 4th grade, 
a negro child, who is attending one of these negro

schools. The child’s mother wants the child to attend the 
school where his white neighbor attends. A. The school 
that is near him?

Q. Whichever one his white next-door neighbor attends. 
A. Talking about Point No. 2?

29 Q. Point No. 2, yes, sir. I want to know what 
are the criteria for that transfer? A. He would

automatically go into it on his request, unless he was going 
into a program of special education for retarded which 
doesn’t exist there. You said, normal.

31 Q. Am I understanding, from what you are saying 
now, that these rules, apparently, promulgated by the

32 School Board on March 19, 1963, resulted from the 
applications of these interveners? A. And others



43

like—Simply because it was brought before the Board. 
All of these applications brought before the Board two 
questions. One was, and this is a transfer business rather 
than initial assignment; they were requesting transfer in 
some instances to a desegregated school farther from their 
homes, their place of residence, and that was taken care of 
in Item 2—I am sorry—requesting desegregation, request­
ing assignment to desegregated schools farther from their 
place of residence. That was taken care of in Item No. 
3. Others requested assignment to desegregated schools 
closer to place of residence than the school they had been 
attending. That is taken care of in Item 2 of this plan. 
# # # # # # # # # *
37 Q. That is that the negro child is in the negro 

school, he is fed into Luther Jackson? A. Unless 
he requests—

Q. Unless he requests? A. —differently. If he lets it 
be known that he wants to do something different, then he 
comes under No. 2, you see.

Q. And he is fed into Luther Jackson regardless as to 
what part of the county he lives in? A. Unless he ex­
presses a desire differently, and then it comes under No. 2.

Q. But with every white child who goes to the intermedi­
ate or senior high school, he goes according to the zone in 
which he lives? A. Yes, sir, generally. 
# # # # # * * # # *  
40 The Court: Mr. Tucker, let’s see if we can get 

at it specifically.
If I am a colored child and I moved into Fairfax this 

September, I went to school for the first time and I 
lived in what we will call a comingled section, that is not a 
solid colored community adjacent to an elementary school, 
and I wanted to go to school, could I enroll at the school 
nearest me if it was desegregated, as distinguished from 
the colored, and did I go in automatically this year?

The Witness: The answer is yes, sir,—



44

The Court: All right.
The Witness: —because our Point No. 2—
The Court: If I am in school and had been in elementary 

school for four years, already been there for four years, 
and I lived next door to this boy who just came in and en­
rolled in this integrated school in a comingled district, as 
I call it, and I want to go to that school, can I go and 
register and just go in, or do I have to be transferred?

The Witness: You will have to be transferred because 
the state law, the Pupil Placement Law under which we 

operate, calls for a transfer and sets forth—
41 The Court: But the transfer is automatic?

The Witness: Well, there are certain legal stip­
ulations in the law.

The Court: Other than the standard procedure of filing 
an application?

The Witness: Yes. If he meets all the other require­
ments, Point No. 2—

The Court: Then becomes automatic. All right.
The Witness: Point No. 2 applies there.

By Mr. Tucker:
Q. Let me see how automatic this transfer is. I suppose 

I have to have a form to make the application on ? A. That 
is the easiest way. The Pupil Placement Law we operate 
under says on forms supplied by the State Board of Edu­
cation or approved by the State Board of Education.

Q. How do I get the form? A. It can be obtained from 
our system.

Q. I have to come to the School Board’s office to get it? 
A. You don’t have to come. You can telephone. You 
can mail, or you can come, whichever.

Q. The only place I can get such a form is at the School 
Board office? A. Basically, yes, sir.

Q. When I fill out the form, what information is
42 called for? A. Well, the age of the child, the person, 

identification of the person who is making the ap-



45

plication in behalf of the child, the school formerly at­
tended, the grade placement. There is a place on it asking 
for the reason for this particular assignment because there 
may be all kinds of reasons, and in order to take a 
specialized language course or in order to take a vocational 
course or in order to attend a desegregated school, what­
ever the reason.

Q. I want to fill out the form. Am I required to return 
it to the superintendent’s office, or mail it, or just what 
do I do with it? A. It comes to the superintendent’s office, 
to me.

