Brewer v. School Board of the City of Norfolk, Virginia Appellants Appendix
Public Court Documents
December 7, 1963

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Brief Collection, LDF Court Filings. Brewer v. School Board of the City of Norfolk, Virginia Appellants Appendix, 1963. a5d93963-b69a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/de3d66b4-9a38-4ea8-82c3-26919a73c402/brewer-v-school-board-of-the-city-of-norfolk-virginia-appellants-appendix. Accessed April 29, 2025.
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APPELLANTS APPENDIX In The UNITED STATES COURT OF APPEALS For The Fourth Circuit NO, 9898 C A R L O T TA M OZELLE BREW ER, et al, Appellants, v. T H E SCHOOL BOARD OF T H E C ITY OF N ORFOLK, VIRG IN IA , et al, Appellees. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION S, W , T u ck er H e n r y L. M a r s h , III 214 East Clay Street Richmond, Virginia V ictor J. A sh e 1134 Church Street Norfolk 10, Virginia J. H ugo M adison 10 Church Street Norfolk 10, Virginia Ja c k G reenberg Ja m e s M . N a b r it , III 10 Columbus Circle, Suite 2030 New York, New York 10019 Counsel for Appellants Hi# Press o f Lawyers Printing Company, Incorporated, Richmond 7. Virginia TABLE OF CONTENTS FOR APPENDIX Page Docket Entries ............................................. -.......-............. - 2 Motion for Further R elief.... ........................................ — 21 Answer of Defendants to Motion for Further Relief ..... 25 Answer of Defendants to Complaint in Intervention---- 29 Motion for Temporary Restraining Order ....................... 30 Answer to Motion for Temporary Restraining Order ..... 32 Answer to Interrogatories 3 and 7 ................................... 34 Memorandum of the C ourt................................................ 38 Motion of Defendant School Board for Approval of Certain Actions .............................................. ................. 57 Resolution of the School Board ..................................— 59 Order of the District C ourt...... ................................. ....... 62 Notice of Appeal .....................................— .................... 63 Plaintiffs’ Exhibit l - A - 4 .................. ........— ....... ............ 64 Excerpts from Transcript o f Hearing of December 7, 1963 ..................... ........................................... -............. .. 67 In The UNITED STATES COURT OF APPEALS For The Fourth Circuit NO. 9898 CA RLO TTA M OZELLE BREW ER, et al, Appellants, v. TH E SCHOOL BOARD OF TH E C ITY OF NORFOLK, VIRG IN IA, et al, Appellees. APPENDIX IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION 2 Civil Action No. 2214 LEOLA PE A R L BECKETT, etc., et al., Plaintiffs, vs. TH E SCHOOL BOARD OF TH E CITY OF NORFOLK, VIRG IN IA, et al., Defendants. DOCKET ENTRIES [filed July 23, 1963] Date Filings— Proceedings 1959 * * * Mar. 6 Amended procedures relating to the assignment of pupils to public schools of the City of Norfolk filed by the defendants. Apr. 25 Trial Proceedings: Parties and counsel appeared. Came to be heard on remand from Circuit Court o f Appeals. Argued. Court takes under advise ment. Amount Reported in Emolument Returns 3 May 8 Memorandum of the Court filed. May 8 Order approving action of defendants in de nying applications of 134 negro children for transfer to or enrollment in certain public schools in City o f Norfolk, etc. entered. Notice to coun sel by Court. May 18 Order dissolving three-judge statutory court and directing that further proceedings be con ducted by resident judge without regard to the supplemental complaint and motions and answers filed in response thereto entered. Notice to coun sel. (Sobeloff, Haynsworth & Hoffman). Aug. 13 Report of School Board of City of Norfolk regard negro children seeking transfers to or en rollment in predominantly all white or all-white schools for 1959-60 school year filed. Aug. 13 Report of School Board of City of Norfolk regard 8 negro children whose applications to attend Norview Elementary School were denied on grounds of too frequent transfers filed. Aug. 14 Order making Pupil Placement Board and Andrew A. Farley, Beverley H . Randolph, Jr. and Hugh v. White parties defendant directing that plaintiffs file any such motion for further relief, etc. or motions on or before August 19, 4 1959 at 4:45 P.M .; directing that cause be set for hearing on August 27 at 10 A. M. and direct ing that individual members of the Pupil Place ment Board be present in person, etc. and show cause why actions heretofore taken with respect to the applications for enrollment, etc. should not be reviewed or otherwise modified, etc. entered. Notice to counsel. Certified copies to Marshal for service. Aug. 18 Marshal’s return of service of above order showing execution filed. Aug. 19 Motion to intervene filed by Daphne Perimen- ter, an infant, by Dorothy Perimenter, her mother and next friend, etc., et al. Aug. 19 Motion for further relief filed by Daphne Peri menter, etc., et al. Aug. 19 Motion for further relief filed by Glenda Gale Brothers, et al. Aug. 26 Special appearance and motion to abate on behalf of Pupil Placement Board filed by Andrew A. Farley, Beverly H. Randolph, Jr. and Hugh V. White constituting the members of the Pupil Placement Board of the Commonwealth of V ir ginia. 5 Aug. 27 Trial Proceedings: Parties and counsel ap peared. Came on to be heard on show cause order of Aug. 14, 1959. Answers of The School Board of the City of Norfolk et al to (1 ) Motion to in tervene of Daphne Perimenter et al, (2 ) Motion for further relief of Glenda Gale Brothers et al, (3 ) Motion for further relief o f Daphne Peri menter et al, and (4 ) Complaint in intervention, filed in open court as was the Motion of the School Board to dismiss motion for further re lief o f Glenda Gale Brothers. On motion of appli cants for intervention, Complaint in Intervention was filed in open court. Motion to abate heretofore filed by Pupil Placement Board was argued and sustained to the extent that Court will not issue any order this day directing Pupil Placement Board to do or not to do anything. Board granted 20 days from today to reply or file answer. On motion of School Board to dismiss plaintiffs’ mo tion for further relief, Court deferred ruling. Evidence heard in part and continued to tomorrow at ten o ’clock. Aug. 28 Trial Proceedings: Parties and counsel again appeared. Hearing of evidence resumed. Members o f Pupil Placement Board, having testified, were excused from further attendance at Court, to gether with counsel. Plaintiffs’ evidence con cluded. Evidence on behalf o f defendants, School Board et al, heard and concluded. Court advised counsel to prepare suitable able directing admis sion (physically) to school o f Daphne Della Per- 6 imenter, Anita B. Mayer, Reginald Young and Patricia Turner. Argued by counsel for plaintiffs on schools being constructed for Coronado and Rosemont. Court denied petition o f Rose Lee Tatem, Gladys Lynell Tatem, James Alford Tatem, Calvin Edward Winston, Julia Elizabeth Hill, Marion Scott, Wilhelmina Scott, William Henry Neville, Dorothy Elaine Tally and Phyllis Delores Russell. As to Gloria Scott and Bobby J. Neville, Court to enter Order admitting on tem porary basis, pending further order of Court. Gloria Scott to 7th grade at Blair Jr. High and Bobby J. Neville to 7th grade at Norview Jr. High. Sep. 8 Memorandum of the Court filed. Sep. 8 Order filing plaintiffs’ complaint for interven tion as of August 27, 1959; responsive pleadings of The School Board of the City of Norfolk, Vir ginia and J. J. Brewbaker, Div. Supt. filed as to August 27, 1959; and granting Pupil Placement Board and individual members 20 days from Aug. 27, 1959 to file responsive pleadings: directing admission of Patricia Anzella Turner to Norview High School, Reginald A. Young to Maury High School, Daphne Perminter to Suburban Park Ele mentary School, Anita Mayer to Maury High School, Gloria Scott to Blair Junior High School, Bobby J. Neville to Norview Junior High School, Mary Rose Foxworth to Suburban Park Elemen tary School, etc.; and denying right to attend cer tain public schools for school year commencing 7 Sep. 8, 1959 to Gwendolyn Diane Smith. Kath ryn LaVerne Webb, Phyllis Delores Russell, Gwendolyn Yvonne McCoy, Dorothy Elaine Tally, Calvin Edward Winston, Rita Hayworth Osborne, Wanda Lolita Osborne, James Alford Tatem, Gladys Lynall Tatem, Rosa Lee Tatem, William Henry Neville, Betty Bonds, W'ilhelmina Scott, Marian Scott, Julia Elizabeth Hill, Bar bara Ann Cooper, Charlene L. Butts, Minnie Alice Green, Melvin G. Green, Jr., Clorate Harris, Rosa Mae Harris, Glenda Gale Brothers, Sharon Venita Smith and Edward H. Smith, III entered. Notice to counsel by Court. Sep. 16 Answer of the Pupil Placement Board filed. Oct. 7 Notice of appeal filed by Julia Elizabeth Hill 5 :0G by her mother, William Henry Neville, by father, Marian Scott and Wilhelmina Scott, by mother, Dorothy Elaine Tally, by father, Rosa Lee Tatem, Gladys Lynell Tatem, and James Alford Tatem, by mother, Calvin Edmund Winston, by mother, Phyllis Delores Russell, by mother, Charlene L. Butts, by mother, Minnie Alice Green and Melvin G. Green, Jr., mother, Cloraten Harris and Rosa Mae Harris, mother, Glenda Gale Brothers, by grandmother, Sharon Venita Smith and Edward H. Smith, III, by father, etc. , Oct. 7 Appeal bond in the sum of $250, with cash surety, filed. 8 Oct. 7 Copies o f above notice o f appeal to Leigh D. Williams, Leonard H. Davis, W . R. C. Cocke, Albertis S. Harrison, Jr., and A. B. Scott. Oct. 21 Testimony o f Placement Board (transcript) received from Court Reporter. Oct. 22 Trial Proceedings: Parties and counsel ap peared.Came on to be heard on answer filed by Pupil Placement Board and on its denial o f ad mission to particular children. Evidence heard. Submitted without argument. Counsel to present Findings o f Fact and Conclusions of Law setting forth that application of Pupil Placement Board’s administration of Act to be unconstitutional. Oct. 23 Order directing that Pupil Placement Board do forthwith reconsider prior action taken with re spect to the enrollment of certain Negro children and to report their actions within 10 days, en tered. Copies to counsel by Court. Oct. 27 Order directing that certain bulletins of the Pupil Placement Board be marked as exhibits in this cause. Copies to counsel by Court. Oct. 27 Pupil Placement Board’s bulletins marked as Court’s Exhibits Nos. 16 through 41 by Clerk. 9 Nov. 2 First report o f Pupil Placement Board filed. Nov. 4 Order extending time for filing record on appeal with U.S. Court of Appeals for 4th Circuit and for docketing appeal, filed on Oct. 7, 1959, to Jan. 2, 1960; extending time for appellants to serve and file their designation of record to Dec. 1, 1959; and extending time for appellees may serve and file designation of record to Dec. 14, 1959, entered. Notice to counsel. Dec. 1 Statement of points filed by plaintiffs. Dec. 1 Designation of contents of record on appeal filed by plaintiffs. Dec. 1 Certificate of service filed by plaintiffs. Dec. 10 Designation by defendants of additional por tions of record, etc. filed. Dec. 9 Findings of fact and conclusions o f law filed by Court nunc pro tunc as of October 22, 1959. Copies to counsel by Court. Dec. 9 Order finding that no legal ground or reason ing has been shown for Pupil Placement Board’s action in denying appls. of Patricia Anzella Tur ner, Reginald A. Young, Daphne Perminter and 10 Anita Mayer for admission to Norf. public schools, as recommended by School Board of the City of Norfolk; directing that neither School Board nor its Div. Supt. shall be legally required to engage in any procedure involving the Pupil Placement Board, or justified in carrying out any action the Pupil Placement Board may take with respect to appls. o f Negro children, etc. until fur ther order of this Court; and directing that time for noting an appeal from this order shall not begin to run until the actual date of entry, entered nunc pro tunc as of October 22, 1959. Copies to counsel by Court. Dec. 9 Order modifying Order o f this Court of Sept. 8, 1959, directing that the School Board shall make study, etc. and at such time as proper shall enroll such of the 3 children, namely Gloria Scott, Bobby J. Neville and Mary Rose Forworth, if any, as may be qualified to attend schools to which they have been admitted on temp, basis pursuant to order of Sept. 8 in which event no further report need be made by School Board; and if any of children be deemed not qualified, School Board shall file re port with Court, etc., entered. Copies to counsel by Court. Dec. 16 Order directing a map of the City of Norfolk showing the school districts for all elementary schools be marked as Court Exhibit No. 42 en tered. Notice to counsel by Court. Exhibit so marked by Clerk. 11 Dec. 30 Order received and filed from U.S. Court of Appeals enlarging time for transmitting record, including tran script and exhibits, and docketing the appeals for a period of 30 days from January 2, 1960, entered. Copies to counsel by U.S. Court of Appeals. 1960 Jan. 6 Notice of appeal filed by Pupil Placement Board. 5.00 Jan. 8 Copy and notice to opposing counsel of filing o f notice o f appeal. Jan. 12 Transcript of trial proceedings 8/27/59, Vol. 1 received from Court Reporter. Jan. 14 Appeal bond, in the sum of $250, executed with corporate surety, filed. Jan. 15 Records on appeal forwarded U. S. Court o f Appeals. 