Rivers v Roadway Express Brief for Petitioners

    BRIEF AND APPENDIX FOR APPELLANTS

In The

UNITED STATES COURT OF APPEALS 

For The Fourth Circuit

No. 9193

Brenda Elaine Brown, et al,
Appellants,

vs.

County School Board o f Frederick County, Virginia, et al,
Appellees.

S . W . T u c k e r  

H e n r y  L. M a r s h , III 
214 East Clay Street 
Richmond, Virginia

O t t o  L. T u c k e r  

901 Princess Street 
Alexandria, Virginia

Attorneys for Appellants

The Press o f Lawyers Printing Com pany, Incorporated, Richmond 7, V irg in ia

JAMES. M.



TA BLE OF CONTENTS
Page

Statement of the Case .......................... ..............................  1

Statement of the Facts ................................. ..................... 2

The Questions Involved............................................ ..........  6

Argument ........................................................................... . 7

I. The District Court, In This Case, Should
Require The School Board T o Effectuate A  Trans­
ition To A  Racially Nondiscriminatory School 
System .............    7

II. The Justice O f This Case Requires An
Award O f Counsel Fees ...................... -.................  8

Conclusion .......................      11

TA B LE  OF CASES

Bell v. School Board o f Powhatan County, 321 F 2d 
494 (1963) ...................    8

Bradley v. School Board of City of Richmond .... F 2d 
(4th Cir., May 10, 1963) ................. .................. 7

Brown v. Board of Education, 347 U.S. 483 (1954).... 9

Brown v. Board o f Education of Topeka, 349 U.S. 294 
(1 9 5 5 ) .................................................     7

Cleveland v. Second Nat. Bank & Tr. Co., 149 F 2d 
466 (6th Cir. 1945) .......................................................  8

Guardian Trust Co. v. Kansas City Southern Ry. Co.,
28 F 2d 233 (8th Cir. 1928) .................................  8

Local 149 International Union U AW , etc., v. American 
Brake Shoe Company, 298 F 2d 212 (1962) ........  9

Re Schwartz, 130 F 2d 229 (7th Cir. 1942) ................  7



Page

Rolax v. Atlantic Coast Line R. Co., 186 F 2d 743 
(4th Cir. 1951) ..........................    9

Schlein v. Smith, 160 F 2d 22 (D . C. 1947) ................  8

Vaughan v. Atkinson, 291 F 2d 813, reversed 369 U.S.
527 (1962) ......................................      8

Watson v. City o f Memphis, 373 U.S. 526 (M ay 23, 
1963) .............................................................   8

O TH ER AU TH O R ITIE S

Code o f Virginia, 1950, as amended, § 22-72 ................. 9

Constitution of Virginia, §34 ........................................   9

Right to Counsel Fees in Federal Court, 8 L  ed 2d 
912 .........   8



In The

UNITED STATES COURT OF APPEALS 

For The Fourth Circuit

No. 9193

Brenda Elaine Brown, et al,
Appellants,

vs.

County School Board o f Frederick County, Virginia, et al,
Appellees.

BRIEF OF APPELLANTS

STA TE M E N T OF T H E  CASE

On September 18, 1962, six Negro infants and their 
father, all residents of Frederick County, Virginia, suing 
for themselves and in behalf o f others similarly situated, 
instituted this action seeking, inter alia, (1 ) the immediate 
admission o f two of the infants to the only high school 
maintained by their county’s school board, (2 ) an injunc­
tion restraining the continued operation of a bi-racial school 
system, and (3 ) costs and attorney’s fees in such amount as 
to the court may appear reasonable and proper. [A. pp. 
1, 2 . ]

A  hearing was held on October 2, 1962 on the plaintiffs’



2

motion for an interlocutory injunction restraining the 
defendants forthwith from refusing to permit Julia and 
Julian Brown to attend the James Wood High School in 
said county. The court’s order entered on the same date 
recites, in part, v iz : “ By consent of all counsel, evidence was 
heard which might affect all phases o f the case, but with 
the understanding that. . .  a further hearing for the taking 
of evidence would be held at a later date if any party re­
quested it. And the court having considered the evidence 
adduced DEN IED plaintiffs’ request for an interlocutory 
injunction.”  [A. p. 17.]

The defendants filed answers, denying most of the allega­
tions of the complaint and requesting the court to dismiss 
the cause from the docket. Following exchange of corre­
spondence between the district judge and counsel for the 
respective parties, the court, on July 22, 1963, and over 
the objection of counsel for plaintiffs [A. pp. 18-19], en­
tered an order striking the cause from the docket [A. pp. 
20-21], Notice of appeal was filed on August 21, 1963 [A.
p. 21.]

STA TE M E N T OF TH E  FACTS

The Frederick County School Board operates fifteen 
elementary schools and one high school. The James E. 
Wood High School and fourteen of the elementary schools 
are the schools which white children attend. The principals, 
teachers and administrative assistants at these schools are 
white persons. The Gibson Elementary School is the only 
school operated by the Frederick County School Board to 
which Negroes are routinely assigned. It is staffed solely 
by Negro personnel. [A. pp. 3-4.]