Q. I can send it by mail! A. By mail, courier, or 
bring it.

Q. When you go over the form—When you go over the 
form, and assuming that you do not grant the application 
for transfer, what is my next step? A. Well, again, when I 
go over it, I  would apply these criteria. Now, again, since 
this was adopted, there hasn’t been one that hasn’t been 
granted.

Q. All right. If you should not grant one, then it would 
be required to appeal to the School Board? A. The 
statute under which we operate does provide that if you 

feel aggrieved by the action of placement, that you
43 may appeal that action to the School Board.

44 Q. Now, this system that we have just been dis­
cussing which results from these regulations that

the Board adopted on March 19, 1963, will you state in 
what way notice of these regulations and of this new system 
has been given to the public? A. I don’t think I can tell 
you, other than that they were adopted in open meeting 
attended by the press.

Q. But the School Board has made no effort to see to 
it that people know what was adopted in their meeting? 
A. Well, I think the Chairman of the Board ought to 
answer that particular question rather than an administra­
tive officer.

Q. Do you know of any effort made by the School Board? 
A. No, I  don’t know what they have done as individuals.



46

I pointed out, as far as I know, the distribution of this 
information was through the press media, the press attend­
ing the official Board meeting that was open, and reporting.

Q. That is news stories that the reporters 
45 themselves wrote on their own initiative? A. That 

is right.
Q. But you are not aware of any publication of this 

matter that was made by or at the direction of the School 
Board? A. Other than that we included it in a press re­
lease which we made available to the press and they could 
use or not use, as they saw fit. 
# # * * # # # # # #

Cross Examination 
By Mr. Keith:

47 Q. Out of a total of how many schools in the 
system? A. I believe 110, sir.

48 Q. Bo you know why we have the requirement that 
the initiative for transfer is on the part of the negro

student? A. Well, there is a time-honored practice, and I 
think this has a statutory background, within the frame­
work of the Virginia Pupil Placement Board, the same 
philosophy being written into the local placement assign­
ment, that once a pupil is assigned to a school, he stands 
there until graduation therefrom, or until reassigned for 
just cause, and the just cause might be through building 
a new school or assigning him to a program that exists in 
one school but not where he has been attending, but, 
basically, it is that he stays there until he is assigned for 
a just cause or graduates from it.

.Y. -Y- -V' -)/- -V- AT- -Y- -V- -Y-

50 Re-direct Examination 
By Mr. Tucker:

Q. I think, at the beginning, Mr. Pope, we directed your 
attention to the intervenors in this case, and, I think, you 
said you were familiar with their cases? A. Yes, sir.



47

Q. Now, in each of these cases they filed with your 
office this application for transfer on the form that was— 
A. Yes, sir.

Q. —obtained from yonr office? A. Yes, sir.
Q. They filled the form out adequately? A. Yes. I 

think it was determined that the applications were timely 
and appropriate.

Q. Including stating a reason for the requested
51 transfer? A. I don’t have the forms here, but it was 

my understanding there was nothing wrong with
the applications.
* * # * # # # # # #

52 Q. But, with respect to these intervenors, it was 
your view that you still had no authority to act with

respect to them? A. Sir, not just my view. I determined 
completely that they lived closer to the negro school they 
had been attending than they did to the white school or 
desegregated school they had been applying to, then Point 
No. 3 automatically took it to the School Board.

Q. Then, upon their appeal to the School Board, were 
you present at the time of the presentation of that? A. 

Yes, sir.
53 Q. The parents appeared before the School Board? 

A. Well, I don’t know,—
Q. Did an attorney for them appear before the School 

Board? A. On at least one accasion, I am sure, there was 
one time. The School Board considered these matters 
when there was no attorney present.

Q. Wait a minute. You said something about at least 
one occasion. Did I understand that on at least one occa­
sion an attorney did appear in their behalf? A. That is 
my recollection, and, again, it might be better if you directed 
this to the Chairman of the Board, because I am speaking 
entirely as an observer at that.