14.55 Jan. 18 Transcript of trial proceedings 8/28/59, Vol. II, received from Court Reporter. Jan. 22 Transcript of trial proceedings 10/22/59, Vol. Ill, received from Court Reporter. May 26 Report of the School Board of the City of Norfolk 12 as to Gloria Scott and motion to defer its decision in regard to Boby J. Neville filed. May 26 Motion o f The School Board of the City of Norfolk for approval of elimination of interviews by personnel o f City School Systems, etc. filed. June 29 Supplementary report o f The School Board of the City of Norfolk with regard to Bobby J. Neville filed. July 14 Notice of motion for entry of order filed by de fendants. July 14 Order permitting elimination of interviews from procedures governing handling of applications for transfers to and initial enrollments in public schools o f City of Norfolk, etc.; directing School Board to file with Court its resolution amending its procedures, etc. entered. Notice to- counsel, 7/18/60. July 15 Certified copy of resolution amending procedures filed by defendants. Aug. 1 Mandate and opinion of U. S. Court of Appeals, affirming judgment of this Court, received and filed. Aug. 16 Motion to intervene filed by Calvin E. Winston, an infant, by Harry Winston, his father and next friend, Rosa Lee Tatem, James A. Tatem and Gladys L. Tatem, infants, by Leonard L. Tatem, their father 13 and next friend, Deborah Pryor and Laureen Pryer, infants, by Laura Pryor, their mother and next friend, Dorothy V. Deans, an infant, by Robenia Deans, her mother and next friend, Helen D. Brown, an infant, by Nannie R. Brown, her mother and next friend, Juanita Brown, an infant, by Colleen Brown, her mother and next friend, Melvin G. Green, an infant, by Alice Green, his mother and next friend, Cloretena Harris, an infant, by Fannie Harris, her mother and next friend, Phyllis T. Harris, an infant, by Annie L. Harris, her mother and next friend, Orbina King, Helen G. King and Mae B. King, infants, by Mary B. Britt, their guardian and next friend, etc. Aug. 22 Order permitting Calvin E. Winston, an infant, etc., et al to intervene in this cause and to file their com plaint in intervention and motion for further relief, and filing said complaint and motion, etc., giving de fendants to August 26, 1960 at 4:00 P.M. to file ob jections or answer; directing that all motions to in tervene in this cause, which may affect Sept. 1960 school year, be filed on or before Aug. 26, 1960 at 12:00 Noon; and setting for hearing on objections and merits, entered. Notice to counsel by Judge and Clerk’s office. Aug. 22 Complaint in intervention filed by Calvin E. Wins ton, an infant, etc., et al. Aug. 22 Motion for further relief filed by Calvin E. Winston, an infant, etc., et al. 14 Aug. 26 Answer to motion for further relief filed by The School Board of the City o f Norfolk, Virginia and E. L. Lamberth, Superintendent. Aug. 26 Motion to dismiss and answer o f the defendants to complaint in intervention of Calvin E. Winston et al filed by The School Board of the City of Norfolk, V ir ginia, and E. L. Lamberth, Superintendent. Aug. 26 Motion to quash or modify the subpoena for the production of documents served on Madge Winslow filed by The School Board of the City of Norfolk, Virginia, et al, defendants, and Madge Winslow. Aug. 29 Trial Proceedings: Came on to be heard on motion of defendants to quash motion to produce certain school record. Counsel appeared. Argued. Counsel for plaintiffs may examine records of all children in certain schools at various schools. Subpoena so modified. Aug. 30 Transcript of trial proceedings of August 29, 1960 received from court reporter. Aug. 31 Trial Proceedings: Came on for hearing on petition of certain persons for admission to certain schools. Counsel appeared. Evidence of plaintiff heard and concluded. Defendants offered no objections to ruling of Court admitting 5 children and motion to dismiss as to remaining intervening petitioners. Motion to dis miss as to remaining intervening petitioner granted. IS Counsel to prepare findings of fact and conclusions o f law. Oct. 12 Mandate and opinion, affirming the Court’s order of Sept. 8, 1959, received from U. S. Court o f Appeals and filed. Oct. 12 Record on appeal received from U. S. Court o f Appeals. Oct. 28 Transcript of August 31, 1960, received from Court Reporter. Nov. 4 Order substituting E. L. Lamberth as Division Superintendent of Schools of City of Norfolk in place of J. J. Brewbaker nunc pro tunc as August 31, 1960. Entered November 3, 1960. Notice to counsel. Nov. 25 Findings of fact and conclusions of law filed. Nov. 28 Order directing that defendants have failed to prop erly apply the standards, etc. approved by previous order o f this Court in respect to Dorothy V. Deans, Helen D. Brown, Juanita Brown, Orbina King and Helen G. King and are required not to refuse to admit, etc. for school year 1960-61; and dismissing complaint in intervention and motion for further relief o f Calvin E. Winston. Rosa Lee Tatem, James A. Tatem, Gladys L. Tatem, Deborah Pryor, Laureen Pryor, Keith Turner, Melvin G. Green. Cloretene Harris, Phyllis 16 T. Harris and Mae B. King entered November 25, 1960. Notice to counsel. 1961 Aug. 3 Order fixing Monday, August 14, 1961 at 4:40 P.M., as the last day and time within which motions to intervene for further relief may be filed by any of the applicants for admission to the schools o f the City of Norfolk for the school year beginning September, 1961, etc. entered. Certified copies of order mailed as directed i.e.— Victor J. Ashe, J. Hugo Madison, W. R. C. Cocke, Leonard H. Davis and E. L. Lam- berth, Supt. of Schools of City of Norfolk. Aug. 11 Stipulation o f parties for depositions filed. Aug. 11 Motion of Steven E. Merriman, et al to intervene filed. Aug. 11 Motion of Steven E. Merriman, et al to intervene filed. Aug. 21 Motion to dismiss and answer of defendants to mo tion for further relief filed. Aug. 21 Motion to dismiss and answer of the defendants to Complaint in intervention o f Steven E. Merriman, et als, filed. Aug. 21 M otion. of the defendants to deny the motion of 17 Steven E. Merriman, etc., et als, to Intervene, as to certain of applicants for intervention; and answer of the defendants to the motion of Steven E. Merriman, etc., et al, to intervene, filed. Aug. 21 Trial Proceedings: Came on to be heard on petition of certain persons for admission into certain Norfolk schools. Petitioners represented by Messrs. Victor J. Ashe, J. Hugo Madison and James Overton. Re spondents represented by Mr. Leonard H. Davis, City Attorney for the City o f Norfolk, and Mr. W . R. C. Cocke. On motion o f counsel, list of intervenors re duced from 50 children to 35 children (names read into record). Counsel stipulate that all testimony, ex hibits, etc., so far as may be relevant, may be con sidered a part o f proceedings this year. Testimony o f plaintiff heard. Plaintiffs rested. Respondent rested. Set for argument on Wednesday, August 23, 1961, at 11:30 A.M. Aug. 23 Trial Proceedings: Parties and counsel again ap peared pursuant to adjournment of August 21st, 1961. Argued by counsel. School Board to reconsider ap plications of Steven Edward Merriman and Sylvia Rose Johnson. Aug. 24 Letter to Court, dated August 24, 1961, with cer tified copy of resolution setting forth the action of School Board, recommending that applications of Steven Edward Merriman and Sylvia Rose Johnson be granted, filed. 18 1962 Jan. 24 Transcript o f trial proceedings of August 21, 1961 received from Court Reporter. Jan. 26 Transcript o f argument of counsel on Aug. 23, 1961 received from Court Reporter, (orig. and 1) 1963 July 11 Motion of Carlotta Mozelle Brewer, et al to inter vene filed. July 23 Trial Proceedings: Parties appeared with counsel. Order permitting intervention entered. Judge Hoffman advised counsel that his wife is Librarian at Taylor School and now with petition to mix teachers the parties should discuss if they desire to have Judge Hoffman withdraw or continue to hear case or to file a separate case covering teachers mixing. Counsel for petitioners state they think Judge Hoffman should continue. Mr. Davis expressed opinion that question as to teacher mixing should be a separate matter. Com plaint in intervention filed in open Court. Motion for further relief filed in open Court. Counsel for de fendants will have until................................. to answer. Trial date set Nov. 29, 1963. Aug. 8 Answer of defendants to motion for further relief filed. Aug. 8 Answer of defendants to complaint in intervention o f Carlotta Mozelle Brewer, et al filed. 19 Oct. 3 Interrogatories o f plaintiffs filed. Oct. 7 Motion of plaintiffs Greta Denise Miller, et al for temporary restraining order filed. Oct. 7 Motion to intervene filed by Greta Denise Miller, et al. Oct. 10 Trial Proceedings: Parties appeared with counsel, Came on to be heard on motion for temporary restrain ing order. Motion to extend time to answer inter rogatories filed by defendants. Granted— Nov. 1 for answer. Oct. 10 Trial Proceedings: Oct 25 for filing o f objections to interrogatories served Oct. 3, 1963. Motion to in tervene granted. On temporary restraining order— Affidavits (5 ) filed. Motion for temporary injunction to be treated as complaint. Answer to temporary in junction to be treated as answer to complaint. Con tinued generally. Oct. 10 Motion for extention of time within which to answer or objection to interrogatories, answer to motion for temporary restraining order, and answer to complaint in intervention filed in open Court. Oct. 30 Transcript o f trial proceedings of Oct. 10, 1963, received from Court Reporter. 20 Nov. 1 Answers of defendant to interrogatories filed. (The School Board) Nov. 1 Answer of defendant to interrogatories filed. Dec. 7 Trial Proceedings: Parties and counsel appeared. Evidence of plaintiff heard and concluded. Defendant rested without evidence. Discussion about Pruden children not being in school, responsibility placed on attorneys for plaintiffs to get children in school. Briefs by plaintiffs to be furnished 10 days after transcript received. Defendant to have 30 days after plaintiff brief. Plaintiff afforded opportunity to reply in 10 days. Oral argument waived. 1964 Apr. 30 Transcript o f Dec. 7, 1963. hearing received from Court Reporter. June 18 Report o f School Board of City of Norfolk and E. L. Lamberth, Div. Supt. regard to 1964-65 school year filed. July 30 Memorandum filed by Court. Sept. 4 Motion of defendant, The School Board of City of Norfolk, for approval of its action in granting change o f choices of schools for 1964-65 school year filed. 21 Oct. 22 Order directing that plan of the defendant School Board for attendance of children in public schools of the City of Norfolk and application o f this plan are constitutional and approved; plaintiffs’ motion for further relief denied; injunctive order entered by this Court on Feb. 26, 1957 to remain in effect, but plain tiffs’ motion for an enlargement thereof denied; and plaintiffs’ motion for a temporary injunction as to certain intervenors denied, entered Oct. 22, 1964, Notice to counsel by Court. Nov. 20 Notice of Carlotta Mozelle Brewer and Demetria Yvonne Brewer, infants, by Oner Brewer, their father and next friend, o f appeal filed. Copies served on opposing counsel by Appellants’ counsel. Notice to counsel of filing of notice by Clerk. Nov. 24 Appeal bond, in sum of $250, with cash as surety, executed and filed at Richmond, received. Dec. 23 Order extending time for filing record on appeal and docketing appeal entered. Notice to counsel. MOTION FOR FURTHER RELIEF [filed July 23, 1963] Plaintiffs respectfully submit that the court should hold a hearing to examine various matters relating to the de segregation of the public schools o f the City of Norfolk 22 as alleged hereinafter, and that upon consideration thereof, the court should grant them further injunctive or other relief as prayed in this motion. As grounds therefor, plain tiffs submit that: 1. This court has, by prior orders entered in this case, retained jurisdiction o f the cause for such further pro ceedings as may be necessary and appropriate. 2. The defendants, the School Board of the City of Norfolk and the Division Superintendent of Schools for the City of Norfolk, have not completely effectuated a change of the public school system under their control from a racially segregated system to a racially nondiscriminatory school system. Although desegregation o f the Norfolk city schools began in 1959, only a small number of Negro pupils have received the benefit of a desegregated education under the practices being pursued by the defendants. The various practices and policies of the defendants described in par agraph 3 below contribute to the preservation of the racially segregated school system established by law, impede the desegregation of the school system, and are inconsistent with defendants’ duty to devote every effort toward in itiating desegregation and bringing about the elimination o f racial discrimination in the public school system. These practices thus violate plaintiffs’ rights under the Fourteenth Amendment to the Constitution of the United States. 3. Plaintiffs complain of the following practices and policies of the defendants : 23 a. The defendants have failed to establish a truly non- racial method of routinely initially placing pupils in schools, but rather, the placement of pupils entering the system and of pupils being promoted from elementary to junior high schools and from junior high schools to senior high schools is determined upon the basis of racial considerations and operates to preserve the segregated system. b. The defendants still use and maintain a dual system of overlapping attendance areas for Negroes and whites in determining the assignment of pupils to schools. c. The defendants use and maintain procedures and policies by which Negro pupils seeking to transfer to attend nonsegregated schools are subject to evaluations, criteria and conditions which are not employed in the routine place ment of Negroes in all-Negro schools or the routine place ment o f whites in all white or predominantly-white schools. d. The defendants have established or altered school at tendance areas on the basis o f racial considerations with the result that the pattern of racial segregation o f pupils has been substantially perpetuated. e. The defendants continue the policy of assigning prin cipals, teachers, and other professional personnel to schools on the basis of racial considerations, with only Negro pro fessional personnel being assigned to the all-Negro schools in the system, and only white professional personnel being- assigned to the all-white and predominantly-white schools in the system. 24 f. The defendants have not adopted or advised the plain tiffs or the Court o f any specific timetable proposed for the elimination o f the racially discriminatory practices followed in the Norfolk City school system. 4. Plaintiffs, through their attorney, filed a petition with the defendants on or about April 23, 1963, complaining of the failure of the defendants to change their school assign ment practices. A copy of this petition is attached hereto as Exhibit A. The defendants responded on or about June 13th, 1963, by a written statement which indicated that the Board would adhere to the practices complained of and denied some of the other practices. A copy of the defend ants’ statement is attached hereto as Exhibit B. W H EREFORE, plaintiffs pray that the court enter an order enjoining the defendants from continuing the various practices complained of above and requiring that the de fendants file with the court a plan for the immediate and complete elimination of racial discrimination in the public school system of the City of Norfolk which will afford all children in attendance the opportunity to recieve an educa tion on a nonracial and nonsegregated basis and be assigned by the school board of the City of Norfolk, Virginia to the school nearest the home of each child in said City not withstanding the race of said child. It is further prayed that the defendants should be required to submit periodic reports to the Court containing factual and statistical in formation as to the actual progress of desegregation under any plan approved by the Court. Plaintiffs pray for such 25 further and additional relief as the court may deem just and equitable, including the allowance of a proper fee for plaintiffs’ counsel as a part of the costs. Respectfully submitted, V ictor J. A sh e 1134 Church Street Norfolk 10, Virginia J. H ugo M adison 1017 Church Street Norfolk 10, Virginia Ja c k G reenberg Jam es M. N a b r it , III 10 Columbus Circle New York 19, New York Attorneys for Plaintiffs ANSWER OF DEFENDANTS TO MOTION FOR FURTHER RELIEF [filed August 8, 1963] The defendants, The School Board o f the City of Nor folk and E. L. Lamberth, Division Superintendent of Schools o f the said City, for answer to the motion for further relief say: 1. They admit the allegations of paragraph 1. 2. The defendants deny the averments of the first sen tence of paragraph 2 that they have not effectuated a 26 change of the public school system under their control from a racially segregated system to a racially non-discriminatory system. As to the averments o f the second sentence of par agraph 2. the defendants admit that so far a limited number of Negro pupils have been admitted to the previously all- white schools o f the Norfolk School system but in that respect aver that, except for the school year of 1962-63 when no objections were interposed before this Court to the numbers that were admitted to previously all-white schools by the School Board and those whose applications for transfers were refused, all admissions and refusals for previous years since the beginning o f this action have been under the supervision of this Court and all practices of the defendants relative to the admission of Negro pupils to previously all-white schools have been accepted by the Court. Defendants deny the averments o f fact and con clusions of law set forth in the remainder of paragraph 2. 