Each year the principals o f each o f the elementary 
schools pass out pupil placement forms to be filled out and 
signed by the parents of graduating pupils. These forms 
have no space provided for the designation o f a particular 
high school but printed on the form is a request that the 
“ child be placed in the public school system in [Frederick] 
County.” Pursuant to a policy of the Frederick County 
School Board, the superintendent o f schools recommends 
to the Pupil Placement Board that the white children 
graduated from elementary school attend the James Wood 
High School and that the Negro children similarly advanced 
attend Douglas High School— an all-Negro school located 
in the City of Winchester and operated by the School Board 
of the City o f Winchester. Under an agreement with the 
City o f Winchester which has existed since prior to 1949, 
the appellee School Board pays tuition to the City of 
Winchester, and provides transportation, to the end that 
Negro students living in Frederick County may attend 
Douglas High School [A. pp. 5-9.]

There are only 26 Negro pupils attending the Douglas 
High School and approximately 100 Negro elementary 
pupils attending the Gibson School. Approximately 1500 
white pupils attend the James E. W ood School. [A. p. 12] 
The School Board maintains a fleet of about 40 buses. Two 
o f the buses serve all the Negro pupils, traveling the entire 
length of the county except in the two districts in which no 
Negroes reside, carrying high school pupils into the City 
of Winchester and the elementary pupils to the Gibson 
School. The other 38 buses serve the white children. [A. 
pp. 15-16.]

On or about August 9, 1962, Julian E, Brown requested 
that Julia and Julian Brown be transferred to the James 
Wood School and that his four younger children be trans­



4

ferred to the Stonewall Elementary School. [A. p. 10.]
A  few days later, counsel for the plaintiffs wrote a letter 
to the superintendent making the same request. The su­
perintendent responded by requesting that the parents of 
the infants stop by his office to complete the necessary 
(pupil placement) forms. [A. p. 11.] Applications on 
pupil placement forms were made for the two high school 
pupils to attend the James W ood High School and for the 
four elementary pupils to attend Stonewall Elementary 
School for the 1962-63 session. The testimony of the Di­
vision Superintendent shows:

“ They [the applications on pupil placement forms] 
were mailed on September 1st by order o f the Freder­
ick County School Board. A  special session of the 
Board was held on the evening of August 31st and 
I was authorized by the School Board to' have them 
sent to the Pupil Placement Board for consideration. 
They were mailed then the next morning.”  [Tr. p.16.]

The Pupil Placement Board’s response as addressed to the 
father of the infant applicants and read into the record 
follows:

“ The pupil placement board did not consider the 
applications for your child, Julian and Julia to be 
placed in Frederick County schools because of your 
failure to follow established procedure as outlined in 
our memorandum No, 34 which is as follows: The 
Pupil Placement Board will not consider applications 
for original placement in or transfer [to] a particular 
specified school unless such application is filed in writ­
ing stating reasons for preference. These applications



5

must be filed with the local division superintendent of 
schools prior to June 1 immediately preceding the next 
ensuing school session for which such placement or 
transfer are desired. This is of course without preju­
dice to your right to make applications for the school 
year 1963-1964 prior to June 1, 1963 if you so desire.” 
[Tr. p. 14.]

The following excerpts from the testimony of the Su­
perintendent of Schools eloquently reflect the attitude of 
the local school officials:

“ Q. Then I ask you, other than the factor o f race, 
is there anything that requires these Negro children 
to attend school outside the county or is there any 
obstacle preventing their attending school within the 
county ?

“ A. We have been operating a bi-racial school 
system down through the years. It has been the custom.

“ Q. Aside from race, is there any other obstacle?
“ A. I can’t think of any.

“ Q. So that if the school board wanted to eliminate 
this racially [discriminatory] feature of the school 
operation as far as the high school is concerned, it 
could eliminate that at any time couldn’t they ?

“A. That’s possible [A. pp. 13-14.]
* * *

“ Q. One more question. Assuming the school 
board wanted to, is there any obstacle that would 
prevent their desegregating the entire school system 
within a year ?

“ A. I don’t know of any. [A. pp. 14, 15.]
*  *  *



6

“ Q. If the school board wanted to forget about race, 
you could then take these pupil placement forms and 
recommend that children attend the schools near their 
hqmes regardless of where they live or what their 
color is couldn’t you ?

“ A. It could be done.

“ Q. And according to your experience with the 
Pupil Placement Board whatever you recommend, that 
is what they assign— that has been the experience up to 
this time hasn’t it?

“ A. Yes they have— the Board has followed the 
recommendations.” [A. p. 17.]

At an earlier point, the Superintendent had testified, viz:

“ Q. Well, has the School Board attempted to find 
some method of desegregating the schools ?

“ A. W e haven’t looked for any method. W e realize 
that desegration will probably come in the future, but 
to this point we haven’t set up any organized plan to 
do this.

“ Q. You have not taken any steps to initiate it?
“ A. No sir.”  [A. p. 4]

T H E  QUESTIONS IN VO LVED

I.

Should the District Court, in this case, require the school 
board to effectuate a transition to a racially nondiscrimina- 
tory school system?



7

Does the justice o f this case require an award of counsel 
fees?

II.

ARGU M EN T

I.

The District Court, In This Case, Should Require
The School Board To Effectuate A Transition To A 

Racially Nondiseriminatory School System.