Q. The School Board denied their applications for 
transfer? A. Initially. Later, they did not deny it. Later, 
the School Board withdrew or cancelled out its rejection, 
and they are assigned now to the schools. 
# # # # # # # # # #



48

58 Eugene L. Newman

was called as a witness for and on behalf of the plaintiffs, 
and having first been duly sworn, was examined and 
testified as follows:

Direct Examination
By Mr. Brown:

Q. "Will yon state your name for the record, please! 
A. Eugene L. Newman.

Q. And your connection with the Fairfax County
59 School System? A. I am Chairman of the Fairfax 

County School Board.

60 Q. Mr. Pope has given us some figures, some 
statistics on the number of negro and white children

in this Fairfax County School System. Could you tell us, 
Mr. Newman, how many—Strike that, please. He has also 
indicated that negro schools, as such, are staffed entirely 
by negro teachers and administrative people. Can you tell 
us how many negro teachers there are in the Fairfax School 
System? A. Approximately 100.

Q. Approximately 100? A. I do not have knowledge of 
the exact amount.

Q. Can you tell me how many class room teachers there 
are, in total, in the Fairfax School System? A. Approxi­
mately 3500.

Q. Do any negro teachers teach in white schools? A. 
Not to my knowledge.

Q. Can you tell me, Mr. Newman, what the enrollment 
of pupils in the Fairfax County School System was as of 
a year ago? To clarify, Mr. Pope has indicated that it is 
now 80,000. Can you tell me what it was a year ago? A. 
Approximately 70,000 a year ago.

Q. The increase in the period of a year, then, has been 
by 10,000 pupils, is that correct? A. Approximately, yes. 
# # # # # # # * # #



49

68 Q. Now, let’s take the converse of that. Where 
the negro child and the white child lived closer to

the negro school than to the white school, what school are 
they each assigned to! A. The white child goes to the 
nearest white school; the negro child goes to the nearest 
colored school.

Q. That was true, or is that true today! A. This falls 
under Point 3, where the negro student requesting transfer 
to a white or desegrated school farther from his place of 
residence shall he referred to the School Board for action. 
This is a freedom of choice of where the child desires to go.

Q. What procedure must the negro child go through in 
order to make known his desire to attend the white school 
that is more distance from his home than the negro school! 
A. On an initial assignment?

Q. On an initial assignment. A. He would have to make 
application to the Pupil Placement Officer.

Q. And then, I take it, that under Point 3 that appli­
cation would be referred to the Board? A. That is 

correct.
69 Q. What procedure must be followed by the white 

child who lives closer to the negro school than a
white school in order for him to obtain assignment to the 
white school? A. He would apply to the nearest white 
school.

Q. Who would receive his application? A. The principal. 
Q. Who would decide whether he would go to that school? 

A. The ultimate authority would rest with Mr. Pope, as 
Pupil Placement Officer.

Q. Who would make the decision as to whether he could 
attend that school? A. I am not familiar with the work­
ings with regard to whether the principal has been dele­
gated this authority by Mr. Pope, or whether it must come 
to Mr. Pope for the ultimate responsibility.

Q. So, I  take it from your answer that you don’t know 
who decides whether the white child can attend the white 
school that is more distant from his home than the negro



50

school? A. This is handled by the school staff adminis­
tration.
# # # * * # # # * #

89 Q. Mr. Newman, the record is established that 
Fairfax County operates a dual school system, con­

sisting of white and negro schools and a set of so-called 
desegrated schools. Will you please tell me, and tell the 
Court, if the School Board presently has a plan or pro­
cedures that are now in effect by which it intends, which 
will accomplish, I  should say, the elimination of the dual 
school system. I  can re-phrase that. I am sorry, I got it 
a little mixed. If you want me to re-word it, I  will. A.

No, I  understand the question. We have in effect
90 this policy of March 19, which, in my opinion, ulti­

mately would do away with a dual system, at least
lead toward doing away with one.

