Coppedge v. Franklin County Board of Education Brief for Plaintiffs-Appellees
Public Court Documents
January 1, 1967
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Brief Collection, LDF Court Filings. Coppedge v. The Franklin County Board of Education Briefs and Appellants Appendix, 1967. 3d2fa6e6-c99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/273cc83b-e4e9-4e88-8396-c7b242bddb9c/coppedge-v-the-franklin-county-board-of-education-briefs-and-appellants-appendix. Accessed April 06, 2025.
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BRIEFS AND
APPELLANTS
APPENDIX
■
iSsil*
BRIEF AND APPENDIX FOR APPELLANTS
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11J 94
HAROLD DOUGLAS COPPEDGE, a minor, et als
Plaintiffs
and U s - y
UNITED STATES OF AMERICA, etc.
Plaintiff-Intervenors
Appellees
versus
THE FRANKLIN COUNTY BOARD OF EDUCATION, et als
Defendants
Appellants
APPEAL FROM THE DISTRICT COURT OF THE UNITED
STATES FOR THE EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION - CIVIL
IRVIN B. TUCKER, JR.
CHARLES M. DAVIS
E. F . YARBOROUGH AND W. M. JOLLY
Attorneys for Appellants
THE FRANKLIN TIMES, INC., LOUISBURG, N. C.
INDEX TO BRIEF
Page
Statement of C a s e _________ ___________ _______________ 1
Questions Involved_____ ^_____________________________ 6
Statement of F a c t s ____________________________________ 6
Argum ent________ : ___________________________________ 10
POINT ONE:
THE EVIDENCE WAS NOT SUFFICIENT TO SUP
PORT FINDINGS OF F A C T S______________________ 10
A. The evidence was not sufficient to support
that portion of finding of fact NoC_2-Arf the
Opinion and Order dated August 17, 1967,
that the defendants failed to g ive jrop er no
tice to students and their parents of the spec
ified criteria, and the transfer applications of
those students who did not specify these cri
teria as the reason for the requested transfer
were re jected .__________;_____________________ 10
B. The evidence was not sufficient to support
finding of fact No. 8 o f the opinion and order
dated August 17, 1967, that there is marked
hostility to school desegregation in Franklin
County, and wide publicity has been given to
the acts of intimidation, threats and reprisals
against Negro parents who have requested re
assignment of their children to previously all
White schools ________________________________ 13
C. That portion of finding of fact no. 9 “ that aft-
ter the adoption of the freedom of choice plan
of desegregation, the acts of intimidation,
threats and reprisals against Negro parents
continued, explosives were placed at Negro
homes, several Negro homes were shot into,
wells were contaminated with oil and tacks
or nails were placed in driveways. As a result
of harrassment, intimidations, and reprisals
(i)
Page
against the Negro parents and their families,
several withdrew their requests for assign
ment to previously all White s c h o o l s and
sought reassignment to all Negro schools” is
not supported by the ev id en ce________________ 16
D. The evidence is not sufficient to support that
portion of finding of fact No. 10 of the Opin
ion and Order dated August 17, 1967, that
reads as f o l l o w s : “ The intimidations and
threats continued throughout the 1965-66 and
1966-67 school years” , and that portion which
reads as follows: “ In March, 1967, during the
freedom of choice p e r i o d for the 1967-68
school year, the intimidations in ten sified____ 24
E. The evidence is not sufficient to support find
ing of fact 12 in the opinion and order dated
August 17, 1967, that community attitudes
and pressures in the Franklin County School
System effectively inhibited the exercise of
free choice of school by Negro pupils and
their parents._________________________________ 25
1. There is not sufficient evidence of at
titudes and pressures in the Franklin
County School System since the interim
order dated July 27, 1966, to warrant a
finding that any attitudes and pressures
have effectively inhibited the exercise
of free choice by Negro pupils and their
parents_________________________________ 26
2. The evidence does not support the find
ing that there have been any acts dis
closing an attitude or pressures in the
Franklin County School System that
would effectively inhibit the exercise of
free choice of schools by Negro stu
dents and their parents after the interim
order dated July 25, 1966. _____________ 26
3. The review of the e n t i r e record dis-
(ii)
Page
closes that a mistake has been commit-
ted by the trail court in finding of fact
12. ____________________________________ 27
POINT TWO:
THE COURT COMMITTED REVERSIBLE ERROR
WHEN IT ORDERED THE DEFENDANTS TO PRE
PARE AND SUBMIT TO THE COURT THIRTY
DAYS AFTER MARCH 1, 1968, OR THIRTY DAYS
AFTER THE FILING OF DECISION OF THE U. S.
COURT OF APPEALS FOR THE FOURTH CIR
CUIT IN THIS CAUSE, WHICHEVER IS EARLIER,
A PLAN FOR THE ASSIGNMENT, AT THE EAR
LIEST PRACTICAL DATE, OF ALL STUDENTS
UPON THE BASIS OF A UNITARY SYSTEM OF
N ON-RACIAL G E P G R A P H I C ATTENDANCE
ZONES OR A PLAN FOR THE CONSOLIDATION
OF GRADES, OR SCHOOLS, OR BOTH ____________ 30
A. The Opinion and Order dated August 17, 1967,
erroneously d e p r i v e s all of the students
whether White or Negro of a constitutional
free choice p la n _____ ________________________ 33
B. The Opinion and Order dated August 17, 1967,
allowed to stand, gives the Franklin County
Board of Education no reasonable alternative
for preservation of freedom of choice in any
form _________________________________________ 33
C. The evidence was not sufficient to support a
finding that extraneous pressures are now de
priving students and/or their parents of a free
choice ___________________ ____________________ 34
D. The court erred in conclusion of Law 3, that
almost three times as many had signed the
desegregation petition in 1963 as those the
predominantly White schools in the Franklin
County System during the March, 1967, choice
period indicates that the plan is not operating
in a constitutionally accepted manner_______ 37
(iii)
Page
E. Faculty assignment policies of the Franklin
County School Unit did not justify the court
in depriving all of the students, both Negro
and White, of the Franklin County School Unit
of freedom of choice. The Franklin County
School Unit a s s i g n e d its teachers to the
schools without regard to race. ______________ 38
F. Disparity between buildings and equipment is
not a ground for abrogation of the r i g h t of
freedom of choice of all s t u d e n t s in the
Franklin County School Unit _________________ 41
C onclusion___________________________________________ 42
Cases:
CITATIONS
Bradley v. School Board, City of Richmond, 345 F 2d
310 ________________________________________________ 31
Bowman v. County School Board of C h a r l e s City
County Virginia, d e c i d e d June 12, 1967, F
2d __________________________________________ 31, 33
Fedler v. Harnett County Board of Education, 349 F
2d 366 ______________________________________________ 31
Green v. County School Board of New Kent County,
Virginia, decided June 12, 1967, F 2d ___31, 33
Jeffers v. Whitley, 309 F 2d 621 ______________________ 31
Kelley v. Altheimer, 378 F 2d 483 ___________________ 41
Kier v. County School Board of Augusta County, Vir
ginia, 249 F Supplement 239, Page 243 ____________ 36
Swan v. Charlotte-Mecklenburg Board of Education,
369 F 2d 29 ------------------------------------------------------ 32, 34
United States v. Gypsum Company, 333 U. S. 364,
Page 395 __________________________________________ 27
United States v. Haywood County Board of Education.
271 F Supplement 460
(iv)
Page
Wheeler v. Durham City Board of Education, 363 F
2d 738. ____________________________________________ 39
Statutes:
Article 21 of Chapter 115 of General Statutes of North
Carolina ____________________________________________6
Rule 52 (a) Federal Rules of Civil P rocedu re_________ 10
Rule 52 (b) Federal Rules of Civil P rocedu re_________ 10
INDEX TO APPENDIX
ORDER DENYING PLAINTIFFS’ MOTION FOR PRE
LIMINARY INJUNCTION, filed February 24, 1966 - - 1A
FINDINGS OF FACT; CONCLUSIONS OF LAW; IN
TERIM ORDER, filed July 27, 1966 ------------------------- 6A
OPINION AND ORDER, filed August 21, 1967 --------------- 15A
PARAGRAPHS 2 AND 3 OF INTERROGATORIES PRO
POUNDED BY PLAINTIFFS, filed January 3, 1966- 38A
PARAGRAPHS 2 AND 3 OF DEFENDANTS’ ANSWER
TO PLAINTIFFS’ INTERROGATORIES, filed Jan
uary 14, 1966 -------------------------------------------------------------38A
PARAGRAPH 5 OF DEFENDANTS’ ANSWER, filed
January 14, 1966-------------------------------------------------------- 39A
PARAGRAPH 10 OF DEFENDANTS’ ANSWER TO
PLAINTIFFS’ INTERROGATORIES, filed January
14, 1966 -------------------------------------------------------------------- 41A
PARAGRAPH 8 OF DEFENDANTS’ ANSWER TO COM
PLAINT IN INTERVENTION, filed February 21,
1966 -------------------------------------------------------------------------- 42A
(v)
Page
OBJECTIVE STANDARDS FOR THE EMPLOYMENT,
ASSIGNMENT AND RETENTION OF TEACHERS
AND PROFESSIONAL STAFF, filed August 9, 1966- 43A
DEFENDANTS’ REPORT OF NUMBER OF NEGRO
STUDENTS ASSIGNED TO PREDOMINANTLY
WHITE SCHOOLS, ETC., filed September 12, 1966— 48A
PARAGRAPH 8 OF DEFENDANTS’ RESPONSE TO
PLAINTIFFS’ MOTION FOR FURTHER RELIEF,
filed May 9, 1967 ----------------------------------------------------- 49A
PARAGRAPH 12 OF DEFENDANTS’ RESPONSE TO
PLAINTIFFS’ MOTION FOR FURTHER RELIEF,
filed May 9, 1967 ------------------------------------------------------ 50A
ANSWER TO PLAINTIFF-INTERVENOR’ S CHRONO
LOGY OF INTIMIDATION, filed August 7, 1967 ----- 51A
ORDER, filed September 5, 1967 ---------------------------------- ^5A
MOTION FOR INTERVENTION, filed October 2, 1967 - 56A
STATEMENTS OF THE COURT AND COUNSEL---------- 63A
EXTRACT FROM THE FRANKLIN TIMES, issue of
June 16, 1964 ----------------------------------------------------------- 66A
EXTRACT FROM THE FRANKLIN TIMES, issue of
June 8, 1965 ------------------------------------------------------------- 69A
DIRECT EXAMINATION OF REV. SIDNEY GARFIELD
DUNSTON -------------------------------------------------------------------72A
CROSS EXAMINATION OF REV. SIDNEY GARFIELD
DUNSTON ------------------------------ ---------------------------------- 74A
EXTRACT FROM THE FRANKLIN TIMES, issue of
June 17, 1965 ------------------------------------------------------------ ~4A
(vi)
Page
DIRECT EXAMINATION OF MRS. IRENE ARRINGTON - 76A
CROSS EXAMINATION OF MRS. IRENE ARRINGTON - 77A
DIRECT EXAMINATION OF MARGARET CRUDUP — 77A
CROSS EXAMINATION OF MARGARET CRUDUP-------79A
DIRECT EXAMINATION OF CHRISTINE COPPEDGE - 83A
CROSS EXAMINATION OF CHRISTINE COPPEDGE — 85A
CROSS EXAMINATION OF HAROLD DOUGLAS COP
PEDGE -------------------------------------------------------------------- 90A
DIRECT EXAMINATION OF REV. LUTHER COP
PEDGE-----------------------------------------------------------------— 91A
CROSS EXAMINATION OF REV. LUTHER COP
PEDGE ----------------------------------------------------------------------- 92A
EXAMINATION BY THE COURT OF REV. LUTHER
COPPEDGE-------------------------------------------------------- — 94A
CROSS EXAMINATION OF REV. LUTHER COP
PEDGE--------------------------------------------------------------------- 94A
STIPULATION BY COUNSEL FOR PLAINTIFF-
INTER VENOR ----------------------------------------------------------- 95 A
STIPULATION BY COUNSEL FOR PLAIN TIFF---------95A
DIRECT EXAMINATION OF MATTIE GERALDINE
CRUDUP HARRIS--------------------------------- 96A
DIRECT EXAMINATION OF SILAS JONES----------------- 99A
CROSS EXAMINATION OF SILAS JONES-------------------- 100A
(vii)
RECROSS EXAMINATION OF SILAS JONES----------------100A
DIRECT EXAMINATION OF ARNEE HARTSFIELD — 101A
REDIRECT EXAMINATION OF ARNEE HARTSFIELD- 103A
DIRECT EXAMINATION OF MATTIE W. CRUDUP----- 104A
CROSS EXAMINATION OF MATTIE W. CRUDUP--------106A
DIRECT EXAMINATION OF M A R I A N P E R R Y
BRANCH---------------------------------------------------------------- 106A
CROSS EXAMINATION OF MARIAN PERRY BRANCH- 110A
DIRECT EXAMINATION OF MARGARET WHITE---------110A
CROSS EXAMINATION OF MARGARET WHITE-----------113A
DIRECT EXAMINATION OF RUBY E. P E R R Y ------------114A
CROSS EXAMINATION OF RUBY E. P E R R Y ------------- 117A
DIRECT EXAMINATION OF CHARLIE 0 . WHITE-------118A
CROSS EXAMINATION OF CHARLIE 0 . WHITE--------- 119A
REDIRECT EXAMINATION OF CHARLIE 0 . WHITE — 120A
DIRECT EXAMINATION OF CHARLIE PERRY ---------- 121A
CROSS EXAMINATION OF CHARLIE P E R R Y --------------125A
DIRECT EXAMINATION OF SOPHIA P E R R Y ------------- 128A
REDIRECT EXAMINATION OF SOPHIA P E R R Y -------- 131A
Page
REDIRECT EXAMINATION OF SILAS JONES-------------100A
RECROSS EXAMINATION OF SOPHIA PERRY ----------- 131A
(viii)
DIRECT EXAMINATION OF M. L. CLEMONS----------- 134A
CROSS EXAMINATION OF M. L. CLEMONS — --------- 136A
REDIRECT EXAMINATION OF M. L. CLEMONS - — 137A
DIRECT EXAMINATION OF MRS. JOYCE TERRELL - 137A
DIRECT EXAMINATION OF WILLIE P E R R Y -------------141A
CROSS EXAMINATION OF WILLIE PE R R Y ---------------144A
REDIRECT EXAMINATION OF WILLIE PERRY --------- 147A
RECROSS EXAMINATION OF WILLIE P E R R Y ----------- 148A
DIRECT EXAMINATION OF DAZELL WALTERS--------150A
CROSS EXAMINATION OF DAZELL WALTERS---------153A
DIRECT EXAMINATION OF ALVERETTA MOORE — 153A
CROSS EXAMINATION OF ALVERETTA MOORE-------158A
DIRECT EXAMINATION OF CUNETTER BOLDEN----- 158A
CROSS EXAMINATION OF CUNETTER BOLDEN------- 163A
DIRECT EXAMINATION OF MELISSA D EAN ----------------165A
REDIRECT EXAMINATION OF MELISSA DEAN -----------169A
DIRECT EXAMINATION OF MRS. OLLIE STRICK
LAND ------------------------------------------------------------------— - 169A
CROSS EXAMINATION OF MRS. OLLIE STRICK
LAND ------------------------------------------------------------------------ 173A
Page
DIRECT EXAMINATION OF FRANK W. ROGERS------ 131A
(ix)
CROSS EXAMINATION OF ESTELLE WILKINS------------177A
DIRECT EXAMINATION OF LOSSIE MAE GREEN----- 177A
CROSS EXAMINATION OF MARGARET ELAINE
FOGG----------------------------------------------------------------------- 181A
CROSS EXAMINATION OF CAROLYN JONES------------- 183A
CROSS EXAMINATION OF JOHN HORTON---------------- 186A
DIRECT EXAMINATION OF FRED WILTON ROGERS - 188A
CROSS EXAMINATION OF FRED WILTON ROGERS — 188A
CROSS EXAMINATION OF BUCK NORWOOD-------------- 192A
DIRECT EXAMINATION OF GLADYS HAYES-------------- 195A
CROSS EXAMINATION OF GLADYS HAYES-----------------199A
DIRECT EXAMINATION OF ROBERT RICHARDSON - 200A
DIRECT EXAMINATION OF EDWARD GUPTON---------- 204A
STIPULATION OF COUNSEL ------------------------------------- 207A
DIRECT EXAMINATION OF EVELYN KAY HARRIS — 208A
REDIRECT EXAMINATION OF EVELYN KAY HAR
RIS — --------------------------------------------------------------------- 214A
DIRECT EXAMINATION OF VERONICA HA.WKINS-------214A
STIPULATION OF COUNSEL---------------------------------------220A
STIPULATION OF COUNSEL---------------------------------------220A
Page
DIRECT EXAMINATION OF ESTELLE WILKINS--------174A
DIRECT EXAMINATION OF IRA BOWDEN------------------ 221A
(x)
STATEMENT OF C O U R T-------------------------------------------- 224A
DIRECT EXAMINATION OF ODELL RICE GARDNER - 225A
DIRECT EXAMINATION OF REV. LUTHER COP-
PEDGE--------------------------------------------------------------------- 229A
CROSS EXAMINATION OF REV. LUTHER COP-
PEDGE-------------------------------------------------------------------- 229A
DIRECT EXAMINATION OF WARREN W. SMITH -------- 234A
REDIRECT EXAMINATION OF WARREN W. SMITH — 244A
STATEMENTS OF COURT AND OF COUNSEL FOR
PLAINTIFF-INTERVENOR — ---------------------------------- 253A
STATEMENTS OF COURT AND OF COUNSEL FOR
DEFENDANTS ----------------------------------------------------------- 254A
PORTIONS OF APPENDIX C TO PLAINTIFF-INTER-
VENOR’ S PROPOUNDED FINDINGS OF FACT,
CONCLUSIONS OF LAW AND DECREE! CHRONO
LOGY OF INTIMIDATIONS)------------------------------------- 255A
DIRECT EXAMINATION OF FRANK WOOD---------------- 260A
CROSS EXAMINATION OF FRANK WOOD------------------- 262A
CROSS EXAMINATION OF ROBERT LATHAM----------- 265A
DIRECT EXAMINATION OF MARGARET ELAINE
FOGG----------------------------------------------------------------------- 267A
DIRECT EXAMINATION OF IMICHEAL DAN MAT
THEWS --------------------------------------------------------------------- 268A
DIRECT EXAMINATION OF DEBBIE NASH------ ■-273A
Page
DIRECT EXAMINATION OF ROBERT EARL GARD
NER --------------------------------------------------------- --------------- 276 A
DIRECT EXAMINATION OF WANDA LOU PARRISH — 282A
REDIRECT EXAMINATION OF WANDA LOU PARRISH- 286A
STIPULATION OF COUNSEL — --------------------------------- 287A
DIRECT EXAMINATION OF SHERAL FR A ZIE R -------- 287A
DIRECT EXAMINATION OF JERRY WAYNE BOONE - 291A
STIPULATIONS OF COUNSEL ------------------------------------ 295A
DIRECT EXAMINATION OF MRS. JOYCE GRIFFIN — 296A
DIRECT EXAMINATION OF MRS. JOYCE GRIFFIN — 299A
DIRECT EXAMINATION OF ROBERT B. FLEMING — 300A
CROSS EXAMINATION OF ROBERT B. FLEMING----- 300A
(xii)
IN THE UNITED STATES COURT OF APPEALS
For the Fourth Circuit
No. 11,794
HAROLD DOUGLAS COPPEDGE, a minor, by his
FATHER and next friend, REV. LUTHER COPPEDGE: ET. AL.
Plaintiffs,
UNITED STATES OF AMERICA, by RAMSEY CLARK,
Attorney General
Plaintiff-Intervenor,
A ppellees,
VS.
THE FRANKLIN COUNTY BOARD OF EDUCATION,
a public body corporate; ET. AL.
Appellants.
APPEAL FROM THE DISTRICT COURT OF THE
UNITED STATES FOR THE EASTERN
DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION - CIVIL
BRIEF FOR APPELLANTS
STATEMENT OF CASE
On December 8, 1965, plaintiffs filed a complaint which
purported to be a class action on the part of the plaintiffs
and other minor children similarly situated, principally
praying an injunction enjoining the defendant school board
2
from refusing to allow the plaintiffs to make lateral trans
fers to a school of their choice and elimination of other
alleged descrimination. R.p. 14.
On December 8, 1965, the plaintiffs also filed a motion
for preliminary injunction accompanied by a brief in sup
port of the motion. This motion for preliminary injunction
prayed the court to enjoin the defendant school board from
refusing to admit the plaintiffs to the schools of their choice
beginning with the second semester of the 1965-66 school
year. R.p. 24.
On January 14, 1966, the defendant Franklin County
Board of Education filed its answer to the complaint and on
the same date filed a reply to plaintiffs’ motion for pre
liminary injunction with a supporting brief. R.p. 53, 70, 74.
The 'answer of the defendant denied that the defendant
Franklin County Board of Education was depriving the
plaintiffs under color of statute, ordinance, regulation,
custom or usage of rights, privileges and ammunities se
cured by the Constitution and laws of the United States.
The answer further set forth that the defendant board of
education was operating pursuant to a plan for compliance
and directive of the United States Department of Health,
Education and Welfare which required freedom of choice for
all students beginning with the school year 1966-67 and
for each year thereafter and freedom of choice during the
1965-66 school year for those students attending the first,
second, ninth and twelfth grades. That the plan of integ
ration adopted by the defendant school board and approved
by the Office of Education of the Department of Health,
Education & Welfare exceeded the minimum requirement of
the United States Office of Education, R. p. 53.
In the defendant school board’ s reply to plaintiffs’ motion
for preliminary injunction, the defendant school board
prayed that the preliminary injunction be denied and that
3
notice and opportunity for hearing be given to the defendant
prior to entry of any order respecting preliminary or perm
anent injunction in this action. R.p. 70.
On January 20, 1966, pursuant to order of Judge Algernon
L. Butler, United States of America filed a complaint in
intervention which added the individual members of the
Franklin County Board of Education, R. P. 102.
On February 2.1, 1966, Chief Judge Algernon L. Butler,
entered an order denying application of the plaintiffs for
preliminary injunction. The order was filed February 24,
1966, and set forth that the defendants have in good faith
adopted and applied a valid plan of desegregation approved
by HEW and that the plaintiffs had not shown a clear con
stitutional right to the immediate admission of the schools
of their choice. The plaintiffs were seeking lateral transfer
in grades other than 1, 2, 9 and 12, but were denied their
requests on the grounds that none had alleged as a ground
for such transfer any of the two criteria required; that plain
tiffs had failed to indicate either of the two criteria for
lateral transfer even though they were given information as
to the requirements for lateral transfer before the 1965-66
school year began and at two later meetings in October,
1965. This order further pointed out that the defendants’
plan effected total desegregation of public schools one
year earlier than the deadline set by Health, Education
and Welfare and that the defendants had shown their good
faith by providing for total desegregation one year earlier
than required by Health, Education & Welfare. Appendix pp
1A-5A.
On July 27, 1966, on the basis of testimony and exhibits
filed in the action and statements of counsel on behalf of
the respective parties but without full trial on the merits,
Chief Judge Algernon L. Butler, entered an interim order.
Appendix pp. 6A-10A.
4
On October 9, 1966, in compliance with the interim order
dated July 27, 1966, the defendants filed objective stand
ards for the employment, assignment and retention of teach
ers and professional staff adopted by the Franklin County
Board of Education. Appendix pp. 43A-47A.
On September 12, 1966, in compliance with the interim
order dated July 27, 1966, the defendants filed a report of
the number of Negro and White teachers and school person
nel assigned duties in schools in which the majority of
students were of another race. Appendix pp. 48A-49A.
The plaintiffs filed a response to the defendants’ stand
ards for the employment, assignment and retention of teach
ers on August 18,1966, R. p. 267 and the plaintiff-intervenor
filed objections to defendants’ standards for employment,
assignment and retention of teachers. R. p. 274. However,
no hearing was held by the court and no order entered which
would indicate to the defendants that these objective stand
ards for employment, assignment, and retention of teachers
and professional staff adopted by the Franklin County
Board of Education were inadequate and unsatisfactory to
the court in any respect until the court in its opinion and
order dated August 17,1967, stated that “ the part that reads
‘the choice of assignment expressed by teachers and mem
bers of the professional staff will be honored to the extent
practicable’ tends to prepetuate racial segregration in fac
ulty and staff and is disapproved.” Appendix p. 26A.
On August 21, 1967, Chief Judge Algernon L. Butler
filed an Opinion and Order dated August 17, 1967, which
ordered the defendants to prepare and submit to the court
on or before October 15, 1967, a plan for the assignment,
at the earliest practical date, of all students upon the ba
sis of a unitary system of non-racial geographic attendance
zones, or a plan for the consolidation of grades or schools
or both. The order also contained provisions pertaining to
the faculty, facilities, school equalization and provisions
5
for immediate transfer of a portion of students and faculty
members to schools where their race was in the minority.
Appendix pp. 15A-37A.
On August 25, 1967, the defendants duly filed a notice
of appeal from the order of Judge Algernon L. Butler, dated
August 17, 1967, R.P. 528.
On August 25, 1967, the defendants filed a motion to
stay execution of certain portions of the opinion and order
of Chief Judge Algernon L. Butler dated August 17, 1967,
pending the final opinion of the Fourth Circuit Court of
Appeals. R.p. 529.
On September 5, 1967, Chief Judge Algernon L. Butler
entered an order denying the defendants’ motion for stay of
execution of portions of the court’ s order entered in this
action on August 17, 1967; however, the court further or
dered:
“ That the plan to be filed by the defendants pursuant
to the first sentence of Part I of said order, and the
report to be filed by the defendants pursuant to the
fourth sentence of Part IV of said order, shall each be
filed 30 days after March 1, 1968, or 30 days after
filing of the decision of the United States Court of
Appeals for the Fourth Circuit in this cause, which
ever is e a r l i e r , instead of on October 15, 1967.”
R.p. 543.
On October 2, 1967, fifty-five students, through their
next friends, filed a motion in the United State District
Court for the E a s t e r n District of North Carolina, to be
allowed to intervene as defendants in this action. The
Negro students set forth that the plaintiffs did not represent
their i n t e r e s t and that the court order o f Chief Judge
Algernon L. Butler adversely affected their interest and
rights. -That the court order of Chief Judge Algernon L.
6
.Butler dated August 17,1967, caused the 55 Negro students
to be transferred by the Franklin County Board of Education
to predominately White schools. That the Negro students in
the spring of 1967 had chosen to attend predominately Negro
schools in Franklin County and that this choice was made
without threat or intimidation of any source and without
fear on the part of the petitioning Negro students and that
the Negro students still desired to attend the schools that
they freely chose to attend in the spring of 1967. That the
freedom of choice plan administered by the Franklin County
Board of Education was approved by the Department of
Health, Education and Welfare and as to the petitioning
Negro students the freedom of choice plan of Franklin Coun
ty Board of Education is constitutional. That the petitioning
Negro students be allowed to intervene in order to defend
themselves in this action. Appendix pp. 56A-61A.
QUESTIONS INVOLVED
1- Was the evidence sufficient to support findings of fact?
2. Did the Court commit reversible error when it ordered
defendants to prepare and submit to the court 30 days after
March 1, 1968, or 30 days after the filing of decision of the
U.S. Court of Appeals of the Fourth Circuit in this cause,
whichever is earlier, a plan for the assignment at the earli
est practical date of all students upon the basis of a uni
tary system of non-racial geographical attendance zone, or
a plan for the consolidation of grades, or schools, or both?
STATEMENT OF FACTS
Beginning with the 1956-57 school year, Franklin County
Board of Education assigned and enrolled pupils in schools
within the Franklin County Administrative.Unit in accord
ance with the provisions of Article 21 of Chapter 115 of the
7
General Statutes of North Carolina and this procedure con
tinued throughout the 1964-65 school year. R.p. 81.
Prior to the 1965-66 school year, the Franklin County
Board of Education adopted a plan of desegregation of the
schools of the Franklin County Administrative Unit which
was approved by the office of Education of the Department
of Health, Education & Welfare of the United States. Ap
pendix pp. 1A-4A.
The plan for desegregation of the schools of the Franklin
County Administrative Unit provided for complete freedom
of choice of all students in grades 1, 2, 9 and 12 in all
schools in the county for the school year 1965-66, and
complete freedom of choice for all grades in every school
in the county by the fall of 1966, which was one year earlier
than the deadline required by Health, Education & Welfare.
Appendix pp. 1A-4A.
The plaintiffs in this action were not students enrolled
in grades 1, 2, 9 and 12 and therefore were not entitled to
exercise a free choice during the 1965-66 school year.
Appendix p. 3A.
The plaintiffs in this action also did not qualify in the
two criteria set forth in the defendants’ HEW approved plan
in that none of them desired to take a course of study which
was not available in the school then being attended and
none of them were entering a school system for the first
time and none of them had had a change of residence into
a new geographical attendance zone and did not base their
request for lateral transfers upon either of the grounds
embraced in the criteria for lateral transfer. Appendix pp.
2A-3A.
After a full hearing on the plaintiffs’ request for lateral
transfer the court upheld the action of the board in denying
the plaintiffs’ request for lateral transfer for the year 1965-
66, and denied the plaintiffs the right to make a lateral
8
transfer for that school year, by order of court dated Feb
ruary 21, 1966. Appendix pp 4A-5A.
For the 1966-67 school year, 49 Negro students elected
to attend the predominantly White schools. Appendix p. 19A.
There is no evidence that any of these 49 students have
ever withdrawn from the predominantly White schools, other
than by graduation, with the exception of one student who
chose to return to the predominantly Negro school for the
1967-68 school year.
45 Negro students elected to attend predominantly White
schools during the 1967-68 school year. Appendix p. 19A.
There is no evidence that any of the Negro students who
chose the predominantly White schools were ever injured or
harmed in any manner whatsoever.
25 Negro citizens and one Indian citizen gave testimony
on behalf of the defendants to the effect that they had sent
their children to predominantly Negro schools through their
own free choice and that there was no fear in the community
that would prevent free choice of the schools by Negroes.
These citizens were representative of a large number of
Negro schools and it was stipulated that the defendants
could produce alike number of witnesses from the remaining
schools who would testify substantially the same. Appendix
pp. 96A-207A.
During the 1966-67 school year, the E.S.E.A lunch pro
gram was confined to schools which had a concentration of
students from economically deprived families. An econom
ically deprived family is a family making less than $2,000.
per year. All of the predominantly Negro schools in Franklin
County Administrative Unit qualify for free lunches under
that program, and students whose families qualify and who
attended the predominantly Negro schools during the school
9
year 1966-67, obtained lunches for 10<P a lunch, and in some
instances entirely free. The regular price of lunch in the
Franklin County School System is 30<t per lunch. The policy
for administering this lunch program is determined by an
agency other than the Franklin County Board of Education.
Appendix pp. 238A“-243A.
The students eligible for free lunch at the predominantly
Negro schools would not be eligible at all if they trans
ferred to the predominantly White schools which were not
eligible for the free lunch program during the 1966-67 school
year, and during the school year 1967-68. They would not
be eligible unless as many as 10 students from economically
deprived families also transferred to the predominantly
White schools. Appendix pp. 238A-243A.
This policy and p r a c t i c e as to free lunch continued
through the free choice period in March, 1967. A Negro
student, who was receiving free lunches could not tranfer
to a predominantly White school without great economic loss
to his or her family.
After Chief Judge Butler’ s Opinion and Order dated Au
gust 17, 1967, Appendix pp. 15A-37A, 55 Negro students,
who had been transferred pursuant to the order, employed
counsel, made a motion to be allowed to intervene as party
defendants on the grounds that their freedom of choice to
attend predominantly Negro schools of the Franklin County
Administrative Unit has been denied. Appendix pp. 56A-61A.
This action on the part of these 55 Negro students and their
parents conclusively shows that the Negroes of The Franklin
County Administrative Unit are overwhelmingly in favor of
freedom of choice and against compulsory integration.
It has been stipulated by both counsel for the plaintiffs
and counsel for the plaintiff-intervenor that all of the plain
tiffs in this action have now been assigned to the schools
-of their choice. Appendix p. 95A.
10
ARGUMENT
POINT ONE
THE EVIDENCE WAS NOT SUFFICIENT TO SUPPORT
FINDINGS OF FACTS.
Rule 52(b) of the Federal Rules of Civil Procedure
states:
“ ...When findings of fact are made in actions tried by
Ihe court without a jury, the question of the sufficien
cy of the evidence to support the findings may there
after be raised whether or not the party raising the
question has made in the district court an objection to
such findings or has made a motion to amend them or a
motion for judgment.”
The test to be applied to determine whether a finding of
fact is clearly erroneous as required by Rule 52(a) Federal
Rules of Civil Procedure is set forth in United States v .
Gypsum Company, 333 US 364 at page 395, w h e r e i n the
court stated:
“ When although there is evidence to support it, the re
viewing court on the entire evidence is left with the
definite and firm conviction that a mistake h a s been
committed.”
It is crystal clear that even though there may be evi
dence to support findings of facts by the trial judge, these
findings should be set aside if the reviewing court after a
review of the entire evidence is left with a firm conviction
that a mistake has been committed.
A. THE EVIDENCE WAS NOT SUFFICIENT TO SUPPORT
THAT. PORTION OF FINDING OF FACT NO. 2 OF THE
.OPINION AND ORDER DATED AUGUST 17, 1967, THAT
11
THE DEFENDANTS FAILED TO GIVE PROPER NOTICE
TO STUDENTS AND THEIR PARENTS OF THE SPECI
FIED CRITERIA, AND THE TRANSFER APPLICATIONS
OF THOSE STUDENTS WHO DID NOT SPECIFY THESE
CRITERIA AS THE R E A S O N FOR THE REQUESTED
TRANSFER WERE REJECTED.
The trial judge erroneously found in finding of fact No. 2
“ that the defendants failed to give proper notice to stu
dents and their parents of the specified criteria and the
transfer applications of those students who did not specify
these criteria as the reasons for the requested transfers
were rejected,” Appendix pp. 18A-19A.
These facts had been previously decided differently by
the same judge, in this action, in his order of February 21,
1966, in which he denied the plaintiff’ s application for pre
liminary injunction restraining the defendants from denying
the immediate admission of plaintiffs as lateral transfers
after commencement of 1965-66 school year. Appendix pp.
1A-5A.
In the order of February 21, 1966, Chief Judge Butler
found in Finding of Fact 12 “ that the plaintiffs applied for
lateral transfers in grades other than 1, 2, 9 and 12 but
were denied their requests on the grounds that none had al
leged as a ground for such transfer either of the two cri
teria.” Appendix p. 3A.
/
The learned Judge further found in his order of February
21, 1966, in finding of fact 13 “ that after school assign
ments were made for the 1965-66 year, and before school
began, plaintiffs were informed that they were denied ad
mission to the school of their choice under the lateral
transfer provisions because they met neither of the two
criteria pre-requisite for such transfers.” Appendix p. 3A.
In finding of fact 14 of the order of February 21, 1966,
Judge Butler further said “ that notwithstanding that this
12
information was given to plaintiffs before the 1965-66
school year began, they neither then nor at two later meet
ings, in October 1965, indicated their desire for lateral
transfers on either of the two grounds required by the de
fendants.” Appendix p. 3A.
Chief Judge Butler’ s order dated February 21, 1966, con
tains conclusions of Law No. 7 which reads as follows:
“ That plaintiffs did not base their request for lateral
transfers upon either of the grounds placed in the cri
teria, and therefore, have not been prejudiced by the
failure of the defendants to give proper notice of said
criteria.” Appendix p. 5A.
In conclusion of Law No. 6 of Chief Judge Butler’ s or
der dated February 21, 1966, he stated:
. . the conditions adopted by the defendants were
cited by HEW in its statement of policies which served
as guideline for the defendants’ plan, and which was
available to the public.” Appendix p. 4A.
In conclusion of Law No. 11 of Chief Judge Butler’ s or
der dated February 21, 1966, he stated:
“ That defendants have in good faith adopted and ap
plied a valid plan of desegregation approved by HEW,
and plaintiffs therefore are not entitled to the relief
prayed for.” Appendix p. 5A.
This order of February 21, 1966, was not appealed. No
additional evidence has been heard by Chief Judge Butler
effecting the findings of fact and conclusions of law con
tained in his order of February 21, 1966, and therefore it is
binding on all of the parties and on the court.
Chief Judge Butler’ s order of February 21, 1966, con-
13
clusively established that information concerning the cri
teria required for lateral transfer was furnished the stu
dents or their parents before the 1965-66 school year be
gan, and at two later m e e t i n g s in October, 1965, and
neither the students or their parents indicated that they de
sired to transfer on either of the two grounds set forth in
the criteria.
This order of February 21, 1966, also conclusively es
tablished that the plaintiffs had not been prejudiced by any
lack of notice and that the defendants had in good faith
adopted and applied a valid plan of desegregation.
The facts found in the order of February 21, 1966, com
pletely negate the portion of finding of fact No. 2 set forth
in the first paragraph of this point.
This finding that the defendants failed to give proper no
tice to students and/or their parents of the specified cri
teria without includting the facts heretofore found by the
court in the order of February 21, 1966, was clearly er
roneous. It tends to give a completely wrong impression
that the defendants have acted in bad faith and committed
an act which was prejudicial to the plaintiffs and possibly
others whom they claim to represent contrary to the pre
vious, conclusive finding of the court.
B. THE EVIDENCE WAS NOT SUFFICIENT TO SUPPORT
FINDINGS OF FACT NO. 8 OF THE OPINION AND OR
DER DATED AUGUST 17, 1967, THAT THERE IS MARK
ED H O S T I L I T Y TO SCHOOL DESEGREGATION IN
FRANKLIN COUNTY, AND WIDE PUBLICITY HAS BEEN
GIVEN TO THE ACTS OF INTIMIDATION, THREATS
AND REPRISALS AGAINST NEGRO PARENTS WHO HAVE
REQUESTED REASSIGNMENT OF THEIR CHILDREN TO
PREVIOUSLY ALL WHITE SCHOOLS.
The learned Judge found as finding of fact 8 in his o-
14
pinion and order of August 17, 1967, “ there is marked hos
tility to school desegregation in Franklin County, and wide
publicity has been given to acts of intimidation, threats
and reprisals against Negro parents who have requested re-
a s s i g n m e n t of their children to previously all White
schools.” Appendix pp. 21A-22A.
The learned Judge shows in footnote 4 of his opinion
and order dated August 17, 1967, that the sole basis of
this finding of fact is as follows:
“ 4. The Franklin Times, a newspaper of general cir
culation in Franklin County, edited by Albert Clinton
Fuller, a member of the defendant School Board, has
published from time to time the names and addresses
of each Negro student requesting reassignment to a
previously all-white school, the name of his parent,
and the identity of the school. Acts of intimidation
have usually ensued. The local and state press have
given extensive coverage to the incidents in Franklin
County.” Appendix p 22A.
The record of this action discloses that the only time the
names and addresses of students requesting reassignment
to a previously all-white school were published in the
Franklin Times was June 16, 1964, Appendix pp. 66A-69A,
a date before the defendant Board of Education had adopted
a plan of desegregation of the schools.
The record also discloses that on June 8, 1965, the
Franklin Times published the names without addresses of
students, most of whom were seeking lateral transfers in
spite of no legal right as found by the court in this action.
Appendix pp. 69A-72A.
A diligent search of the record in this action discloses
that no other publication of the Franklin Times contained
either the names or addresses of students requesting as-
15
signment to a previously all-white school.
The finding of the court that the Franklin Times from
time to time published the names and addresses of each
Negro student requesting reassignment to a previously all-
white school is unsupported by the evidence and shows that
the Judge was under a complete misapprehension that the
Franklin Times was repeatedly printing the names and
addresses of students who desired to transfer.
It is respectfully submitted that any finding of fact based
upon such a misapprehension of the true evidence is clearly
erroneous and should be disregarded by the court.
Actually these plaintiffs, whose names and addresses
were published, were still litigating their claim of right of
lateral transfer as late as February 21, 1966, when their
claim of right to lateral transfer was denied by the court.
Appendix pp. 1A-5A.
These plaintiffs were not intimidated by the publication
of their names or by any other act or means. Subsequent to
the publication of their names, they employed counsel,
brought this action and sought lateral transfer to the pre
dominately white schools. As late as February 21, 1966,
when their right was denied by the court, the plaintiffs
were still trying to make lateral transfer to the predomi
nately white schools. Appendix pp. 1A-5A.
Chief Judge Butler stated at the final hearing:
“ You may object, of course, for the record, but we
don’ t want to clutter up the record with too many objec
tions and exceptions because the court will automat
ically exclude from its consideration any evidence that
it considers incompetent.” Appendix p. 66A.
Footnote 4 to the Judge’ s finding of fact 8 discloses that
16
,inspite of the Judge’ s statement that he would automatically
exclude from consideration any evidence that was incom
petent, he was greatly impressed by publicity in the news
papers, not only in Franklin County but in out-of-county
newspapers, all of which were completely hearsay and for
which the defendants were in no wise responsible.
The Judge disclosed in his remark to counsel for the
defendants during oral argument that he was unduly im
pressed by hearsay evidence and sensational-minded news
papers when he stated:
“ Do you know of any other county or school system in
the State of North Carolina that has had as much pub
licity in the newspaper headlines with respect to acts
of so-called intimidation as has the Franklin County
System in the past two years?” Appendix p. 254A.
Since finding of fact no. 8 is based upon hearsay printed
by newspapers and a completely erroneous conception of
the number of times that the names and addresses requesting
transfers has been published in the Franklin Times, this
finding of fact is clearly erroneous and should be disiiv
garded by the court.
C. THAT PORTION OF FINDING OF FACT NO. 9 “ THAT
AFTER THE ADOPTION OF THE FREEDOM OF CHOICE
PLAN OF DESEGREGATION, THE ACTS OF INTIMIDA
TION, THREATS AND REPRISALS A G A I N S T NEGRO
PARENTS CONTINUED. EXPLOSIVES WERE PLACED
AT NEGRO HOMES, SEVERAL NEGRO HOMES WERE
SHOT. INTO, WELLS WERE CONTAMINATED WITH OIL
AND TACKS OR NAILS WERE PLACED IN DRIVEWAYS.
AS A RESULT OF HARRASSMENT, INTIMIDATIONS, AND
REPRISALS AGAINST THE NEGRO P A R E N T S AND
THEIR FAMILIES. SEVERAL WI THDREW THEIR RE
QUESTS FOR ASSIGNMENT TO PREVIOUSLY ALL WHITE
SCHOOLS AND SOUGHT REASSIGNMENT TO ALL NEGRO
17
SCHOOLS” IS NOT SUPPORTED BY THE EVIDENCE.
It is clear that this portion of finding of fact no. 9 pur
ports to find continuous acts of threats, reprisals and intim
idations from the adoption of the freedom of choice plan in
1965, until an alleged bombing incident on March 5 or 6,
1967, testified to by Mrs. Christine Coppedge. Appendix
pp. 22A-24A.
There is no reliable evidence of any acts of violence
committed within the Franklin County Administrative Unit
after the interim order of the court dated July 27, 1966.
Appendix pp. 15A-37A.
The plaintiff-intervenor, even though it listed every act
it could possibly dream of (including the interim order of
Judge Butler and the freedom of choice period of August
1-15, 1966) in its chronology of intimidations, was not able
to list a single incident of intimidation that can be proved
by any reliable evidence that occurred within the Franklin
County Administrative Unit after the interim order of July
27, 1966. Appendix pp. 255A-260A.
The majority of the incidents reported in the plaintiff-
intervenor’ s chronolgy of intimidations as occurring after
the interim order of July 27, 1966, were in the Franklinton
City Administrative Unit.
In footnote 6 to finding of fact no. 9 in the opinion and
order dated August 17, 1967, the Judge stated that he has
not considered incidents which occurred outside of Frank
lin County but he did consider incidents of intimidation
and community pressures in Franklinton, which is a sepa
rate school administrative unit, located at the west edge of
Franklin County. Appendix pp. 23A-24A.
It is respectfully submitted that neither the people of
Franklin County nor any of the school officials of Franklin
18
County had any control whatsoever over the acts of the
people within the Franklinton City Administrative Unit, or
any of the officials of that administrative unit and findings
of fact based upon acts connected with the Franklinton City
Administrative Unit or within the jurisdiction of the Frank
linton City Administrative Unit have no bearing whatsoever
on the acts involved in this case which involve only the
Franklin County School System. If Franklinton City School
Administrative Unit is so connected with the F r a n k l i n
County Unit that acts committed within the Franklinton City
School Unit and connected only with that school unit should
be held against the Franklin County School System, then
the p l a i n t i f f s and the plaintiff-intervenor should have
brought that school unit into this action where the facts
could have been properly litigated by the interested parties.
It was clearly erroneous for the learned Judge to consider
these alleged Franklinton City Unit incidents a g a i n s t
Franklin County Administrative Unit.
Chief Judge Butler stated in footnote 6 that he did not
consider the incidents of February 1967, concerning Isham
High, a Wake County Negro, Appendix p. 23A. This was in
cluded in the plaintiff-intervenor’ s chronolgy of intimida
tions, appendix pp. 255A-260A, because it realized that it
could not prove any incidents inside the Franklin County
Administrative Unit after the interim order dated July 27,
1966.
The judge should also have disregarded all of the other
acts of intimidation listed by the plaintiff-intervenor oc-
curing after the interim order.
The plaintiff-intervenor claimed as an act of intimidation
after the interim order dated July 27, 1966, that on August
8, 1967, Willie Perry’ s m o t h e r ’ s home was shot into.
Appendix p. 255A.
Neither Willie Perry’ s mother nor Willie Perry had any
children in the predominately White s c h o o l s , appendix
pp. 141A-150A. Furthermore Willie Perry, who testified to
19
the incident on cross-examination Appendix pp. 144A-147A,
was a witness for the defendants and stated that she filled
out her choice forms on March o f 1967, without fear of any
harm to herself or to anybody in her home. Appendix pp.
141A-144A. She also testified that Negroes who live in her
community are without fear in making a choice of schools.
Appendix p. 145A.
The plaintiff-intervenor, in its frantic search for an inci
dent after the interim order of July 27, 1966, resorted to
alleging as an act of intimidation shots fired into the home
of Wiley Davis,May 26,1967, who did not have any children
in the predominately white schools, Appendix p. 259A. The
p la in tiff-in terven or did not bring in Wiley Davis or his
brother James Davis, the interested parties, to testify a-
bout this incident but instead relied on the completely
hearsay testimony of Rev. Coppedge. Appendix pp. 231A-
232A, 91A, 92A. The plaintiff-intervenor should not have
called this incident to the court’ s attention, and the court
should not have considered it in connection with the Frank
lin County Schools. The fact that the interested parties
were not produced indicates strongly that there was some
reason for this shooting other than a school attendance pro
blem. Certainly there is no evidence to connect this incident
with the freedom of choice system of the Franklin County
Schools.
The plaintiff-intervenor also listed in its chronology of
intimidation after the i n t e r i m order of July 27, 1966, a
shooting incident at the residence of Margaret Fogg and
Brenda Fogg on September 3, 1966. Appendix p. 256A. The
proof of this incident offered by the plaintiff-intervenor was
the 14-year old Margaret Fogg.Appendix p, 267A.There were
four other people in the house at the same time, namely
Margaret Fogg’ s mother, her father, and her two sisters,
Appendix p. 267A.Not one of these four witnesses were pro
duced by the plaintiff-intervenor to prove this incident.^
Certainly the mother and father of Margaret Fogg were more
qualified to relate the facts than this 14 year old child. It
is respectfully submitted that the mo t h e r and father of
20
Margaret Fogg were not produced by the plaintiff-intervenor
because their testimony would have shown that this alleged
shooting incident had not relationship to the school whatso
ever, but concerned some matter in the special knowledge
of the father or mother.
The so-called explosion incident that is listed in plain-
tiff-intervenor’ s chronology of intimidation at the Coppedge
home on March 5 or 6, 1967, appendix p. 258A, was so un
reliably testified to by Mrs. Christine Coppedge that it
should not have been considered by the court at all. Mrs.
Christine Coppedge testified that she did not find any hole
in her yard, Appendix pp- 89A-90A. That she saw a car
leaving, Appendix p. 83A. That she fired a rifle about 16
times, Appendix p. 84A. That in addition' to herself Martha
Clanton and Alice Clanton were present, Appendix p. 83A.
Mrs. Christine Coppedge was completely contradicted by
her own son Harold Douglas Coppedge, who testified that
his mother did see a hole and discussed it with him, Ap
pendix p. 90A.
Mrs. Christine Coppedge was further contradicted by the
witness Ira Bowden, who testified that he lived within sight
of the Coppedge residence. That he and his wife were
about to go to bed on March 5 or 6, and that he heard some
thing like a single gunshot. That he went out on his porch.
That he did not see any cars pass or leave the Coppedge
residence. That he did not see any lights at the Coppedge
house and did not hear any dogs bark. Appendix pp 221A-
224A.
Mrs. Christine Coppedge was further contradicted by the
testimony of Odell Rice Gardner, who testified that she
lived approximately 200 yards from the Coppedge residence.
That she heard something like a gun go off on the night of
March 5 or 6. That she looked out but didn’ t see anything.
That she didn’t hear any rifle shots after the first sound
that she heard. That the Coppedges have some dogs bur
21
that she didn’t hear any of them. That she heard nothing
but the gun go off one time, Appendix pp. 225A-228A.
The proof of the incident on March 5 or 6, 1967, at the
Coppedge residence is rendered still more unworthy of be
lief due to the failure of the plaintiff-intervenor to produce
Mrs. Martha Clanton as a witness to the incident. She was
present in the Coppedge house at the time, according to the
testimony of Mrs. Christine Coppedge, Appendix p. 83A.
Furthermore, the witness Alice Faye Clanton was examined
at length by the plaintiff and the plaintiff-intervenor in her
deposition on April 27, 1967, and neither the plaintiff nor
the plaintiff-intervenor dared to mention the incident of
March 5 or 6 at the Coppedge residence in their examina
tion. Record Volume X Part 1. It is respectfully submitted
that the plaintiff-intervenor failed to produce proof by these
two alleged eye-witnesses to the affair because they could
not have corroborated Mrs. Coppedge, but would in fact,
have contradicted her.
Certainly the court was not justified in considering this
alleged incident of March 5 or 6 on the basis of this ex
tremely unreliable and contradicted evidence.
The plaintiff-intervenor also listed in its chronology of
intimidation the dismissal of the Rev. Frank Wood, and the
resignation of Robert Lathan. Appendix pp. 255A,257A. It is
respectuflly submitted that there are so many factors that
enter into the resignation or dismissal of Baptist ministers,
who are subject to the will of their congregation, that it is
extremely unjust for any person to even guess at the real
reason. There are so many reasons why a minister and his
congregation cannot continue together that space does not
allow that they be set forth in this brief.
Actually the evidence discloses that the Rev. Robert
Lathan made an application in August, 1966, for a position
,in the Chaplin’ s Corps of the United States Army, Appendix
22
pp. 265A-267A. The evidence further discloses that he filed
this application because he concluded that he should move
into an area where his education and ministry could be more
effective, and that he felt the United States Army would be
a good field for him, Appendix pp. 266A-267A. The evidence
further disclosed that the Rev. Frank Wood was a Baptist
minister serving at the will of his congregation and that he
willingly left the matter of his acceptability up to the con
gregation. Appendix p. 261A. He voluntarily completed his
tenure of 30 days as was permitted by the constitution of his
church, and actually preached two sermons during that
period, Appendix pp. 262A, 264A. The evidence further dis
closes that the Rev. Frank \vood was invited to Riverside
School by the Defendant Board when the free choice system
was explained after the interim order, but that he did not
attend. Appendix p. 262A. Also, the evidence discloses
that there was a theological dispute between this witness
and another member of the church, who was an ordained
minister, and who accused him of having desecrated the
pulpit. Appendix pp. 263A-264A.
Certainly the court was not justified in entering into
church affairs. These incidents should not have been con
sidered by the court in its determination that acts of intim
idation continued after the interim order of July 27, 1966.
The plaintiff-intervenor also attempted to cure its com
plete lack of proof of continuity of incidents subsequent to
the interim order of July 27, 1966, by listing alleged inci
dents that were alleged to have occurred between students
in the schools. It is respectfully submitted that no schools
can be operated without some unpleasant incidents happen
ing between students and such alleged incidents should
not have been considered by the court in finding continuous
intinidatory acts.
Chief Judge Butler in footnote 7 of the Opinion and Order
dated August 17, 1967, considered the deposition of Marga
ret Crudup as a typical example of that portion of finding
23
of fact No. 9 wherein he stated:
“ As a result of the harrassment, intimidations and
reprisals against Negro parents and their families,
several withdrew their requests for assignment to pre
viously all-white schools and sought reassignment to
all Negro schools.” Appendix pp. 22A-24A.
It is respectfully submitted that the learned Judge would
not have used the deposition of Margaret Crudup as an
example of one who withdrew from the schools because of
intimidations and reprisals, unless he considered it the
best example that he could call attention to. It certainly
logically follows that the deposition of Margaret Crudup is
the one upon which he relied the heaviest for this finding.
The deposition of Margaret Crudup discloses that when
she chose the predominately White school at Youngsville
she did so upon the mistaken belief that all the seniors in
her class would go there, and that at the time she received
a threatening letter her mother had already sent a letter
requesting that she be withdrawn from the school, Appendix
pp. 77A-78A. That the so-called threatening letter was post
marked in July, 1965, and the parents letter requesting a
change was written on June 10, 1965, Appendix pp. 79A-80A.
Margaret Crudup further testified that on August 12, 1965,
she wrote a letter and had her mother sign it and delivered
it to Mr. Smith, superintendent of Franklin County Adminis
trative Unit, and this letter stated that Margaret Crudup was
a senior and had attended Riverside Union school, in Louis-
burg every day since her first day in High school, and she
wanted to return there for that reason, Appendix pp. 80A-81A.
Margaret Crudup further testified that the reason she wanted
to go back to Riverside for the 1965-66 school year was
because she had been there every day since her first day
in high school and would like to graduate from there. That
she was sent to the school that she wanted to go to, Ap
pendix p. 82A.
24
The uncontradicted evidence discloses that alleged in
timidations or reprisals had nothing to do with the with
drawal of Margaret Crudup’ s request for assignment to a
previously all-white school. She was motivated by the com
pletely natural motivation of desire to graduate with those
persons with whom she had been associated from the first
day of her high school career.
The deposition of Margaret Crudup, rather than sustaining
the judge’ s findings, completely supports the defendant’ s
contention that the finding was completely erroneous. Fur
thermore, the defendant’ s call attention to the fact that the
incident testified to by Margaret Crudup happened prior to
the 1965-66 school year which was a long time before the
interim order dated July 27,1967, was entered and does not
show continuous acts of intimidations extending beyond the
date of the interim order.
D. THE EVIDENCE IS NOT SUFFICIENT TO SUPPORT
THAT PORTION OF FINDING OF FACT 10 OF THE 0-
PINION AND ORDER DATED AUGUST 17, 1967, THAT
READS AS FOLLOWS: “ THE I N T I M I D A T I O N S AND
THREATS CONTINUED THROUGHOUT THE 1965-66 and
1966-67 SCHOOL YEARS,” AND THAT PORTION WHICH
READS AS FOLLOWS: “ IN MARCH, 1967, DURING THE
FREEDOM OF CHOICE PERIOD FOR THE 1967-68
SCHOOL YEAR, THE INTIMIDATIONS INTENSIFIED.”
The only intimidations and threats referred to in these
findings and footnote 8, thereto, that were found to have
continued throughout the 1965-66 and the 1966-67 school
years were the telephone calls testified to by the Rev.
Luther Coppedge and his wife, Christine Coppedge, Ap
pendix p. 24A. It was, therefore clear error on the part of
Judge Butler to find as he did in finding of fact 10, that
“ the intimidations and threats continued throughout the
1965-66 school year, and the 1966-67 school year.”
25
Intimidations and threats of a general type or manner as
indicated in this finding of fact did not occur. No fact is
truer than the fact that neither the Rev. Coppedge or none
of his family were ever intimidated. The Rev. Coppedge
testified that in April, 1966, he chose exactly the school
he wanted for his son to attend, and did so again in August,
1966, when the county allowed another free choice period
and in the free choice period of March, 1967, he chose
exactly the school he wanted his son to go to. Appendix
pp. 229A-231A.
No one corroborated the Coppedges concerning these
telephone calls. Even a crank of the worst type would not
waste his time making six to eight telephone calls a day
and around 100 during the school year to a person such as
the Coppedges who have shown themselves militant advo
cates of integration.
In finding of fact 10 the trial judge also erroneously
stated “ In March, 1967, during the freedom of choice period
for the 1967-68 school year, the intimidations intensified.”
Appendix p. 24A.
It has been shown in the defendants’ argument Point I-C
that the evidence of this fact depends upon the testimony
of Mrs. Christine Coppedge concerning an alleged bombing
incident at her home during the nighttime. As has heretofore
been set forth in Point I-C of the defendants’ brief, this
evidence by Mrs. Coppedge has been shown to be so
contradicted that it is not a proper basis for this finding of
fact.
E. THE EVIDENCE IS NOT SUFFICIENT TO SUPPORT
FINDING OF FACT 12 IN THE OPINION AND ORDER
DATED AUGUST 17, 1967, THAT COMMUNITY ATTI
TUDES AND PRESSURES IN THE FRANKLIN COUNTY
SCHOOL SYSTEM EFFECTIVELY INHIBITED THE EX
ERCISE OF FREE CHOICE OF SCHOOL BY NEGRO PU-
26
PILS AND THEIR PARENTS.
\ .
1. There is not sufficient evidence of attitudes and
pressures in the Franklin County School System, since
the interim order dated July 27, 1966, to warrant a
finding that any attitudes and pressures have effec
tively inhibited the exercise of free choice by Negro
pupils and their parents.
As heretofore set forth in Point I-C of the defendants’
brief, the court was not justified in holding any acts or
activities having to do with integration of the Franklinton
City School Unit, a completely separate school unit, a-
gainst the defendants.
The defendants have shown in Point I-C of this brief that
no school administration can completely eliminate unpleas
ant incidents between students, whether the students be all
White, all Negro or a mixture of White and Negro. The court
was not justified in using some unpleasant incidents be
tween a Negro student and a White student at predominately
white schools to support this finding.
The defendants have heretofore pointed out that the
learned trial Judge has in his findings of fact been unduly
influenced by sensational-sounding, hearsay newspaper
articles. Point I-B of defendants’ brief.
Without the use of incompetent, irrelevant and immaterial
evidence, finding of fact 12 cannot be justified.
2. The evidence does not support the finding that there
have been any acts disclosing an attitude or pressures
in the Franklin County School System that would
effectively inhibit the exercise of free choice of
schools by Negro students and their parents after the
interim order dated July 25, 1966.
27
The defendants have thoroughly reviewed the evidence
in Point I-C of the brief and there is no evidence to show
that any acts were committed in the Franklin County School
System that effectively inhibited the exercise of free choice
of schools by Negro students and their parents since the
interim order dated July 27, 1966.
3. The review of the entire record discloses that a mis
take has been committed by the trial court in finding
of fact 12.
As set forth in U. S. v. Gypsom Company, supra, even
though there is some evidence to support a finding of fact,
it is clearly erroneous when a review of the entire evidence
leaves the court with the definite and firm conviction that a
mistake has been committed;
A review of the entire evidence certainly leads to a firm
conviction that a mistake has been committed by the court
in its finding of fact 12, that community attitudes and pres
sures in the Franklin County School System have effective
ly inhibited the exercise of free choice of schools by Negro
pupils and their parents, Appendix p. 25A. Heretofore, the
defendants have pointed out how the evidence was insuf
ficient to allow the court to make finding of fact 12. Ac
tually, in lieu of finding of fact 12, on the basis of all of
the evidence, the court should have found that since the
interim order of July 27, 1966, there havk been no com
munity a t t i t u d e s and pressures in the Franklin County
School system that have effectively inhibited the exercise
of free choice of schools by Negro pupils and their parents.
Pursuant to the guidelines of the interim order dated July
27, 1966, counsel for all parties and the defendant school
board met with representatives of the White and Negro com
munities and made good faith efforts to eliminate any pres
sures that might inhibit a free choice of schools, Appen
dix pp. 24A-25A. After the interim order a new free choice
28
opportunity was afforded all the Negro students in the Frank
lin County School District, and, as a result 49 Negro stu
dents chose to transfer to the predominately White schools,
Appendix p. 19A. There is no credible evidence of any acts
of violence toward any of these Negro students, and all but
one, except those graduating, have again chosen the pre
dominately White schools.
The trial judge in finding of fact completely failed to
take into consideration that in order for him to find that the
exercise of free choice of schools has been effectively in
hibited, the inhibition must have been a reasonable one and
and not one based upon excessive timidity and excessive
imagination. The fact that 49 students chose a predomi
nately White school without any credible evidence of acts
of violence resulting shows that any fear or inhibition the
Negro students or their parents might have toward transfer-
ing to the predominately White schools was indeed un
reasonable. Actually it is more reasonable to say that the
free lunch program of HEW, which is confined to the schools
in which the parents of low income, and had children had
more to do with preventing freedom of choice, than any al
leged community pressures and attitudes. The low income
schools are the predominately Negro schools, Appendix pp.
238A-243A.
Actually the Department of Health Education & Welfare
recognized this fact because for the school year beginning
1967-68, the requirement has been modified, Appendix
pp. 240A-243A. Even with the modification a Negro student
who transfers does not carry his “ free lunch” with him un
less at least ten others also transfer, Appendix pp. 242A-
243A.
The old and new requirement of Health, Education Wel
fare that its lunch program be confined to the schools of
low income had and has the effect of depriving the Negro
students eligible for free lunches of their right to transfer
unless they give up their right to free lunches. The loss of
.free lunches to an economically deprived family is a more
29
real and reasonable reason for failure to transfer than the
imaginative fears and evidence relied upon by the trial court.
The fact that 55 of the Negro students who have been
transferred to predominately White schools by the defend
ant Board of Education, in spite of their free choice to at
tend predominately Negro schools, pursuant to Chief Judge
Butler’ s Opinion and Order dated August 17, 1967, have em
ployed legal counsel and seek to intervene in this action
as party-defendants on the grounds that their freedom of
choice has been violated and the plaintiffs in this action
do not represent them and that they do not desire to trans
fer from the school of their choice, indicates irrefutably
that the strongest pressure and attitudes that exists in
Franklin County is the desire of the Negro students and
their parents to continue to attend predominately Negro
schools, Appendix pp. 56A-61A.