The Supreme Court directed that “ the courts will require 
that the defendants make a prompt and reasonable start 
toward full compliance”  with the May 17, 1954 ruling, 
taking into consideration “ the adequacy o f any plans the 
defendants may propose . . .  to effectuate a transition to a 
racially nondiseriminatory school system. During this pe­
riod o f  transition, the courts will retain jurisdiction of these 
cases” . Brown v. Board of Education of Topeka, 349 U.S. 
294 (1955).

In the case of Bradley v. School Board o f the City o f 
Richmond, F.2d , (4th Cir. May 10. 1963) this 
court held: “ not only are the individual infant plaintiffs 
entitled to relief which has been ordered but the plaintiffs 
are entitled, on behalf o f others of the class they represent 
and who are similarly situated, to an injunction against 
the continuation of the discriminatory system and practices 
which have been found to exist” .

“Brown never contemplated that the concept of ‘deliberate 
speed’ would countenance indefinite delay in elimination of 
racial barriers in schools . . .”  Watson v. City of Memphis,



8

373 U.S. 526 (May 23, 1963). In light o f the evidence that 
the entire school system can be desegregated within a year, 
the court’s clear duty was to require no less.

II
The Justice Of This Case Requires An Award Of 

Counsel Fees

An annotation entitled “ Right to Counsel Fees in Fed­
eral Court” appears in 8 L ed 2d beginning at page 912. 
Section 9 o f that annotation deals with fraudulent, ground­
less, oppressive, or vexatious conduct. O f the cases from 
other circuits therein cited, we call attention to Cleveland 
v. Second Nat. Bank & Tr. Co., 149 F 2d 466 ( 6th Cir. 
1945); Schlein v. Smith, 160 F 2d 22 (D.C. 1947); Re 
Schwarts, 130 F 2d 229 (7th Cir. 1942) and the illuminat­
ing discussion o f the subject afforded in Guardian Trust Co. 
v. Kansas City Southern Ry. Co., 28 F 2d 233 (8th Cir. 
1928).

In this jurisdiction the problem has arisen in Rolax v. 
Atlantic Coast Line R. Co., 186 F 2d 743 (4th Cir. 1951); 
Local 149 International Union U AW , etc., v. American 
Brake Shoe Company, 298 F 2d 212 (1962), Vaughan v. 
Atkinson, 291 F 2d 813, reversed 369 U.S. 527 (1962) and, 
with respect to school desegregation, in Bell v. School Board 
■of Powhatan County, 321 F 2d 494 (1963).

“ The principle that the federal courts have inherent 
power to award attorney’s fees as costs in the absence 
o f statutory authority has been recognized where such 
fees were denied, relied on where they were granted. 
The variety of factual circumstances in which this 
principle has been applied indicates that ‘dominating



9

reasons of justice’ has been the guide to its applica­
tion.”  Local 149 International Union U A W ,  etc., v. 
American Brake Shoe Company, supra.

In Bell v. School Board o f Powhatan County, supra, 
“ dominating reasons o f justice” compelled this Court to 
overrule the District Judge’s discretion exercised in denial 
of counsel fees. Since the decision in Brown v. Board of 
Education, 347 U.S. 483 (1954), the instant school authori­
ties have followed “ the long continued pattern o f evasion,” 
including an “unyielding refusal to take any initiative, thus 
casting a heavy burden on the children and their parents.” 
(C f. Bell v. School Board o f Powhatan County, supra.) 
Certainly in this respect the appellee school board (as does 
practically every school board in the state) falls under the 
condemnation of the opinion in Watson v. City o f Memphis, 
supra, and subjects itself to the rationale expressed in 
Rolax v. Atlantic Coast Line R. Co., supra, and quoted 
in Local 149 International Union UAW, etc., v. American 
Brake Shoe Company, supra, here paraphrased, viz: 
Infant plaintiffs o f small means have been subjected to 
discriminatory and oppressive conduct by public school 
officials who, by their oath,1 are required to protect the 
interests of school children and to effectuate their present 
right to freedom from racial discrimination in the public 
school system. “ Dominating reasons of justice” would seem

1 “ I do solemnly swear (or affirm) that I will support the Constitution of 
the United States, and the Constitution of the State of Virginia, and that I 
will faithfully and impartially discharge and perform all the duties incumbent 
on me as . . ., according to the best of my ability, so help me God” . Constitu­
tion of Virginia, §34. See also, Code of Virginia, §22-72, v iz : The school
board shall have the following powers and duties : * * * * (11) Other duties.—



10

to require an award of counsel fees in any such case, if 
the equitable remedy is to be complete.

The instant case contains the further elements which, in 
Bell, impelled this Court to reverse the chancellor’s dis­
allowance of counsel fees. Here, as there, the authorities 
have not only refused to take the initiative toward com­
pliance with the governing constitutional principles, they 
have wilfully interposed “ a variety of administrative ob­
stacles to thwart the valid wishes of the plaintiffs for a 
desegregated education.” This record shows that the simp­
lest administrative procedure would be to forget race and 
assign elementary school children to the schools nearest 
their homes and high school children to James Wood High 
School. Rather than do this, the school board, at additional 
expense, causes two buses to canvass the entire county and 
transport all o f the Negro elementary school children to 
Gibson Elementary School and the Negro- high school 
children to Winchester's Douglas High School for at­
tendance at which tuition is paid by the school board—  
all for the purpose o f  separating these children from all 
others solely because of race, in violation of what since 
1954 has been known to be paramount law. The complaint 
alleges that “ prior to the commencement of the 1961-62 
school session and, again, prior to the commencement of the 
1962-63 school session, application was made to the de­
fendant school board” for the racially nondiscriminatory 
school assignments prayed in this suit. [R. pp. 7, 8— Com­
plaint, par. 12.] The frustration of these efforts, if proved 
to have resulted from action or inaction by those whose 
oath of office would require the opposite course, is such a

T o perform such other duties as shall be prescribed by the State Board or as 
imposed by law."