Q. I  didn’t quite hear you. A. It would, at least, lead 
toward doing away with a dual system.

Q. When? A. I  cannot say on that; it would depend on 
the negroes. They would set their own speed of this. 
# * # # # # # # # #  
102 George H. Pope

recalled as a witness, having previously been duly sworn, 
was examined and testified as follows:

Direct Examination (Continued)
By Mr. Tucker:

Q. Mr. Pope, while the previous witness was on the 
stand, a question was directed to you from the Court, and 
I believe it had reference to the theoretical situation of a 
white and negro child in the neighborhood of Vienna living 
closer to the Louise Archer School, which is the negro 
school, than to the Flint Hill School. I  want to ask you, 
as far as the initial enrollment in that situation is con­
cerned, what does the white child have to do to attend Flint 
Hill School? A. Well, he has to register for school at-



51

tendance, which is applying for enrollment in the school 
system.
* * * # * # * # # *
103 The Court: —This child is conceded, hypothet­

ically, to live closer to the colored school than the
white school. Does he have to apply to the colored school 
when he first attends?

The Witness: No, sir.
# * # # # * # # * *
104 The Court: Then, if he attends the nearest white 

school, and that is the nearest white school, he is
automatically let in that school, is that right?

The Witness: If he is in the attendance area of that 
school, yes, sir.
* > # # # # # # # * #
105 Q. My question is assuming that both these child­

ren lived within the attendance area of the Flint Hill
School, but both of them lived geographically closer to the 
Louise Archer School than to the Flint Hill School—Now, 
my question is, what does the white child have to do to 
be enrolled in the Flint Hill School? A. Just goes up and 

enrolls.
106 The Court: Automatically, he says, by applying. 

The Witness: Automatically.
By Mr. Tucker:

Q. What would the colored child have to do to enroll in 
Flint Hill School under those circumstances? A. He can 
go up and apply for enrollment, and then we put No. 3 
item of our procedure into operation and we bring that to 
the School Board.

The Court: All right. Let me ask you, why do you call 
the case of the colored child a transfer, as distinguished 
from an initial application?

The Witness: Is that to me, sir?
The Court: Yes.



52

The Witness: My testimony—
The Court: No. 3 applies to transfers.
The Witness: My testimony this morning, sir, is that it 

is our understanding and our procedure, the statute, the 
local assignment statute, says that subsequent to a certain 
date by which transfers are effected, initial assignments 
subsequent to that date shall be in the same manner. Now, 
that is counsel’s instruction to me.

The Court: What!
The Witness: In the same manner as these trans- 

107 fers are handled.
The Court: Why do you have a distinction be­

tween the initial assignment of the colored child and the 
white child? What is the basis for allowing you to have 
that distinction?

The Witness: Again, the basis there for us to do it 
would be this procedure that the School Board has stated. 
They have asked for a transfer.

The Court: He hasn’t asked for a transfer if he never 
attended the school. He has not attended.

The Witness: I  realize that.
The Court: He just moved into the county and he wants 

to go to the other school.
The Witness: Well, again,—
The Court: That is not a transfer.
The Witness: I know. Our understanding of the statute 

is that in this particular case, the initial assignment has to 
be handled the same as if it were a transfer.
* * # * # # # # * #  
115 Q. Approximately how many intermediate schools 

do you have throughout the county? A. Thirteen, 
I believe, sir.

Q. I suppose they are generally distributed throughout 
the county? A. Yes, sir.

Q. How many senior schools do you have? A. High 
schools, fifteen.

Q. Yes? A. Fifteen.



53

Q. I suppose they are generally distributed throughout 
the county? A. Yes.

Q. The Luther P. Jackson School is near, at or near, 
somewhere near the center of the county? A. Generally 
near the geographic center of the county, yes, sir.

Q. These six elementary schools that feed children 
116 into Luther Jackson School are generally scattered 

throughout the county? A. Yes, and in accordance 
with the distribution of the major portion of the negro 
population.

118 Q. Before this meeting of March 19 of the School 
Board, at which these present guide lines were set

up which we have been referring to all day, you had a 
policy by which applications on the part of negroes to 
enter white or desegrated schools had to be filed on or 
before April 5, did you not? A. That is statutory in Vir­
ginia, see, that is in the local pupil placement law for 
transfers.

Q. For transfers? A. Yes, sir.
Q. And you still, then, I  take it, adhere to that require­

ment that an application for transfer must be made by 
April 5? A. That is true, unless there has been a change 
of residence or one of those special programs that I had 
talked about earlier being set up in a school different from 
the one that the youngster is in. This is statutory, where 

the requirement—and you can read it very clearly—
119 that if a pupil is attending one school and desires to 

attend a school different from that one, the statute
provides he must make that application by April 5 and 
that the School Board must act upon it within 10 days. 
# # # * # # # # # #
125 All right. You tell me how you can intervene in 

a suit that is non-existent. I will be glad to hear 
from you, Mr. Brown.