The learned judge completely ignored the fact that the
defendants produced 25 Negro citizens and one Indian citi
zen who had chosen the predominately Negro schools, and
these citizens testified that their choice was without fear
or intimidation whatsoever.
The citizens who testified on behalf of the defendants
are as follows: Marion Perry Branch, Appendix pp. 106A-
110A; Margaret White, Appendix pp. 110A-114A; Ruby E.
Perry, Appendix pp. 114A-118A; Charlie 0. White, Appen
dix pp. 118A-121A; Charlie Perry, Appendix pp. 121A-128A;
Sophia Perry, Appendix pp. 128A-131A; Frank W. Rogers,
Appendix pp. 131A-134A; M. L. Clemons, Appendix pp.
134A-137A; Mrs. Joyce Terrell, Appendix pp. 137A-141A;
Willie Perry, Appendix pp. 141A-150A; Dazzell Walters,
Appendix pp. 150A-153A; Alveretta Moore, Appendix pp.
153A-158A; Cunetter Bolden, Appendix pp. 158A-165A;
Melissa Dean, Appendix pp. 165A-169A; Mrs. Ollie Strick
land, Appendix pp. 169A-173A; Estell Wilkins, Appendix pp.
174A-177A; Lossie Mae Green, Appendix pp. 177A-204A;
Gladys Hayes, Appendix pp. 199A-200A; Robert Richard-
30
son, Appendix pp. 200A-204A; Edward Gupton, Appendix pp.
204A-207A; Veronica Hawkins, Appendix pp. 214A-220A;
Evelyn K. Harris, Appendix pp. 208A-214A; Mattie W. Crud-
up, Appendix pp. 104A-106A; Arnee Hartsfield, Appendix
pp. 101A-104A; Silas Jones, Appendix pp.99A-101A; Gerald-
dine Crudup Harris, Appendix pp. 96A-99A.
These witnesses were representative of the citizenship
in the area served by Cedar Street, Bunn, Gethsemane,
Perry’ s, Gold Sand, Edward Best and Riverside Schools and
it was stipulated by the counsel for the plaintiff, plaintiff-
intervenor and counsel for the defendants that the defend
ants could produce names of a comparable number of ne
groes residing in the vicinity of Epson High School, Louis-
burgh High School and Youngsville High School who would
testify substantially as the other 25 Negro citizens and one
Indian citizen had testified, Appendix p. 207A.
Chief Judge Butler also failed to take into consideration
in this finding that the plaintiff and the plaintiff-intervenor
failed to produce a single witness or any evidence as to
any existing fear on the part of any person concerning the
freedom of choice for the school year 1967-68, which choice
was made in March, 1967.
It is respectfully submitted that on the basis of the en
tire evidence there is a definite and firm conviction that a
mistake has been committed in this finding of fact, and that
the same is clearly erroneous.
POINT TWO
THE COURT COMMITTED REVERSIBLE ERROR WHEN
IT ORDERED THE DEFENDANTS TO PREPARE AND
SUBMIT TO THE COURT THIRTY DAYS AFTER MARCH
1, 1968, OR THIRTY DAYS AFTER THE FILING OF DE
CISION OF THE U. S. COURT OF APPEALS OF THE
FOURTH CIRCUIT IN THIS CAUSE, WHICHEVER IS
EARLIER, A PLAN FOR THE ASSIGN VENT, AT THE
EARLIEST PRACTICAL DATE, OF ALL STUDENTS UP-
31
ON T IE BASIS OF A UNITARY SYSTEM OF NON-RACIAL
GEOGRAPHIC ATTENDANCE ZONES OR A PLAN FOR
THE CONSOLIDATION OF GRADES, OR SCHOOLS, OR
BOTH.
The Franklin County Board of Education, prior to the
Opinion and Order of August 15, 1967, was operating, in
good faith, a totally complete freedom of choice plan for
all students in the Franklin County Unit, under approval
of Department of Health, education and Welfare. Appendix
pp. 1A-5A.
The Fourth Circuit Court of Appeals has consistently
approved of freedom of choice as a consitiutionally accept
ed plan in the following cases: Jeffers v. Whitley, 309 F
2d 621; Wheeler v. Durham City Board of Education 346 F
2d 768; Brandley v. School Board, City of Richmond, 345 F
2d 310; Fedler v. Harnett County Board of Education, 349
F 2d 366; Swan v. Charlotte-Mecklenburg Board of Educa
tion, 369 F 2d 29; Green v. County School Board of New
Kent County, Virginia, decided June 12, 1967_______ F 2d
----------- , Bowman v. County School Board of Charles City
County, Virginia, decided June 12, 1967,______ F 2d_______
The Circuit Court of Appeals in Green v. County Board
ofNew Kent County, Virginia, supra, and Bowman v. Coun
ty School Board of Charles City County, Virginia, supra,
stated that the fact that the Department to approval of the
school board plan by HEW is entitled to respectful con
sideration by the court.
In the recent cases of Green v. County school Board
of New Kent County supra, and Bowman v. County School
of Charles City County, supra, the Negro plaintiffs attack
ed, as a deprivation of their constitutional r i g h t s , the
“ Freedom of Choice Plan” , under which each Negro pupil
had an acknowledged “ unrestricted right” to attend any
school in the system desired. In these cases the Negro
32
.plaintiffs contended that compulsory assignments were
necessary to achieve a greater intermixture of the races
notwithstanding their individual choices, and that they
were entitled to such an order.
This court in rejecting the Negro plaintiffs attack on
the freedom of choice plan, which allowed annual exer
cise of uninhibited choice, as does the Franklin County
School Plan, pointed out that the distinction between a
constitutional freedom of choice plan and an unconstitu-
ional freedom of choice plan is the initial assignments
and said:
“ Employed as descriptive of a system in which
each pupil, or his parents, must annually exercise
an uninhibited choice, and the choices govern the
assignments, it is a very different thing. If each
pupil, each year attends the school of his choice,
the constitution does not require that he he depriv
ed of his choice unless its exercise is not free.
This we have held, and we adhere to our holdings.”
In the recent case of Swan v. Charlotte-Mecklenburg.
County Board of Education, 369 F 2d 29, the Fourth Cir
cuit Court of Appeals, in upholding the plan of the Char
lotte Board which in addition to a zoning plan had a pro
vision allowing any pupil to transfer, whatever the basis
of his initial assignment, to any other school in the sys
tem, subject only to space limitations in the school to
which transfer is sought, rejected a contention that the
Board had a duty to achieve maximum mixture of the races
and stated:
“ Whatever the Board may do in response to its own
initiative or that of the community, we have held
that there is no constitutional requirement that it
act with the conscious. purpose of achieving the
maximum mixture ofraces in the school population.”
33
A. THE OPINION AND ORDERED DATED AUGUST 17,
1967, ERRONEOUSLY DEPRIVES ALL OF THE STU
DENTS WHETHER WHITE OR NEGRO OF A CONSTITUT
IONAL FREE CHOICE PLAN.
It is true that this court in Green v. County School
Board of New Kent County, Virginia, supra, and Bowan
v. County School Board of Charles City County, supra,
contained dictum to the effect that if there are extraneous
pressures which deprive the choice of its freedom, the
school board may be required to adopt affirmative measures
to counter them.
Certainly this court did not mean to infer that because
there are extraneous pressures which deprive the choice
of freedom, the court itself should come in and completely
kill freedom of choice by its order.
The Court by its order in this case, instead of taking
affirmative measures to counter any alleged extraneous
pressures which might deprive the students of their free
dom of choice exerted great pressure of its own and com
pletely deprived all of the students, both Negro and White,
of the benefit of any constitutional freedom of choice plan.
B. THE OPINION AND ORDER DATED AUGUST 17, 1967,
IF ALLOWED TO STAND GIVES THE FRANKLIN COUN
TY BOARD OF EDUCATION NO REASONABLE ALTER
NATIVE FOR PRESERVATION OF FREEDOM OF CHOICE
IN ANY FORM.
As heretofore pointed out, this order purported to cure
an alleged disease by killing the patient.
The order gives the Board one of two alternatives. (1)
a unitary system of non-racial geographic attendance zones
or (2) a plan for consolidation of grades or schools or both.
34
In a geographic attendance zone, all students in the
zone will have to attend the school within that zone, and
in the event of a consolidation all of the students will
have to attend the school or grades consolidated.
The plan that the school board must submit does not
allow the Board to use a freedom of choice system of any
kind or nature whatsoever.
Centainly to prevent a complete death of the patient
(freedom of choice) the order should have allowed the Board
to at least include in the plan a freedom of choice system
superimposed upon a zoning plan as was held to be con
stitutional in the Swan v. Mecklenburg Board of Education,
supra.
C. THE EVIDENCE WAS NOT SUFFICIENT TO SUPPORT
A FINDING THAT EXTRANEOUS PRESSURES ARE NOW
DEPRIVING STUDENTS AND/OR THEIR PARENTS OF
A FREE CHOICE.
As heretofore pointed out in the defendants’ argument
Point I-B the court is not entitled to consider hearsay evid
ence of sensational sounding newspaper articles in its
findings of facts. In Point I-C of the defendants’ brief, it
was pointed out that the court should not consider acts,
within the separate Franklinton City School Unit. It has
also been pointed out in the defendants’ brief Point I-C
that the evidence in this action taken as a whole discloses
no acts of intimidation since the interim order dated July
27, 1966, within the Franklin County Administrative Unit.
49 Negro students chose the p r e d o m i n a t e l y White
schools during the 1966-67 school year and all but one of
them have remained in the school system as students in the
predominately white schools, unless graduated, and no in
cidents of intimidation were shown as to any of these stu
dents by credible evidence. Appendix p. 19A.
35
It has been pointed out in Point I-E of defendants’
brief that 55 Negro students who were assigned to predom
inately white schools pursuant to Chief Judge Butler’ s
opinion and order dated August 17, 1967, have protested
to the extent that they have employed an attorney and
sought to intervene in this action on behalf of the defend
ants, alleging that the defendants freedom of choice plan,
as to them, was unconstitutional, and that they had chosen
the Negro schools freely and without fear or compulsion
from anyone whatsoever.
In addition the defendants have produced numerous
Negro citizens and one Indian citizen who have verified
the defendants’ contention that a free choice has con
tinually been utilized in the Franklin County Administrative
Unit without effective intimidation or fear for a period be
ginning with the interim order dated July 27, 1966, as
shown in Point I-E of the defendants’ brief.
The defendants have set forth in Point I-E of this brief
that the failure of the plaintiffs or the plaintiff-intervenor
to produce credible evidence as to any existing fear or in
timidation on the part of any person concerning freedom of
choice for the school year 1967-68, which choice was made
in March, 1967, shows conclusively that no fear and/or
any extraneous pressure has deprived or inhibited any per
son in the free exercise of his or her choice of schools
during that period.
Certainly all of the students of the Franklin County
School Unit should not have been deprived of their con
stitutional right of freedom of choice by the court because
of some highly imaginative fear on the part of a few per
sons. Certainly any fear that existed on the part of the
students or their parents would have to be a reasonable
fear based on facts and circumstances which reasonably
justified the fear, and it is respectfully submitted that the
facts and circumstances shown in the record of this case
36
do not warrant a reasonable fear or apprehension on the
part of anyone.
Certainly the plaintiff and the plaintiff-intervenor should
have been required to produce some evidence that the al
leged fear and intimidation and extraneous pressures was
in effective existence in the Franklin County School Unit
in March, 1967, when the freedom of choice was made for
the 1967-68 school year, and failing, as they have to meet
this all important test, the court could not have possibly
been justified in ordering an end to freedom of choice in
Franklin County.
Certainly the evidence in this case does not meet the
test required by Judge Michie in Kier v. County School
Board of Augusta County, Virginia, 249 F Supplement 239,
at page 243, who stated that the freedom of choice system
should be allowed to stand unless widespread hostility
in the White Community was shown. Judge Michie stated:
“ In the absence of some overwhelming factual con
sideration such as e.g. widespread hostility in the
White community which might result in economic
or other reprisals to a Negro parent who assumes
initiative in sending his child to a predominately
White school, I must follow the Bradley rational.”
The evidence in this case shows that there is no cred
ible evidence of any acts of intimidation since the interim
order of July 27, 1966. Certainly the acts were not wide
spread, and after the interim order were nonexistent.
Even if the highly suspect evidence of Coppedge and
Fogg concerning incidents since the interim order are con
sidered, it is irrefutable that they had no effect on the
attendance of the predominantly white schools by the Cop
pedge child and the Fogg children for the evidence dis
closes that they continued to attend the predominantly
37
white schools.
The defendants respectfully submit for the court’ s at
tention the c a s e of United States v. Haywood County
Board of Education, 271 F Supplement 460, decided Au
gust 4, 1967, where the evidence of intimidation was much
stronger, than in the present case, and the court looked at
the record as a whole and refused to put an end to the free
dom of choice system of Haywood County. The court in
that case also indicated that the Fourteenth Amendment
applies only to state action and the Board of Education
is not chargable with acts of third parties. District Judge
of the Western District of Tennessee pointed out that if
the acts of private persons are chargeable to State action
then all actions would be state actions and there would
not be any distinction.
D. THE COURT ERRED IN CONCLUSION OF LAW 3
THAT ALMOST THREE TIMES AS MANY HAD SIGNED
THE DESEGREGATION PETITIONS IN 1963 AS CHOSE
THE PREDOMINANTLY WHITE SCHOOLS IN THE
FRANKLIN COUNTY SYSTEM DURING THE MARCH 1967.
CHOICE PERIOD INDICATES THAT THE PLAN IS NOT
OPERATING IN A CONSTITUTIONALLY ACCEPTED
MANNER.
The court stated in conclusion of law 3 of the Opinion
and Order dated August 17, 1967, that “ the fact that only
45 of approximately 3,100 Negroes elected to attend pre
dominantly White schools in the Franklin County System,
during the March, 1967, choice period, and after almost
three times as many had signed a desegregation petition
in 1963. . . . . . . .1.........................................................raises
an inference that the plan is not operating in a constitut
ionally accepted manner.” Appendix pp. 28A-29A.
Paragraph 3 of the conclusions of law is erroneous,
since the petition of those who desired desegregation in
1963 came at a time prior to the effective date of the free-
38
dom of choice plan, which commenced with the 1965-66
sessions, on a limited basis, and without limit for the
1966-67 school year, Appendix pp. lA-5A.The petitioners at
that time could have been and probably were in favor of
desegregation. There is no evidence that those people
signing the petition in 1963 had children in the schools,
and this fact is completely without value as a measuring
rod of those who desired to enter their children in pre
dominantly white schools in that year.
E. FACULTY ASSIGNMENT POLICIES OF THE FRANK
LIN COUNTY SCHOOL UNIT DID NOT JUSTIFY THE
COURT IN DEPRIVING ALL OF THE STUDENTS, BOTH
NEGRO AND WHITE, OF THE FRANKLIN COUNTY
SCHOOL UNIT OF FREEDOM OF CHOICE. THE FRANK
LIN COUNTY SCHOOL UNIT ASSIGNED ITS TEACHERS
TO THE SCHOOLS WITHOUT REGARD TO RACE.
The Franklin County Unit has complied with the interim
order of Chief Judge Algernon L. Butler, dated July 27,
1966, in that race, color, or national origin has not been a
factor in the hiring and assignment to schools or within
schools of teachers or other professional staff. Vacant
teacher positions have been open to all applicants and
each filled by the best qualified applicant. The Franklin
County School Board has encouraged transfers of members
of the faculty to schools within the system to which pupils
are predominantly of a race other than such teachers.
Appendix pp. 245A-250A.
Purusant to the defendants’ good faith compliance with
the interim order dated July 27, 1966, during the 1966-67
school year, two White teacher taught in R i v e r s i d e
Schools, a predominately Negro school; one Negro teacher
taught in Louisburg; one Negro teacher taught in Bunn
School. Said Louisburg and Bunn Schools are predominant
ly White schools. Also Negro and White staff members were
assigned duties in schools in which a majority of the stu-
39
dents are of a race other than the race of such staff mem
ber. Appendix pp. 20A, 26A.
The defendant Franklin County Board of Education has
also filed with the court, as ordered by the interim order
of Chief Judge Butler, definite objective standards for the
employment, assignment and retention of teachers and pro
fessional staff. Appendix pp. 43A-47A
Franklin County School System is operated in a com
munity where the number of prospective teachers are limit
ed. The school system does not have a supplementary tax
and is surrounded by neighboring school systems which do
have a supplementary tax and are able to outbid the de
fendants for teachers of the Franklin County School Sys
tem. Appendix pp. 236A-237A.
Because of the situation in Franklin County, the Board
has in good faith had to refrain from attempting to force
t e a c h e r s to teach across racial lines in any school in
which the teacher objected to teaching.
Many teachers will not teach in any school other than
they have selected for many reasons that are not related
to race, such as l o c a t i o n of the teachers’ homes, the
location of employement of husband or wife, and many
other similar reasons.
The Franklin County Board of Education in good faith
b e l i e v e s that it has followed Wheeler v. Durham City
Board of Education. 363 F 2d 738, which stated:
“ In the absence of teachers as parties to this pro
ceeding we do not think that the order should require
any involuntary assignment or reassignment of a
teacher.”
Teachers were not parties to this proceeding and are
40
still not parties, and the defendants respectfully call the
court’ s attention to the fact that the interim order dated
July 27, 1966, Appendix pp. 9A-10A, did not require in
voluntary assignment or reassignment of a teacher.
If the court considered that its interim order of July 27,
1966, Appendix pp. 9A-10A required involuntary assignment
or reassignment of teachers, certainly the students both
White and Negro, of the Franklin County Unit should not
be deprived of their freedom of choice rights because the
Court failed to make it clear that it intended that teacher
assignments be made involuntarily, as now ordered by the
court in its Opinion and Order dated August 17, 1967.
Appendix pp. 34A-35A.
Actually the trial judge showed a complete misconcept
ion of the true facts concerning new teachers when he
stated in conclusion of law no. 5 that “ Although this
court’ s Interim Order directs that teachers shall be hired
and assigned on a nonracial basis, the 25 new white teach
ers employed in 1966-67 were assigned to predominantly
white schools, and the 24 new Negro teachers employed
during said period were assigned to all-Negro schools.”
Appendix p. 31A.
The true facts are that at the time of the interim
order dated July 27, 1966, only five or six vacancies
existed in the Franklin County School system for teachers,
and of the teacher vacancies filled after the interim
order, four new teachers were placed in school where their
races was in a minority, Appendix pp. 249A-250A.
It is respectfully submitted that progress toward in
tegration of the faculty in the school system should be not
considered as a reason for the deprivation of all of the
students including the Negro students of their right to at
tend any school in the school system according to their
free choice.
41
F. DISPARITY BETWEEN BUILDINGS AND EQUIPMENT
IS NOT A GROUND FOR ABROGATION OF THE RIGHT
OF FREEDOM OF CHOICE OF ALL STUDENTS IN T IE
FRANKLIN COUNTY SCHOOL UNIT.
If it be conceded for the purpose of argument only that
some disparity may exist between the predominantly White
schools and the predominantly Negro schools in buildings
and equipment, it is respectfully submitted diligent search
on the part of counsel for the defendants has produced no
case where the court has ordered an abandonment of a
freedom of choice plan on account of disparity in facilities.
There is certain to be some disparity in building facili
ties in a school system unless all of the buildings are
built at the same time and according to the same plan.
Actually a freedom of choice plan is the answer to any
disparity that might exist, because it gives the students
an opportunity to transfer from any facility which is not
considered by the parents or students to be equal to an
other facility in the school system.
The court has adopted a practical approach to this
issue in the one case where it was raised by the plaintiffs
in connection with a court action concerning integration
and steadfastly refused to order an abandonment of freedom
of choice on this ground.
In the recent case of Kelley v. Altheimer, 378 F 2d
483, decided April 12, 1967, by the Eighth Circuit Court
of Appeals, the court found that the school board had fail
ed to provide the school attended by Negroes in the dis
trict with sufficient funds which resulted in heavier class
loads for its teachers, inferior library facilities and a low
er scholastic rating. In addition, the court found that the
school board had embarked on a building program which
would tend to cause the Negro students to remain in the
predominantly Negro schools and the White students to re-
42
main in the predominantly White school. Plaintiffs asked
that the Board of Education be ordered to integrate all of
the elementary classes at one site and the secondary
classes at the other site, and the court refused, saying:
“ Though this solution has great appeal because of
its simplicity, and obvious efficiency, we are not
prepared to hold at this time in view of our recent
decisions. . . ..............................................................that
desegregation in accordance with the Constitution
cannot be accomplished if students are permitted
to attend the schools of their choice.”
The defendants desire to point out here that they have
cited the above decision of the Eighth Circuit for the sole
reason that it is the only decision that a diligent search
disclosed on the effect of disparities on the freedom of
choice system.
The Fourth Circuit Court of Appeals has repeatedly set
forth the law on the constitutionality of freedom of choice
plans and the defendants respectfully submit that only the
Fourth Circuit Court of Appeals’ cases should be consider
ed on that point.
CONCLUSION
For the foregoing reasons, the Defendants respectfully
submit to the Court that the Opinion and Order herein dated
August 17, 1967, as amended, be reversed and the case
be remanded to the Court below with direction to enter
Judgment accordingly.
RESPECTFULLY SUBMITTED,
E. F. YARBOROUGH
IRVIN B. TUCKER, JR.
CHARLES M. DAVIS
Attorneys for Appellants
A P P E N D I X
1A
ORDER DENYING PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION,
filed February 24, 1966.
R.p. 144
THIS CAUSE coming on to be heard upon the application
of plaintiffs for a preliminary injunction restraining the de
fendants from denying the immediate admission of plaintiffs
to the schools of their choice in Franklin County, North
Carolina;
And the court having conducted hearings upon plaintiffs’
application for an order directing defendants to show cause
why the preliminary injunction should not issue;
Now, therefore, upon the testimony adduced at the hear
ings and from an examination of the pleadings and exhibits
filed in this action, the court makes the following findings
of fact:
1. That plaintiffs, minor Negro children now enrolled at
schools attended only by Negroes, seek immediate admis
sion to certain Franklin County Schools which are presently
attended only by white students.
2. That pursuant to the Civil Rights Act of 1964, the
Department of Health, Education and Welfare (hereafter
HEW) published a “ General Statement of Policies Under
Title VI of The Civil Rights Act of 1964 Respecting Dese
gregation of Elementary and Secondary Schools.’ ’
3. That the HEW statement of policies requires the
“ freedom of choice” plan for Grades 1, 9 and 12 in the
Franklin County System, and one other grade for the school
year 1965-66.
4. That the Franklin County Board of Education sub
mitted to HEW a plan of compliance with the Civil Rights
Act of 1964, and that the said department approved the plan
2A
on August 31, 1965.
5. That the Franklin County plan of compliance provided
for the immediate application of the so-called “ freedom of
choice” plan for Grades 1, 2, 9 and 12 in all schools in the
county for the school year 1965-66.
6. That the HEW statement of policy requires the exten
sion of desegregation by the fall of 1967 to all grades in
school systems not fully desegregated in 1965-66.
7. That the Franklin County plan provides for the dese
gregation of all grades in every school of the county by the
fall of 1966, one year earlier than the deadline required by
HEW and only 16 school weeks from the date of this order.
8. That the “ Statement of P olicies” published by HEW
permitted the lateral transfer of a pupil attending a school
to which he was originally assigned on the basis of color,
race or national origin, to another school - irrespective of
whether or not the grade concerned had been desegregated
- in order to (1) take a course of study for which the pupil
is qualified but which is not available in the school then
being attended, or (2) upon a showing that the pupil either
had entered the school system for the first time or became
eligible to attend some other school in the system by reason
ol a change of residence into a new geographic attendance
zone.
9. 1 hat the Franklin County plan approved by HEW on
August 31, 1965, provided for the lateral transfer of students
in grades other than Grades 1, 2, 9 and 12 for the school
year 1965-66,
10. 1 hat a condition for lateral transfer within the Frank
lin County system was that the applicant show either ( 1) his
desire to take a course of study not available in the school
he was then attending, or (2) that he had either entered the
school system for the first time, or became eligible to at-
3A
tend another school in the system by reason of his change
of residence into a new geographic attendance zone.
11. That the defendants caused the plan as approved by
HEW to be published in the public press, but that the plan
as published did not recite the two criteria applicable to
lateral transfers.
12. That plaintiffs applied for lateral transfers in grades
other than 1, 2, 9 and 12, but were denied their requests on
the ground that none had alleged as a ground for such trans
fer either of the two criteria.
13. That after school assignments were made for 1965-66
and before school began, plaintiffs were informed that they
were denied admission to the school of their choice under
the lateral transfer provisions because they met neither of
the two criteria prerequisite to such transfers.
14. That notwithstanding that this information was given
to plaintiffs before the 1965-66 school year began, they
neither then nor at two later meetings, in October 1965,
indicated their desire for lateral transfers on either of the
two grounds required by defendants.
15. That the Franklin County schools operate on a nine-
month, rather than a semester, curriculum, and that the State
of North Carolina requires one hour of attendance in each
class for 180 days in order for a student to earn credit.
16. That some of the plaintiffs are now pursuing courses
of study which would not be available to them upon trans
fer, and that where fields of study could be continued there
is a probability of differing stages of advancement in the
course material at schools which plaintiffs now attend and
to which they seek lateral transfers.
17. That teacher loads and allocations are made before
4A
the opening.of each school year on the basis of the enroll
ment anticipated, and that bus routes and bus loads are
determined before each new school year.
The court now concludes as a matter of law:
1. That the United States Congress, while bound by the
rule of Brown v. Board of Education, 347 U.S. 483 (1954),
yet cognizant of problems encountered in desegregation,
intended by the Civil Rights Act of 1964 to effect racial
desegregation in public schools over a reasonable period
of time.
2. That Congress invested HEW with a limited discre
tion to implement the intent of Congress by requiring a
showing of good faith efforts to desegregate in order to
qualify for federal aid.
3. That HEW, exercising its discretion, has provided
for the desegregation of public schools pursuant to the con
gressional mandate and has specifically approved the plan
adopted by defendants.
4. That defendants’ plan effects total desegregation of
public schools one year earlier than the deadline set by
HEW, and will give freedom of choice in all grades begin
ning in September 1966.
5. That defendants have shown their good faith by pro
viding for total desegregation one year earlier than required
by HEW.
6. That although the court does not sanction the failure
oi defendants to give proper notice of the criteria for lateral
transfers, the conditions adopted by defendants were cited
by HEW in its statement of policies which served as the
guideline for defendants’ plan, and which was available to
the public.
5A
7. That plaintiffs did not base their request for lateral
transfers upon either of the grounds embraced in the criteria,
and therefore have not been prejudiced by the failure of
defendants to give proper notice of said criteria.
8. That there has been no showing of a clear constitu
tional right to the immediate admission of plaintiffs to the
schools of their choice, and that plaintiffs have not shown
irreparable injury from a denial of their requests for trans
fer.
9. That plaintiffs as well as students whom they would
join in the new classes to which transfer is sought would
suffer from a transfer at this time, when the current school
year is nearly two-thirds completed, when course advance
ment is not on a parity, and when plaintiffs could not con
tinue in all the courses which they are now pursuing; that
such transfers by students in the upper grades could result
in failure to complete the prescribed courses for graduation
from high school, or in failure to meet college entrance
requirements, and that it is not in the best interest of the
minor plaintiffs to transfer to other schools in mid-term.
10. That the guidelines adopted by HEW do not deny
plaintiffs their constitutional rights, nor are they contrary
to the intent of Congress.
11. That defendants have in good faith adopted and ap
plied a valid plan of desegregation approved by HEW, and
plaintiffs therefore are not entitled to the relief prayed for.
NOW, THEREFORE, IT IS ORDERED that the motion
for a preliminary injunction be and it is hereby denied.
This 21st day of February, 1966.
6A
FINDINGS OF FACT; CONCLUSIONS OF LAW; INTERIM
ORDER, filed July 27, 1966; with Paragraph 181.52, “ Offi
cials Not To Influence Choice” , of Appendix C, Revised
Guidelines, dated March 1966, and without the remainder of
Appendix C and without Appendicies A and B.
R.p. 233
This Cause having come on for a hearing on July 25 and
26, 1966, the Court, on the basis of the testimony and ex
hibits herein and the statements of counsel on behalf of
the respective parties, but without a full trial on the merits,
makes the following Findings of Fact, Conclusions of Law,
and enters the following Interim Order to supplement the
Order of February 21, 1966 and the Findings and Conclu
sions contained therein.
FINDINGS OF FACT
(1) The franklin County School Board, beginning with
the 1966 - 67 schooLi^tar, is operating a “ freedom of
choice plan for all grades for all students in the system,
in accordance with its Desegregation Plan of August 3,
1965, as amended by its HEW Form 441B, executed bv the
franklin County School Board on April 15, 1966. which
incorporates the HEW Revised Guidelines of 1966. The
Plan, the form 441B, and the Revised Guidelines are at
tached hereto as Appendices A, B and C respectively.
(2) At the conclusion of the 1965 - 66 school vear, 6 of
the a.488 Negro students in the system were attending
schools attended predominantly by white students and staff
ed exclusively by white teachers and staff members. The
remaining Negro students were enrolled at schools attended
exclusively by Negro students and staffed exclusively' by
Negro teachers.
(3) following the spring 1966 “ free choice” period, the
f ranklin County School Board notified the Department of
7A
Health, Education and Welfare, in its “ Estimated Fall En
rollment of School System as of September 1966” , that 23
Negro students had chosen to attend predominantly white
schools and all other Negro students had elected to attend
predominantly Negro schools. In the same document, the
School Board notified said Department that no white class
room teachers were assigned as of May 16, 1966 to teach
at predominantly Negro schools in 1966 - 67 and no Negro
classroom teachers were assigned as of the same date to
teach at predominantly white schools. One white supervisor
is to work with all high schools in the system and one Negro
supervisor is to work with all elementary schools in the
system.
(4) The defendants’ past practice with respect to staff
and faculty assignment has been to assign teachers to the
school to which the teachers have applied. No Negro teach
er has been assigned to a predominantly white school. No
white teacher has been assigned to a predominantly Negro
school.
8A
CONCLUSIONS OF LAW
(1) The plaintiffs and plaintiff-intervenor are entitled
to an order enjoining the defendants from racial discrimina
tion in staff and faculty assignment and employment in ac
cordance with the decision of the Court of Appeals for the
Fourth Circuit in Wheeler v. Durham City School Board.
No. 10,460, decided July 5, 1966.
(2) The plaintiffs and plaintiff-intervenor are entitled
to an order prohibiting racial discrimination by the defen
dants in operating the Franklin County School System.
INTERIM ORDER
It is ORDERED as follows:
(1) That the defendants, their employees, agents, suc
cessors, and all persons in active concert or participation
with them shall not engage in any act, practice, or policy
of racial discrimination in the operation of the public school
system of Franklin County.
(2) A new freedom of choice period beginning August 1,
1966 and ending August 16, 1966 shall be afforded all Ne
gro children attending, or eligible to attend, the public
schools operated by the defendants for the 1966 - 67 school
year. Except as herein expressly provided, the choice
period shall be conducted in accordance with the Revised
Guidelines promulgated by the Department of Health, Educa
tion and Welfare in March 1966.
(3) The defendants shall, no later than July 30, 1966,
mail to the parent, or person acting as a parent, of each
Negro child attending or eligible to attend any school in
the Franklin County public school system, a freedom of
choice application and associated papers in the form attach
ed hereto, together with a copy of the portion of this doc"-
ment entitled "Interim Order*’ . The defendants shall further
9A
cause to be published in each edition of the Franklin Times
during the choice period the terms of the new choice period
and the text of the portion of this order entitled “ Interim
Order.
(4) Freedom of choice applications made pursuant to
this order shall be treated as if they had been made during
the spring 1966 choice period.
(5) All persons eligible for free choice shall be notified
by the defendants that any interference with the exercise of
free choice shall be reported to Robert H. Cowen, United
States Attorney for the Eastern District of North Carolina,
Post Office Building, Raleigh, North Carolina, telephone
828-9031, for prompt submission to the Court. Provision
shall be made for reasonable notice to all parties in the
case of any application by any party for modification in
this order.
(6) The freedom of choice provided for herein is being
conducted under order of this Court. Any person or persons
who interfere with any person exercising or seeking to exer
cise rights hereunder will be dealt with pursuant to federal
law. The Court retains full jurisdiction over this action
for purposes of modifying this decree in the interest of jus
tice. In the event of interference by any person or persons
with the implementation of this order, or with the exercise
or enjoyment of rights thereunder, the Court shall take such
action as it deems appropriate under the circumstances to
achieve the orderly and effective elimination of segregation
in the Franklin County school system.
(7) It is further ORDERED: that the defendants, their
employees, agents, successors, and all persons in active
concert or participation with them are hereby restrained
and enjoined as follows:
That race, cojor or national origin shall not be a factor
10A
in the hiring or assignment to schools or within schools of
teachers and other professional staff. Vacant teacher posi
tions in the future shall be open to all applicants, and each
filled by the best qualified applicant regardless of race.
The Franklin County School Board shall encourage trans
fers by present members of the faculty to schools within the
system in which pupils are wholly or predominantly of a
race other than such teacher’ s. The Franklin County School
Board shall set up and file with the Court on or before
August 10, 1966, definite objective standards for the em
ployment, assignment and retention of teachers and profes
sional staff in a manner not inconsistent with this order
and compatible with the requirements of the Due Process
and Equal Protection Clauses of the Constitution.
(8) This order shall not be construed to limit in any
manner the obligations of the defendants under the provi
sions of the HEW Form 44IB and the HEW Guidelines of
March 1966, except to the extent, if any, that they may be
modified by this order.
(9) The defendants shall file a report with the Court on
or before September 12, 1966, with copies of said report
being served upon counsel for all parties, advising the num
ber of Negro students requesting reassignment to predomi
nantly white schools and the schools to which such students
have been assigned. Said report shall also advise of the
number of Negro and white teachers and school personnel
assigned for the 1966 - 67 school year to schools in which
the majority of the students are of another race and of the
schools to which such teachers and personnel have been
assigned.
This the 27th. day of July, 1966.
11A
FRANKLIN COUNTY BOARD OF EDUCATION
Louisburg, North Carolina
July 30, 1966
Dear Parent:
The United States District Court has ordered
changes to the plan for the desegregation of the
schools of the Franklin County administrative unit.
A copy of the Court’ s order is enclosed.
The Court has ordered that every Negro student or
his parent must make a new choice of the school the
Negro students will attend in the coming school year.
It does not matter that you have already made a
choice of school. You must choose again. You and
your child may choose any school you wish, and it
does not matter whether that school was formerly a
Negro or a white school.
The free choice period is being conducted under
the order of the court, so that your right to choose
your child’s school, including a desegregated school,
will be protected. If any attempt is made to interfere
with the choice you make, or to harass you because
of the choice you have made, you should report the
matter to local authorities and to the United States
Attorney, Mr. Robert H. Cowen, at the Post Office
Building in Raleigh (Telephone 838-9031).
The choice form you should use to make your new
choice is enclosed. It should be mailed in the en
closed envelope or delivered by you or your child to
the Superintendent’ s Office on Bickett Boulevard in
Louisburg. You should make the choice as soon as
possible, BUT NOT LATER THAN AUGUST 16.
Your school board and all the school staff will do
12A
everything within their power to comply with the
order of the Court, to protect the rights of all its
students to a truly free choice, and to carry out suc
cessfully the desegregation plan.
Sincerely yours,
Superintendent
FRANKLIN COUNTY BOARD OF EDUCATION
Louisburg, North Carolina
July 30, 1966
Choice of School Form
This form has been sent you to make a new choice
of the school your child will attend for the coming
school year. It does not matter that you have already
chosen. You must choose again. You may choose
any school of the schools listed below which have
your child’s grade, regardless of whether the school
is predominantly white or Negro. This form must be
returned to the Superintendent’ s office NOT LATER
THAN AUGUST 16. If a student is 15 years old by
the date he makes the choice, or will be entering the
ninth or higher grade, either he or his parent may
make the choice.
13A
1. Name of Child-------------------- -—
Last First Middle
2. Age-----------------
3. School attended last year--------------------------------
Grade entering in coming school year-
4. School Chosen (Mark X beside school chosen)
Name of School Grades Location
( ) Bunn Elementary &
High School 1 - 1 2
( ) Cedar Street
Elementary School 1 - 7
( ) Edward Best
Elementary School 1 - 6
( ) Edward Best
High School 7 - 1 2
( ) Epsom Elementary
& High School 1 - 1 2
( ) Gethsemane Elementary
& High School 1 - 12
( ) Gold Sand Elementary
& High School 1 - 1 2
( ) Louisburg Elementary
& High School 1 - 1 2
( ) Perry’s Elementary
& High School 1 - 1 2
( ) Riverside Elementary
& High School 1 - 12
( ) Youngsville Elementary
School 1 - 8
Bunn, N. C.
Rt. 3, Louisburg, N. C.
Rt. 2, Louisburg, N. C.
Rt. 4, Louisburg, N. C.
Rt. 1, Henderson, N. C.
Bunn, N. C.
Rt. 3, Louisburg, N. C.
Louisburg, N. C.
Rt. 2, Louisburg, N. C.
Louisburg, N. C.
Hillsboro Street
Youngsville, N. C.
14A
( ) Youngsville Elementary
& High School 1 - 1 2 College Street,
Youngsville, N. C.
This form is signed Signature
by (mark proper box):
Parent ( ) Address ■
Other adult person act
ing as parent ( ) D ate------
Student ( )
This block is to be filled in by the Superintendent’s
office, not by person signing.
Is student assigned to school chosen? Yes No
If not. explain:....................................................................
"PARAGRAPH 181.52 OFFICIALS NOT TO
INFLUENCE CHOICE" - PART OE APPENDIX C
No official, teacher, or employee of the school
system may require or request any student or prospec
tive student to submit a choice form during the choice
period other than by the prescribed letter, notice, and
choice form. After the choice period, the school
system must make all reasonable efforts to obtain a
completed choice form front any student who has not
exercised a choice. However, at no time may any
official, teacher, or employee of the school system,
either directly or indirectly, seek to influence any
parent, student, or any other person involved, in the
exercise of a choice, or favor or penalize any person
because of a choice made. Information concerning
choices made by individual students or schools to
which they are assigned may not be made public.
15A
OPINION AND ORDER OF JUDGE ALGERNON L.
BUTLER, filed August 21, 1967.
R.p. 506
The plaintiffs, Negro school children in Franklin County,
North Carolina, instituted this class action on December 8
1965, pursuant to 42 U.S.C.A. £ 1983, on their own behalf
and on behalf of other Negro children similarly situated, to
desegregate the Franklin County School system. The com
plaint alleged in substance that the Franklin County Board
of Education was operating a racially segregated school
system and, in so doing, was denying the plaintiffs and
members of their class the equal protection of the laws.
The complaint prayed for injunctive relief and was accom
panied by a motion for a preliminary injunction.
On January 11, 1966, pursuant to 42 U.S.C.A. £ 2000h-2,
and upon the Attorney General’ s certification that the case
was one of general public importance, the United States
filed a motion for leave to intervene in the action, to add
the individual members of the Board of Education as defen
dants, and to file its Complaint in Intervention and a Mo
tion for a Preliminary Injunction. On January 20, 1966,
this court entered an order sustaining in all respects the
above-described motions of the United States.
On February 8, 1966, this court held a hearing upon the
motions of the plaintiffs and plaintiff-intervenor for a pre
liminary injunction. The principal issue upon the Motion
for a Preliminary Injunction was whether or not Negro stu
dents in grades not then desegregated who did not meet
certain stated criteria set forth in HEW guidelines should
be permitted to transfer laterally to predomibantly white
schools for the second semester of the 1965-66 school
year. On February 21, 1966, this court, while stating that
it did not sanction the failure of the defendants to give pro
per notice of criteria for lateral transfers, found that the
defendants had acted in good faith in relation thereto and
that it was not in the best interest of the minor plaintiffs to
1 6 A
transfer to other schools in mid-term, and thereupon denied
the motions for a preliminary injunction.
A hearing on the application for a permanent injunction
was set for July 25, 1966. The principal issues at this
stage of the proceedings related to faculty desegregation
and the adequacy of the “ free choice” method of pupil
assignment in an alleged atmosphere of community hosti
lity to desegregation and intimidation. On July 27, 1966,
following extensive conferences between the court and
counsel for all parties, this court entered an Interim Order
by which the defendants were directed to conduct a new
freedom of choice period and were enjoined from engaging
in any act, practice or policy of racial discrimination in the
operation of the public school system of Franklin County,
and enjoined from racial discrimination in staff and faculty
assignment and employment, directed to fill vacant teacher
positions in the future with the best qualified applicants
regardless of race, and to encourage transfers by present
members of the faculty so as to eliminate past racial as
signments. Defendants were further directed to present to
the court on or before August 10, 1966, definite objective
standards for the employment, assignment and retention of
teachers and school personnel consistent with the require
ments of due process and equal protection of the law and to
advise the court of the number of teachers and students
assigned to schools for the 1966-67 school year in which
their race was in the minority.
Pursuant to the Interim Order, the defendants filed the
plan of objective standards for the employment, assignment
and retention of teachers and school personnel, objections
to which have been filed by plaintiffs and plaintiff-
intervenor. Plaintiffs and plaintiff - intervenor have filed
motions for an order requiring defendants to eliminate edu
cational disparities between predominantly white and Negro
schools, and for further relief. This Interim Order is re
ported at 12 Race Rel. L. Rep. 230.
17A
Plaintiffs’ motion for further relief alleges:
(a) That defendants have failed to take affirmative steps
to provide and implement an effective desegregation plan;
(b) That the fear of Negro parents and children, caused
by threats and intimidation, prevents them from exercising
an uninhibited “ freedom of choice” ;
(c) That defendants have continued to employ and as
sign teachers and school personnel on a racial basis;
(d) That defendants have continued to perpetuate in
ferior schools for Negro students; and
(e) That defendants have continued the dual transporta
tion system for Negro and white schools.
The defendants deny that they are operating a racially
discriminatory school system. They assert that they have
complied with every provision of the Interim Order con
scientiously and in good faith, and that all Negro students
requesting assignments to predominantly white schools
since the date of said order have been assigned to such
schools, and that certain of the school faculties and staff
have been integrated. Defendants allege that each student
in the system is attending the school selected by him or
his parent under the freedom of choice plan, “ said selection
having been freely and voluntarily made * * * without
threats or intimidations by any defendant or other school
personnel, and without any threat or intimidation by any
other person, to the knowledge of the defendants” .
A full evidentiary hearing was held on July 25 and 26,
1967, and upon consideration of all the evidence and the
arguments of counsel, the court makes the following
18A
FINDINGS OF FACT
a. History of School Desegregation in Franklin_C.Qunty
1. Prior to the 1965-66 school year, the Franklin
County school system was completely segregated by race.!
All white pupils attended schools staffed exclusively by
white teachers and administrators. All Negro pupils attend
ed schools staffed exclusively by Negro teachers and ad
ministrators. Students were assigned to schools pursuant
to a system of dual geographic attendance zones, one for
whites and one for Negroes.
2. In 1965-66, the defendant School Board adopted a
desegregation plan pursuant to the Civil Rights Act of 1964.
The plan provided for the desegregation, under the “ freedom
of choice” system, of grades 1, 2, 9 and 12 in the year
1965-66, and for the desegregation of the remaining grades
in 1966-67.2 The plan further provided for lateral transfers
in the nondesegregated grades for any applicant who could
1. In 1954 the United States Supreme Court held in Brown
v. Board of Education, 347 U.S. 483, 74 S.Ct. 606, 691,
that “ segregation of children in public schools solely
on the basis of race, even though the physical facilities
and other ‘ tangible’ factors may be equal, deprives the
children of the minority group of equal educational op
portunities.’ See, Brown v. Board of Education, 349
U.S. 234, 75 S.Ct. 743 (1955). Notwithstanding the fact
that the burden rests upon school authorities to effec
tuate the transition to a racially nondiscriminatory
school system, the defendants’ first efforts toward com
pliance with Brown came in 1965.
2. The Franklin County plan provided for the desegregation
of all grades in every school one year earlier than re
quired by the guidelines promulgated by the Department
of Health, Education and Welfare.
19A
show either (a) that he desired to take a course of instruc
tion not available in the school to which assigned, or (b)
that he had either entered the school system, or a different
geographical attendance zone, for the first time. The de
fendants failed to give proper notice to students and their
parents of the specified criteria, and the transfer applica
tions of those students who did not specify these criteria
as the reason for the requested transfer were rejected.
3. About 76 Negro students of a total of approximate
ly 3,100 in the system elected to attend predominantly white
schools for the 1965-66 school year. Thirty-one were ac
cepted. Of these thirty-one, several withdrew their applica
tions during the summer and others withdrew from predomi
nantly white schools after school opened. At the conclusion
of the 1965-66 year, only six Negro students were attending
predominantly white schools.
4. During the 1966 freedom of choice period for all
grades, for the 1966-67 school year, twenty-three of the
approximately 3,100 Negro pupils elected to attend pre
dominantly white schools. No white student elected to
attend a Negro school.
5. In August 1966, in accordance with the provisions
of the Interim Order of July 27, 1966, the defendants con
ducted a special freedom of choice period for Negroes. Dur
ing this special choice period 49 Negroes elected, and were
assigned to attend, predominantly white schools.
6. In March 1967, the defendants conducted a free
dom of choice period for the 1967-68 school year. Forty-
five Negroes elected to attend predominantly white schools
and are scheduled to attend such schools for the 1967-68
school year.
7. The 1967 freedom of choice period has been the
20A
fourth such period conducted in Franklin County since 1965.
On each of these occasions, all white students have elected
to attend predominantly white schools, and the previously
Negro schools have remained all-Negro in the composition
of their student bodies. Three of the seven traditionally
white schools have never had a Negro student, a fourth has
never had more than one Negro student, and a fifth has never
had more than two Negro students, one of whom has drop
ped out. More than 98.5% of the Negro students in the
Franklin County system have remained in all-Negro schools
throughout the period that the schools have been officially
desegregated. ̂
Cicssurcs Inhibiting the Exercise of Free Choice
S 1 here is marked hostility to school desegregation
in brankIin County, and wide publieitv has been given to
.UK ol intimidation, threats and reprisals against Negro
patents «ho li.ne requested reassignment of their children
^ following tables represent the racial breakdown of
students faculty for each school in the Franklin
v ■' Scxv Nsifict a I'H'O-tv anc for students ior
• V ve a ' -Nx-oN
"W h it e ' Schools l°ot»-o7
v \ v Papa's Teachers
a \ ■ \
saw* 2S l
b i Best Elcntuttn Lx! 0 6 8
f i i . Besst High 174 2 * 0
' XSO T 224 10 0
tv V N.'. V n 15 0
e>. s>w g cuO v 2 ' I
' -X X " • e ;; g j 2 * ° 8
21A
“ Negro” Schools, 1966-67
School Pupils Teachers
W N W N
Cedar Street 0 75 0 4
Gethsemane 0 621 0 27
Perry’s 0 766 0 30
Riverside 0 1,401 2 50
Youngsville Elementary 0 143 0 7
Subtotal____________________ Q 3.Q.Q6-------------Z------ IIS
Combined Total 2,524 3,054 112 120
“ White” Schools, 1967-68
Pupils
School W N
Bunn 705 12
Ed. Best Elementary 143 0
Ed. Best High 176 2
Epsom 230 1
Gold Sand 334 0
Louisburg 651 30
Youngsville High 315 0
Subtotal 2,554 45
“ Negro” Schools, 1967-68
Cedar Street 0 84
Gethsemane 0 650
Perry’ s 0 785
Riverside 0 1,432
Youngsville Elementary 0 150
Subtotal 0 3,101
Combined Total 2.554 3,14$
22A
to previously all-white schools.4
9. Before the adoption of a plan of desegregation in
Franklin County, attempts to desegregate the schools in
1963 and 1964 resulted in threats against several of the
persons involved.5 After the adoption of the “ freedom of
choice” plan of desegregation the acts of intimidation,
threats and reprisals against Negro parents continued. Ex
plosives were placed at Negro homes; several Negro homes
were shot into; wells were contaminated with oil, and tacks
or nails were placed in driveways.6 As a result of the har-
rassment, intimidations and reprisals against Negro parents
4. The Franklin Times, a newspaper of general circulation
in Franklin County, edited by Albert Clinton Fuller, a
member of the defendant School Board, has published
from time to time the names and addresses of each Ne
gro student requesting reassignment to a previously all-
white school, the name of his parent, and the identity
of the school. Acts of intimidation have usually ensued.
The local and state press have given extensive coverage
to the incidents in Franklin County.
5. For example, on September 16, 1963, after attending a
school desegregation meeting, the foster children of the
Rev. Sidney G. Dunston, a Negro minister, received an
anonymous telephone call threatening to bomb his home.
6. for example, on June 17, 1965, under a four-column
headline reading “ Federal, State and Local Officers
Investigating Shooting at Moulton” , The Franklin Times
reported: “ Unknown assailants sent a hail of shotgun
and rifle fire into two Negro homes near Moulton late
Monday night, without injury to any of the occupants.
One of the homes had been fired at about two weeks ago
in the same manner * * * * Both families (Lenwood Ar
rington and Sandy Jones) have made application for their
children to attend white Louisburg High School next
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and their families, several withdrew their requests for as
signment to previously all-white schools and sought reas-
fall * * * * Shotgun pellet marks are visible at the right
of the front entrance of the Arrington home and rifle
bullet holes were seen just to the left of the door. Se
veral windows were broken. Bullets entered a side win
dow of the Jones home and traveled through a bedroom
coming out a window at the back of the house * * * *
It was learned that the Arrington family had received
several telephone threats, the contents of which were
not stated. A reliable source reported that it was be
lieved that race was not involved, as such, in the case*
Mrs. Lenwood Arrington testified: “ Well, after the first
shooting (May 28, 196S) I had a lot of telephone calls
started around suppertime and would last until 11:00
O'clock, and a lot of them would tell me, asked me was
I trying to get white, why did I want my children to do
to an all-white school. Some of them was telling me
that something was going ‘ to happen to you, you are going
to get killed.’ ” Plaintiffs^ Depositions, Vol. 3, at
page 25.
Plaintiff-lntervenor has submitted a “ Chronology of
Intimidation’ ’ containing 80 instances of alleged intimi
dations occurring between January 24, 1963, and July
22, 1967. The court has considered only those instances
occurring within Franklin County which the evidence
shows were racially motivated and are relevant to the
issues here. The instances of intimidation and com
munity pressures in Franklinton, which is a separate
school administrative unit within Franklin County, were
publicized throughout the county and were generally
known to the people in the county system. Although
local, state and federal law enforcement officers have
24A
10. The intimidations and threats continued through
out the 1965-66 and the 1966-67 school years, sometimes
as many as 100 harassing telephone calls to a Negro family
during the course of a school year.8 In March 1967, during
the freedom of choice period for the 1967-68 school year,
the intimidations intensified. The Reverend Luther Cop-
pedge, father of one of the Negro plaintiffs, testified that
he received six to eight harassing, anonymous telephone
calls a day, the last such call on the night of July 22, 1967,
only three days prior to his testimony in the trial of this
ocase .* 7 8 9
signraent to all-Negro schools.7
11. Since the beginning of the freedom of choice
plan in 1965, there has been a decline each year in the
number of Negro students requesting reassignment to pre
viously all-white schools. During 1966-67 in North Caro
lina, 54,600 of 409,707 Negro students attended desegre
gated schools, representing 15.4 percent. The percentage
investigated the occurrences in Franklin County, there
has not been a single arrest and consequently not a
single conviction or punishment for any of the acts of
racial intimidation.
7. For example, see deposition of Margaret Crudup, Plain
tiffs’ Depositions, Vol. 5, page 84, et seq.
8. See, deposition of Mrs. Christine Coppedge, Plaintiffs’
Depositions, Vol. 6, page 32.
9. Following the Interim Order of July 27, 1966, counsel
for all parties and the defendant School Board met with
representative groups of the white and Negro community
and made good faith efforts to eliminate the pressures
that inhibited a free choice of schools. The fact that
25A
in Mississippi was 2.S percent JO In the Franklin County
School system for the coming year, 1967-68, the percentage
is presently fixed at about 1.5 percent.
12. Community attitudes and pressures in the Frank
lin County School system have effectively inhibited the
exercise of free choice of schools by Negro pupils, and
their parents.
c. Faculty and Staff Desegregation
13. Prior to the entry of the Interim Order of July
27, 1966, Negro teachers taught in all-Negro schools and
white teachers taught in all-white or predominantly white
schools.
14. By the terms of the Interim Order, the defendants
were ordered to fill all faculty and professional staff va
cancies on a nonracial basis and to encourage transfers
by present members of the faculty to schools within the
system in which pupils are wholly or predominantly of a
race other than such teacher’ s, H
15. The defendant School Board’ s “ Objective Stan
dards of Employment, Assignment and Retention of Teach- 10 11
they failed cannot be attributed on this record to the
defendants.
10. Southern Education Reporting Service; 1966-67 Statis
tical Summary, State by State, of School Segregation -
Desegregation in the Southern and Border Area from
1954 to the Present, pp. 20, 24-25.
11. See, Wheeler v. Durham City Board of Education, 363
F.2d 738 (4 Cir. 1966).
26A
ers,” etc., filed on August 9, 1966, pursuant to the Interim
Order, provides that “ The choice of assignment expressed
by teachers or members of professional staff will be honored
to the extent practicable.” This provision tends to perpe
tuate racial segregation in faculty and staff and is disap-
prov ed.
16. The defendant School Board secured the consent
of four teachers to cross racial lines within the month be
tween the date of the Interim Order and the opening of
school for the 1966-67 school year. 12 The policy of the
Board is to assign teachers generally to the school of their
choice. Most teachers have, accordingly, remained at the
schools to which they had been assigned when the schools
were completely racially segregated. Of the twelve schools
in the Franklin County system, faculty desegregation has
occurred in only three schools, as follows: one white teach
er and one white librarian have been assigned to an all-
Negro school one Negro teacher and one Negro librarian
have been assigned to predominantly white schools; three
white staff members have been assigned to all-Negro
schools; and two Negro and four white staff members have
been assigned to all the schools in the County system.
Faculties and staff of the several schools in Franklin
County remain almost entirely segregated, with the effect
that each school in the county system is clearly racially
identifiable by the composition of its faculty. The defen
dants have not taken adequate affirmative stops to accomp
lish substantial desegregation of faculties and staffs within
its system. 12
12. Three Negro and two white teachers testified in this
case. None of these had been requested to transfer to
a school in which their race was in a minority. All
testified they would be willing to teach in such a
school, although several expressed a preference to
remain where they were.
27A
d. School Facilities
17. S c h o o l s previously maintained as all-white
schools are substantially superior in buildings and equip
ment to the all-Negro schools. 13 Despite improvements
during the 1966-67 school year, primarily attributable to
federal financial assistance under the Elementary and Se
condary Education Act, serious disparities remain. 14 All
of the predominantly white elementary schools are accredit
ed by the State of North Carolina, whereas no Negro elemen
tary school is accredited. 13 14
13. This action was brought in the midst of the school year
1965-66. The defendants’ reports to the State Board
of Education during that year revealed the existence
of the following disparities, among others:
1965-1966
Valuation of School
Property Per Pupil
Acreage of School
Property Per Pupil
Pupil-Classrom Ratio
Library Volumes
Per Pupil
Pupils Per Teacher
(Based on Enrollmen
Students Per School
Predominantly
White Schools Neero Scl
5913.44 $285.18
.04 .01
i 22.8 to 1 34.9 to 1
9.05 4.0
it) 24.9 31.8
Bus 43 64.1
The acreage per pupil ratio includes the Louisburg
school site acquired in 1960 which is partially un
developed and unutilized.
14. In 1966-67, the defendants had received federal assis-
28A
CONCLUSIONS OF LAW
1. This court has jurisdiction of the parties and of the
subject matter of the action.
2. During the thirteen years since Brown. 15 and during
the last three years under the so-called “ freedom of choice”
plan (including one year under the Interim Order entered by
this court on July 27, 1966, Coppedge, et al. v. Franklin
County Board of Education, etc., 12 Race Rel. L.Rep. 230,
E.D.N.C. 1966) reasonable progress toward the elimination
of the dual system of schools in Franklin County based on
race or color has not resulted. A more specific and more
comprehensive order is therefore necessary and appropriate.
3. The fact that only 45 of approximately 3,100 Negroes *
tance in the form of portable classrooms, library books,
and equipment of various kinds. The defendants’ re
ports to the State Board of Education for 1966-67 dis
closed that these additions reduced the disparities in
several of these categories, in particular valuation of
school property per pupil and library books per pupil,
as follows:
Valuation of School
Property Per Pupil
Library Books Per
Pupil
Pupils Per Bus
1966-67
Predominantly
White Schools Negro Schools
$991 $611
9.3 5.1
40.2 54.7
In other categories, including acreage per pupil and
teacher ratio, the disparities remained essentially un
changed.
15. See footnote 1.
29A
elected to attend predominantly white schools in the Frank
lin County system, during the March 1967 choice period,
after almost three times as many had signed a desegrega
tion petition in 1963 and after almost twice as many had
applied to cross racial lines in 1965, raises an inference
that the plan is not operating in a constitutionally accept
able manner. The HEW guidelines, 16 to which the courts
give consideration, provide as a rule of thumb that systems
under free choice which have made very little progress in
desegregation in 1966-67 (less than 4%) should more than
triple the amount of desegregation by 1967-68. Franklin
County’s performance falls far short of this goal, and the
1967 choice period actually resulted in a decrease in the
number of Negroes electing desegregated schools. United
States v. Jefferson County Board of Education, 372 F.2d
836, 886-888 (5 Cir. 1966), aff’ d en_ban£L,____F .2 d _______
(5 Cir. 1967), see Cassell v. Texas, 339 U.S. 282, 70 S.Ct.
629 (1950), United States ex rel Seals v. Wiman, 304 F.2d
53, 67 (5 Cir. 1962).
4. School authorities in North Carolina generally have
selected the “ freedom of choice” method for desegregating
public schools. In Bowman v. County School Board of
Charles City County, F.2d (No. 10,793, 4 Cir., June
12, 1967), Judge Haynsworth, speaking for the court, said:
‘Freedom of choice ’ is a phrase of many conno
tations. Employed as descriptive of a system of per
missive transfers out of segregated schools in which
the initial assignments are both involuntary and dic
tated by racial criteria, it is an illusion and an op
pression which is constitutionally impermissible.
Long since, this court has condemned it. (Citations
omitted.) The burden of extracting individual pupils 16
16. HEW Reg. A, 45 C .F.R., £ 181.54 (Supp. 1966).
30A
from discriminatory, racial assignments may not be
cast upon the pupils or their parents. It is the duty of
the school boards to eliminate the discrimination
which inheres in such a system.
“ Employed as descriptive of a system in which
each pupil, or his parents, must annually exercise an
uninhibited choice, and the choices govern the as
signments, it is a very different thing. If each pupil,
each year, attends the school of his choice, the Con
stitution does not require that he be deprived of his
choice unless its exercise is not free. This we have
held, (citations omitted) and we adhere to our hold
ings.
“ Whether or not the choice is free may depend up
on circumstances extraneous to the formal plan of the
school board. If there is a contention that economic
or other pressures in the community inhibit the free
exercise of the choice, there must be a judicial ap
praisal of it, for ‘ freedom of choice ’ is acceptable
only if the choice is free in the practical context of
its exercise. If there are extraneous pressures which
deprive the choice of its freedom, tbe school board
may be required to adopt affirmative measures to
counter them” (Emphasis supplied.)
Every freedom of choice plan must be judged on a case by
case basis. “ The plan must be tested not only by its pro
visions, but by the manner in which it operates to provide
opportunities for a desegregated education.” Wright v.
County School Board, 252 F.Supp. 378, 383 (E.D.Va. 1966).
It is a permissible plan so long as it comports with consti
tutional standards. It is constitutionally impermissible
and, indeed, a misnomer when the choice is not free in fact.
This court has found that community attitudes and pres
sures in the Franklin County School system have effectively
31A
inhibited the exercise of free choice of schools by Negro
pupils, and their parents. So-called “ freedom of choice”
under such circumstances is an illusion. Bowman v. County
School Board of Charles City County,___ F .2 d ..__ (No.
10,793, 4 Cir. June 12, 1967); Lee v. Macon County Board
of Education, 267 F.Supp. 458, 479 (M.D.Ala. 1967); United
States v. Jefferson County Board of Education, 372 F.2d
836, 886-888 (5 Cir. 1966); Kier v. County School Board of
Augusta County, 249 F.Supp. 239 (W.D.Va. 1966); Vick v.
County Board of Education of Obion County, 205 F.Supp.
436, 440 (W.D.Tenn. 1962); Kelley v. Board of Education of
Nashville, 270 F.2d 209, 229-230 (6 Cir. 1959).
5. The defendants have not made adequate progress in
faculty desegregation. Although this court’ s Interim Order
directs that teachers shall be hired and assigned on a non-
racial basis, the 25 new white teachers employed in 1966-67
were assigned to predominantly white schools, and the 24
new Negro teachers employed during said period were as
signed to all-Negro schools. “ (R)emoval of race considera
tions from faculty selection and allocation is, as a matter
of law, an inseparable and indispensable command within
the abolition of pupil segregation in public schools as pro
nounced in Brown v. Board of Education, 347 U.S. 483.”
Wheeler v. Durham City Board of Education, 363 F.2d 738,
740. See, also, Bradley v. School Board, 382 U.S. 103, 86
S.Ct. 224 (1965); Rogers v. Paul, 382 U.S. 198, 86 S.Ct.
358 (1965). Since the record before the court discloses that
a greater degree of faculty desegregation can be achieved
without serious practical, administrative, or other problems,
the court concludes that a more specific and more compre
hensive order directing substantial faculty desegregation is
required. Bowman v. County School Board of Charles City
County,------F.2d------ (No. 10,793, 4 Cir. June 12, 1967).
6. The defendants have the constitutional obligation to
correct the educational disparities in school facilities be
tween schools heretofore maintained for Negro students and
32A
schools previously maintained for white students, and to
afford all students of all races in all schools equal educa
tional opportunities. Sweatt v. Painter, 339 U. S. 629
(1950), 70 S.Ct. 848. See, also, Plessy v. Ferguson, 163
U.S. 537, 16 S.Ct. 1138 (1896); N.C. Constitution, Art. IX,
£ 2 (1868).