11

breach o f  public trust that justice cannot be achieved un­
less those responsible be required to pay just and reasonable 
fees to the plaintiffs’ attorneys.

CONCLUSION

Wherefore it is respectfully submitted that the District 
Court should be directed to restore this case to its docket 
and to enter such decrees as will require the defendant 
school board forthwith to cease its operation of a bi-racial 
school system and to allow as part of the costs such reason­
able and proper attorney’s fees as dominating reasons of 
justice may require.

Respectfully submitted,

S. W . T u c k e r  

H e n r y  L. M a r s h , III 
214 East Clay Street 
Richmond, Virginia

O t t o  L. T u c k e r  

901 Princess Street 
Alexandria, Virginia

Attorneys for Appellants



APPENDIX

I N D E X
Page

Complaint ..............................................................................  2

Excerpts from Transcript ................ -..............................  2

Robert E. Aylor

Direct ......................................-.....................................  2

Redirect...........................................................................  H

Order Entered October 2, 1962 ........................................  17

Letter 20 June 1963 ..........................-....................-..........  18

Order Entered June 22, 1963 ...........-........... -................... 20

Notice of Appeal filed August 21, 1963 .......................... 21



Appendix To Brief for Appellants

CO M PLAIN T filed September 18, 1962
* * *

V III

W H EREFORE, plaintiffs respectfully pray:

(A )  That the Court enter a temporary restraining 
order forthwith enjoining the defendants from denying 
Julia Brown and Julian Brown the right to attend James 
Wood High School in Frederick County, Virginia.

(B ) That this Court enter an interlocutory and a per­
manent injunction restraining and enjoining defendants, 
and each of them, their successors in office, and their agents 
and employees, forthwith, from denying infant plaintiffs, 
or either of them, solely on account of race or color, the 
right to be enrolled in, to attend and to be educated in, the 
public schools to which they, respectively, have sought ad­
mission.

(C ) That this Court enter a permanent injunction re­
straining and enjoining defendants, and each of them, their 
successors in office, and their agents and employees from 
any and all action that regulates or affects, on the basis of 
race or color, the initial assignment, the placement, the 
transfer, the admission, the enrollment or the education of 
any child to and in any public school.

(D ) That, specifically, the defendants and each of them, 
their successors in office, and their agents and employees



be permanently enjoined and restrained from denying the 
application of any Negro child for assignment in or transfer 
to any public school attended by white children when such 
denial is based solely upon requirements or criteria which 
do not operate to exclude white children from said school.

(E ) That the defendants be perpetually restrained and 
enjoined from operating a biracial school system or, in the 
alternative, that the defendants be required to submit a plan 
for the reorganization of schools on a unitary nonracial 
basis.

(F ) That the defendants pay to plaintiffs the costs of 
this action and attorney’s fees in such amount as to the 
Court may appear reasonable and proper.

(G ) That plaintiffs have such other and further relief 
as is just.

TR AN SC RIPT filed September 19, 1963 
Charlottesville, Virginia 

October 2 ,1962

(The Court convened at 10:00 a.m.)

RO BERT E. A Y LO R , called as a witness by and on 
behalf o f Plaintiff having been duly sworn, testified as 
follows:

DIRECT E X A M IN A TIO N  

By: Mr. S. W. Tucker

Q. Will you please state your name and official position?



3

A. Robert E, Aylor, Division Superintendent, Frederick 
County Schools.

Q. How long have you been Superintendent of Frederick 
County Schools sir?

A. Since 1949.

Q. Is there any member of the School Board o f Frederick 
County in court at this time?

A. Yes sir.

Q. W ho are they or who is he?
A. Charles E. Bass, Frederick County School Board.

Q. He is the only School Board member present in Court 
now?

A. That’s right.

Q. How many schools are there in the Frederick County 
School system?

A.. Sixteen.

(tr. 2)
Q. Will you state how many of those are high schools 

and how many o f them are elementary schools or junior 
high schools as the case may be ?

A. One high school, James W ood High School and fif­
teen elementary schools.

Q. How many of those schools and designate which ones 
are attended by Negroes?

A. One elementary school.

Q. What is the name o f that school ?
A. Gibson Elementary School.

Q. I assume that the teachers and the administrative 
personnel at the Gibson Elementary School are all Negroes?

A. That’s right.



4

Q. I assume that no white children attend the Gibson 
Elementary School?

A. That’s correct.

Q. I assume that in the other schools and the administra­
tive personnel are all white persons ?

A. Correct.

Q. I assume that no Negroes attend any other schools 
other than the Gibson Elementary School?

A. That’s right.

Q. And that has been so as long as you have been 
Superintendent of Schools o f Frederick County?

A. That’s correct.

(tr. 3)
Q. Does the School Board to your knowledge have in 

mind any plan that will change the racial pattern o f school 
attendance that we have just discussed?