54

Mr. Brown: Your Honor, may I say, first, that we would 
have no objection to the proceeding that has been 

126 heard today being docketed as a new one.
The Court: I know you do not have any objection, 

but you are not the one that has to agree to that.
I  want you to tell me. It is your suit. On what legal 

theory can you intervene in a suit that you know is non­
existent, having been dismissed?

Mr. Brown: Sir, we have two motions. One was a mo­
tion to intervene, but the motion that we have been talking 
about with more particularity through the day is this mo­
tion for further interlocutory and permanent injunctive 
relief which has been brought by the previous plaintiffs 
in the case.

The Court: That suit is dismissed.
Mr. Brown: To that, sir, I would like to explain this. 

That order dismissing it or striking it from the docket 
was entered on November 1, I960; within 10 days there­
after the plaintiffs filed a motion for new trial on part of 
the issues, particularly directing the motion to the rehear­
ing on that, that order striking it from the docket. That 
motion for rehearing, sir, I  believe the docket will show 
has never been acted upon.

The Court: Whether it has or not—I am sure it has 
because you withdraw everything.

Mr. Brown: No, sir.
The Court: The 4th of April order entered in 

127 here granting you leave to withdraw, further motion 
for injunctive relief ordered and filed—

Mr. B row : That is right, sir. That is a motion for 
further interlocutory and permanent injunctive relief. But 
there was a motion for a new trial filed in this case on 
November 10, 1960, which has never been acted upon, and 
we could never have appealed this case because there has 
never been a final order entered and our pleadings set this 
forth, sir.

The Court: What pleadings?



55

Mr. Brown: On page 2 of our motion for further inter­
locutory and permanent injunctive relief. We have related 
the chronology of it.

The Court: Go ahead.
Mr. Brown: Well, as I say I believe the docket of the 

case will show that the motion for new trial was never acted 
upon. Under those circumstances—

The Court: You do not have any grounds for a new 
trial of the first one.

Mr. Brown: We asked for it in November.
The Court: I do not care what you asked for. It would 

be summarily denied. On what grounds did you ask for a 
new trial of Judge Bryan’s hearing?

Mr. Brown: The ground on which the new trial was 
asked, sir, was the fact that it was stricken from the 

128 docket and no injunctive relief was granted, we 
submit.

The Court: All right, that is it, and Judge Bryan heard it.
Mr. Brown: Never acted on it.
The Court: There is an order in there on that every sub­

ject? It said he considered it and he struck it from the 
docket?

Mr. Brown: No, sir. The motion was filed after he 
struck it from the docket.

The Court: Your motion for a new trial was filed 
11/10/1960.

Mr. Brown: Yes, sir.
The Court: The motion for withdrawing the pending 

motion for further interlocutory and permanent injunctive 
relief was entered on 4/4/61.

Mr. Brown: That is another motion, sir, the motion for 
new trial. That was another motion that was made. The 
motion for new trial was pending throughout that period. 
It was never acted on. There is no order in the docket 
showing that the order—that the motion for new trial was 
ever acted upon, sir, either granted or denied.

And we submit that under the authority we could never



56

have appealed this case while that unacted-upon motion 
for new trial was pending.

The Court: Why didn’t you bring it up for hear-
129 ing? Why did you let it set there three years if you 

had any intentions to appeal it?
Mr. Brown: Well, sir, it is setting there. Now, for a 

period of time it appeared that the Fairfax County School 
Board was performing its responsibilities in a proper and 
constitional manner. At this time three years after Judge 
Bryan’s suit decision in the case it appears that the school 
board is not carrying out its responsibilities so we are 
saying that we are back in Court under the same case be­
cause the motion for new trial has never been acted on.

