Wheeler v. Durham City Board of Education Appendix to Appellants' Brief
Public Court Documents
July 6, 1965 - January 25, 1966
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Brief Collection, LDF Court Filings. Wheeler v. Durham City Board of Education Appendix to Appellants' Brief, 1965. ac4eb1f8-c89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/edbea3a2-b247-49aa-8b31-e9a19b917b60/wheeler-v-durham-city-board-of-education-appendix-to-appellants-brief. Accessed April 29, 2025.
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I n the
MnxUb ^tatrs Court of Appeals
F or the F ourth Circuit
No. 10,460
W arren H. W heeler, et al., and
C. C. Spaulding, III, et al.,
Appellants,
v.
T he Durham City B oard oe E ducation,
Appellee.
APPEAL PROM THE UNITED STATES DISTRICT COURT
FOR TH E MIDDLE DISTRICT OF NORTH CAROLINA
APPENDIX TO APPELLANTS’ BRIEF
Jack Greenberg
J ames M. Nabrit, III
Derrick A. B ell, J r.
10 Columbus Circle
New York, N. Y. 10019
Conrad O. Pearson
M. H ugh T hompson
W illiam A. Marsh, Jr.
203% East Chapel Hill Street
Durham, North Carolina
F. B. McK issick
209% West Main Street
Durham, North Carolina
J. H. W heeler
116 West Parrish Street
Durham, North Carolina
Attorneys for Appellants
I N D E X
PAGE
Plaintiffs’ Exhibit 65-11 ....... 5a
Plaintiffs’ Exhibit 65-12 ......... 15a
Answer of Defendant to Interrogatories Submitted
by Plaintiffs on September 3, 1965 ....... 17a
Exhibit 2-B Attached as Answer to Interroga
tories ............................... 20a
Exhibit 2-C Attached as Answer to Interroga
tories ..................................................................... 21a
Exhibit 2-D Attached as Answer to Interroga
tories ................................ 23a
Exhibit 2-E Attached as Answer to Interroga
tories ..................................................................... 24a
Relevant Docket Entries ................................................. la
Exhibit 4 Attached as Answer to Interrogatories 25a
Exhibit 5 Attached as Answer to Interrogatories 26a
Exhibit 6 Attached as Answer to Interrogatories 27a
Exhibit 8 Attached as Answer to Interrogatories 28a
Exhibit 9 Attached as Answer to Interrogatories 30a
Exhibit 10 Attached as Answer to Interrogatories 31a
Exhibit 11 Attached as Answer to Interrogatories 32a
Deposition of George Reid Parks ............................. 33a
Deposition of Annie Laurie Bugg ............................. 52a
Deposition of Dr. Theodore R. Speigner ................. 64a
Deposition of Lew W. Hannen .................. 75a
Excerpts from Transcript of Hearing dated Septem
ber 23-24, 1965 .................... ...... ........ .......... ............ . 98a
Memorandum and Order Denying Intervention ....... 298a
Plan for Desegregation of the Durham City Schools .. 302a
Plaintiffs’ Response to Defendant’s Permanent Plan
of Desegregation .......... ................................... ......... 315a
Plaintiffs’ Supplemental Response .................... ......... 318a
Findings of Fact, Conclusions of Law and Opinion .... 321a
Order ............... 341a
Testimony
Plaintiffs’ Witnesses :
Myrl G. Herman—
Direct ............... 98a
Cross ............................................ 114a
Redirect ................ ........... ........................131a, 140a
Reeross ...... ....................................................... 138a
Dr. Joseph S. Himes—
Direct ____ __ _____ ________ ____ _______ __ 146a
Cross ............... 166a
Redirect ____ ____________ __________ _____ 191a
Dr. Joseph P. McKelpin—
Direct .......... ....... ...... ......... ........... ........... ...... 193a
Cross .......... ....................................................... 201a
Howard M. Fitts, Jr.—
Direct ............................................... ......... ..... . 211a
Cross ........................ ...... .................... ............. 220a
11
PAGE
PAGE
iii
Lew W. Hannen—
Direct ................................................................ 222a
Cross ......................................... 273a
Redirect ....................... 283a
Recross .................. ........................................... 285a
Elliott B. Palmer—
Direct .................................. 286a
Cross ................................................................. 292a
E xh ibits
Plaintiffs’ Exhibits:
Offered Printed
Page Page
65-1—Documents....................................._. 223a. *
65-2—Documents....................................... 224a 294a
65-3—Document ............................ 225a *
65-4—Document ............................ 225a *
65-5—Document ____ 226a *
65-6—Document ..... 227a #
65-7—Document ..... 227a *
65-8—Document ...... 228a *
65-9—Document ................ 231a 296a
65-10—Document ................... 236a *
65-11—Document ........... ......... ....... . 247a 5a
65-12—Document ....... 248a 15a
65-13—Deposition ________ ___________ 249a 33a
65-14—Deposition _______ 24-9a 52a
65-15—Deposition ___ 249a 64a
65-16—Deposition ...... 249a 75a
65-17 for Identification—Documents ..... 260a, #
Omitted.