A. You mean do we have any organized plan?

Q. Does the School Board— has the School Board dis­
cussed the requirements under the Brown decision for a 
desegregated school system with an idea of bringing the 
school system into line with what was required in the 
Brown decision ?

A. W e haven’t discussed that particular decision, no sir.

Q. Well, has the School Board attempted to find some 
method o f desegregating the schools ?

A. W e haven’t looked for any method. W e realize that 
desegregation will probably come in the future, but to this 
point we haven’t set up any organized plan to do this.

Q. You have not taken any steps to initiate it?
A. No sir.



5

Q. Now you have read the complaint in this case, I 
assume ?

A. Yes sir.

Q. You are familiar with the names of the plaintiffs 
listed in the caption of the complaint— that is the Brown 
children and their father?

A. Yes sir.

Q. Do you know these people ?
(tr. 4)

A. I don’t know any of the children. I have met the father 
this summer for the first time. I probably have seen him at 
the School meetings because I attend meetings of all schools 
but I didn’t know him personally until this summer.

Q. Can you recall what time of the summer, sir ?
A. First time I met him was along about August 9, 

1962, approximately that date.

Q. He is a resident of Frederick County?
A. That’s right.

Q. And he is a Negro?
A. That’s right.

Q. As a matter of fact some of his children attend the 
Gibson Elementary School?

A. That’s correct.

Q. What is the practice in Frederick County with regard 
to Negro children who have finished Gibson Elementary 
School if they desire to continue their education ?

A. In Frederick County— as I stated a while ago— we do 
not have a— we just have one high school— the James W ood 
High School and we have an agreement with the City of 
Winchester— an agreement of long standing even before 
I became superintendent of schools whereby Negro high



6

school students would attend the Douglas High School. O f 
course we pay tuition for those who attend. And through 
custom and down through the years as the children have 
completed the elementary school in Frederick County— the 
(tr. 5) Gibson Elementary School, the custom has been for 
them to attend the Douglas High School located in the city 
o f Winchester. W e provide the transportation and pay the 
tuition and keep them there as long as they desire or until 
they graduate.

Q. Do you have any supervision over the Douglas High 
School in Winchester?

A. No sir.

Q. Does the School Board of the County of Frederick 
have any control or supervision over the Douglas High 
School in the City of Winchester?

A. No sir.

Q. When a white child living in Frederick County 
graduates from one of the fourteen elementary schools 
which white children of Frederick County attend, what is 
the procedure followed by the Board or by the child or by 
your office with respect to that child’s admission to high 
school?

A. Normally they attend the James W ood High School. 
Those who complete the seventh grade in any of the ele­
mentary schools make application on forms furnished by 
the Pupils Placement Board and they are sent to the Pupils 
Placement Board and then, of course, sent on to James 
Wood High School.

Q. This Pupil Placement Board form that the— that is 
filled out by the child who has completed the elementary 
school and is on his way to the James W ood High School 
does not contain the name of the school for which the child



7

(tr. 6) is applying does it— it does not does it?
A. It does not.

Q. So that what the child actually does or what is actually 
done on the Pupil Placement form is that the child or the 
parent makes a request that the child be placed in school 
is that correct?

A. Yes sir.

Q. The— as to the children who graduate from the 
Gibson Elementary School I assume that they make out a 
similar Pupil Placement form is that correct?

A. Since they are going to the Winchester School system 
that is handled by the Winchester School system.

Q. Where do they get the form ?
A. The forms are provided by the Pupil Placement 

Board.

Q. How does the form get to the child or to his parent ?
A. W e distribute them through the principals of the 

schools.

Q. So that the principal of the Gibson Elementary School 
gives to the graduating child a pupil placement form is 
that correct?

A. Yes sir.

Q. Just as the principal o f each of the other fourteen 
elementary schools in your county gives to the child a pupil 
placement form. The pupil placement form in each case 
is filled out and signed by the parent and returned to the 
principal o f the school from which it came ?
(tr. 7)

A. And then in turn sent to the School Board office.

Q. I am just trying to see what the child’s parent has 
to do. The Pupil Placement Board form is filled out,



8

signed by the parent and returned to the principal o f the 
school from which it came is that correct?

A. That’s the correct procedure.

Q. So that at that stage the principals of each school 
have applications to the Pupil Placement Board asking that 
the child be placed in a school without any designation as 
to the name of the school is that correct ?

A. That’s correct.

Q. So now that it is fair to say that any child who is 
now attending high school and any child who resides in 
the County of Frederick and is now attending high school 
has prepared or someone has prepared for such child a 
Pupil Placement Form at some time or other it that correct?

A. That’s correct.

Q. And that Pupil Placement form was given to the 
principal o f the elementary school in the County of 
Frederick from which the child was graduated?

A. That’s the procedure.

Q. So that the Negro children who reside in Frederick 
County and are now attending the Douglas High School 
in Winchester they or their parents for them did the same 
thing that the white children who— that were done for the 
white children who are now attending the James Wood 
(tr. 8) High School in the County of Frederick?

A. That’s the plan.
Q. Do they fill out a Pupil Placement form and return it 

to the principal of the elementary school ?
A. Yes sir.
Q. Everything after that is done by the school board or 

by the Pupil Placement Board?
A. That’s right.