Now, I would also—and this is really, I think, probably 
the easiest way out of this dilemma—I would also call the 
Court’s attention, sir, to Rule 60' of the Federal Rules of 
Civil Procedure, which specifically provide—-60(b) specifi­
cally provide that a party may move to open the judgment 
in a formal proceeding, in a proceeding which a judgment, 
a final judgment in a proceeding which was before the 
Court. In other words, the authorities construing Rule 
60(b) show that a court of equity has a continuing juris­
diction over its own decree even though it is a decree dis­
missing the action or striking it from its docket, if you 
will, and whether the pleadings—

The Court: You have 60(b) there. Let me see it.
Mr. Brown: Yes, sir. 60(b) clause 6 particu-

130 larly, sir.
The Court: 60 does not have any application. It 

does not mean that to me. That rule does not mean that. 
What you are saying any judgment this Court ever en­
tered it can open it up at will, and that is not what that 
rule says.

Mr. Brown: That is the way it is construed, sir.
The Court: Upon proper showing it is, sir.
Mr. Brown: Yes, sir.
As a matter of fact, the authority Moore on Federal 

Procedure you will see in discussion of this rule that it is



57

not significant how the papers are styled. They can be 
misstyled.

The Court: No question, about that.
Mr. Brown: Misstyled. It can be called, as we have 

here, a motion for further relief or a motion to open the 
judgment, or it might be even called a motion or it might 
even be styled as a complaint in a new proceeding. And 
we would request, and I really say this in sincerity, that it 
would offer us a way out of this dilemma and it would 
offer a way for conserving the Court’s time so today’s 
activities have not been wasted to consider these pleadings 
that we have filed herein as pleadings designed to open the 
former judgment in this case. I think Rule 60(b)—

The Court: I think it is rather useless to con- 
131 sider them as such, frankly, because I would not 

reopen it, I will answer that bluntly if it were such 
a motion and be timely filed, because the same end result 
could just as easily have been accomplished assuming the 
suit had been determined by filing a complaint.

I have never been able to see and I would like for some­
one to enlighten me how you gentlemen seem to think that 
it is so much better to keep a ease on the docket for 15 
years, just piling up with back records, when for practical 
purposes it would be so much better to have a separate 
suit, a new one, that confined the issue to a narrow ques­
tion and then anybody who wanted to use it for any pur­
pose would not have to thumb through 5,000 pages, they 
would know exactly what they were talking about. For 
some reason you do not want to do it. I just do not know 
why a new suit is not better.

I am going to take a short recess and I hope we do not 
have to do this all over again. If we do I am going to have 
to lay the blame on you gentlemen because you certainly 
should have known this suit was dismissed. You argued 
about making new party plaintiffs and talking about other 
parties in the suit this morning. I did not look through all 
this voluminous file that Judge Bryan had heard. There



58

were several reasons. First, I do not think it is my prov­
ince to look over something that my predecessor has 

done.
132 If they want to consider it and it can be done by 

consent I will take any reasonable solution that is
within the framework of the rules to change the style of 
the proceedings, hut I  am. not going to require the defend­
ants to do anything they do not want to do.

You confer -with them. Take a 10-minute recess.
(After recess.)
Mr. Keith: May it please the Court, I want to say on 

behalf of the school board that they are unanimous in 
adopting your Honor’s suggestion that this intervening 
petition be considered as a new suit and that the proceed­
ings today be taken in connection therewith.

The Court: I  want to publicly thank you. I want to 
publicly thank the school board for their public considera­
tion because the suit certainly would have had to have been 
dismissed and in this status because there was just no ex­
cuse whatsoever for it being brought before the Court. It 
should have come up in pretrial. A half dozen places this 
should have been known and never have happened.

Certainly I am not going to allow the procedure of this 
Court to be so flagrantly violated except by consent and 
taking this into consideration, and I think they should be 
congratulated. Thank you.

Go ahead. The motion is granted and the Clerk is di­
rected to style this as a new suit as of June 14, that

133 is the date it was filed, the original filing date, and 
make the new petitioners as petitioners and the school

board as defendants the same as it is captioned therein. 
And we will consider all of the evidence, all the exhibits 
that have been introduced in this hearing as evidence and 
exhibits in support of and in opposition to the pleadings 
to this new suit.
* # # # # * * * * *



59

(Filed March 3, 1964)
Memorandum Opinion

Glenda Blakeney, an infant, and others similarly situ­
ated, ask leave to intervene as party plaintiffs in Civil 
Action No. 1967, seeking further interlocutory and per­
manent injunctive relief against the defendant Fairfax 
County School Board.