3. a. Answering subparagraph a. of paragraph 3, the defendants deny the averments thereof. b. Answering the averments of subparagraph b. of par agraph 3, the defendants admit that there have been in certain areas of the Norfolk school system dual attendance areas, but aver that for the coming school year of 1963-64 no dual system of attendance areas will control or be prac ticed in determining the assignment of pupils who apply for initial enrollments in, or transfers to, schools attended wholly or predominantly by children o f the opposite race. c. Defendants deny the averments of subparagraph c. o f paragraph 3. 27 d. Defendants deny the averments o f subparagraph d. of paragraph 3. e. Defendants admit the averments of fact set forth in subparagraph e. o f paragraph 3 but deny that the assign ments o f teachers and other personnel are in any respect violative of the Fourteenth Amendment to the Constitution of the United States or o f any other law, or of the rights of any party to this action, and deny also that the plaintiffs in this action have any standing, legal or constitutional, to raise any such issue in this proceeding. Furthermore, the subject matter to this paragraph is not germane to the subject matter of this action but is wholly irrelevant thereto. f. Answering subparagraph f. of paragraph 3, defend ants admit that they have not adopted or advised the plain tiffs or the Court of any specific time-table in respect of the further desegregation of the public schools o f the Nor folk school system but deny that the defendants pursue any racially discriminatory practices. The defendants aver that they have not been ordered or directed by the Court and are not under any legal or constitutional duty to propose or follow any specific time-table in respect to further de segregation of the schools of the city. Defendants further aver that in respect o f desegregation of the Norfolk school system, involving many difficult and complex elements in the necessary period of transition, defendants have pro ceeded with such convenient speed as the problem has allowed, consistent with the maintaining of a sound and efficient public school system and protection of the best interests of the pupils, regardless o f race or color, in respect o f their education and welfare. 28 4. Answering paragraph 4, defendants admit that the petition and response thereto which are mentioned in said paragraph were filed and made but the defendants deny all o f the remaining averments of said paragraph and deny that said petition and response thereto are relevant to this action. 5. Further answering the petition as a whole, the de fendants aver that all of their legal and constitutional obli gations in the premises will be complied with by the appli cation o f the following principles in determining the schools and grades which children will attend: a. If only one school serves an area, all children living in the area will attend such school. b. If two schools serve an area, all children living in the area may choose, subject to the approval o f their parents or guardians and subject to the maximum capacities o f the schools, the school which they wish to attend. The choice for the ensuing school year must be made not later than May 31st o f the current school year, provided, however, that as to any child who moves into the City of Norfolk or from one area of the City to another and any child who enters the public school system of the City from a private or parochial school in the City subsequent to May 31st, the choice must be made promptly after such move or entry is made. c. The program of special tests will be eliminated and the grade levels at which the children are expected to achieve satisfactorily will be determined by the School Adminis tration, guided by the cumulative records, routine tests and performances of the children. 29 In considering the applications of children for initial enrollments in and transfers to schools attended wholly or predominantly by children of the opposite race for the school year 1963-64, the defendants applied these principles, and it is the intention of the defendants to continue to apply them unless they are disapproved by the Court. W H EREFO RE, having fully answered the Motion for Further Relief, defendants pray that the same be dismissed. T h e S chool B oard of t h e C it y of N orfolk an d E. L. Lam b e r t h , D i v i s i o n S u p e r i n t e n d e n t of t h e S chools of said C it y ANSWER OF DEFENDANTS TO THE COMPLAINT IN INTERVENTION OF CARLOTTA MOZELLE BREWER, ET ALS [filed August 8, 1963] * * * 3. * * * [T]he pertinent language of the injunctive order of February 26, 1957, provides as follows: “ 1. That the defendants, and each of them, their suc cessors in office, agents, representatives, servants, and employees, be, and they are, hereby restrained and en joined from refusing, solely on account of race or color, to admit to, or enroll or educate in, any school under their operation, control, direction or supervision, di rectly or indirectly, any child otherwise qualified for admission to, and enrollment and education in, such school. ** * 30 MOTION FOR TEMPORARY RESTRAINING ORDER [filed October 7, 1963] Plaintiffs move the Court to enter a temporary restrain ing order restraining the defendants, their agents and em ployees and assigns from refusing to permit the above named applicants to be enrolled in and to attend the schools applied for during the 1963-64 school session which com menced on September 5, 1963, as shown by the Resolution o f the School Board of the City of Norfolk, Virginia, attached hereto, and in support o f their said motion, plain tiffs say: 1. That the said plaintiffs are Negro infants and res idents of the City of Norfolk, Virginia and eligible to attend the aforesaid schools in the City of Norfolk, V ir ginia. 2. That prior to September 5, 1963, the first day of school, the said infants presented themselves for enrollment at the aforesaid schools and were refused enrollment for the 1963-64 school year. They were not permitted to enroll in said schools and assigned to other schools out of their district. 3. That the said plaintiffs were notified by the School Board of the City of Norfolk, Virginia, they were denied assignment to attend the schools requested because their applications were not received before the May 31st deadline. 4. That all of the said infants reside in the same area of the City of Norfolk in which the schools they applied to attend are located, but have been assigned to schools great 31 distances from their homes and subject to the hazards o f traffic and undue inconveniences to reach the school they are now assigned. 5. That the May 31st cut off date of the Norfolk School Board is discriminatory in that it is applied only to children o f the Negro race. White students merely go, at anytime before school starts, to the school in their new neighborhood and register. Students of the Negro race are required to go to the School Board Office before May 31 and apply for transfers. 6 . That information directed to the May 31st cut off date is not disseminated to the parents o f students or stu dents and is being used to deny plaintiffs their constitutional rights. 7. That the said infants are enrolled in the school as signed by the School Board, with the exception o f Bernard T. Pruden and Edward Kevin Pruden, who are out of school, and by agreement with counsel for the School Board the above facts do not prejudice the right o f the said in fants to attend the schools applied for in their applications. W H EREFO RE, plaintiffs pray that the Court will enter a temporary restraining order restraining the defendants and each of them, their successors in office and their agents and employees forthwith from denying the aforenamed infant plaintiffs the right to be enrolled in, to attend and to be educated in the 1963-64 school session of the afore named schools and to declare the May 31st cut off date unconstitutional and invalid, and that after a hearing to be held within ten ( 10) days of the date o f the entry of the 32 order, the Court will enlarge this order into an interlocutory injunction granting the relief prayed herein and such other relief as to the Court appears necessary and proper. / s / V ictor J. A sh e ANSWER TO MOTION FOR TEMPORARY RESTRAINING ORDER [filed October 10, 1963] The defendants, The School Board o f the City o f Nor folk and E. L. Lamberth, Division Superintendent o f the schools o f the said city, for answer to the Motion of Greta Denise Miller, et als, Applicants for Intervention, for a Temporary Restraining Order, say: 1. Answering paragraph 1, the defendants say that the said applicants for intervention are residents of the City of Norfolk but deny that they are eligible to attend the school in the City of Norfolk, Virginia for which they applied. 2. Answering paragraph 2, the defendants admit that the infant applicants for intervention were not permitted to enroll in the schools for which they appleid, but the defendants deny that they were assigned to schools which do not serve the areas in which they live, and the defendants are without knowledge or information sufficient to form a belief as to whether, as averred, all of the infant appli cants presented themselves for enrollment at the schools for which they applied. 3. Answering paragraph 3, the defendants admit the averments thereof. 33 4. Answering paragraph 4, the defendants admit that the infant applicants for intervention reside in areas served by the schools for which they applied, but the de fendants deny that they have been assigned to other schools at great distance from their homes and that they are any more subject to the hazards of traffic or inconvenience than other children in the school system of the said city. 5. Answering paragraph 5, defendants deny the aver ment that the May 31st cut-off date is in any way discrim inatory or that it is applied only to children of the Negro race. They also deny the other averments of said para graph. 6 . Answering paragraph 6, defendants deny the aver ments thereof, and say further that, while individual no tices of the May 31st cut-off date have not been sent to each parent and student, such cut-off date has been for several years a matter of general information in Norfolk, o f which the plaintiffs in this action had notice, and known by or available to all other interested persons, and that such cut-off date has been reported in the press. 7. Answering paragraph 7, the defendants admit the same, except that they deny that said infant plaintiffs have the right to attend the schools they applied for. Now further answering said motion, defendants aver that the applicants for intervention have not averred bv their pleadings or otherwise irreparable injury or damage or any other reason or cause sufficient for the granting of the temporary restraining order applied for or for any other form of injunctive relief. Moreover, the plaintiffs 34 seek a mandatory rather than a prohibitory restraining order to change the status quo, which is not the proper function of a temporary restraining order. The defendants, therefore, pray that the motion for a temporary restrain ing order be denied and dismissed. T h e S chool B oard of t h e C it y of N orfolk and E. L. L a m b e r t h , D iv is io n S u p e r in ten d en t of t h e S chools of Sa id C it y ANSWERS TO INTERROGATORIES [filed November 1, 1963] 5ft jfi IN TER RO G A TO RY 3 School White Pupils in Attendance Area Negro Pupils in Attendance Area Granby High 2751 150 Maury High 2488 1907 Norview High 2422 400 Washington High 7661 2457 Azalea Jr. High 1413 3 Blair Jr. High 1255 1807 Campostella Jr. High 10 1000 Jacox Jr. High 150 1574 Madison Jr. High 100 480 Northside Jr. High 1480 150 Norview Jr. High 1589 . 480 Rosemont Jr. High 1589 435 35 Ruffner Jr. High Willard Jr. High Ballentine Elem. Bay View Elem. Bowling Park Elem. Calcott Elem. Campostella Elem. Carey Elem. Chesterfield Elem. Clay Elem. Coleman Place Elem. Coronado Elem. Crossroads Elem. Diggs Park Elem. Douglas Park Elem. East Ocean View Elem. Easton Elem. Fairlawn Elem. Gatewood Elem. Goode Elem. Granby Elem. Ingleside Elem. Jackson Elem. Lafayette Elem. Lakewood Elem. Lansdale Elem. Larchmont Elem. Larrymore Elem. Lee Elem. 200 1473 684 0 323 0 973 0 0 1209 911 0 120 • 2 0 551 545 .784 0 o381 1036 q 0 20 o 300 1089 0 5 641 0 200 170 0 535 10 545 tfi 10 4 719 0 688 877 >- 0 508 r 5 0 I 190 339 0 846 0 862 8 727 0 1092 0 11 631 36 Liberty Park Elem Lincoln Elem, Lindenwood Elem. Little Creek Elem. Little Creek Primary Madison (Elem. section) Marshall Elem. Meadowbrook Elem. Monroe Elem. Norview Elem. Oakwood Elem. Oceanair Elem. Ocean View Elem. Pineridge Elem. Poplar Halls Elem. Pretty Lake Elem. Rosemont (Elem. section) Sherwood Forest Elem. Smallwood Elem. Stuart Elem. Suburban Park Elem. Tarrallton Elem. Taylor Elem. Titus Elem. Titustown Elem. Tucker Elem. West Elem. Young Park Elem. 545 784 0 697 683 904 893 0 905 0 0 330 352 200 637 35 683 904 615 39 0 722 768 0 900 0 316 0 635 0 162 0 0 383 913 0 5 592 857 0 591 10 600 4 420 0 0 716 200 476 0 521 0 585 350 837 IN TERRO G ATO RY 7 SCHOOL 1 SENIOR HIGH Maury Norview JUNIOR HIGH Blair Northside Norview ELE M E N TA R Y Chesterfield 7 Ingleside 1 Marshall 38 Meadowbrook Monroe 13 Norview 1 Suburban 8 TO TA LS 68 2 3 4 5 6 5 2 1 2 1 21 17 9 13 6 3 1 1 10 9 11 7 6 3 3 4 4 4 1 1 43 32 26 27 17 7 8 9 10 11 12 4 17 1 2 22 3 1 10 6 1 1 1 2 3 1 1 3 1 1 19 10 6 39 4 3 Grand Total 294 38 PLAINTIFF’S INTERROGATORY [filed October 3, 1963.] 7. State the total number o f Negro pupils who have been initially assigned to attend all-white or predominantly white schools for the first time during the 1963-64 school term. Give a breakdown of this total by schools and grades. MEMORANDUM OF THE COURT [filed July 30, 1964] Stripped of non-essentials the issue presented in the cap tioned matter is confined to the constitutionality o f a plan for the operation of the public schools of the City of Nor folk which was put into effect at the beginning of the 1963- 64 school year, and is now functioning, and will continue to function unless otherwise modified by court order. While the rig-hts of one individual child were the subject o f evidence before the Court,1 these issues are now moot and the child is about to enter upon another school year. 1 1 The testimony of Mrs. Pruden relates to one of her five Negro children. On the first day of the 1963-64 school year the three oldest children were in attendance at predominantly white schools. They had apparently been assigned to these predominantly white schools for the 1962-63 school year and were not in the category o f being transfer students. Until April, 1963, the Pruden family lived in the area known as Bowling Park. During the 1962-63 school year Kevin, the eight year old child, attended Bowling Park School, which the Court understands was attended only by Negro children as it is located in an area where Negroes reside. The School Board has previously maintained a cut-off date for transfer applications as of May 31 of each year. Apparently the principal o f Bowling Park School advised Mrs. Pruden that it was not necessary to apply for a transfer for Kevin as the family moved in April, 1963, to 1314 DeBree Avenue, which is located near the John Marshall School (presently attended by approximately 20% Negro children and 80% white children). Mrs. Pruden first endeavored to get Kevin into the Robert E. Lee 39 Much of the testimony relates to past practices and pro cedures of the School Board. It must be remembered that Norfolk was one o f the foremost battlegrounds in the fight to permit integration of races in the public school system. When 17 Negro children were finally assigned by the School Board to previously all-white schools in August, 1958 (fo l lowing a series of appeals after this Court’s determination of the guiding principles of law in January and February, 1957), the Norfolk schools were closed by direction of the Governor of Virginia made pursuant to action by the Gen eral Assembly of Virginia at the Extra Session, 1956. The Norfolk schools were reopened on February 2, 1959, sub sequent to the decisions in Harrison v. Day, 200 Va. 439, 106 S.E. (2d) 636; James v. Almond, 170 F. Supp. 331; and James v. Duckworth, 170 F. Supp. 342. They have never been closed since February, 1959, and it is a safe assumption that the doors of the public schools in Norfolk will not again be barred so as to impede the progress o f educating our children in this community. Norfolk has learned the lesson o f irreparable damage sustained by the School but was told that the John Marshall School was the school area covering 1314 DeBree Avenue. When she applied at John Marshall, she was faced with the failure to meet the May 31 deadline and the child was assigned to Young Park School. W hile not in the record, the mtoher of the child indicated a willingness to return the child to Bowling Park School, a school more suitable to transportation facilities, and he was admitted on the day following the hear ing subject to further order of court. In view of the drastic change of plan as submitted by the School Board, as well as the time element involved since the date of hearing, the validity of the May 31 deadline need not be considered from the standpoint of Kevin Pruden. An initial enrollee, Bernard Pruden, age 6, was first declined admission to John Marshall School prior to the commencement o f the 1963-64 school year on the basis of failure to meet the May 31 deadline but, prior to the opening of school and after discussion of the matter between Court and counsel, Bernard was permitted to enter John Marshall as the Court informally expressed the view that the May 31 deadline could not be applied to an initial enrollee. 