O R D ER
IT IS ORDERED that the Interim Order of this court,
dated July 27, 1966, is hereby amended and modified as fol
lows:
The defendants shall file with the court and serve on
counsel for plaintiffs and plaintiff-intervenor, a new Dese
gregation Plan which shall provide for the desegregation of
the Franklin County school system in accordance with the
following principles:
I
ASSIGNMENT OF PUPILS
The defendants shall prepare and submit to the court, on
or before October 15, 1967, a plan for the assignment, at
the earliest practicable date, of all students upon the basis
of a unitary system of non-racial geographic attendance
zones, or a plan for the consolidation of grades, or schools,
or both. In drawing the new plan, the defendants shall take
into consideration the capacities of the various schools
based on uniform pupil per classroom ratios, so that, as far
as possible, assignment pursuant to such plan shall result
in no school in the system being substantially more crowded
than any other school. In the event of geographic zoning,
the zones shall be drawn in such a manner as to avoid
gerrymandering for any purpose. The defendants shall make
provision in the plan for the period of time over which the
conversion to a desegregated school system shall be accom-
33A
plished and shall set forth a schedule of steps to be taken
to effect this conversion.
Pending court approval of the new plan, the defendants
shall transfer or cause to be transferred for the 1967-68
school year a sufficient number of Negro students to pre
dominantly white schools so that at least ten percent of the
Negro students in the system will attend predominantly
white schools.
Every student must be transported to the school to which
he is assigned, if that school is sufficiently distant from
his home to make him eligible for transportation under gen
erally applicable transportation rules.
Within their authority school officials are responsible
for the protection of persons exercising rights under or
otherwise affected by this decree, or any plan approved
pursuant to this decree. They shall, without delay, take
appropriate steps with regard to any student, parent, teacher
or staff member who interferes with the successful operation
of the plan. Such interference shall include harassment,
intimidation, threats, hostile words or acts, and similar
behavior. The Board, including each member thereof, shall
not publish or cause to be published the names or addresses
of pupils assigned to any school, nor the names or addres
ses of their parents. If officials of the school system are
not able to provide sufficient protection, they shall seek
whatever assistance is necessary from the appropriate lo
cal, state or federal officials.
34A
II
FACULTY
Race, color or national origin shall not be a factor in
hiring, assignment, reassignment, promotion, demotion, or
dismissal of teachers and other professional staff members,
including student teachers, except that race may be taken
into account for the purpose of assigning and reassigning
teachers and other professional staff members to eliminate
past discriminatory patterns. Defendants shall take imme
diate affirmative steps to accomplish substantial faculty
desegregation in the system and in each school therein for
the 1967-68 school year, notwithstanding that teacher con
tracts for the 1967-68 school year may have already been
signed and approved. In this connection, the defendants
shall again promptly meet individually or in groups with all
faculty members in the school system and encourage the
transfer of faculty members so as to desegregate the facul
ties in the various schools. The defendants shall advise
all present and future faculty members that the Franklin
County Board of Education operates a desegregated school
system, and that all teachers are subject to assignment to
any school therein in the best interests of the school sys
tem. If the assignment of teachers on a voluntary basis
does not result in significant faculty desegregation of every
school in the system for 1967-68, to the extent that at least
two teachers of the minority race (white or non-white) shall
be on each desegregated faculty, the defendants shall as
sign for the 1967-68 school year a sufficient number of
white and non-white teachers to the several schools in the
system so that two or more teachers of the minority race
shall be on each school faculty. The defendants shall es
tablish as an ultimate objective that each faculty contain
the same approximate percentage of non-white teachers as
there is in the entire system.
Defendants’ Objective Standards for the Employment,
35A
Assignment and Retention of Teachers and Professional
Staff, filed on August 9, 1966, pursuant to the Interim Order,
are approved as modified by this Order.
Ill
FACILITIES
No student shall be segregated or discriminated against
on account of race or color in any service, facility, activity,
or program (including transportation, athletics, or other
extracurricular activity) that may be conducted or sponsored
by or affiliated with the school in which he is enrolled. A
student attending school for the first time on a desegregat
ed basis may not be subject to any disqualification or wait
ing period for participation in activities and programs, in
cluding athletics, which might otherw ise apply because he
is a transfer or newly assigned student except that such
transferees shall be subject to longstanding, non-racially
based rules of city, county, or state athletic associations
dealing with the eligibility of transfer students for athletic
contests. All school use or school-sponsored use of athletic
fields, meeting rooms, and all other school related services,
facilities, activities, and programs such as Commencement
exercises and parent-teacher meetings which are open to
persons other than enrolled students, shall be open to all
persons without regard to race or color. All special educa
tional programs conducted by the defendants shall be con
ducted without regard to race or color.
IV
SCHOOL EQUALIZATION
In schools heretofore maintained for Negro students, the
defendants shall take prompt steps necessary to provide
physical facilities, equipment, courses of instruction, and
instructional materials of quality equal to that provided in
36A
schools previously maintained for white students. Condi
tions of overcrowding, as determined by pupil-teacher ratios
and pupil-classroom ratios shall, to the extent feasible, be
distributed evenly between schools formerly maintained for
non-white students and those formerly maintained for white
students. If for any reason it is not feasible to improve
sufficiently any school formerly maintained for non-white
students, where such improvement would otherwise be re
quired by this paragraph, such school shall be closed as
soon as possible, and students enrolled in the school shall
be reassigned to the nearest school serving their grade
levels. By October 15th of each year, defendants shall
report to the Clerk of the Court pupil-teacher ratios, pupil-
classroom ratios, and per pupil expenditures both as to
operating and capital improvement costs, and shall outline
the steps to be taken and the time within which they shall
accomplish the equalization of such schools.
The defendants, to the extent consistent with the proper
operation of the school system as a whole, shall locate any
new school and substantially expand any existing schools
with the objective of eradicating the vestiges of the dual
system and of eliminating the effects of segregation.
V
REPORTS
The defendants shall, in addition to reports elsewhere
described, serve upon opposing counsel and file with the
Clerk of the Court on or before October 15th of each school
year, pending complete desegregation of the school system,
a report setting forth the following information:
(a) 1 he number of faculty members, by race and grade
or subjects, assigned to each school for the current school
year.
37A
(b) The number of students, by race, in each grade of
each school.
The court in the hearing preceding this Order, having
considered the merits of the plaintiffs’ Motion to Require
Defendants to Eliminate Educational Disparities, the Ob
jections to Defendants’ Objective Standards for State and
Faculty Employment, and the plaintiffs’ Motion for Further
Relief, this decree will be understood as having disposed
of the preceding motions and objections.
IT IS FURTHER ORDERED that jurisdiction of this
cause be retained. 17
This 17th day of August, 1967. 17
17. Several provisions of this order have been taken in
whole or in part from the decree prescribed by the Fifth
Circuit Court of Appeals in United States v. Jefferson
County Board of Education, 372 F.2d 836, 896-901
(1966).
l\
J
38A
PARAGRAPHS 2 AND 3 OF INTERROGATORIES
PROPOUNDED BY PLAINTIFFS, FILED JANUARY 3, 1966
R. p. 31
2. “ State the number of Negro students who requested
assignment or reassignment to formerly all white schools
for the 1965-66 school year.”
3. “ If the application of any Negro student for assignment
to a formerly all white school was denied, please give
reason for each such denial.”
PARAGRAPHS 2 AND 3 OF DEFENDANTS’ ANSWER TO
PLAINTIFFS’ INTERROGATORIES, FILED JANUARY 14,
1966
R. p. 81
“ Requests for assignment or reassignment of minor
students were not made by the students, but were re
quired to be made by the parents or legal guardians of
such students. Requests for assignment of colored
students to formerly white schools for the 1965-66
school year totaled 58; requests for initial assignment
of colored students to the first grade in formerly white
schools totaled 3. Out of the above requests for assign
ment, requests thereafter made for reassignment to
formerly colored schools totaled 22.”
3. “ Thirty one applications for assignments were not grant
ed, for that free choice of school for the 1965-66 school
year was allowed only to the parents or legal guardian
of a pupil who was promoted to the second, ninth or
twelfth grade for the 1965-66 school year, or initially
enrolling in the first grade for said year. Applications
for transfer of two pupils were not validly made.”
39A
PARAGRAPH 5 OF DEFENDANTS’ ANSWER, INCLUDING
SUBSECTIONS (a), (b), (c), and (d) filed January 14, 1966;
without Exhibit “ A” and without Exhibit “ B” .
R.p. 53
5. That Paragraph 5 of the complaint is denied. Further
answering said paragraph, the defendant says and alleges:
A. That the Office of Education of the United
States Department of Health, Education and Welfare
(hereinafter called Office of Education) pursuant to
the enactment into law of the Civil Rights Act of
1964, issued rules and regulations respecting the
enforcement of the provisions of said Act, which said
rules and regulations were, according to defendant’ s
information and belief, approved by the President of
United States as required by said Act. That said
rules and regulations were entitled “ General State
ment of Policies Under Title VI Of The Civil Rights
Act Of 1964 Respecting Desegregation of Elementary
And Secondary Schools” , a copy of same being hereto
attached, marked Exhibit “ A” and asked to be taken
as a part of this Answer.
B. That upon being informed of requirements
of the Department of Health, Education and Welfare
of the United States Government that a Franklin
County Plan for Compliance with the Civil Rights
Act of 1964 must be submitted to and approved by the
said Office of Education, the defendants, through its
agents and representatives, had conferences and
meetings with representatives of the Office of Educa
tion, and pursuant to these conferences and meetings,
the Franklin County Board of Education submitted to
the Office of Education a draft of a Plan for Com
pliance with the Civil Rights Act of 1964 (hereinafter
called “ Plan for Compliance” ); that thereafter, other
conferences and meetings were held with representa-
40A
tives of the Office of Education and amendments
were made to the Franklin County Plan for Com
pliance; that on 31 August 1956 the Office of Educa
tion approved said Plan for Compliance as amended.
A copy of said Plan for Compliance, embracing all
amendments made subsequent to 3 May 1965, is here
to attached, marked Exhibit “ B” and asked to be
taken as a part of this Answer.
C. That as provided by the directive issued by
the Office of Education of the United States Depart
ment of Health, Education and Welfare, same being
Exhibit “ A” hereto attached, the Franklin County
Board of Education, prior to the time of the closing
of the schools for the 1964-65 school year, required
parents or legal guardian of children entitled to at
tend the schools of the Franklin County Administra
tive Unit in the 1965-66 school year and who were to
be initially enrolled in the first grade or who were
promoted to the second, ninth or twelfth grades for
the 1965-66 school year, to make a free choice of the
schools within said Administrative Unit in behalf
of said children, and pursuant to said free choices,
ten colored children were assigned by the Franklin
County Board of Education for the 1965-66 school
year to schools formerly attended by white children,
and a number of said colored children are now attend
ing formerly all white schools. That under the afore
said approved Plan for Compliance, all parents or
legal guardian of all students in all grades of schools
of the Franklin County Administrative Unit will be
required, beginning with the 1966-67 school year
which commences on or about 1 September 1966, and
for each school year thereafter, to exercise a free
choice of schools, and no pupil will be admitted or
readmitted to any school in the Franklin County Ad
ministrative Unit until such free choice has been
made, as herein specified.
41A
D. That the United States Office of Education,
Department of Health, Education and Welfare, has
set a target date of the fall of 1967 for the extension
of desegregation to all grades of all school systems
within the United States, and the Franklin County
Plan for Compliance with the Civil Rights Act of
1964 exceeds the minimum requirements of said Unit
ed States Office of Education, in that the fall of 1966
is the date for extension to all grades in all schools
in the Franklin County Administrative Unit of the
freedom of choice plan approved by the said Office
of Education. That therefore, under the Franklin
County Plan for Compliance, for the 1966-67 school
year which will commence on or about 1 September
1966, the parents or legal guardian of all children
eligible to attend the schools of the Franklin County
Administrative Unit, including all plaintiffs who may
be so eligible, shall be required, prior to the closing
of the 1965.-66 school year in the month of May 1966,
to exercise their free choice of schools, and the
Franklin County Board of Education is now adhering
and will continue to adhere to said Plan for Com
pliance.
PARAGRAPH 10 OF DEFENDANTS’ ANSWER TO
PLAINTIFFS’ INTERROGATORIES, filed January 14,
1966; without Exhibit “ C” .
R.p. 81 10
10. Beginning with the 1956-57 school year, the Frank
lin County Board of Education assigned and enrolled pupils
in schools within the Franklin County Administrative Unit
in accordance with the provisions of Article 21 of Chapter
115 of the General Statutes of North Carolina, and this
procedure continued through the 1964-65 school year. Dur
ing this period, according to affiant’ s best information and
belief, first grade pupils were enrolled in the schools to
42 A
which their parents or legal guardians presented them for
enrollment, and thereafter such pupils were assigned to the
same schools unless they changed places of residence or
unless requests for transfers were made in their behalf, in
which case provisions of Article 21 of Chapter 115 of the
General Statutes of North Carolina were followed.
Beginning with the 1965-66 school year the provisions
of the Franklin County Plan for Compliance with the Civil
Rights Act of 1964 (Exhibit “ C” ) were followed.
PARAGRAPH 8 OF DEFENDANTS’ ANSWER TO
COMPLAINT IN INTERVENTION, filed February 21, 1966.
R.p. 131 8
8. Answering Paragraph 8, the defendants say, upon
information and belief, that prior to 1955 there was operated
in Franklin County a constitutional system of schools pro
viding separate schools for pupils of the colored race and
for pupils of the white race; that beginning with the 1956-57
school year, the Franklin County Board of Education en
rolled pupils in schools within the Franklin County Ad
ministrative Unit in accordance with the provisions of Ar
ticle 21 of Chapter 115 of the General Statutes of North
Carolina, and this procedure continued through the 1964-
65 school year; that during the period from 1956 through
the 1964-65 school year, according to the defendants’ in
formation and belief, first grade pupils were enrolled ini
tially in the schools to which their parents or legal guar
dians presented them for enrollment, and thereafter such
pupils were enrolled in the same schools, or in a school
for which the previously attended school was a “ feeder
school” , unless they changed their places of residence or
unless requests for transfers were made in their behalf, in
which cases the provisions of Article 21 of Chapter 115
43A
of the General Statutes of North Carolina were followed.
Further Answering said Paragraph, the defendants say that
prior to the 1965-66 school year 13 schools were operated
by the defendant Board of Education and that pursuant to
the procedure hereinbefore outlined in this Paragraph, color
ed students attended seven of said schools and white stu
dents attended six of said schools; that teachers in the
aforesaid schools were employed pursuant to applications
filed by said teachers, the nomination of said teachers by
the principals of the respective schools, and the election
of said teachers by the local school committees, all in full
compliance with the laws of North Carolina. Except as
herein admitted, the allegations of Paragraph 8 are denied.
OBJECTIVE STANDARDS FOR THE EMPLOYMENT,
ASSIGNMENT AND RETENTION OF TEACHERS AND
PROFESSIONAL STAFF ADOPTED BY FRANKLIN
COUNTY BOARD OF EDUCATION, Filed August 9, 1966.
R.p. 262
I N I T I A L E M P L Q Y M .E M 2
I.
Race, color or national origin shall not be a factor in
the employment of teachers and other professional staff.
Vacant positions shall be open to all applicants, and each
filed by the best qualified applicant regardless of race.
II.
Teachers shall hold at least an “ A” certificate issued
by the North Carolina Department of public Instruction in
the area of specialization required for the position sought.
Principals and other professional staff shall hold at least
the minimum certificate prescribed by the North Carolina
44A
Department of Public Instruction for the position sought.
In the event no applicant meets the foregoing qualifica
tion, the Board will entertain applications for persons with
less certification and in such cases will consider for em
ployment the person most nearly qualified for the position.
HI.
Applicants certified by the North Carolina Department
of Public Instruction during or since the year 1964 must fur
nish applicant’s score on the National Teachers Examina
tion. This score will be a factor, along with other factors
herein enumerated, in the employment of all such profes
sional personnel.
IV.
The applicant must furnish a medical certificate from
a qualified physician or from a public health agency that
the applicant is physically, mentally and emotionally fit
to perform the duties of the position sought, as provided in
Section 115-143 of the General Statutes of North Carolina.
V.
OTHER FACTORS:
(a) For a principal, evaluation and recommendation by
Advisory Council of appropriate school. For a teacher,
evaluation and recommendation by principal and Advisory
Council of appropriate school. For an applicant favorably
recommended, personal interview by Superintendent or other
member of Superintendent’ s staff.
(b) Applicant’ s training, experience, personal conduct
and habits, competence and financial responsibility.
45A
Superintendent’ s office may procure information regard
ing these items by obtaining letters of appraisal (1) from
applicant’ s former employers, if any, (2) from residents of
places where applicant formerly iived, and (3) from other
persons in a position to have knowledge of one or more of
said items.
(c) Applicant’ s high school and college grades and
SAT score as shown on transcripts of same.
(d) The academic standing and reputation of the col
lege, university or other institution which applicant attend
ed.
(e) College or university study by applicant beyond that
required for certification, and participation by applicant
in seminars, in-service courses and in other educational
programs.
VI.
Nomination by Superintendent and election by the Board
of Education.
ASSIGNMENT
I.
Race, color or national origin shall not be a factor in
the assignment of teachers and professional staff.
II.
Teachers and principals must be certified by the North
Carolina Department of Public Instruction in the area of
specialization required for the position.
46A
III.
The choice of assignment expressed by teachers or mem
bers of professional staff will be honored to the extent
practicable.
IV.
For a principal, recommendation by Advisory Council
of appropriate school. For a teacher, recommendation by
principal and Advisory Council of appropriate school.
V.
Recommendation by Superintendent.
R.E 1 E N H Q N
I.
Race, color or national origin shall not be a factor in the
retention of teachers and professional staff.
II.
Where applicable, the requirements prescribed for initial
employment.
III.
Favorable appraisal by person directly responsible (of
supervising teacher or member of professional staff during
prior school year. The appraisal shall include the follow
ing items:
(a) Efficiency
47A
(b) Attitude toward:
1. students
2. co-workers
3. administration
4. community
5. schools
6. position held
(c) Morality
(d) Financial responsibility
(e) Success of pupils measured by:
1. test scores
2. ability to do next level of work
IV.
For a principal, recommendation by Advisory Council of
appropriate school. For a teacher, recommendation by prin
cipal and Advisory Council of appropriate school.
V.
Nomination by Superintendent and election by Board of
Education
48A
DEFENDANTS’ REPORT OF NUMBER OF NEGRO
STUDENTS ASSIGNED TO PREDOMINANTLY WHITE
SCHOOLS AND NUMBER OF NEGRO AND WHITE TEACH
ERS AND SCHOOL PERSONNEL ASSIGNED DUTIES IN
SCHOOLS IN WHICH MAJORITY OF STUDENTS ARE OF
ANOTHER RACE, filed September 12, 1966.
R.p. 275
S T U D E N T S
33 Negro students requested assignment to Louisburg
Elementarv and High School, a predominantly white school,
and said 33 Negro students were assigned to Louisburg
Elementary and High School.
13 Negrq students requested assignment to Bunn Elemen
tary and High School, a predominantly white school, and
said 13 Negro students were assigned to Bunn Elementary
and High School.
Two Negro students requested assignment to Edward
Best High School, a predominantly white school, and said
two Negro students were assigned to Edward Best High
School.
One Negro student requested assignment to Epsom Ele
mentary and High School, a predominantly white school,
and said one Negro student was assigned to Epsom Elemen
tary and High School.
T E A C H E R S A N D S C H O O L P E R S O N N E L
TEACHERS:
Two white teachers were assigned to Riverside Elemen
tary and High School, a school in which the majority of the
students are of a race other than such teachers’ .
One Negro teacher was assigned to Louisburg Elemen-
49A
tary and High School, a school in which a majority of the
students are of a race other than such teacher’s.
One Negro teacher was assigned to Bunn Elementary
and High School, a school in which the majority of the stu
dents are of a race other than such teacher’s.
STAFF PERSONNEL:
Two Negro staff members were assigned duties in all
schools in the Franklin County Administrative Unit, in
cluding all schools in which the majority of students are
of a race other than such staff members’ .
Four white staff members were assigned duties in all
schools in the Franklin County Administrative Unit, in
cluding all schools in which the majority of students are
of a race other than such staff members’ .
Three white staff members were assigned duties in
schools in which the majority of students are of a race other
than such staff members’ .
PARAGRAPH 8 OF DEFENDANTS’ RESPONSE TO
PLAINTIFFS’ MOTION FOR FURTHER RELIEF, filed
May 9, 1967.
R.p. 328 8
8. Answering Paragraph 8, the defendants say that un
der date of 10 September 1966 they filed with the United
States District Court for the Eastern District of North Caro
lina, a Report of the Number of Negro students Assigned
to Predominantly White Schools and Number of Negro and
White Teachers and School Personnel Assigned Duties in
Schools in Which Majority of Students are of Another Race.
That said Report showed that 49 Negro students requested
50A
assignments to predominantly white schools and were as
signed to such schools. That two white teachers were as
signed to a school in which the majority of the students
were of a race other than such teachers’ , and that two Ne
gro teachers were assigned to schools in which the majority
of the students were of a race other than such teachers’ ,
that two Negro and four White Staff Members were assigned
duties in all schools in the Franklin County Administrative
Unit, including all schools in which the majority of students
were of a race other than such Staff Members’ , and that
three White Staff Members were assigned duties in schools
in which the majority of students were of a race other than
such Staff Members’ . That said Report dated 10 September
1966 is respectfully asked to be taken as a part of this
Response, as if the same were here copied verbatim.
PARAGRAPH 12, SUBSECTIONS (a), (b), (c), and (d) OF
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION
FOR FURTHER RELIEF, filed May 9, 1967.
R.p. 328
12. Answering Paragraph 12, the defendants say that
they are operating a desegregated school system wholly in
compliance with the Orders of this Court and with Rules
and Regulations issued by the Office of Education of the
United States Department of Health, Education and Welfare.
Specifically answering the sub-sections of Paragraph 12
these defendants say:
(a) That each student in the schools of the Franklin
County Administrative Unit is attending the school selected
by said student or his or her parent or person acting as
parent, without regard to race, said selection having been
freely and voluntarily made by such student or parent or
person acting as parent, under the freedom of choice plan
in effect in said Administrative Unit, without threats or
intimidations by any defendant or other school personnel,
and without any threat or intimidation by any other person,
51A
to the knowledge of the defendants.
(b) That the allegations of sub-section (b) are untrue
and are denied, the true facts being that the defendants
have fully complied with each and every provision of the
Order entered on 27 July 1966.
(c) That the allegations of sub-section (c) are untrue
and are denied.
(d) That the allegations of sub-section (d) are untrue
and are denied.
ANSWER TO PLAINTIFF-INTERVENOR’ S CHRONOLOGY
OF INTIMIDATION, filed August 7, 1967 (Plaintiff-Inter-
venor’s Chronology of Intimidation found in Appendicies
beginning on page 395 of Record on Appeal).
R.p. 502
That in answer to the plaintiff-intervenor’ s Chronology
of Intimidation, the defendants respectfully show unto the
Court that since the Interim Order was entered in this cause
on the 27th day of July, 1966, the plaintiff-intervenor lists
four (4) alleged acts of intimidation occurring within the
Franklin County Administrative Unit. The defendants will
discuss each act of alleged intimidation separately:
(1) August 8, 1966 — “ Shots were fired into home of
Mrs. Perry, who had no children in a white school. This
occurred during the court ordered second choice period,
and The Franklin Times immediately associated the inci
dent with the desegregation suit.”
The testimony cited to the Court by Willie Perry was
brought out on cross-examination on Page 220 of the Willie
Perry Deposition. On Page 198 of the Willie Perry Deposi-
52A
tion, the witness testified that she received a freedom of
choice form in March of 1967 and that each of the children
living with her either made a choice of school to attend for
the 1967-68 school year or had a choice made in his behalf,
Miss Perry further testified that she had no children attend -
ing predominantly white schools and on Page 222 of her
Deposition, she testified that she did not know why her
home was shot into, and it is the contentions of the defen
dants that due to the fact that the witness, Willie Perry,
had no children in white schools, that the incident of Au
gust 8th should not be termed as an act in opposition to the
desegregation of the Franklin County Schools.
(2) September 3, 1967 - “ Residence of Breand Fogg
and Margaret Fogg shot into. They are Negro students in
Louisburg High, a white school. Margaret Fogg, a Negro,
is called derisive names at a white school.”
To prove the above incident, the plaintiff-intervenor
called Margaret Blaine Fogg, a 14-year old Louisburg High
School student as a witness. Although Margaret Blaine
Fogg attended a predominantly white school for the school
year 1966-67, it is the feeling and belief of the defendants
that if in truth and in fact the alleged shooting incident
into the Fogg home was related to the desegregation of
schools in the Franklin County Administrative Unit, the
parent or parents of said child should have been called as
a witness to prove the said incident and that said parents
should have been exposed to the defendants’ cross-exami
nation as to possible reasons for the alleged shooting.
(3) March 5 or 6. 1967 - “ An explosion occurs at night
time at the Coppedge residence during the choice period.
Mrs. Bowden. Mrs. Gardner, and Miss Ossie Spivey, neigh
bors. all heard the noise.”
The testimony of the witness, Christine Coppedge and
the witness. Harold Douglas Coppedge. raised a serious
53A
doubt as to the actual happening of the explosion about
which Christine Coppedge testified. On Page 31, Christine
Coppedge testified that after the explosion, she fired her
rifle about sixteen times and on Page 59 of her testimony,
she testified that she saw no hole in the yard and the
Sheriff of Franklin County found no evidence on the ground
of any explosion. Mrs. Coppedge further testified that imme
diately after the explosion, there were several cars driving
up and down the highway in front of her home. On cross-
examination of the witness, Harold Douglas Coppedge, at
Page 158 he testified that he found a hole in the yard as
evidence of the explosion described by the witness, Chris
tine Coppedge, and that his mother saw the hole in the yard
which was caused by the explosion. The defendant called
as a witness Ira Bowden, a next-door neighbor of Christine
Coppedge, who testified on Page 128 of his Deposition that
about 9:15 or 9:30, he heard a loud noise that sounded like
a gunshot; that he immediately went to his front door and
saw no cars pass; that on Page 129 of his Deposition, he
testified that he did not notice any light on at the Coppedge
house and he saw no cars leave the Coppedge house; that
he heard no rifle shots go off after the loud noise about
which he testified; that he did not hear any of the Coppedge
dogs barking on the night of the alleged explosion. The
defendants also called as a witness Odell Rice Gardner
who is also a next-door neighbor of Christine Coppedge and
she testified on Page 161 that on the night of March 5,1967,
she heard something like a gunshot between 9:00 and 9:30
p.m. She said the noise sounded as if it were coming from
the road; that she looked in the direction of Luther (Cop-
pedge’s) and didn’t see anything; that the explosion or gun
shot was the only sound she heard. On Page 163, the wit
ness testified that she did not see any cars and that she
did not hear any rifle shots immediately after the explosion
or gunshot; that she heard no dogs barking.
That it is the contention of the defendants that it is
extremely doubtful that the blast or explosion at the Cop-
54A
pedge house on the night of March 5th or 6th, 1967, occurred
in the manner testified to by Christine Coppedge, and if
in fact it did so occur, it is the contention of the defendants
that the same was not caused by anyone opposed to the
desegregation of the Franklin County Public Schools. The
discrepancies in the testimony of Harold Coppedge and
Christine Coppedge leave room for suspicion as to what,
if anything, happened on the night in question in the way
of threats or intimidation. The testimony of Mr. Bowden
and Mrs. Gardner in direct contradiction to that of Harold
Coppedge and Christine Coppedge as to whether or not Mrs.
Coppedge fired a rifle, as to the presence of automobiles
on the highway and as to dogs barking leaves room for doubt
as to how said incident actually occurred and if the same
did occur, whether or not the same was caused by someone
opposed to the desegregation of the Franklin County
Schools.
(4) May 26, 1967 - “ Shots fired into the home of Wiley
Davis, whose brother and neighbor, James Davis, had two
children in desegregated schools.”
It was brought out in the trial of this matter by the wit
ness, Luther Coppedge, that Wiley Davis had no children
attending predominantly white schools; that the evidence
concerning the shots fired into the home of Wiley Davis
was all hearsay; that the Government should have called
Wiley Davis or someone who was present in his home at the
time the alleged shots were fired in order that the said
Wiley Davis or persons present in his home could have
been cross-examined as to why shots might have been fired
into the Davis home. It is the contention of the defendants
that the incident occurring at the Wiley Davis home, which
occurred some two (2) months after the freedom of choice
period ended, had nothing to do with the desegregation of
the Franklin County Schools.
55A
ORDER OF JUDGE ALGERNON L. BUTLER,
filed September 5, 1967.
R.p. 543
The defendants having applied to this Court for an Order
staying the execution, pending final disposition of their
appeal to the United States Court of Appeals for the Fourth
Circuit, of the first two paragraphs of Part I and of the
first paragraph of Part II of this Court’ s Order entered here
in on August 17, 1967, and said application having come
on for a hearing on August 31, 1967, and the Court having
considered the arguments of counself or the respective
parties,
IT IS HEREBY ORDERED that defendants’ application
for a stay of the enforcement of the aforesaid provisions
of said order be and it is hereby denied, and
IT IS FURTHER ORDERED that the plan to be filed by
the defendants pursuant to the first sentence of Part I of
said Order, and the report to be filed by the defendants
pursuant to the fourth sentence of Part IV of said Order,
shall each be filed thirty days after March 1, 1968 or 30
days after the filing of the decision of the United States
Court of Appeals for the Fourth Circuit in this cause,
whichever is earlier, instead of on October 15, 1967.
ORDERED this 31st day of August, 1967.
56A
MOTION FOR INTERVENTION IN BEHALF OF 55 NEGRO
STUDENTS IN FRANKLIN COUNTY, filed October 2, 1967,
in Office of the United States District Court of Eastern
District of North Carolina.
R.p.------
HAROLD DOUGLAS COPPEDGE, a minor,
by his father and next friend,
REV. LUTHER COPPEDGE;
FRANCES NARENE DRIVER, JACQUELYN
ROSE DRIVER, BOOKER T. DRIVER, JR.
and JESSE L. DRIVER, minors, by
their father and next friend,
BOOKER T. DRIVER;
CHARLES D. GILL, MARTHA D. GILL
and JAMES GILL, minors, by their
father and next friend, OTIS GILL;
PATRICIA K. GILL, a minor, by her father an
father and next friend, RUFIN GILL;
MARGIE J. KELLEY and GWENDOLYN E.
KELLEY, minors, by their father
and next friend, WILLIE PETTIFORD;
JEAN CAROL SATTERWHITE and CARL LEE
SATTER WHITE, minors, by their father
and next friend, HENRY SATTERWHITE;
BERTHA ENGRAM and PAUL ENGRAM, II,
minors, by their father and next
friend, PAUL ENGRAM;
NORINE ARRINGTON, a minor, by her
mother and next friend, MRS. IRENE
ARRINGTON;
57 A
CARRIE C. MCKNIGHT snd NATHANIEL
MCKNIGHT, minors, by their mother
and next friend, MRS. CARRIE H.
Comer;
CHARLIE H. JONES, a minor, by his
father and next friend, SANDY JONES;
REGINA 0. WOODSON, a minor, by her
mother and next friend, MRS.
OSCELOA COGSWELL;
Plaintiffs,
UNITED STATES OF AMERICA, by
Ramsey CLARK, Attorney General,
Plaintiff-Intervenor,
-V S -
THE FRANKLIN COUNTY BOARD OF EDUCATION,
a public body corporate; WARREN W. SMITH,
Superintendent, MRS. T. H. DICKENS,
Chairman, JONES H. WINSTON, ALBERT C.
FULLER, LLOYD A. WEST, HORACE W. BAKER,
members, Franklin County Board of Education
Defendants.
LEROY CREWS, ERNESTINE CREWS,
BETTY ANN CREWS, JOE PHILLIP
CREWS, JULIA ANN CREWS, JANETTE
CREWS, minors by their father
and next friend, M. A. CREWS;
MARY TUCKER, JOHNNIE THOMAS,
CARL THOMAS, ALBERT THOMAS
and ESTELLE THOMAS, minors, by
their father and next friend,
ISSAC THOMAS;
58A
ROGER WILLIAMS, ROBERT LYNN
WILLIAMS, GERALDINE WILLIAMS,
EDDIE MALOY WILLIAMS, DIANE
WILLIAMS, ANN WILLIAMS, JEAN
WILLIAMS, WILLIE WILLIAMS,
DONNA WILLIAMS, minors, by
their father and next friend,
CHARLES WILLIAMS;
SHIRLEY HARRIS and THOMAS HARRIS,
minors, by their father and next
friend, DOUGLAS HARRIS;
ERNESTINE WILLIAMS, RUBLINE
WILLIAMS, JIMMY LEE WILLIAMS,
MARTHA RAY WILLIAMS, AVERY
WILLIAMS, DONNIE WILLIAMS,
JESSE EARL WILLIAMS and LENNIE
PEARL WILLIAMS, minors, by their
mother and next friend, MRS.
ROZELLA WILLIAMS;
CORA MAE HICKS and MARY LEE
HICKS, minors, by their father
and next friend, CLYDE HICKS;
WILLIE LEE SMITH, JAMES EDWARD
SMITH, BOBBY LEWIS SMITH and
FREDDIE RAY SMITH, minors, by
their father and next friend,
WILLIE SMITH;
ELLA MAE SMITH, ERELA ANN SMITH,
SHIRLEY JEAN SMITH, MARY LIZZIE
SMITH and BERTHA MARIE SMITH,
minors, by their father and
next friend, ZOLLIE SMITH;
59A
LAURA MAE THOMAS, MYRTLE MARIE
THOMAS, SUSIE THOMAS, LOSIE JEAN
THOMAS, ERNEST THOMAS, JR.,
CLEMANTINE THOMAS and FRIEDA
LOUISE THOMAS, minors, by their
father and next friend, ERNEST THOMAS;
MILTON LEE PERRY, PERCELL PERRY,
WILLIE MORRIS PERRY and KEMP
PERRY, JR., minors, by their
mother and next friend, MRS.
ELNORA PERRY;
MATTIE MAE ALSTON, MONROE ALSTON,
and LAUERN ALSTON, minors, by their
father and next friend, STAN ALSTON;
Defendants-Intervenors.
TO THE HONORABLE ALGERNON L. BUTLER, Chief
Judge, United States District Court for the Eastern District
of North Carolina:
The Defendants-Intervenors through counsel respectfully
move the Honorable Court that they be allowed to intervene
in the above entitled Civil Action under Federal Rule 24
and respectfully show unto the Court the following:
1.
That the defendants-intervenors are citizens and resi
dents of the County of Franklin, State of North Carolina,
United States of America.
2.
That said defendants-intervenors are Negro citizens
60A
affected by the issues raised by the above entitled Civil
Action.
3.
That the plaintiffs do not represent the interest of the
defendants-intervenors, but that orders of the Court have
adversely effected the interest and rights of the defendants-
intervenors.
4.
That an order was entered on the 17th day of August,
1967, by your Honor ordering the original defendants to
transfer a sufficient number of Negro students to predomi
nantly all white schools to amount to 10% of the Negro stu
dents enrolled in the Franklin County Schools. The defen
dants-intervenors have been transferred by the Franklin
County Board of Education to predominantly white schools.
5.
That in the spring of 1967, the defendants-intervenors
under the Freedom of Choice Plan administered by the
Franklin County Board of Education freely chose to attend
predominantly negro schools in Franklin County and this
choice was made without threat or intimidation from any
source and without fear on the part of the defendants-inter
venors. That these defendants-intervenors still desire to
attend the schools that they freely chose to attend in the
spring of 1967.
6 .
The defendants-intervenors are informed and believe
that the freedom of choice plan administered by the Frank
lin County Board of Education was approved by the Depart
ment of Health, Education and Welfare and as to these de
fendants-intervenors, they allege that the freedom of choice
6IA
.plan is constitutional.
7.
That these defendants-intervenors say that they will
suffer irreparable injury unless they are allowed to inter
vene to defend themselves in this action.
8 .
That these defendants-intervenors have filed proposed
answer to the plaintiffs’ complaint and the Plaintiffs’ in-
tervenors complaint.
WHEREFORE, the Defendants-intervenors pray your
Honor will allow them to intervene in this action; that your
Honor will hear their Motion To Intervene as soon as pos
sible; and for such other and further relief as they may be
entitled to.
PEOPLES AND ALLEN
Attorneys at Law
Suite 11, Law Building
Henderson, North Carolina
By LINWOOD T. PEOPLES
Attorneys for Defendants-intervenors
62A
CERTIFICATE OF SERVICE
The undersigned hereby certifies that copies of this
Motion for Intervention of Defendants-Intervenors were serv
ed on the plaintiffs, Plaintiff-Intervenor, and defendants by
depositing copies of same in the United States Mail, post
age prepaid, to Conrad 0. Pearson, 203% East Chapel Hill
Street, Durham, North Carolina; J. Levonne Chambers, 405%
East Trade Street, Charlotte, North Carolina, Jack Green
berg and James M. Nabrit, III, 10 Columbus Circle, New
York, New York, Attorneys for plaintiffs; to Frank E. Sch-
welb, Department of Justice, Civil Rights Disivison,Wash
ington, D. C.; Robert H. Cowen, United States District At
torney, Post Office Building, Raleigh, North Carolina,
Attorneys for Plaintiff-Intervenor and to Irvin B. Tucker,
Jr., Post Office Box 1565, Raleigh, North Carolina; Ed
ward F. Yarborough, 106 East Nash Street, Louisburg, North
Carolina; and Charles M. Davis, North Main Street, Louis
burg, North Carolina, Attorneys for Defendants.
This 2nd day of October, 1967
s/LINWOOD T. PEOPLES
LINWOOD T. PEOPLES, A Member of the Fu«
of Peoples and Allen, Suite 11, The Law
Building, Henderson, North Carolina
63A
STATEMENTS OF THE COURT AND COUNSEL CONCERN
ING COMPETENCE AND ADMISSIBILITY OF EVIDENCE
OFFERED BY DEPOSITIONS
Trans. Trial, Vol. I, PP 4-9; pp 14-15
MR. SCHWELB: May it please the Court, may I intro
duce some of my documentary evidence? I think it might
be simpler if we incorporate all of the depositions taken by
the Plaintiff-Intervenor and probably by stipulation the de
positions also taken by the Defendants heretofore and make
those a part of the record.
I suppose the various parties may have objections to the
contents of individual depositions; however, I would be
perfectly willing to submit the depositions and leave it to
your Honor’ s discretion as to whether or not any particular
objection is sustained or whether it is material and compe
tent.
THE COURT: Well, this is a matter before the Court.
The Court can determine whether portions of the deposi
tions are competent or incompetent.
MR. SCHWELB: We are also going to provide the Court,
your Honor, with an index to the depositions. There are
also a number of exhibits that are in evidence from last
year’ s depositions. They will be listed. We have additional
exhibits which are exhibits in particular depositions.
I would like to introduce at this point Government’ s Ex
hibits 30, 31, 32, 33, 34, 35, and 36, which are not yet in
evidence, and I don’ t know how your Honor would like to
deal with that.
THE COURT: Just tell me the nature of those.
MR. SCHWELB: Government’ s Exhibit 31, your Honor,
is The Principals’ Monthly Reports for the Year 1966-67,
made by the principals of the Franklin County schools to
64A
the State Board of Education. They are used largely for
statistical information and for the existence or non-exist
ence of disparities between the schools. We have stipulat
ed previously with Mr. Yarborough as to the authenticity of
documents of this kind, although the defendant reserved its
right to object to their relevancy in evidence.
Government’s Exhibit 32, your Honor, is a document sub
mitted by the Board with respect to their transportation
schedules, also for the year 1966-67.
Government’ s Exhibit 33 is a clipping from The Franklin
Times, dated April 25, 1967, entitled “ Franklinton School
Hearing Recessed.” Again I believe that the defendants
have indicated previously that they are willing to stipulate
that this is a copy of the newspaper, but they are not will
ing to stipulate the admissibility of it in evidence. Perhaps
the Court could take it subject to their objection.
MR. YARBOROUGH: If your Honor please, we object,
of course, to the introduction of Exhibits 31, 32, and 33.
The first two, 31 and 32, are not relevant to the issues
raised in this proceeding, and, of course, we object to No.
33 on the ground that it is not relevant and not admissible.
We have agreed that this is a copy of what was published
in the newspaper only, not that it is relevant, has any bear
ing on this case, or is competent.
THE COURT: I understand that you admit their authen
ticity, but you object to their relevancy?
MR. YARBOROUGH: Yes, sir. It pertains to a different
unit rather than to the Franklin County Administrative Unit
on both objections.
MR. SCHWELB: That’ s true, your Honor, but it was
published in The Franklin Times which is edited by a mem
ber of the Franklin County School Board.
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Now, Exhibit 34 is a clipping from The Franklin Times
of April 25, 1967, entitled, “ County School System Headed
Back to Court.”
MR. YARBOROUGH: Of course, we object to that on
the same grounds.
MR. SCHWELB: Government’ s Exhibit 35 is a clipping
from The Franklin Times of July 13, 1967, entitled “ Frank-
linton Board Studies Further Desegregation.”
MR. YARBOROUGH: Objection on the same grounds.
THE COURT: Suppose we wait until he offers them,
and then you may object to all of them at one time if you
wish.
MR. SCHWELB: Government’s Exhibit 36, which was
omitted by mistake when we previously introduced evi
dence, is an editorial from the Raleigh News & Observer,
dated September 10, 1966, entitled “ Pressure in A Thicket.”
1 would like to offer these in evidence at this time, your
Honor.
THE COURT: I understand that you object to all of
these as being irrelevant to the issues before the Court?
MR. YARBOROUGH: They are hearsay evidence also,
sir, and that’ s not competent evidence to be offered in a
trial.
MR. SCHWELB: Your Honor, we are not trying to offer
any of these newspaper articles for the truth of their con
tent, but only for the fact that these newspapers were pub
lished and were presumably read by persons in Franklin
County.
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THE COURT: Now, gentlemen, suppose we look at this
as a very practical matter now. There is no jury sitting
here. It’ s a matter before the Court. If evidence or ques
tions are asked that are incompetent or answers given that
are incompetent, the Court will exclude them from its con
sideration at the proper time. There is no need to press
objections or motions to strike in this sort of hearing. You
may object, of course, for the record, but we don’t even
want to clutter up the record with too many objections and
exceptions because the Court will automatically exclude
from its consideration any evidence that it considers incom
petent.
EXTRACT FROM THE FRANKLIN TIMES, issue of June
16, 1964, Government’ s Exhibit No. 1 in deposition of Mrs.
Irene Arrington, taken July 27, 1966.
Gov’t Exhibit 1, Arrington dep. p 15
8 NEGROES SEEK ASSIGNMENT TO LOUISBURG SCHOOL
Eight applications for reassignment of Negro pupils to
the all white Louisburg High School have been filed in the
office of the County Board of Education. The applications
represent three families, two of which are requesting re
assignment of three children and the third seeking to enter
two children.
The applications were delivered to the Education Office
last Friday by an unidentified Negro woman. All had been
signed and notarized last Wednesday. The forms were pick
ed up at the office on June 1st, three days before the assign
ment of pupils for the next school term.
Lenwood and Irene Arrington, Rt. 3, Louisburg filed re
quests for Joe Bennie Arrington 17, to be transferred'from
the 11th grade at Riverside Negro School in Louisburg to
Louisburg High School; Lenwood Arrington, Jr. 14, 9th
grade, from Riverside to Louisburg and Norine Arrington
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, 12, 6th grade from Cedar Street School in Louisburg to the
Louisburg elementary school.
The application, which stated that the father was unem
ployed and listed the mother as a housewife, said the rea
son for seeking reassignment to the Louisburg School was
because of “ Better facilities and is nearer.”
Susie C. and St. Clarence (Sinclair) Arrington, Rt. 2,
filed applications for three of their five children, Raymond
Earl Arrington 10, 5th grade, from Riverside to Louisburg;
Larry Donnell Arrington 9, from Riverside to Louisburg and
Fred Truman Arrington 11, 5th grade, Riverside to Louis
burg. The same reason for reassignment requests were
given, declaring Louisburg has better facilities and is near
er, as in the other applications.
Arrington works for the J. P. Taylor Tobacco Co. in
Henderson and his wife helps in farming.
Christine Rodwell, a widow, of Rt. 2, Henderson, filed
applications for two children whose enrollment at Riverside
could not be verified by school records. The school office
has no record of Charlie Mahope Rodwell 16, and Hunter
Rodwell 15.
However, records do show two children listed as Charlie
Mahope Mayo and Hunter Mayo, both of the age given and
in the grades given on the Rodwell reassignment requests.
One seeks to transfer to the 7th grade at Louisburg and the
other to the 8th grade.
The Rodwell woman signed her husband’s name to the
application, later marking through the name and writing
“ Dead” beside it. Her reasons for seeking to move these
children was given as the same as the others. School re
cords show her listed as guardian of the children and later
changed to state that the children are adopted. Neither can
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be Verified by records in the courthouse.
All eight of the forms were notarized by John P. Man-
grum, Franklinton Negro minister, who suffered defeat in
the recent Democratic Primary in his race for a post as
County Commissioner. All eight were worded the exact
same as to the reasons.
None of the applications made mention of assignment by
race or integration of the schools. The North Carolina
Pupil Assignment Law requires the County Board of Educa
tion to assign each child, and to so inform the parents, at
the end of each school year. In Franklin County, this is
done by written notice on the pupil’ s report card.
Parents, legal guardians or persons standing in for par
ents, have ten days from notification of assignment in which
to apply for reassignment of their children to a school other
than the one to which the child has been assigned.
The law also requires that such applications for reas
signment, be given prompt attention and that the Board’s
decision be made by registered mail to the signer of the
application. The parent may then ask for and get an appeal
hearing before the Board of Education, provided the request
is made within five days.
Superintendent of Schools, Warren W. Smith stated, “ The
Board of Education will meet in a few days to consider
these requests.” Beyond this, Smith had no comment.
The Board’ s Committee composed of Clint Fuller, Vice
Chairman of the Board; Superintendent Smith and Board
Attorney E. F. Yarborough have been in regular negotiation
with local NAACP leaders, since the boycott of Riverside
school at the beginning of this past school year. Most of
the demands made at that time have been met, according fo
officials and one stated, “ These applications are some
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what surprising coming at this time.”
The County Board of Education, which has received
petitions in 1963 and 1964 from Negro groups, requesting
total integration, and have held meetings with delegations
representing various Negro Committees, is expected to rend
er a decision on these reassignment requests within the
next few days.
The Board recently approved plans for a new cafeteria
at the Riverside school and last week held two meetings
concerning long range plans for county schools, which
would include two new high school and elementary schools
designed to accomodate the growing population in certain
areas now serving Negro pupils.
EXTRACT FROM THE FRANKLIN TIMES, issue of June
8, 1965, Government’ s Exhibit No. 1 in deposition of Rev.
Sidney Garfield Dunston, taken July 26, 1966.
Gov’t Exhibit 1, Dunston dep. p 9
NAMES OF TRANSFER STUDENTS RELEASED
The Franklin County Board of Education released the
names of the 60 students whose parents have requested
assignments to schools other than those which the child
has previously been attending in its regular meeting yester
day.
Of the sixty, 56 Negro children seeking admission to
previously all white schools under the Board’ s Plan of
Compliance to the Civil Rights Act of 1964. The plan has
not been approved by federal authorities and the Board de
clined action on the requests Monday, in order to check on
some applicants who were not promoted to the grades for
which they applied and to further check the residence of
some parents. Also being studied by the Board is the le
gality of some guardian signers. The Board’s plan speci-
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fies that requests must be signed by parents or legal guar
dians of the children for whom application is being made.
Entry into previously all white schools are being made
under two provisions of the plan. One, freedom of choice,
allows for the desegregation of grades 1, 2, 9, and 12.
Under the second method, lateral transfers, pupils may get
reassigned to other schools under certain conditions spelled
out by the Department of Health, Education and Welfare.
The lists by schools follows:
LOUISBURG: From Riverside: Annie Jean Davis (12),
parent, James Davis; Sidney A. Manley (9), parent Sidney
Manley; Thaddeus J. Cheek (12), parent, James B. Cheek;
Cornel W. Davis (12), parent, (listed as guardian) Inez Da
vis; Fred Lee Wilkins (12), parent, Susie Wilkins; Lynwood
(12) and Christopher Neal (9), parent, Willie Neal; Jesse
Whitley (2), parent, Barbara Whitley; Timothy Neal (2),
parent, Beulah L. Neal; and Reginald Jay Carter (2), parent,
Hazel R. Carter. All the above are freedom of choice ap
plicants.
Lateral Transfers to Louisburg from Cedar Street: Char
lie Henry Jones, Jr. (7), guardian, Sandy Jones; Norine
Arrington (7), parent, Lenwood Arrington; Luther Geddie
(S). guardian. Rev. S. G. Dunston. To Louisburg from
Riverside: Margie Lee Alston (10), parent, Willie Mae Al
ston: Charles (10). James. (5) and Martha Gill (10), parent
Otis Gill: Barbara Perry (11). guardian. Lillie Brown: Harry
Branch (SL guardian. Joseph Henry Branch; June Edgerton
parent, lealie Edgerton; Regina Woodson (6). guardian,
Oseeha logsw ell; Eddie Lee Edgerton (7). parent. Eddie
le e b dgertoo; \ rneent Chico Baker i 7). and Robert Donald
r'cvo (U \ parent, Marion Baker; Patricia Kay Gill (11).
parent Ruffin Gill; Barbara Mae Engraai (11>. and Paul
Clite Eagran (SV parent. Paul Clide Fng.nr Lamo D r
Jtv jpamKan* tev, $. 6* Dvaston; Cane Mdaugte (ft
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and Nathaniel McKnight, Jr. (7), guardian, Carrie Comer.
To Louisburg from Edward Best under Freedom of
Choice: Nathan Patterson, Jr. (12), parent, Nathan Patter
son; and Christopher Gupton (2), parent, S. E. Gupton, Jr.
From Edward Best Elementary to Louisburg under Lateral
Transfer: Brian Gupton (4), parent, S. E. Gupton, Jr.
GOLD SAND: From Riverside, (FOC), Eddie Thomas
Jones (2), parent, Melvin Jones; From Perry’ s: Michael
Scarboro (9), parent, Sallie Hagwood. From Riverside (LT)
Connie Lafaye Jones (5), parent, Melvin Jones; From Louis
burg: James Edwards, Jr. (3), Alice Fay Edwards (6), pa
rent, J. N. Edwards; From Edward Best Elementary: Gor
don, Jr. (5), Danny (3) and William Gordon (7), parent, Clyde
Leonard.
EDWARD BEST: From Perry’ s: (LT) Harold Coppedge
(10), parent, Luther Coppedge. EPSOM: From Riverside:
(FOC) Mary Phylis Allen (11), parent, John Earl Thomas
Allen. YOUNGSVILLE: From Riverside: (FOC) Agnes
Jeffreys (12), parent, Lucy J. Jeffreys; Brenda Delois Per
ry (12), parent, Mary L. Perry; Margaret Ree Crudup (12),
parent, James Crudup; and Fannie Monroe (12), par ent ,
Zora Lee Monroe.
BUNN: From Gethsemane: (FOC) Alcer Mae Satterwhite
(12), parent, Henry E. Satterwhite; (LT) Jesse Lemon Dri
ver (3), Booker T., Jr. (6), Jacquelyn (7), and Frances No-
rene Driver (8), parent, Booker T. Driver; Gwendolyn Elaine
(5) and Margie Jeanette Kelly (8), parent, Willie Pettiford;
Carl Lee and Jean Carol Satterwhite (11), parent Henry M.
Satterwhite.
Louisburg has one Negro first grade applicant, Millered
Brodie, parent, Willie Brodie, and Bunn has two, Bonnie
Satterwhite, parent, Alcer Satterwhite, and Donald Satter
white, parent, Henry M. Satterwhite.
7 2 A
RIVERSIDE: (FOC) From Gethsemane: Thurston Bro-
die, Jr. (12), parents, Thurston and Viola Brodie; Fr om
Mapleville: Janice Marie Gupton (2), parent, Ernie Gupton.
(LT) From Gethsemane: Janice Harris (5), Bonnie Harris
(10) and Audrey Harris (6), parent, Bonnie 0 . Harris, Jr.;
and From Mapleville: Virgil Williams (3), parent, James L.
Williams.
PERRY’ S: (LT) From Riverside: Carolyn N. Jones (10),
parent, Melvin Jones.
The Board announced there had been several withdrawals
of applications and freedom of choice selections and at
least eight students seeking admission to a school different
from the one now attended had not passed their grades.
Seven students, residing in Vance County, and seeking
release from Franklin County where they had attended
schools this year, were granted their release, subject to
acceptance by the Henderson City Schools and V a n c e
County Schools. Students involved were: Sharon (4), Vic
kie (3) and Donna Southerland (8) released to Henderson
(High School); Kenneth B. Ellis to Aycock and Melvin and
Ernest Bowes (2) to Zeb Vance. All eight students at
tended Epsom last term, but live inside Vance County.
DIRECT EXAMINATION OF REV. SIDNEY GARFIELD
DUNSTON.
Dep. of Rev. Sidney Garfield Dunston, July 26, 1966 pp 5-6
Q. Now, Reverend Dunston, do you recall any incident in
the State of Alabama about the time that the desegrega
tion petition was presented and these negotiations were
being made
A. Yes, sir.
Q. What was that?
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A. Well, on September 15th, 1963 the 16th Street Baptist
Church in Birmingham, Alabama, was bombed.
Q. Do you recall any incident that happened in your family
or your home about that time?
A. Yes, sir.
Q. What was that?
A. On the Monday following that incident we had a meeting
with the Board of Education-
Q. -Who is “ we” ?
A. I am referring to the Education Committee of the NAACP
branch.
Q. Proceed.
A. While we were down meeting with the Board of Edu
cation, well, when I arrived back home from that meet
ing there I found that our four boys there at our home
were frightened, and they stated to us that while we
were absent the telephone rang and that one of the boys
answered it and that someone said on the phone, There
is a bomb going off in 30 minutes.
Q. Reverend Dunston, pause there for a moment. I want
you to state for the record whether you heard that tele
phone call personally.
A. No, I didn’ t hear it, I wasn’ t present.
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CROSS EXAMINATION OF REV. SIDNEY GARFIELD
DUNSTON.
Dep. of Rev. Sidney Garfield Dunston, July 26, 1966 pp 31-
32; pp 49-50
Q. Now, in the early part of your testimony you referred to
the bombing of a church in Birmingham; were you down
there?
A. No, I was not, and I am glad I wasn’t there.
Q. You didn’t state whether or not you were there and I
just wanted to know.
A. No, sir, I was not there.
Q. After the names were published in June and within three
months of the time they were published you were active
ly engaged in civil rights demonstrations or engaged in
civil rights demonstration relating to voting?
A. That’s right.
Q. And you have been active for ten years in that work?
A. Something like that.
EXTRACT FROM THE FRANKLIN TIMES, issue of June
17. 1%5. Government’s Exhibit No. 3 in deposition of Mrs.
Irene Arrington taken July 27. 1966.
Gov t Exhibit 3. Arrington dep. p 23
FEDERAL. STATE AND LOCAL OFFICERS INVESTIGAT
ING SHOOTING AT MOULTON
l nknown assailants sent a hail of shotgun and rifle fire
into two Negro homes near Moulton late Monday night, with-
75A
out injury to any of the occupants. One of the homes had
been fired at about two weeks ago in the same manner.
The family of Lenwood Arrington escaped injury in both
incidents and no one was injured in Monday’ s incident in
volving the Sandy Jones residence. Both families live a
few yards apart, a short distance from a paved rural road
which runs from Highway 401 to Moulton.
Franklin County Sheriff’ s Department is investigating
the May 28 incident and the one taking place Monday night
around 11 p.m. The Federal Bureau of Investigation has
two agents in the area investigating the latest shooting.
One stated they were here to determine if the civil rights
of the two negro families had been violated. Both families
have made application for their children to attend the white
Louisburg High School next fall.
An automobile parked in the Arrington yard received con
siderable damage, as the gunfire tore out the rear window,
punctured the truck, fenders and gas tank. Shotgun pellet
marks are visible at the right of the front entrance of the
Arrington home and rifle bullet holes were seen just to the
left of the door. Several windows were broken. Bullets
entered a side window of the Jones home and traveled
through a bedroom coming out a window at the back of the
house.
The Sheriff’ s Department called in the State Bureau of
Investigation to assist in the case. This was before the
FBI entered the case. Charles McClain, Field Secretary
of the NAACP, was in the area Monday, also investigating
the incidents. It was reported that he would request the
state to furnish protection for the two families involved.
It was learned that the Arrington family had received
several telephone threats, the contents of which were not
stated. A reliable source reported that it was believed that
76A
.race was not involved, as such, in the case. The informant
said nothing had been uncovered to indicated that the shoot
ing was anything more than an isolated incident.
Officials are closemouthed about any clues or evidence
they might have in the case and say only that they are con
tinuing their investigation.
DIRECT EXAMINATION OF MRS. IRENE ARRINGTON.
Dep. of Mrs. Irene Arrington, July 27, 1966 pp 18-19; p 25
Q. Now directing your attention to the date of May 28th
1965 I ask you if anything unusual happened at your
house on that day?
A. Yes, it did.
Q. What happened at your house on that day?
A- On May 28th, on the night of May 28th around 11:25
that is the time my house was shot into.
Q. How many times was your house shot into?
A. Twice.
0. Do you remember the exact date that your house was
shot into?
A. 1 remember the date of the last one but on the first one
not.
Q. Let s talk about them one at a time. With respect to
the first time, and I'm asking about the first shooting
now. what time of da> was that?
A. It was about 9;15 at night, and I don't recall exactly
77A
the date of that shooting, but they were two weeks apart.
Q. What about after the last shooting, did you have any
more calls?
A. I didn’ t have anynrore calls after the last shooting, that
ended the telephone calls.
CROSS EXAMINATION OF MRS. IRENE ARRINGTON.
Dep. of Mrs. Irene Arrington, July 27, 1966 p 80
Q. Now, any intimidation that you were subjected to end
ed with the shootings?
A. That’ s right.
DIRECT EXAMINATION OF MARGARET CRUDUP.
Dep. of Margaret Crudup, July 28, 1966 pp 87-89
A. At first, when I chose the school, I made a mistake.
I thought that all the seniors were supposed to have
gone there, and I found out differently. They didn’ t
have to go there if they didn’t want to.
Q. And other children said they were not going to go?
A. Yes, sir.
Q. Who were the other students?
A. Fannie Monroe and Agnes Jefferson.
Q- Now, they were Negroes?
A. Yes, sir.
78A
Q. Can you recognize your mother, Mrs. Annie Crudup’s
signature ?
A. Yes, sir.
Q. I would like to show you a copy of a letter, apparently
signed by your mother, and ask you if you know when
this letter was written and where.
A. Yes, sir.
Q. Tell us about that.
A. It was written by a man up in Youngsville at this -
some type of fertilizer place. Anyway, he was working
for the school board, and it was written on the sixth of
June, 1965.
Q. Now, at that time your mother signed the letter asking
that you be withdrawn, that your choice be changed?
A. Yes.
MR. SCHIVELB: I’d like to offer this in evidence as
Exhibit 1 in the deposition of Miss Crudup, please.
(MARKED FOR IDENTIFICATION)
Q. (Examination by Mr. Schwelb continuing) Now, Mar
garet, some time after your parents or your mother sign
ed this letter withdrawing you, which was on June 10th,
did anything occur at your home of a frightening nature?
A. \es. In the mail we got a threatening letter.
79A
CROSS EXAMINATION OF MARGARET CRUDUP.
Dep. of Margaret Crudup, July 28, 1966 pp 94-98
Q. You said some man wrote the first letter?
A. Yes, sir.
Q. And you yourself wrote the second?
A. Yes, sir.
Q. So neither your mother nor your father did any of the
writing, other than putting their names on it, is that
right?
A. That’ s right. That’ s all.
Q. Even the application, you made it out and they signed
it, didn’t they?
A. That’ s right.
Q. Margaret, on June 10th your mother I believe signed a
letter, I believe, didn’ t she?
A. Yes.
Q. And you got a letter — that so-called threatening letter
postmarked in July, wasn’t it?
A. Yes.
Q. So at that time your mother had already requested that
you be assigned to Riverside School?
A. That’s right.
Q. Now, so far as the change being made in June, on June
80A
10th, the letter had nothing to do with it because it
hadn’t even been received?
A. That’s right.
Q. And then about a month later, sometime in July, you
received a letter through the mail?
A. Yes.
Q. And then you yourself on August 12th went to Mr.
Smith’s office, didn’ t you?
A. Yes, sir.
Q. And took the letter that you had written?
A. Yes.
Q. And you are a honor student and were then about seven
teen years old?
A. Yes, sir.
Q. And just one year short of graduating, and you took it
to Mr. Smith yourself, with just your mother’s and your
father’s names on it, wasn’ t it?
A. Yes.
Q. And it reads as follows: ‘ 'Route 1, Box 74-B, Youngs-
ville, N. C., August 12, 1%5. Dear Sir: Our daughter,
Margaret Ree Crudup” - that is you, isn’ t it?
A. \es.
0 Our daughter. Margaret Ree Crudup. has applied to go
.a she Aou tgsul'.e High School of Youngsville. North
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Carolina, for the 1965-66 school year. We, her parents
would like for that application to be changed if it is
possible in any way, for her to go back to the school
that she has attended every since her first day in high
school. The school is Riverside Union in Louisburg,
North Carolina.
“ She is now a Senior and we would prefer her to gra
duate from Riverside Union. Thank you kindly! Sin
cerely yours, James Crudup and Annie Crudup.” And
you yourself took that letter to Mr. Smith?
A. Yes, sir.
Q. The gentleman sitting here, the superintendent of
schools ?
A. Yes.
Q. Why did you want to mislead Mr. Smith?
MR. CHAMBERS: May I object to the form of that ques
tion.
MR. YARBOROUGH: The letter did mislead him.
MR. CHAMBERS: I object to the form of the question.
Q. (Mr. Yarborough) The letter misled Mr. Smith as to the
reason why you wanted to go to Riverside.
A. Well, I don’t know whether I misled him or not.
Q. Well, it wasn’t the reason that you have just testified
to, is it?
A . Yes, sir.
82A
Q. Well, the reasons you wanted to go back to Riverside
then for the 1965-66 school year was because you had
been there every day since your first day in high school,
that you are a senior and you would prefer to graduate
from Riverside Union, that is the reason?