Specifically, they seek admission to the Fairfax County 
schools on a racially non-discriminatory basis; an order 
enjoining the School Board from making initial assign­
ments of Negro children to schools which none hut Negroes 
attend; and reasonable costs and attorneys’ fees.

Civil Action No. 1967 having been dismissed and re­
moved from the docket of this Court by order entered 
therein November 1, 1960, the motion to intervene was 
denied.

Whereupon the parties agreed that the pleadings as 
tendered on and after June 14, 1963, and the evidence and 
exhibits tendered September 12, 1963, be considered by the 
Court as a new suit instituted by the intervenors against 
the named defendants.

It was so ordered, and the suit was styled ‘ ‘ Civil Action 
No. 3067, Glenda Blakeney, infant, et al. v. Fairfax County 
School Board, et al.”

From the record thus made, the Court’s findings and 
conclusions are as follows:

Prior to the Brown decision1 Fairfax County maintained 
a dual school system: one for Negro students; one for all 
other races. Shortly thereafter the placement of all chil­
dren in. the Fairfax County schools was taken from the 
local School Board and vested in the state Pupil Place­
ment Board. The assignment of students remained with

1 Brown v. Board of Education, 349 U.S. 294.



60

the state Board until the 1961-62 school year, at which time 
placement responsibilities were reinvested in the local 
School Board.

On March 19, 1963, the School Board of Fairfax County 
adopted the following resolution governing pupil place­
ment procedures:

“ 1. Any Negro pupil already attending a desegregated 
school, and who is completing the sixth or eighth 
grade, will be assigned to the next higher school 
where his classmates will attend, provided such 
placement is consistent with criteria for assign­
ments and regulations of State Board of Educa­
tion affecting pupil assignments.

“2. Any Negro pupil requesting transfer, without 
graduation from school presently attended, to a 
white or desegregated school nearer his or her 
place of residence, shall be permitted attendance 
at the school serving place of residence, provided 
all other criteria governing transfer applications, 
and all regulations of the State Board of Educa­
tion governing pupil assignments have been met.

“ 3. Any application for transfer of a Negro student 
to a white or desegregated school farther from 
pupil’s place of residence then (sic) the all-Negro 
school presently attended shall be referred to the 
School Board for action.

“ With respect to those Negro students being promoted 
from a segregated school, the same procedures would 
be applicable as to white students; i.e., application for 
attendance at a school other than the one of assign­
ment would have to be made and same criteria applied, 
generally the proof of extenuating circumstances justi­
fying the transfer.”



61

Brown, and the subsequent rulings of the Supreme Court 
and the Court of Appeals for the Fourth Circuit in the 
many school cases, command a racially non-discriminatory 
public school system. Reduced to the simplest common 
denominator, this means all eligible students (white and 
colored) must be admitted to the public schools on the same 
basis. There can be no requirement of one that is not 
required of the other.

Facially, the resolution of March 19th would appear to 
be racially discriminatory in that it refers to Negro pupils 
only. It also refers to desegregated and segregated 
schools—implying a dual system. Point three requires 
School Board approval for transfer of a Negro student to 
a white or desegregated school farther from his place of 
residence. Such approval would not be required of a white 
student under similar circumstances according to the testi­
mony of G-eorge H. Pope, the Assistant Superintendent in 
charge of placements. (Except in one or two isolated cases 
there are no known cases of white children residing in the 
attendance areas surrounding the six so-called all-Negro 
elementary schools.)

Notwithstanding the apparent facial infirmity of the 
March 19th resolution, the placement of pupils, both initial 
and transfer, in the Fairfax County school system is being 
administered on a racially non-discriminatory basis. Fixed 
attendance areas are delineated for each of the 110 school 
buildings located throughout Fairfax County. Many of 
these attendance areas are subject to change annually due 
to the ever expanding school population which is growing 
at the rate of about eight thousand students per year. 
There was no evidence of gerrymandering school attend­
ance areas for the purpose of perpetuating all-colored 
schools.