9

Q. Now who made the first determination that these 
children who are graduating from the Gibson Elementary 
School would get an assignment by the Pupil Placement 
Board— on their Pupil Placement form to the Douglas 
High School in Winchester?

A. That is done through a policy o f the Frederick 
County School Board. I have to sign them and recommend 
to the Pupil Placement Board to go to either the James 
Wood or Douglas.

Q. And in the case o f the children graduating from the 
Gibson Elementary School you recommend that they go to 
Douglas and in the case of all the other children graduating 
from the other fourteen elementary schools the recommen­
dation that they go to James W ood?

A. Yes sir.

Q. And the only reason for the difference in this recom­
mendation is race?

A. Yes sir.

Q. The infant plaintiffs Julia Brown and Julian Brown 
(tr. 9) are attending the Douglas High School in W in­
chester is that correct ?

A. That’s correct.

Q. And they are assigned to and attending the Douglas 
High School in Winchester by virtue of the fact that your 
school board or your office recommended to the Pupil Place­
ment Board that they be there assigned is that correct ?

A. That’s right.

Q. Now is there anything required of a white child who 
lives in Frederick County and has graduated from one of 
these fourteen elementary schools in Frederick County 
that white children attend— is there anything required 
o f that child to attend James W ood High School in



10

Frederick County that has not been done by or on behalf 
of Julia and Julian Brown?

A. I don’t understand the question.

Q. Considering everything and as far as I understand 
the only thing that is required is the filling out of the Pupil 
Placement form, considering everything that a white child 
who has finished elementary school in Frederick County 
and who still lives in Frederick County, considering every­
thing that has been done by or on behalf of that child as a 
prerequisite to his attending James W ood High School-— 
and my question is— is there anything required o f that white 
child or of that white child’s parents that has not already 
been done by Julia and Julian Brown or their parents?
(tr. 10)

A. I don’t know of anything.

Q. Now there have been requests made to you by or on 
behalf o f Julia and Julian Brown that they be permitted to 
attend James Wood High School have there not?

A. Yes he came in and asked that they be transferred 
to the James Wood High School.

Q. As a matter of fact he has appeared before the 
School Board on other occasions— on earlier occasions 
and made such requests has he not?

A. Not to my knowledge.

Q. All right you said he came in— now when did he 
come in to your office ?

A. The first time I saw him was around August 9 or 
thereabouts. I am not sure of the date but I would say' 
around the ninth of August.

Q. And on or about the 9th of August he had conversa­
tion with you?

A. Yes sir.



11

Q. Have you received a letter in regard to this ?
A. I received a letter from Attorney Otto Tucker.

Q. And the purport of that letter was a request that 
these children be permitted to attend'— these two children—  
Julia and Julian be permitted to attend the James Wood 
High School and that the other children who are plaintiffs 
in this case be permitted to attend the Stonewall Elementary 
School is that correct?
(tr. 11) A. That was the request in the letter.

Q. And you replied to that letter that in their application 
you suggested that Mr. Brown drop into your office and 
complete the necesary application form and thereupon you 
said they would be processed upon his completing it ?

A. I have a copy o f the letter back in my brief case. 
Your Honor to save some time I will read it in the record. 
It is dated August 28, 1962, Mr. Otto L. Tucker, Attorney 
and Counselor at Law, 901 Princess Street, Alexandria, 
Virginia. Dear sir: I f you will have your clients drop by 
my office in the Frederick County Court House Building 
and complete the necesary applications forms, it will be 
processed in the required manner. I will be pleased to assist 
any applicant in completing the forms, with best wishes I 
am, sincerely yours, Robert E. Aylor, Division Superinten­
dent.

* *

(tr. 17) By: Mr. S. W. Tucker

REDIRECT E X A M IN A TIO N

Q. You just said the School Board did not deny them 
the request made on behalf of the Browns. I suggest that



12

the School Board has not recommended that that request 
be granted either has it?

A. No it didn’t recommend that it be granted either no.
They merely stated that the forms or the applications 

would have to be treated in the proper manner.

Q. If your Honor please there is one area of the examina­
tion I neglected to' go into on my original examination I 
would like to go into now.

TH E C O U R T : That’s quite all right under the circum­
stances.

Q. Can you tell us approximately how many Negro chil­
dren residing in Frederick County attend the Douglas 
High School in Winchester?

A. Approximately 24 to 30— in that area. I would say 
about 26 approximately.

Q. Can you approximate the number of elementary 
(tr. 18) school children who attend the Gibson Elementary 
School ?

A. Approximately 100.

Q. Can you tell us approximately how many children 
are enrolled in the James W ood High School?

A. Approximately 1500.

Q. Can you tell us what is the rate of capacity for James 
W ood High School?

A. Would you repeat that question.

Q. What is the school building designed to hold— what is 
the capacity o f James W ood High School?

A. Approximately 1100 to- 1200'.

Q. Would the admission of 30 additional high school



13

children— would the addition of another 30 children in 
James Wood High School present an insurmountable 
obstacle ?

A. We would tend to crowd an already crowded situa­
tion.

Q. By 30?
A. Yes sir.

Q. O f 1500?
A. Yes sir.

Q. Assume they are white children as far as overall 
conditions, o f James. Wood High School is concerned you 
could put 30 more high school children in James W ood 
High School and nobody would be too much aware of the 
fact that you made an addition?