Relevant Docket Entries
# # # # *
7- 6-65 R ecord on A ppeal—received back from Court
of Appeals the record, transcript of testi
mony, and Exhibits. Receipt acknowledged to
Court of Appeals.
7-16-65 Consent Order—as to reassignment of pupils
for the 1965-66 school years, signed by Judge
Stanley on 7-16-65.
7-22-65 Conference— with attorneys held before Judge
Stanley in Durham. By 9-1-65 ptf. to submit
their Memorandum of Law with respect to
their request for a permanent plan for elimi
nation of discrimination. Deft, has until
9-15-65 to respond. By 9-9-65 deft, to submit
to ptf. the results of the study of the deft.
Board with respect to employment and as
signment of teachers and other personnel
without regard to race or color; and a state
ment with respect to its proposed capital im
provement program for year ending 6-30-66.
If ptf. objects to any proposed capital im
provements, objections to be filed by 9-21-65.
H earing Set f o r — 23 September 1965 at 10:00
a.m. in Durham. Following hearing, the Court
will take under advisement matters still in
dispute.
9-13-65 R eport— by defendants on Proposed Construc
tion and Enlargement of the School Building
Facilities of Durham City Schools.
2a
9-13-65
9-20-65
9-20-65
9-20-65
9-23-65
9-28-65
Repoet—by defendants of Committee Studying
employment and Assignment of Professional
Personnel.
* * * # *
Motion to Intervene or in the Alternative
for Leave to Be Added as a Party-Plaintiff
—by applicant North Carolina Teachers As
soc. C/S attached.
Complaint in Intervention—received, but NOT
filed; not to be filed unless court grants mo
tion to intervene on N. C. Teachers Assoc.
Motion—of plaintiff’s that the court consider
the claim of intervenor upon the same evi
dence to be introduced by original plaintiffs
in the hearing on 9-23-65.
* # # « *
Hearing—in this action & C-11.6-D-60, before
Judge Stanley in Durham in accordance with
memo entered 7-22-65 (filed 7-29) and pend
ing motion to Intervene by N.C. Teachers
Assoc. Oral arguments heard;
Motion to Intervene Denied.—Following wit
nesses sworn and testified for plaintiff:
Myrl G. Heiunan—Rhode Island.
Joseph S. Hines—N. C. College.
Joseph P. McKelpin—N. C. College.
# # # « = *
Memorandum & Order—of Judge Stanley en
tered as of Sept. 23, 1965, denying motion to
Intervene of N. C. Teachers Assoc.
Relevant Docket Entries
3a
Relevant Docket Entries
9-28-65 Memorandum & Order—of Judge Stanley au
thorizing the Durham City School Board to
proceed with the acquisition of school sites,
renovation, etc. according to its report dated
8-20-65, etc.
Copies of Orders mailed to attnys. by Judge.
# # # # #
10-15-65 Deft’s Plan for Desegregation—of Durham
schools, with cert, of svc.
10- 25-65 Ptf’s Response to Deft’s Permanent Plan of
Desegregation—with cert, of service.
# # * # *
11- 26-65 Supplemental Response—of plaintiff to defen
dant’s permanent plan of desegregation and
opposition to defendant’s proposed order ap
proving the plan. W/Cert./Service.
# # * # #
1-19-66 Findings of Fact, Conclusions of Law, and
Opinion—of Judge Stanley dated January 19,
1966.
1-19-66 Order—of Judge Stanley adjudging that:
1. That the “Permanent Plan for Desegrega
tion of Durham City Schools” filed on Oct.
25, 1965, is approved in all respects, said
plan to remain in effect until such time as
the deft. Board shall present, and be
adopted by the Court, some other plan
for the enrollment and assignment of
pupils.
4a
2. That the application of ptfs. for an order
requiring the employment and assignment
of teachers without regard to race is de
nied.
3. All previous injunctions issued by the
Court shall continue in effect.
4. Jurisdiction of these causes be retained
for the entry of such orders as are neces
sary and proper.
# # # # #
1-25-66 Notice or A ppeal—of the plaintiff’s from order
entered in the U.S. District Court for the
Middle District of North Carolina 19 Jan
uary 1966, with $5.00 filing fee. C/S attached.
Relevant Docket Entries
5a
2710 Stuart Drive
Durham, North Carolina
August 20, 1965
Mr. Herman A. Rhinehart, Chairman
Durham City Board of Education
Durham, North Carolina
Re: Report of Committee Studying Employment and
Assignment of Professional Personnel
Dear Mr. Rhinehart:
This report is made pursuant to Paragraph 9 of the Court
Order issued August 3, 1964 by District Judge Edwin M.
Stanley, United States District Court for the Middle Dis
trict of North Carolina, Durham Division, Case Numbers
C-54-D-60 and C-116-D-60, which provides:
“ That consideration of the request for injunctive relief
with respect to the hiring and placement of teachers
and other professional personnel in the Durham City
School System is deferred until after the close of the
1964-65 school term. In the meantime, the defendant
Board is required to make a detailed study of the ad
ministrative and other problems involved. If the plain
tiffs still desire to pursue this relief, they may make
a further application to the court at any time after
the end of the 1964-65 school term, at which time both
the plaintiffs and the defendant shall be prepared to
express themselves fully with reference to all admin
istrative and legal problems involved, including, but
not limited to, the standing of the minor plaintiffs to
question the policy employed by the defendant Board
Plaintiffs’ Exhibit 65-11
6a
in the hiring and placement of teachers and other
professional personnel and how the minor plaintiffs
are injured or otherwise affected by such policy.”