A. Yes.
Q. That is the reason you wanted to go back to Riverside,
wasn’ t it?
A. Yes, and, too, when I applied for the Youngsville school
that was all misleading.
Q. It was?
A. I thought that all the seniors were supposed to go up
there.
Q. You thought that everybody in that neighborhood had to
go to Youngsville?
A. Yes, sir.
Q. So, then, Margaret, you got exactly what you wanted to
do?
A. Yes.
Q. I mean they sent you to the school that you wanted to
go to?
A. Yes.
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DIRECT EXAMINATION OF CHRISTINE COPPEDGE.
Dep. of Christine Coppedge, April 27, 1967 pp 30-32
Q. (Mr. Kennedy) When did that blast occur?
A. March fifth or sixth.
Q. What year?
A. 1967.
Q. What time of day was that?
A. It was at night, 10:15.
Q. Who was in the house?
A. Mrs. Martha Clanton, Alice Clanton, Harold, and myself.
Q. Your husband, Reverend Coppedge, where was he?
A. He was in New Jersey.
Q. Did the loud blast that you heard cause any damage?
A. No, other than it knocked some flowers I had off of the
mantle and on the floor and, also, it knocked me almost
off the bed and almost knocked the telephone off the
table I had it sitting on, and it almost knocked Mrs.
Clanton off the chair she was sitting in.
Q. What did you do following the noise?
A. I was talking on the telephone at the time and I asked
the party to please excuse me. I said, “ Something is
going wrong.” And I jumped up and ran to the window-
and I ran to the window and I looked out and I saw this
car leaving, going out the driveway.
84A
Q. Is that window in the front part of your house?
A. Yes.
Q. And that driveway-is that driveway in the front of your
house?
A. Right.
Q. Is it usual for a car to be driving in your driveway?
MR. YARBOROUGH: Object to the form of the question.
MR. KENNEDY: (TO WITNESS) You may answer.
A. No, it is not.
Q. (Mr. Kennedy) Did you do anything at that time?
A. Yes, I did.
Q. What was that?
A. I told my son to bring the rifle, and I fired at it.
Q. At the-
A. (Interposing) At the car leaving.
Q. How many times did you fire?
A. About sixteen times.
Q. Did you hit the car?
A. I don’ t know. I shot at it. That is all I know.
85A
CROSS EXAMINATION OF CHRISTINE COPPEDGE.
Dep. of Christine Coppedge, April 27, 1967 pp 55-60
Q. Now, Mrs. Coppedge, I believe you said on the night of
March fifth of this year-
A. (Interposing) Fifth or sixth, I said.
Q. Fifth or sixth.
A. Yes.
Q. There was a loud noise or blast?
A. Right.
Q. That you heard. And it was about 10:15 at night?
A. No, it wasn’ t about; it was 10:15 exactly.
Q. You looked at your watch, I take it?
A. Yes.
Q. Now, was Mrs. Clanton and her daughter present?
A. Right.
Q. At your house?
A. Right.
Q. Do they live at your house?
A. No, they don’ t.
Q. How far do they live from you?
A. Across the street.
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A. Right.
Q. And I believe you live near Mr. Wilbur Gardner, is that
right?
A. Right.
Q. How far do you live from his house?
A. Well, several hundred yards.
Q. Beg your pardon.
A. Several hundred yards.
Q. Are there any buildings between yours and Mr. Gard
ner’s house?
A. Well, no, other than I have the chicken house there.
Q. A chicken house between the two?
A. Yes, and that is almost in my yard though. Well, it is
in my yard. It is not almost; it is in my yard, and the
only that thing divides is just a field.
Q. Did you see a flash when you heard the blast?
A. How could I? I was talking on the phone. No, I didn’t
see anything. I just heard it.
Q. Well, what room of the house were you in when you
heard it?
Q. Right across the street?
A. On the front, in my bedroom.
87 A
A. In my bedroom.
Q. Is that on the front of your house?
A. Yes, it is.
Q. Did you look out the front window of your bedroom?
A. I sure did.
Q. And you say then you saw a car?
A. I did.
Q. Was the car in the road or in the driveway?
A. In the driveway, going out.
Q. Your driveway?
A. Right.
Q. Was it backing out or going forward?
A. I couldn’ t tell you. It is a possibility that it could have
been the park lights or the backing lights. I couldn’ t
tell. They didn’ t have any head lamps on, I know, the
main ones.
Q. There were no lights on other than the parking lights?
A. Right.
Q. Or the backup lights?
Q. In the front?
A. Right.
88A
Q. Of course, you don’ t know what kind of car it was?
A. No, I don’ t. It was too dark to tell.
Q. Of course, you reported the incident concerning the
blast?
A. Yes, 1 did.
Q. To whom?
A. Mr. William Dement.
Q. The Sheriff of Franklin County?
A. I sure did.
Q. And he investigated that?
A. Yes, he came out there that night. He sent someone
out the next morning. I do not know who he was.
Q. You don’ t know who the man was that came out the next
day?
A. That’ s right.
Q. But they did investigate the incident, didn’ t they?
A. That’s right.
Q. And he, the sheriff, came that night as soon as you
called him?
A. That’ s-n o . not as soon as I called, but later.
Q. What time would you say the sheriff arrived?
89A
A. Well, he got there maybe about eleven.
Q. And, of course, you live several miles out of town, don’t
you, Mrs. Coppedge?
A. 1 live about eight.
Q. About eight miles?
A. Right.
Q. And the sheriff, of course, lives in town?
A. I don’ t know where he lives.
Q. You called him at a Louisburg number, didn’t you?
A. Yes.
Q. You do know that the sheriff didn’ t find anything when
he got to your house, don’t you?
A. Yes, I do.
Q. He found no hole in your yard?
A. Well, actually, he told me that by it being night he did
n’t think he could see anything, but he said he’d have
to come out in the morning, said he just couldn’ t see
with only just a flashlight and it is a possibility - and
he told me it is a possibility, since it had rained - the
next day the man that came out, the next morning -
since it had rained that night, and it had come some
thing like a tornado, strong winds and rain - it is a
possibility the wind could have taken the paper away,
and if you find anything, let me know, and that’ s all he
did.
Q. You didn’ t see any hole in the yard?
90A
A. I didn’ t have to see. I felt it. That’s all I wanted.
Q. Did you see a hole in the yard?
A. No.
CROSS EXAMINATION OF HAROLD DOUGLAS COPPEDGE.
Dep. of Harold Douglas Coppedge, April 27, 1967 pp 158-159
Q. Have you ever seen any evidence of any explosion, like
a hole in the ground or debris around?
A. Yes, there was a hole.
Q. And where was the hole?
A. Across the field.
Q. How far from your house?
A. Approximately fifty or sixty feet.
Q. And did you take your mother over there and show it to
her?
A. No.
Q. Do you know whether or not she ever saw that?
A. Yes.
A. Hole?
A. Yes.
Q. She did see it?
A. Yes.
91A
A. Yes.
Q. And did you discuss it with her, about what you think
caused the hole?
A. Yes.
Q. And who else saw the hole in the ground?
A. Mrs. Clanton.
Q. Mrs. Clanton?
A. Yes.
DIRECT EXAMINATION OF REV. LUTHER COPPEDGE.
Trans. Trial, Vol. 1, p 28
Q. Now, Reverend Coppedge, do you know Wiley Davis?
A. Yes, sir, I do.
Q. And who is Wiley Davis’ brother?
A. James Davis.
Q. And what race are Wiley Davis and James Davis?
A. Negro.
Q. And where do James Davis’ school-aged children go to
school?
Q. Did she see it the same day you saw it?
A. Louisburg High School.
92A
,Q. In the last part of May, do you know of any incident that
happened to Wiley Davis?
MR. YARBOROUGH: We object.
THE COURT: Overruled.
A. Well, his home was shot into.
Q. How far does James Davis live from Wiley Davis?
A. About 150 yards.
CROSS EXAMINATION OF REV. LUTHER COPPEDGE.
Trans. Trial, Vol. 1, pp 59-60; p 67; p 69; p 70; pp 72-73
Q. In the free choice period of last August you picked ex
actly the school you wanted your son Harold to go to?
A. Yes. I had done so previously.
Q. And you did it again when this Court required another
free choice period about the first of August?
A. \es. sir.
Q. And in the free choice period of March. 1967. you chose
exactly the school you wanted your son Harold to go to?
A. Yes. sir.
Q. Do you know of any other than Alice Clanton who did
not go back except those who have graduated or moved
away?
A. Not to my knowledge.
Q. So far as you know. then, all who chose those schools
93A
for the ’66-67 school year have chosen to return to those
schools for the ’67-68 school year under the free choice
plan except Alice Clanton and those who have graduated
or moved out of the County?
A. That’ s right as far as 1 know, sir.
Q. And I’ ll ask you if the Board of Education in each of
those meetings that you have attended haven’t explained
the free choice and offered it to every school child in
the County; that’s correct, isn’ t it?
A. Yes, after the first year.
Q. After the first year. So when the County Board of Edu
cation went under the free choice plan for all grades in
all schools, it offered every child in the County at these
meetings you attended an opportunity to make a free
choice of schools?
A. Yes, sir.
Q. Mr. Coppedge, the meetings that you have attended,
certainly two meetings, PTA meetings, the statement
was made that all the child or parent had to do was
name the school and they would get it?
A. Yes, sir.
Q. And those very words, or substantially those words,
were used and repeated several times?
A. That’s right.
Q. Now, Mr. Coppedge, since the Interim Order of this
Court last July, your name hasn’t been published in the
paper in connection with this case, has it?
A. I think so.
94A
Q. Other than in the title of the case?
A. Well, maybe not.
Q. Your boy’s name and your name appears as first party
plaintiff in this case, doesn’ t it?
A. Yes, sir.
EXAMINATION BY THE COURT OF REV. LUTHER
COPPEDGE.
Trans. Trial, Vol. 1, p 74
BY THE COURT:
Q. Mr. Coppedge, have you read any news item in any pa
per since the Interim Order, in July, I believe it was, of
last year that made any reference to you other than your
name appearing in the title to this cause?
A. 1 don’t think I can remember other than being a part of
this case.
CROSS EXAMINATION OF REV. LUTHER COPPEDGE.
Trans. Trial. Vol. 1. pp 76-77
0 So u>u made the exact choice—in spite of those calls,
you picked the school you wanted your son to go to with
information available to you at that time?
A. Yes, sir, with the infortsatioo available to ae.
O' TVe calls did wot U l m e e wm either
V. *eU. yes, sir. it utir ne acre tearful.
C x , dxc it ‘*t!ue*ee at mtkinR i aacrce'
95A
A. I still made a choice.
Q. You still made the choice and got exactly the school
you wanted your boy to go to?
A. Yes, sir.
Q. So in spite of any fear you might have had, you chose
the school of your choice?
A. Yes, sir.
STIPULATION BY COUNSEL FOR PLAINTIFF-
INTERVENOR.
Trans. Trial, Vol. 1, p 79
MR. SCHWELB: Your Honor, I think if it will shorten
this case at all, we are prepared to concede that every per
son, Negro, who filled out a choice to go to a white school
was permitted to go there. That is not issue in this case.
STIPULATION BY COUNSEL FOR PLAINTIFF.
Trans. Trial, Vol. 1, pp 80-81
MR. CHAMBERS: Your Honor, we would stipulate that
each of the plaintiffs has been assigned to the school that
they indicated for the 1966-67 school year and the 1967-68
school year.
96A
DIRECT EXAMINATION OF MATTIE GERALDINE CRUD-
UP HARRIS.
Dep. of Mattie Geraldine Crudup Harris, May 6, 1967, pp 3-5
Q. And do you live in Franklin County?
A. Yes, I do.
Q. And do you have any children in school, Mrs. Harris?
A. Yes, I do.
Q. How many do you have in school?
A. I have three in school.
Q. And what grades are they in?
A. Ninth, seventh, and fourth.
Q. For the record, Mrs. Harris, state your race?
A. Negro.
Q. And where did your children attend school this year?
A. At Gethsemane High School.
Q. And they are in school at Gethsemane High School at
the present time?
A. Yes, they are.
Q. And I believe last fall they had a choice as to schools-
last summer they had a choice as to the school they
desired to attend for the 1966-67 school year, is that
right?
A. Yes.
97A
Q. And did you understand what that choice meant?
A. Yes, I did.
Q. And what school did they choose to attend for the 1966-
67 school year?
A. Gethsemane School.
Q. And who made the choice them for?
A. They did. I didn’ t.
Q. Each child made his or her own choice?
A. Yes.
Q. And state whether or not your children have made a
choice as to which school they will attend for the 1967-
68 school year, that is, for next year?
A. Have they made their choice?
Q. Yes.
A. They made their choice.
Q. And what was their choice for the 1967-68 school year?
A. Gethsemane High School.
Q- Mrs. Harris, do you know why they chose to go to Geth
semane High School?
A. No, but they said they wanted to go there.
Q- Did their choice meet your approval?
A. Well, I told them that it might be better facilities
98A
and more courses and more studies and study courses
offered at Bunn, over there.
Q. Over there, where?
A. At Bunn, but they still wanted to go to Gethsemane.
Q. Would you have been afraid to send your children to
Bunn High School?
A. No.
Q. Do you know whether or not your children would have
been afraid to go to Bunn High School?
A. 1 don’ t think they would have been afraid.
Q. And your children have already received their assign
ment to Gethsemane for next year, is that right?
A. Yes, they have.
Q. And that was their request?
A. Yes. it was.
Q. Mrs. Harris, have you talked to your children today
about their choice of schools for next year?
A. Yes, I have.
Q. And when did you talk to them?
A. This morning after breakfast.
Q. And tell us the substance of the conversation between
you and your children.
99A
A. They said they had rather continue to go to Gethsemane
where they had been going.
DIRECT EXAMINATION OF SILAS JONES.
Dep. of Silas Jones, May 6, 1967, p 31; pp 33-34
Q. You live in Franklin County?
A. Yes.
Q. Mr. Jones, how many children do you have in school?
A. Four.
Q. And what grades are they attending this year, if you
can recall?
A. Well, the eleventh, and the ninth I believe, and I don’ t
know what that baby is in. Fourth or fifth one. I forgot
which.
Q. And what school are they attending this year?
A. Gethsemane.
Q. State whether or not your choice of Gethsemane School
was based on any fear of what might happen to you if
you sent them to somewhere else?
A. No, sir, I didn’t have no fear.
Q. You had no fear. State whether or not you had heard
about some incidents of some people being—in the
County being shot at or things happening at th eir
houses. Had you heard or read about any of that?
100A
A. I have heard a little talk of some of them being-houses
being shot in.
Q. State whether or not that knowledge or information you
had, if that effected you in making your choice of Geth-
semane School for your children?
A. No, sir.
CROSS EXAMINATION OF SILAS JONES.
Dep. of Silas Jones, May 6, 1967, pp 38-39
Q. Would you be willing to change the school that your
children have been going to for all their school term?
A. I don’t see why I would change them. They can get
along all right where they’s at and that is where they
want to go, so I don’ t see why I want to change.
REDIRECT EXAMINATION OF SILAS JONES.
Dep. of Silas Jones, May 6, 1967, pp 50-51
Q. (Mr. Yarborough) And that was your free choice?
A. And I didn’t figure nobody was making me do it, and ac
cording to the way the paper read it was up to me, and
so I decided. I signed for them to go to Gethsemane.
RECROSS EXAMINATION OF SILAS JONES.
Dep. of Silas Jones, May 6, 1967, p 51
Q. Do you ever go in restaurants in Bunn?
,Q. Yes.
A. Eating joints?
10 1A
A. The whites has got one up there, up town.
Q. Do you ever go to that one ?
A. I go in there and get me something to eat whenever I
get ready, if I got the money.
Q. How long have you been going in there?
A. About forty-three years.
Q. Do you sit down in there?
A. I sit down in there if I choose.
Q. Is it a white or Negro restaurant?
A. White.
DIRECT EXAMINATION OF ARNEE HARTSFIELD.
Dep. of Arnee Hartsfield, May 6, 1967, pp 53-55
Q. Mrs. Hartsfield, for the record here, what is your race?
What race are you?
A. Race?
Q. Yes, ma’ am.
A. Oh, colored.
Q. And you live in Franklin County?
A. That’s right.
Q. Mrs. Hartsfield, do you have any children in school?
A. I have two grandchildren.
102A
Q. Two grandchildren. And do they live with you?
A. That’s right.
Q. What are their ages?
A. Eleven and thirteen, I think.
Q. And what school are they attending now?
A. Gethsemane.
Q. Gethsemane School. Mrs. Hartsfield, did you make the
choice for those children to go to school?
A. Well, yes.
Q. And what school did you choose?
A. Gethsemane.
Q. Did you know that you had a free choice of schools?
A. Yes.
Q. What choice of schools did you have, did you know you
could have sent them to?
A. I could have sent them to Bunn white school or either to
the colored school.
Q. And you chose Gethsemane?
A. Yes, sir, Gethsemane.
Q. State whether or not you did that of your own free will?
A. Yes.
1 0 3 A
MR. KENNEDY: Object to the form of that question.
Q. (Mr. Yarborough) What was your answer? You answered
the question.
A. f did that on my own free will.
Q. (Mr. Yarborough) Mrs. Hartsfield, were you afraid to
pick the Bunn School?
A. No.
Q. Had you heard about some incidents that happened at
some people’s homes in the County?
A. I hear talk of them, but I didn’ t know any of them at all?
Q. Did that make any difference to you in picking a school?
A. No.
REDIRECT EXAMINATION OF ARNEE HARTSFIELD.
Dep. of Arnee Hartsfield, May 6, 1967, pp 61-62
Q. Mrs. Hartsfield, last year you worked at the Bunn School
cafeteria, I believe you stated, for about a month?
A. That’ s right.
Q. As a substitute for somebody who got sick?
A. That’s right.
Q. And did they have colored children at the Bunn School
that year?
A. Yes, they did.
104 A
Q. And did you work a day or two at the Bunn School this
year as a substitute for somebody that was sick?
A. Yes.
Q. Did they have colored children at the school this year?
A. Yes.
Q. Did you see the colored children in the cafeteria?
A. All of my work was mostly on the inside. 1 only saw the
children when they came in the cafeteria.
Q. Were they all treated alike when they came in the cafe
teria?
A. All treated nice.
Q. All treated nice, you said?
A. Yes.
Q. White and colored?
A. That’s right.
DIRECT EXAMINATION OF MATTIE W. CRUDUP.
Dep. of Mattie W. Crudup, May 6, 1967, pp 63-65
Q. For the record here, what is your race?
A. Colored.
Q. We need it tor the record.
A. I see.
105A
Q. Mrs. Crudup, how far do you live from the Gethsemane
School?
A. I guess it’ s a mile.
Q. A mile. How far do you live from the Bunn School?
A. Three miles.
Q. Mrs. Crudup, is Geraldine Harris your daughter?
A. She is.
Q. Does she live there with you?
A. That’s right.
Q. Mrs. Crudup, were you at the Gethsemane PTA meeting
along about the first of March or the last of February?
A. Yes, I was.
Q. What was the subject of the program, that main subject?
A. The choice of schools, if I make no mistake.
Q. And what was stated to the group at the PTA meeting
that night?
A. That each child had the right to go to his choice of
school.
Q. And was that stated-how many times was that stated?
A. Really, I don’ t know, but it was more than one time. It
was as much as three times I know, that this was stated.
Q. Who attended that meeting that night were tne parents
106A
of children and teachers?
A. Yes, it was. The parents of some of the children. Now,
you know all is never going to attend, but it was a good
many of the parents there that night.
Q. And officials of the Board of Education were there?
A. That’ s right.
CROSS EXAMINATION OF MATTIE W. CRUDUP.
Deo. of Mattie W. Crudup, May 6, 1967, pp 68-69
Q. When Mr. Yarborough spoke at this meeting, the PTA
meeting that you attended, did he advise you that they
were going to desegregate teachers at Bunn and Ge-
thsemane?
A. Well, maybe he did. I tell you, honestly tell you, I can’t
remember all the things that he stated, but I remember
this one particular thing that he mentioned two or three
times, that each child had his choice of school and just
name the school and they would get it.
Q. I see. Did he indicate tnat if a Negro child selected a
white school that if the family had any problems that
they would do something about it?
A. I think he did.
DIRECT EXAMINATION OF MARIAN PERRY BRANCH.
Dep. of Marian Perry Branch, May 6, 1967, p 73; pp 75-77;
p 78
Q. And, for the purpose of the record, what is your race?
A. Negro.
107A
Q. Mrs. Branch, do you have any children in the Franklin
County School system at the present time?
A. Yes, I do.
Q. How many do you have and what are their ages?
A. I have six in scool.
Q. Now, Mrs. Branch, do you belong to the PTA of either
the Cedar Street School or the Riverside School?
A. Yes, I do. I am the assistant secretary.
Q. At which school?
A. At Cedar Street School.
Q. And were you in attendance at the Cedar Street School
back in March, the PTA meeting back in March when
Mr. Yarborough and other members of the Board of Edu
cation attended?
A. Yes. I was there.
Q. Do you remember what the subject of that meeting was?
A. Yes, sir.
Q. What was it?
A. Freedom of choice.
Q- State whether or not the freedom of choice plan for
Franklin County was explained at the March meeting of
the Cedar Street PTA.
A- Yes, it was, because I was the secretary there that
night and I listened to things that Lawyer Yarborough
said.
Q. And Mr. Yarborough explained that?
A. Yes, sir.
Q. And what did you understand the freedom of choice
meant?
A. It meant that you could send your child to any school
any choice of school that you wanted.
Q. In Franklin County?
A. That’s right.
Q. Now, state whether or not, Mrs. Branch, you made a
choice for your children for the 1966-67 school year,
that is, the present school year did you make a choice
for your children?
A. Yes.
Q. Sometime last summer, for this school year?
A. Yes, I did.
Q. And where did you choose to send them?
A. To Cedar Street and to Riverside.
Q. Did you understand that, when you made the choice for
the present school year, that the children were free to
go to any school that they chose to attend?
A. Yes.
Q. Have you made a choice, Mrs. Branch, for your children
109A
to attend school for next school year?
A. Yes, sir. Yes, I have.
Q. And where did you choose to send your children for
next school year?
A. To Riverside and Cedar Street.
Q. How many will attend Riverside next year?
A. Well, it will be two in Riverside next year.
Q. And four in Cedar Street?
A. That’s right.
Q. State whether or not you were under any fear when you
exercised the choice for your children?
A. No, it was definitely not out of fear. It was because
that was what the children wanted. That is the school
they wanted to go to and they seemed to be learning
there.
Q. Did you discuss the choice with each of your children?
A. That’s right.
Q. With the older ones?
A. With the children, that’ s right, and that was the school
of their choice.
Q. Mrs. Branch, would you like to see Cedar Street School
continue to operate?
A. Yes, I would.
110A
Q. And, Mrs. Branch, was the choice of schools for your
children for next year made freely by you?
A. Yes, sir.
Q. And without any fear of intimidation or harassment?
A. No fear.
CROSS EXAMINATION OF MARIAN PERRY BRANCH.
Dep. of Marian Perry Branch, May 6, 1967, p 86
Q. Let me ask you this, Mrs. Branch: Supposing you know
some Negroes who have gone to the predominantly white
schools had had their homes shot into.
MR. YARBOROUGH: Object to the form.
Q. (Mr. Schwelb) Would you then be willing to send your
children to the white schools?
A. What do you mean? Would I be afraid?
Q. That’s right.
A. No.
Q. You wouldn’ t be afraid?
A. I said, “ No.”
DIRECT EXAMINATION OF MARGARET WHITE.
Dep. of Margaret White, May 6, 1967, pp 108-110
Q. And, Mrs. White, what is your race? For the record,
what race are you?
111A
A. A Negro.
Q. Do you have any children in school?
A. Yes. I have two in school, one in the second and one
in the third, and I have one in pre-school that will start
next year in the first grade.
Q. Is that this coming fall?
A. Yes.
Q. What schools are your children in now, what schools?
A. Cedar Street Elementary.
Q. And the other one will be school age this coming year?
A. Yes, in the fall.
Q. Have you made a choice for this youngest child?
A. Yes.
Q. What choice school have you made for that child?
A. Cedar Street.
Q. Have you made a choice for your two children who are
now attending school? Have you made a choice for the
next school year?
A. Yes.
Q- What choice have you made?
A. Cedar Street.
112A
Q. Already made a choice for Cedar Street. Mrs. White, did
you receive through the mail in March of-about the first
of March, information and notices regarding the free
choice of the schools for next year?
A. Yes.
Q. Did you exercise a free choice in picking a school for
your two children already in school?
MR. SCHWELB: I object to the form of that question.
A. Yes.
Q. (Mr. Yarborough) What school did you pick for your two
children?
A. Cedar Street.
Q. Cedar Street. And, Mrs. White, have your children re
ceived their assignment for the next year?
A. Yes.
Q. What schools were they assigned to?
A. The one I picked.
Q. Mrs. White, when you chose Cedar Street, state whether
or not it was your—your choice was based on any fear
that you may have had?
A. No, no fear.
Q. Had you heard about some incidents about shooting in
some homes and oil in the well, and so forth—some ra
cial incidents—in the last year or two? Have you heard
about those?
1 1 3 A
A. Yes, I had heard something about them.
Q. The fact that you had heard about those incidents, the
information about some incidents, affected your choice?
A. No.
CROSS EXAMINATION OF MARGARET WHITE.
Dep. of Margaret White, May 6, 1967, pp 121-122; p 140;
p 141
Q. Do you know how fast they would be improving if they
went to the Louisburg School? You don’t know, do you?
A. I do know this: I know they are improving just as fast
and they are learning now just as fast as they were a
year ago.
Q. A year ago they were not in North Carolina?
A. No.
Q. Where were they?
A. In New Jersey.
Q. Were they in integrated schools?
A. Yes.
Q. Where were they in integrated schools?
A. In New Jersey. Isiah, New Jersey. And they are im
proving just as well there at Cedar Street as they were
anywhere else.
Q. Would you like for your children to be assigned to an-
114A
other school?
A. No, I wouldn’t like for them to be assigned. 1 don’t
think it would be freedom of choice if they were as
signed to any school. 1 want freedom of choice. And
that would be taking the freedom away from me.
Q. Would you have some objection if they are assigned to-
A. I have some objection to being assigned to anywhere.
Q. But not to Cedar Street?
A. If I want them to go there, I decided. If I move them
next year, 1 want to have freedom to move them.
Q. (Mr. Chambers) If you knew that your children were not
being as well prepared as Cedar Street School as they
are at the other schools, would you rather they go to
other schools where they’d get a better education?
A. To other schools?
Q. Yes.
A. Yes. One of my choice.
DIRECT EXAMINATION OF RUBY E. PERRY.
Dep. of Ruby E. Perry, May 6, 1967, pp 142-145
Q. Mrs. Perry, for the record here, what is your race? What
race are you?
A. Colored.
Q. Mrs. Perry, do you have any children in school?
A. Yes, I do.
Q. How many do you have?
A. Three.
Q. Three children. What are their ages?
A. One is six, eight, and twelve. You want their names?
Q. Yes, ma’am.
A. The one twelve is named Patricia Ann Perry.
Q. Patricia Ann. All right. And the-
A. And the one eight is Jewel E. Perry. She is eight. And
the one six is Etta James Perry.
Q. J-A-M-E-S?
A. Yes.
Q. The one six, a little girl, is she in school now?
A. Yes.
Q. What school do your children attend?
A. Cedar Street.
Q. That is, for this year?
A. Yes.
Q. Have you made your choice for next year?
A. Yes, I have.
115A
116A
Q. What school did you choose for them next year?
A. Cedar Street.
Q. And you chose-when you made your choice for this
school year now, which school did you choose?
A. Cedar Street.
Q. And, Mrs. Perry, when you made your choice for schools,
was that based on any fear of intimidation?
A. No, I am not scared. I wasn’t scared when I chose that
school because, see, I stayed up on Moulton when the
first child got ready to go to school I picked Cedar
Street because we lived about a block from the school,
and Jewel E., there, was pretty near five years old then,
and Patricia was already in Cedar Street and so when
Jewel E. got old enough to go, I just sent her to Cedar
Street.
Q. When Etta James started to school where did she go?
A. Well, when she got to the age she had to go, I just sent
her there because I first lived on Moulton myself.
Q. State whether or not your choice of your children to
go to Cedar Street is of your own free will?
MR. SCHWELB: I object to that question, the form.
A. Yes.
Q. (Mr. Yarborough) You say it is your own free will?
A. Yes. for mine to go to Cedar Street, that is. First. 1
started the first one at Cedar Street and 1 felt like 1
wanted all of them to stay together.
117A
Q. And, Mrs. Perry, you heard about somebody shooting
in the houses, and other incidents of that nature, have
n’ t you?
A. Yes, sir, I did.
Q. Did that make any difference to you as to which school
you picked?
A. No, it didn’ t. I hadn’ t sent any, to begin with, when it
happened. It didn’t matter none with me and it didn’ t
scare me.
Q. And, Mrs. Perry, I believe you live near Reverend Duns-
ton and Mr. Johnnie Clinton Fogg?
A. That’s right.
Q. And you have heard about incidents at both of those
places?
A. Yes, I did.
CROSS EXAMINATION OF RUBY E. PERRY.
Dep. of Ruby E. Perry, May 6, 1967, pp 158-159
Q. Do you think the-generally, people ought to go to the
school they live closest to or do you think the School
Board should assign children to the schools? What do
you think about it?
MR. YARBOROUGH: Object to the form.
A. I think-well, I tell you it’ s like this: you have your
choice and you go to the one you want, so to m e-
Q- What is that?
A. That is what I like.
118A
Q. You like having your choice?
A. That’s right.
DIRECT EXAMINATION OF CHARLIE 0. WHITE
Dep. of Charlie 0. White, June 1, 1967, p 5; pp 6-7
Q. Now, Mr. White, are the children living with you—has
the choice been made on their behalf for a choice for
school next year?
A. Yes. Why, I ain’ t got but one now going to Cedar Street.
Q. And who made the choice?
A. I made the choice.
Q. Mr. White, were you afraid to make a choice to Louis-
burg School?
A. No, I wasn’ t afraid.
Q. Were you afraid to make a choice to any other school
in the County?
A. No.
Q. Mr. White, do you know whteher or not the colored people
in your neighborhood are generally afraid to send their
children to the predominantly white schools?
MR. SC H WE LB: I object to that, just for the form.
A. We have some that already sent their children to the
white schools.
119A
Q. (Mr. Davis) Do you know whether or not the colored
people in your neighborhood are afraid to send their
children to the predominantly white schools? Just answ
er the question.
A. No, I don’t think they are afraid to send them to the
white schools.
CROSS EXAMINATION OF CHARLIE 0 . WHITE.
Dep. of Charlie 0 . White, June 1, 1967, p 19; p 20
Q. What Negroes were you talking about when you said you
didn’t think they were afraid to choose the white
schools ?
A. I wasn’ t talking about--I was talking about all of them.
Q. You don’t think any Negroes are afraid?
A. I don’t think any was afraid in making the choice; it is
on the form.
Q. What about in Franklin County, Mr. White? That is what
I am talking about. Don’t you still have a Negro restau
rant here?
A. Yes, and have whites.
Q. And Negroes still go to Negro restaurants and whites go
to white restaurants?
A. I don’t know. I go to whites and eat.
120 A
REDIRECT EXAMINATION OF CHARLIE 0 . WHITE.
Dep. of Charlie 0 . White, June 1, 1967, pp 23-25
Q. Mr. White, Mr. Schwelb made some reference to some in
cidents that occurred at Mrs. Arrington’ s home, and
Reverend Dunston’ s home. Did the knowledge of those
particular incidents create any fear in your mind when
it came to choosing a school for your grandchild?
A. No. In my mind I didn’ t know whether they shot into
there, or not. I don’ t know whether it was about some
thing else. It could have been about something else.
It could not-have been no school,
Q. When you signed your choice form for your grandchild,
did you understand that you could choose any school
in Franklin County?
A. Yes. All the schools were down on the form. You could
choose any school that you want.
Q. I believe that several colored students attend Louis-
burg High School that live in your neighborhood, is that
right?
A. Yes, that’ s right.
Q. As far as you know they have gotten along all right this
past year?
A. Yes, as far as I know. The bus come right along close
by my house and they ride-not by my house, but so far-
I see them-no trouble as I know of.
Q. Do you know of any colored students who live in your
neighborhood and attended predominantly white schools-
do you know of any trouble they have had this year?
A. I haven’ t heard of any trouble. I haven’ t heard talk of
121A
James’ children having no trouble and the Davis child
ren having no trouble.
DIRECT EXAMINATION OF CHARLIE PERRY.
Dep. of Charlie Perry, June 1, 1967, pp 31-36
Q. And how many children living with you will be in the
Franklin County Schools next year?
A. Four.
Q. Starting in September?
A. That’s right, four.
Q. And what are their names and their ages, please?
A. Well, the oldest one is Glenwood White. He is fifteen.
Linda White. She is fourteen. Larry White is thirteen.
And James Calvin Massenburg-he is eleven.
Q. James Calvin?
A. James Calvin Massenburg.
Q. Now, Mr. Perry, where is Glenwood going to school next
year?
A. Well, he is going to Riverside.
Q. Let me ask you this: back in March of this year did you
receive choice forms from the Franklin County Board of
Education?
A. I did.
Q. And has a choice been exercised for each of the child
ren you have named?
1 2 2 A
A. Yes, that’ s right.
Q. For next year?
A. Yes.
Q. And who exercised-who signed the choice forms, Mr.
Perry?
A. Well, I signed the choice forms.
Q. Now, did you sign the choice forms for Glenwood?
A. No, 1 didn’ t sign his. He signed his own.
Q. And did you talk with him about his choice of school?
A. I did.
Q. What did he tell you about it?
A. He told me about his choice. He told me that he had
made his choice, where he wanted to go, and I asked
him where, and he said to Riverside,and I didn’t ask him
any more questions. 1 just let him have his own free
choice.
Q. All right. State whether or not you signed the choice
forms for Linda, Larry, and James Calvin?
A. I did.
Q. And did you discuss the choice with those three child
ren?
A. I did.
Q. And what schools did you choose for those three child
ren?
123A
A. Well, she did request where she wanted to go and then
I signed the choice.
Q. Who did?
A. Linda. She wanted to go to Riverside. She was in the
eighth grade, and so she went to Riverside.
Q. Now, where did Larry say he wanted to go?
A. He made his choice after he finished the seventh grade
at Cedar Street that he would go to Riverside, and then
I signed the choice plan after he have made their own
choice.
Q. How about James Calvin-where is he?
A. He made his own ch oice to Riverside and I let him go
and I signed that after he made his own choice.
Q. Now, Mr. Perry, do you know whether or not your four
grandchildren were afraid to choose to go to Louisburg
School or to Epsom School or to any other school in
Franklin County?
A. No, sir, they was not afraid.
Q. Were you under any fear?
A. (Witness shakes head no)
Q. Would you have been under any fear to send them to any
of the other schools in Franklin County?
A. No, sir, No, sir.
Q. Mr. Perry, did you attend a P T A meeting at Cedar
Street School in March of this year?
124 A
A. Yes, sir.
Q. And did Mr. Edward Yarborough, attorney for the School
Board, appear at that meeting?
A. Yes.
Q. Did he have anything to say?
A. He told us that — that how the school was run and the
only thing we had to have just name it and we
would get it.
Q. Name what, Mr. Perry?
A. To the choice plan of the school, which one you wanted
to go. If we wanted to go to Louisburg School or either
go to Riverside, we could go. We could go to airy school
we wanted. It was our free will. And I let our children
make their own choice and after he decided, I signed it.
And I had one wanted to go to Riverside and the other
one wanted to go to Riverside, then I signed this state
ment to where he wanted to go. Let the child make his
own free choice. Not me, but the child.
Q. Mr. Perry, to your knowledge or to the best of your
knowledge, are the colored people in your community
afraid to pick schools other than predominantly colored
schools?
A. No. sir, no, sir. no. sir. 1 don't see no difference in
anv schools. I’d just as soon go to a white school as
to the colored one, but after what we used to bave-
dou t pass the school—what difference would it be.
"e was on the other side of Louisburg School, and
"h\ we have to leave this school •>':eh is nearest aai
cow to lectsbag School *h' *ea ; vou answer that
V ' OO ' s W Oi*S ■ ’ ' ' V. IS voog *it*
1 2 5 A
Cedar Street School? If Cedar Street is a bad school or
it is a good school, I think a child should be going to a
school where he can get his own education. See, we
got to work with the child. The child got to have an
education, and if the ch ild -if you don’ t give a child
the very good education that he should have, he should
come up then and what kind af name then would he have,
then who would be responsible? The mother and father,
or who he live with, being responsible for the child
being short-minded because they put him in a place he
didn’ t want to go.
Q. Mr. Perry, do you believe your grandchildren would per
form as well in a school that they didn’t want to attend’
A. Well, I believe in this: if a child got his mind made up
and he wanted to go to this school, I believe he will
’ earn more better if he go to a school he wanted to go
than he could to one that you wanted him to.
I further believe they would be learning three or four
times more than he would be putting him down at the
school and he don’ t want to go there - he never will
learn. So don’ t be afraid. Let the child have his own
free will. So you work with the child if you want a good
child.
CROSS EXAMINATION OF CHARLIE PERRY.
Dep. of Charlie Perry, June 1, 1967, p 40; pp 41-42; p 46;
P 47; p 56
Q. Now, generally, if somebody is an expert in the field
of education, would he know more about the merits of
schools than you, or less?
A. Well, if it was-now, I can’ t answer that question about
126A
the federal government because I don’ t deal with the
federal government. You have to ask someone that
knows something about it. You see, I’m just a man
that’ s trying to work with the children. The federal
government proposition--you have to ask somebody a
little stronger than I am. The question I want to ask is
what is wrong with the choice? What is wrong with it?
If we made our choice to Cedar Street School and won’t
feared to make that choice, why? This choice--is it
wrong and is it against it? It was put out by the fed
eral government. What’ s the federal govern ment want to
fight it for?
Q. Is that a statement or is it a question?
A. That is a statement. If the federal government got some
expert men to work on this State, why he going and get
this here choice plan and want to fight about it? I want
my answer.
Q. Did you think the federal government ordered the Frank
lin County Schools to--
A. I say I want my answer.
Q. Mr. Perry, you are not asking me questions. I am ask
ing you questions.
A. I am asking you.
Q. 1 tell you what--I tell you what, I will be happy to an
swer your questions after the deposition is over, but I
am not going to answer your question now.
A. See, the choice plan that we made~see, we made that
plan; you all sent them to us; didn’t you send them to
us?
Q. I didn’ t send them to you, Mr. Perry.
127A
A. They come to us from the School Board; they sent them
to us.
Q. Let me ask you this: have you heard of any Negroes
who sent their children to white schools that have had
their homes shot into?
Q. Right near by Mr. Dunston’ s house?
A. Yes. Shot in here, and I hear it. The only one I heard
anything about. And up here at Irene Arrington’ s. And
that’ s all I hear anything about. And I don’ t know who
done that, and what side done it, so I don’ t know no
more about it.
Q. You did hear of the incidents?
A. I did hear about it.
Q. And most of the colored people did hear about those
incidents?
A. I reckon they did.
Q. And, of course, they know that the Fogg children were
going to a white school?
A. I didn’t know whether they were going to a white school
or not. Sometimes people shoot into the house and no
body ain’ t going to the white school.
Q. Did you hear any complaints about the segregated
schools?
128 A
A. I hear talk about putting the colored people in white
schools, and something like that, and that didn’ t bother
me because they were going into the white schools.
Q. Did you hear about white students going to Cedar Street
School?
A. No more than what the NAACP put out.
Q. What did they put out?
A. That we were feared to do this, and that we were feared
to sign our children to the white schools, which I won’t.
I ain’t scared of no white man, no black man, or nothing.
I want my child to go to where they wanted to.
Q. Did you hear about closing Cedar Street School?
A. I just told you about what the NAACP said—we were
feared to sign our children to the white schools.
DIRECT EXAMINATION OF SOPHIA PERRY.
Dep. of Sophia Perry, June 1, 1967, pp 70-72
Q. Mrs. Perry, do you have any school age children living
in your home?
A. Yes, I have four. One graduated last night. And that
was the fifth one.
Q. And where did they attend school for this school year?
A. Well, two of them attended at Cedar Street and three at
Riverside.
Q. Has a free choice form been filled out and signed for the
coming school year for each of the children?
129 A
A. Yeah , yeah.
Q. And who filled out those forms for your children?
A. I filled them out on them under fifteen and them over
fifteen, they filled their own.
Q. And how many are over fifteen?
A. Three.
Q. And one under fifteen?
A. Two.
Q. Two under fifteen.
A. And they stood by me and they said, “ Let me see to
mine being checked to Cedar Street because I don’t want
to go anywhere e lse ,” and they took their own choice,
and I took my child to their choice for them.
Q. Mrs. Perry, did you attend the P T A meeting at Cedar
Street School in March of this year where Mr. Yarborough
spoke to the parents?
A. Yes.
Q. On the freedom of choice plan ?
A. Yes.
Q. Did you hear him?
A. Yes, I heard him.
Q. What did he say?
A. He told them we had a choice to go to any school we
1 3 0 A
wanted to go and we choose Cedar Street and that is
where I wanted mine to go.
Q. Now, Mrs. Perry, were you afraid to pick a school other
than Cedar Street?
A. No.
Q. No?
A. No, I wasn’t scared. What did I have to be scared
about? No. Not nothing to be scared about. I had my
children to go to school in the north with white folks.
Q. Did you understand Mr. Yarborough’ s explanation of the
freedom of choice to mean that you could pick any school
in the County?
A. I understood. That is the reason I took Cedar Street.
Cedar Street was right there on the paper.
Q. So your children could go to that school?
A. Yes, I know they could go to there, and because--Cedar
Street--you put it on the paper.
Q. The children could have gone there?
A. Could have gone there. Gone anywhere I checked out.
Q. Now, Mrs. Perry, the children who were living with you--
were they afraid to pick Louisburg School or Epsom
School?
A. No. they are not scared to pick no school. You can’t
scare no children now. Children are not scared of noth
ing now.
131A
REDIRECT EXAMINATION OF SOPHIA PERRY.
Dep. of Sophia Perry, June 1, 1967, p 97
Q. Do you believe in a free choice?
A. I believe in what? Now, answer my question. What did
they send the freedom of choice out there for if we won’t
going by it?
RE-CROSS EXAMINATION OF SOPHIA PERRY.
Dep. of Sophia Perry, June 1, 1967, p 100
That is the choice and we are not afraid either. We
are not afraid either. 5 ain’t never been scare to send
my children nowhere.
Q. You haven’t ever sent your children to a white school,
have you?
A. And they wouldn’t be afraid if they had to go there.
You can’t scare teenagers now.
DIRECT EXAMINATION OF FRANK W. ROGERS.
Dep. of Frank W. Rogers, June 1, 1967, pp 104-105; pp 106-
107
Q. What is your race, for the record?
A. Negro.
Q- Mr. Rogers, do you have any children in school?
A. Ido.
Q. How many do you have?
A. Three.
Q. And what grades are they in for this year that is over
just yesterday?
A. You mean promoted to?
Q. No. This year.
A. First and third and eighth.
Q. All right, sir. And schools closed yesterday in Frank
lin County?
A. That’s right.
Q. And have you made a choice—strike that question. For
the school year that has just ended did you make a
choice for those students?
A. I did.
Q. What school did you pick?
A. Gethsemane.
0 And were they assigned to Gethsemane?
A. Acs. they were.
0 And did the' go there for the school year just ended?
A. Yes.
0 Hare you made a choice for the school year that opens
■>n August or September'
132A
133A
A. Yes, I have.
Q. And what schools did you choose?
A. Gethsemane.
Q. Have they been assigned to Gethsemane for the coming
school year?
A. Yes, sir.
Q. Mr. Rogers,how far do you live from Gethsemane School?
A. About 350 feet I reckon.
Q. And did you pick Gethsemane School on your own free
will?
A. Yes, I did.
Q. Was there any fear of what might happen to you if you
had picked another school for your choice?
A. No, sir.
Q. Mr. Rogers, you heard about some incidents in the last
year or so, have you not, of shooting in homes, and so
forth, in the County?
A. Yes, I have.
Q. State whether or not hearing about those incidents made
any difference to you in picking the school that you
wanted your childern to go to?
A. No, sir.
134 A
Q. And you heard about that Mrs. Satterwhite had some
difficulty about a job?
A. Yes.
Q. State whether or not that made any difference to you in
picking the school you wanted your children to go to?
A. No, sir.
DIRECT EXAMINATION OF M. L. CLEMONS.
Dep. of M. L. Clemons, June 1, 1967, p 131; pp 132-134
Q. What is your race, Mr. Clemmons?
A. Negro.
Q. Mr. Clemmons, do you have any school age children
living with you?
A. I have three.
Q. Now, Mr. Clemmons, during the past few months did you
receive a form from the Board of Education, a freedom
of choice form from the Franklin County Board of Edu
cation?
A. Oh, yes.
Q. A form for each of these three children?
A. Yes, for each.
Q. And state whether or not you filled out the form for
each child?
135A
A. Yes, we filled them out and signed them and sent them
back in.
Q. Who signed for them, Mr. Clemmons?
A. I signed for them.
Q. Did you sign the form for the child in the ninth grade?
A. Fact, I signed all of them, and I believe the madam
signed one of them. I signed the other two. That’s
way it was.
Q. You signed one and your wife signed the other two?
A. Yes, sir.
Q. Mr. Clemmons, did you talk to the children, the two
older children, about the school they would be attend
ing next year?
A. We talked about it last year and it still continued as
they still go to the same school.
Q. What did they say?
A. Well, we still prefer to go to that school. It is close
to Gethsemane.
Q. How close do you live t o -
A. About 350 yards, or two, or something like that.
Q. And, Mr. Clemmons, assuming one or all of your child
ren had chosen to go to Bunn School, for instance,
would you have been afraid to sign your children-your
free choice form-for that school?
A. Well, no sir. I think it is all right if they wanted to go
136A
there. I think it is something-they want to go. They
prefer to go to where they are. It is convenient and
everything there.
Q. Mr. Clemmons, do you understand what the freedom of
choice means?
A. Well, I thought 1 did.
Q. What does it mean?
A. That you can go to school either place if you wanted to.
Q. Any school in the County?
A. Yes, any school in the County.
Q. Do you believe in that type of choosing a school?
A. I think that is all right. That is what I think, personal
ly, for myself.
Q. Mr. Clemmons, do you know generally whether or not the
people, the colored people, in the area in which you
live are afraid to choose schools such as Bunn and
Louisburg High School and Edward Best if that is where
they wanted their children to go and their children want
ed to go to those schools?
A. As far as I know I think they are not afraid. As far as 1
know. As far as I know.
CROSS EXAMINATION OF M. L. CLEMONS.
Dep. of M. L. Clemons, June 1, 1967, pp 146-147
Q. Did you talk about desegregation in the schools at the
churches ?
A. We have discussed it.
137A
Q. What church was that?
A. I mean different churches. I’ m talking about I have been
around, I have heard people talking about it, but I didn’ t
hear them talk about it too much.
Q. Where did they talk about it?
A. They thought it was all right for--freedom of choice--for
anybody to come to school.
Q. Where did they talk about it?
A. Well, I call it a jam session, outside of the church and
so forth.
Q. Did you know any specific church where you talked
about it to some other Negroes?
A. Well, I call it--we just had a jam session. Like in
church sometimes some fellows brings it up about the
schools, or something like that. Just like they do about
the Bible.
REDIRECT EXAMINATION OF M. L. CLEMONS.
Dep. of M. L. Clemons, June 1, 1967, pp 162-163
Q. Mr. Clemmons, in your opinion are the relations between
the white and colored in your section of the County on
good terms?
A. As far as I know they are. In good circumstances.
DIRECT EXAMINATION OF MRS. JOYCE TERRELL.
Dep. of Mrs. Joyce Terrell, June 1, 1967, pp 169-173
Q. And for the record, what is your race?
138A
A. What race?
Q. Are you white or colored?
A. Negro race, colored.
Q. Mrs. Terrell, do you have any children in school?
A. Four.
Q. Four children?
A. That’s right.
Q. In school for this year that just ended yesterday?
A. That’s right.
Q. Now, what are their ages? What grades are they in?
A. One graduated from the eighth grade to the ninth. One
from the fourth to the fifth. And one from the sixth to
the seventh. And the other from the second to the third.
Q. And what schools did they attend for the year that has
just ended?
A. Cedar Street and Riverside.
Q. Three at Cedar Street?
A. Yes.
Q. Three youngest?
A. That’ s right.
Q. And the oldest at Riverside?
,A. That’s right.
1 3 9 A
Q. Mrs. Terrell, did you make the choice for your four child
ren?
A. Well, they made their own choice and I signed. They
made the choice.
Q. And did you do that for the school year that just ended?
A. I did for the coming of the year.
Q. I beg your pardon.
A. I signed the choice, the last choice you sent out, for
the 1967-68-wasn’ t that what the choice was for?
Q. Yes. What schools did you pick?
A. Riverside and Cedar Street.
Q. Riverside and Cedar Street. For all your children there
for the school year just ended, last summer did you sign
a choice?
A. That’s right.
Q. And what schools did you pick?
A. Riverside and Cedar Street.
Q. Now, Mrs. Terrell, state whether or not in making your
choice you were influenced by fear in any respect?
A. Not at all.
Q- Do you know Mrs. Irene Arrington?
A. Yes, sir.
Q- And you know Reverend S. G. Dunston?
140A
tA. Yes, sir.
Q. How about Mr. Johnny Clinton Fogg?
A. 1 don’t know him.
Q. J- C. Fogg?
A. Oh, yes, I know him.
Q. Mr. Fogg?
A. That’s right.
Q. And you know Reverend Luther Coppedge?
A. Yes, sir, I know him.
Q. Had you heard about whether or not certain incidents
happened to them?
A. Well, I heard about it.
Q. You had heard about it. State whether or not the fact
that those incidents happened to them made you fearful
in picking a school?
A. No, that didn’ t affect it at all.
Q. Mrs. Terrell, you said you signed choice forms for the
1967-68 school year in March?
A. Yes.
Q. And state whether or not they have been assigned to
schools you picked for them?
A. That’s right.
1 4 1 A
Q. Did you go to the Cedar Street P T A meeting there
about the first of March?
A. Yes. sir, I did.
Q. Was the freedom of choice explained there?
A. Very plainly.
Q. And what did you understand about how the freedom of
choice would work as to picking a school?,
!?
A. Well, pick your choice and you get it.
DIRECT EXAMINATION OF WILLIE PERRY.
Dep. of Willie Perry, June 1, 1967, pp 197-200
Q. Miss Perry, do you have any school age children living
in the home with you?
A. Yes, it is. It’ s three, and be four for this fall.
Q. Four for this fall?
A. That’ s right.
Q. And what grades will the children be in, in the fail?
A. One is a junior, one is the eighth grade, one is the
fourth grade, and one is a beginner.
Q. Now, did you receive freedom of choice forms back in
March of this year for each of these children?
A. Yes, sirree.
Q. And were the forms filled out for each child?
142A
A. Yes, they were.
Q. And what choice was made for each child? What choice
of school was made for each child?
A. Two was to Riverside and two to Cedar Street.
Q. State whether or not you received the choice?
A. Yes.
Q. Each child received the choice that was indicated on
the form?
A. Yes.
Q. Now, Miss Perry, were you under any fear of any harm
to you or anybody in your home when your choice forms
were filled out?
A. No.
Q. Generally speaking, Miss Perry, are the colored people
who live in your community under any fear?
MR. SCHWELB: Objection.
Q. (Mr. Davis) In making a choice of schools, if you know?
A. No, they are not. Do, 1 don’ t know it.
Q. Miss Perry, were you in attendance at the March meet
ing of the Cedar Street P T A?
A. Yes, I were.
Q. At that time did you hear Mr. E. F. Yarborough make a
talk?
A. Yes, I did.
143 A
Q. And what was his talk about?
A. About this freedom of choice. You pick the school that
you wanted to go to in the County, and you would go to
that school.
Q. Miss Perry, do you believe in the freedom of choice
form of assigning students to schools?
A. Yes. I believe each person should choose where they
want to go to, yes, I do.
Q. State whether or not Reverend S. G. Dunston was in at
tendance at that P T A meeting or not. Do you remem
ber?
A. Oh, yes, he were.
Q. He opened the meeting with a prayer, did he not?
A. That’s right.
Q. State whether or not you discussed the choice of
schools with the older children in your home?
A. Yes, un-hunh, with the older one, because she could
make her own choice.
Q- Did she express to you any feeling of fear in choosing a
school other than the one she chose?
A. No, she didn’t.
Q. At the time you made the choice for the children in your
home, Miss Perry, had you heard about some incidents
that had occurred at the home of Reverend Dunston and
Mrs. Irene Arrington?
A. Yes, 1 heard that.
144 A
Q. Did your knowledge of those particular incidents have
any bearing on the choice that you made-
A. No, it didn’t.
Q. For the children?
A. No.
CROSS EXAMINATION OF WILLIE PERRY.
Dep. of Willie Perry, June 1, 1967, p 205; pp 210-211; PP
218-219; p 221
Q. Where do you work, Miss Perry?
A. I do day work.
Q. Where do you do day work?
A. Well, the last day job I did was for Mr. Shinn.
Q. You do day work for white people?
A. Well, I do day work for colored, too.
Q. You do?
A. Yes.
Q. Have you—
A. That’s right, I have. Two weeks—three weeks ago I did
some work for colored.
Q. But most of your work has been with whites?
,A. No, not most. I did for whites and colored.
145 A
Q. Has most of it been for Negroes or whites?
A. I say most~it is almost equal basis.
Q. Almost equal?
A. That’ s right.
Q. And you have also heard that—people saying in this
lawsuit that the Negroes were scared?
A. Yes, they did say they were scared.
Q. And that is why you came down here to keep Cedar
Street open?
A. Yes, and also came to let you know that 1 wasn’ t afraid.
Q. And you don’ t really know about the other Negroes in
the community, do you?
A. Yes. My neighbors--I know about those. I know they
are not afraid.
Q. And did they choose Cedar Street School?
A- No. Some of my neighbors’ children is in Riverside.
They are not at Cedir Street.
Q- But they chose either Cedar Street or Riverside?
A. Well, far as I know. They could have chosen somewhere
else,because I don’ t ask too much into where you choose
to send your child. I figure—to myself—to myself, I fig
ure that is not too much of my business, where you want
to send your child to, because take, for instance, my
self. If they were mine, I feel like I want to send them
146A
to where I want them to go, not to where somebody else
wants to send them. That is the way I am.
Q. The neighbors around you have chosen Cedar Street?
A. No. Some of my neighbors have chosen Louisburg
School.
Q. \ ou have to understand that; you have to consider seri
ously that some of these people had trouble.
A. Yes, they have had trouble. 1 didn’ t say what the trouble
was about.
Q. They are the same ones that sent their children to the
white schools, isn’ t that true?
A. Someone shot into my mother’s home and none of her
children were going to a white school.
Q. What is your mother’ s name?
A. Mrs. Katie J. Perry.
Q. As a matter of fact, that happened right during the free
dom of choice period, didn’ t it? Right after the Court
order last year?
A. It was in August.
Q. As a matter of fact, that was mentioned in the Franklin
County newspaper, wasn’t it?
A. Yes, it was.
Q. And it mentioned in the Franklin County newspaper that
147A
people were worried about it, whether this wouldn’ t
influence the Court in this school case, weren’t they?
Do you remember that?
A. No.
Q. Miss Perry, I want you to think very carefully about
this because it is very important. These incidents hap
pening to Mr. Dunston and Mr. Cheek, and even this
shooting here at the time of the freedom of choice
period, do you think that this kind of thing encourages
Negroes to send their children to white schools?
A. No, it wouldn’t encourage nothing, but still I say they
won’t afraid.
REDIRECT EXAMINATION OF WILLIE PERRY.
Dep. of Willie Perry, June 1, 1967, pp 229-230
Q. Miss Perry, do you know anybody who was afraid to
make a choice of a school for any of their children other
than the choice they actually made?
A. No, I don’ t. I do not.
Q. Did the fact that your home, the home that you live in,
was shot into have any bearing on the choice that was
made for the children who live in your home?
A. No, I don’t think it had no bearing on it.
Q. I believe, Miss Perry, that the home that you live in is
a new home, isn ’ t it?
A. Yes, it is. It is about three years old.
148 A
Q. Who built your home?
A. Mr. Fred C. Hight.
Q. Is he a white man or colored man?
A. Yes, he is a white man.
Q. Miss Perry, state whether or not in your opinion the
choices that were made for the children who live-school
children who live in your home were made in order to
give them the best education possible?
A. Yes, I am sure. Yes, it was.
RE-CROSS EXAMINATION OF WILLIE PERRY.
Dep. of Willie Perry, June 1, 1967, pp 230-231; p 235
Q. Miss Perry, on cross-examination a little while ago,
when I was talking to you, you said that you had gone to
a meeting and-where the question was raised about the
possible closing of Cedar Street, and that you heard
that the purpose of this lawsuit was to close Cedar
Street?
A. That’s right.
Q. And that the people in this lawsuit were saying that the
Negroes were afraid-
A. That’ s right.
Q. To exercise the choice of school?
A. (WITNESS NODS)
Q. And you say that you were asked to come down here to
149 A
testify?
A. That’ s right.
Q. To help save Cedar Street School?
A. That’ s right.
Q. You said that you also wanted to say that you weren’t
afraid.
A. Well, I wasn’t afraid. 1 still say 1 am not afraid.
Q. But this is one of your purposes-was to help save Ce
dar Street School? Coming down here.
A. Yes.
Q. And one of the ways, in trying to save Cedar Street
School, was to say that you weren’ t afraid?
A. No. I wasn’ t afraid. I still say that I wasn’t afraid.
Q. Now, you are telling the Court that somebody shot into
your mother’ s home during the freedom of choice period,
following the Court’ s order, and that you are not afraid?
A. No, 1 am not afraid.
Q. And you think that you wouldn’t have any trouble if you
wait to a white school?
A. No, I don’t think, if I was in school, that I would have
any trouble.
Q. And you don’ t think that your nieces and nephews would
have any trouble if they went to a white school?
A. No, I do not.
DIRECT EXAMINATION OF DAZELL WALTERS.
Dep. of Dazell Walters, June 1, 1967, pp 237-240
Q. Do you have any children in school?
A. I have nine.
Q. Nine. Are .they in school this year that just closed
yesterday?
A. Yes, nine was in school.
Q. In school for the year that just ended. How many do
you plan to have in school-
A. Nine.
Q. -for the school year that starts in August or September?
A. Nine.
Q. Mrs. Walters, what grades are they in in school? About
what. Just tell me roughly. I won’ t ask you to name
them all.
A. I have one to finish next year. And then I have another
one that will be in the tenth. Two will be in the eighth.
And one will be in the seventh. One will be in the fifth,
and another one in the fourth, and the other one will be
in the second-third.
Q. Third. And one will graduate next year?
151A
A. Sure.
Q. Mrs. Walters, what schools are your children attending
this year that has just ended-what school did they at
tend?
A. Gethsemane.
Q. What school do you plan for them to attend next year?
A. Gethsemane.
Q. Mrs. Walters, did you complete-receive a freedom of
choice forms in March of this year?
A. Yes.
Q. Did you examine those forms?
A. Yes, I did.
Q. Did you complete those forms for your children?
A. Yes. All but the two that was old enough to—
Q. What—did they complete them themselves?
A. Yes,
Q. And what schools—did all of those free choice forms
call for a choice for next year?
A. Well, they could have their choice.
Q- I mean what schools were chosen?
A. Gethsemane.
1 S 2 A
Q. And were they assigned to Gethsemane?
A. Yes, sir.
Q. And this year that has just ended, in the freedom of
choice for this past school year what school was chosen
on the freedom of choice forms?
A. Gethsemane.
Q. Gethsemane. And were they assigned to Gethsemane?
A. Yes, sir.
Q. And, Mrs. Walters, you have heard of some incidents
happening to other Negroes in regard to integration of
schools?
A. Yes, sir.
Q. State whether or not what happened to other people made
any difference to you in picking Gethsemane School for
your children?
V. It didn t make me feel any different. They had just al
ways been to Gethsemane and the two that filled out
their forms, they wanted to go to Gethsemane.
0- Hid you pick Gethsemane for the others on account of
any fear?
No. no fear.
0 \nd state whether or not you believe in freedom of
choice for the assignment of children to schools? Do
'ou believe in freedom of choice:
V. \es. I believe in that.
153A
CROSS EXAMINATION OF DAZELL WALTERS.
Dep. of Dazell Walters, June 1, 1967, p 253
Q. As far as you know there has been no harrasment of any
Negro child or parent in connection with desegregation
in this county?
A. Not down my way.
Q. What about in the County as a whole?
A. I never heard of that.
Q. You never heard of that?
A. No.
Q. You never heard of any of the children having any dif
ficulty in the schools at all?
A. No.
DIRECT EXAMINATION OF ALVERETTA MOORE.
Dep. of Alveretta Moore, June 2, 1967, pp 94-98
Q. Now, Mrs. Moore, do you have any children who are in
school at the session that just closed a day or two ago?
A. Yes.
Q. How many did you have?
A. Two.
Q. What grades were they in?
A. Ninth and the eleventh.
Q. And did they get promoted?
154 A
A. Yes, they did.
Q. And what school did they attend?
A. Gethsemane.
Q. Now, that is for the year that has just ended they at
tended Gethsemane?
A. Yes.
Q. Did you make a choice for them to attend Gethsemane—
A. Yes.
Q. For the year that has just ended?
A. Yes, sir.
Q. Now, what grades will they be in for the coming school
year that starts the last of August or the first of Sep
tember this year?
A. Tenth and twelfth.
Q. Have you made a choice for them for the coming year?
A. Yes.
0- Or was the choice made by them?
A. Yes.
Q. What schools did they choose?
A. Gethsemane.
Q. Gethsemane. Mrs. Moore, when the choice was made
last year or this year, was that based on any fear of
155A
what might happen to you?
A. No.
Q. Did you have any fear with respect to choosing any
school you wanted for your children?
A. No, I didn’ t.
Q. Mrs. Moore, did you attend the P T A meeting at Geth-
semane School along about the first of March?
A. No, I didn’t.
Q. You received the forms, free choice forms, for your
children?
A. Yes.
Q. And did you read it over and study it?
A. Yes.
Q. Did you know that--state whether or not you knew that
you could have picked any school on the list for them?