A. Well 30 in 1500 why it possibly wouldn’t be a great 
amount but still we are crowded and adding 30 children 
(tr. 19) would crowd it more.

Q. It would show up on the figures but so far as the 
operation o f the school it wouldn’t really affect anybody 
one way or the other to lose 30 children in the 1500?

A. No it wouldn’t affect the overall picture too much.

Q. Then I ask you, other than the factor o f race is 
there anything that requires of these Negro children to 
attend school outside the county or is there any obstacle 
preventing their attending school within their county ?

A. W e have been operating a bi-racial system down 
through the years. It has been the custom.

Q. Aside from race is there any other obstacle?
A. I can’t think of anything.
Q. So that if the school board wanted to it could eliminate 

this racially discriminatory feature of the school operation



14

as far as the high school is concerned— it could eliminate 
that at any time couldn’t they ?

A. That’s possible.

Q. Even tomorrow?
A. I wouldn’t think so tomorrow because the schedule 

is all set up and the school is in operation and has been in 
operation now about a month. It would be rather difficult 
to make the adjustment tomorrow.

Q. Don’t high school children enroll in high school as 
late as even now ?
(tr. 20)

A. They move into the county.
Q. If a white family moved into Frederick County 

tomorrow and had five children or three children who are 
in high school in the county from which they moved they 
could be admitted day after tomorrow in the James Wood 
High School couldn’t they ?

A. That’s right.
Q. One more question. Assuming the school board 

wanted to is there any obstacle that would prevent their 
desegregating the entire school system o f Frederick County 
within a year?

A.

MR. M ASSIE : Your Honor I am going to object to 
that question on the ground that it calls for a conclusion 
and he is not a member of the school board and this is a 
superintendent o f schools of the county but this calls for a 
decision to be made by the school board not by him and is 
speculatory and calls for a conclusion.

MR. TU C K E R : Your Honor please he is a chief 
administrator o f  the school board.



15

T H E  C O U R T : He would be the one to call the atten­
tion of the School Board o f any obstacle that might exist. 
I f he doesn’t know it they wouldn’t know it. I think he can 
answer the question.

MR. M ASSIE : W e make exception to the ruling of 
the Court.

A. I am not sure that possibly all o f the Negro families 
(tr. 21) would want to make the transfer.

TH E  C O U R T : That isn’t answering the question.

MR. M ASSIE : There is one other objection I would 
like to make your Honor. Under the laws o f the State o f 
Virginia that now exist the School Board as well as the 
superintendent who is the administrator must comply with 
the state law and there are certain state regulations which 
provide for the assignment of children such—

T H E  C O U R T : I don’t think the question is directed 
to that at all. The question was whether there was any 
physical or any other reason other than law—  the law is 
what we are concerned with—  whether the law is constitu­
tional or not.

MR. M A S S IE : But what I am getting at is this ques­
tion calls for a— for his interpretation of the law of V ir­
ginia.

T H E  CO U RT: No it doesn’t. Disregard the law al­
together in answering the question, just whether there is 
any reason other than law.

A. I don’t know of any other reason.

Q. Let me ask you this—  does approximately 100 ele­
mentary school children now attending Gibson Elementary



16

School— they are all Negroes— do they live in one part o f the 
county or are they scattered throughout the county?

A. They are scattered somewhat. They are in about 
three— I would say about five areas in the county.

Q. And you had separate school buses to service that 
(tr. 22) school?

A. Yes sir.
O. How many buses?
A. Two.

Q. How many buses are in your entire fleet?
A. Forty.
Q. Do your buses carry the high school children into 

Winchester ?
A. Yes.
Q. They also have to ride the two buses that service 

the Gibson Elementary School?
A. Yes.
Q. These two buses that service the Gibson Elementary 

School between them travels the entire length of the 
County ?

A. No sir there are two districts in Frederick County 
in which no Negroes live.

Q. But in the districts where Negroes live there are 
also white children living there too?

A. That’s right.
Q. So that you have in some districts o f Frederick 

County a bus went on to pick up colored children and an­
other bus went on to pick up white children.

A. That’s right.
Q. Now if the school board wanted to forget about race



17

you could actually eliminate some of the duplication in bus 
(tr. 23) transportation couldn’t you?

A. That’s right.

Q. If the school board wanted to forget about race you 
could then take these pupil placement forms and recommend 
that children attend the schools near their homes regard­
less o f where they live or what their color is couldn’t you?

A. It could be done.

Q. And according to your experience with the pupil 
placement board whatever you recommend that is what 
they assign— that has been the experience up to this time 
hasn’t it?

A. Yes they have— the Board has followed the recom­
mendations.

O RD ER entered October 2, 1962

This case came on this day to be heard upon the motion 
of the plaintiffs for an interlocutory injunction restraining 
the defendants from refusing to permit the plaintiffs Julia 
Brown and Julian Brown to attend the James Wood High 
School in Frederick County, Virginia. By consent o f all 
counsel, evidence was heard which might affect all phases 
o f the case but with the understanding that since it had not 
been contemplated that such a hearing would be held at this 
time, particularly since the case not been matured by the fil­
ing of answers, a further hearing for the taking of evidence 
would be held at a later date if any party requested it. 
And the court having considered the evidence adduced 
D E N I E D  plaintiffs’ request for an interlocutory in­
junction.