40 victims of school-closing. That lesson, while costly, has not been without compensating factors. Despite a natural re luctance to accept racial mixture in public schools, the people of Norfolk and its governing body have redoubled their efforts to establish and maintain a more effective edu cational process for the betterment of our youth. This is not to say that everything done or not done has met with unanimous approval as it applies to racial prob lems in the public school system. There are those who re fuse to send their children to a public school because there may be one Negro in a particular school; there are those who contend that intermixture of races in public schools should be required and maintained on an approximately equal numerical basis, and if not numerical, then on a pro rata basis. In short, it is impossible to satisfy all demands of people from varying walks o f life and different races, especially those who are agitating their particular cause. In this setting the Norfolk City School Board has strug gled with the many problems confronting them. They have moved cautiously but steadily forward to the point where they now present, in response to plaintiffs’ motion for fur ther relief, a plan of operation and procedure which goes far— and this Court believes the entire way— in removing all elements of racial discrimination in the school system but, at the same time, affords a freedom of choice to all children (speaking through their parents or guardians) to attend the school of their choice in accordance with the geo graphical location of their homes. It may be argued that the plan, even if constitutional, is belatedly presented. With the vast number of decisions 41 emanating from appellate courts, it would have been an impossible task to keep abreast of these decisions and change the procedures daily. What may have been constiutional in 1958, 1959, and 1960 is no longer recognized as such. Indeed, there has been no settled plan which may be adopted as universal to all schools. The very purpose of an interim transition period suggests that action should not be so hasty that it would unduly interfere with the efficiency of school administration. After all, this Court still believes that the primary purpose of a public school system is to adequately educate the children. W e all acknowledge that this process o f education must be consistent with the law but if the Norfolk School Board had changed its plan and procedure every time a new decision was handed down, there would have been a complete disruption of the educational processes. W e look, then, to the future and disregard the past. At the time o f the hearing in this case the public school system consisted of four senior high schools, ten junior high schools and fifty-five elementary schools.2 Under the plan proposed and now in operation the system will work substantially as related herein. Senior High Schools There are, as noted, four senior high schools in the city. Every high school student, irrespective of race, will have the choice of attending one o f two schools. Granby, Maury and Norview have been predominantly white and, prior to February 2, 1959, were attended only by white children. In the interim period they have been substantially inte 2 Three of the elementary schools are new and were apparently opened for the 1963-64 school year. 42 grated.3 Thus, every Negro child has the privilege of at tending either a predominantly white or Negro senior high school. Every white child has the corresponding privilege. Junior High Schools With two exceptions (Azalea Gardens and Willard) the same freedom of choice is extended to Negro and white children, that is, each child, irrespective of race, is afforded an election to attend one of two schools; one of which is predominantly attended by white children and the other of which is predominantly attended by Negro children. As to the two exceptions, while the record does not so indi cate, the reason for the single attendance area is probably due to overcrowded conditions or the obvious fact that no child living outside the area would elect to attend that school. Children of the proper grade residing in the school area designated for Azalea Gardens must attend that junior high school irrespective of race. The same is true for W il lard. As noted, the other school areas each afford a freedom o f choice. Elementary Schools Because of the importance o f concentrating small children in the area near their respective homes, the freedom of choice plan is more restricted in elementary schools. There are 37 areas where children of proper grade who reside 3 For the 1964-65 school year, under the freedom of choice plan, Negro chil dren elected to attend (and were admitted) as follow s: Maury 192; Norview 104; Granby 24. These figures, while not in the record, are included as the Court advised counsel that the appellate court should have knowledge of the working features of the plan. 43 therein are required to attend a particular school irrespec tive of race. There are 18 areas where children of proper grade residing in a particular school area have a choice of attending one of two schools. The choice, in such event, is a matter of selecting a contiguous school area. If a Negro o f the appropriate age lives in Coronado, which is now pre dominantly Negro, he may elect to attend Norview which is now predominantly white. If he lives nearer Norview, he may elect to attend Coronado. The same applies to the white child. While there are 18 overlapping areas, many interchange such as Coronado and Norview, Smallwood and Stuart, Chesterfield Heights and Liberty Park, etc., thereby reducing the overall effect o f the freedom of choice plan. Principles and Methods The best procedure for explaining the principles and method of operation is to quote at length what the School Board has adopted. It reads as follows: “ Principles “ 1. If only one school serves an area, all children living in the area will attend such school; provided, that any child who at the end of the 1963-64 school year is/was attending a school which does not/did not serve the area in which he lives may, at the option of him and his parent or guardian, continue to attend such school as long as he is in a grade which such school has. “ 2. If two schools serve an area, all children living in the area may choose, subject to the approval o f their 44 parents or guardians and subject to the maximum ca pacities o f the schools, the school which they wish to attend. The choice for the ensuing school year must be made not later than June 15 of the current school year, provided, however, that as to any child who moves into the City of Norfolk or from one area o f the City to another and any child who enters the public school system of the City from a private or parochial school in the City subsequent to June 15, the choice must be made promptly after such move or entry is made. “ 3. The program of special tests will be eliminated and the grade levels at which the children are expected to achieve satisfactorily will be determined by the School Administration, guided by the cumulative rec ords, routine tests and performances of the children. “Method “ 1. Prior to May 1 o f each year every child in attendance in the public schools of the City of Norfolk who lives in a school attendance area which is served by two or more schools will be furnished a form desig nating the schools which the child may attend during the ensuing school year and on which the child and his parent or guardian shall select the school which they wish the child to attend. Such form shall be com pleted, signed by the child and his parent or guardian and returned promptly to the person named on the form. “ 2. Every child who is not in attendance in a public school o f the City of Norfolk when the forms men- 45 tionecl in the preceding paragraph are distributed and who wishes to enter a public school of the City for the ensuing school year, and every child who is in attend ance in a public school of the City when such forms are distributed but who moves from one school attend ance area to another after such form is completed and returned, and the parents or guardians of such chil dren, shall complete and sign such a form for the en suing school year and file the same with the Superin tendent of Schools of the City of Norfolk, or someone designated by him, as soon as possible after such chil dren and their parents or guardians decide that such children will enter a public school o f the City, or move from one school attendance area to another, as the case may be, and, in any event, not later than the day before such children wish to enter school for the ensu ing year. “ 3. Subject to the maximum capacities of the schools, the School Board of the City of Norfolk will place children who live in an area which is served by two or more schools in the schools which they and their parents or guardians select and will cause such children and their parents or guardians to be notified of the schools which such children will attend as soon as possible after such forms are returned or filed. “4. The option mentioned in Principle numbered 1 shall be exercised by a statement in writing, signed by the child and his parent or guardian, and delivered to the Superintendent of Schools of the City of Norfolk, or someone designated by him, at least ten ( 10) days prior to the opening of the public schools o f the City 46 for a school year. If the option is exercised, it may be subsequently cancelled at any time by a statement in writing, signed by the child and his parent or guardian, and delivered to the Superintendent of Schools o f the City o f Norfolk, or someone designated by him. “ 5. Each child will attend the grade which the School Administration, guided by the cumulative rec ord of the child, his routine tests and his performance, determines to be the level at which he is expected to achieve satisfactorily. “ 6. The School Administration will make such ad ministrative transfers of classes o f children and/or individual children as are necessary for the orderly operation of the public schools of the City, such trans fers being necessary from time to time for various reasons which include but are not limited to the fol lowing: to prevent overcrowding o f a school building, to comfortably fill a school building, damage to or de struction of a school building, disciplinary problems, the need of a child for special subjects, mental or physical disability of a child. “ 7. The School Board of the City o f Norfolk will cause a copy o f this statement o f Principles and Method to be published in a newspaper having a general cir culation in the City o f Norfolk at least once during the month of April and once during the month of August o f each calendar year.” W e need not concern ourselves with the provision at the end of paragraph one o f the “ Principles.” This was neces sary to protect those children located at a particular school 47 at the end of the 1963-64 school year who desired to con tinue in attendance at that school. It does not affect the operation of the plan and, even as to such child, there is an option o f changing if such child does not reside in that school area. While not in the record, but again with permission of counsel (see correspondence) in order to point out the results of operation, when the forms were distributed to the children living in a school attendance area which is served by two or more schools during the spring of 1964, 1251 Negro pupils selected predominantly white schools, whereas 12,097 Negro pupils elected to attend predomi nantly or all-Negro schools. It must be remembered that every one of the 13,348 Negro children had the election of attending either a predominantly Negro school or a pre dominantly white school. Counsel for the plaintiffs attack the plan. They contend that it falls short o f completely ending racial segregation in the public school system. The record reflects that the Court suggested that counsel for the plaintiff submit a plan, but such suggestion was not accepted— at least, no alternative plan has been forwarded to the Court. An examination of the maps showing the senior high school areas, junior high school areas and elementary school areas, will not demonstrate any instances of zone boundaries drawn intentionally along racial residential lines. The areas, with minor exceptions, are compact. The vice of the plan— if such is a vice— is that Negro children may elect to attend predominantly Negro or all-Negro schools. If they reside in a school attendance area attended by more than one 48 school, they have the choice of attending a predominantly white school or a predominantly Negro school. I f they re side in a one area-one school category, they are, o f course, restricted to that one school— but so are the white children. This is the principle of the neighborhood school which has received at least tacit approval o f the United States Su preme Court when certiorari was denied in Bell v. School City of Gary, Indiana, 7 Cir., 324 F. (2d) 209, cert. den. 377 U.S. 924. And if there is any merit to a freedom of choice plan, so long as all children living within a desig nated area have an equal choice available, it is constitu tional. A racially desegregated school system was not in tended to correct racial imbalances in certain schools. Obviously there will be problems which may arise under the new plan. As suggested by the Court, where more than one school serves a particular attendance area, all or nearly all children could elect to attend one school, thus leaving the other school practically vacant. While this problem did not arise by reason of the choice of pupils made in the spring o f 1964, if it does arise in the future, the School Board will be required to admit the children without discrimina tion as to race in accordance with the assurances given by the City Attorney.4 The explanation of the designation of more than one school serving a particular school attendance area is given by the Superintendent of Schools as follows: “ A. The significance of the red boundary is this: That there are fifty-two schools pictured on this map. In those few instances that you have mentioned, those 4 Tr. p. 88. 