A. Yes.
Q. Mrs. Moore, do you know a young boy, young man, named
Horton who attended Bunn School the year just closed?
A. Yes.
Q. What is his first name?
A. John Horton.
Q- You know he attended Bunn?
A. Yes.
156A
Q. Did you ever have any conversations with him during the
school year as to how he got along at Bunn?
A. Yes, I did.
Q. He was a colored boy, was he?
A. Yes.
Q. What did he say?
A. He said he got along fine with everybody.
Q. He told you that?
A. Yes.
Q. And did you know that he had got along fine before you
made the choice for Gethsemane School for the coming
year?
A. Yes.
Q. Do you know whether or not he played on a basketball
team there?
A. \es. he said he did.
0- State whether or not how often you would see him during
the school vear?
V. Well, during the. you know, the school seasoa 1 see him
mostly every afternoon when he pass bv. I think around
five o 'clock .
0 1 rom pla\ ing ball;
' Sc>. ' -V vottU core *k*«H to play Bvxtai aotii
157A
time to go back to practice.
Q. To go back to practice?
A. Yes.
Q. Mrs. Moore, I believe you went to Raleigh last summer
as a witness for the government?
A. That’ s right.
Q. In this case?
A. Yes, sir.
Q. And you made a statement that was taken down?
A. Yes.
Q. You know Mrs. Satterwhite, do you?
A. Yes, I do.
Q. Was it fall before last you were tying tobacco with her?
A. Yes, I think it was fall before last.
Q. And you all were tying for the same woman or man?
A. Yes.
Q. During that time you continued to work for Mrs. Butler?
A. Yes.
Q- Tying tobacco. About how long does a job of tying
tobacco last in this section?
A. Well, it depends, you know, on how many acres, how
1 S 8 A
much tobacco you have, but I don't remember-may be
we worked four or five weeks.
Q. A few weeks in the fall of the year?
A. Yes.
Q. It is not a year-round job?
A. No.
Q. Mrs. Moore, have you heard of any threats or intimida
tions against any of the people in the Bunn area in the
last year on account of any school choices or integra
tion?
A. No, I haven’ t.
CROSS EXAMINATION OF ALVERETTA MOORE.
Dep. of Alveretta Moore, June 2, 1967, p 98
Q. Just for the record, Mrs. Moore, what is your race?
A. My race?
Q. Yes, ma’ am.
A. Negro.
DIRECT EXAMINATION OE CUNETTER BOLDEN.
Dep. of Cunetter Bolden, June 2, 1967, pp 134-138
Q. And, for the record, what is your race?
A . C o l o r e d .
1 5 9 A
Q. Mrs. Bolden, do you have any school age children living
in your home?
A. Yes, sir.
Q. How many do you have?
A. Four.
Q. What are their ages?
A. One is eighteen, one is seventeen, and one is fourteen,
and the other is thirteen.
Q. And what grades will they be in in school next year?
A. One will be in the twelfth, one in the eleventh, and the
other two will be in the eighth.
Q. Did all of them get promoted this year?
A. Yes, sir.
Q. Now, Mrs. Bolden, did you attend the P T A meeting
last March when Mr. Yarborough made a talk?
A. Yes, sir.
Q. To the parents. Where was that P T A meeting held?
A. At Gethsemane.
Q. Gethsemane School?
A. That’ s right.
Q. And is that where your children attend school?
A. Yes, sir.
160 A
Q. What did Mr. Yarborough talk to the parents about that
night?
A. He was talking about the freedom. He told the parents
and the children they had the freedom of going to either
school they wanted to go.
Q. And did you understand what Mr. Yarborough was telling
you that night?
A. I guess so.
Q. Now, Mrs. Bolden, after, or sometime in Mirch of this
year did you receive a form from the Board of Education
that you had to fill out, selecting the school or schools
for your children to attend next year?
A. Yes. sir.
Q. And did you fill the forms out for the children?
A. The children filled them out.
Q. The children filled their own out?
A. Yes, sir.
Q. Did you discuss with them the schools that thev were to
attend?
\. 1 asked them what school they wanted to go. and they
said they wanted to go back to Gethsemane.
Q. Is that the school they chose to attend for next year?
A. That's right.
Q. And state whether or not they have been assigned to
1 6 1 A
that school for next year?
A. Say what?
Q. State whether or not their choice was granted by the
Board of Education?
A. That’s right.
(J. Now, Mrs. Bolden, were you under any fear when you
signed the forms for the children to go to school for
next year?.
A. No, sir.
Q. Were your children afraid when they signed their forms?
A. No, sir.
Q. Mrs. Bolden, if your children had selected Bum School
as their choice of schools for next year, would you have
been afraid to send them to Bunn School?
A. I wouldn’t.
Q. Do you think they would have been afraid to go to Bunn
School had that been the school they wanted to go to?
A. No.
Q. Mrs. Bolden, do you know John Horton?
A. Yes, sir.
Q- 1 believe he attended Bunn School this past year?
A. He did.
Q- He is a colored student, isn’ t he?
162A
A. That’ s right.
Q. Do you know whether or not he got along all right as a
student at Buna School?
A. I haven’t heard him say. And he comes over to my
house right smart.
Q. Has he ever said anything to you that would lead you to
believe that he had any trouble at Bunn School?
A. I haven’t never heard him say anything about it.
Q. Do you know whether or not he played on the basketball
team at Bunn?
A. Yes, he played because he came to my house to get my
boy’s wheel to go Out there and play.
Q. Mrs. Bolden, as far as you know don’t white and colored
people get along all right in the Bunn community?
A. As far as I know they do.
Q. Had you ever had any trouble with any of the white
people in the Bunn community?
A. No, sir.
Q. Do you know of anybody who has had any-any colored
people who has had any trouble with white people?
A. No, sir.
Q. Do you know of any white people who have discriminat
ed against any colored people in the Bunn community?
A . N o .
163A
Q. Do you know of any white people in the Bunn community
who have mistreated any colored people because of race?
A. No.
Q. Mrs. Bolden, do you think the freedom of choice plan
that the School Board is presently operating under is a
fair plan for parents and students?
A. Yes, I do.
CROSS EXAMINATION OF CUNETTER BOLDEN.
Dep. of Cunetter Bolden, June 2, 1967, pp 138-139; pp 139-
140
Q. Mrs. Bolden, what did you mean by you wouldn’ t be
afraid to go to Bunn School, or your children to go?
A. Well, if I send my children to Bunn School, I wouldn’ t
be afraid that nobody would bother me about sending
them.
Q. Did you know about Mrs. Satterwhite?
A. Yes, I knew them.
Q. Did you think that anything like that would have hap-
pened-anything like that would happen to her?
A. No, but there is good and bad in colored and white, and
sometimes you think that things wouldn’ t happen that
will happen, but I wouldn’t be afraid to send my child
ren up there.
Q. Now, you didn’t think that that would happen to Mrs.
Satterwhite either, did you?
A. No.
A. Did she lose her job?
Q. You didn’ t know about that?
A. Yeah, 1 heard a little sketch of it.
Q. And you didn’t think that she would have lost her job
by sending her children up to that school?
A. Was that on account of sending her child—
Q. You didn’ t hear that?
A. Well, she still work for white folks.
Q. Now, you say you never heard of any Negroes being
discriminated against in Bunn?
A. No.
Q. And you say you think the freedom of choice plan is a
fair plan?
A. What did you say?
Q. You say you think the freedom of choice plan is a fair
f>lan.
A. Yes.
0- Why do you think it is fair. Mrs. Bolden?
V. Well, 1 tell you, we all is here human beings and we is
all here working for the same God. and in God’ s sight
Q. Her losing her job I mean?
165 A
he don’ t love one a bit more than he do the other, and if
we can’ t make it down here, we won’t make it up yomder,
and that’ s the way I try to live.
Q. Now, did you understand Mr. Davis’ question when he
asked about whether the freedom of choice plan was a
fair plan?
A. Was a fa ir-I think everybody should have their freedom,
as far as right.
DIRECT EXAMINATION OF MELISSA DEAN.
Dep. of Melissa Dean, June 6, 1967, pp 3-6
Q. Castalia, Route 1. And, for the record here, what is
your race?
A- Negro.
Q. Mrs. Dean, do you have any children living in your home
attending school or who will be attending school in
Franklin County next year?
A. You’re talking about children of my own?
Q. Yes.
A. I have one starting next year.
Q. Have one starting next year?
A. Yes.
Q. And is it a boy or girl?
A. Girl.
166 A
Q. And how many other children living in your home?
A. Three.
Q. Attending school?
A. Three.
Q. Whose children are they?
A. Mine. Anybody else ’ s other children living in the home?
Q. Yes.
A. Nobody.
Q. How many children do you have altogether who will be
in school next year?
A. Four.
Q. What grades will they be in now?
A. One be in the first, one be in the third, and one in the
second, and one be in the sixth.
Q. Where do those children attend school?
A. Perry’ s.
Q. Perry’ s High School?
A. Yes, sir.
Q. Mrs. Dean, state whether or not back in March of this
year or somewhere around March you received forms
from the Board of Education for use to choose a school
for the children for next year?
16 7A
A. Yes, sir.
Q. And did you make a choice of schools for next year for
your children?
A. I took a choice of Perry’ s.
Q. You chose Perry’ s for next year?
A. Yes.
Q. And have your children been assigned to Perry’ s for
next year?
A. Yes, sir.
Q. Did you discuss the choice of schools with your child
ren?
A. Yes, sir.
Q. And what did they tell you concerning the choice of
schools for next year?
A. They had rather go to Perry’ s.
Q. Now, Mrs. Dean, were you under any fear or intimidation
when you executed your choice forms?
A. No, sir..
Q. Had any of your children preferred to attend Edward
Best High School for next year would you have been
afraid to let them attend Edward Best High School?
A. No, sir.
Q. Mrs. Dean, state whether or not you have heard of some
168 A
incidents concerning oil in people’ s wells and tacks in
their driveway in the last year or so?
A. Yes, sir.
Q. Did those particular incidents have any bearing on your
choice of schools for your children?
A. No, sir. D. B. asked me—
Q. D.B.?
A. The man we lived with.
Q. Who is he, what is his name?
A. D. B. Gardner. He asked me why didn’t I sign my chil
dren to Edward Best, and I told him I’d rather for them
to go to Perry’s.
Q. State whether or not Mr. D. B. Gardner is a white man
or colored man?
A. He is white.
Q. Mrs. Dean, in your opinion would Mr. Gardner—strike
that. Do you live on Mr. Gardner’ s land?
A. Yes, sir.
Q. Do you think, had you selected Edward Best School for
your children next year, do you think Mr. Gardner would
have taken any steps to put you off of his land?
A. No, sir.
Q. Did you understand, Mrs. Dean, what is meant by th?
169A
free choice system under which the Franklin County
Schools operate?
A. Yes, sir.
Q. And what do you understand it means?
A. It mean that you have a choice to let your children go to
any school you want to.
Q. State whether or not, Mrs. Dean, you believe that the
free choice system works in Franklin County?
A. Yes, sir.
Q. And state whether or not you believe that the freedom of
choice system is the proper way to run the Franklin
County schools?
A. Yes, sir.
REDIRECT EXAMINATION OF MELISSA DEAN.
Dep. of Melissa Dean, June 6, 1967, p 17
Q. Mrs. Dean, did the incidents that Mr. Schwelb asked you
about—the oil in the wells and the tacks in the drive
ways—did that have any bearing on the decision you
made as to choice of schools for your children?
A. No, sir.
DIRECT EXAMINATION OF MRS. OLLIE STRICKLAND.
Dep. of Mrs. Ollie Strickland, June 6, 1967, pp 18-21
Q. Mrs. Strickland, for the record, what is your race?
A. What do you mean?
170A
Q. Your race?
A. Colored.
Q. And do you live in Franklin County?
A. Yes, sir.
Q. Mrs. Strickland, do you have any school-aged school
children living in your home?
A. Yes, sir.
Q "hat grades will they be innext vear?
V, One in the se\enth. one in the eighth, and the other in
the twelfth.
Q. Now. where did those three children go to school this
past school year1
V Perry's.
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' c v e s e a se rec or lie d k otct for ne.it
ye\sr
t hvlv s, c ' .
***** aiv -on tfaw one . « iks
v '•'** * * e N :'. s. • x . .x -r -*ts- tc ail
171A
A. That’s right, I did.
Q. What did you understand the forms to mean?
A. I understood that you had a right to choose what school
that you want vour child to go to and where—the one that
they wanted to go to, and so I signed for my children to
go back to Perry’s.
Q. Did you discuss the choice of schools with your child
ren?
A. With the children, that’ s right. I did.
Q. And what did they say to you concerning the choice of
schools?
A. Well, they say they want to go back to Perry’ s because
that is the first school that they ever went to.
Q. Now, Mrs. Strickland, do you live on your own land or
somebody e lse ’ s?
A. No, sir.
Q. You live on sombeody e lse ’ s?
A. Mr. Gardner’s. It was.
Q- What land is that?
A. It was old Mr. D. B. Gardner’ s, before he died. It’s his
son’s now . He live on the same place.
Q- Is that Mr. D. B. Gardner, Jr.?
A . Yes.
17 2 A
Q. Have you discussed with Mr. D. B. Gardner the school
or the schools that you have chosen for your children
for next year?
A. Yes.
Q. Can you tell us what that conversation was?
A. No. He just asked me where did my children want to go
to and I told him they wanted to go back to Perry’ s. He
asked me why and I told him that is the first school
they went to and they wanted to go back to Perry’s,
and he asked me was the children scared. They had
heard, you know, a lot of talk around. I told him no
they won’ t scared. And I ain’ t scared neither. You say
for us to pick the first school for us to go to and now
we got that school, and I hope we can keep it that way.
Q. Mrs. Strickland, let me ask you this: of course, you
have heard, 1 assume you have heard of various inci
dents around the County concerning oil in the wells and
tacks in people’ s driveways and threatening telephone
calls, have you not?
\. Yes. 1 heard that.
0 Owl those paitieuLu incidents or what >eu have heard
about those particular incidents have am Searing on
vow decision*
V No. sit.
0 'oui ehc.ee or sebevis'
t V . su
C* 'v wvi .-tum o» ac 'Ovj %c le xeeeww at camce pe*
tKu .we ' ruttv it Coww' se-tvYis ise .w sc .is t
173 A
A. Yes. I’ d rather for them to have that, where they go to
the school where they want to go to than be made to go
to a school.
Q. You’d rather for them to pick the school?
A. Pick the school.
Q. Than to be assigned to the school?
A. Than to be assigned to the school.
CROSS EXAMINATION OF MRS. OLLIE STRICKLAND.
Dep. of Mrs. Ollie Strickland, June 6, 1967, pp 30-31
Q. You say you weren’ t scared. Now, have you heard about
other people having some trouble after they sent their
children to a white school?
A. I heard about it, but I didn’ t see it.
Q. I know you didn’ t see it.
A. So I don’ t know too much about it.
Q. Let me ask you about what you heard. Who did you
hear had some trouble?
A. I heard Reverend Lather Coppedge.
Q. Yes.
A. Had some trouble, but when I heard he had this trouble,
now, it wasn’ t - i t didn’ t say it was because his child
was in Edward Best High School-the way 1 heard i t -
but-I don’ t know bow nobody else heard it.
174 A
DIRECT EXAMINATION OF ESTELLE WILKINS.
Dep. of Estelle Wilkins, June 6, 1967, pp 59-63
Q. Mrs. Wilkins, do you have any children in school?
A. Yes, sir. (
Q. How many do you have?
A. One.
Q. And what grade-was it a boy or girl?
A. Girl.
Q. What grade will she be in this coming school year?
A. Seventh.
Q. What is her name?
A. Parthenia Wilkins.
Q. And, Mrs. Wilkins, in March of this year did you re
ceive a choice, freedom of choice form, for the schools,
for the next school year for your daughter?
A. Yes.
Q. Did you complete that form?
A. Yes, and mailed it back in.
Q. And mailed it back to the Board of Education?
A. Yes.
Q. And did you designate on that form the school you want-
17 5 A
ed your daughter Parthenia to attend for the next school
year?
A. Yes, I did.
Q. What school did you select?
A. Perry’ s.
Q. What school did your daughter attend this year, and has
been attending?
A. She’s never been to no school but Perry’s.
Q. And did you make that choice freely?
A. Yes, I did.
Q. Now, Mrs. Wilkins, had you heard about any incidents
that the Reverend Luther Coppedge had about shooting
at his house or phone calls, or anything of that nature?
A. Yes, I knew about that.
Q. State whether or not that what you had heard, those
incidents at his house, made any difference to you in
selecting the school for next year for your daughter, Par
thenia?
A. No, it didn’ t.
Q. You knew-you have known Reverend Luther Coppedge
for a number of years?
A. Yes, slightly, I do, but only when I was going to school.
Q. Mrs. Wilkins, about how far do you live from Edward
Best School, or Edward Best?
176 A
A. Just estimating I guess it is at least four miles, I guess.
It could be a little more; it could be a little less. I
don’ t know for sure.
Q. Now, Mrs. Wilkins, state whether or not at the time you
exercised the choice for your daughter Parthenia-state
whether or not you were influenced by any fear of what
might happen to you if you chose a school other than
Perry’ s School?
A. Well, I wasn’t -
Q. Beg your pardon.
V. 1 hadn t thought of, you know, nobody doing nothing to
me one way or another. I just picked P ern ’ s because
th.it is itie only school she had ever been to. and I know
it is a convenient school and I know she liked Perry’s,
^ was# t whatever she liked. Whatever I said she
du’, ! guess ti she was older she could pick it.
k? \ ou tucked Pern s ot
V
<• *1* vOV» ivV wi l l
V* N
essfc ysssSi
1 7 7 A
Q. And if she had gone to Perry’ s, she would have ridden
the Perry’s School bus?
MR. SCHWELB: We object to the leading.
A. Yes.
CROSS EXAMINATION OF ESTELLE WILKINS.
Dep. of Estelle Wilkins, June 6, 1967, p 66
Q. And you don’ t know whether if you had chosen a white
school you would have some problems at your home?
A. I don’ t know that, but I have never give it no thought
that I would have any problems.
Q. You didn’ t give any thought to that either, that you
would send her to a white school, had you?
A. Well. so . I hadn’ t.
Q. And ;• oi a m ': kno» whether she would have any pro
blems a; -_ie white school herself with souse of tie
white rat-jare-L M y y i ;
A. I don't facn* x& etcher { --.ate %he would get. along
with them. ;f she wss* gpnag to a white school.
DIRECT EXAMINATION OF LOSSIE MAE GREEN.
Dep. of Lossie Mae Green, June 6, 1967, pp 90-93
Q- How old are you?
A- Seventeen.
178 A
Q. Do you go to school?
A. Perry’ s.
Q. What grade will you be in next year?
A. Twelfth.
Q. Do you have any brothers and sisters going to school,
Lossie?
A. Yes, I have two brothers and three sisters.
Q. Two brothers and three sisters?
A. Yes.
Q. And are they in school?
A. Yes.
0 Where do they go to school?
V. Pen' s.
v Loss -,c Jo vou oncMioo getting some forms iom the
; ia ,i CvHuit̂ :\\u vi of j iueattoa cooeermtK the
v'K'ivv * Oii vH • ,’ut SC'lvXfl -Of .1C ' C'df '
V vNv
179 A
Q. What did you understand they meant?
A. 1 understand that they mean that you can go to any
school in Franklin County that you wanted to go to.
Q. And who filled out the forms for you and your brothers
and sisters?
A. I did, but-
Q. Why did you fill them out?
A. Because my daddy can’t write and he can’ t read. He
can read a little, but not too much.
Q. And is your mother living?
A. No.
Q. How long has your mother been dead.'
A. Two year.
Q. Now, Lossie, did you and your father and your other
sisters and two brothers discuss the schools that you
aU wanted to attend for next year?
A. Yes.
Q. And «m i sa il ia ‘.be discussions about the schools
yon w ere tc attend;
A. My daa: ■ j u < uo* «r.*efe VJto/J ?'-*>
disc*s**d. -ji .-t*-/ v;- /. any ttbool toa*
they « su td v. A.trf tc v..". '' V / ' tek w i to
go to aeu year mrf te v...t -so-.m is gft back to P«fy'*
And I 3*.c <e;'. he v--i /, •.*.*? I to gj> to >nd l
picked Perry’s.
180 A
,Q. Have you ever considered going to Edward Best School?
A. No.
Q. Ho you know anybody who has ever gone to Edward Best
School?
A. Harold Coppedge and—
Q. And Alice Clanton?
A. Alice Clanton.
Q. Have you ever talked to Harold Coppedge:
V. Yes.
0 Ybout going to Edward Best School1
A. Yes.
0 *hea i d \ ou talk to Mat?
v j.vcvi :o Yv.tt JX'Mt-l irn ̂ arcuc acnas, I think.
x- eve scavvi elesce
Q? v Ycre i d v ou tat k at tv,a'
% i ite ic at;I ‘«ntr— -Sti. B ut®
e-. «.xt aXuu -!c a. S a « * l 3eS
v!>. x siew x e '.e-'C' > x. x oisc a. : *sr* = -SfL
x Vv< -otxfc x x.xcrxg. at. £dn«*w. res. i s *
'■V • ̂ ^ "**>5*' ^
18 1A
Q. Did he tell you about any trouble that he had at Edward
Best School?
A. No.
Q. Did he tell you where he wanted to go to school next
year?
A. No, he didn’ t tell me that.
Q. Lossie, have you ever talked to Alice Clanton?
A. No, I have not.
Q. About the school she was going to this year?
A. No.
Q. You just knew she was going to Edward Best School.'
A. Yes.
Q. Lossie. do you like the freedom of choice plan of pick
ing the school that you want to go to?
A. Yes.
CROSS EXAMIN ATION OF MARGARET ELAINE FOGG
Dep. of Margaret Elaine f ogg. '-.pril 2S, 1%7, p 32; p 44
Q. And yoar p i r r t i d o n e hom»hm% School for yott tin*
year, for the year jam are going to now?
A. Yes.
Q. And you chose it for the next year, the same school?
182A
A. Yes.
Q. And you want to go back there, because you signed the
form ?
A. Yes.
Q. During the regular time that everybody got forms?
A. Yes.
Q. It was mailed to your mother or father, and they gave it
to you to fill out, didn’t they?
A. Yes.
Q. And you expect to be reassigned there this coming year?
A. Yes.
Q. How many brothers and sisters do you have that are of
school age?
A. (No answer)
Q. Of school age?
A. One.
Q. And she is at Louisburg, too?
A. Yes.
Q. And she is younger than you are?
A. No.
Q. Older?
A. Yes.
183A
Q. And she expects to go back to Louisburg next year?
A. Yes.
CROSS EXAMINATION OF CAROLYN JONES.
Dep. of Carolyn Jones, April 28, 1967, pp 66~68; pp 72-73;
pp 88-89
Q. And in your family, your brothers and sister are going
to three different schools?
A. Yes, sir.
Q. Everyone going to exactly the school that they or their
mother or father asked for?
MR. KENNEDY: I object.
MR. CLAYTON: I object.
BY MR. YARBOROUGH:
Q. Go ahead.
A. They go to the school that they decided.
Q. They wanted to go back to the same school, and your
mother and father agreed to it, didn’t they?
A. Yes, sir.
Q. They are going to the school, then, that your mother
filled out on the choice form for them to go?
184 A
A. Yes, sir.
Q. And you filled out your choice last spring, didn’ t you,
for Louisburg School?
A. Yes, sir.
Q. And it was granted?
A. Yes, sir.
Q. And you could carry it home in the report card, a notice
that you were assigned to Louisburg School?
A. Yes, sir.
Q. And they had another form in the summer ?
A. Yes, sir.
Q. And you filled that out?
A. Yes, sir.
Q. And you got exactly what you asked for?
A. Yes, sir.
Q. And your brother is going to Perry’ s?
A. Yes, sir.
Q. And he filled his out, or did your mother do that?
A. My mother.
Q. She filled it out and she got for him exactly what she
asked for on that?
185 A
MR. KENNEDY: Objection.
BY MR.YARBOROUGH:
Q. Well, the same thing for the two younger ones at River
side?
A. Yes, sir.
Q. And of course you knew and you chose Louisburg School,
you knew then that most of the teachers were white?
A. Yes, sir.
Q. And over at Riverside most of them were colored?
A. Yes, sir.
Q. You knew that when you chose this school?
A. I did.
Q. And knowing that, you chose it?
A. I did.
Q. And Carolyn, I will ask you one more question: And so
after your almost a year’s experience at Louisburg
School, you made your choice to go back this coming
year?
A. Yes, sir.
Q. And that is where you want to go?
A. Yes, sir.
186A
Q. And you expect to be assigned there?
A. Yes, sir.
Q. And expect to go back?
A. Yes, sir.
Q. And ride the bus?
A. Yes, sir.
CROSS EXAMINATION OF JOHN HORTON.
Dep. of John Horton, April 28, 1967, pp 111-112; pp 118-119
Q. Oh. yes. Yes. Now, John, for this school year you
have asked for Bunn?
A. Yes.
Q. And you got it?
A. Yes.
Q. I mean you got the place where you wanted to go?
A. Yes.
Q. And you went on up there; after the first few days you
got along all right?
A. Yes.
Q. And you went out for the basketball team?
A. Yes.
187A
Q. And you play some games sometimes?
A. Yes, sir.
Q. And you are very much interested in the success of
your team?
A. Yes, sir.
Q. If you happen to be on the bench, you cheer for them?
A. Yes, sir.
Q. There are one or mare wooden buildings at Bunn and
one or more wooden buildings at Gethsemane then, is that
right,
A. Yes, sir.
Q. Now, you knew all of that when you made your choice
for your school?
A. Yes.
Q. And you chose Bunn?
A. Yes.
Q. And you chose it again for this coming year?
A. Yes.
Q. And you expect to go there?
A. Yes.
188 A
DIRECT EXAMINATION OF FRED WILTON ROGERS.
Dep. Fred Wilton Rogers, April 28, 1967, p 141
Q. Is the Franklinton City School System a separate and
independent administrative Unit?
A. Yes, it is.
Q. You don’ t operate jointly with the Franklin County Sys
tem?
A. No.
Q. Does the Board of Education that supervises and over
sees the Franklinton City School System, is that right?
A. Would you repeat that?
Q. Franklinton City School System has a separate board of
Education?
A. Yes, sir.
CROSS EXAMINATION OF FRED WILTON ROGERS.
Dep. of Fred Wilton Rogers, April 28, 1967, pp 184-188
Q. Now, Mr. Rogers, all about your freedom of choice or
your plan of compliance, that is strictly your City Board
of Education affair, isn’ t it?
MR. CHAMBERS: We object to that.
BY MR. YARBOROUGH:
Q. Answer it, please.
A. Yes.
189A
Q. And Franklin County Board of Education has nothing
to do with it?
MR. CHAMBERS: We object to that.
A. No, it did not.
BY MR. YARBOROUGH:
Q. It did not? And your Franklinton City Board of Educa
tion runs its school system, doesn’ t it?
A. Yes, sir.
Q. And the Franklin County Board of Education supplies
the buses and maintains the buses for your system, but
you or someone under the control of the Franklinton
City Board of Education routes them and so forth?
A. Yes, sir. That’ s correct.
Q. Handles it all except the maintenance and the supplying
of the buses?
A. Yes, sir.
Q. And the drivers are students in the schools there?
A. Yes, sir.
Q. And about your money from the County, your Board gets
twenty-four and eight-tenths percent of the money?
A. That’s correct.
Q. That is set forth in the State Law that your Board gets
a certain percentage of the county tax money?
190 A
A. Yes, sir.
Q. And your Board prepares its own budget and submits it
for approval to the County Commissioners?
A. Yes, sir.
Q. The County Board of Education has nothing to do with
your budget?
A. No, sir.
Q. And the Franklin County Board of Education of course
has nothing to do with the employment of your teachers
or anything of that kind?
A. No.
Q. That is contracted by the Franklinton City Board of
Education, isn’ t it?
A. Yes. sir.
Q. And the assignments made in schools and so forth are
by the Franklinton City Board of Education?
A. Yes. sir.
Q. Now. these questions concerning your Franklinton ac
tivity bus, that is a privately owned or a bus owned by
the Franklinton City Board of Education, and not by the
C ount y ?
V. Yes, sir.
0 Vud purchased with Franklinton City funds or with
Franklinton Cits School funds:
1 9 1 A
A. Yes, sir.
Q. And not by the Franklin County Board of Education, is
that right?
A. Yes, sir.
Q. And it was one hundred percent under the control of the
Franklinton City Board of Education?
A. Yes, sir.
Q. And any proposals you made concerning any operation
of the schools was made by you to the Franklinton City
Board of Education and not to the Franklin County
Board of Education?
A. Yes, sir.
Q. Insofar as the operation of the Franklinton City Board
of Education Schools, I’ ll ask you if it isn’ t the same as
if it were in another county, so far as the day to day
management and operation were concerned?
A. Yes, sir.
Q. Insofar as the Franklin County Board of Education is
concerned, it might just as well be in another county?
A. Yes, sir.
Q. And all dealings with the Franklinton City Board of
Education with the Department of Health, Education
and Welfare were between Franklinton City Board of
Education and the Department of Health, Education and
Welfare and the Franklin County Board of Education had
nothing to do with it?
192 A
MR. KENNEDY: Objection.
A. That’s correct.
BY MR. YARBOROUGH:
Q. Franklinton City Board of Education adopted a plan for
compliance with the Civil Rights Act, did it not?
A. Yes.
Q. And the Franklin County Board of Education adopted
its own plans, so far as you know?
A. Yes.
CROSS EXAMINATION OF BUCK NORWOOD.
Dep. of Buck Norwood, April 28, 1967, pp 213-215; pp 215-216;
pp 221-222
Q. You came about thirty-five years ago from Granville
County?
A. Yes, sir.
Q. And none of your children had been to the Franklin
County Schools?
A. No, sir.
Q. All your dealings were — all your dealings with schools
for the last thirty-five years have been with the Frank
linton Township Schools?
A. Yes, sir. That’ s right.
0 . And they operate two schools there, for many years?
193A
B. F. Person School there in the Franklinton Public
Schools, and Franklinton High School?
A. Yes, sir.
Q. And you are not of course saying that the Franklin
County Board of Education had anything on earth to do
with any of that stuff that happened up there, are you?
A. I don’ t think it has got nothing to do with it.
Q. You are not accusing the Franklin County Board of Edu
cation for it?
A. No, sir.
Q. You don’ t know who did it?
A. No, sir.
Q. And the Franklinton Township has got its own Board of
Education, hasn’ t it, which runs the two schools there?
A. Yes, sir.
Q. Do you vote in Franklinton?
A. Yes, sir.
Q. And you know they have to vote on the members of that
school board, don’ t you?
A. Yes, sir.
Q. And you have voted for some of them in years past.'
A. Yes, sir.
194A
Q. And they have got an election next Monday, I believe?
A. Yes, sir.
Q. And several people are running?
A. Yes, sir.
Q. And your phone works out of Franklinton Exchange,
doesn’ t it?
A. Yes, sir.
Q. You can call anybody in Franklinton from your phone
without having to get long distance?
A. Yes, sir.
Q. Your phone works out of the Franklinton Exchange?
A. Yes, sir.
Q. And those calls that you got, so far as you know, were
called from that same telephone exchange?
A. That’ s right.
Q. It wasn’t a long distance call, was it?
A. No, sir. I don’ t think so. No.
Q. And for you to call Louisburg, you would have to call
long distance to get anybody over here in Louisburg?
A. Yes, sir. That is true.
195A
Q. And in this case you are in over here is a case against
the Franklin County Board of Education, you haven’t
got a thing in the world against the Frankiln County
Board of Education, have you?
A. No, sir. I ain’ t accusing them of nothing.
Q. You don’ t have any complaint against the Franklin
County Board of Education at all?
A. No, sir.
Q. And you have been treated all right over here today,
haven’t you?
A. Yes, sir.
Q. Folks have been nice to you, everybody you dealt with
over here today?
A. Yes, sir.
DIRECT EXAMINATION OF GLADYS HAYES.
Dep. of Gladys Hayes, June 7, 1967, pp 3-6
Q. And, for the record, Mrs. Hayes, what is your race?
A. Colored. Negro.
Q- Mrs. Hayes, do you have any children living in your
home who are attending school?
A. I have five.
Q- Are they your children?
A. Three of them is.
1 9 6 A
Q. And the other tw o-
A. Are grandchildren.
Q. Grandchildren. What grades are those children in, Mrs.
Hayes?
A. My oldest son-he is in the tenth grade, but he was pro
moted to the eleventh.
Q. How about the other one?
A. My next oldest one-he is in the ninth. 1 mean he’s
promoted to the ninth.
Q. And the next one5
A. Next one-she was in the sixth and she’ s promoted to
the seventh.
Q. And how about the other two?
A. And my granddaughter-my oldest on e -sh e ’ s promoted
to the sixth. She’ s promoted to the sixth.
Q. And how about the other one?
A. And the other one is in the first.
Q. Be in the first grade next year?
A. Yes, sir.
Q. Mrs. Hayes, several months ago did you receive some
forms from the Franklin County Board of Education per
taining to the choice of schools for your children next
year?
A. Yes, sir.
197A
Q. Did you read those forms?
A. I can’t read too good. I stopped in the second grade.
But I had my daughters to read them to me.
Q. And did you understand what the forms meant?
A. Yes.
Q. What did you understand the forms to be?
A. To take a choice. They could go to either school they
wanted to. And I asked them and they said they wanted
to go to Perry’ s.
Q. Did the forms that you receive have the schools in
Franklin County listed on the forms?
A. Yes, sir.
Q. Did you discuss the choice of schools with your child
ren?
A. Yes, sir.
Q. Did you discuss the possibility of going to Gold Sand
School with your children?
A- Yes, sir. I asked them did they want to go to Gold Sand
or Perry’ s. They said they wanted to go to Perry’s.
Q. And is that the choice you m ade-to Perry’ s?
A. Yes, it is.
Q. And was that choice granted by the Franklin County
Board of Education?
Q. And they are assigned to Perry’ s next year?
A. Yes, sir.
Q. All five of them?
A. Yes, sir.
Q. State whether or not it would have met with your appro
val if they had wanted to go to Gold Sand School?
A. I don’t know. They didn’ t want to go.
Q. 1 mean would it have been all right with you if they had
decided?
A. Oh. yes, sir, if they had wanted to go, it would have
been all right with me.
Q. Mrs. Hayes, do you like the idea of freedom of choice
in operation of the schools?
A. Yes. sir.
Q Mrs. Haves, -vires you signed—strike that. Did van sign
he choree terns tor vour children'
v ie s . ' can'c -vnce tec toco euc I stane-j me ay iangh-
-so-f W 'e a aajgncer at lone She roes ay writing-
-'‘W is: touenen t. -uc cio-v
C- tsw ney 'eve Stgne'i nicer -oar auBJunr-''
v tauvs ay—cast's.
198 A
A. Yes, sir.
tat t w •(Sft a seal ?■*
199A
children to Gold Sand School?
A. No, sir.
Q. Had any threats been made towards you to get you to
continue sending your children to Perry’s School?
A. No, sir.
Q. Do you know many white people in the Centerville com
munity ?
A. Yes, sir.
Q. And state how you get along with the white people in
the Centerville community?
A. I get along with them just fine.
Q. And, generally speaking, Mrs. Hayes, do the white
people and the colored people in the Centerville com
munity get along with each other all right?
A. Yes, sir.
CROSS EXAMINATION OF GLADYS HAYES.
Uep. of Gladys Hayes, June 7, 1967, pp 22-23
Q' You said you weren’t afraid. Could you explain what
you mean?
A. What do you mean? About my kids going to Gold Sand,
that I wasn’ t afraid for—to sign it?
Q. Yes.
A' In the neighborhood I am in I am not afraid for them to
200 A
go. I wouldn’t be afraid to sign it because I don’t think
anybody would harm them.
Q. You said you have heard about the incidents that hap
pened to the other Negro families?
A. That’ s right.
Q. Had you also heard why some of those incidents hap
pened?
A. Some of them said about going to school together caused
it to be, but 1 didn’ t see that.
Q. You didn’t see the incidents you mean
A. No.
Q. And you don’t know whether you would have had pro
blems. too. if you sent your children to Gold Sand, do
you?
V. No. 1 don't know, but 1 don’t think 1 would.
DIRECT EXAMINATION OF ROBERT RICHARDSON.
Dep of Robert Richardson. June 7. l% 7 . pp 31-54
0 Do you live in Franklin County:
V Aes, su
0 No a. Centeo ulc'
V V\i. •* . ;<*<.
v '« N eta e-Nce ' 'a . » »evii x e
201A
Q. Haliwa Indian. How do you spell that?
A. H-A-L-I-W-A.
Q. Are you a Negro?
A. No, sir.
Q. Mr. Richardson, you have any children or child of your
in school in Franklin County? Do you have a child in
school?
A. In school?
Q. In school.
A. Yes, sir.
Q. And what grade-what is the age of your child that goes
to school?
A. What grade is she in?
Q. Yes.
A. She is in the eighth.
Q. In the eighth grade?
A. That’ s right.
Q. Do you have another child that goes to school.'
A. One in Raleigh.
Q. What school does that child go tor
A. Indian, Halivva Indian.
A. Morehead School.
202A
Q. Is that child deaf?
A. Yes, sir.
Q. What is the name of your girl that is in the eighth grade?
A. Gloria Jean.
Q. Was that Gloria Jean?
A. Yes, sir, Gloria Jean Richardson.
Q. How old is she?
A. Thirteen.
Q. Mr. Richardson, did you get the choice forms in March
of this year, a month or two a g o ,-
A. Yes, sir.
Q. -for your girl, Gloria Jean. Did you have that form
completed?
A. Yes, sir.
Q. And what school did you choose for Gloria Jean to go to
for the coming school year?
A. Well, I didn’ t choose no special school. I asked her
what school did she want to go to and she said she
wanted to go back to Perrv’s , so she filled it out her
self.
Q. And sent it in?
203A
Q. Did she get a notice back that she could go to Perry’s
next year?
A. Yes, sir.
Q. Now, Mr. Richardson, your girl that is - is it a boy or
girl at Morehead School in Raleigh?
A. A girl.
Q. Have you ever been up to the school?
A. Yes, sir.
Q. And what races of people attend that school?
A. Well, I tell you some is Negro, some white.
Q. And yours is an Indian?
A. That’ s right.
Q. Now, Mr. Richardson, when you completed or authorized
the completion of your little girls’ s form for the coming
school year, state whether or not you had any fear?
A. No, sir.
Q. At the time you picked the school?
A. No, sir.
Q. State whether or not you know the little girl could have
gone to Gold Sand if she had wanted to?
A. Yes, she could have went to Gold Sand if she had want
A. That’ s right.
204A
ed to. Was perfectly all right with me.
DIRECT EXAMINATION OF EDWARD GUPTON.
Dep. of Edward Gupton, June 7, 1967, pp 47-50
Q. That is in Franklin County?
A. Yes, sir. Box 329.
Q. And, for the record, Mr. Gupton, what is your race?
A. Colored.
Q. Mr. Gupton, do you have any school age children living
in your home?
A. School age children?
Q. Yes, sir.
A. Yes, sir.
Q. How many do you have?
A. Seven.
Q. Have seven in school?
A. Yes, sir.
Q. What grades will they be in next year? What will be the
highest grade one will be in next year?
A. From the twelfth to the third.
0- And the lowest one will be in the third?
205A
Q. Mr. Gupton. back in March of this year did you receive
from the Franklin County Boird of Education some forms
for you to make a choice of schools for your children?
A. Yes, sir, I did.
Q. Did you read the forms?
A. Yes, sir, 1 did.
Q. Did you discuss the forms with your children?
A. Yes, sir.
Q. And did you discuss them with your wife?
A. Yes, sir.
Q. State whether or not, Mr. Gupton, you, in reading the
forms, you saw a list of the schools in Franklin County
set out on the forms?
A. State-
Q. Did you see a list of the schools on the forms?
A. Yes, I did.
Q. And state whether or not you also saw a list of courses?
A. Yes, sir.
Q. Taught at each school?
A. Yes, sir. I think it was about seven. Yes, sir, I saw
A. Yes, sir.
206A
the courses?
Q. And did you go over the list of schools and list of
courses with your children?
A. Yes, sir. They read over them.
Q. Now what schools did you pick for your children for the
coming school year beginning in the latter part of August?
A. Well, I didn’t pick either one myself. I let them pick
their ovsn choices.
Q. Let the children pick them?
A. Let them make their own decision.
Q. What school did they choose?
A. They chose Perry’ s High School.
Q. And is that the school they have been assigned to?
A. Yes, sir.
Q. Mr. Gupton, in making your choice of schools were you
under any fear, or in making the choice were you afraid
of anything?
A. No, sir.
Q. Were you afraid that you would be intimidated or harass
ed if you had picked the school other than the one that
was actually picked?
A. No, sir.
Q. Mr. Gupton, do you understand the freedom of choice
2 0 7 A
form, freedom of choice system that the Franklin County
schools are operating under?
A. Yes, sir.
Q. Do you agree with that system?
A. Well, yes, sir, I agree with it.
Q. You think it is a good plan, to let students and parents
pick the schools that they want their children to go to?
A. Yes, sir, I think it is the right thing.
STIPULATION OF COUNSEL.
Dep. taken June 7, 1967, p 75
It is stipulated by and between counsel for the plaintiffs
and plaintiffs intervenor and counsel for the defendants that
the defendants would offer the testimony of a comparable
number of Negroes residing in the vicinity of Epsom High
School, Louisburg High School, and Youngsville High
School; that said Negroes have children who attended River
side High School and/or Youngsville Elementary School for
the 1966-67 school year; that said Negro parents in March
of 1967 completed the freedom of choice forms for their
children to attend the Riverside High School and/or Youngs
ville Elementary School for the 1967-68 school year; that
said Negro parents would testify substantially to the same
effect on direct and cross-examination as did the defen
dants’ witnesses who were Negro parents residing in the
Bunn High School, Edward Best High School and Gold Sand
High School communities; that the names of the witnesses
are to be supplied by the counsel for the defendants to op
posing counsel prior to the trial of this action.
208A
DIRECT EXAMINATION OF EVELYN KAY HARRIS,
uep. of Evelyn Kay Harris, June 8, 1967, pp 3-8
Q. And where do you live?
A. I live on Harris Street, just off Bunn Road.
Q. On Harris Street, in Louisbiffg?
A. Yes.
Q. Now. Kay, did you go to school this past vear?
A. Yes.
Q. 'Ahat school did you attend?
A Riverside High School.
Q Ami what grade were you in'
A Eleventh
Q Am are ■ eu going :tr sehvjci k vr ear
A Yes.
J * x e ao ‘on atenm. # go
A, \:»e’ Xue
<• OW -i-.
"NeA&d
Jib’ §M|id
209A
Q. Did you make it or your father and mother?
A. I made it. They asked me. They put down what I said.
Q. What school did you choose?
A. RiversideHigh School.
Q. Did you know that you had a choice of—free choice of
other schools?
A. Yes.
Q. And did you know that you could have gone to Louisburg
School?
A. Yes.
Q. You have some friends at Louisburg School?
A. Yes. colored friends.
Q. For the record, what is yom race?
A. Negro.
Q. No«. X '/ do yon kao* Carolyn Jones'
A. Yes.
Q. Kay. suae wiesaus? x vx.—iii they have a talent pro
gram u Rr>er*:-.de idwsA *vne several month* ago?
A. Yes.
Q. Were you at the program?
A. Yes.
Q. Were you in it or a spectator?
210A
Q- In the talent program. Now, Kay, state whether no not
at the time of the talent program or at another time you
told Carolyn Jones that if there were some Negro teach
ers teaching the subjects at Louisburg School you would
go there, but since there isn’ t, you didn’ t want to go?
A. No, I didn’t say anything like that to her or anybody.
Q. Have you ever made a statement like that or similar to
that to anyone?
A. No.
Q. Kay, have you ever expressed a desire to anyone to go
to Louisburg School?
A. No.
Q. Now, Kay, you know Charles Gill?
A. Yes.
Q. Is he a friend of yours?
A. Yes.
Q. Now, Kay, have you ever been up to the Louisburg
School?
A. Yes.
0- When were you there?
A. I was there in April, to the prom.
0- Was that the junior-senior prom?
A. I was in it.
211A
Q. In April of this year?
A. Yes.
Q. Who was your escort or date?
A. Charles Gill.
Q. Is he a student at Louisburg School?
A. Yes.
Q. Where was the prom held?
A. It was held in the auditorium.
Q. Of the Louisburg School?
A. Yes.
Q. Was it a dance?
A. Yes.
Q. Now, Kay, how did you and Charles get along at the
prom?
A. We got along just fine.
Q. Did you have any trouble there, of any kind—you or he:'
A. No.
Q. And there were other Negro students there, too."
A. Yes.
A. Yes.
212A
Q. Now, Kay, I hand you a paper called SCHOOL DAZE,
dated Friday, May 19, 1967, Do you see a picture there
on page four?
A. Yes.
Q. Are you in the picture?
A. Yes.
Q. What does that picture represent?
A. It represents the Eiffel Tower, which served as a part
of the theme of the prom.
Q. As a part of the theme of the prom. Does it show stu
dents in the picture?
A. Yes.
Q. And you are one of the participants in the prom?
A. Yes.
Q. And has several other pictures of the junior-senior prom
down there?
A. Yes.
Q. And those pictures represent activities at the prom?
A. Yes.
Q. Kay, state whether or not you knew that the juniors,
seniors, and their dates at the prom were also invited to
a private breakfast after the prom?
A. Yes.
213A
Q. And did you go to the breakfast?
A. No.
Q. Why didn’t you go?
A. Well, we didn’t go because the person that me and my
date were riding with had to have the car in at a certain
time.
Q. So you left?
A. Yes.
Q. What time did you leave?
A. We left around twelve.
Q. And the prom was still going on?
A. Yes.
Q. Kay, did you talk to Charles Gill, your date, about his
life or his time at Louisburg School?
. No.
Q. Did he tell you anything about whether he got along all
right or didn’t get along all right?
A. Yes. He said he got along just fine.
Q. Said he and the other colored students up there got along
just fine?
A. Yes.
214A
REDIRECT EXAMINATION OF EVELYN KAY HARRIS.
Dep. of Evelyn Kay Harris, June 8, 1967, pp 17-18
Q. Kay, you said on cross-examination that there were
some colored people afraid to exercise a free choice of
schools. Do you know any of them?
A. No, none personally.
Q. I mean you don’t know any names of them?
A. No.
Q. So that was a guess on your part?
A. Yes.
MR. SCHWELB: I object to the form of the question
because you are leading, and also impeaching your own wit
ness.
MR. \ARBOROUGH: That was a guess, as she said
it was.
0- (Mr. Varborough) Can you give a single name of any
body you know that is afraid?
A. No.
Q. Vre >ou afraid to pick Louisburg School?
V No. I wasn’t.
D lR t'C T K W M t W n O N OF \ E K O M C A F A 'X E S S .
IVp 'excusea A; <• v. is uc S. » ' A T-
0 V 'Ou U-.V'tC SaMvVt O ' 4UW JttCvfUUt'-
215A
Q. Where do you go to school?
A. Riverside.
Q. What grade will you be in next year?
A. Twelfth.
Q. For the record, what is your race, Veronica?
A. 1 am a Negro.
Q. Did you get—receive a choice form back in March of
this year?
A. Yes.
Q. For you to pick a school?
A. Yes.
Q. For you to attend next year?
A. (WITNESS SHAKES HEAD AFFIRMATIVELY)
Q. Did you read that form?
A. Yes.
Q. Did you under stand what it meant r
A. Yes.
Q. 'that »a s .oar understanding of the meaning of the for®.'
A. It aeaas that 1 can go to m * school g o that oap«
A. Yes.
216 A
I pick.
Q. And which school did you pick?
A. Riverside.
Q. And have you been assigned to that school?
A. Yes.
Q. Did you notice on the forms that you received the list
of the schools in Franklin County?
A. Yes.
Q. And state whether or not all the schools in Franklin
County were listed on the form?
A. Pardon me.
Q. Were all the schools in the County listed on this form?
A. Yes.
Q. And did you also see a list of the schools with the vari
ous courses that are taught in each school?
A. Yes.
Q. And did you study that list?
A. Yes.
Q. Now. \eroniea, do you know Carolyn Jones?
Yes.
0- She ■ s a student oi was a student at l ou-.seurg School
217A
this past year--is that right?
A. Yes, sir.
Q. State whether or not, Veronica, there was a tai nt show
held over at Riverside School some several months ago?
A. It was.
Q. Did you attend the talent show?
A. No, sir.
Q. You didn’ t attend?
A. No.
Q. Veronica, state whether or not you have ever told Caro
lyn Jones that if more colored teachers were at Louis-
burg High School, you would have considered picking
that school for next year?
A. No.
Q. Have you ever made that statement to anybody?
A. No, sir.
Q. Have you ever had any real desire to attend Louisburg
School?
A. No, sir.
Q. Veronica, do you make good grades at Riverside.'
A. Yes.
Q. What kind of grades do you make?
218A
A, I have an “ A” average.
Q. Are you an honor student?
A. Yes, sir.
Q. How many honor students are there in your class, if you
know?
A. 1 think it’s four.
Q. Out of a class of how many?
A. It’ s more than four. It’ s just in my class. I don’ t know
how many it is, but it’ s a lot.
0 . How many are in your class?
V. 1 don’ t know.
0 How i»m students in your homeroom?
-V l don t know how many students in my homeroom
0 heiotuci whet* you made >oat choice c; schools for
*ea< were >ou utvet aav tear~
V V .
■V ‘ ' . 'Ov SC Vo
V Vos
v * v**v> > at 'HU® 'y>itiiT twnr ~~rn>
v' V v i.vV ^ \ \\'x v?»t *v>». - 'sj's: 't 1'. ■ ■ jJESSSSi 3
* '***V«&H*̂ v t -s*». -
V -
219A
Q. You don’ t think you would?
A. No, sir.
Q. Do you know the other colored students who have gone
to Louisburg?
A. Yes.
Q. Have you had occasion to talk with any of them?
A. Yes.
Q. And have you talked with them concerning how they got
along at Louisburg?
A. Yes.
Q. And what did they tell you?
A. They said they got along all right.
Q. Did they tell yon they liked the students.'
A. Yes.
Q. Aa: . tw"C tine teatiers;
A. Yes. sir.
Q fa t-otc vpasasn '■ ervvitt. « . ; « let. r
tie at jp ta a w ’j ii 'fcit -t * t.th'x trier
t32.x lr T^ertmfc'
A. Vr
0 I n a K - e a t a '>.</< v>
ohS® avoir. ts-sta '.ea ^ v»4 »*
220A
County, specifically, the Fogg home and Reverend
Dunston and Reverend Coppedge and some of the others,
and I believe those colored people have children of
either their own or children living in their home who at
tended predominantly white schoo}s--is that right?
A. Yes.
Q. In making your choice of schools did you consider the
things that you had read about that had happened to
people’ s homes?
A. Yes.
Q. Did that enter your mind when you picked your school?
A. No, sir.
STIPULATION OF COUNSEL
Dep. taken June 8, 1967, p 36
MR. YARBOROUGH: It is stipulated and agreed between
counsel that Delphine Hartsfield, a Negro student at River
side School, would testify substantially to the same effect
on direct examination and cross-examination as Kay Harris
and Veronica Hawkins testified.
MR. SC H WE LB: It is so stipulated.
STIPULATION OF COUNSEL APPLYING TO ALL DE
POSITIONS.
Dep. taken June 26, 1966, p 2
It is stipulated that the signing of the depositions, as
2 2 1 A
well as notice of filing, is waived.
It is stipulated that these depositions shall be admissi
ble in evidence as though the deponent had testified in open
court, subject to normal objections on the grounds of lack
of relevance, competence, or materiality.
Objections to the competency, relevancy or materiality of
testimony given in these depositions are not waived by fail
ure to make such objections before or during the taking of
the depositions unless the ground of the objection is one
which might be obviated or removed it presented at that
time. This is in accordance with Rule 32 of the Federal
Rules of Civil Procedure.
DIRECT EXAMINATION OF IRA BOWDEN.
Dep. of Ira Bowden, May 3, 1967, pp 126-129
Q. Mr. Bowden, for the record, what is your race?
A. White.
Q. White. And how old are you?
A. Sixty-six.
Q. Mr. Bowden, do you know Luther Coppedge and Chris
tine Coppedge?
A. Yes, sir.
Q. How far do you live from them?
A. About in sight of them. I’ d say four hundred yards.
Q. Four hundred yards to the west?
A. To the east.
2 2 2 A
Q. To the east of them?
A. Between four and five hundred yards.
Q. And they live east of you or west of you?
A. East.
Q. They live east of you. Does their land join your land?
A. Yes, sir.
Q. And how long have they lived there?
A. I don’t remember exactly. Some—some twelve or thir
teen years I’d say. Something like that.
Q. Yes, sir. Do you live on the place where you were born?
A. No, sir.
Q. How long have you lived where you do?
A. Well, I have lived where I am at now practically-for
years. Since I was a married man. But it belonged to
my daddy and I just bought it a few years ago.
Q. From your brothers and sisters?
A. From my brothers and sisters, after he passed out.
Q. Yes, sir. Mr. Bowden, all your children have already
finished school a number of years ago?
A. Yes, sir.
Q. And they live away from you now, in other parts of trie
223A
county. I direct your attention to about two months ago,
March fifth or sixth, 1967, relative to an explosion or
noise at the Coppedge House. Do you recall about two
months ago hearing any noise over there?
A. Yeah, about that time.
Q. And about what time of night was it?
A. Well, as 1 suggest, something like quarter past nine or
nine-twenty. Something like that.
Q. And what did you hear, sir?
A. Well, my wife had lay down, and I hadn't, but 1 was fix-
ling to lay down, and 1 heard that--something sounded
like a kind of heavy gun like.
Q. Gun shot?
A. Yes. It sounded like a gun shot went off somewhere.
And I asked--l sort of paused and I asked her did she
hear that in her room and she said yes. And I went on
out to the front door and walked out on the porch and I
couldn’t tell exactly which way it was, but it sounded
like it was kind of to the east. Sounded like it was
kind of that way. Well, 1 walked around in the porch
and 1 stopped there for several minutes and I didn’t hear
anything else.
Q. Did you see any cars pass or leave the Coppedge house?
A. No, sir.
Q. Did you see any lights at the Coppedge house at that
time ?
A. Well, I reckon there was a light. I didn’ t notice any
2 2 4 A
light. Most people would have a light along about that
time of night. If it do, was just a low light.
Q. Did you see any cars leave the Coppedge house?
A. No, sir.
Q. Did you hear any gun shots, like rifle shots go off at
that time?
A. No, sir.
Q. Other than the first noise you heard?
A. No, sir.
Q. Did you hear any dogs bark at the Coppedge house?
A. Yes. They have three or four dogs. Anything move
around much these dogs would get right up and just yell
after it. That is about all they are good for, but I didn’t
s e e -
Q. Did any dogs bark that night you heard the explosion?
A. No, I didn’t hear anything. So I turned back and went
to bed and 1 didn’ t hear anything else.
STATEMENT OF COURT
Trans, of Trial, Vol. 1, p 27
THE COURT: I understand from reading the deposition
that the minister himself attributed the fact that he was dis
charged as a result of a congregational meeting at which the
vote was taken to the fact that he did. So I think tiiat
you’ve got definite, competent evidence. But what this
225A
witness may think about it, I don’ t know that it is ver y
impelling. However, 1 am going to let him say what he
thinks. Let him put it in the record. Propound your ques
tion and let him answer it.
DIRECT EXAMINATION OF ODELL RICE GARDNER.
Dep. of Odell Rice Gardner, May 3, 1967, pp 161-164
Q. Mrs. Gardner, where do you live?
A. In Justice Community.
Q. And what is your address?
A. Louisburg, Route 4.
Q. And, for the record here, what is your race?
A. White.
Q. Mrs. Gardner, do you know the Reverend Luther Coppedge?
A. Yes, sir.
Q. How far do you live from him?
A. Approximately two hundred yards.
Q. Your husband’ s farm jo in s -
A. Joins his, yes, sir.
Q. And the houses are two hundred yards apart?
A. Yes, sir.
Q- But in sight of each other?
226A
Q. Mrs. Gardner, I will direct your attention to about two
months ago, on March the fifth or sixth, 1967. Did you
hear any kind of noise or explosion or anything at the
Coppedge home that night?
A. Well, I heard something sounded like a gun went off.
Q. What kind of gun, a shot gun?
A. A shot gun. Sounded like a shot gun.
Q. About what time of night was it?
A. Well, it was between 9:00 and 9:30 because-I didn’t
look at the clock, but I know it was.
Q. Where were you that night?
A. I was in my den.
Q. You were in your home?
A. Yes. I was in the den sewing.
Q. Was your husband, John Wilbur Gardner, there?
A. No, he had gone to the store.
Q. And what did you do when you heard this noise? First,
where did it sound like it was coming from?
A. Sounded like it was coming from the road.
Q. A public road?
A. Yes, it is.
A. Yes. To me it did.
227A
Q. And what did you do?
A. I lay down my sewing. 1 think, well, 1 will go see what
that is. and went to the front door and looked out and I
didn’t see anything, and then ! came back to the kitchen,
which faces his house.
Q. Who is ‘ his’ ?
A. Luther’ s. And 1 looked out that way and 1 didn’ t see
anything, so 1 went on back and sit down to my machine
and went back to sewing.
Q. And that is the only time you heard any explosion at the
Coppedge house?
A. That is the only sound I heard.
Q. Did you see any cars leaving his house?
A. No, 1 didn’t see anything.
Q. Or travelling the road?
A. No.
Q. Did you hear any rifle shots later on or immediately
thereafter?
A. No, I didn’t.
Q- Mrs. Gardner, did you hear any dogs bark?
A. No.
Q. Do the Coppedges’ have any dogs?
A. Yes, they have some, but I didn’ t hear them. 1 didn t
228A
hear a sound; nothing but the gun go off.
Q. And you immediately went to your window and looked
out?
A. Yes, I did.
Q. Mrs. Gardner, how long have you all lived next to the
Coppedge’s?
A. About fifteen years I guess.
Q. Since you all moved there?
A. Yes.
Q. Were they there when you all came?
A. No. We moved there in 1952 and I think they moved
there in 1954.
Q. And state whether or not you have always gotten along
with them?
A. Just fine.
Q. Neighborly and friendly?
A. Just fine.
Q. And they come over to vour premises from time to time
about something and you have been to theirs
A. Yes.
229A
DIRECT EXAMINATION OF REV. LUTHER COPPEDGE.
Trans, of Trial, Vol. 1, p 42
Q. Now, let me ask you one last question, Reverend Cop-
pedge. When you made your choice for your son, did you
feel you were making it between a white school and a
Negro school?
MR. YARBOROUGH: Objection.
THE COURT: Overruled.
A. I just thought I was given the opportunity to choose
freely.
Q. What kind of school do you and the people in the com
munity think of Edward Best as; what kind of school?
A. It’ s all right.
CROSS EXAMINATION OF REV. LUTHER COPPEDGE.
Trans, of Trial, Vol. 1, pp 46-47; pp47-48; pp 63-66
Q. Yes, sir. And so the Board of Education did send peo
ple around, including myself, to meetings explaining the
free choice?
A. Yes, sir.
Q. You went to two of them, didn’ t you?
A. I did, sir.
Q. Edward Best School where your son attended - you were
there?
A. Yes, sir.
Q. And you attended the Riverside meeting where you have
230A
no children?
A. Yes, sir.
Q. You attended that meeting?
A. That’s right.
Q. And it was explained fully, the name of the school you
gave?
A. Yes, sir
Q. At those meetings?
A. That’s right.
Q. And substantially the same speech or talk was made
at both meetings?
A. That’ s right.
Q. And that was right at the beginning of the choice period
of 1967, wasn’ t it?
A. That’ s right.
Q. And you understood the choice forms you got when you
received them?
A. Yes, 1 did, sir.
Q. And you picked the school for yoiff son Harold?
A. Yes, sir.
Q. And he has been assigned to the school you chose?
231A
Q. And last summer after the Interim Order, there was a
new freedom of choice to the Negroes of the County,
wasn’t there?
A. That’ s right.
Q. And you got the literature and the papers on that?
A. Yes.
Q. And you picked the school for your boy?
A. Yes, I did, sir.
Q. Now, Mr. Wiley Davis - how far does he live from you?
A. He lives about 14 miles from my house.
Q. On the other side of Louisburg from you, is that right?
A. He lives from Louisburg about four miles.
Q. I say on the other side of Louisburg from you?
A. Yes, sir.
Q. And he does not have any children at all in school?
A. He has a granddaughter.
Q. In school?
A. I think so.
Q. And what school does that granddaughter go to?
A. Yes, sir.
232A
Q. Does the granddaughter live with him?
A. Yes, sir.
Q. And goes to Riverside School?
A. That’ s right.
Q. Of course, you don’ t know what was the instance, of
your own knowledge, of anybody shooting at his house?
A. No, sir, I do not.
Q. Did you know that some time ago Wiley Davis was involved
in a charge of violating the Federal laws regarding whiskey!
A. No, sir, I do not know about that.
Q. You have never heard that?
A. No, sir, 1 haven’t.
Q. Now, you spoke about Mr. J. C. Fogg?
A. Yes, sir.
Q. Did you know that he had been involved in difficulty
with the law in recent years?
A. No, I do not know.
Q. In matters not related to school matters?
A. No, sir, not that I know about.
Q. You don’ t know either way, then, do you?
A. Riverside.
233A
Q. You do know that these children got exactly the school
he applied for them, didn’t they?
A. This year. They were rejected in ’65.
Q. When?
A. They were rejected in ’ 65 when my son was rejected.
Q. That was on the lateral transfer of four grades, wasn’t
it?
A. That’ s right.
Q. And the freedom of choice wasn’ t open for all grades
that year, was it?
A. No, sir.
Q. And he didn’ t have children in the proper grade of the
four grades in which freedom of choice was allowed
that year, did he?
A. That’ s right.
Q. And you didn’t either for that year?
A. No, sir.
Q. And for the ’66-67 school year the freedom of choice
was open in all grades for all schools?
A. Yes, sir.
Q. And for the ’ 67-68 school year they had a freedom of
A. All I know is he has children that are in school now?
234A
choice open for all grades in all schools in March of
this year?
A. Yes, sir.
Q. Do you know of any person, either white or Negro, in
Franklin County for the ’ 66-67 school year or the ’ 67-68
school year who has applied for a school and had appli
cation rejected?