New students (white and colored) entering the school 
system for the first time, whether they be first graders or 
<i move-ins? ? from other jurisdictions, are automatically



62

assigned to the school nearest to their place of residence. 
Except for change of residence,2 and for other good cause,® 
these students remain in the school of original assignment 
until graduation, at which time they are automatically as­
signed to the next higher school where their classmates will 
attend.

Eighty thousand five hundred fifty-eight students were 
enrolled in the Fairfax County school system during the 
1963-64 school year of whom 2,529 are Negro, 2,101 of 
whom attend six all-colored elementary schools, one all­
colored intermediate school and one all-colored senior high 
school. The remaining 428 Negro students attended 44 
integrated elementary, intermediate and senior high schools 
located in various parts of the County. Of these Negro 
children, 214 attended integrated schools this year for the 
first time. The 2,101 Negro students now attending the 
all-colored six elementary, one intermediate and one senior 
high school are so attending solely on account of their 
place of residence or by choice.4

All of the infant intervenors are now attending a white 
or desegrated school nearest their place of residence. They 
were so assigned prior to the hearing of this case.

Upon the record thus made the Court concludes that 
Fairfax County is not maintaining a dual or segregated 
school system. The Court further concludes that all eligi­
ble students seeking admission to the Fairfax County pub­
lic schools, initially and via transfer, are being so admitted

2 A change of residence permits a transfer on a non-discrimina- 
tory basis to the school serving- that attendance area.

3 Vocational training; special subjects taught only in special 
schools—handicapped children—etc.

4 All Negro students attending the so'-ealled all-Negro inter­
mediate and senior high school, who live nearer to an all-white or 
desegregated school, will be automatically so transferred upon 
request.



on a racially noil-discriminatory basis. Therefore the 
prayer for further interlocutory and permanent injunctive 
relief will be DENIED.

The policy resolution of March 19th, however, should be 
referred to apply to all students instead of to only Negro 
students, thereby conforming with the placement practice 
and eliminating its facial infirmity.

The intervenors further contend the “ racially non-dis- 
criminatory school system,” as required by the Brown 
decision, includes a non-segregated teaching and adminis­
trative staff, and pray that this Court enter an order here­
in so directing.

The limited evidence on this subject, as introduced here­
in, discloses that the Fairfax County School Board employs 
both Negro and white school teachers and principals. There 
are some Negroes in the administrative branch; the Super­
intendent and his principal assistants are white.

There are no white teachers teaching in the six elemen­
tary, one intermediate and one senior high school, attend­
ing solely by Negro students, and no Negro teachers are 
teaching in the so-called all-white or desegregated schools. 
There was no evidence as to how teachers or administra­
tive personnel were employed or assigned. There was no 
evidence of discrimination.

Th motion in intervention filed herein June 14, 1963, 
which was treated as the complaint by agreement of the 
parties, neither charges discrimination in employment or 
assignment of teachers or administrative personnel nor 
prays for injunctive relief in respect thereto. It is a 
“ class action” brought on behalf of the infant intervenors 
and others similarly situated seeking admission to the 
public schools on a racially non-diseriminatory basis.

The relief sought as to the teaching and administrative 
staff is clearly beyond the scope of the pleading and will 
be DENIED.



64

The prayer for attorneys’ fees having been withdrawn 
in open Court, each party will be required to pay their own 
costs with the exception of the cost of the transcript of the 
evidence, amounting to $78.00, which will be taxed against 
the School Board.

/ s /  Obex R. L ewis
United States District Judge

March 3, 1964
A True Copy, Teste:

W a l k l e y  E. J ohnson, Clerk 
By Betty Dodson 

Deputy Clerk
SEAL

(Filed March 3, 1964)
Order

For the reasons set forth in the memorandum opinion 
this day filed herein, the intervening petition, treated as 
an original complaint, is dismissed with each of the parties 
paying their respective costs, with the exception of the cost 
of the transcript of the evidence, amounting to $78.00, 
which shall be taxed as costs against the defendant School 
Board.

The Clerk will forward copies of this order together 
with a copy of the memorandum opinion to the attorneys 
of record.

/ s /  Oben R. L ewis
United States District Judge

March 3, 1964