49 schools are next to each other. They have a rapidly changing and mobile population, just as you mentioned, that you gave the illustration yourself of the Lee School District. As a result— and as a result of the gradual transition period we have proceeded through desegre gation liberalizing our original procedures. These areas have children who are in one area of one school district going to another, back and forth, across those red lines, and under the new principles that we gave in the answer to your petition to the Court, we would keep these lines, certainly for this time, so that no child would be forced out of a school where he had chosen to go or where the Court had put him, because we were— we would make those, as the other forty-some schools are— single schools serving single areas where every child would go to the school. In other words, this is to preserve the choice o f a child of either race where we have let him go in the past or where the Court may have sent him. It could happen— I don’t know that this is true— or somebody had sent him— that is to preserve in those rapidly changing areas where our past procedures have caused people to cross from one line to another, and that is the purpose of the line— to preserve freedom of choice.” The Court holds that this plan may be constitutionally administered and that, thus far, it has been so applied. This is not a situation in which the School Board has failed to realistically approach the desegregation problem. Plain tiffs request the entry of an injunctive order. An injunction was previously entered by this Court in this case on Feb ruary 26, 1957, reading, in part, as follows: 50 “ 1. That the defendants, and each o f them, their suc cessors in office, agents, representatives, servants, and employees, be, and they are, hereby restrained and en joined from refusing, solely on account of race or color, to admit to, or enroll or educate in, any school under their operation, control, direction or supervision, di rectly or indirectly, any child otherwise qualified for admission to, and enrollment and education in, such school.” The injunction has never been modified or relieved. While this Court no longer sees any necessity for continuing the injunction in effect, the same question arose previously in Brooks v. School Board of Arlington County, Virginia, 4 Cir., 324 F. (2d) 303, and the Court of Appeals directed that the injunction be reinstated. For this reason—-and no other— the injunctive order of February 26, 1957, shall remain in effect. The freedom of choice has received judicial sanction by the language taken from opinions in cited cases. Dillard v. School Board of City o f Charlottesville, Va., 4 Cir., 309 F. (2d) 920, 923-4; Jeffers v. Whitley, 4 Cir., 309 F. (2d) 621, 627; Goss v. Board o f Education, 373 U. S. 683. While it is true that children living in an area served by only one school do not have a freedom of choice, this is not an act o f discrimination as all children living in that area, irrespective of race, are accorded the same treatment. Nor does the Court believe that this is a proper case for the allowance of counsel fees. W e do not understand that such fees must be allowed in all school cases. Following Hill v. The School Board o f Norfolk, 4 Cir., 282 F. (2d) 473, certain modifications of the existing plan were made, 51 perhaps not as rapidly as either the Court or counsel for plaintiffs may have deemed appropriate, but nevertheless with a steady approach to a desegregated school system. From a review of the more recent authorities it would appear that counsel fees are directed against the school boards practicing discrimination in a pernicious form. We do not believe that even counsel for the plaintiffs will con tend that this situation has existed since August, 1958. The School Faculties One final point o f major consideration is the contention of counsel for plaintiffs that any plan approved must pro vide for an integration of the faculties o f the public school system. At the outset we should note that no principal, teacher, or other member o f the professional or administrative per sonnel in any school has either complained, testified, or in any manner sought relief. No child, parent or guardian has testified or complained as to this issue. The motion for further relief, signed by the attorneys, makes the following allegation: “ The defendant continues the policy of assigning prin cipals, teachers, and other professional personnel to schools on the basis of racial considerations, with only Negro professional personnel being assigned to the all-Negro schools in the system and only white per sonnel being assigned to the all-white and predomi- nantly-white schools in the system.” 52 The foregoing allegation would indicate that there are no white children in attendance at the predominantly Negro school. Such, however, is not the case; nor was it the situ ation in the 1963-64 school year. Understandably the num ber of white children attending a predominantly Negro school has been few in past years, but they will undoubtedly increase under the plan now in operation. However, this is beyond the subject now under consideration. The procedure presently followed by the School Board is to assign principals and teaching personnel who are Ne groes to those schools which are attended predominantly by Negro children, and where the school is attended pre dominantly by white children the principal and teaching personnel have been white. At the conclusion of the evidence the following colloquy took place: “ The Court: Do I understand that the only thing in this record on the contentions of the plaintiffs that the school faculties should be integrated is Mr. Lam- berth’s statement to the effect that they are not inte grated, and you gentlement will rest on that basis, on the school faculty situation? “ Mr. Tucker: I should assume that that would be adequate because that is all that we could prove. I think the better proof is contained in the answers to the interrogatories, that some schools have nothing but negro faculty and other schools have nothing but white faculties. This proves it. 53 “ The Court: Yes, but I don’t have any testimony similar to what the Supreme Court in Brown v. Allen based it on that this affects in any way the children and their rights. In Brown against Allen, as I remem ber, the Supreme Court placed great emphasis upon the testimony in some of these cases. I don’t have that. I don’t take judicial notice that the reaction against— as to Negro children is the same if they’re being taught by a Negro teacher or a White teacher. Do I under stand that is your contention; that it is the same basis ? “ Mr. Tucker: That is not the basis o f our conten tion here. W e don’t have any evidence of psycholog ical detriment, but the thing is based on Brown versus the Board of Education of a transition to non-racially non-discriminatory school systems, and some of the conditions, through the court— as a matter of fact the Fourth Circuit has indicated that the prayer for a transition to a racially non-discriminatory school in cludes everything else. “ The Court: In the Lynchburg case Judge Sobeloff said by dictum their plan did not mention anything about it. “ Mr. Tucker: And other courts have— “ The Court: But he— I don’t remember that he sent it back to the District Court in Lynchburg and said, ‘Integrate the faculties,’ did he? Judge Michie may have thereafter done it, I don’t know. Anyway that’s a matter you’re willing to rest on the record. 54 “ I expected some very interesting evidence as to the question of the effect on children, but you are going to rest on the record, and the School Board rests on the record, and I am very much interested to see when the judges have got [ten] into the educating classes. Maybe we have.” Plaintiffs rely upon Board of Public Instruction of Duval County, Florida v. Braxton, 5 Cir., 326 F. (2d) 616, cert, den. 377 U. S. 924. Undeniably, the foregoing authority (majority opinion) supports plaintiffs’ contentions. How ever, at the time of that decision the Court was confronted with all-Negro and all-white schools. Relying upon the Fifth Circuit’s prior decision in Augustus v. Board of Public Instruction of Escambia County, 5 Cir., 306 F. (2d) 862, the Braxton case went even further and held, as a matter of law, that Negro children had rights which were violated by the assignment of school personnel on the basis o f race or color. The Fourth Circuit has not, to the knowledge of this Court, expressly ruled upon the issue. In Jackson v. School Board o f the City o f Lynchburg, Vir ginia, 4 Cir., 321 F. (2d) 230, there is dictum to the effect that a plan effecting a transition to a racially non-discrim- inatory school system is broad enough to comprehend all aspects o f operations. Later, in Brooks v. County School Board o f Arlington County, Va,, 4 Cir., 324 F. (2d) 303, 306, the Court points out the elimination o f considerations o f race in personnel actions was “ worthy o f commendation but, again, it is so new that there has been no implementa tion and no experience under it.” 55 The matter was before the Sixth Circuit in Mapp v. Board of Education o f City o f Chattanooga, Tenn., 6 Cir., where the Court intimated that a factual inquiry should be developed and that school children, not otherwise injured, cannot assert the constitutional rights o f teachers or prin cipals who are not parties to the cause. It must be remembered that the Supreme Court has not yet made integration mandatory just for the sake of inte grating. This appears reasonably clear from its refusal to review Bell v. School City o f Gary, Ind, 7 Cir., 324 F. (2d) 209. If it is not incumbent upon a school board to “ force” integration among the pupils, why is it required that a school board “ force” integration upon the school faculties ? This Court, while personally in agreement with the well- reasoned dissent o f Circuit Judge Jones in Board of Public Instruction of Duval County, Fla. v. Braxton, supra, ac knowledges that a factual situation could be presented. It is recognized as a fact that, in many school systems Negro teachers have white children in their classes and vice versa. Within a short period of time, as integration of the pupils becomes more generally accepted, the School Board of the City of Norfolk will probably begin integrating the facul ties. The Superintendent of Schools was not even interro gated as to his views upon this issue. To force the School Board to resort to a definite plan at this time will only result in ultimate injury to the capable Negro teaching personnel. Aside from the foregoing, judges should not consider themselves as school administrators. When, in the judg ment of the highly qualified school administrators, it is for 56 the best interest of the children to be taught by faculties o f both races, then the faculties should be integrated. To force such action by an injunctive order at this time will impair the efficiency o f the school system and open the avenue to an endless stream of litigation involving assign ments of personnel. In the City of Philadelphia, where a system of assignment without regard to race has been in effect for many years, the teachers are offered the oppor tunity to fill existing vacancies strictly according to se niority. This has resulted in litigation by Negro plaintiffs who complain that Negro teachers universally elect to fill position in predominantly Negro schools. While this Court does not consider the Philadelphia system as being for the best interests o f the children being educated— as it totally disregards efficiency, adaptability and other factors— it is probably the only system which could prevent an endless series o f litigated cases touching upon the propriety and legality of teaching assignments. In short, this Court favors the vesting of judgment in such matters where it belongs— in the school administration and not in the hands of a fed eral judge who has no facts upon which he may determine what is proper and legal. The request for an enlargement o f the injunctive order is denied. Counsel will prepare and present an appropriate order in accordance with this memorandum. ( S gd) W alter E. H o ffm a n United States District Judge Norfolk, Virginia July 30, 1964 57 MOTION OF DEFENDANT SCHOOL BOARD FOR APPROVAL OF CERTAIN ACTIONS [filed September 4, 1964] The defendant, The School Board o f the City of Norfolk, Virginia, represents unto the Court the following: 1. That certain children, numbering 195, and their par ents or guardians, who completed and returned choice of schools forms in the Spring of 1964 and thereby chose the schools these children wished to attend for the 1964-65 school year, prior to August 31, 1964 requested permission to change their choices of schools. 2. That the majority of the requests contained reasons therefor and that these reasons include living nearer to the school now desired than to the school originally se lected and the elimination of a transportation problem, change of residence although still in the same school at tendance area, the school originally selected does not offer certain elective courses which are offered at the school now desired, failure to understand the choice when it was originally made, and change of mind. 3. That additional children, and their parents or guardi ans, who completed and returned choice of schools forms in the Spring of 1964, have requested and may in the near future request permission to change their choices of schools for the 1964-65 school year. 4. That the School Board has considered the requests which were made prior to August 31, 1964 and, while mind 5K ful of the provision in its plan1 for the attendance o f chil dren in the public schools of the City of Norfolk to the effect that children such as these must make their choices of schools for the ensuing school year not later than June 15 of the current school year, is of the opinion that because o f the apparent uncertainties and some confusion in the minds o f a number o f the children and parents or guardians in making for the first time their original choices these requests should be granted, on certain conditions, if such granting of them meets with the approval of the Court. 5.That, by Resolution adopted on August 31, 1964, a certified copy of which is attached, the School Board: a. On certain conditions, granted permission to those children, numbering 195, and their parents or guardians, who completed and returned choice of schools forms in the Spring of 1964 and who prior to August 31, 1964 re quested permission to change their choices of schools for the 1964-65 school year, to make such changes of choice and to complete, sign and file with the Division Superin tendent of Schools of the City of Norfolk, or someone designated by him, new choice of schools forms. The con ditions upon which this permission was granted are that this Court approve the action of the School Board in grant ing the permission and that the granting o f the permission does not establish a precedent and does not alter or waive any provision contained in the aforesaid plan1 for the at tendance of children in the public schools of the City o f Norfolk. 