A. No, sir, 1 do not.
Q. White or Negro?
A. No, I do not.
DIRECT EXAMINATION OF WARREN W. SMITH.
Trans, of Trial, Vol I, pp 103-10S; pp 124-132; p 134
Q. What is your occupation?
A. Superintendent of the Franklin County Schools.
Q. How long have you been Superintendent of the Franklin
County Schools?
A. Going on five years. Since July 1, 1963.
Q. What did you do prior to becomeing Superintendent of
the Franklin County Schools?
A. I was principal of the Edward Best High School for ten
years and mathematics teacher and coach at Epsom
School for five years.
Q. How long have you been associated with education?
235A
Q. Where did you get your education?
A. I received my BS Degree from Wake Forest College, my
Masters of Education Degree from the University of
North Carolina at Chapel Hill. I did additional graduate
work at North Carolina State University at Raleigh, at
Duke University, and at Randolph Macon Woman’s Col
lege in Lynchburg, Virginia.
Q. And during the courses of study that you have had, have
you at any time studied school consolidation?
A. Yes.
Q. How much education have you had along the lines of
school consolidation?
A. I had several courses on the administration of schools.
Q. And state whether or not, Mr. Smith, you have a super
intendent’ s certificate issued by the State Department
of Public Instruction certify mg you to be a superinten
dent in the schools of North Carolina?
A. Yes. I qualified for this certificate in 19S5.
Q. Now, Mr. Smith, state whether or not you have read any
authorities pertaining to the consolidation and adminis
tration of public schools?
A. Yes. I have read a number of books in this area.
Q. Would you tell us some of them, please?
A. “ Elementary School Organization” by Henry Otto from
the University of Texas; “ Public School Administra
A. Going on 20 years.
236A
tion” by Calvin Grieder of the University of Colorado;
Truman M. Pierce from Auburn University; William
Everett Rosenstengel from the University of North Caro
lina at Chapel Hill; “ The Fundamentals of Public School
Administration” by Ward G. Reeder, Ohio State Uni
versity. And then in the area of administration, Paul
Jacobson, University of Oregon; William Reaves, Uni
versity of Chicago; “ The Administration of the Modern
Secondary School” by J. B. Edmonson, University of
Michigan, and Joseph Romer, Goerge Peabody College.
Those are a few of the authorities that 1 have read and
studied.
Q. State whether or not, Mr. Smith, the Franklin County
Administrative Unit offers any supplement to teacher’s
salaries for the teachers teaching within the unit?
A. No, no supplement.
Q. Then the only compensation they receive for their ser
vice is what is paid to them by the State of North Caro
lina; is that correct?
A. That’s correct.
BY THE COURT:
Q. Excuse me. By supplement, do you mean teacher’s sa
laries supplement?
V. In addition to whatever the State salarv schedule would
be.
BY MR. DAVIS:
Q. State whether or not the surrounding school adminis
tratis e units in surrounding counties pay supplements
237A
to their teachers’ salaries.
A. Most of the counties pay a supplement with maybe one
exception.
Q. And state whether or not in the past, Mr. Smith, Franklin
County has had trouble retaining the services of the
teachers due to the fact that surrounding counties are
paying supplements to their teachers?
MR. SCHWELB: Ojbect to the form of that question,
your Honor.
THE COURT: Objection overruled, if he knows.
A. Yes. It’ s getting more difficult each year.
Q. And you attribute that fact to the fact that the sur
rounding counties are paying supplements to teachers?
A. Yes.
Q. Has the Franklin County Administrative Unit lost any
teachers to the surrounding counties because of the
supplements that are paid?
A. Yes.
Q. State whether or not the Franklin County Administra
tive Unit has lost any teachers to other states because
of supplements paid to teachers in other states, Mr.
Smith.
A. le s , this happens each year.
Q- Mr. Smith. I believe Franklin County is basically a rural
county; is that correct, sir?
A. Yes.
238A
Q. Mr. Smith, state whether or not eertain schools within
the Franklin County Administrative Unit offer lunches
to their students at a reduced price in certain schools
that qualify under the ESEA program?
A. Yes.
0- What is meant by ESEA, Mr. Smith?
A. This is the Elementary and Secondary Education Act.
Q. Can you expalin to the Court how that lunch program
operates under the ESEA program?
A. Yes. I’ ll do the best 1 can. First of all, we had to
determine what schools would qualify to receive funds,
Title 1 funds under the Elementary and Secondary, Edu
cation Act. We had to find the areas where there was a
concentration of educationally deprived children, not
only economically but educationally deprived. Of
course, to find the target areas, a survey was made on
the economic level; and in so doing, certain schools
became eligible. In other words, if you have twelve
schools, you find out how many children come from low-
income families and get the per cent of those children -
what that is of the total number of children in the Ad
ministrative Unit. If that comes out to be 56 per cent
or S3 per cent, all schools that have 53 per cent or
above would be qualifying schools.
Q. Now, do you have any schools in the Franklin County
Administrative Unit that qualify under the ESEA pro
gram?
A. Yes, we have five schools that qualify.
Q. That qualify for the lunch program?
239A
A. Well, for Title 1 funds. And under Title 1 funds, we do
have the lunch program.
Q. And what are the names of the schools that qualify?
A. The Cedar Street School, the Gethsemane School, the
Riverside School, the Youngsville Elementary School,
and the Perry’ s School.
Q. Now, in those five qualifying schools that you have
just named, what is the price of the lunch for each pupil
at those schools?
A. The regular price of lunch is 300
Q. Is that the countywide price?
A. That’s the countywide price.
Q. And what is the price of lunches at the eligible schools
for the pupils who qualify?
A. For the pupils who qualify in the eligible schools, the
price of lunch is 100, and for some it is entirely free.
Q. Depending on the economic situation of the family?
A. Yes.
BY THE COURT:
Q- Now, just a moment, for my information. You say there
are five schools which you have named that qualify
under this program?
A. Yes, sir.
2 4 0 A
Q. Do all of the children in each of those five schools
qualify for this reduced-priced lunch, or what are the
circumstances?
A. Only those who are educationally deprived or economi
cally deprived. That is, if the family makes less than
$2000 a year, the children would qualify for a lOe lunch,
or possibly a free lunch.
Q. Now, the family income, then, is fixed at $2000 or less
than $2000?
A. $2000 or less, yes, sir.
Q. Now, the other schools in the County which do not qua
lify, do any of the children in those schools? If they
come from economically deprived families, are they en
titled to the benefit of this program, these funds?
A. No, sir, not Title 1 funds.
BY MR. DAVIS:
Q. Now, Mr. Smith, along that same line, the policies for
the lunch program under the ESEA program are set by
agencies other than the Franklin County administrative
body; is that right?
A. Yes, sir.
Q. In other words, you administer the program that some
other State authority or Federal authority tells you to
administer; is that right?
A. Yes.
Q. Now, Mr. Smith, for the purpose of illustration, if - I
believe you said Riverside School is a qualifying school?
241A
A. Yes.
Q. And Louisburg High School is a non-qualifying school?
A. Correct.
Q. Linder the policy of the ESEA program, if one student,
one qualifying student, that is, from a family with an
income of less than $2000. who last year attended River
side High School transferred for next year, that is, the
1967-68 school year, to Louisburg High School, would
that child still receive his lunch at a reduced price or
free?
A. The regulations that we follow, one student would not
qualify if only one student transferred; that is, a qua
lifying student from a qualifying school transferred to
a non-qualifying school, these students would not qua
lify.
BY MR. CHAMBERS:
Q. Was your answer that “ these” students would not qua
lify?
A. A student.
BY MR. DAVIS:
Q. In other words, the lunch does not follow the child from
a qualifying school to a non-qualifying school; is that
correct?
A. That’s correct.
Q. Is that a correct statement of the policy?
A. Yes.
242A
Q. Would it make any difference whether there was one
child or a dozen or fifty?
A. Yes, it would make a difference.
BY MR. DAVIS:
Q. Mr. Smith, can you explain the policy of the State Board
to the Court?
A. Yes. If as many as 10 students transfer - that is, eli
gible students in an eligible school transfer to an in
eligible school, these 10 students would be eligible
for, say, lunch benefits or what-have-you, what they
were receiving in the school which they left plus an
additional one and one-half times that amount. For in
stance, if 10 transfer, IS more - you would have a total
of 25 students in an ineligible school that would be
eligible for some benefits under Title 1.
BY.THE COURT:
Q. Do I understand if 10 qualifying students transfer from
a qualifying school to a non-eligible school, that they
mot only carry with them sufficentt funds to maintain
status quo as far as they are concerned, but to take
care of additional students?
A. One and one-half times that amount.
Q. Do you learn that in Consumer Math?
A. Well, I learned it out of these directions right here (in
dicating a book) which were put out by - Title 1, Ele
mentary and Secondary Education Act, the State Depart
ment of Public Instruction.
BY THE COURT:
243A
Q. Mr. Smith, in the 1966-67 school year there was no
provision in the regulations for students to transfer
from non-qualifying schools to qualifying schools and
carry the lunches with them; is that correct?
A. No regulations to my knowledge.
Q. In other words, the 10 transferring, the one and one-
half rule applying to that was not in effect last year?
A. No.
Q. What you have just told the Court applies to the ’67-68
school year?
A. Yes.
BY THE COURT:
Q. Now, if you don’t have these additional eligible stu
dents in this school to which the 10 have transferred,
what do you do with that extra money that they ht»e
brought along with them?
A. It stays in the school they left.
Q. It’ s only in the event that they are eligible recipients
in the school to which they transfer that this extra
money goes along?
A. Yes, sir. It would not be any more money in the County.
It’ s just a matter of shifting the money from this school
to the other school. In other words, it would be less
money in this school where they left, but more money
in the school that they go to.
BY MR. DAVIS:
Q- Mr. Smith, have you had occasion to read the motion
2 4 4 A
that Mr. Schwelb filed on behalf of the Plaintiff-Inter-
venor in this cause moving for the removal of disparities
in the Franklin County school system?
A. Yes.
Q. Have you also had an opportunity to read the supporting
exhibits attached to that motion?
A. Yes.
Q. State whether or not, Mr. Smith, the figures included in
Mr. Schwelb’ s supporting exhibits and affidavits are
current at this time and correct.
A. No.
Q. They are not?
A. No.
RE-DIRECT EXAMINATION OF WARREN W. SMITH.
Trans, of Trial, Vol. II, pp 246-247; pp 261-263; pp 263-
264; pp 266-268; p 282; pp 285-286; pp 308-309; p 310; p 312
Q. Mr. Smith, the Franklinton City School Unit is a sepa
rate school unit from the Franklin County Administrative
Unit; is that correct?
A. \es. It's just as if it were in some other county.
BY THE COURT:
Q. Is it called a City Administrative Unit?
A. Yes. sir.
245A
Q. And the Franklin County Board of Education has no con
trol over the schools within the Franklinton Unit?
A. No control.
THE COURT: Does the Franklinton Unit contain the
Louisburg School?
MR. DAMS: No, sir.
THE COURT: Franklinton, then, is a City Adminis
trative Unit?
THE WITNESS: Yes, sir.
MR. DAVIS: Yes, sir, a separate unit.
THE WITNESS: But Louisburg is within the County
Administrative Unit.
BY MR. DAVIS:
BY MR. DAMS:
Q. The Franklinton City Administrative Unit is separate
and apart from the Franklin County Administrative Unit?
A. Yes.
Q. Mr. Smith, since the entering of the Interim Order in this
matter last July, what steps has the Franklin County
Board of Education or any of its representatives taken
to encourage teachers to cross racial lines?
A. First of all, the Board of Education called a meeting
with all principals and the advisory councils in each
246A
school and explained thoroughly the Interim Order, with
special emphasis that race shall not be a factor in the
hiring, and so forth, of teachers. And the next step, a
letter was sent to each teacher who was under contract
at that time giving them certain information on the open
ing of school and also explaining the part of the Interim
Order pertaining to teachers, and stating that if any
wished to transfer to get in touch with me at once.
MR. CHAMBERS: Your Honor, I would like to enter
an objection to the witness’ interpretation of this letter.
The letter is an exhibit in one of the defendants’ deposi
tions, and we would contend and respectfully submit (hat
the letter would speak for itself. And we think that the
interpretation now being given is not the correct purport of
this letter or the correct statement that is in the letter.
THE COURT: Well, I am interested in this aspect of
the evidence. If the question had not been asked by coun
sel, I would have asked it myself. I’ ll let him state his
interpretation of the letter, but then I shall want to see the
letter myself. The word that was used in the Interim Order,
as I understand it, was “ encourage.” Now, I want to know
what has been done - and you may elaborate on this - what
has been done not to inform teachers of the provisions of
the Interim Order, but what affirmative action was taken to
encourage teachers. All right, you may proceed.
A. (Continuing) Well, representatives from the Board of
Education contacted several teachers, and they were
able to fill several positions with teachers of the op
posite race. Several of the principals where vacancies
existed were told to go out and get a teacher, interview
teachers, and so forth, of the opposite race, taking into
consideration the best qualified person for the position.
And then this spring we had a meeting with all of the
teachers where I had some introductory remarks; tut
members of the Board of Education were each there.
247A
Mr. Yarborough explained thoroughly the Interim Order
and the criteria for the selection, and so forth, of teach
ers, and I believe, which was brought out in the testi
mony, used the words, “ You name it, you’ ll get it.
Q. Now, Mr. Smith, do you know who was instrumental in
obtaining the services of Mrs. Gertie Jones to teach in
Louisburg School for the 1966-67 school year?
4. Yes, sir.
Q. Who was that?
A. Mr. Edward Yarborough.
Q. And he is attorney for the Board of Education?
A. Yes, sir.
Q. Do you know what steps he had to take to secure her
services?
A. He called, I believed it was Detroit, to talk to her - she
was there on vacation - and contacted her there. I be
lieve this was some time in August of 1966.
Q. Do you know why Mrs. Gertie Jones was made a libra
rian and was not put in as a classroom teacher?
A. It’ s my understanding that a position of this type was
the only position she would accept. She did not feel
that she was physically able to get into the classroom
with a number of pupils.
Q. Now, Mr. Smith, what was the name of the colored teach-
248A
er at Bunn for the 1966-67 school year?
A. Mrs. Holt.
Q. And do you know who secured her services for the Bunn
High School?
A. She was contacted by two members of the Board of Edu
cation about this vacancy at Bunn and also by the as
sistant superintendent; and as it developed, she took
this position at Bunn.
Q. As a result of the efforts by two members of the School
Board and the assistant superintendent, she was hired
at Bunn School; is that correct?
A. Yes.
Q. Now, I believe a white teacher by the name of Mrs. At-
cheson taught at Riverside for the 1966-67 school year?
A. Yes.
Q. Will you tell the Court how: she came under the employ
ment of the Franklin County Board of Education?
A. She was up at the Louisburg school seeking employ-
% ment, investigating about if there was any opening there,
and our high school supervisor met her and brought her
to my office; and as a result of the negotiations be
tween this person, the principal in the Riverside School,
and the advisory council, she was secured for this posi
tion.
Q. Now. I believe a Mrs. Smith also taught at Riverside
school this past school year?
A. Yes. She is a white woman.
249A
Q. And Mrs. Atcheson is also a white woman?
A. Yes.
Q. Now, can you tell the Court, Mr. Smith, how Mrs. Smith’ s
services were secured by the Franklin County Board of
Education?
A. Yes. The assistant superintendent sought her out to fill
this vacancy that had occurred there in the Riverside
School.
Q. For the record, is Mrs. Smith that taught at Riverside
School any relation to you?
A. No.
Q. Now, Mr. Smith, I believe the Interim Order in this mat
ter was entered the latter part of July, 1966; is that your
recollection?
A. Yes.
Q. Now, from the date the Interim Order was entered, how
many days was it before school opened in Franklin
County; do you recall?
A. It was a little less than a month in which the teachers
would have to report to work.
Q' A little less than 30 days?
A. A little less than 30 days, yes.
Q- Now, at the time the Interim Order was entered in this
matter on the 27th of July, 1966, do you know how many
vacancies existed in the Franklin County school system
for teachers?
250A
A. I don’ t know exactly, but there were not very many
vacancies.
Q. Approximately how many, Mr. Smith?
A. I would say five or six vacancies.
Q. And from the time the Interim Order was entered in this
cause until school opened, or until the date the teachers
were to report for duty for the 1966-67 school year, how
many teachers were secured by the efforts of the Frank
lin County Board of Education to cross racial lines?
A. We were able to secure these four teachers that I have
just mentioned.
Q. I believe you are charged under the law with nominating
teachers to the Board of Education for hiring; is that
right, Mr. Smith?
A. Yes, sir.
Q. State whether or not race would be a factor in your
nomination of any teacher to the Board of Education for
employment.
A. No.
Q. Mr. Smith, in cross examination by Mr. Schwelb this
morning you testified that there are some students living
in the Youngsville area and some students living in the
Epsom area who are attending Riverside School in
Louisburg; is that correct?
A. Yes.
251A
Q. And state whether or not the students living in those
two areas are attending Riverside School under the ex
ercise of a freedom of choice?
A. Yes.
Q. Now, Mr. Smith, back in March of this year state whe
ther or not freedom of choice forms were mailed or sent
to parents of students attending schools in the Franklin
County Administrative Unit.
A. Yes.
Q. And state whether or not the forms, all of the forms, to
your knowledge were returned by the parents to the
Franklin County Board of Education.
A. To my knowledge, all of them have been returned.
Q. And to your knowledge, state whether or not e v e r y
choice indicated on the form returned was granted.
A. Yes.
Q. And the students will at this point attend the schools
requested for the 1967-68 school year?
A. They have been assigned to the school that was reques
ted.
Q. Now, Mr. Smith, as I understood the answer that you
gave in response to a question propounded to you by
the Court, you said in your opinion there would be no
trouble, or no problems I believe you said, administra
tive problems or otherwise, if two or more teachers of
one race were in the schools where the students are of
another race. Now, I believe you qualified that by say
252A
ing provided the positions could be filled. Will you ex
plain what you meant by provided the positions could be
filled?
A. Well, first of all, if the person is willing to teach in
these schools and, secondly, if they are in field.
Q. In field?
A. In field.
Q. In other words, teaching in the field in which they are
qualified?
A. In which they are certified to teach.
Q. You mean by that an English teacher teaching English?
A. Yes.
Q. Now, Mr. Smith, what are the State regulations for teach
ers who are teaching grades or courses outside of their
certified field?
A. They get a reduction in salary.
0 - Ho you know how much that is?
A. It's S10 per month.
0- Now. Mr. Smith, state whether or not during the 1966-67
school year there were positions within the Franklin
Countv Vdministrative Unit that were never filled with
teachers.
253A
A. Yes.
Q. Do you know how many there were?
A. Two. No, I beg your pardon, one.
Q. And state whether or not any applicant could be found
for that position.
A. We were not able to get anyone to apply for that position.
Q. When you say you were not able to get anyone to apply
for it, you mean you were not able to find anybody who
could teach in that position?
A. That is correct.
STATEMENTS OF COURT AND OF COUNSEL FOR PLAIN-
TIFF-INTER VENOR.
Trans, of Trial, Yol. II, p 315
Gentlemen, it is now 4:30. Unfortunately we will have to
cut your argument time from 45 minutes to 30 minutes to the
side, that is, unless counsel desire to.waive argument.
MR. SCHWELB: I am willing to waive argument if coun
sel opposite will waive argument.
THE COURT: Well, I am not going to suggest that coun
sel waive the argument. I will be delighted to hear from
either or both sides; and if you have to go, Mr. Schwelb, I
am certain some of your associates can fill in the argument.
254A
STATEMENTS OF COURT AND OF COUNSEL FOR
DEFENDANTS.
Trans, of Trial, Vol. II, p 364; p 366
THE COURT: Do you know of any county or school
system in the State of North Carolina that has had as much
publicity in the newspaper headlines with respect to acts
of so-called intimidation as has the Franklin County sys
tem in the past two years?
MR. TUCKER: No, sir. But I hate to be condemned by
newspapers on the amount of publicity they see fit to ren
der, because they are motivated by all kinds of motivation,
including selling papers. I can’ t agree that publicity in
the newspaper should condemn these people over here. I
think they should be condemned in court, if that is necessary.
THE COURT: Well, I mentioned that with reference to
the atmosphere that the newspapers seem to indicate pre
vails as a result of these various acts that have been re
ferred to.
MR. TUCKER: But just because we’ve got a few hot
heads - and I’ ll bet you any amount that there are just a
few that have caused all of the trouble - don’ t let’s punish
a whole county for it and deprive them of their freedom of
choice.
THE COURT: Well, you put your finger on one of the
great sadnesses of our society, and that is that the sins of
the few often work to the detriment of the many .That is one
of the unfortunate things.
255A
PORTIONS OF APPENDIX C TO PLAINTIFF-TNTER-
VENOR’ S PROPOUNDED FINDINGS OF FACT, CONCLU
SIONS OF LAW AND DECREE (CHRONOLOGY OF IN
TIMIDATIONS)
R.p. 395
1966:
July 27
Interim Order. Depositions in this
case taken during week of July 25.
August 1-15
The second choice period for Ne
gro students pursuant to the In
terim Order was held August 1-15.
August 6 or 7
Rev. Frank Wood, a white minister,
was fired after commenting favor
ably on the court’ s desegregation
plan and after testifying in this
action.
Second Wood dep.,
p. 7, 13
August 8
Shots were fired into home of Mrs.
Perry, who had no children in a
white school. This occurred during
the court ordered second choice
period, and the Franklin Times
immediately associated the inci
dent with the desegregation suit.
Willie Perry dep.,
p. 220
Franklin Times
8-9-66, Ex. to
second Rogers dep.
August 30
The opening of Franklinton schools
was delayed after a public meeting
in Franklinton concerning possible
further desegregation of schools.
Comments were made in favor of
Second Rogers dep.,
p. 157, 4-28-67
Franklin Times
8-30-66, Ex. thereto
256A
retaining the freedom of choice
plan for students, and against the
proposed transfer of additional Ne
gro children to white schools. A
petition signed by S84 persons in
opposition to further desegregation
was presented to the Franklinton
Board.
September 3
Residence of Branda Fogg and
Margaret Fogg shot into. They are
Negro students in Louisburg High,
a white school.
Margaret Fogg, a Negro, is called
derisive names at a white school.
September 9
Franklin Times reports that Frank
linton School Board rejects plan
to transfer additional Negroes to
white school; community disappro
val of the plan voiced at stormy
public meeting of School Board.
Raleigh News & Observer editori
alizes that no free choice is pos
sible under the unusually heavy
community pressure.
November
Margaret Fogg was sent a racial
note at school.
November 7
Threats of damage to Franklinton
school bus by KKK made; Frank
linton school officials suspended
Fogg dep., p. 7
Fogg dep., p. 12
Rogers dep. Raleigh
News & Observer,
9-10-66, ex. to second
Rogers dep. Franklin
Times, 9-8-66, et. to
second Rogers dep.
Fogg dep., p. 12
Second Rogers dep.
p. 162
Franklin Times
257A
use of the bus, Franklin Times
headline reads, “ FRANKLINTON
BUS USE SUSPENDED, LIFTED
FOLLOWING KKK THREATS.”
November 25
Failure of voluntary compliance
with desegregation guidelines
opens enforcement procedures by
HEW against Franklinton Schoolg.
December 1966
Rev. Latham, who testified on be
half of plaintiff-Intervenor in July,
leaves Franklin County as a result
of pressures and inability to ac
complish an effective ministry,
including better race relations,
under the circumstances.
1966-67
During the year, Alice Clanton,
one of two Negroes at a predomi
nantly white Edward Best High
School, was called racial names,
and racial names were written on
the classrooms. Alice later de
cided to return to an all-Negro
school.
1967:
February
Raleigh newspapers give extensive
coverage of reprisals against Isham
High, Wake County Negro with
children in predominantly white
school, including cross burnings,
12/1/66, Ex thereto
Second Rogers dep.
#2, p. 164
Franklin Times
12/ 1/66
Second Latham dep.
Clanton dep.,
p. 76, 83
A. L. Morgan
dep. 11, 45»46;
Exhibits 1-5
thereto; dep.
Mattie Harris dep.
258A
pollution of his well, and warnings
to him from officers to say his
prayer about having children in
desegregated school; Franklin
County Negroes knew of the case.
March
1967 freedom of choice period be
gins March 1, and ends March 30,
1967. Harassing telephone calls,
about 100 during the course of the
1966-67 school year, begin again
at the residence of Harold Cop-
pedge, the first-named plaintiff
in this action.
March 5 or 6
An explosion occurs at nighttime
at the Coppedge residence during
the choice period. Mrs. Bowden,
Mrs. Gardner, and Miss Ossie Spi
vey, neighbors, all heard the noise.
Dynamite was exploded at the
house of Leslie Joyner, a white
man who live across the street
from Buck Norwood. Norwood’ s
granddaughter who attended a white
school in Franklinton City, resides
next door to Joyner and is his
tenant.
April 11
Franklin Times reports that Fred
Rogers plans not to return as Su
perintendent of Franklinton schools;
associates matter with his dese
gregation stand and intensive com-
p. 16
Mrs. Coppedge
dep. p. 32
Mrs. Coppedge
dep. p. 30
Mr. Bowden
dep., p. 128
Mrs. Gardner
dep., p. 161
Ossie Spivey
dep., p 81
Franklin Times
4 11 67. Ex. to
second Rogers dep.
259A
munity opposition thereto. Rogers
had testified on behalf of plaintiff
once previously.
April 19 or 26
Harassing telephone calls are made
to the Coppedge residence.
April 20
Carolyn Jones, a Negro, was called
obscene and racial names in Louis-
burg High.
April 21
Carolyn Jones, a Negro, received
racial and obscene notes at a white
school.
April 25
Franklin Times reports on HEW
proceedings against Franklinton;
Buck Norwood’ s testimony about
intimidatory incidents: including,
dynamitings involving his grand
children at desegregated schools.
May 26
Shots fired into home of ftilev
Davis, whose brother and neigh
bor, James Davis, had two children
at desegregated schools.
July 13
Franklin Times reports that 20 pri
vate citizens visited a Franklinton
Board meeting to voice opposition
to transfer additional Negroes to
predominantly white Franklinton
Mrs. Coppedge dep.,
p. 35, 4 /27/67
C. Jones dep., p. 58
C. Jones dep., p. 51
Franklin Times,
4/25/67, Ex. 33
Coppedge trial
testimony
Franklin Times,
7/13/67, Ex. 35
260A
School; only five Negroes applied
this year.
July
From February to the end of July Coppedge trial
many anonymous phone calls have testimony
been received at Rev. Coppedge’ s
house. The callers breathe heavily
into the phone.
DIRECT EXAMINATION OF FRANK WOOD.
Oep. of Frank Wood, April 27, 1967, pp 6-S; p 11; p 13
Q. Turning to the Saturday that you returned from approxi
mately six days of vacation, did anything unusual hap
pen that day?
A. About ten o ’clock that night the Chairman of Deacons
came over to see me and said that the deacons had met
during my absence and were requesting me to resign and
that I was being asked to resign the following Sunday,
that is, the next day. And that, if I didn’t resign, they
would take it to the church in my absence, while I was
on vacation, during the time following the next Sunday.
0 . Did the Chairman of the Deacons mention any reason
why you were requested to resign?
A. He stated only rather cryptically, lack of effectiveness.
Made no other comments about it.
Q. On the next day, which would be a Sunday following
the visit at your home by the Chairman of the Deacons,
did you have an occasion to address the congregation?
A. When now?
Q. On the next day, the following day, Sunday, did you
261A
address the-
A. (Interposing) Yes, I did. Normally, I make the announce
ments before the service, and during the announcement
period I announced that I had been asked to resign and
was being asked to do that this day and that I inter
preted this as severe pressure to resign, but that I felt
that the responsibility for my leaving was not one which
the congregation should take, so I said 1 was inclined
to leave it in their hands and not to resign, but leave
the choice of whether I stay there or not up to them.
Q. During your tenure with the Centerville Baptist Church
did you have occasion to talk about race to the congre
gation on any other time?
A. I had preached one sermon about race back in January of
1966.
Q. What kind of reaction did you get from the congregation
them?
A. It was a favorable reaction.
Q. Did you have any spontaneous discussion from the con
gregation at that time?
A. Well, no more than you usually have as you walk out
the door. However, six weeks after that sermon the
Chairman of Deacons said that he had been thinking
about it and that he believed we should seat all persons
who came to service regardless of race, and that we
should even be prepared to welcome them into member
ship of the church. And he said this in the deacons’
meeting in February and the deacons decided that they
would inform the ushers that their opinion was that Ne
26 2 A
groes should be seated. And the deacons also recom
mended to the church that the church set up a member
ship committee to interview persons who apply for mem
bership in the church.
Q. Did you return to the church?
A. Yes. Under the constitution I had thirty days’ tenure
left, and I preached two sermons during those thirty
days, and in the middle—in other words, 1 preached
the first and the last Sunday-and in the middle 1 preach
ed a trial sermon at East Bend and was called to East
Bent on my last date or sermon.
CROSS EXAMINATION OF FRANK WOOD.
Dep. of Frank Wood, April 27, 1967, pp 16-17; pp 21-23
Q. And then subsequent to your testimony in Raleigh you
received an invitation from the Board to attend a meet
ing at Riverside School relative to free choice?
A. I remember receiving an invitation from the Board, yes,
sir.
Q. And you did not attend for some reason?
A. It may be that I was on vacation or going to be on vaca
tion.
Q. I mean you did not attend, however?
A. No.
Q. And, of course, the Centerville Baptist Church is a
2 6 3 A
congregational type churchy isn’ t it?
A. Oh. yes.
Q. The congregation rules and owns-and rules the church?
A. Yes, sir.
Q. And, of course, I guess it is affiliated with the North
Carolina State Convention?
A. Yes.
Q. And the ministers of a congregational type church, such
as a similar Baptist church, are employed by the con
gregation?
A. Exactly.
Q. And they are subject to discharge by the congregation?
A. Certainly.
Q. And another man made a statement to the effect that
you had desecreted the pulpit?
A. That was Paul Childers.
Q. Paul Childers. Is he a Baptist minister himself?
A. Yes, he is.
Q. And he lives close to the church?
A. Right.
Q. And is an ordained minister?
2 6 4 A
Q. So far as you know?
A. Yes.
Q. Do you recall any other names of persons who made
statements that you might in your words describe as
derogtaory remarks? If you can recall.
A. 1 can’ t recall any. Those are the ones that stand out.
Q. Now, on your first meeting or the first time that Mr.
Melville Griffin, the Chairman of the Board of Deacons,
called on you about resigning, you stated that it was
due to lack of effectiveness?
A. That’s correct.
Q. Do you remember that date?
A. That would be Saturday, August the sixth.
Q. And you told him that the congregation should take
the responsibility?
A. Well, I told the congregation that, the next Sunday, Au
gust the seventh, that I was inclined to let them handle
it instead of me resign.
Q. That’s right, in accordance-according to the govern
ment rules that the congregation does have the res
ponsibility of hiring and firing the minister?
A. Yes. The ministers can resign.
Q. But other than the responsibility for hiring and firing'
it is the church?
A. Yes.
265A
Q. Now. when you were called or entered upon your paro
chial or ministerial duties in April of 1965, were you
to serve at the will of the congregation?
A. That’ s correct.
Q. And that, you say, was your understanding at the time
you took it?
A. That’ s correct.
Q. And that is the standard procedure in the Missionary
Baptist Church?
A. Standard, that’ s right.
CROSS EXAMINATION OF ROBERT LATHAM.
Dep. of Robert Latham, April 29, 1967, pp 18-19; pp 25-26
Q. And you stayed in your position as missionary or—I
didn’t get the name.
A. Right.
Q. Missionary of the Tar River Association, until the ninth
of January?
A. That’ s correct.
Q. And then you left and entered the United States Army.
A. That’s correct.
Q. Had you previously been in the Army?
A . T h a t is right. E x a c t l y right.
2 6 6 A
Q. And so you made application for that position, also
several months before S guess?
A. Yes.
Q. Do you remember how long?
A. Yes, sir. I made application in August.
Q. In August?
A. That’s correct, without any definite commitment.
Q. Yes, but you did apply in August for a position in the
Corps of Chaplains, I believe they call it?
A. Yes, that’s right.
A . No.
Q. And sometime during the summer of 1966 you concluded
that the education—or you concluded that you should
move into an area where the education of the people
and—where your education and ministry could be more
effective ?
A. Where my education—where my training, education could
be more effective and where there was a more respon
sive group of people.
Q. Yes, sir. But you hoped the people with whom you
dealt would be more responsive to your efforts?
A. That’ s correct.
Q. And, of course, during that summer you felt that possi
bly the U. S. Army would be a good field?
267A
Q. In which to carry on your missionary activities?
A. That’s correct.
DIRECT EXAMINATION OF MARGARET ELAINE FOGG.
Dep. of Margaret Elaine Fogg, April 28, 1967, p S; p 7
Q. And your age and address.
A. Age fourteen; Route 3, Box 5-A.
Q. What town? What city?
A. Louisburg.
A. T h a t ’ s correct.
A. Our house was shot on.
Q. What time of day or night was that?
A. It was at night, I think a quarter after one.
Q. Were you asleep at the time?
A. Y es,I was.
Q. Were there other persons in the house at the time?
A. Yes.
Q. Who were they?
A. My mother, my father and my two sisters.
DIRECT EXAMINATION OF MICHAEL DAN MATTHEWS.
Dep. of Michael Dan Matthews, May 3, 1967, pp 3-7
Q. Where are you in school?
A. Edward Best High School.
Q. What grade are you in?
A. Tenth.
Q. How long have you attended Edward Best High School?
A. Since I was in the seventh grade.
Q. For the record, what is your race?
A. White.
Q. Mike, do you know Alice Clanton?
A. Yes, sir.
Q. Do you know Harold Coppedge?
A. Yes, sir.
Q. How long have you known them?
A. Since die beginning of this school year.
Q. Since the Fall of 1966?
A. Yes, sir.
Q. Do you know what grade Alice Clanton is in?
A. She is in the ninth.
268A
269A
Q. Do you kno w what grade Harold Coppedge is in?
A. He is in the eleventh.
Q. Do you have any classes with either Alice Clanton or
Harold Coppedge?
A. No, sir.
Q. Now, Mike, have you ever called Alice Clanton or Harold
Coppedge any dirty names?
A. No, sir.
Q. Have you ever given either one of them that is, Alice
Clanton or Harold Coppedge, any dirty pictures?
A. No, sir.
Q. Have you ever passed any dirty notes to Alice Clanton
or Harold Coppedge?
A. No, sir.
Q. Have you ever done anything to intentionally harass of
intimidate either Alice Clanton or Harold Coppedge?
A. No, sir.
Q. Now, Mike, have you ever—state whether or not you
have ever given any dirty hand signs to either Harold
Coppedge or Alice Clanton?
A. I have never given any dirty hand signs whatsoever to
either of them.
Q. State whether or not you have ever had any difficulty
with either one of them, that is, Alice Clanton or Harold
270A
Coppedge, concerning a dirty hand sign?
A. I had a disagreement once.
Q. And will you tell us about that?
^ ■ Well, we were riding home on the bus one Friday even
ing, and we got on, and Harold and Alice got off the
bus.
Q. Where did they get off?
A. They both got off at the same place, at his house. And
she walked across the road to her house. He was stand
ing in the path.
Q. In the path going up to his house?
A. Yes. And as the bus pulled off, I looked back and he
was giving a dirty hand sign.
0 Yik! that was Harold Coppedge:
V Yes, sit,
0 Now d'.,i •. .{> . v •• gM N H N iM t-did any
H ic ts a l& it tatvtttfe « hI I m H C cffedge take
daee atter ;hat concern« :itat uKufeacr
V " v vv Houvsy v> tt x e a. eaaversacian.
d v <v. -.V'C- we»e
V K ' »v>v 5.. Xfcsswe x j c s k s s -
v it'-. V' OV**, Va*.
IT
2 7 1 A
to his locker, and we went over and asked him if he had
given us a dirty hand sign, and he answered yes, he
had.
Q. And state whether or not the three of you went to Mr.
Alford, the principal of the high school?
A. Yes, we went to the office.
Q. About that ham! sign. And what, if anything, did he do
abooL that—Mr. Alford;
A. Mr. Alford—he cleared it up pretty good. 1 mean be said
he believed that it was jast maybe a mistake or some-
tin^ . a x that it should end there.
Q. State *hetfcr or not you had any conversation w ith
Haroid Cappeage .'•on: e-----r that incident after the tune
yo* v isiiec t:-tt at ins .office:
A. Be us: said ne was s x o . Be eotd; have made a tris-
take.
Q %it 5L1I zssc-
A. nari'ii lu u oeiee
G due. ia t » enr seei at" stutfcir.t a* thwart Bev.
_ un bcHut' hi ar mma u taratst fervit Vuwfcttifc v
Biici 1 amine
A- 'bi. Hr
Q- f a e yw. e- ’er fat e r :.e , 1 < < n *07 (A vw
z&surx w ascamartu. jr n
Best i :s i ieawu
A Taere -.-ere t ie i s t a r i 1*2^9* vt Be £ / * 0 * y
272A
were made about two years ago I think. Maybe not that
long. It was during the last summer before this school
year.
Q. And that was before Harold Coppedge or Alice Clanton
were students at Edward Best?
A. Yes, sir.
Q. Mike, about a month after school opened last fall, state
whether or not you ever called Harold Coppedge a bhck
s.o.b. from an automobile while he was getting off the
school bus?
A. I have never called him anything, sitting in an automo
bile, while he was getting off the bus.
Q. State whether or not you have ever ridden in an automo
bile with Larry Wood and followed the bus that Harold
Coppedge rides to school on?
A, 1 have never followed the bus home and I have never
ridden in a ear with Larry Wood.
0 Ho \ou tide the same bus to and froa school that Harold
Coppedge tides?
V \os, sit',
d Vtfcl VUvV CLuttOtt:
V \ es sm
X- vK\-v. an ’ Cv is»c- «©e>r students do
"*> -'"'S v \i» sa*vwa at A-*lce
. X Sst'lw -.
v V-v v ',> u* -Hcwsst ud
DIRECT EXAMINATION OF DEBBIE NASH.
Dep. of Debbie Nash, May 3, 1967, pp 25-28
Q. And how old are you, Debbie?
A. Fifteen.
Q. Where do you live?
A. lnthe Justice Community.
Q. is that in Franklin County?
A. Yes. it is.
Q. And where do you do to school?
A. Edward Best.
Q. What grade are yen in?
A. Ninth.
Q- Do ya*kn;>* Harold Oppe-ige aaa Alice Clan too?
A. Yes. s r . I a;
Q. Are *9 i n rvkooJ » id o e n ;
A. les. is .
0- -iu M t ne:ttr ir nw trier out y? ntti that it,
Alice O au c ar « it tie mmt yalr
« r i -m
A. Ales M en a n ivy*.
Q- Aju row vaor trt. • t» * r.i A C l* # * * '
274A
A. Three.
Q. Do you have any classes with Harold Coppedge?
A. No, sir.
Q. What classes do you have with Alice Clanton?
A. Home ec and general math and physical science.
MR. YARBOROUGH: What is that—home economics?
A. Yes, sir.
MR. YARBOROUGH: And math?
A. General math.
MR. YARBOROUGH: And what other one?
A. Physical science.
Q. (Mr. Davis), Now, who is your homeroom teacher?
A. Mrs. Whitaker.
0 And is Alice l luntoninyour homeroom?
V, Yes, sir.
V ' IVhhto, hutc tou ctet, vlurtag the wiatot Booths of
school, r u t tanscdl the wiwJe* aexi ta where Alice
t lumen Mis wult the uk\t of bvtho; ig Viiee in any
' i ws) ;'K ‘ • IviO-* , C X*vX' !Cr It was
• ‘h,Av\ K\
2 7 5 A
MR. CHAMBERS: ffe object to the question, to his
phrase.
Q. (Mr. Davis) M ere did Alice sit in—let’s ask it another
way. In the home economics class state whether or not
Alice sat next to the windows?
A. Yes, she sat right beside the window in home economics
and in general math she does, too.
Q. And what other course did you say you take?
A. Physical science.
Q. And does she sit next to the window' in physical
science?
A. No, sir.
Q. Debbie. ha%e yon ever called either Harold Coppedge
or Alice Clanton any dirty names?
A. No. I haven't-
Q. "He ion ever jr >e to either one of their any dirty pic-
ares:
A. N®. sir.
Q. IHiti im e'er fa m d ary f a } w e * to ekfat omt oi
n en t
A- V; j i .
Q- Have ym ever awe atytsen? t* <sr aefaidat*
vttrer Mace C isaryt v rar-nit 'j&pyziegt
A No. s r
276A
Q. State whether or not you ride the same school bus that
Harold and Alice ride?
A. We ride the same bus.
Q. And have you ever done anything on the school bus to
harass or intimidate either Harold Coppedge or A l i c e
Clanton?
A. No, sir.
Q. Have you ever seen any other student do anything,
either at school or on the school bus, either to harass
or intimidate either Harold Coppedge or Alice Clanton?
A. No, sir.
DIRECT EXAMINATION OF ROBERT EARL GARDNER.
Dep. of Robert Earl Gardner, May 3, 1967, pp 43-49
Q. How old are you, Bob?
A. Eighteen.
Q. Where do you live?
A. Castalia, Route 1. North Carolina.
Q. That in Franklin County?
A. Yes, sir.
Q. For the record, what is your race?
A. White.
Q. And where do you go to school?
277A
A. Edward Best High School.
Q. What grade are you in?
A. Twelfth.
Q. How long have you attended Edward Best High School?
A. Four years.
Q. Bob, do you know Alice Clanton and Harold Coppedge?
A. Yes, sir.
Q. How long have you known them?
A. Just this year. I knew Harold a little bit before this
year. I have seen him and all. I stay right close to
him. Not too close.
Q. And state whether or not they also attend Edward Best
School?
A. Yes, sir.
Q. Do you have any classes with Alice Clanton?
A. No, sir.
Q. Do you have any classes with Harold Coppedge?
A. Yes, sir.
Q. What class is that?
A. That is algebra.
Q. And who teaches your algebra class?
278A
A. Mrs. Whitaker.
Q. Do you know what grade Alice Clanton is in?
A. I think she is in the ninth.
Q. And do you know what grade Harold Coppedge is in?
A. He is in the eleventh.
Q. In the eleventh grade?
A. Yes, sir.
Q. Bob, have you ever called either Harold Coppedge or
Alice Clanton any dirty names?
A. No, sir.
Q. Have you ever given either Harold Coppedge or Alice
Clanton any dirty pictures?
A. No, sir.
Q. Have you ever given Harold Coppedge or Alice Clanton
any dirty or threatening notes?
A. No, sir.
Q. Have you ever harassed or intimidated either Harold
Coppedge or Alice Clanton?
A. No, sir.
Q. Have you ever had any misunderstanding or difficulty
with Harold Coppedge concerning a dirty sign?
A. Yes, sir.
279A
Q. Do you ride on the bus with Harold Coppedge?
A. Yes, sir.
Q. And Alice Clanton?
A . Yes, sir.
Q. And was that difficulty or misunderstanding concerning
the dirty sign—did that occur on the bus or at school?
A. On the bus.
Q. Would you tell us about that?
A. We were—we was getting off the bus and one of the boys
punched me and said—
Q. Do you know who punched you?
A. I think it was Mike.
Q. Mike who?
A. Mike Matthews. I think it was him, or Steve one.
Q. Steve who?
A. Steve Upchurch.
MR. SCHWEIJB: Steve who?
A. Steve Upchurch. And he had already got off the bus and
had got up the path a little ways.
Q- (Mr. Davis) Who is that?
A. That is Harold. And I looked up at the window of the
280A
bus and he was standing out there giving us the high
sign, or whatever you call it.
Q. Now, who was giving you the sign?
A. Harold was standing around in his path, giving it to us.
I don’t know whether he was giving it to me or not.
Q. In the path leading up to his house?
A. Yes, sir.
Q. And did you have any conversation with him at a later
date?
A. Yes, sir. The next morning I walked up to him in the hall.
Q. Where were you?
A. Walked up to Harold in the hall.
Q. In the school?
A. Yes, sir. And I asked him who was he giving the sign
to.
Q. And what did he say about that?
A. Just started out talking and all.
Q. What did he say?
A. One of the things he said if he wanted to I can put you
in hot water.
Q. And who did he make that statement to?
A. He made that statement to me.
281A
Q. Was anybody else present?
A. Yes, sir.
Ij. Who else?
A. Mike Mitthews.
Q. And what happened about the sign after that?
A. Our principal, Mr. Alford, carried us up in the office and
talked to us about it.
Q. Who was in the office with you?
A. Me and Harold was in there to start with.
Q. And did anybody else join you later?
A. Later on in the evening he carried me and Mike and
Steve and Harold up.
Q. Who carried you?
A. Mr. Alford.
Q. All right. Can you tell us what was said in the office
concerning the sign?
A. Well, he went--Mr. Alford went on and talked to us about
it, and there at the last Harold, he said, he apologized
about it. He said, “ I might have been wrong.” He said
he gave the sign.
Q. Who said that?
A. Harold. And he said, “ I’m sorry. I might have been
mistaken that you all gave it to me,” and something—I
don’t remember it all.
282A
Q. And did Harold admit to you that he had given you the
sign?
A. Yes, sir, he admitted it.
Q. Bob, have you ever seen the letters K K K written on the
radiators or on the blackboard at Edward Best School?
A. No, sir.
Q. Or in any other place at the school?
A. No, sir, I hadn’t.
Q. Have you ever seen the word ‘ Nigger’ written on the
blackboards or any of the desks or anywhere in Edward
Best School?
A. No. sir.
Q. Have you had any difficulty at all with Alice Clanton or
Harold Coppedge other than the time you have talked to
us about?
A. No. sir.
0 Sure whether or not >ou have ever called Harold Cop-
nedge a black s.o > '
V No. sir i -’ever called nm that
0 'c c ta e e-ev done armrnoe to nemurate or ha-
ass t c e Clanton jr iarm u C ccw oa e
t Vr. S4i te * en ‘
imutri fiiiwurnmm nr win rnr nnnffTW
j k 'O'*
283A
Q. And. for the record, what is your race?
A. White.
Q. Where do you attend school?
A. Edward Best High School.
Q. What grade are you in?
A. Twelfth.
Q. How long have you attended Edward Best High School?
A. Nine years.
Q. Yob have been at Edward Best for nine years.'
A. Yes. sk .
Q. Wanda, do you sn o* Alice Clanton?
A. Yes. sk .
Q. Ho* long ka*e yoa known her?
A. A year Since Cue h&eibeiis of school.
Q. Do yai Isaev *ee: emae sue is
A. She is a Ik ^ o bb .
Q. Be yea haw* son cists*** viti i»e"
A. V :. *x .
Q. Be y m m w Ear tut
A. Seventeen,
284A
Q. How iong have you known him?
A. Since the beginning of school.
Q. And you do have any classes with Harold?
A. Yes, sir.
Q. What classes?
A. Algebra two.
Q. Wanda, other than your algebra two class do you have
occasion to be in the room or have occasion to see Ha
rold Coppedge during the school day?
A. 1 see him in the halls going to classes, but that is all.
Q. And, of course, at your algebra class?
A. Yes, sir.
Q. Does that meet every day?
A. Yes, sir.
Q. Wanda, have you ever called Harold Coppedge a dirty
name?
A. No, sir.
Q. Have you ever called him any kind of bad name?
A. No, sir.
Q. Have you ever called him ‘ Nigger’ ?
A. Yes, sir.
285A
Q. Have you ever handed Harold Coppedge any dirty pic
tures or obscene pictures?
A. No, sir.
Q. Have you ever handed to him, or given to him, any
threatening or harassing or intimidating notes?
A. No, sir.
Q. Have you ever seen any signs or the letters K K K
written on any of the school property, such as the radi
ators or blackboards, or desks, or anything?
A. No, sir.
Q. Have you ever done anything to threaten or harass Ha
rold Coppedge or either Alice Clanton?
A. No, sir.
Q. Have you ever called Harold Coppedge on the telephone?
A. No, sir.
Q. Did you know he had a telephone?
A. No, sir.
Q. Have you, since the first of this school year, have you
ever made fun of Harold Coppedge or Alice Clanton in
any way?
A. No, sir.
Q. Do you hold any student offices at Edward Best?
A. No, sir.
286A
Q. How about any class superlatives?
A. Yes, sir. I got the most dependable out of the senior class,
MR. KENNEDY: I’m sorry. I didn’ t understand that.
A. I got the most dependable out of the senior class.
Q. (Mr. Davis) Do you have any association with the
school guidance counsel?
A. Yes, sir. I am her--I classify as the guidance secretary.
I help her write letters to colleges and all, and type up
things.
RE-DIRECT EXAMINATION OF WANDA LOU PARRISH.
Dep. of Wanda Lou Parrish, May 3, 1967, p 94
Q. Wanda, Harold Coppedge is a member of the Glee Club,
isn’ t he?
A. Yes, sir.
Q. Of course, you know that Franklinton schools are in a
separate school unit from Edward Best School and
Franklin County Schools?
A. Yes, sir.
Q. Wanda, have you ever heard Bob Gardner or Larry Wood
or anybody else call Harold Coppedge or Alice Clanton
dirty names?
A. No, sir.
Q. Or make threatening remarks to them?
A. No, s ir.
287A
STIPULATION OF COUNSEL.
Dep. taken May 3, 1967, p 95
It is stipulated that Clara Jean Brown, white, a ninth
grade student at Edward Best High School, would testify
that she did not at any time, while in the presence of Alice
Clanton, put a cloth to her own nose or otherwise indicate
that she was smelling something bad.
DIRECT EXAMINATION OF SHERAL FRAZIER.
Dep. of Sheral Frazier, May 3, 1967, pp 95-99
Q. (Mr. Davis) How old are you?
A. Fourteen.
Q. Where do you live, Sheral?
A. White Level.
Q. And is that in Franklin County?
A. Yes, sir.
Q. What is your address?
A. Route 2, Louisburg.
Q. What school do you attend, Sheral?
A. Edward Best High School.
Q. What grade are you in?
A. Ninth.
Q. What is your race?
A. No, sir.
288A
Q. Do you know Alice Clanton?
A. Yes, sir.
Q. How long have you known her?
A. Just ever since she’ s been going to Edward Best.
Q. This school year?
A. Yes, sir.
Q. Do you have any classes with her?
A. I have all of my classes with her.
Q. All of them?
A. Yes, sir.
Q. And are you in the same room with Alice Clanton?
A. Yes, sir.
Q. In every class. Do you know Harold Coppedge?
A. Yes, sir.
Q. Do you have any classes with Harold?
A. No, sir, except for study hall. No classes.
0- Are you all in the same study hall?
A. Yes, sir.
Q. Is that a supervised study hall?
A. White.
289A
Q. Who supervises it?
A. Mr. Alford,
Q. That is the principal?
A. Yes, sir.
Q. Sheral, have you ever called Alice Clanton or Harold
Coppedge any dirty names?
A. No, sir.
Q. Have you ever given Alice Clanton or Harold Coppedge
any dirty or obscene pictures?
A. No, sir.
Q. Have you ever given Harold Coppedge or Alice Clanton
any threatening notes?
A. No, sir.
Q. Or dirty notes?
A. No, sir.
Q. Have you ever in any way intimidated or harassed Ha
rold Coppedge or Alice Clanton?
A. No, sir.
Q- Where do you sit in your math class?
A. On the second row, third seat.
A. Yes, sir.
290A
Q. Is that the second row from the window?
A. The second row from the door.
Q. From the door?
A. Yes, sir.
Q. And is that across the room from the windows?
A. Yes, sir
Q. Hive you ever had occasion in your math class, during
the cold days, to raise the window?
A. Yes, sir. I have raised it.
Q. And why did you raise the window in the math room?
A. Well, people would sit beside of me, always complain
ing they wanted me to raise it just because we are hot.
It gets sort of stuffy. Hers is the hottest one.
0- Have you ever raised the window to harass or bother
Alice Clanton in any way?
A. No, sir.
Q. Have you ever called Harold Coppedge on the tele
phone ?
A. No, sir.
0 Have you ever spoken to him over the telephone?
V. No, sir.
Q. Have you ever talked to las mother os the telephone?
291A
Q. Have you ever seen the letters K K K anywhere at Ed
ward Best School?
A. No, sir.
Q. Have you ever seen the word ‘ Nigger’ written on the
blackboard or on the radiators or desks or anything of
that nature?
A. No, sir.
Q. Have vou ever seen any other student at Edward Best do
anything to harass or intimidate Alice Clanton or Harold
Coppedge?
A. No, sir.
DIRECT EXAMINATION OF JERRY WAYNE BOONE.
Dep. of Jerry Wayne Boone, May 3, 1967, pp 116-119
Q. How old are you, Jerry?
A. Seventeen.
Q. Where do you live?
A. Pruitt Town, right at the edge of town from Louisburg.
Q. In Franklin County?
A. Yes, sir.
Q. And what is your race?
A. White.
Q. WRere do you go to school?
A. No, sir.
292A
Q. Have you always gone to Edward Best High School?
A. Yes, sir.
Q. How long have you lived outside of Louisburg where you
now live?
A. I’d say about two or three years.
Q. Where did you live before that?
A. Justice. It is about three miles south of Louisburg. I
mean east.
Q. And you went to Edward Best while you were living in
Justice?
A. I went to Justice, but that was the community--but that
was Edward Best community.
Q. What grade are you in?
A. Eleventh.
Q. Do you know Alice Clanton?
A. Yes. sir.
Q. Do you have any classes with her?
A. One. 1 have a study hall.
Q. Have a study hall with her. Do you know Harold Cop-
pedge?
A. Yes, sir.
A. Edward Best High School.
293A
Q. Do you have any classes with him?
A. Yes, sir.
Q. How many do you have?
A. Let’ s see. I have a study hall and English and typing
and algebra II.
Q. Jerry, have you ever called either Harold Coppedge or
Alice Clanton any dirty names?
A. No, sir.
Q. Have you ever shown either of them any dirty or obscene
pictures?
A. No, sir.
Q. Have you ever written them any threatening notes?
A. No, sir.
Q. Have you ever harassed them or intimidated them in
any way?
A. No, sir.
Q. State whether or not you have ever intentionally bumped
into Alice Clanton in the hall of Edward Best high
School?
A. No, sir.
Q. Have you ever seen any signs with the letters K K K on
it or seen those letters written on any of the school
property at Ed ward Best?
294A
Q. Jerry, how do you get to and from school every day?
A. Robert Flemming.
Q. And who is he? Who is Robert Flemming?
A. Well, he is a ball coach at Edward Best and--let’s see
the seventh and eithth grade teacher.
Q. A teacher at Edward Best?
A. Yes, sir.
Q. jerry, how many colored students attend Edward Best
School this year?
A. Two in high school.
Q. Have you made your choice to where you will attend
school next year?
A. Yes, sir.
Q. And where did you choose?
«
A. Edward Best.
0 Why did you choose to attend Edward Best for next
year?
4 , Hell, the main reason, because 1 have always gone there
and 1 just want to go hack. That is w k m a ll * y friends
ft ',
0 IN' ww v.vw et a-ot'o. Fraud,.va Ceuao r-.tgfc Scĥ i
-,ha, is closet .o w v 'cere t 'x : ' c « ara o e s
A. No, sir.
2 9 5 A
Q. How far is Louisburg from your home?
A. Nine miles.
Q. Jerry, have you attended Edward Best High School since
moving so close to Louisburg?
A. Well, like I said before, I started down there and that is
where aU my friends went and I had a ride back every
day. so that is where I want to go.
Q. Have vou been riding with Mr. Flemming the whole time ?
A. Yes, sir.
Q. Have von ever done anything to harass or intimate either
Alice Clan ton or Harold Coppedge?
A. No. sir.
A. Yes, sir.
STIPULATIONS OF COUNSEL.
Dep. tasen May 3. i % 7 . pp 171-172
It is stipulated that Larry is an eleventh grade
student at Ed art Bess Higtt School: that he is a white boy;
that ae wesdd testify that he din oot call Harold Coppedge
anv bad naome s: aid that he would farther testify that be
did cot call Barela Ccopeage a black s.O.B. from an auto
mobile as Hart Id Ceppeage was getting off the school bos,
and that be has sot ca iie ; Harold C tppedgfc a black S.O.B.
at any time.
It is stipulate! that PiiLtp Lhartpix* would testify that
be is a sitaecm-year-ekc *iwe steiest is the math grade at
Ed*are Best ELrr cirxi esa: at o&c oe»w raised the
wiowd* i i i n t k a s w w is itr the jnrpv&e of harassing or
296A
harming Alice Clanton; and that he had never done anything
to harass or intimidate Alice Clanton or Harold Coppedge.
It is stipulated that Don Boone would testify that he is
a white tenth grade student at Edward Best High School;
that he would further testify that he had not put his hand
over his nose, or otherwise indicated, in the presence of
Alice Clanton or Harold Coppedge that he smelled any bad
odor.
It is stipulated that Steve Upchurch would testify that
he is a white eleventh grade student at Edward Best High
School; that he has never put his hand to his nose, or other
wise pretended to smell any bad odor while in the presence
of Alice Clanton or Harold Coppedge; that he would further
testify that he had not given any hand signs of any kind to
Harold Coppedge or Alice Clanton and that he did not, while
on the school bus and in the presence of Alice Clanton or
Harold Coppedge, discuss a cross burning at the Coppedge
home.
DIRECT EXAMINATION OF MRS. JOYCE GRIFFIN.
Dop of Mrs. Jovce Griffin, June 2. t% 7. pp 19-21
0* Row loot (mw yoo taught at Edwrat4 Best High School,
Mis Cuffin '
̂ Hns vVUH'lvtv's secede
C I V iv-v-* i Sijvre-.ft u ‘ : ■. rssst - jn School by
m iv cv V Ctaoeeu'
V
V V V si*
V 'v- ' 'v
V
297A
Q. Ending two days ago?
A. First year English.
Q. What grade is Alice Clanton in?
A. She is in the ninth grade.
Q. Do you have her in any other classes or any other period
during the day. other than English?
A. No.
Q. Do you know aaotner stalest at Ed»aro Best by the
name o: HaroM D, Ctppe-ige:
A. Y es.
Q. Ete mm isame r m n ary z-hm esr
A. Yes. I leant inn Lffidtsk.
, * ua. snare iagitsi:
A ErsYsr e e a . unnr U E i a
( I k w «a*e m lest:« lamut Bvwe
eue.t aner u s a SagSwr'
A, Yes.
A I^ a c^ -ss .
_ai v » - e l te **at w ief i t ■ & * * * i {* '*
298A
made during the past year?
A. She has been a very good student, a “ B” and “ C” stu
dent.
Q. Now, Mrs. Griffin, have you had occasion to observe
Alice Clanton in and around Edward Best High School?
A. Yes.
0. And in her association with other students?
A. Yes.
0 From your observation of Alice Clanton with the other
students, how has she gotten along with the other stu
dents ?
V Yen well. You want ate no give exanfies:
0 Yes, .sa 'is .
4% W l4 Wt 1 db*Y fcawe swell jyyamnity for
stric tly.. Mac academic
.uwi shut ts *Mt ||fk Ihmc c i m m k c a fess. for in-
s^a.tvv * h r r r n V r TiwirTWj^ntitfi rfcr nUrr ~nrUn>c
a v vsittc s.otc 4rte • a > a ter am: mate her
.■ v aoie o v s v ; . o* -er os i m me halls,
-W-
Yu* d|| ailM w*. «m aspe siuwiaec » -
is \ vssisCw&* -e jn*a»es
auMMB -*s - dice
299A
what is right.
Q. Mrs. Griffin. hare you ever intentionally singled Alice
Clanton oat for any unusual punishment:
A. No.
Q. In class:
A. No.
Q. Have e 'e r tc ̂onr Ness cwerly sarcastic
to Alice C stt.tt :
A . No. it r a n :'c l a* y o t im a r :
Q. Yes. m at.
A. No.
HBETT EkWBSATM'' '3* 17YCE / TF1 ’>
Dep :: t o r"-ie _ r r :n . . uxe - - i c 25- 24.
Q. t o V ~tt a -.tut ummw tr̂ et 3ae«A
srffcaEncri amt" n s s e f as £ stwtear'
A . Ns. ie toes imr. I la re -e a it 1 ant w w i m '
Q. Yes na an
A. Se-en. :.met I tare m x iamtrf ant u-t m f**x
W b Aoe fw a a il g3«£ •*#'-
r-=- ran tsr. - is* at c .. ' y >- < *.\K w - ,
that ae lax Kt e sn e : mt ie mnwi '>»
it- _ Be warni jeaor w tier -ft laart n *v«*; 'V r *
of toes 5e pat liiai ksssi i» jam
300A
DIRECT EXAMINATION OF ROBERT B. FLEMING.
Dep. of Robert B. Fleming, June 2, 1967, p 51
Q. What is your profession, Mr. Fleming?
A. Public school teacher.
Q. And where do you teach school?
A. Edward Best High School.
Q. How long have you taught at Edward Best High School?
A. I have just completed my fourth year.
CROSS EXAMINATION OF ROBERT B. FLEMING.
Dep. of Robert B. Fleming, June 2, 1967, pp 77-78
0- How about Alice Clanton-as far as her attitude?
A. 1 haven’ t talked to her.
0 Do you have any impression of her?
V ‘L-.l no" , irotH ,rv ooservatxoa { * calc saw that Alice
bas a sotnewfcart nay be % hide bit M e n t personality
wbi H m U . She is ea$y i t jet atooj t t iI i. according
-o - v ' ' v • e rose -ee me rciev st-.meats -eceiving
Vv . h wgn v \s s r to u . te r jssrceim? * Tea I »alk-
vV ' • tav«- tcv aaus iv v tee « a eisrES.
Q N Ai v ,v>e- ee -te s x o r s eee i ttc -_:ce ta a
sva.v»< -a.'.-te- n n u i sc
J
C A Jh
I n the
Inttefc (Emirt of Appeals
Foe the F ourth Circuit
No. 11,794
H arold Douglas Coppedge, et al.,
and
U nited States of A merica,
by R amsey Clark,
Attorney General,
vs.
A ppellees,
The F ranklin County B oard op E ducation,
a public body corporate, et al.,
Appellants.