18

The deputy clerk of this court will transmit a certified 
copy of this order to Messrs. S. W . Tucker and Henry L. 
Marsh, III, 214 East Clay Street, Richmond 19, Virginia; 
to Mr. Otto L. Tucker, 901 Princess Street, Alexandria, 
Virginia; to Mr. Jos. A. Massie, Jr., Winchester, Virginia; 
and to Mr. A. B. Scott, 1200 Travelers Building, Richmond, 
19, Virginia.

E N T E R :

/ s /  Thomas J. Michie 
United States District Judge.

20 June, 1963

Hon. Thomas J. Michie, Judge 
United States District Court 
For the Western District o f Virginia 
Charlottesville, Virginia

Re: Brenda Elaine Brown, et al vs. County School 
Board of Frederick County, et al— C.A. 642, Harri­
sonburg

Dear Judge Michie:

The draft for order enclosed with your letter o f June 17 
has been endorsed “ Seen and objected to” and forwarded 
to Mr. Scott with a copy of this letter. W e think it 
appropriate to urge that the order striking the case from 
the docket should not be entered but that the Court should 
enter an order similar to that submitted with our letter of 
May 27 or set the cause down for hearing.



19

In Bradley vs. School Board o f the City o f Richmond,
- - - - -  F 2 d ........ (4th Cir., No. 8757, May 10, 1963), the
District Court had ordered that all o f the individual infant 
plaintiffs be transferred to the schools for which they had 
applied. The appeal was based upon a refusal of the Court to 
grant further injunctive relief. The appellate court con­
cluded that “ it is primarily the duty o f the School Board 
to eliminate” the practices which serve the continued 
racially segregated character of the school system and 
H E L D : “ not only are the individual infant plaintiffs en­
titled to relief which has. been ordered but the plaintiffs are 
entitled, on behalf o f others of the class they represent and 
who are similarly situated, to an injunction against the 
continuation of the discriminatory system and practices 
which have been found to exist.”  On remand, the District 
Court enjoined against refusing admission o f any pupil 
to any public school in the City of Richmond on the basis of 
race, from placing pupils in schools upon the basis o f attend­
ance areas previously established for white and Negro 
schools, from assigning pupils upon their promotion from 
one school to another on the basis of race, and from condi­
tioning the grant of a transfer requested by a pupil upon the 
applicant’s submission to futile, burdensome or discrimina­
tory administrative procedures.

In the case o f Watson v. City o f Memphis, ........ U.S.
........, (M ay 23, 1963) the Supreme Court has again spoken
at length regarding what was meant by the 1955 implement­
ing decision in the School Segregation Cases, e. g . : “ Given 
the extended time which has elapsed, it is far from clear 
that the mandate of the second Brown, decision requiring 
that desegregation proceed with ‘all deliberate speed’ would 
today be fully satisfied by types o f plans or programs for 
desegregation of public educational facilities which eight



20

years ago might have been deemed sufficient. Brown never 
contemplated that the concept o f ‘deliberate speed’ would 
countenance indefinite delay in elimination o f racial bar­
riers in schools, let alone other public facilities not involv­
ing the same physical problems or comparable conditions.”

Very truly yours,

of
SW T :ews TU CKER & M ARSH

cc: Clerk, United States District Court at Harrisonburg
A. B. Scott, Esquire
Joseph A. Massie, Jr., Esquire
Otto L. Tucker, Esquire

O RDER entered June 22, 1963

The court having been advised that the state Pupil Place­
ment Board has assigned all of the plaintiffs in this cause 
to the schools to which they desired to go so that the case 
has become moot as to all o f the plaintiffs and it therefore 
appearing to the court that the cause should now be stricken 
from the docket but with provision for its reinstatement in 
the event of any subsequent developments which would 
warrant it, it is hereby

ORDERED

that this case is hereby stricken from the docket but with 
the proviso that it may be reinstated without payment of 
any filing fee in the event that any o f the plaintiffs or any­
one who would have had a right to intervene in this cause 
had it remained on the docket shall file a petition for rein­



21

statement and/or intervention stating a cause which would 
have given such plaintiff or intervenor a right to reopen the 
case or to intervene had the cause remained upon the docket.

The deputy clerk o f  this court will transmit certified 
copies of this order to counsel o f record.

E N TER : June 22, 1963.

Thomas J. Michie 
U.S. District Judge.

N OTICE OF A P P E A L  filed August 21, 1963

Notice is hereby given that Brenda Elaine Brown, Pamela 
Brown, Sandra Brown, Cornell Jerome Brown, Julian 
Brown and Julia Brown, infants, by Julian E. Brown, their 
father and next friend, and Julian E. Brown, plaintiffs, 
hereby appeal to the United States Court of Appeals for 
the Fourth Circuit from the order o f this Court entered on 
July 22, 1963, by which the Court struck this cause from 
the docket, thereby denying the plaintiffs their costs, in­
cluding attorney’s fees, as sought in the prayer of the 
complaint designated as (F ) ,  and thereby also denying 
relief to the class represented by the plaintiffs as sought in 
the prayers o f the complaint designated as (C) ,  (D ) ,  (E) ,  
and G ) .