1 Principles T o Be Applied In Determining The Schools And Grades W hich Children W ill Attend And Outline O f Method O f Putting Such Principles Into Effect. 59 b. Made provision for the admission of these children in the schools which they now wish to attend, if such schools have their grades, pending the action of the Court. c. Made provision for the admission in proper cases of additional such children, who have requested or may in the near future request permission to change their choices of schools, in the schools which they wish to attend, pend ing action o f the Court. W H EREFO RE, the defendant, The School Board or the City of Norfolk, Virginia, moves the Court: 1. To approve its action, as set forth in its Resolution adopted on August 31, 1964, in granting permission to the 195 children, and their parents or guardians, who made their requests so to do prior to August 31, 1964, to change their choices of schools for the 1964-65 school year; and 2. To approve of the School Board similarly granting such permission in proper cases to such additional children, and their parents or guardians, who have requested or in the near future may request permission to change their choices of schools for the 1964-65 school. T h e S chool B oard of t h e C it y of N orfolk , V ir g in ia RESOLUTION OF THE SCHOOL BOARD OF THE CITY OF NORFOLK [filed September 4, 1964] W H ER EA S, certain children and their parents or guard ians, who completed and returned choice of schools forms 60 in the Spring of 1964 and thereby chose the schools these children wished to attend for the 1964-65 school year, have now requested permission to change their choices of schools; and W H ER EA S, the reasons given for requesting permis sion to change the choices, which include living nearer to the school now desired than to the school originally selected and the elimination of a transportation problem, change of residence although still in the same school attendance area, the school originally selected does not offer certain elective courses which are offered at the school now desired, failure to understand the choice when it was originally made, and change of mind, are such that the School Board is o f the opinion that the requests should be granted subject to the approval o f the United States District Court for the East ern District o f Virginia and on the other conditions herein after set forth; now, therefore, BE IT RESOLVED by The School Board of the City o f Norfolk: 1. That permission is hereby granted those children and their parents or guardians, who completed and returned choice o f schools forms in the Spring of 1964 and have now requested permission to change their choices of schools for the 1964-65 school year, to make such changes of choice and to complete, sign and file with the Division Superin tendent o f Schools o f the City of Norfolk, or someone designated by him, new choice o f schools form s; provided, however, that this permission is granted on condition that the United States District Court for the Eastern District o f Virginia approve this action o f the School Board in granting the same and on condition that the granting of 61 the same does not establish a precedent and does not alter or waive any provision contained in the Principles To Be Applied In Determining The Schools And Grades Which Children Will Attend And Outline O f Method O f Putting Such Principles Into Effect. 2. That if on the opening day of the 1964-65 school year (September 3, 1964), the Court has not disapproved said grant of permission, these children shall be admitted in the schools which they now wish to attend, if such schools have their grades, on condition that the Court approve this action of the School Board. 3. That the Division Superintendent of Schools, or some one designated by him, notify these children and their par ents or guardians in accordance with this action. 4. That in the event there are additional children and their parents or guardians who request permission to change their choices o f schools for the 1964-65 school year and who have the same or similar reasons for doing so as those set forth in the preamble to this resolution, the Division Superintendent of Schools, pending action on such requests by the School Board, is authorized, if he deems it proper so to do, to admit such children in the schools which they now wish to attend on the same conditions upon which the School Board has herein granted permission to those who have now made such requests; provided the Court has not disapproved this action of the School Board and provided the maximum capacities of the schools are such that the children wishing to attend them can be accommodated. A D O PTE D : August 31, 1964 62 O R D E R [Entered October 22, 1964] This action came on again to be heard on December 7, 1963 upon the complaint in intervention of Carlotta Mozelle Brewer et al and the defendants’ answer thereto, the plain tiffs’ motion for further relief and the defendants’ answer thereto, the complaint in intervention o f Greta Denise Miller et al and the defendants’ answer thereto, the plaintiff’s motion for temporary restraining order, as to certain in- tervenors, which was treated as a complaint for temporary injunction and the defendants’ answer thereto, the testi mony, answers to interrogatories and exhibits offered by the parties and the record of the previous proceedings in this cause. Also considered by the Court, with the agree ment of counsel, were the report o f the defendants to the Court dated June 15, 1964 and the attached copy o f reso lution adopted by the defendant School Board on June 11, 1964, and certain figures showing how the proposed plan o f the defendant School Board operated. Upon consideration whereof and for reasons stated in the Memorandum of the Court filed on July 30, 1964, it is ADJUDGED, ORDERED and D ECREED: 1. That the plan o f the defendant School Board for the attendance of children in the public schools o f the City of Norfolk and the application of this plan, as described in said Memorandum, are constitutional and the same are approved. 2. That the plaintiffs’ motion for further relief is denied. 63 3. That the injunctive order entered by this Court on February 26, 1957 shall remain in effect, but that the plaintiffs’ motion for an enlargement thereof is denied. 4. That the plaintiffs’ motion for a temporary injunction as to certain intervenors is denied. / s / W alter E. H o f f m a n , United States District Judge NOTICE OF APPEAL [filed November 20, 1 9 6 4 j Notice is hereby given that Carlotta Mozelle Brewer and Demetria Yvonne Brewer, infants, by Oner Brewer, their father and next friend, and all others of the plaintiffs, hereby appeal to the United States Court o f Appeals for the Fourth Circuit from the order of this Court entered on October 22, 1964, by which order the Court: (1 ) approved the plan of the defendant School Board (2 ) denied plaintiffs’ motion for further relief (including plaintiffs’ prayer for reasonable counsel fees) (3 ) refused to enlarge the injunction entered on Febru ary 26, 1957 (4 ) denied plaintiffs’ motion for temporary injunction as to certain intervenors. / s / H en ry L. M a r s h , III O f Counsel 64 PLAINTIFFS’ EXHIBIT l-A-4 School Attendance Areas A s Shown On Maps Senior High Schools Granby Maury Norview Booker T. Washington Junior High Schools Azalea Gardens Blair Campostella Jacox Madison Northside Norview Rosemont Ruffner Willard Elementary Schools Ballentine Bay View Bowling Park Calcott Campostella Schools Serving Such Attendance Areas Granby, Booker T. Washington Maury, Booker T. Washington Norview, Booker T. Washington Booker T. Washington, Maury Granby, Norview— depending on residence Azalea Gardens Blair, Ruffner, Madison, Jacox, Campo stella— depending on residence Campostella, Blair Jacox, Blair Madison, Northside, Blair— depending on residence Northside, Madison Norview, Rosemont Rosemont, Norview Ruffner, Blair Willard Ballentine Bay View Bowling Park Calcott Campostella, Tucker, Gatewood, Diggs Park, Lincoln— depending on resi dence 65 Carey Chesterfield Heights Clay Coleman Place Coronado Crossroads Diggs Park Douglas Park Easton East Ocean View Fair lawn Gatewood Goode . Granby Ingleside Jackson Lafayette Lansdale L,.l Larchmont Larrymore Lee Liberty Park Lincoln Lindenwood Little Creek Primary Little Creek Elementary Madison (Elementary Grades) Marshall Meadowbrook Monroe Carey Chesterfield Heights, Liberty Park Clay Coleman Place Coronado, Norview Crossroads Diggs Park, Campostella Douglas Park Easton East Ocean View Fairlawn Gatewood, Campostella Goode Granby Ingleside Jackson Lafayette Lansdale Larchmont Larrymore Lee Liberty Park, Chesterfield Lincoln, Campostella Lindenwood, Monroe Little Creek Primary Little Creek Elementary Madison, Monroe Marshall, Young Park, Titustown— de pending on residence Meadowbrook, Titustown— depending on residence Monroe, Lindenwood, Titustown— de pending on residence 66 Norview Norview, Coronado Oakwood Oakwood Oceanair Oceanair Ocean View Ocean View Pineridge Pineridge Poplar Halls Poplar Halls Pretty Lake Pretty Lake Sherwood Forest Sherwood Forest Smallwood Smallwood, Stuart Stuart Stuart, Smallwood Suburban Park Suburban Park Taylor Taylor Titus Titus Titustown Titustown, Monroe, Marshall, Meadow- brook— depending on residence Tucker Tucker, Campostella West West Young Park Young Park, Marshall New Schools Roberts Park Roberts Park Tarrallton Tarrallton Tidewater Park Tidewater Park December 4, 1963 67 EXCERPTS FROM TRANSCRIPT OF HEARING OF DECEMBER 7, 1963 jje yfc (tr 7) * * * TH O M A SIN E PRUDEN called as a witness by and on behalf of the Plaintiffs, having been first duly sworn, testified as follows: DIRECT E X A M IN A TIO N BY MR. A S H E : Q. Please state your name? A. Mrs. Thomasine Pruden. (tr. 8) Q. And where do you live, Mrs. Pruden? A. 1314 Debree Avenue. Q. And do you have any children? A. I have five children. Q. And what ages are those children? A. Fifteen, thirteen, twelve, eight and six. Q. Are all of these children in the public schools of the City o f Norfolk? A. No. ■Q- What children are in the public schools now, in the City o f Norfolk? A. The fifteen, thirteen, twelve and six. 68 Q. What Schools are they in? A. Fifteen is in Maury High School. Q. What is the name of the fifteen-year old child? A. Josephine. Q. And the next child ? A. Thirteen and twelve are Oscar Jr., and Michael, are in Blair Junior High School. Q. And the next child ? A. Six-year old Bernard is in John Marshall school. Q. And the other child? (tr. 9) A. Edward Kevin is not in school. Q. How old is Edward Kevin ? A. He is eight. Q. Eight years of age? A. Yes. Q. Has he ever attended school in the City o f Norfolk? A. Yes. Q. What school? A. Bowling Park. Q. What year did he attend Bowling Park School? A. Up until the end o f the school year last year— 1963. Q. Up until June, 1963? A. Yes, sir. Q. Were you living on Debree Avenue in June, 1963? A. Yes, I was. 69 Q. In September of 1963, the beginning of the school year, why was it now that Edward Kevin was not entered in school ? A. When I got ready to move in April I went to the school that Edward was enrolled in— Q. What school was that? A. Bowling Park school, and the principal informed (tr. 10) me that Robert E. Lee would be an all-Negro school in September and there would be no reason for me to make formal application for Edward. Q. And where were you living at that time? A. I was living at Debree Avenue. Q. Well, where were you living when you made your application to Bowling Park school ? A. I was living at 2941 Mapleton Avenue. Q. Is that in Bowling Park? A. Yes, it is. Q. Bowling Park is a project in the City of Norfolk under the Housing Authority, is that right? A. Yes. Q. If I understood you correctly, you stated that you talked with the principal of the Bowling Park School? A. Yes. I did, sir. Q. And what did this principal inform you ? A. He told me that Edward would be transferred to Robert E. Lee for the coming school year and that about August 20th or 21st I should come to the school and get a transfer for Edward to take to Robert E. Lee. That I did. 70 Q. Did you take the— what happened when you took (tr. 11) the transfer to the Robert E. Lee school ? A. There was a principal— another Mr. Williams there — and he refused the transfer and told me that my child should be entered at John Marshall School. I then took him to John Marshall School, and Mrs. Rosen, the principal, accepted my application. While I was in the office, she was taking my application, she called the School Board, and from what I could hear on her end and she asked them if she was within her right to accept the application for Bernard and Edward Kevin. I didn’t hear the other side o f the telephone, but I do know that after she hung up the tele phone she completed my application and told me that I would hear from her. Q. Was Edward Kevin and— what is the other one? A. Bernard. Q. Were they admitted to the Marshall School? A. Bernard has since been admitted. Q. Was he admitted at that time? A. No, he wasn’t. Q. When was Bernard admitted to school? A. After the other hearing. Q. He appealed to the Court ? This was his first year in school ? A. Yes. (tr. 12) Q. And he was admitted to what school? A. John Marshall. 71 Q. And Edward has not been admitted to the Marshall School ? A. No, he hasn’t. Q. Was Edward assigned or admitted to any school? A. He was assigned to Young Park School. Q. And why is he not in the Young Park School? A. Because it is too far for an eight-year old child to go and I haven’t been letting him go. Q. Is your husband with you? A. Yes. Q. Is he working? A. Yes. Q. Are you working? A. Part-time. Q. Part-time. Now, and you stated that you couldn’t take him to the Young Park School? A. No, I couldn’t. Q. Is there bus transportation to— from your section of Debree Avenue to the Young Park School? A. No, there isn’t. Q. No Virginia Transit Transportation? A. No Virginia Transit bus that he could ride on or v tr. 113) transfer from one bus to another to get to the Young Park School. Q. Then the only way he could get from where you live to Young Park School is to walk? A. Yes. 72 Q. Did you attempt to get him in another school nearer to your home? A. Yes. Q. What school? A. John Marshall, but I was refused. Q. Did you attempt to get him in any other school? A. I asked Mr. Lamberth would he let him go back to Bowling Park School, he could get a bus on the corner of where I live and get off at the school door, and he said that couldn’t be done, that he had been assigned to Young Park School. Q. You are a Negro, are you not, Mrs. Pruden? A. Yes, I am. Q. Is the Marshall School predominantly— mainly made up of white or Negro students? A. I would say white. Q. Were you ever informed, Mrs. Pruen, as to why he was not admitted to the school that he applied ? A. Yes, because I made application for Edward Kevin (tr. 14) after the May 31st deadline, due to the fact that I had been informed incorrectly by the principal of Bowling Park School. Q. Was Bernard denied admittance in the beginning for the same reason? A. Yes. Q. He was later admitted under Court order ? A. Yes. 73 TH E C O U R T : I don’t think he was admitted under Court order. MR. A S H E : I would like to rephrase that. O. You were admitted by the School Board after you came into court? A. Yes. Q. When did you make your application to the Marshall School ? A. It must have been September— it must have been around September 7th. Q. Was that at the beginning o f the school term? A. Yes. Q. Did you appear at the school in person ? A. Yes, I did. Q. And how long have you lived in the area of the Mars hall School? (tr. 15) A. I moved April 29, 1963. MR. A S H E : That’s all. MR. D A V IS : W e have no questions. T H E C O U R T : Step down. (The witness stands aside.) * ** 74 E D W IN L. LA M BER TH called as a witness by and on behalf of the Plaintiffs, having been duly sworn, testified as follows: D IRECT E X A M IN A T IO N BY MR. TU C K E R : Q. Will you state your name and address and occupation? A. Edwin L. Lamberth, 7421 Shirlane Avenue, Norfolk, Virginia, Superintendent o f Schools, Norfolk City. =)c * % (tr. 17) * * * Q. Do I understand then a white child can go to any high school he wants to in the City of Norfolk? A. No, no, depending upon his residence he might choose either of two schools. One would be Booker T. Washington and the other would be Norview, if he lived in that general area. These lines that you see for the three high schools that are drawn there are lines that have been in existence for the older schools for generations. Q. In other words, I understand the white child would have a choice to go to the school which serves his area or go to the Booker T ? A. No, because he would be in the Booker T. area— every child would have a choice o f two schools in the senior high school level. Q. Well, a child— a white child who lived in the Norwood area, what would be his choice? 