APPEAL PROM THE DISTRICT COURT OP THE UNITED STATES
FOR THE EASTERN DISTRICT OP NORTH CAROLINA
DITlSION-CrnL
BRIEF FO R P L A IM IF F S- APPELLEE*
nzsrj 1
, ' ' ■ ■: A 0 ■ r~ - A . ;rT
fj-fy.-j S i l l " - • ;3'■'•’Jr-.T
■J'J KTSO J: Jo f
' .av
;■ ....yro'T>' C/t't'-K
'
m a ! f
3&S-S--
- SSK % (
1st the
llxntvh Stairs ©curt of Appals
F ob the F ourth Cibchit
No. 11,794
H arold Douglas Coppedge, et al.,
and
U nited States of A merica,
by Ramsey Clark,
Attorney General,
A p p ellees ,
vs.
T he F ranklin County B oard of E ducation,
a public body corporate, et al.,
A ppellants.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION-CIVIL
BRIEF FOR PLAINTIFFS-APPELLEES
Statement of the Case
This appeal is brought by the Franklin County School
Board of Franklin County, North Carolina, seeking reversal
of an Order entered by the District Court on August 17,
1967. The court found that a “ freedom of choice” deseg
regation plan was ineffective to disestablish the segregated
school system and ordered the Board to file a desegrega
tion plan utilizing a unitary system of non-racial at
tendance zones, consolidation of grades, schools or both
sar." ~I
V - • v " n t ^ • * r’ f
rm O i f A ■ ■ m%
.oX
■■■" ' ;v! ' ■ ■
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, ■••.!,>I |;A7s ? VI
2
which would, in fact, desegregate schools, faculties, facil
ities and eliminate or upgrade inferior schools.
The plaintiffs. Negro parents and children of Franklin
Countv. North Carolina, filed, on December 8, 196o, m the
United States District Court for the Eastern District of
North Carolina, this class action seeking injunctive rehe
a-ain^t the defendant Franklin County Board of Educa
tion in operating a racially segregated school system:
Dlaintins also filed a motion for preliminary mjunetion
s e e m the admission o f Negro school children to for the
second nnr of the W m m school ynar fia-Sa)--
Qh -Qm arv 3 L S3® , upon motions of the Aitrm ey
^ x i Turned States, the T r a n M ^
tie- ~xrre£ ' . • t : 1 ' E •' - ' " T 1
I n and me n o r m msmxers of me 1 ^
a B S ^ c s r - m m .
wmsimr T a rn m sn l
- ___ _g nsfec tn- 3t— £ * xe&sEzaeszn m mm earn*.
K f e ' n T a c s s •» xr T & isM & sr-Z ^
vxu- s=— - 3mr t is se ssn msamr̂ r xt me « « « -
mmshn= t* T-ser- rm*^rrv at ******
« . « ____ r « u m i ^ m * ^ ® * * ^ * * & * ■ * > ? .* * '
~mr- h r -p n gn ssa sr- -m 'a** • ***
nir i t -fe isggr JSBISSSgC' ^ t f e * 8* ^ - ̂ - ■• 'f ' ' '
sag x J ŝaassss*- * 3 3 -.
Sefeess*®-
s»> < S -rS »/ ' * ( ' '
• 'sS ''- ' r #* — — '■'’ / , //
a = i i n =T s » ifeg- z z & .- e ? - — ■ ’ %* * * > " '
,j;.. i!‘': . .. ‘{- .
>> 1 ' •’ » "JO "T
OWi'Jird ; i o rv:
si
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5 fi-'-S) II -T M a >0
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. J . f . v . , , ; . - , , i-ifiir r i - A A j , a . ’P M..
,m;a [ ; : ‘ !ir ■....• tjfi t M •
'S ' A ' i>A •' ' ; f ...
!'?■>: i ■- A ' ■; . . A i
rd P V d - T A. ; - . . , . . . . , .■ ■ . . .
• ' j ■;>!
i ‘ " O f ? - t; a t 'i jf jB jt ' . \ h *f.! • . f j i
r!>c y;!hu^;:h:-orymq *m jfrf •- M- . >
i , ! >*i ? ' j * o D t. jr a iH l o ' t a S - j f ! * r jt,
v - am -4,; . ,..; m
?■ »*>< jttT'fP'i ■ e i -v 3 : : ., . <•,
fcaM:.M.AVtMM;M0u.5!M{i =a OT«;.V\ ; :■ rot ;.,v ..~r;
S*i’*r mma h.fT0O'!X> Mil ■ > 'A":'if] -a? ■'. .sq*} ■ ....
i : ' -Mi: : : ’q . " M ' , M
AA " U ". Mt.r.; Mo'i 3*>;loa jf̂ "A.;;M;.. ;..fj.A'
>181
- • . . . . ......................
.
... a a : .. AI MA,vJ A,:„
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3
At the hearing held on July 25, 1966, the principal issues
raised were the adequacy and pace of faculty desegre
gation and the adequacy of the “free choice” method of
desegregation in a community which was openly hostile
to desegregation and in which acts of intimidation had
taken place which inhibited the exercise of choice by Negro
students and their parents.
On July 27, 1966, following extensive conference between
the court and counsel for all parties and on the basis of
testimony and exhibits presented, the District Court en
tered an Interim Order (162a-166a) requiring the School
Board to conduct a special freedom of choice period for
Negroes, since the Court had found that only 23 Negroes
had elected to transfer out of all Negro schools for the
1966-67 school year during the earlier choice period. The
Board was further enjoined from considering race in
staff and faculty assignments and employment (D. App.
6A). The School Board was ordered to present to the
Court on or before August 10, 1966, objective standards
for the non-discriminatory employment, assignment and
retention of teachers and other school personnel and to
advise the Court of the number of teachers and students
assigned to schools for the 1966-67 school year in which
their race was in the minority.
After the School Board had filed its plan for the em
ployment, assignment and retention of teachers and other
school personnel (D. App. 43A), plaintiffs and United
States filed their respective objections thereto. On April
10, 1967, plaintiffs and the United States moved the court
for an order requiring the School Board to eliminate
disparities between predominantly white and Negro schools
and to require the School Board to implement an effective
desegregation plan; the motions alleged that fear, caused
threats and intimidation, was preventing Negro parents
"1*
; I , 9 ' -■ ■;.£( ff
- ■'» 'w.Of'ii:- . ' •»*;;
li) :V"V;V. • ' - -f-f 'r ' \ : '
■k . ' ■■= : U ‘ Im
(■- s r - ' f c >’? f
'
«"■ ' 59'C 9: ,-S
k9.
4
and children from exercising an uninhibited “free choice” ;
that defendants were continuing to employ and assign
teachers and school personnel on a racial basis; that the
School Board was continuing to perpetuate inferior schools
for Negro students; and that defendants were continuing
the dual transportation system for Negro and white schools
(182a).
On August 17, 1967, the court below entered its Order
and Opinion (D. App. 6A-37A) after a full evidentiary
hearing on July 25 and 26, 1967.
The Court found as a matter of law that the “ freedom
of choice” plan used by the Board was totally ineffective
to disestablish the segregated school system (28a-32a) and
ordered the Board to submit a plan for the assignment of
students on the basis of a unitary system of nonracial
geographic attendance zones or a plan for the consolida
tion of grades, or schools, or both; to refrain from pub
licizing the names of and addresses of pupils assigned to
any school; to disregard race in the hiring, assignment,
reassignment, promotion, demotion, or dismissal of teach
ers and other professional staff, except to eliminate past
discriminatory patterns; to take immediate affirmative
steps to accomplish substantial faculty desegregation for
the 1967-68 school year; to eliminate racial discrimination
in any service activity or program (including transporta
tion, athletics or other extra-marrieular activity) ; to cor
rect disparities in tjaildings. ec uipment: and student over
crowding between schools formerly designated aH-white
and all-Negro schools D Apr ?2A-v7A).
The Board hied a notice af tppssfc. or August 25- 1961
and also a motion tt stgry execution of certain port..ore of
the orier peaidung enioen. I'd he
On September a WSJ. the B5srrks d on 't h*ao*#d tiae
3 - - A • i t : t : - - • c • ec t o d o r : t : > ; Id r. /
5
the plan and reports required by the order until 30 days
after March 1, 1968, or 30 days after decision on the appeal
by the United States Court of Appeals for the Fourth Cir
cuit, whichever event should first occur (271a).
After Notice of Appeal was filed, a group of Negro par
ents moved to intervene as defendants in this action in
the court below; subsequently a similar petition was filed
by this group with and is presently pending before this
Court. Plaintiffs have filed a response thereto opposing
such petition as an untimely attempt to relitigate the deci
sion below.
Statement
Since the School Board failed to summarize all the
salient facts presented to the court below, plaintiffs deem
it necessary to present this additional Statement of Facts
to this Court.
Composition of the Franklin County School System
There are twelve schools in the Franklin County school
system. Until the 1965-66 school year, five schools were
officially designated as Negro schools—attended solely by
Negro students and staffed exclusively by Negro teachers
and administrators—and seven were officially designated as
white schools—attended solely by white and staffed exclu
sively by white teachers and administrators.
A study was made on May 10, 12, 1967 of the Franklin
County school system by William L. Stormer,2 a school
2 Mr. Stormer has a B.A. degree in Education from Youngstown Uni
versity and an M.A. in Education Administration from the University of
Wyoming. He did additional graduate work beyond the Master Degree
in Educational Administration with an emphasis on school planning.
Presently, the nature o f Mr. Stormer’s work is the administration of
school construction programs under Public Law 815; his primary job
is to examine school construction projects, review and approve them both
in the money aspect and construction where it pertains to educational
6
construction planning expert who is Assistant Chief of
School Construction, Division of School Assistance, United
States Office Education (1036 et seq.).* 3
Mr, Stormer testified that the schools in four areas of
Franklin County (Louisburg, Bunn, Youngsville and Gold
Sand) are organized in groups and clusters of two or three;
one is a traditionally white school and one or more tradi
tionally Negro. Every Negro school is within a mile or so
of a predominantly white school covering the same grades.4 * *
In two other parts of the county—Epsom and the general
area of Edward Best High School and Edward Best Ele
mentary School—there are white schools but no Negro
schools. Several of the high schools are very small (Epsom,
a white high and elementary school, had only 72 pupils
enrolled in grades 9-12 for the 1966-67 school year), and
only one or two are large enough to make diversified edu
cational opportunities available to students at a reasonable
cost per pupil (1040a-1042a).
Mr. Stormer further testified that he knew7 of no educa
tional advantage to the maintenance of “pairs of schools” ,
planning. He has worked with the Bureaus of Education in the State of
Ohio and the State o f West Virginia in school plant development and
constructions. Mr. Stormer has reviewed or inspected several hundred
school buildings throughout the country and in a number o f different
states (1036a-1038a).
3 The School Board declined to cross-examine Mr. Stormer at the time
of the taking o f his deposition (1095a) or at the trial, and his testimony,
is for the most part, uncontradicted.
4 By Mr. Schwelb:
Q. Where you referred to schools located close to one another,
serving the same grades and same types of schools, what particular
schools were you referring to, Mr. Stormer? A. Well, Youngsville
[white] offers grades one to twelve. Youngsville Elementary [Negro]
offers grades one to eight. Perry’s [Negro] offers grades one to
twelve. Gold Sand [white] offers one to twelve; Louisburg [white]
is one to twelve, and Riverside [white] is one to twelve, and in the
same approximate area within this area is Cedar Street [Negro],
which is one to seven (1041a).
ft
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7
offering the same grades which are located in the same
general area. He knew of several disadvantages, including
the sacrifice of program diversification, the incurrence of
higher than necessary per pupil costs, and inefficient utili
zation of school plants and equipment (1042a-1045a). Hav
ing studied hundreds of school districts in many parts of
the country, nowhere, he testified, was the “pairs of schools”
tendency so pronounced as in Franklin County (1040a).
Segregated athletic and other extra-curricular activities
have also been left undisturbed. Mr. Stormer also testified
that no undue practical difficulties would be presented were
the School Board to adopt a program of school consolida
tion, altering the educational programs in schools situated
in close geographic proximity such that different grades
would be taught in each, and coupling this reorganization
w||i a plan of pupil assignment on the basis of residential
proximity. This approach would provide an effective in
ducement for correcting existing disparities in all-Negro
and wholly and predominantly white schools, and provide,
as well, a context in which substantial student and faculty
desegregation could be achieved (1079a).
Unequal Facilities and P rogra m s
Reports filed by the School Board with the State Board
of Education presents striking statistical information which
shows that the Board tolerated substantial inequalities be
tween the segregated schools. As the following table shows,
previously all-white schools are substantially superior in
buildings and equipment to all-Negro schools; they have
little or no problem of overcrowding, smaller classes, more
library books p er pupil and more acreage per pupil; the
school buildings themselves have a substantially higher
valuation, and their equipment and facilities are newer,
m better repair, and more plentiful.
8
1965-66
Valuation o£ School
Property per pupil ..................
Acreage of School
Property per pupil .................
Pupil-classroom Ratio ...................
Library Volumes per pupil .........
Pupils per teacher (based
on enrollment) ............................
Students per school bus....................
And see: Stormer (1053-a-1063a)
P red om in an tly
W h ite Schools N egro S chools
$913.44 $285.18
.04 .01
22.8 to 1 34.9 to 1
9.05 4.0
24.9 31.8
43 64.1
Despite improvements during the 1966-67 school year,
attributable primarily to federal financial assistance under
the Elementary and Secondary Education Act, serious dis
parities remain.5 All of the wholly or predominantly white
elementary schools are accredited by the State of Noith
Carolina. No Negro elementary school is accredited.
The problem of overcrowding in Negro schools and the
continued maintenance of small underutilized white schools
is so expensive that teachers’ salaries are $350.30 pei
pupil in some classes—Epson High (white) as compared
to others—$188 at Bunn (white), $231.09 at Perry’s (Ne-
5 In 1966-67, the School Board had received federal assistance in the
form of portable classrooms, library books, and equipment of various
kinds. The Board’s reports to the State Board o f Education for 1966-
disclosed that these additions reduced the disparities in several_ of these
categories, in particular valuation of school property per pupil an 1 -
brary books per pupil, as follow s:
1966-67
P redom in an tly
W h ite S chools N eg ro S chools
Valuation of School
Property per Pupil .................... $991 $
Library Books per Pupil ................ 9-3 '
Pupils per Bus ................................. 40-2 54‘
In other categories, including acreage per pupil and teacher ratio, the
disparities remained essentially unchanged from the 1965-66 school year.
8
whss -̂>:
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9
gro) and $2350.09 at Riverside (Negro) (1566a). Yet,
the Board buses some Negro students 13 miles to River
side High School which is overcrowded.
There are also disparities in course offering,6 extra
curricular activities and athletic facilities7 in the separate
schools.
1 . Pupil Desegregation
Prior to the 1965-66 school year the Franklin County
school system was completely segregated by race. All
white students attended schools staffed exclusively by
white teachers and administrators. All Negro students
attended schools staffed exclusively by Negro teachers
and administrators. Students were assigned to schools
pursuant to a system of geographic attendance zones—
one for whites and one for Negroes.
In the 1965-66 school year The School Board adopted a
desegregation plan pursuant to the Civil Rights Act of
1964. The plan provided for desegregation under the
“ freedom of choice” system of grades 1, 2, 9 and 12 for
the year 1965-66 school year, and for the desegregation of
the remaining grades in 1966-67.8 The plan further pro
vided for “ lateral transfers” 9 in the nondesegregated
grades for any applicant who could show either (a) that
he desired to take a course of instruction not available
in the school to which assigned, or (b) that he had either
entered the school system, or a different geographical at-
6 (1044a-1045a).
7 (1055a-1058a).
8 Facially, the Franklin County plan provided for the desegregation of
all grades in every school one year earlier than required by the guide
lines promulgated by the Department o f Health, Education and Welfare.
9 Lateral transfers refers to transfers allowed to students who were in
grades not yet reached by the desegregation plan.
. >Iirr i-
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10
tendance zone, for the first time. The Board failed to
give proper notice to students and their parents of the
specified criteria, and those Negro students who did not
specify one of these criteria were rejected.10
About 76 Negro students of a total of approximately
3,100 in the system requested transfers to attend predom
inantly white schools for the 1965-66 school year. Thirty-
one were accepted. Of these thirty-one, several withdrew
their applications during the summer; others withdrew
from predominantly white schools after school opened.
At the conclusion of the 1965-66 year, only six Negro
students were attending predominantly white schools (D.
App. 19A). During the 1966 choice period for which all
grades were desegregated for the 1966-67 school year,
twenty-three of the approximately 3,100 N egro pupils
elected to attend predominantly white schools. No white
student elected to attend a Negro school.
In July, 1966, the Negro plaintiffs and the United States
were prepared to present evidence to the court below that
because there were serious acts of hostility and intimida
tion to school desegregation in the community (see in fra
p p . 0 j a free choice desegregation plan was ineffective
to desegregate the schools in Franklin County. However,
after extensive discussion between the court and counsel,
trial was postponed, and the eout entered an Interim Order
in which the Board was ordered to conduct a new choice
period and to use reasonable safeguards to prevent intimi
dation (D. App. 9A).
In August 1966, pursuant to the Interim Order of July
27,1966. the School Board conducted a special freedom of
» IS * Sdm»4 Bawd imterss&foary, Bev Robert Latham, *
vhife afsKser. tarifei Asst t* «fofpvA after the »PP'w*-
twsB ■ ***■ JSfes sac. rg*g. t." & t z n w # lw t it e b t fA in z , the ‘i/ n t r A ignored
ins nmmmurmMMm t&stt it fimmtm all Saswxl trsmtter be ac
cepted .
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11
choice period for Negroes. During this special choice period
49 Negroes elected, and were assigned to attend, predomi
nantly white schools. During neither of the “choice periods”
for the 1967-68 school year did any whites elect to attend
Negro schools.
In March 1967, the Board conducted a freedom of choice
period for the 1967-68 school year. Forty-five Negroes
elected to attend predominantly white schools and were
scheduled to attend such schools for the 1967-68 school year.
The 1967 freedom of choice period was the fourth con
ducted in Franklin County since 1965. On each of these
occasions, all white students have elected to attend pre
dominantly white schools, and the previously Negro schools
have remained all-Negro in the composition of their stu
dent bodies. Three of the seven traditionally white schools
have never had a Negro student,11 a fourth has never had
more than one Negro student,12 and a fifth has never had
more than two Negro students, one of whom has dropped
out.13 More than 98.5% of the Negro students in the Frank
lin County system have remained in all-Negro schools
throughout the period that the schools have heen officially
desegregated.
Faculty and Staff Desegregation
Prior to the entry of the Interim Order of July 27, 1966
by the court below, Negro teachers taught in all-Negro
schools and white teachers taught in all-white or predomi
nantly white schools.
By the terms of the Interim Order, the School Board was
ordered to fill all faculty and professional staff vacancies
11 Edward Best Elementary, Gold Sand and Youngsville High.
12 Epsom.
13 Edward Best High School.
12
on a nonracial basis and to “encourage” transfers by pres
ent members of the faculty to schools within the system in
which pupils are wholly or predominantly of a race other
than such teacher’s.
Five teachers testified in this case—two Negro teachers
called by the United States, and three white teachers and
one Negro teacher called by the School Board. All testi
fied that they had not been requested to transfer to a school
in which their race was in the minority. Each testified to
having expressed a choice for the school to which he was
assigned; and several expressed a preference in favor of
staying at their current schools because they had become
accustomed to them. All five testified that they would be
willing, if assigned, to teach in a school where their race
was in the minority.14
Forty-nine new teachers were employed for the 1966-67
school year, twenty-five of whom -were white and twenty-
four were Negro. This number represents more than 20%
of the entire teaching staff in the County. The white teach
ers were assigned to “white” schools and the Negro teachers
were assigned to all-Negro schools (215a).
The policy of the Board is to assign teachers generally to
the school of their choice (D. App. 46A). Most teachers
have, accordingly, remained at the schools to which they
had been assigned when the schools were completely racially
segregated. Of the twelve schools in the Franklin County
system, faculty desegregation has occurred in only three
schools, as follows: one white teacher and one white li
brarian have been assigned to an all-Negro school, one
Negro teacher and one Negro librarian have been assigned
to predominantly white schools; three white staff members
14 Teachers: M&ssenburg, p. 1002a; Anderson, p. 1019a; Fleming,
p. 1226a: Snitt, p. 1216a; Griffin, p. 1223a.
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13
have been assigned to all Negro schools; and two Negro
and four white staff members have been assigned to all the
schools in the County system (D. App. 37-38). No school
principal has been transferred to a school in which his race
is in the minority. Faculties and staff of the schools in
Franklin County remain almost entirely segregated, with
the effect that each school in the county system is clearly
racially identifiable by the composition of its faculty.
Intimidation, Harassment and Reprisals
The record shows that there has been a marked hostility
to school desegregation in Franklin County.15 This hostil
ity has been evidenced by a continuous, effective and widely
publicized campaign of intimidations and reprisals directed
against Negroes who have sought to effectuate school de
segregation under a “ free choice” plan, and against white
persons who have taken a public stand in favor of school
desegregation.
Even before the Board had adopted a desegregation
plan in 1965-66, attempts to desegregate the public schools
in Franklin County resulted in threats against several
Negroes involved. On September 16, 1963, after attending
a meeting to discuss school desegregation with the Board,
the foster children, Rev. Sidney G. Dunston, a Negro min
ister and civil rights worker, received an anonymous tele
phone call threatening his home (274a-412a). During June,
1964, eight Negro children applied for transfer to white
schools (Franklin Times, 6/16/64 9 ) and the mother of
one of the children seeking transfer was advised to stay
16 See Chronology o f Intimidation prepared by the United States (238a-
257a). Although the Chronology lists acts o f violence which occurred in
the jurisdiction o f the Franklinton City School Board, the court in the
instant case ruled that he did not consider any o f this activity in his
Findings o f Facts ( £ ).
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14
off the property of her landlord or suffer the consequences
(421a; 451a). Considerable publicity was given to Ku Klux
Klan activity in 1964 (363a-364a, 1567a-1573a).
The Board took steps toward school desegregation for
the first time in the 1965-66 school year; the choice period
was conducted in the Spring of 1965. In June, 1965, the
names of Negro families and students who had applied for
transfer to white school were broadcast by the local radio
69a-71a) station and published in the Franklin Times (D.
App. 69A-71A).16 From the beginning of the choice plan and
throughout the 1065-66 school year, various forms of in
timidations, harassment and threats were directed at the
Negro community, particularly those Negroes directly en
gaged in school desegregation efforts: explosions were set
off near homes (605a, 674a, 760a-761a, 880a-890a); oil was
put into wells (198a, 398a, 569a, 629a); shots were fired
into homes (372a, 414a, 424a-428a, 1575a, 1596a) ;17 18 nails
were strewn in the driveway of one of the Negro plaintiffs
(411a, 499a, 567a) ;1S crosses were burned near several
16 The Franklin Times is a local newspaper of county-wide circulation
whose managing editor is Albert Clinton Fuller. Mr. Fuller is a member
of the School Board and is named as a party defendant to this action
(18a).
17 E.g., on June 17, 1965, the Franklin Times carried a headline story
on the shooting by allegedly unknown assailants into the homes of two
Negro families (Lenwood Arrington and Sandy Jones) who had children
to apply for transfers to white schools ( £ ). Mrs. Lenwood Arring
ton testified: “Well, after the first shooting (May 28, 1965) I had a lot
of telephone calls started around supper-time and would last until 11:00
o’clock, and a lot of them would tell me, asked me was I trying to get
white, why did I want my children to do to an all-white school. Some
of them was telling me that something was going ‘to happen to you, you
are going to get killed’ ” ( 0 ).
18 Rev. Luther Coppedge testified that nails were strewn in his drive
way about 13 times since 1964 and that his automobile sustained a flat
tire on two occasions as a result.
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15
homes18 and economic reprisals.19 20 Numerous threats were
made: most often they were made by anonymous telephone
callers, hut occasionally they were delivered by anonymous
letter or in person.21
The campaign of intimidations and threats neither ceased
nor abated during the 1966-67 school year;22 it has been
19 Depositions o f : Driver (310a); Norwood (890a); Rev. Coppedge
(565a-566a).
2 0 Negroes in Franklin County are particularly vulnerable to economic
reprisal. They are readily identifiable and, as a group characteristic, are
markedly dependent upon the white community economically (see 258a,
259a).
Mrs. Irene Arrington, a plaintiff in this action and one of the eight
Negroes who had applied for a transfer o f her child to an all-white
school in 1964 testified that, in June, after the applications were filed,
St. Clarence Arrington, who also applied for transfer of his child, told
her that he was withdrawing his application in fear o f eviction by his
landlord; he also told Mrs. Arrington that his landlord wanted her to
stay off his land (421a).
Joseph Branch, Negro, was told by his employer to withdraw his
grandchild’s transfer application or else the Klan might blow up the em
ployer’s building. Branch complied (Branch: 691a-693a). Cecil Macon,
a Negro employer who relayed telephone demand to Sidney Manley, his
employee, that Manley withdraw his child’s application. Manley did so.
Macon 328a-329a; Manley (336a).
Mrs. Annie Esther Satterwhite was discharged from her job tying to
bacco. Mrs. Satterwhite had a child enrolled in Bunn (white). When she
acknowledged this, in response to her employer’s question, the employer
told her she was fired because the employer did not believe in race mixing
(410a). A co-worker of Mrs. Satterwhite, Mrs. Alveretta Moore, testified
that Mrs. Satterwhite accurately recounted the incident (M oore: 411a).
21 Arringon’s deposition (428a-429a); Coppedge’s deposition (564a-
565a); Dunston’s deposition (277a-278a). Rev. Dunston also testified that
on one occasion three white strangers in a truck decorated with Con
federate Flags drove into his driveway and asked his children to convey
to him their threat on his life (Dunston, 278a-279a). In another instance
a Negro girl who had applied to attend a predominantly white school
found an anonymous letter in her mailbox threatening the lives o f her
parents (Crudup, 651a-652a; Exhibit, 667a).
22 The church o f Rev. Plummer Alston was dynamited. A Negro min
ister, Rev. Plummer is married to Rev. Luther Coppedge’s niece. (Re
ported in the Franklin Times, 3 /8 /6 6 ). (Coppedge, 570a); Alston,
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directed against Negro homes, and Negro students attend
ing predominantly white schools ;* 23 it has been directed, as
well, against the few white citizens of the county who have
dared to publicly support school desegregation.24 * In the
Interim Order of July 27, 1966, the District Court expressly
enjoined any interference with the exercise of choice. In
cidents of interference were to be reported to the United
States Attorney, at Raleigh, North Carolina. Such efforts
have been fruitless. The Federal Bureau of Investigation,
as well as state and local law enforcement officials, has
investigated most, if not all, of the acts of intimidation
which have taken place. To date, however, not a single
arrest has been made (371a-379a).
In March, 1967, during the freedom of choice period for
the 1967-68 school year, the intimidations intensified. Rev.
Luther Coppedge, father of one of the Negro plaintiffs,
testified that he received six to eight harassing, anonymous
telephone calls a day. The last such call was on the night of
July 22, 1967, only three days prior to his testimony in
the trial of this case (1279a).26
605a); (Exhibit, 611a). In May, 1966, sugar was put in the gas tank of
Rev. Coppedge’s tractor (Coppedge, 569a, 570a, 762a, 1279a-1280a);
(Davis, 1273a).
23 Jerome Cheek, one o f six Negroes in predominantly white schools, re
ceived two threatening racial notes at school; and oil was placed in the
well at his home on two separate occasions. Cheek, 628a-630a; see also:
Fogg, 825a-826a.
24 During the spring and summer o f 1966, large nails were placed in the
driveway of Rev. Lathan’s home. Rev. Latham, a white minister, had
been speaking out against the Ku Klux Klan and urging, both publicly
and privately, that Negro transfer applications be treated fairly. (Latham,
499a). In July, crosses were burned at the home of Rev. W ood also a
white minister (W ood, 535a), and Rev. Latham (Latham, 499a).
26 More recently, the Raleigh Newrs and Observer reported that the home
of Rev. Coppedge was fired into the evening the District Court’s Order
and Opinion o f August 17, 1967 was publicized. Rev. Coppedge’s home
was fired into again, it was reported, last Christmas evening.
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Since the beginning of freedom of choice plan in 1965,
there has been a decline each year in the number of Negro
students requesting reassignment to previously all-white
schools—1965-66: 76 applied, 31 were accepted, at the end
of the school year only 6 remained; 1966-67:72 applied
although there were two choice periods for the school year;
1967-68: only 45. For the 1967-68 school year only 1.5% of
3,100 Negro students are attending desegregated classes in
Franklin County.
MORE TO COME
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Since the beginning of freedom of choice plan in 1965,
there has been a decline each year in the number of Negro
students requesting reassignment to previously all-white
schools—1965-66: 76 applied, 31 were accepted, at the end
of the school year only 6 remained; 1966-67:72 applied
although there were two choice periods for the school year;
1967-68: only 45. For the 1967-68 school year only 1.5% of
3,100 Negro students are attending desegregated classes in
Franklin County.
Questions Presented
1. Whether— 13 years after B row n v. B o a rd o f E d u ca
tion—a school board may adequately discharge its obli
gation to desegregate a school system under a freedom of
choice plan where the evidence shows that such a plan is
not likely to disestablish the dual system because of overt
acts of hostility, intimidation, and reprisals against Ne
groes in the community effectively inhibit meaningful
exercise of choice.
2. Whether a district court may, as a matter of consti
tutional law, order a school board to abandon a freedom
of choice desegregation plan and to adopt some other plan
which is educationally, financially and administratively
more feasible and which would immediately produce mean
ingful desegregation where the evidence shows that a free
dom of choice plan engrafted on a purposefully designed
segregated system is not likely to disestablish the dual
schools. 3
3. Whether the evidence supports the findings of the
court below that the freedom of choice desegregation plan
in this case was not likely to produce meaningful desegre
gation.
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ARGUMENT
I.
There Was Sufficient Evidence to Support the Dis
trict Court’ s Conclusion That Desegregation Under a
Free Choice Plan in Franklin County Was an Illusion.
The School Board’s main argument on this appeal is
the evidence was insufficient to support the district court’s
finding that: (1) there was marked hostility to school de
segregation in Franklin County; (2) after free choice had
been adopted by the School Board, acts of intimidation,
threats, and reprisals against Negro parents, several Ne
gro parents withdrew their request for assignments of their
children to previously all-white schools; and (3) the com
munity’s attitudes and pressures in the Franklin County
school system effectively inhibited the exercise o f free
choice by Negro pupils and their parents.
The standard for review of the findings o f a trial court
sitting without a jury is set out in Rule 52(a) of the Fed
eral Rules of Civil Procedure, which provides in pertinent
part:
Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the oppor
tunity of the trial court to judge of the credibility of
witnesses.
See also U n ited S ta tes v. U n ited S ta tes G ypsu m C o., 333
U.S. 364 (1948). Like any other issue of fact, final deter
mination requires a balancing of credibility, persuasiveness
and weight of evidence. Where the court is sitting with
out a jury, this determination is to be decided by the trial
court, and that court’s decision, under general principles
19
of appellate review, should not be disturbed unless clearly
erroneous. G ra v er Tank, and M fg . C o. v. L in d e A i r P r o d
ucts C o., 339 U.S. 605, 609-610 (1950). In the overwhelm
ing majority of cases where appellate courts have applied
the clearly erroneous rule, a strong presumption exists in
favor of the trial court’s findings of fact.26
This Court need not engage in the presumption that the
findings of fact made by the court below abridged the
clearly erroneous rule. The findings of fact made by the
court below that intimidation, harassment and economic
reprisals effectively inhibited free choice in the Franklin
County school system are amply documented by deposi-
tional and oral testimony, exhibits and statistical evidence
of a substantial number of witnesses. There is also un
contradicted evidence that the intimidations, harassments
and economic reprisals caused Negro students or their
parents to withdraw from enrollment in predominantly
white schools. Moreover, since the School Board has chal
lenged the sufficiency of the evidence to support the find
ings of the court below, plaintiffs and the United States
have found it necessary to reproduce a substantial portion
of a record as an appendix in order to show this Court
that the sufficiency argument of the School Board is with
out merit.
26 E .g . : “ The findings o f the court are presumptively correct and will
not be set aside unless resulting- from an erroneous view o f the law or
are clearly against the weight o f the substantial evidence, and in consid
ering this question we view the evidence in the light most favorable to
the prevailing party, the burden being on the unsuccessful party to show
that the evidence compelled a finding in his favor.” A n d e r s o n v. F e d era l
Cartridge C o rp ., 156 F.2d 681, 684 (8th Cir. 1946). “ It is idle to try
to define the meaning o f the phrase ‘clearly erroneous’ ; all that can be
profitably said is that an appellate court, though it will hesitate less to
reverse the finding o f a judge than that o f an administrative tribunal or
of a jury, will nevertheless, reverse it most reluctantly and only when
well persuaded.” H a n d , J . U n ited S ta tes v. A lu m in u m C o. o f A m e r ic a ,
148 F.2d 416, 432 (2nd Cir. 1945); see also W e s t v. S ch w a rz , 182 F.2d
721 (7th Cir. 1950); 5 Moore’s Federal Practice §52.03, Note 21.
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II.
The Record Clearly Showed That a Freedom o f
Choice Plan W as Not Likely to Disestablish the Dual
School System in Franklin County.
The School Board seems to contend (Brief, pp. 33-34)
that the Order of Judge Butler requiring the Board to
submit a desegregation plan providing for either a uni
tary system of nonracial geographic attendance zones or
the consolidation of grades, schools, or both, deprives
Negro and white students of a constitutional right to select
the school of their choice under a freedom of choice plan.
There is no such right.
Although freedom of choice desegregation plans have
been approved by this Court and other courts, see e.g.,
Bowman v. C ounty School B oard o f Charles C ounty, Va.,
382 F.2d 326 (4th Cir. 1967); B radley v. School B oard o f
City o f Richm ond, 345 F.2d 310 (4th Cir. 1965), vacated
and rem anded on other grounds, 382 U.S. 103; United
States v. J efferson C ounty B oard o f E ducation, 372 F.2d
836 (5th Cir. 1966), ajf’d with m odifications on rehearing
en banc, 380 F.2d 385 (1967), cert, denied sub nom. Caddo
Parish School B oard v. U nited S ta tes, ------ U.S. ------
(1967), the measure which has been judicially developed
to determine the acceptability of a freedom of choice plan
—or, for that matter, any desegregation plan—is whether
the plan results in actual desegregation.27 The United
States Department of Health, Education and Welfare
(HEW) has also taken the position that a freedom of
27 In U n ited S ta te s v. J e ffe r s o n C o u n ty B o a r d , the F ifth Circuit stated
the standard thusly: “ T h e o n ly sch o o l d eseg reg a tio n p la n th a t m eets c o n
stitu tional sta n d ard s is on e th a t w o rk s .” 372 F.2d at 847 (emphasis in
the original). See also L e e v. M a co n C o u n ty B o a r d o f E d u ca tio n , 267
F. Supp. 458 (M .D. Ala. 1967), aff’d -------F .2 d ---------. '
(yo
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choice plan must work, i.e., it must result in actual de
segregation. And under the Revised Statement of Policies
for School Desegregation Plans under Title V I of the
Civil Rights Act of 1964 (45 C.F.R. Part 181.54), the
Commissioner has the power, where the results under a
free choice plan continue to be unsatisfactory, to require,
as a precondition to making available further federal
funds, that the school system adopt a different type of
desegregation plan.28
A . Free Choice in Franklin Perpetuated the Dual System.
The adequacy of a particular desegregation plan fre
quently cannot be judged by examining only the four cor
ners of the plan. Courts have recognized that various
factors, some subtle and some not so subtle, may operate
in such a way with a freedom of choice plan, that rather
than eliminating a segregated school system, works to
perpetuate the segregated system. Recently this Court
stated in Bow m an v. County School B oard, swpra, at pp.
327-28, that:
Whether or not the choice is free may depend upon
circumstances extraneous to the formal plan of the
school board. I f there is a contention that economic
or other pressures in the community inhibit the free
exercise of the choice, there must be judicial appraisal
of it, for “ freed om o f choice” is acceptable only i f
the choice is in the practical con text o f the exercise.
If there are extraneous pressures which deprive the
choice of its freedom, the school board may be required
to adopt affirmative measures to counter them. (Em-
28 Although administrative regulations are not binding on courts deter
mining rights under the Fourteenth Amendment, nonetheless, they are
entitled to great weight. U n ited S ta tes v. J e ffe r s o n C o u n y B o a rd , 372
F\2d at 847; B o w m a n v. C o u n ty B o a r d o f E d u ca tio n , su p ra at 328.
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22
phasis supplied.) See also K ie v v. C ou n ty S ch oo l
B o a rd o f A u g u s ta C ou n ty , 249 F. Supp. 239 (W.D. Va.
(1966).
Some of the “ economic and extraneous pressures” which
inhibit choice under a “ free choice” plan are listed in a
recent report issued by the United States Commission on
Civil Rights:
3. The slow pace of integration in the Southern
and border States is in large measure attributable to
the manner in which free choice plans—the principal
method of desegregation adopted by school districts
in the South—have operated.
4. Freedom of choice plans accepted by the Office
of Education have not disestablished the dual and
racially segregated school systems involved, for the
following reasons:
a. Negro and white schools have tended to retain
their racial identity;
b. White students rarely elect to attend Negro
schools;
c. Some Negro students are reluctant to sever
normal school ties, made stronger by the racial
identification of their schools;
d. Many Negro children and parents in Southern
States, having lived for decades in positions of
subservience, are reluctant to assert their rights;
e. Negro children and parents in Southern States
frequently will not choose a formerly all-white school
because they fear retaliation and hostiliity from the
white community;
f. In some school districts in the South, school
officials have failed to prevent or punish harassment
Iso
81
92'
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23
by white children of Negro children who have elected
to attend white schools;
g. In some areas in the South where Negroes
have elected to attend formerly all-white schools,
the Negro community has been subjected to re
taliatory violence, evictions, loss of jobs, and other
forms of intimidation.
5. In some areas in the South, as the result of the
harassment of Negro children electing to attend white
schools and the intimidation to which the Negro com
munity was subjected, all or many of the Negro chil
dren who originally had elected to attend white schools
returned to the Negro schools.29
Plaintiffs contended, the testimony, exhibits and statis
tical evidence showed, and the court below found that all
of the “ economic and extraneous pressures” enumerated
by the Civil Rights Commission above were present in
the Franklin County community which made “ free choice”
illusory and meaningless.
The Board in the instant case did not take any steps
toward desegregating the schools until shortly before the
1965-66 school year—more than ten years after the Su
preme Court held that segregation in public schools is un
constitutional.30 When the Board did act, it adopted a
freedom of choice plan pursuant to the HEW Revised
Guidelines. The Revised Guidelines suggests that systems
using free choice plans for at least two years should ex-
29 U.S. Commission on Civil Rights, Survey o f School Desegregation in
Southern and Border States, 1965-66 (February, 1966), p. 51. The Civil
Rights Commission has made studies o f school desegregation in Southern
and border states over the past several years.
30 B ro w n v. B o a r d o f E d u ca tio n , 347 U.S. 483 (B r o w n I ) ; 349 U.S.
294 (B r o w n I I ) .
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24
pect 15-18% of the pupil population to have selected de
segregated schools. However, after free choice was first
adopted in Franklin County, instead of increasing with
each passing year, there has been a decline each year
successive in the number of Negro students requesting re
assignment to desegregated schools. In 1965-66, 76 Negroes
applied to transfer to previously all-white schools; 31 were
accepted, but at the end of the school year, only sis Negroes
remained in all white-schools. For the 1966-67 school year,
only 72 out of approximately 3,100 Negroes applied, al
though there were two choice periods for the school year.
For the 1967-68 school year, only 45 Negroes applied for
transfer. As of the 1967-68 school year, only 1.5% of
Negro students were attending desegregated classes in
Franklin County; no white student has ever elected to at
tend or applied to transfer to an all-Negro school, nor has
the Board assigned any white student to an all-Negro
school.
This 1.5% is far less than the percent of desegregation
in the whole State of North Carolina. Even the percentage
of desegregation for the State of Mississippi was higher
than that for Franklin County. The court below was justi
fied in considering the gross disparity between the per
centage of Negroes in desegregated schools in Franklin
County as compared to all of North Carolina (or the Re
vised Guidelines percentages) to raise the inference that
free choice was not working as it should to provide a uni
tary nonsegregated system. See United S ta tes v. J efferson
County B oard , 372 F.2d at 887, and cases cited in n. 108.
Faculty and staff desegregation is an integral part of a
free choice desegregation plan. B radley v. School Board
of Richmond, 382 U.S. 103 (1965); R og er v. Paul, 382 U.S.
198 (1965); W h eeler v. Durham C ity B oard o f Education,
363 F.2d 738 (4th Cir. 1966). The evidence regarding the
,
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25
assignment of faculty and staff also reveals that free choice
was insufficient to desegregate the system.
Prior to the 1966-67 school year, Negro schools had all-
Negro faculties and staff and white schools had all-white
faculties and staff. The School Board was ordered to fill
faculty and staff vacancies on a nonracial basis and to
encourage transfers across racial lines by the Interim
Order entered July 27, 1966 (164a). Between the time of
the Interim Order and the order from which this appeal
is taken (August 17, 1967), the Board had ample oppor
tunity to effectuate significant faculty and staff desegrega
tion. The Board hired 49 new teachers (25 white, 24 Negro)
into the system for the 1966-67 school year (215a); the
white teachers were assigned to all-white schools and the
Negro teachers were assigned to all-Negro schools. The
“encouragement” the Board gave teachers already in the
system consisted primarily of meeting with the teachers
and reading a copy of the Interim Order and of advising
the teachers that they would be assigned to the school of
their choice. Nine of twelve schools in the system remain
totally segregated as to the faculty. In the other three,
desegregation is at best token: one Negro librarian at
each of two white schools, and a white librarian and a
white English teacher, who taught only five hours a week,
assigned to the one all-Negro school.
Several Negro students testified that they withdrew their
applications for transfer to desegregated schools because
they were reluctant to sever school ties created by racial
identification of their schools; others testified that Negro
students who had transferred to desegregated schools had
been harassed by white students and faculty; there was also
testimony that some Negroes who had transferred to de
segregated grades returned to all-Negro schools because
of harassment and intimidation (628a, 926a, 1589a).
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B . Intimidation, Harassment and Reprisals Against
the Negro Com m unity Further Made Free Choice
Inadequate.
Plaintiffs submit that the above enumerated factors alone
would be sufficient to show that free choice did not and
could not desegregate the schools in Franklin County;
however, the principal ground relied on by the court below
was the existence of community hostility which resulted in
acts of intimidation, harassment, economic reprisal being
directed against the Negro community and particularly
Negroes who were seeking a desegregated education.
The court found, in ter alia, that:
11. Since the beginning of the freedom of choice
plan in 1965, there has been a decline each year in the
number of Negro students requesting reassignment to
previously all-white schools. During 1966-67 in North
Carolina, 54,600 of 409,707 Negro students attended
desegregated schools, representing 15.4 percent. The
percentage in Mississippi was 2.5 percent. In the
Franklin County School system for the coming year,
1967-68, the percentage is presently fixed at about 1.5
percent.
12. Com m unity attitudes and pressu res in the F ran k
lin C ounty School system have effectively inhibited the
exercise o f f r e e choice o f schools by N egro pupils and
their parents. (D. App. 24a-25a) (Emphasis added)
The School Board attacks the sufficiency of the evidence
to support this finding (Brief, p. 25), but the evidence
clearly shows that there has been marked hostility in
Franklin County before31 and after the Board adopted a
31 In 1963, a Negro minister who was a signatory to a petition to the
Board requesting the Board to desegregate the school received an anony
mous call threatening his home (274a-412a). In 1964, a Negro mother
35IO.fi'
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2 7
free choice plan in 1965— even up to three days before the
trial of the case.
The Board could not, in good faith, have hoped that
enough students would choose the school previously closed
to them to truly desegregate the system where the attitude
of the community had already strongly evidenced opposi
tion to desegregation. It is reasonable to infer that the
Board was aware of the community’s strong opposition
to the school desegregation. The managing editor of the
Franklin Times, the major newspaper in the county, was
also a member of the Board. The Franklin Times had
chronicled the activities of the Klan, the efforts made by
Negroes to seek a desegregated education and the harass
ment received by such persons. Moreover the Board for
several years prior to the adoption of free choice had
operated under the North Carolina Pupil Enrollment Act,
under which any student could, presumably, as in free
choice, choose any school. When the Board adopted free
choice, no Negro student had been allowed to transfer to
the white schools, although Negroes had applied for such
transfers in 1964 and had been denied by the Board (66A-
67A; 1537a-1538a).
Acts of intimidations and harassments occurred at the
very beginning of free choice plans. The Franklin Times
published the names of Negro applicants and their fam
ilies in 1965 shortly after free choice was adopted (D. App.
69A-71A). Following the publication of the names, many
of the Negro applicants and their families were victims of
intimidation and harassment ( # ). The acts of intim
idations, harassments and reprisals which took place in
who had applied for transfer for her child to an all-white school was
threatened by her landlord (421a, 451a). Considerable publicity was given
to Ku Klux Klan activity, such as cross burnings, rallies and intimida
tions (363a-364a, 1567a-1574a).
' '
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2 8
the community, at times more intensified than others, con
sisted o f : explosions set off near homes; oil put into wells;
shots fired into homes; nails strewn in driveways of Negro
applicants; crosses burned; parents of Negro children who
had applied for transfers were subject to economic re
prisals, and a number of Negroes received anonymous and
threatening telephone calls (see in fra pp. # ). The Frank
lin Times reported a substantial number of these inci
dents (1575a-1587; 1591-1607).32 The record demonstrates
that the court went to great lengths to give the Board an
opportunity to show that a freedom of choice plan could
effectively disestablish the dual system. Four choice
periods were held during the more than two years that
freedom of choice has been in operation; instead of an
increase in the number of Negro students attending de
segregated grades each year, there was an actual de
crease of the number of students who had applied for
transfer. There was not meanginful faculty desegregation.
The choice of Negro parents and students were effectively
inhibited by the acts of intimidation and harassment.
Given the dimension of the intimidation, harassment and
other acts of violence, two years was more than enough
time to show that free choice was ineffective to disestab
lish segregation in Franklin County.
32 Evidence o f the publicity which the acts o f intimidation received
was offered in conjunction with evidence that Negroes in the community
were likely to, and, in many instances, did hear o f these incidents; and
that this information tended to have a substantial effect on their exercise
of choice. As such the trial court could admit evidence o f the publicity
which acts o f intimidation received as an exception to the hearsay evi
dence rule. See McCormick, Evidence $228.
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29
III.
A Freedom of Choice Plan Is Constitutionally Un
acceptable W here There Are Other Methods W hich Are
Educationally, Financially and Administratively More
Feasible and W hich W ould More Speedily and Substan
tially Disestablish the Dual System.
After B ro w n v. B o a rd o f E d u ca tion , 349 U.S. 294,
southern school boards were faced with the problem of
effectuating the transition to a racially nondiscrimina-
tory system (B ro w n I I at 301). The easiest method was
to convert the dual attendance zones, drawn according to
race, into single attendance zones without regard to race,
so that assignment of all students would depend only on
proximity and convenience. With rare exception, however,
southern school boards, when finally forced to begin the
desegregation process, rejected this relatively simple
method in favor of the complex and discriminatory pro
cedures of pupil placement laws, and when these were
invalidated, switched to what has in practice worked the
same way as the so-called freedom of choice plans.33
Under the freedom of choice plans of desegregation
students are given a privilege rarely enjoyed in the past,
the opportunity to attend the school of their choice. Not
onlyare such plans more difficult to administer, they are,
in addition, far less likely to disestablish a dual school
system.34
33 According to the Civil Rights Commission, the vast majority o f school
districts in the South use freedom o f choice plans. See Southern School
Desegregation, 1967, a report o f the U.S. Commission o f Civil Rights,
July 1967, p. 71.
84 As Judge Heebe sa id : “ Free choice systems, as every southern school
official knows, greatly complicate the task o f pupil placement in the
system and add to the tremendous workload o f the already overburdened
school official.” M o ses v. W a sh in g to n P a rish S c h o o l B o a r d , C.A. No. 5973
(E.D. La., October, 1967).
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30
Under free choice plans the extent of actual desegrega
tion varies with the number of students seeking and ac
tually being permitted to transfer to schools previously
maintained for the other race. It should have been ob
vious, however, that white students, in view of the general
notions of Negro inferiority and the hard fact that in
many areas Negro schools are vastly inferior to those
furnished for white, would not seek transfers to formerly
Negro schools. Indeed, the evidence in the instant case
shows that no white has elected to apply for transfer to an
all-Negro school under the free choice plan. Thus, from
the very beginning, the burden of disestablishing the dual
system under free choice plans was thrust squarely upon
the Negro children and their parents despite the admoni
tion of the Supreme Court in B ro w n I I (349 U.S. 294, 299)
that school authorities have the primary responsibility
for desegregating the school.35 Although court after court
has stated this principle, these courts have given judicial
approval to freedom of choice plans.
35 “ School authorities have the primary responsibility for elucidating,
assessing, and solving these problems [e.g., local school problems
which might arise as a result o f efforts to implement the constitu
tional principles enunciated] courts will have to consider whether
the action o f school authorities constitutes good faith implementa
tion o f the governing constitutional principles.”
* * * ** # *
“ The burden rests upon the defendants to establish that such time
is necessary in the public interest and is consistent with good faith
compliance at the earliest practicable date. To that end, the courts
may consider problems related to administration, arising from the
physical condition o f the school plant, the school transportation
system, personnel, revision o f school districts and attendance areas
into compact units to achieve a system o f determining admission
to the public schools on a nonracial basis, and revision o f local laws
and regulations which may be necessary in solving the foregoing
problems.”
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31
The freedom of choice plan adopted by the School Board
in the instant case placed the burden of disestablishing the
Franklin County school system on the Negro pupils and
their parents. To be sure each pupil was given the right,
facially, to attend any school in the system, but as previ
ously noted, desegregation never occurred except by trans
fer by Negroes to white schools. Thus, the freedom of
choice plan used by the Board prior to the court order of
August 17, 1967, like all other plans, placed the burden of
achieving a single unitary system upon the Negro citizens.
The obligation of a school board in the mid-60’s is to
adopt that plan which would more speedily accomplish the
effective desegregation of the system. The sequence of
responsibility in desegregating a school system is, first,
that of local school authorities, then the local district
courts, and if need be, appellate courts (B ro w n I I ; A r m
strong v. B o a rd o f E d u ca tion o f th e C ity o f B irm in gh am ,
333 F.2d 47 (5th Cir. 1963). Where the local school au
thorities have failed to take the initiative, as the School
Board did in the instant case,36 then the responsibility
devolves to the district court. In the instant case the
district court assumed that responsibility and ordered the
School Board to adopt a plan other than a free choice
plan. We quite willingly concede that a court should not
enforce its will where alternative methods are not likely
to produce dissimilar result— that much discretion should
still be in the province of the school board. We submit,
however, that a court may not— at this late date, in the
absence of persuasive evidence showing the need for delay
—permit the use of any plan other than one which would
Even on appeal, the School Board is urging that where a school
oard has failed to adopt an effective desegregation plan, a court does
not have the power to require the board to adopt a plan drawn up by
the court. (B rief, p. 33.)
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more speedily and effectively desegregate the system. Put
another way at this point, that method must be mandated
which will do the job more quickly and effectively.
When free choice plans were initially conceived, courts
generally adhered—mistakenly, we submit—to the belief
that it was sufficient to permit each student an unrestricted
free choice of schools. The notion that the making avail
able of an unrestricted choice satisfies the Constitution,
quite apart from whether a significant number of white
students choose Negro schools or Negro students choose
white schools, is, we submit, fundamentally inconsistent
with the decisions of this Court in B row n I and II. C ooper
v. A aron , 358 U.S. 1; B rad ley v. School B oard o f the C ity
of Richm ond, 382 U.S. 103, and the entire series of school
cases it has decided.
The test for any school desegregation plan is whether
the plan achieves substantial desegregation which is con
stitutionally required and that a plan not accomplishing
this result must be abandoned and another substituted.
Cf. Bow m an v. C ounty School B oard, supra. This Court
has not held, nor did the Fifth Circuit in J efferson hold,
and we do not urge, that freedom of choice plans are un
constitutional p er se. Indeed, in areas where residential
segregation is substantial and entrenched, a free choice
plan might well be the most effective method of desegre
gation. Bather, our opposition is that a freedom of choice
plan is not an adequate desegregation plan (B row n II,
supra, 349 U.S. at 301) if there is another plan equally
feasible to administer which will more speedily and effec
tively disestablish the dual school system. M oses v. W ash-
inyton P arish School B oard , supra ; Corbin v. County
School B oard o f Loudoun County, V a . ,------ F. Supp.------- ,
C.A. No. 2737 (E.D. Va. August 29, 1967).
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Evidence was presented to the court below which clearly
showed that there were alternative methods which the
Board could have implemented that were less difficult to
administer than a freedom of choice plan which would
more speedily disestablish the segregated school system.
Mr. Stormer, a school construction planning expert
whose testimony was largely uncontradicted, testified that
the schools in Franklin County were located in four prin
cipal areas; that schools in each area were organized in
clusters of two’s or three’s— one or more traditionally
white and one or more traditionally Negro; that each
school, Negro or white, within each area was located within
a mile or so in a predominantly white or Negro school
covering the same grades. Before the Board adopted a
freedom of choice plan in 1965, students were assigned to
schools based on dual geographic zones— one zone used to
assign Negro students to Negro schools and a different
zoning procedure used to assign white students to white
schools.
When the Board decided to adopt a desegregation plan—
albeit more than ten years after the mandate of the Su
preme Court in the B row n decisions—a more efficient
method would have been to assign students to schools on
a unitary, nonracial geographical zoning plan. As Judge
Heebe said in M oses v. W ashington P arish School B oard,
supra:
If [one had to pick] a method of assigning students
to schools within a particular district [heretofore
having used dual geographic zones], bearing very un
usual circumstances [one] could imagine no m ethod
m ore inappropriate, m ore unreasonable, m ore need
lessly w asteful, in ev ery respect than the so-called
‘f r e e choice’ system . (Emphasis added.)
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Mr. Stormer testified that consolidation of side-by-side
schools, with the facilities of each used for some grades,
was feasible and educationally advantageous and would
automatically desegregate the schools (1078a-1079a; 1042a
et seq.; 1556a). He also testified that administrative con
venience would adhere in a geographical zoning plan which
would likewise eliminate the dual system (1074a-1079a).
The court below ordered the School Board to adopt one
or both of these methods only after the court had found
that a freedom of choice plan was incapable of desegregat
ing the schools. Plaintiffs submit that the method proposed
by the court was the more appropriate, reasonable, and
efficient method for desegregating the schools in Franklin
County. M o ses v. W a sh in g to n P a r ish S ch oo l B oa rd , su pra .
34
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.
I h t t t i 'i t B t n t m d o u r ! o f K p p m b
F or the F ourth Circuit
No. 11,794
Civil Action No. C 1796
H arold D ouglas Coppedge, a minor, e t al.,
^ U nited S tates oe A merica, by R amsey Clark ,
Attorney General,
A p p e lle e s ,
—v.—
T he F ranklin County B oard of E ducation, e t al.,
A p p ella n ts .
BRIEF FOR THE UNITED STATES,
PLAINTIFF-INTERVENOR APPELLEE
J ohn D oar
A ss is ta n t A tto r n e y G en era l
F rank E . S chwelb
F rancis H. K ennedy
A tto r n e y s ,
Department of Justice
Washington, D.C. 20530
iM u tl ' . /
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U n x t e b S t a t e s O k m r t n f A p p e a l s
F ob the F ourth Circuit
No. 11,794
Civil Action No. C 1796
H arold D ouglas Coppedge, a minor, et al.,
U nited S tates of A merica, by R amsey Clark,
Attorney General,
A p p e lle e s ,
T he F ranklin County B oard of E ducation, et al.,
A p p ella n ts .
BRIEF FOR TH E UNITED STATES,
PLAINTIFF-INTERVENOR APPELLEE
Introductory Statement
Defendants, the Board of Education of Franklin County,
North Carolina and its members, appeal from a decision
of the Honorable Algernon Butler, United States District
Judge for the Eastern District of North Carolina,1 hold
ing that they had made insufficient progress in Franklin
County towards the disestablishment of a dual school sys
tem based on race, and directing them to take various
affirmative steps to assure equal educational opportunities
to all of the students in the District. The relief ordered
by the District Court included the requirement that the
defendants adopt and implement a plan for desegrega
tion other than so-called “ freedom of choice,” which the
1 The decision below is reported at 273 F. Supp. 282 (E.D. N.C. 1967).
m ’ .7 1 ., i f / l ' h n : * u ‘ 0 n m iM :■ , ! w d
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r8.TTAT8 O m i l 3ITF flO'I: O T J ig
a s j s e r r * n o r r o i a m o i n * i - , h
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2
Court described as illusory and a misnomer under the
existing circumstances. The thrust of defendants’ argu
ment on appeal is that the evidence is said to be insuffi
cient to sustain those of the District Court’s findings which
led that Court to hold that extensive intimidation and
community hostility to desegregation have made so-called
freedom of choice, in Franklin County, a misnomer and a
constitutionally inadequate means to achieve desegrega
tion. We disagree. We think that the District Court dis
played considerable patience for nearly two years with
defendants’ inadequate progress towards desegregation
and with a completely illusory “ freedom of choice,” and
took great pains to try to make this plan work. After its
efforts failed, the District Court had no constitutional
alternative to the action which it took.
While defendants dispute the sufficiency of the evidence
to support the Court’s findings, much of the proof in the
case is uncontested. Apart from the question of intimida
tion, the entire structure of the school system has been
and is such as to keep the schools almost completely
segregated:
(1) The location of schools and grades is such that there
are pairs of schools covering grades 1-12 in four separate
areas of the county, one white2 and one Negro. Each
Negro school is within a mile or so of a white school
offering the same grades. Several of the schools have so
few students in the high school grades that their opera
tion as separate high schools is educationally indefensible.
In general, the system of side-by-side schools offering the
2 For purposes o f convenience, we will refer to all-white and predomi
nantly white schools simply as “ white” schools, and the schools heretofore
maintained fo r Negroes as “ Negro” schools. W e recognize that, techni
cally, these schools are all “ free choice” schools, but the statistics in the
County justify our terminology.
-if} ' : ‘ Q ' i - e -t I" it tfiilf} - i 77<jsj7 ••> >!;ns|
: l t ::.'■■■■ : : 7i, > ■ / : ■ ' < i r - r - : ; . :?I ;.>dt iO 1 ? :• . - I ! " Ol
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■■ ® af<-;oo 1:7 ,0- <> q.-'d : 7 .,, ■' i*Etn
;V-T 7 .7 ; -77 71. ,7;;i " .7; : . 7 7 .7 771777'
7:77 .;. ; ;7 s ■- . ;7;1- f?r.01/j jjt*cf>(f»5i
'
3
same grades is extravagant and unsound, offers no educa
tional advantage whatever, and is explicable only in racial
terms. (See pp. 8-12, in fra .)
(2) In spite of the entry of the Interim Order in July,
1966, requiring non-racial assignment of new faculty mem
bers and the encouragement of faculty and staff members
already employed to cross racial lines,3 the defendants
made only minimal progress in faculty desegregation.
Staff and faculty desegregation for 1966-67 involved five
individuals of a total faculty of more than 200. The only
actual classroom teacher desegregation achieved during
that year consisted of a white lady who taught English at
an all-Negro high school for five hours per week. Nine of
the twelve schools in the system were totally unaffected by
faculty desegregation, and every school in the district re
mained— and remains today— racially identifiable by the
composition of its faculty. (See pp. 12-16, in fra .)
(3) While we do not wish to be contentious, we believe
that the educational disparities between predominantly
white and Negro schools in Franklin County can only be
described as appalling. The summary of the evidence of
disparities set forth in the District Court’s Findings of
Fact (D. App. 27A-28A), which is based on defendants’
records and which they cannot and do not contest, shows
among other things that the buildings and equipment in
predominantly white schools had, at the time this suit
was brought, a per pupil valuation more than three times
as great as the buildings and equipment in the Negro
8 See C o p p e d g e v. F r a n k lin C o u n ty B o a r d o f E d u ca tio n , 12 Race Rel.
L. Rep. 230 (E .D . N.C. 1966), (D . A pp . 7-A -14-A ). References to De
fendants’ Appendix are indicated herein by D. A pp . and page numbers.
References to Appellees’ Appendix are indicated herein by the page
number followed by the letter “ a.’ '
€|s
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4
schools. Negro schools have been seriously overcrowded,
in terms of pupils per classroom, pupils per teacher and
acreage of site, and Negro pupils residing near under
utilized white schools have been bused fourteen miles,
each way, on a daily basis to overcrowded Negro schools.
Additions to the schools have also been made in a man
ner tending to perpetuate segregation. (See pp. 19-21,
in fra .)
(4) The transportation system which has been utilized
in Franklin County is irrational and extravagant and can
be explained only in racial terms. While formerly white
and Negro schools in this rural county are located prac
tically side by side, their bus routes are separate and over
lapping, with the effect that two buses do on a racially
separate basis what one could do if race were ignored.
When bus routes of different schools have been combined,
this has always been done on a racial basis, so that, e.g.
one Negro elementary school shares a bus route with
another Negro school 14 miles away rather than with a
white school half a mile away. (See pp. 23-26, in fra .)
^ It is our basic contention in this case that all of these
policies and practices are rooted in the dual system and
make no educational or administrative sense at all, ex
cept as devices to keep Negro students separate from
white students, to preserve all-Negro schools, and to in
duce Negro students to attend them. In Franklin County,
the annual median Negro family income is $1,281, about
one-third of the white. When the policies of the school
board, in such a county, are directed to the one controlling
end of preserving the racial identities of schools, there
is little doubt that, even apart from overt intimidation,
comparatively little desegregation will result. In this case,
adherence by the defendants to these dual system policies
1
t tv i ' . r n ' ' i - i •- f -v';v.;o bo v v t
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5
has been accompanied by extensive community hostility to
desegregation, characterized by bombings, shootings into
homes, pollution of wells, tacks in driveways, threats,
harassing telephone calls, economic coercion, and other
measures, all in a county where the Ku Klux Klan is
widely known to be powerful. No Negro has been able to
elect to attend a formerly white school with any confidence
that he would not suffer serious reprisals.
We believe that it has been and is inevitable under these
circumstances, that actual desegregation under the “ free
choice” system would be minimal, and so it has been.
During the fourth freedom of choice period conducted in
Franklin County in the spring of 1967, 45 of more than
3,100 Negro students chose desegregated schools, four
fewer than in the previous year. All of the white students
again elected to attend white schools. Had the District
Court not intervened, 1.5% of the Negro students would
have attended desegregated schools in 1967-68, while the
remaining 98.5% of the Negro students and 100% of the
white students would have attended schools still more or
less maintained for their color.4
We believe that the testimony and exhibits in this case
demonstrate why “freedom of choice” had to fail, and that
the statistical evidence shows the degree to which it has
failed. Since the Constitution requires that the dual sys
tem based on race be disestablished, the District Judge
ordered the defendants to put an end to their extravagant
and race-directed irrationalities and to adopt a system
which makes educational sense and will desegregate the
schools as well. We submit that he could hardly have
ordered less.
4 In North Carolina, as a whole, in 1966-67, 15.4% o f the Negro students
attended desegregated schools. In Mississippi, the corresponding figure
was 2.5% (D-App. 24A-25A.)
6
Proceedings Below
The history of the action is fully described in the Opinion
and Order of the Court below (D. App. 15A-17A).6 Since
Notice of Appeal was filed, a group of Negro parents
opposed to the District Court’s decree have moved this
Court for leave to intervene in the action. The facts sur
rounding this motion, which we oppose as an untimely
attempt to relitigate what the District Court has already
decided, are discussed in our Response thereto, filed De
cember 7, 1967.
THE EVIDENCE
I.
Defendants’ Adherence to Policies and Practices
Which Perpetuate a Dual System Based on Race.
A. School Organization and Utilization.
A study of the Franklin County school system was made
for this case by William L. Stormer, Assistant Chief of
the School Construction Section of the Division of School
Assistance, United States Office of Education. Mr. Stormer
testified in the action (1036a et seq.) and compiled a writ
ten report which is attached to his deposition (1551a et
seq.). Despite ample opportunity to do so, defendants de
clined to cross-examine Mr. Stormer on deposition or at the
trial and, for the most part, his testimony is uncontradicted.
Mr. Stormer testified, and the evidence shows, that the
schools in four areas of Franklin County (Louisburg, Bunn,
Youngsville and Gold Sand) are organized in groups and
clusters of two or three, one traditionally white and one 5
5 See 273 F. Supp. 289, 292-293 (E .D . N.C. 1967).
f i c s f i f i f i ; : : . . "■■■: a f i t f i f i ■ . . - d f
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7
or more Negro (1040a-1041a). Every Negro school is with
in a mile or so of a predominantly white school covering
the same grades (1041a). In two other parts o f the county
—Epsom and the general area of Edward Best High School
and Edward Best Elementary School—there are white
schools but no Negro schools (1041a, 1415a-1416a). Several
of the high schools in the county are very small (Epsom,
a white school, had 72 children in grades 9-12 last year),
and only one or two are large enough to make diversified
educational opportunities available to students at a reason
able cost per pupil (216a, 1043a).
Mr. Stormer was asked whether a system in which pairs
of schools offering the same grades were located in the
same area presented any educational disadvantages, and
he listed several:
(a) A more diversified program may be offered in a
large school than in a small one, particularly in
the high school grades (1042a). For example,
Bunn (white) and Gethsemane (Negro) schools
are located within about a mile of one another.
Bunn had 229 students in grades 9-12; Geth
semane 157 students in these grades (216a). Bunn
offers the following courses which Gethsemane
does not: Geography, Advanced Trigonometry
and Algebra, Agriculture, Consumer Math, Short
hand, Spanish I and II, Physical Education and
Health II, and Chemistry. Gethsemane offers the
following courses which Bunn does not: Con
struction industry, Business Communication, and
Special Education (218a, 1044a). I f the high
school grades of these schools were consolidated,
each high school student now in either school
would be able to take any of the above courses
(1045a).
8
(b) There is a substantially higher cost per pupil in
attempting to provide a diversified program to a
small school than a large one. In Mr. Stormer’s
words, “ the smaller the school, the higher the
cost per pupil for the educational program being
offered . . . Because of small total membership,
you are not able to maintain classes in certain
subject areas because . . . it becomes uneconomi
cal to offer one class for five or six or seven pupils”
(1043a).
(c) In general, it is possible to secure better utiliza
tion out of the school facilities if the plants of
two small schools are combined than if the same
grades continue to be offered in each school
(1042a).
When asked if there were any educational advantages to
this system of pairs of schools, he said he knew of none,
and that the only explanation for its existence was racial
segregation (1068a, 1095a).
The situation closely resembles that discussed by the
Court in L e e v. M a con C o u n ty B o a rd o f E d u ca tio n , 267
F. Supp. 458, 472 (M.D. Ala., 1967) (three judge court),
the statewide school desegregation suit in Alabama, in the
following passage:
. . . Considerations of economy, convenience, and edu
cation have been subordinated to the policy of racial
separation; survey approvals of construction sites re
flect this policy. A striking instance of this discrim
inatory conduct is found in the Clarke County survey
conducted during the 1964-65 school year. At the time
of the survey, there were twenty-three schools in the
system attended by approximately 5800 students—
2400 white and 3400 Negro. Consolidation was clearly
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called for; yet the survey staff sought to perpetuate
the segregated system by recommending and approv
ing that, in each of the three principal towns of the
county, two separate schools be maintained as perma
nent school installations, each covering grades 1-12.
This recommendation in each of these three towns in
Clarke County, Alabama, can be explained only in
racial terms . . .
See also M oses v. W ashington Parish , La. School B oard,
------F. Supp.------- (No. 15973, E.D. La., October 19, 1967);
Cf. Singleton v. Jackson M unicipal Separate School D is
trict, 355 F.2d 865, 871 (5th Cir. 1966); K elley v. A ltheim er,
A rk School D ist., 378 F.2d 483, 486 (8th Cir. 1967).
Mr. Stormer testified that consolidation of side-by-side
schools, with the facilities of each used for some grades,
was feasible and educationally advantageous, and would
automatically desegregate the schools (1078a-1079a, 1042a
et seq.; 1556a). He also explained the administrative con
venience of geographical zoning, which would likewise
eliminate the dual system (1074a-1079a). The District
Court’s order requires the defendants to adopt one or both
of these methods to desegregate the schools.
B. A ssign m ent o f Staff and Faculty.
Prior to the commencement of the 1966-67 school year,
all white teachers in the Franklin County system taught
at white schools, and all-Negro teachers taught at Negro
schools (D. App. 6A). On July 27, 1966, the District Court
entered an Interim Order which included a faculty provi
sion based on W heeler v. Durham C ity B oard o f E duca
tion, 363 F.2d 738 (4th Cir. 1966). The defendants were
ordered to fill all faculty and professional staff vacancies
on a nonracial basis and to encourage transfers across
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racial lines by present members of the faculty. The de
fendants were also required to file Objective Standards
for Employment, Assignment and Retention of Teachers6
(D. App. 8A-10A).
The District Court found, on the basis of ample evi
dence, that the defendants had failed, under the Interim
Order, to take adequate affirmative steps to accomplish
substantial staff and faculty desegregation. This failure
did not result from inadequate opportunity. Of a total
1966-67 faculty of 232 (112 white, 120 Negro), 49 (25 white,
24 Negro were newly employed that year, and could have
been assigned to any school in the system (215a). Nor
was there a scarcity of teachers already employed who
were prepared to transfer. Five such teachers testified on
deposition, three for defendants and two for plaintiff-
intervenor, and all of them stated that they would have
been willing to cross racial lines but had not been asked
by the defendants to do so (99a-1000a; 1018a-1020a; 1216a;
1222a-1223a; 1226a-1229a). Nevertheless, nine of the twelve
schools in the system remained totally segregated with
respect to faculty (1408a-1409a). In the remaining three,
Negro librarians were assigned to each of two white
schools7 and a white librarian and white English teacher
(who taught for five hours a week) were assigned to an
all-Negro school. Except for these assignments, the only
6 A provision o f these Standards, which provided that teachers would
be assigned, i f possible, to the school o f their choice, and which sought
to delegate to them the Board’s duty to desegregate the faculty, was
properly disapproved by the District Court as tending to perpetuate
segregation, K ie r v. C o u n ty S c h o o l B d . o f A u g u s ta C ty , V a ., 249 F. Supp,
239, 248 (W .D . Va. 1966).
7 One o f these Negro librarians at a white school became sick and the
defendants replaced her during the course o f the year and was replaced
by a white woman. (1409a) This totally resegregated the faculty o f a
tenth school.
' '•
■
11
“encouragement” given by the defendants to teachers to
cross racial lines was to notify them, orally and in writing,
that they might apply to cross racial lines (1228a-1229a).
Defendants contend (Brief, p. 40) that they could not
desegregate more during 1966-67 because only five or six
vacancies remained at the time of the Interim Order of
July 27, 1966. Even assuming that defendants had the
right to ignore Supreme Court decisions requiring deseg
regation generally, B ro w n v. B o a rd o f E d u ca tion , 347 TJ.S.
483 (1954), and in faculty assignments in particular, B ra d
ley v. S ch oo l B o a rd , 382 TJ.S. 103 (1965) and R o g e r s v.
P a u l, 382 TJ.S. 198 (1965), until they were personally sued
and enjoined— and we cannot assent to such a proposition
—this “ inadequate time” explanation is annihilated by
what took place thereafter. Superintendent Smith testified
at the trial, on July 26, 1967, that only five teachers had
been hired to cross racial lines for 1967-68, an increase of
one over the previous year. These five included one Negro
who had testified on behalf of plaintiff-intervenor that
she would be willing to transfer and one whose husband
testified that he believed she would be willing to do so.
Apart from these two teachers, who were in effect found
for defendants by the Government, there would actually
have been a d ecrea se in faculty desegregation for 1967-68
(1467a-1468a).
Two principal consequences flow from the defendants
fall nr pi to accomplish significant faculty desegregation un
der the District Court’s Interim Order of July 27, 1966.
The first is that a more specific and a more comprehen
sive decree directing substantial faculty desegregation is
now required. B ow m an v. C ou n ty S ch oo l B o a rd o f C h arles
C ity C ou n ty , V a ., 382 F.2d 326, 329 (4th Cir. 1967).
Judge Butler’s order, which requires affirmative encour-
r.r
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agement of teachers to cross racial lines, the assignment
of at least two minority race teachers to each school in
the district for 1967-68, and substantial progress there
after, is a temperate but firm reflection of what the courts
have been requiring under similar circumstances. D ow ell
v. S ch oo l B o a rd o f O klahom a C ity , 244 F. Supp. 971
(W.D. Okla. 1965), aff’d. 375 F.2d 158 (10th Cir. 1967),
cer t. den. 387 U.S. 931 (1967); K e l le y v. A lth e im er , A rk .
S ch oo l D is t., 378 F.2d 483, 498 (8th Cir. 1967); U n ited
S ta tes v. J e ffe r so n C ou n ty B o a rd o f E d u ca tion , 380 F.2d
385, 394 (5th Cir. 1967) (en banc), aff’g. 372 F.2d 836 (5th
Cir. 1966); K ie r v. C ou n ty S ch oo l B o a rd , 249 F. Supp.
239, 247 (W.D. Va. 1966). The second consequence of the
defendants’ failure to make progress on faculty desegre
gation is its bearing on the appropriateness of the “ free
choice” method of desegregation. As Judge Butzner said
in T h om p son v. C ou n ty S ch oo l B o a rd o f H a n o v er C ou n ty ,
252 F. Supp. 546, 551 (E.D. Ya. 1966), quoting from K ie r ,
s u p r a :
Freedom of choice, in other words, does not mean a
choice between a clearly delineated ‘Negro school’
(having an all-Negro faculty and staff) and a ‘white
school’ (with all-white faculty and staff). School au
thorities who have heretofore operated dual school
systems for Negroes and whites must assume the duty
of eliminating the effects of dualism before a free
dom of choice plan can be superimposed upon the
preexisting situation and approved as a final plan of
desegregation. It is not enough to open the previously
all-white schools to Negro students who desire to go
there while all-Negro schools continue to be main
tained as such. Inevitably, Negro children will be en
couraged to remain in ‘their school,’ built for Negroes
and maintained for Negroes with all-Negro teachers
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1 3
and administrative personnel . . . This encouragement
may be subtle but it is nonetheless discriminatory. The
duty rests with the School Board to overcome the
discrimination of the past, and the long-established
image of the ‘Negro school’ can be overcome under
freedom of choice only by the presence of an integrated
faculty.
See also Judge Wisdom’s majority opinion in J efferson ,
su pra , 372 F.2d at 890, wherein it was said
Freedom of choice means the maximum amount of
freedom and clearly understood choice in a bona fide
unitary system where schools are not white schools
or Negro schools— just schools.
C . Disparities.
Segregated schools are inherently unequal. Even if there
were no tangible disparities in Franklin County, the all-
Negro schools would still be inferior to the all-white schools.
Brow n v. B o a rd o f E d u ca tion , 347 U.S. 483 (1954). In
this case, however, the evidence—largely the defendants’
own reports to the State Department of Education— show
that reliance on presumptions and psychological damage is
unnecessary. As the District Court found (D. App. 27A-
28A), the disparities—tangible, physical, bread and butter
disparities—have been imposing.
At the time this action was started,8 all white children
and a few Negroes were attending schools at which the
school buildings and equipment were worth $913.44 per
pupil. At the Negro schools, the corresponding figure was
8 The details o f the disparities are set forth in our motion to eliminate
them, which, in turn, was computed from materials filed by the defen
dants with the State Board o f Education and introduced into evidence
in this case. (185a-203a) See also Mr. Stormer’s Report (1551a-1566a).
'
1 4
$285.18 per pupil. Two small Negro schools, Youngsville
Elementary and Cedar Street, were worth $93.77 and
$133.49 per pupil respectively.
At the predominantly white schools, there was a class
room for every 22.8 students. At the Negro schools, the
corresponding figure was 34.9.
Predominantly white schools had 24.9 pupils for every
acre of site. Negro schools had 94.7 pupils per every acre
of site. Riverside High School (Negro), with twice as
many students as predominantly white Louisburg High
School, has one-quarter of the acreage.
White children had nine library volumes per pupil.
Negro children had four. There was a white teacher for
every 25 white children enrolled, and there was a Negro
teacher for every 35 Negro children enrolled. Since segre
gation was, until recently, almost universal in North Caro
lina, these Negro teachers had, for the most part, attended
segregated, inferior Negro schools.
All the predominantly white elementary schools are ac
credited by the State. No Negro elementary school has
accreditation. The predominantly white high schools have
all been accredited since the 1920’s, The three Negro high
schools were accredited in 1933,1960, and 1951 respectively.
Two of the Negro schools—Youngsville Elementary and
Cedar Street— are, so Mr. Stormer testified, simply in
adequate (1061a-1062a). Cedar Street has four teachers
for seven grades (1058a). Children eat lunch in the class
room, and this lunch is shipped in by truck from all-Negro
Riverside, past predominantly white Louisburg (1434a).
The situation at Youngsville Elementary is similarly poor
(1058a, 1098a).
.
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15
The problems are many, but the most acute is over
crowding. During 1966-67, the Franklin County Board of
Education was receiving federal assistance under the
Elementary and Secondary Education Act (1422a). There
are mobile classrooms—nicknamed “portables”—all over
the already overcrowded Negro school sites, and there is
other federal equipment (1050a-1053a, 1423a-1425a). This
federal assistance has increased the value of buildings and
equipment per pupil at the Negro schools, and has re
duced to some limited extent the number of pupils per
classroom at Negro schools (D. App. 28A).
However, even after the addition of portable classrooms,
all of the Negro schools except Cedar Street remain over
crowded, and Cedar Street v/ould be without its portable
(1063a). White Epsom High, on the other hand, with 72
students in grades 9 through 12, all white, is at 39.5%
of reasonable capacity (1560a). To run a high school of
that size is so expensive that teacher salaries are $350.30
per pupil in the class, compared with $188 at Bunn, $231.09
at Perry’s and $235.09 at Riverside (1566a). Neverthe
less, the Negro students living in Epsom are carried 13
miles to Riverside High School, at which students number
lias 126.4% of capacity even with the portable. Similarly,
Negro students living near under-utilized white Youngs-
vilie High travel 14 miles to Riverside, and those in the
vicinity of under-utilized and white Edward Best High—
ride a similar distance to overcrowded all-Negro Perry’s
(1415a-1417a).
During 1966-67, using 25 pupils as the capacity per class
room, the Negro schools were overcrowded by a total of
392 pupils, whereas five, the predominantly white schools
—Edward Best Elementary, Edward Best High, Epsom,
Cold Sand and Louisburg High—were under-utilized by a
16
total of 492 places.9 Even if choice in Franklin County had
really been free, the defendants would still have been under
the obligation to assure approximately equal pupil-class-
room ratios.10 Quite apart from the effect of intimidation
on the amount of desegregation in Frankin County, Judge
Butler’s Order directing defendants to transfer a sufficient
number of Negro pupils to white schools for 1967-68 to
assure that a total of at least 10% attend desegregated
schools, was an appropriate response to the overcrowding
problem alone.
The existence of these uncontested disparities required
the District Court to include in its Order a strong equali
zation provision, and the Court did so (D. App. 35A-36A).
The significance of so extreme a denial of equal educa
tional opportunities, however, goes beyond that portion of
the decree, and affects the principal issue of the constitu
tional adequacy in Franklin County of desegregation under
“free choice.” In Franklin County, private sources make
major contributions to the schools, and, since white people
in the county are generally much wealthier than Negroes,
/ the white schools rejefcjive most of the benefit (1400a-1401a).
Since, under freedom of choice plans, schools tend to
retain their racial identities, and formerly Negro schools
remain all-Negro for lack of white pupils electing to at-
9 These statistics include the portable classrooms provided by the Fed
eral Government and located at overcrowded Negro school sites (1423a-
1425a). The only possible justification for further overcrowding the
Negro sites by locating the portables there is racial. I f the portables had
been placed where there was room for them, it would have been even
more imperative to transfer Negro pupils to white schools. The author
ities require, as did the District Court here, that any substantial additions
to existing schools be made with the “ objective of eradicating the ves
tiges of the dual system.” J efferson , su pra , 380 F. 2d at 394, K e lle y ,
supra, 378 F. 2d at 499.
10 See the Fifth Circuit’s Model Decree in J efferson , 380 F. 2d at 393-
394; K e lle y v. A lth eim er , su pra , 378 F. 2d at 499.
17
tend them,11 contributions, under such a system, are likely
to continue to go to predominantly white schools, and the
existence of inferior and sub-standard schools readily
identifiable as Xegro institutions will tend to continue.
Consequently, as .Judge Wisdom observed in J efferson ,
supra,
A freedom of choice plan will be ineffective if the
students cannot choose among schools that are sub
stantially equal. 372 F.2d at 891.
D. Transportation.
In K e l le y v. A lth eim er, A rk . S ch ool D istrict, supra, 378
F.2d at 497, the Court of Appeals for the Eighth Circuit
said:
The Board of Education transports rural students
to and from their homes precisely as it did during
the many years it operated a segregated school sys
tem. It was inefficient and costly then. It is just as
inefficient and costly now. Running two school buses
down the same country road, one to pick up and de
liver Martin students and the other to pick up and
deliver next door neighbors attending Altheimer, is
a luxury that this impoverished school board could
not afford in the past and cannot afford now. The
difference is that, before B ro u n the Board had the
same right to operate segregated school buses as it
had to operate segregated schools. While we have no
authority to strike down transportation systems be
cause they are costly and inefficient, we must strike
them down if their operation serves to discourage the
desegregation of the school system.
11 U nited S ta tes v. J efferson C ou n ty Board, o f E d u ca tion , su pra , 372
F. 2d at 889 ; Bep. U, S. Comm, on Civil Eights, Survey o f Desegregation
in the Southern and Border States, 1965-66, p. 33.
18
The organization of the Franklin County district pur
suant to a system of side-by-side schools makes the cited
language of the K e lle y case particularly applicable to the
facts at bar. In the rural areas of Franklin County, whites
and Negroes live side-by-side (1418a). Since the white and
Negro schools are also located, for practical purposes, side
by side, and since, except as indicated below, each school
has its own bus routes, substantial overlapping results
(1418a).
The feasibility and desirability of consolidating bus
routes—a step which would end unnecessary duplication—
has been recognized by the defendants by their conduct.
Since Franklin County employs high school students as
drivers, it has been necessary to provide pupils from other
schools to drive school buses, for three elementary schools
—Edward Best Elementary (white) and Cedar Street and
Youngsvilie Elementary (Negro). Accordingly, the bus
routes of each of these schools have been combined with
those of schools which offer high school grades. It is
in this contest that the dual system orientation of the
defendants is most clearly exposed; the Negro elementary
schools have common bus routes with other Negro schools,
and the white elementary school has a common route with
white Edward Best High. The most extreme example has
been the consolidation of the routes of all-Negro Youngs
vilie Elementary with those of all-Negro Riverside, four
teen miles away, rather than with all-white Youngsvilie
High School, half a mile away (1418a). Similarly, all-
Negro Cedar Street was combined with Riverside rather
than with predominantly white Louisburg (which is lo
cated between the two), not only for transportation of
pupils (1418a-1422a), but also with regard to the lunch
program; lunch is trucked in from Riverside past Louis
burg to Riverside (1434a).
.
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19
Defendants’ transportation policy carries with it all of
the usual incidents of racial discrimination. Not only do
the Negroes attending Negro schools—98.5% of all the
Negroes—ride separate buses, but their transportation is
inferior. When suit was brought, the average load on buses
at Negro schools was 64.1, for buses at white schools 43
(D. App. 27A).12 13 Negro bus routes are longer in mileage
and time spent than those of white schools; e.g,, the longest
bus route for Negro Youngsville Elementary takes 100
minutes each way, the longest for white Youngsville High
fifty-five. At all-Negro Eiverside, fourteen of sisteen buses
make more than one trip per day; at predominantly white
Louisburg, none (Government’s Trial Eshibits 24 and 32:
not reproduced in appendix). Consequently, we believe
that Franklin County is a prime example of the principle,
restated by the Court in K elley , supra, that
the school bus is a principal factor in perpetuating
school segregation in many areas of the South. 378
F.2d at 497.
Conversion to a system of nonracial geographic attendance
zones, or to school or grade consolidation, as directed by
the District Court, will, of course, not only eliminate the
irrationality and wastefulness of the present transporta
tion system, but provide meaningful opportunities for a
desegregated education as well.18
12 A year later the figures were 54.7 to 40.2 (D. App. 28A).
13 In C orb in and U nited S ta tes v. C ou n ty S ch ool B oa rd o f L ou doun
County, Y a . , -------F. S u p p .-------- , C.A. No. 2737 (E.D. Va. August 29,
1967), United States District Judge Oren R. Lewis ordered, among other
things, that
As soon as practicable during the 1967-68 school year, and consistent
with economy and efficiency, all transportation of pupils shall be
desegregated and, to that end, the defendants shall forthwith dis
continue the practice o f limiting any particular bus route to any
particular school whenever such limitation results in unreasonable
overlapping between the routes o f buses serving traditionally white
schools and those serving traditionally Negro schools.
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In two recent decisions, District Courts in Virginia and
Louisiana have ordered the abandonment of the “ free
choice” system of desegregation even without proof of
intimidation. In C orbin and United S ta tes v. C ounty School
Board o f L oudoun C ounty, V a . , ------F. Supp.--------, C.A.
No. 2737 (E.D. Va. August 29, 1967), the proof showed
that in Loudoun County, Negroes, who comprised about
15% of the student population, were scattered throughout
the county and, under a somewhat informal “free choice”
system, rode long distances, past predominantly white
schools to all-Negro schools. The Superintendent admitted
that most of the Negro pupils could be accommodated at
predominantly white schools close to their homes. There
was gross duplication in white and Negro bus routes.
Progress towards disestablishing dual school zones had
been halting. Judge Oren R. Lewis, accepting the Govern
ment’s argument that there was no rational non-racial
basis for continued adherence to any system, including
“free choice,” which would preserve the existence of all-
Negro schools, entered an Order which included the follow
ing provisions:
Effective for the 1967-68 school year, the defendants
shall assign all Negro elementary school students in
the system who reside outside the town limits of Lees
burg to the schools nearest their homes having the
capacity to accommodate them.
# # * * #
No later than the commencement of the 1968-69 school
year, the Loudoun County Elementary Schools shall
be operated on the basis of a system of compact, uni
tary, non-racial geographic attendance zones in which
there shall be no schools staffed or attended solely by
Negroes. Upon the completion of the new7 Broad Run
02
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21
High School, the high schools shall be operated on a
like basis.
In M oses v. W ashington P arish , La. School B o a r d ,------
F. Supp.------ , CA No. 15973 (E.D. La. October 19, 1967),
the Court, noting the existence of some of the educational
and administrative disadvantages of the “free choice” sys
tem which are proved by the record here, ordered “the
abandonment of the so-called ‘free choice’ method of pupil
assignment for the Washington Parish school system and,
in its place, the institution of a geographical zoning plan.”
Judge Heebe traced the origins of the free choice system
and expressed the view that it was a logical interim
measure:
In the process of grade by grade desegregation, it is
not difficult to imagine the hardships inherent and
indeed the practical impossibility of requiring shifting
geographcal zones for desegregated grades, while al
lowing maintenance of the segregated assignments for
grades not yet reached by the desegregation proc
ess. . . .
But the usefulness of such plans logically ended with
the end of the desegregation process. With all grades
desegregated, there is no apparent reason for the
continued use of the purely interim and temporary
free choice system.
Expounding at some length on the educational shortcom
ings of “ free choice,” including its disruption of the “first
principle of pupil assignment . . . [which] ought to be
to utilize all available classrooms and schools to accommo
date the most favorable number of students,” and on its
inherent uncertainties, as a result of which “the board
cannot make plans for the transportation of students to
2 2
schools,14 plan, curricula, or even plan such things as lunch
allotments and schedules,” the Court found that the School
Board was adhering to “ free choice” not because of real
concern about the pupil’s volition, which had been deemed
irrelevant prior to desegregation, but rather for the pur
pose of “ shifting to both white and Negro students the
board’s own burden to run honestly and actually desegre
gated truly non-racial systems.” The Court concluded that
since “the implementation of the absurd system of free
choice on a permanent basis has followed closely on the
heels of the imperative to desegregate,” and since the
School Board had not shown any valid non-racial purpose
UP for continuing to] this system, the “free choice” plan would
be disapproved and geographic zoning ordered.
The holdings in the C orbin and M oses cases, and the
remarks of appellate courts in others,15 16 suggest that it is
at last arguable that the rather extreme facts of this case,
even absent any intimidation, would make Franklin
County’s “ free choice” plan constitutionally inadequate.
We think these dual system facts important because they
illustrate the extent to which conversion to a unitary sys
tem will eliminate the administrative and educational as
well as racial burdens which Franklin County has had to
bear for so long.^This Court need not decide here, how
ever, whether the Board’s “dual system” policies and prac
tices would invalidate free choice in a free and uninhib
ited atmosphere, for in Franklin County there has been
no such atmosphere^) In this County, racial intimidation
has been such that “ freedom of choice” has been, in the
14 See in this connection the testimony o f Thaddeus Jerome Cheek
(627a, 632a).
16 J efferson , su pra , 372 F. 2d at 889; K e m p v. B ea sley , 352 F. 2d 14,
21 (8th Cir. 1965); S in g leton v. J ackson M u n icip . S ep a ra te S ch oo l D ist.,
355 F. 2d 865, 871 (5th Cir. 1966).
23
District Court’s words, both an illusion and a misnomer,
and the choice has not been free in the practical contest
of its exercise. Bow m an v. C ounty School B oard o f
Charles C ity C ounty, 382 F.2d 326, 327-328 (4th Cir. 1967).
n.
Pressures Inhibiting the Exercise of Free Choice.
The District Court’s decision holding unconstitutional
Franklin County’s “free choice” plan was principally
grounded on the esistence of community hostility to de
segregation and on numerous acts of violence and intimi
dation directed against Negroes seeking a desegregated
education for themselves or for their children. While
there are suggestions in defendants’ brief that the District
Court erred on the law, and that the “ free choice” plan
should be allowed to stand even if choice was effectively
inhibited by intimidatory acts of third parties,16 the thrust
of their argument appears to be that the evidence was
insufficient to support Judge Butler’s findings of commu
nity hostility and intimidation.17 We submit that this con
tention is completely without substance. While, under Rule
52(a) of the Federal Rules of Civil Procedure, the Court
of Appeals will sustain the District Court’s factual de
terminations, unless they are “clearly erroneous,” and will
16 See Defendants’ brief, pp. 33-34, 37.
1' Defendants also (brief, pp. 11-13) attack the sufficiency of Judge
Butler’s finding that the defendants failed, in 1965, to give parents in
still segregated grades notice o f criteria for transfer to desegregated
schools. They claim that this finding is at odds with the Court’s earlier
Order o f February 24, 1966. Actually, the two orders are perfectly con
sistent; compare Conclusion No. 6 of the 1966 order (D. App. 4A)
with pertinent language in the 1967 Order (D. App. 15A-16A, 19A).
Moreover, Rev. Latham, who discussed desegregation both with the
Board and with Negro leaders as a kind o f informal emissary, tes
tified, after the date o f the earlier order, that the criteria were not
determined until after the Negroes had applied (492a, 498a).
24
not disturb the trial court’s findings merely because it may
doubt their correctness, D a rter v. G reenville H o te l C orp.,
301 F.2d 70, 72-73 (4th Cir. 1962), questions about the
scope of review appear almost academic in this case. The
intimidation proved in this record is uncontradicted, and
its volume is probably unparallelled in the history of
school desegregation litigation.18 Its effects are apparent
from the 1.5% pupil desegregation achieved on the fourth
try in Franklin County—less than one tenth of the North
Carolina average.
A . Community Attitudes.
At pages 13-14 of their brief, defendants attack as un
supported by the evidence the District Court’s finding that
there is “marked hostility to school desegregation in Frank
lin County.” We submit that they know better. On Octo
ber 20, 1964, Mr. Clinton Fuller, one of the defendants
in this action, whose two hats as Vice President of the
School Board and editor of the county newspaper have
complicated this case, wrote in a rather sympathetic Frank
lin Times editorial about a large Klan rally that
The Klan has been strong in this county for many
years. By the nature of the organization, this has
been kept secret. It will undoubtedly gain strength
now following the rally (1571a).19
The Board of Education minutes of April 12, 1965, reflect
the filing of a petition with the Board, signed by 767
persons, stating that
18 A partial chronology of intimidatory incidents or events, as presented
to the trial court, is set forth at pp. 238a, e t seq. o f our Appendix.
19 For an illuminating discussion o f what the presence o f a strong
Klan means to Negroes seeking to exercise civil rights, see U nited S ta tes
v. O riginal K n ig h ts o f K u K lu x K la n , 250 F. Supp. 330 (B.D. La. 1965)
(three-judge court).
25
| We, the undersigned people of Franklin County, do
hereby express our preference to forfeit Federal Aid
to the schools of said county rather than to support
integration. We suggest this be put to a vote by the
people to maintain and operate our school system by
a tax on each and every adult taxpayer (1539a).
In August 5, 1965, Mr. Fuller remarked, in a Franklin
imes editorial about school desegregation headlined
frustration Is The Word” , that
| Most local citizens oppose integration of the schools.
We do ourselves. We don’t believe it will work (1581a).
I September of 1966, a citizens’ petition signed by 584
Mons, together with other pressures, prompted the re-
®sal of the decision by the school board of the admin-
jitratively separate Franklinton unit in Franklin County
I’an initial decision to agree to requests by the U. S. Office
iEducation for further desegregation (854a, 1606a); the
franklin Times of September 8, 1966 headlined the qcca- __—
i® “FRANKLINTON BOARD VOTES NO” (16()d)7on ^
wember 1, 1966, Mr. Fuller’s headline read: “FRANK-
tfflTON BUS USE LIFTED FOLLOWING K K K
°HREAT” (1610a). Finally, on November 22, 1967, Ne-
;t0 applicants for intervention who seek to return to all-
p o schools, and on whose intervention defendants claim
(brief, pp. 27, 35), alleged in their motion “that
;%are being forced to go to schools where they have
’ friends; and that they are nervous and upset”—a posi-
® which can hardly be reconciled with the supposed
■̂existence of community hostility.
^en without actual violence, this strong and highly
Acized community feeling would make freedom of
'01ce less than free in fact. Negroes in the county are
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2 6
i general much poorer than white persons and are eco-
lomically dependent on them,20 and poverty and depend-
ice restrict the range of choice. Cf. Vick v. C ounty School
krd o f O bion C ounty, Tenn., 205 F. Supp, 436, 440 (W.D.
inn. 1962). In Franklin County, however, choice has
it been inhibited simply by community attitudes. The
iderlying hostility has been implemented by pervasive
its of violence and intimidation which have jeopardized
le safety and well-being of any Negro who might seek a
segregated education.
I lets of Intimidation.
Since defendants attack the sufficiency of the evidence
support the findings of intimidation, we have found it
sessary to print in our Appendix most of the proof we
lfe adduced with respect thereto, so that the Court may
%e for itself. We believe that the Chronology of In
flation (238a et seq .) provides the Court with a useful
•tspective as to the obstacles Negroes seeking a deseg-
?ated education have had to meet, and we will only
:°dde a brief outline here.
evidence of intimidation in this record begins in
B’ with a bomb threat to Eev. Dunston, NAACP leader
%
Sily
%
sons
C a teg ory
income over $3,000 per year ............
income over $5,000 per year ............
income over $7,000 per year ............
with insome over $3,000 per year
residing in owner occupied units ....
Income— Fam ilies .................................
Income— Persons ....................................
are in the
County:
record (259a et
% o f A ll
W h ite % o f A ll
P erson s N on w hites
in C a teg ory in C a teg ory
58.3% 13.2%
29.5% 2.7%
12.1% 0.7%
27.8% 4.9%
63% 29%
$3,507 $1,281
$1,701 $595
27
who had presented a 130-name petition for desegregation
to the School Board (274a, 412a). In 1964 an unsuccessful
attempt was made by a group of Negroes to transfer to
desegregated schools; the parents involved were promptly
warned to stay off a white man’s land (421a; 451a). In
1964, considerable publicity was given to Klan activity,
including cross burnings, rallies, and the successful in
timidation of the Chairman of the annual Christmas parade
for not putting Negroes in the back of the procession
(363a-364a, 1567a-1573a). Accordingly, in the spring of
1965, when the defendants elected to desegregate by the
“freedom of choice” method, they knew that the Klan was
active in the county and that some opponents of deseg
regation had violent tendencies, and they might well have
anticipated just how free “free choice” would be.
On June 8, 1965, following the defendants’ adoption of
the “ freedom of choice” plan, the Franklin Times dis
closed the names and schools of the Negroes who applied
to attend previously all-white schools (D. App. 69A-71A).21
Following the release of these names, the intimidation be
came particularly intense. There were shootings into
homes (372a, 414a, 424a-428a, 1575a, 1596a); explosions at
Negro residences, (605a; 674a; 760a-761a; 888a-890a;
1587a) ; well poisonings and similar incidents (198a, 398a,
569a, 629a); the scattering of nails in driveways; (411a,
499a, 567a); threatening or obscene notes (596a, 667a, 628a,
927a, 960a, 1109a) ; hundreds of threatening or abusive
telephone calls (277a, 329a, 429a, 487a; 499a; 564a-565a;
884a-885a; 1278a-1279a); cross burnings (310a, 499a, 535a,
21 On other occasions, Mr. Fuller also published the addresses of some
or all families involved in desegregation, or in incidents arising there
from (424a, 721a, 1568a, 1575a, 1582a, 1584a), and he told a fellow
board member who tried to restrain him from such publication to “ mind
his own business.” (495a-496a)
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28
565a, 730a, 890a); and economic reprisals of various kinds
(282a; 335a-337a; 410a-411a; 566a-567a; 691a-693a; 742a
et s eq .; 907a et s eq .; 1591a et seq .).
The result was, as Judge Butler found, that while 76
of approeimately 3,100 Negro pupils applied to attend
previously all-white schools, and 31 were accepted, all but
six withdrew before the close of the 1965-66 school year
(D. App. 19A).22 Several of the Negro students who did
attend desegregated schools in 1965-66 were treated un
kindly by their fellow pupils; some received threatening
and abusive notes, and one was pushed around so much
in the first few days that he dropped out of school (628a,
926a, 1589a). The same period also witnessed Klan-type
harassment of Superintendent Rogers of the Franklinton
schools, who was trying to comply with federal desegre
gation requirements, and of two white ministers, Robert
Latham and Frank Wood, who were openly trying to im
prove race relations (499a-500a, 530a-536a, 730a-731a).
It was in July, 1966, immediately following the most
recent of these events, that this case was initially scheduled
for trial. Only 23 Negroes had elected to attend deseg
regated schools for 1966-67, and both plaintiffs and the
United States were ready to present the evidence of in
timidation which we have just described and to contend
that it had made “ free choice” constitutionally inadequate
in Franklin County. After discussions between the District
22 Margaret Crudup, whose testimony defendants seek to minimize
(brief, pp. 23-24), wrote a letter withdrawing her application to a white
school after her parents received the following anonymous note:
Dear Mr. and Mrs. Crudup. We hear that you are sending a child
to Youngsville School. Well we are giving you 30 days to get .out-
o f Franklin County. Pay your lancjkwdjwhat you owe him if any.
Leave your crop. We are not going to warne you agane. We will
start in your family and will start with you to killing. (667a; see
also 649a, 661a)
29
Court and counsel, however, trial on the merits was post
poned, ant an Interim Otfler was entered in which defen
dants were requieed to conduct a new “ feeedom of choice”
period for Negroes with such safeguards against intimi
dation as could reasonably be put in a decree of this type
(D. App. 8A-14A). Following the entry of the Order,
counsel for all parties met with representative community
groups to try to mate free choice work (D. App. 24A-
25A), and the plaintiffs, the ministers interested in better
race relations, and others did their best to cooperate in
all ways with the District Court’s Order (742a-744a, 912a,
1265a). A new choice period ensued, and a total of 49
Negro pupils elected to attend desegregated schools^). App.
19A).
The hopes that the intimidation would cease and that
choice would become free in fact did not, however, ma
terialize. Immediately after the court-ordered free choice
period, shots were fired into a Negro home, and, while the
victim of this shooting did not have children in a desegre
gated school, the Franklin Times immediately associated
the incident with school desegregation and speculated as
to its effect on the Interim Order (1212a, 1596a), Soon
after school opened, shots were fired into the home of a
Negro whose two daughters had just enrolled for the first
time at a desegregated school f 422a-823a) A Negro pupils
O jf rft tfee t t - fe a n t of defesdasts* emaaasam on appeal '"brief,
PP- 15>-2H k lis t £ * Idssiet Coart feooM net ia*e eoaddered tsk
twsdeat t rw m r tee ^ m a n t prored it tiroszs tee t/wrisaoin- of one
of tae tssneaed sadeste fessead o? tirtw ei tee fafeer or mwfeesr. T ie r
stssest teat if fee peresas iso testfSed aas woalS is n feoan feat soase
K £ a ,s i lease* jay ofesad tie feoo&g. AeteaBy, k Je c o a t did sot
ta i e t tfesr faasSy aertha- alfeoagi tfibeyr ofstesly iare done
st. sad fees* » sot teas sired o f eiifeae in fee sowrf to stppoB defes-
iEEte' epsEiaasBs. Tie Raw s we eai'ed t it dosgbter safes’ feati fee
fateer was feat fee eeaed. ssd did, twfefy to ofeer fatiaaiatoty a d
feaaeEte st fee ies*ezressted sezaeei. aiaet wosdd ie a o a r-
a - fiaaas las ts-r*':.t- S25a ft f «
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30
continued to receive unfriendly treatment from fellow stu
dents at white schools (791a-792a; 825a; 927a-928a; 960a-
961a). The racial troubles of the Franklinton system to
which we have referred earlier were front page news, and
every Negro in the County could read in the Franklin
Times and elsewhere that intensive community pressure
had forced the Franklinton Board to capitulate to persons
hostile to desegregation (1602a), and that Mr. Rogers’
home was under guard (1600a).24 * Within a few months
of the opening of school, both of the white clergymen
whose concern for racial equity had led them to speak out
for their convictions and to testify for the United States
had been forced out of their pulpits, one formally by a
lop-sided vote of his congregation (749a), and one by the
accumulation of race-connected pressures which impeded
his ministry and threatened his family (911a).26 Super
intendent Rogers of Franklinton also resigned after being
subjected to civil and criminal charges and described in
the Franklin Times as the center of controversy over in
tegration (1600a), so that by the date of the 1967 trial,
all of the Government’s white witnesses at the 1966 depo
sitions had lost their jobs or resigned under pressure.
24 In an editorial about the Franklinton situation entitled “ Pressure in
a Thicket,” the R aleigh N ew s and O bserver o f September 10, 1966, pre
dicted that “ the extraordinary citizen pressure generated against the
school board is going to be evidence as to why a ‘freedom of choice’ plan
of desegregation has not worked there. It is doubtful whether any court
would believe ‘freedom of choice’ is possible where such pressure has
been demonstrated.” (1606a-1607a)
26 While defendants, (brief, pp. 21-22) consider it “ extremely unjust
for any person to even guess at the real reason” why these ministers lost
their pulpits, we submit that a reading o f their depositions (each testified
twice, once before and once after the loss of his pulpit; 483a et seq., 907a
et seq.; 526a et seq., 742a et seq.) and a consideration o f their racial
activities, the harassment, and the sequence o f events leaves no doubt as
to why they are no longer in Franklin County. Cf. Johnson v. B ranch ,
364 F. 2d 177, 182 (4th Cir. 1966).
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In the spring of 1967, Franklin County held its “free
choice” period for 1967-68—the fourth such period in two
years. The choice period coincided with an abrupt increase
in the level of harassment. In the first week in March,
an explosion took place outside the Coppedge home; this
incident is corroborated, despite defendant’s pleas to the
court to disregard it (Brief, pp. 20-21), not only by the
Government’s witnesses (1130a, D. App., 83A, 90A) but
also, except as to details, by defendants’ witnesses (D.
App. 221A-228A). Prior to the choice period, there had
been some let-up in the number of threatening and harass
ing telephone calls to the Coppedges, but after the period
began, the number rose to a peak of perhaps seven or
eight such calls per day (1278a-1280a). These calls con
tinued throughout the year and the last as to which there is
testimony took place three days before the trial (1280a).26
The choice period which was conducted under these condi
tions resulted in 45 Negroes selecting desegregated schools
—less than 1,5% of the total and a drop of four from the
previous year (D. App. 19A).
€. Defendants’ Attempts to R efute the P r o o f
of Intimidation.
The melancholy history represented by our Chronology
of Intimidation is uncontradicted, and no arrests have been
made of the perpetrators of any of these acts of violence
(370a-379a, 1482a). Unable to meet the proof of unchecked
intimidation directly, the defendants have attacked it from
36 Assorted other incidents, during- the 1966-67 school year, including
one additional shooting into a Negro home, are listed in our Chronology
o f Intimidation (249a et seq.). Unfortunately, the publicized intimida
tion did not end with the entry of the decree, and the Franklin Times
o f September 14, .1967, reported a new shooting into the Coppedge resi
dence under the telling headline “ SHOTS FIRED INTO HOME OF
SCHOOL SUIT P LA IN TIFF.” Further shots were fired into the Cop
pedge home on Christmas Eve, 1967.
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all directions. They allege that the District Judge should
not have considered some, or any, of the evidence (brief,
pp. 17, et seq .), or should not have believed the Govern
ment’s witnesses (p. 25), or should have disregarded tes
timony because plaintiffs or the Government called the
wrong witnesses (pp. 19-21), or used the wrong kind of
evidence (p. 34). They ask this Court to find that Judge
Butler was clearly erroneous in finding a relation between
the minimal progress in desegregation and the evidence
of intimidation—he should, they say (brief, p. 28), have
attributed this meager progress to lack of federally spon
sored “ free lunch” programs at white schools, even though
not a single witness mentioned this consideration, and
even though it is the policy of HEW to assure that benefits
“ follow the eligible child who has transferred under the
school desegregation program” (1427a-1428a). Finally,
defendants called witnesses of their own and claim on
appeal to have proved that nobody was afraid of the in
timidations and that the reprisals did not have any effect.27
This case being on appeal, we believe that additional
discussion of credibility and like issues is superfluous. We
do wish to comment, however, on defendants’ claim (brief,
p. 26) that “the learned trial Judge has in his findings of
fact been unduly influenced by sensational-sounding, hear
say, newspaper articles.” First, the articles in evidence are
not hearsay. They were not introduced to prove the truth
of their contents, but rather to show the publicity given
to intimidatory incidents in Franklin County. In most
instances, the fact of a shooting or bombing or similar
27 Defendants say (brief, p. 30) that plaintiffs and the Government
failed to produce a single witness who was influenced by fear during the
1967 choice period. While we think it unnecessary to call numerous wit
nesses to prove that shootings and bombings intimidate, defendants’
statement is simply inexplicable in the light o f the testimony o f Rev.
Arthur L. Morgan (1096a-1100a) and Ossie Lynn Spivey (1127a-1133a).
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event was proved by competent testimony, and the news
paper article was introduced simply to show that news of
the incident was widely disseminated and therefore likely
to influence more people. In the few instances where
newspaper articles were used without independent proof
of the incident—e.g., the two shootings into plaintiff Cop-
pedge’s home a fter Judge Butler’s decision—their rele
vance was to show that people in Frahxiin County were
reading in their newspaper of intimidatory incidents, for
such reading alone may well inhibit choice. Finally, al
most all of the “ sensational sounding” articles are from
the Franklin Times, which is edited and controlled by the
defendant Fuller. Anything written by Fuller or by his
authorized agents is admissible under the “admissions ex
ception” to the hearsay rule, even if offered to prove the
truth of the content of the writing, for any out of court
statement by a party is an admission. Usiak v. N ew York,
Tank B rid ge C om pany, 299 F.2d 808, 810 (2d Cir. 1962).28
This brings us to what the defendants apparently con
sider to be their affirmative non-intimidation case. A num
ber of Negro parents and students testified on behalf of
the defendants to the effect that it was not fear, but rather
preference for schools with which they were familiar and
in which they or their children had friends, that led them
to return to all-Negro schools (D. App. 102A; D. App.
197A; 1163a, 1183a, 1189a). IVhile many of the witnesses
had heard of some or all of the acts of violence or intimida
tion which had occurred in the county, they testified that
28 Newspapers have been admitted or used for various purposes in
assorted civil rights cases. See, e.g-., S w ann v. C h arlotte M eck len bu rg Bd.
o f E d u c., 369 F.2d 29, 31 (4th Cir. 1966) ; D avis v. S chnell, 81 F. Supp.
872, 879-881 (S.D. Ala. 1949), aff’d. 336 U.S. 933 (1949) ; U nited S tates
v. S ta te o f Louisiana, 225 F. Supp. 353, 375-376 (E.D. La. 1963) ; aff’d.
380 U.S. 145 (1965); H a ll v. S t. H elen a P arish S ch ool B oa rd , 197 F.
Supp. 649 (E.D. La. 1961), aff’d. 368 U.S. 515 (1961). Cf. D allas Co.
v. C om m ercial Union A ssu ran ce C o., 268 F.2d 388 (5th Cir. 1961).
.Qia
34
they would have returned to all-Negro schools anyway
(D. App. 100A; D. App. 102A-103A; D. App. 133A-134A;
D. App. 152A). Much of this is inevitable where, as here,
a school board, as a result of its faculty assignment and
other dual system policies, offers Negroes a choice be
tween schools identifiable as white or Negro (1175a, 1236a,
1285a), rather than between genuinely desegregated
schools, Negro pupils will inevitably be encouraged to
select the schools maintained for them. See K ie r v. C ounty
School B oard o f A u gu sta C ty ., Va., 249 F. Supp. 239, 247-
248 (W.D. Va. 1966).
The testimony adduced by defendants may support a
contention that intimidation and fear were not the only
reasons for Negroes remaining at all-Negro schools. It
could even be argued that such evidence would have sup
ported a finding (had the District Court made it) that
there were some Negroes who were so brave that the
prospects of shootings, explosions, telephone harassment,
well pollution and the rest would not make them hesitate
to elect desegregated schools for their children, although
even here several of the witnesses conceded that they had
no way of knowing if they would suffer reprisals or not,
and it is incredible that they did not care (1232a, 1236a,
1255a).29 What these witnesses could not, and did not,
show was that choice in Franklin County was free. Their
testimony does not support the contention that it was
sheer coincidence that the amount of desegregation was
low where the level of intimidation was so high. In fact,
29 Mrs. Ollie Strickland, a Negro mother, was one of those who testified
that she was not afraid, but on cross-examination acknowledged that
Negroes get along fine if they stay in their place, and that she was not
afraid because she did not plan to get out o f her place (1241a). Much
of the testimony of lack o f fear is most readily understandable in the
context that Negroes who chose Negro schools had nothing to be afraid
o f (1252a-1253a).
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many of the defendant’s witnesses conceded the contrary.
A few examples follow:
(a) Gladys Hayes, Negro mother, sent her children
to all-Negro Perry’s because that was where they
wanted to go, but admitted that in fact they did
not know how they would be treated at a white
school and that they were “kind of afraid to find
out” (1243a-1244a).
(b) Evelyn Harris, Negro high school honor student
who selected all-Negro Riverside school, acknowl
edged that the Klan is strong in Franklin County,
that she knew of numerous incidents of intimida
tion which happened to Negroes who elected de
segregated schools, that she attributed these in
cidents to their choice of white schools, that some
Negroes were certainly afraid to select white
schools, and that their number might well be
quite substantial (1246a-1251a). See also the simi
lar testimony of fellow student Veronica Hawkins
(1252a-1255a).
(c) Ira Bowden, white, aged 66, a neighbor of the
Coppedges who has lived in Franklin County all
his life, acknowledged that the Klan had been
strong in Franklin County for years, that it was
known to be against integration generally and
school integration in particular, and that he, like
the Negro mother Ollie Strickland, was not afraid
of the Klan simply because he was doing nothing
to offend it (1158a-1162a).
(d) Mrs. Mattie W. Crudup, Negro grandmother, testi
fied that she sent her grandchildren to all-Negro
Gethsemane voluntarily and felt that the small
number of Negro teachers and pupils at Bunn
36
was a significant factor influencing her choice; if
there were more Negro pupils and teachers at
white schools, the Negro children would feel “more
free” (1180a).
(e) Mrs. Mattie G. C. Harris, a Negro mother with
some college training, elected Gethsemane rather
than Bunn for her children because they preferred
it, although she recognized that Bunn had a
broader curriculum and that attendance there
would have obviated a long bus ride; she had
heard of some intimidatory incidents and was
familiar with the Klan; she believed the acts of
violence happened to people with children in white
schools, and that the white community was hostile
to desegregation; in general, she would prefer
each child to attend the school nearest to his home
(1165a-1170a).
(f) Melissa Dean, Negro mother, elected to send chil
dren to all-Negro Perry’s school because she even
prefers a bad Negro school to a good white school;
she knew of several intimidatory incidents which
happened to Negroes with children in white
schools; she refused to answer the question
whether she thought such incidents would dis
courage integration, but admitted that she wanted
to help counsel for defendants and admitted that
she knew the answer to the question which she
refused to answer (1240a-1242a).
We believe that if the testimony by defendants’ wit-
neses is read as a whole, rather than conveniently charac
terized as at page 29 of defendants’ brief, its impact on
the District Court’s finding that choice in Franklin County
was not free in fact was minimal, and the Court was justi-
v v y * - - . n.:;
3 7
fled in reaching its conclusion without explicit reference
to it.
D . The Legal Effect of Community Attitudes and
Intimidation on the Constitutionality of
the Freedom of Choice Plan.
In setting aside “ freedom of choice” in Franklin County,
the Court below said, citing numerous authorities:
Every freedom of choice plan must be judged on a
case by case basis. “The plan must be tested not
only by its provisions, hut by the manner in which it
operates to provide opportunities for a desegregated
education.” W rig h t v. C ounty School B oard , 252 F.
Supp. 378, 383 (E.D. Va. 1966). It is a permissible
plan so long as it comports with constitutional stan
dards. It is constitutionally impermissible and, in
deed, a misnomer when the choice is not free in fact.
This Court has found that cmomunity attitudes and
pressures in the Franklin County School system have
effectively inhibited the exercise of free choice of
schools by Negro pupils, and their parents. So-called
“freedom of choice” under such circumstances is an
illusion. * * * (D. App. 30A-31A; 273 F. Supp. at 299).
Defendants apparently disagree with this statement of
the law. They contend (Brief, p. 37) that intimidation by
third parties is in effect irrelevant in that it does not
constitute state action but private conduct. Carried to its
logical conclusion, this argument means that if a county
has a “ free choice” plan, and every Negro who elects to
attend a previously all-white school is shot to death, this
does not affect the plan’s constitutionality. Such a doc
trine wuold, in effect, be an invitation to hostile elements
to destroy a desegregation plan, and is not supported by
reason or authority. It is now settled law that “If choice
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influencing factors are not eliminated, freedom of choice
is an illusion,” 80 that an atmosphere of fear and intimida
tion makes “free choice” impermissible, and that an in
ordinately low amount of pupil desegregation is persuasive
evidence that the plan is not operating constitutionally.
In Cypress v. N ewport News Gen. Hospital, 375 F.2d
648, 653 (4th Cir. 1967), a hospital discrimination case in
which the defendants sought to attribute the lack of Negro
doctors on the staff to lack of interest rather than to dis
crimination, this Court held that the fact “that so few
Negroes have applied is no indication of lack of interest,”
and noted by analogy that the former U. S. Commissioner
of Education “ recently observed that a ‘Freedom of Choice’
plan is meaningless in many cases because people are in
fear of reprisals should they attempt to exercise a choice.”
Developing this theme further in its most recent decision
on “ freedom of choice,” this Court said:
Whether or not the choice is free may depend upon
circumstances extraneous to the formal plan of the
school board. If there is a contention that economic
or other pressures in the community inhibit the free
exercise of the choice, there must be a judicial ap
praisal of it, for “freedom of choice” is acceptable
only if the choice is free in the practical context of
its exercise. If there are extraneous pressures which
deprive the choice of its freedom, the school board
may be required to adopt affirmative measures to
counter them. Bowman v. County School Board of
Charles City County, 382 F.2d 326, 327-28 (4th Cir.
1967).
30 L ee v. M a con C ou n ty B oard o f E d u ca tion , 267 F. Supp. 458, 479
(M.D. Ala. 1967) (three judge court).
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Other courts have reached the same conclusion. In
K elley v. Board o f Education of City o f Nashville, 270 F.2d
209, 229-230 (6th Cir. 1959), the Court, in upholding a
“free choice” transfer provision in a desegregation plan
based on geographic attendance zones, held assignment
pursuant to choice to be lawful, but observed:
*' * * It is conceivable that the parent may have made
the choice from a variety of reasons—concern that
his child might otherwise not be treated in a kindly
way, personal fear of some kind of economic reprisal;
or a feeling that the child’s life will be more har
monious with members of his own race. In common
justice, the choice should be a free choice, uninfluenced
by fear of injury, physical or economic, or by anxieties
on the part of a child or his parents.
* * * * *
* * * But if it should appear, upon a showing, that
there are impediments to the exercise of a free choice,
and that a change should be made in the plan to carry
out, in good faith, and with every safeguard to the
children’s rights, the mandate of the Supreme Court,
the district court, having retained jurisdiction during
the entire period of the process of desegregation under
the Board’s plan, shall make such modification in its
decree as is just and proper.31
In Vick v. County School Board o f Obion County, Ten
nessee, 205 F. Supp. 436, 440 (W.D. Tenn. 1962) the
Court, in upholding the facial constitutionality of a “free
dom of choice” plan, cautioned that
31 The Court in the K e l le y case upheld the validity of the minority to
majority transfer rule, since declared unconstitutional by the Supreme
Court as preservative of segregation. G oss v. B oa rd o f E d u ca tion o f
K n o x v ille , 373 U.S. 683 (1963).
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* # # In the event that, upon the registration of the
Negro students in June, it should appear that eco
nomic or other pressure, overtly or convertly, is
brought to bear on the Negro parents and students,
this Court, having retained jurisdiction, might find it
necessary to eliminate the choice provision from the
plan in order to effectuate the mandate of the Supreme
Court in the Brown decisions.
The two federal agencies which have had occasion to
consider this problem concur with the above-cited deci
sions. In its “ Survey of School Desegregation in the
Southern and Border States, 1965-66,” the U. S. Commis
sion on Civil Rights, following a study of the operation
of “ free choice” plans, recommended their disapproval by
the Department of Health, Education and Welfare in dis
tricts where “there is evidence that Negro parents have
been intimidated, threatened or coerced as a result of ex
ercising rights under the plan or in order to deter the
exercise of such rights.” Similarly, the Revised Desegrega
tion Guidelines of HEW’s Office of Education, to which the
courts give respectful consideration,32 provide as follows:
A free choice plan tends to place the burden of de
segregation on Negro or other minority group stu
dents and their parents. Even when school authorities
undertake good faith efforts to assure its fair opera
tion, the very nature of a free choice plan and the
effect of longstanding community attitudes often tend
to preclude or inhibit the exercise of a truly free
choice by or for minority group students.
* * * * *
32 B ow m a n v. C ou n ty S ch oo l B oa rd o f C harles C ity C ou n ty , 382 F.2d
326, 328 (4th Cir. 1967); C yp ress v. N ew p o rt N ew s G en. H osp ita l, 375
F.2d 648, 656-657 (4th Cir. 1967); U nited S ta tes v. J efferso n C ou n ty
B oa rd o f E d u ca tion , 372 F.2d 836 (5th Cir. 1966), affd en banc 380
F.2d 385 (5th Cir. 1967).
41
The single most substantial indication as to whether
a free choice plan is actually working to eliminate the
dual school structure is the extent to which Negro or
other minority group students have in fact transferred
from segregated schools. Thus, when substantial de
segregation actually occurs under a free choice plan,
there is strong evidence that the plan is operating
effectively and fairly, and is currently acceptable as
a means of meeting legal requirements. Conversely,
where a free choice plan results in little or no actual
desegregation, or where, having already produced
some degree of desegregation, it does not result in
substantial progress, there is reason to believe that
the plan is not operating effectively and may not be
an appropriate or acceptable method of meeting con
stitutional and statutory requirements. (45 CFR
§181.54)
The Guidelines also contain the general yardstick for as
sessing the success of a free choice plan to which the Dis
trict Court referred to in its third Conclusion of Law,
(D. App. 28A-29A; 273 F. Supp. 298) and the contrast
between the progress made by Franklin County and that
contemplated by the Guidelines is a telling measure of the
effect of intimidation and of the defendants’ dual system
policies. See also J efferson , supra, 372 F.2d at 886-888,
and cases there cited.
The only authority cited by the defendants in support
of their apparent theory that intimidation is irrelevant is
U nited S ta tes v. H ayivood C ounty B oa rd o f E ducation , 271
F. Supp. 460 (W.D. Tenn. 1967). In that case the Court,
after admitting evidence of intimidation and of the sub
jective state of mind of the Negroes on the theory that
“a freedom of choice plan is constitutional only if, in its
actual operation, the Negro pupils and their parents are
/
tri ^
I I S
42
truly free to choose . . . in effect found a failure of proof
and therefore sustained the Board’s “free choice” plan.
The Court stated that the white citizens of the county dis
approved of the alleged acts of intimidation, that the
county’s business leaders were trying to promote equal
opportunities for Negroes, and that a biracial committee
was now effectively dealing with complaints of discrimi
nation. The Court concluded:
In short, while Haywood County has had some shame
ful incidents in its past history, the situation is improv
ing and we believe, from the evidence, will continue
to improve. (271 F. Supp. at 464)
That the H ayw ood C ounty decision is not authority for
the defendants’ “intimidation is irrelevant” theory is estab
lished by the following remarks made by the District Judge
from the bench in that case during the course of the trial:
* * * We have always made it clear that a freedom of
choice plan can be constitutional if, and only if it truly
is a free choice plan, and if there is any impediment
to the freedom of choice, from whatever source, which
is substantial, then the freedom of choice plan does
not meet the constitutional requirement to abolish
compulsory segregation, based on race. It’s as simple
as that.
* * * * *
* * * I think in order to bring yourself within the
requirement, that segregation based on race, which is
compulsory, that that be abolished, it is necessary if
you are going to go to the freedom of choice route,
to show that it is absolutely free and there is no sub
stantial impediment, and as I also indicated, it doesn’t
make any difference where the impediment comes from.
The School Board, for example, can be conmpletely
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43
honest and diligent in its effort to bring about a true
freedom of choice situation, but if others not within
the School Board’s control prevent that from taking-
place, it’s just as if the School Board had done it, in
the Court’s view and, of course, as to the Constitu
tion. (Transcript, United States v. Haywood County
Board o f Educ., pp. 31, 32)
While we do not agree with the District Court’s assess
ment of the evidence in the Haywood County case, and
have appealed the decision, we believe that the opinion
may fairly be considered an expression of the understand
able reluctance of courts to set aside desegregation plans
before every effort has been expended to make them work.
Judge Butler’s entry of his Interim Order in July, 1966
in the face of the Government’s readiness at that time to
prove widespread intimidation reflected a similar deter
mination to try to save “ freedom of choice” in Franklin
County before condemning it.33 In 1967, however, Judge
Butler faced a situation different in kind from that before
Judge Brown in H aywood County—a year had passed
under court-ordered “ free choice,” the intimidation had
continued, and the projected desegregation for 1967-68 was
even smaller than the negligible degree attained the previ
ous year. In that context, and since “delays in desegre
gating school systems are no longer tolerable.” Bradley
33 In T eel v. P it t C ou n ty B oa rd o f E d u ca tion , 272 F. Snpp. 703, 707
(E.D. X.C. 1967), Judge John D. Larkins, in tentatively upholding Pitt
County’s “ freedom o f ehoiee” plan for another year, warned that:
It may be that, because o f community hostilities and ineffective
operation o f the plan by the School Board another year under free
dom o f choice (as modified) in Pitt County will convince the Court
that some altogether different mode o f pupil assignment must be
thrust upon the Board in order to eliminate the continuing vestiges
o f racial discrimination.
44
v. School B oard , 382 U.S. 103, 105 (1965), it was simply
too late to give Franklin County’s illusory “ freedom of
choice” plan still another chance.
CONCLUSION
For the reasons stated, we respectfully request that the
judgment of the District Court be affirmed.
Respectfully submitted,
John D oae
A ssistan t A tto rn ey General
F rank E. Schwelb
F rancis H. K ennedy
A tto rn ey s ,
Department of Justice
Washington, D.C. 20530
t*v