75 (ti. 18) A. He would have a choice of Norwood and Booker T. Washington. Q. And a child who lives in the Granby area, what would be his choice? A. Granby and Booker T. Q. And a child who> lives in the Maury area, what would be his choice? A. Maury and Booker T. Washington. Q. All right. A Negro child who lives in the Maury area, what would be his choice ? A. He would have Maury and Booker T. Q. And a Negro child who lives in Norview area, what would be his choice ? A. He would have a choice of Norview or Booker T. Washington. Q. That was put into effect when? A. It was presented—-I don’t know the exact date, but it was in answer to some official paper from this Court. y . Well, can we have an approximation of how many months ago that has been in effect ? A. Well, we haven’t had a change of school term since it was presented to the Court. That is why I think it was presented in September and school was already open. (tr. 19) TH E C O U R T : The record would show. It was in response to a motion for further relief. Mr. Tucker, you filed it, you ought to know when you filed it. 76 MR. TU C K E R : I am satisfied with the-— TH E C O U R T : It is answered, I don’t know when they answered it. BY MR. TU C K E R : Q. So that so far as the current school term is concerned this plan has had no effect upon this assignment of high school children? A. Yes, it has, in that a child has moved his residence since school began and he has indicated his choice, he has been placed. Q. Well, then, other than those who have moved their residence it has had no effect upon the current school term ? A. You couldn’t— you don’t pick up children in the middle o f the term. Q. Now, then, I want to refer you to the Answers to the Interrogatories— Number 3— I assume you are familiar with this document-—Answers to Interrogatories ? A. Yes, sir. (tr. 20) Q. In response to Interrogatory Number 3, it appears that there are 1589 white junior high school chil dren living in the junior high school attendance area— liv ing in the attendance area o f Norview Junior High School. A. This doesn’t have a copy o f the questions attached. I think I have a copy over there with the questions attached, and I’m sure I can follow you. What is Question 3? Question Number 3 says: “ State the number of Negro pupils and the number of white pupils, by grade level, residing in each attendance area established by the School 77 Board during the 1963-64 school term. If definite figures are unavailable, give the best projections or estimates avail able, stating the basis for any such estimates or projec tions.” Here is the answer. Yes, sir, I have it now. Q. Now, that discloses that there are 1500 white junior high school children living in the attendance area of Nor- view Junior High School, is that correct? A. This says 1589. Q. It also shows 1589 white children living in that at tendance area of Rosemont Junior High School, is that correct ? A. That’s right. (tr. 21) Q. Norview Junior High School and Rosemont Junior High School have contiguous areas, don’t they? A. That’s right. Q. Norview Junior High School is predominantly white and Rosemont is predominantly Negro? A. Right. Q. And the 1589 whites that you have indicated as residing in the area are the same 1589 that you have in dicated reside in the area of the other ? A. That’s right, very similar situation that I described with the senior high school. In other words, those children would make a choice, that’s right, at the junior high school level. Q. What I am trying to clear up is that the 1589 children refers to the same 1589 children? A. That’s right. 78 Q. I take it from that then that there are white junior high school children living in what is designated on the map as the Rosemont area? A. Well, they are living in an area, that’s right, where children now go to Rosemont, that’s right. Q. So in other words we have some o f those 1589 chil dren living in the area that is delineated on the map as Norview Junior High School— (tr. 22) A. That’s right. Q. — area? A. That’s right. Q. And some of them living in the Rosemont area? A. That’s right. Q. All right. With reference to the elementary schools in this same answer to interrogatory, I think we have a showing 545 whites and 784 Negroes of elementary school age living in the Chesterfield elementary school zone, is that correct? A. That’s right— 545. Q. And we have those same figures of 545 white and 784 Negro elementary school children living in the adjacent Liberty Park Elementary School area, is that corect? A. Well, they are served— I don’t know that they live near the school, but they are served by the same school. In other words, these are two contiguous schools and chil dren are now crossing that line. Q. I understand, I ’m— A. They’re the same children, you’re right, they are the same children. 79 Q. And the Chesterfield Elementary School is pre dominantly white? (tr. 23) A. That’s right. Q. And the Liberty Park Elementary School is pre dominantly Negro? A. That’s right. Q. A similar situation is true with respect to the Linden- wood Elementary School area? Your answer to the Inter rogatory indicates 683 White and 904 Negro children of elementary school age living in the Lindenwood area, is that correct? A. That’s right. Q. And 683 White and 984 Negro living in the Monroe Elementary School area? A. That’s right. Q. Those two areas are contiguous? A. That’s right. Q. And the Lindenwood School is totally Negro? A. That’s right. Q. And the Monroe School is predominantly white ? A. That’s right. Q. And the figures there are referring to the same chil dren? A. Same children. In other words, an attendance area in this answer is an area served by a school, and these two areas are joint and the children cross the line between (tr. 24) between the two schools, that’s right. * * * 80 (tr. 25) * * * Q. Mr. Lamberth, we will still be referring to the An swers to Interrogatories Number 3 for one more compari son at least, and that is your answer was that in the area o f the Marshall Elementary School there are some 352 white elementary school children, and in the area o f the Young Park Elementary School there are some 350 white elementary school children. A. Yes, sir. Q. Am I correct in assuming that those figures refer to the same children ? A. That’s right. Q. The two school areas are contiguous ? A. Yes, sir. Q. And the Marshall Elementary School is predomi nantly white? A. That’s right. (tr. 26) Q. And Young Park Elementary School is predominantly Negro? Is totally— A. Right. Q. Is totally Negro? A. Right. Q. W e will for a few minutes be referring to the map showing the elementary school areas, which has been in troduced into evidence as— TH E C O U R T : Plaintiff’s Exhibit 1-A-l. 81 Q. — as Plaintiff’s Exhibit 1-A -l. And 1 think another question will also refer to the Answers to Interrogatory 3. The— I believe that prior to the close of the last school session— that is during the 1962-63 school session— and in prior years, the Lee School— the Lee Elementary School was predominantly white as far as the student body was concerned ? A. Was prior to— it was predominantly white prior to the present school session, yes. Q. And the faculty and the staff was all white ? A. Yes, sir, that’s right. Q. Prior to that time. And I believe that now the faculty is all Negro? A. Yes. Q. When was the change made, sir ? (tr. 27) A. July 1st, 1963. Q. The— in earlier years the character of the neighbor hood surrounding Lee School was predominantly white ? A. Yes. Q. And in more recent years has changed to be pre dominantly Negro? A. Yes. Q. When was the present boundary for Lee School estab lished ? A. It was established— I would have to look at the Board minute— but it was established prior to July 1, 1963. That is when the official school year begins. Although the chil dren do not start until September, business that is trans- 82 acted for that year, as much as possible, is transacted be fore July 1st, and it was prior to July 1st. Q. And approximately how long prior ? A. Not— a matter of weeks, I think, maybe a couple of months, that would still be eight weeks. I ’m not sure. Q. Now, before that time did it have a definite prescribed boundary ? A. Yes, it had a boundary, and there were more chil- (tr. 28) dren in the area that it formerly served than it could house. Q. In earlier times— and by that I mean before this last change of the boundary, was the area which is now em braced in Marshall and Lee, we notice that there are two parts of the Marshall area— a northern part and a southern part, with a corridor connecting the two— was this com bined area o f Marshall and Lee divided into two parts or one— two parts or three parts as it now is ? A. Two parts. Q. In other words, there was— there was no corridor connecting two separate parts o f the Marshall School zone ? A. Yes, sir, there always was. Q. I see, sir. A. Always was. The children living closer downtown always went to Marshall because Marshall is— lacks one city lot of being on Granby Street. There is only one busi ness— it backs up to Granby Street— and it is a natural way for children to get to that school. 83 Q. Now, I think your Answer to Interrogatory Number 3 shows that there 631 Negro and 11 White elementary children living in the area which is now delineated on the map as Lee School area. A. That was true when this interrogatory was made. I (tr. 29) understand there are more white children than that in Lee School now, so there must be more white chil dren there. That was the best estimate according to the question that I could make at that time. Q. And your best estimate at that time as to— oh, yes,— A. (continuing) : I think there are more white children than eleven in Lee School at this moment. I would have to go over and count them, but my understanding is there may be eighteen in school now. Q. Well, at the time that you made up the Answers to the Interrogatories you report— A. That’s right. Q. — that there were 631 Negroes and 11 Whites attend ing the school. A. That’s right. Q. And you now are saying that there may be a few more whites? A. That’s right. Q. Now, returning to the map— and we notice certain boundaries here are marked in red. A. That’s right. Q. Specifically I see a red boundary separating the Coronado School zone from the Norview Elementary School zone. (tr. 30) A. Yes, sir. 84 Q. And the Coronado School is one that is all Negro? A. Yes, sir. Q. And Norview is one which is predominantly white? A. Yes, sir. Q. A similar boundary marked in red separates the Lindenwood School from the Monroe School areas, is that correct ? A. That’s right. Q. And Lindenwood School is all Negro and the Monroe School is predominantly white? A. Yes, sir. Q. A similar boundary separates the Marshall School area from that— from the Young Park School area ? A. Yes, sir. Q. And the Marshall School is predominantly white and the Young Park School is all Negro? A. Right. Q. A similar boundary separates Liberty Park School area from the area of the Chesterfield School, is that cor rect? A. Yes, sir. (tr. 31) Q. And the Liberty Park School area is all Negro and the Chesterfield Elementary School is predomi nantly white? A. Right. 85 Q. Then there are similar boundaries separating Lincoln from Gatewood, and Gatewood from Diggs Park, and one separating Diggs Park from Campostella and Tucker, and one separating Campostella and Tucker? A. Right. Q. That is correct ? A. That’s right. Q. And those five schools are all Negro schools? A. One o f them is predominantly white; Campostella School is not. Q. Campostella is predominantly white; the other four are all Negro? A. All Negro. Q. And 1 have covered all of the boundaries that are colored on this map as red? A. I think you have. I haven’t checked it; I believe you have. Q. Now, what was the significance of the red boundary, sir? A. The significance o f the red boundary is this: That (tr. 32)there are fifty-two schools pictured on this map. In those few instances that you have mentioned, those schools are next to each other. They have a rapidly changing and mobile population, just as you mentioned, that you gave the illustration yourself of the Lee School District. As a result—-and as a result of the gradual transi tion period we have proceeded through desegration libera lizing our original procedures. These areas have children who are in one area of one school district going to another, 86 back and forth, across those red lines, and under the new principles that we give in the answer to your petition to the Court, we would keep these lines, certainly for this time, so that no child would be forced out of a school where he had chosen to go or where the Court had put him, be cause we were— we would make those, as the other forty- some schools are— single school serving single areas where every child would go to the school. In other words, this is to preserve the choice of a child of either race where we have let him go in the past or where the Court may have sent him. It could happen— I don’t know that this is true— or somebody had sent him— but that is to preserve in those rapidly changing areas where our past procedures have caused people to cross from one line to another, and that (tr. 33) is the purpose o f the line— to preserve freedom of choice. Q. I believe I did omit a red boundary line here between Smallwood— A. Between Smallwood and— Q. — on the one side and Stuart and Monroe on the other ? A. That’s right. Using this map, now, a child moving into one of these districts— or at the end of a school year making a choice if he’s in school— or moving into the city during the summer—-if he moves into a section where there are no red lines he would attend the school as outlined there, and those boundaries are generation old and have nothing to do purposefully except to keep the building comfortably and not overcrowded. If he moved into one of the areas that you have pointed out, he would have a choice of two schools, completely unfettered, and make his choice— he and his parents— and he would be assigned to that school. 8Z Q. Is either Smallwood or Stuart School a totally Negro school ? A. Smallwood is, I think. Q, And Stuart School then is a predominantly white school ? A. That’s right. (tr. 34) Q. So that I take it then that any of these school areas, the boundary of which is not colored in red, that a child living in that area attends the school designated for that area? A. Yes. The building— the building capacity of the school in that area will meet the need of that area. Q. Are we speaking in terms of what is the present practice of the School Board and what has been the present practice— what has been the practice of the School Board with reference to school assignments, or are you speaking with reference to what the School Board is proposing to do in— some time in the future ? A. I ’m talking about what we did for every child who applied before the May 31st deadline this past year, because that was still in effect last year, and I am talking about what we have done since May 31st with children who have moved into the city and have changed their school districts. On May 31st this year we were operating under the pro cedures as approved by this Court and accepted by every body, and we accepted applications up to that date and all children who applied as of that date were handled by the way that you have there, because during the summer we presented that as an answer to your plea to the Court. * * * 88 (tr. 40) * * * Q. I— returning to Suburban Park Area, Mr. Lamberth — and ask you does the fact that there is no boundary for that area colored in red indicate that a white child who lives in that area and is o f elementary school age must attend Suburban Park Elementary School? A. Yes, every child in that area, yes, every child in that area will attend that school. Q. All right. A. That’s right. Q. And the same thing is true with every other boundary — with every other school zone the boundary of which is not marked in red? A. That’s right. Q. That this option of a choice between one or two schools pertains— or will pertain only where the red bound ary so indicates? (tr. 41) A. Yes, sir, and all races will choose, that’s right. Q. Now, to go back to the Suburban Park— and I will ask you a question with reference to a White child a year ago, was he required to attend school in Suburban Park? A. Unless he went through some same procedures as anyone else and was, through testing or adjustive services, determined to be better off somewhere else. Q. But as a regular routine matter if he lived in the Suburban Park area he attended Suburban Park School? A. That’s right. Q. That’s what Pm trying to establish. * * * 89 (tr. 55) * * * Q. I see. If a parent of a White child living in Coronado School area carried his child over to the Suburban Park School and told the principal there where he lived and said that he wanted to enroll his child there, under your instruc tions to the principal what would the principal do? A. Tell him that he didn’t live in the Suburban Park area. Q. Where would he send him ? A. He might send him to my office, to Moore, who is Pupil Services Director. He might call up and find out where he should— I doubt that the principal of sixty-six schools would know, according to the street, just what school he would go to. (tr. 56) Q. I see, but eventually the administrator would send him to some school, would he not ? A. Yes. 'S' 'fc ^ (tr. 59) * * * Q. So I understand that the white person who applied to Suburban Park School would be told that he has a choice between Norview and Coronado? A. That’s right. That’s right, because that is what that red line is between the two schools for. It is an area served by the two schools, and it would prevent us from forcing him to go to one school as much as it would keep us from forcing a Negro child to go to a certain school. Q. Was that true as of August 6, 1963? A. We have been following that ever since we filed this proposal as an answer to your attorney’s questions. 90 Q. May I finish my question? A. Yes, sir. Q. As o f August 6, 1963 would this white person have been told that he had a choice between Coronado and Nor- view? (tr. 60) A. I think your reference to August 6th is prob ably the date of the application o f some— of the assign ments on some of these sheets. Well, to the best o f my knowledge we filed the answers in July or August and we perhaps hadn’t started working on them. I don’t know; 1 can’t answer that directly, and if you were school adminis trator with as many assignments requested as we have you would understand why I would have to go to the records to ftnd out, but we filed that answer— * * * (tr. 61) * * * Q. Would this white person on August 6th, who lived in the Coronado school zone and applied to the Suburban Park School, would he have been told that he had a choice between Coronado and Norview? A. I think on August 6th it would have been a case such as the Judge said in which we weren’t doing all that we planned to, and we would have told him probably to go to Norview. Q. You would have directed him to Norview School? . A. Probably, probably so, that’s right ; that’s right. Q. I thank you! Now, again referring to your answer, (tr. 62) your Interrogatory Number 6, we find that Rickie 91 R. Outlaw, presently attending Grade 1 in Liberty Park School, applied on February 6, 1963 to attend Chesterfield School. W e’ll assume the parents applied for him, and the application was denied on August 6, 1963 for reason letter “ G” , and the symbol indicates that that means, “ Applied for a higher grade than which they were qualified.” From that I assume his parents sought to enter him in the Chester field School in a grade higher than Grade 1. My question is had the child been white would he not have been assigned to Grade 1 in Chesterfield School? A. This was under the old plan. Yes, yes. This would have come before we were into the new procedures, that’s right. Q. Well, as a matter of fact were it a white child and his parents wanted to enroll him in Chesterfield School and believed he belonged in Grade 3, he would have been ac cepted in Chesterfield School and put in the grade in which he belonged in the judgment of the school authorities, would he not? A. The same thing would happen to the same child of any race today, that’s true. Q. Could that question have been answered, “ Yes,” Mr, Lamberth ? (tr. 63) A. Yes, I can answer yes, yes, that’s true. Q. Now, the answers to the Interrogatories indicate that several children were denied for reason “ H ” , which is the symbol for “ Living at their present addresses on May 31 and failed to submit application prior to deadline.” Now, to save a lot of time, let’s forget about race in this question. The question is has any child ever been denied the right to attend public school in the City of Norfolk because ap- 92 plication for attendance was not made on or prior to May 31st? A. May I repeat the question? Has any child ever been denied the right to attend school in Norfolk because he did not apply before May 31st? Q. That is my question. A. The answer is n o ; no child has ever been denied. Q. As a matter of fact a parent of a beginner may enroll a child on the first day of the term that begins in September. A. Yes, a child may enroll the first day of the term. Q. Now, how about a child commencing Junior High School, a child commencing Junior High School enrolled in that high school on the first day of term without an application made prior to May 31st? (tr. 64) A. Under the procedures we have operated un der, this and the case you just cited would depend on the race o f the child prior to this because we had special pro cedures for unusual cases. You are not familiar with our procedure evidently. Q. I certainly am not. A. Well, I don’t see how in the world you can ask me questions because you’re talking about them all the time. Q. I asked you the question, can a child in junior high school, if his first application to enter junior high school was made at the beginning of school in September— A. You can’t give a yes or no answer to that. You just can’t give it. I see you don’t know our procedures. T H E C O U R T : Let’s apply it as o f now, or as of the first day of September, 1964. Let’s get the answer in now. 93 TH E W IT N E S S : All right. On the first day of Sep tember, 1964, a child could enter school by applying on that day. Q. May 31st deadline won’t bother him with reference (tr. 65) to beginning at junior high school? A. Beginning junior high school ? Q. Yes. A. Not if he— no, it wouldn’t because if he was in school we would know where he wanted to go. If he were in school we would have his choice; if he wasn’t in school— had come here since the May 31st deadline— so it wouldn’t bother him at all. If he was in one of our elementary schools and he went to junior high school, we would know where he wanted to go. Q. How would you know ? A. Because we would have his parent and him both put it down. Q. When is that done? A. W e’re ahead o f ourselves. That is going to be done at the same time they indicate whether they want to take Latin, French or music. Q. Let’s see if we can get an answer as to what was the situation on the first day of September, 1963. A. The first o f September, 1963 you could have two things happening; you could have people who were regular applicants before May 31st who were handled one way, and then you could have people who moved in the city or first- grader or something on August 25th that were handled (tr. 66) another way. You don’t know anything about it. 94 I understand it; you don’t. Because we changed it the mid dle o f the summer and I have been trying to tell you all afternoon. Q. Let’s go back a year before that. A. I don’t see it matters what we did in 1962. You can’t put me in jail for what happened then. * * * (tr. 68) * * * Q. Now, then, before the answer to the motion for further relief, how was the junior high school to which an elementary school graduate would be assigned— how was that determination made? A. That determination was generally made by the school •— elementary school he attended going into a junior high school, with the exception of those who chose to apply be fore May 31st and to avail themselves of the procedures which were put into force in 1959. (tr. 69) Q. So that if a child got started into one ele mentary school, unless something changed him from that school and he graduated from that school, he would go to the same junior high school as all other children from that elementary school went? A. That’s right. Q. You have certain elementary schools which feed or satisfy certain junior high schools? A. That’s right, and after 1959, as the desegregation has increased, o f course, if children of different races were in those schools they went on together, that’s right. 95 Q. But if a Negro child were in a Negro elementary school and unless he took steps to get out o f the stream, he went to a Negro Junior high school and thence to the Negro high school? A. That was true prior to desegregation and prior to— well— of course— no, a Negro child could have been in an elementary school like Suburban Park in 1960 and gone on up to— Q. No, if he started in a Negro elementary school. A. Yes, if he went to a totally Negro elementary school, that’s right, he would have gone to aNegro high school prior— (tr. 70) T H E C O U R T : Unless he applied for a trans fer. Q. As a matter of fact isn’t that yet true? A. No, it wouldn’t be true now with this plan. Q. Will you tell us when the break comes? A. The. break comes at the end of the sixth grade or the seventh grade, whichever is the last grade in the ele mentary school, and every child, as I have explained here about a dozen times, who lives in an area served by more than one junior high school, he would have a choice. You have the elementary map up there now. That is the junior high school map. Yes, that’s it. Q. And where do we have areas served by more than one junior high school delineated on this map? A. This map-—doesn’t hardly—-this drawing— this is not easy, Mr. Tucker, but this map indicates, and we have some legend that— with me— that I could give you that 96 will help you understand both what we have been trying to say about the elementary and the junior and the seniot high, but in all but two junior high school areas, to keep from forcing children of both races who are now where they want to be from being elsewhere, children who live in those areas, except for those two junior high schools, (tr. 71) would have a choice when they finish the school. They have to make choices anyway, and it would be just one more choice; they have to choose whether they want to study one thing or another in high school, and along with that the parent would have to choose a school. * * * (tr. 75) * * * CROSS E X A M IN A T IO N (Continued) BY MR. D A V IS : Q. Now, Mr. Lambert, with regard to these maps which have been introduced in evidence, the three of them, and 1 am talking about all of them now, one that sets out attend ance areas for the elementary schools, one that sets and shows attendance areas for the junior high schools, and the third, which shows the attendance areas for the senior high schools. Will you state whether or not those various areas that are shown on those maps are substantially the same— I’m talking about their boundaries— now as they have been for many years? A. They are substantially the same. Q. Has there been any change in the boundaries of the senior high schools, the area serving the senior high schools. A. None. 97 Q. Your answer is none? A. None. Q. Has there been any change with regard to the bound- (tr. 76) aries o f the areas serving the junior high school? A. Only when new junior high schools are built. Q. Could you tell us in what respects the boundaries of the areas serving the elementary schools have been changed ? I don’t mean necessarily in detail, street by street, but generally speaking I understand they are substantially the same as they have been for years and years. What, gener ally speaking, are the changes that have been made there ? A. Generally speaking when a new school is built it is as signed to a certain area of the city, and that area is divided. That would be one change, and the other would be where, because of rapid change in population density that certain school districts had to be made smaller or larger, and that is the only time that they have been changed. Q. Now, Mr. Lambert, I believe there has already been introduced in evidence an exhibit which has been identified as Plaintiff’s Exhibit l-A-4. A. That is correct. Q. For the purpose of the record would you explain that exhibit and what it shows ? A. This exhibit is more or less a legend for use with those three maps which have been prepared. In the left- (tr. 77) hand corner it shows school attendance areas as shown on the maps. In the right-hand corner it says schools serving such attendance areas. In the case of all four senior high schools it shows, for instance, that a child living in the attendance area shown on the map marked “ Granby” 98 on the senior high school map, which is not showing right at this moment, would— through these principles that were promulgated this summer, or rather sent to this Court and to the attorneys here today— that the operation of those principles would mean that a newcomer to that area would have a choice of the two schools in the right-hand corner— Granby or Booker T. Washington, The child already en rolled in the Norfolk schools and now attending a school, but who would be by grade and residence eligible or— living in the Granby area as depicted on the map— and eligible for grades taught at Granby would have a choice of Granby or Booker T. Washington. Q. This exhibit then put into words what is shown by the markings on the map? A. That’s right. Q. Or I should say maps? A. Right. And in the junior high school the same thing would apply with the exception o f two areas— two junior high schools. In the elementary, I believe we have already (tr. 78) been through and shown the few contiguous schools where the choice would have to be made. * * * (tr. 97) * * * REDIRECT E X A M IN A T IO N (Continued) BY MR. TU CK ER: 99 Q. As I understand, you have already had the boundaries on paper but the controlling thing was to keep your stream based on racial lines? A. You’re right; you’re right.