As directed by the Court, this committee was appointed to
make the study.
At a meeting on February 5, 1965, the committee discussed
at length the information required for proper evaluation
of this problem. The conclusions reached were:
1. To enlarge the information requested on the applica
tion for position form in order to provide additional
information to assist in upgrading the teaching staff
of our schools.
2. (a) To provide a summary of The National Teacher
Examination scores of all teachers who had taken
the examination.
(b) To determine the number of teachers who have
not taken the examination.
3. To send a questionnaire to all members of the present
teaching staff. A copy of the form is attached.
4. To request presently employed teachers who have not
taken The National Teacher Examination to take both
the Common Examination (designed to provide a gen
eral appraisal of basic professional preparation, gen
eral academic attainment and certain mental abilities)
and the Optional Examination (designed to aid in
evaluating the teacher’s preparation to teach in his
chosen field) and require the Optional Examination.
Cost of the examinations will be paid by the Durham
. City Schools.
Plaintiffs’ Exhibit 65-11
7a
The committee felt that the information obtained from
the Optional Examination scores would be of great
value to the teachers and the school administration
in determining the areas of strengths and weaknesses
and would provide a sound basis for guidance for
improvements in the areas of weaknesses.
Plaintiffs’ Exhibit 65-11
The Superintendent was asked to provide the information
requested by the committee.
On April 9, 1965, Mr. H. A. Bhinehart, Chairman of the
Board, and Mr. Lew W. Hannen, Superintendent, met with
representatives of the classroom teachers and discussed
with them Item 4 above. A copy of the report on that meet
ing is attached.
On June 18, 1965, the committee met to consider informa
tion provided by the Superintendent.
1. Only minor changes were made in the Application for
Position form. A copy of the old form and a copy
of the new form are marked “ Old” and “New” and
attached hereto.
2. (a) Teacher Examination scores are on file for 81
teachers.
Number of Teachers
Teacher scores from 300-399
White
0
Negro
3
400-449 0 0
450-499 1 3
500-599 17 5
600-699 29 0
700-799 21 0
800-899 2 0
8a
The requirement of a score of 450 for certification
of new teachers in North Carolina has been in
effect since July 1, 1961. At a regular School
Board meeting on April 3, 1964, the Board
adopted a resolution requiring a score of 500 for
all new teachers in the city schools as far as ad
ministratively possible. All teachers certified by
the North Carolina State Department of Public
Instruction on or after July 1, 1961, who were
employed by the Durham City Schools for the
school years 1964-65 and 1965-66 had a teacher’s
examination score of 500 or more.
(b) The National Teacher Examination has not been
taken by 571 teachers in the Durham City Schools.
3. The results of the questionnaire filled out by the pro
fessional personnel are summarized on a copy of the
form and attached hereto.
The committee considered the desirability of ascertaining
the attitude of parents toward the integregation of pro
fessional personnel. We concluded it would be difficult to
develop factual information in this area. A considerable
number of white parents, however, has expressed to mem
bers of the Board their dislike of having their children
under Negro teachers. Some will reluctantly accept them,
and others will resist them, even to the extent of trans
ferring their children to other schools. During the past
two years of complete freedom of choice for reassignments,
the following developments are enlightening and we think
should be considered.
1. No parent of a white child has requested assignment
to a predominantly Negro school.
Plaintiffs’ Exhibit 65-11
9a
2. Although, the Board has assigned a number of white
children to predominantly Negro schools, in every
instance reassignment has, been requested to a pre
dominantly white school.
3. A number of Negro children has also indicated a
preference for predominantly Negro school by re
questing reassignments from predominantly white
schools.
4. An analysis of the 531 requests for reassignments for
the school year 1964-65 reflects the following:
(a) 201 requests for reassignment from predomi
nantly Negro to predominantly white schools.
(Most of these were for Negro pupils, but an
undertermined number of white pupils was in
cluded in this group.)
(b) 108 requests for reassignment from predomi
nantly white to predominantly Negro schools.
(All of these were for Negro pupils.)
(c) 91 requests for reassignment from predominantly
Negro to other predominantly Negro schools.
(All of these were for Negro pupils.)
(d) 131 requests from predominantly white to other
predominantly white schools. (The majority of
these requests was from white pupils, but this
also included an undetermined number of Negro
pupils.)
Plaintiffs’ Exhibit 65-11
10a
RECOMMENDATIONS AND OBSERVATIONS
1. It is recommended that the Durham City Board of
Education continue the policy adopted at its regular
meeting on April 3, 1964, requiring a National Teachers
Examination score of 500 for all new teachers employed
in the city schools as far as administratively possible.
2. In considering the facts previously outlined, we are led
to the following conclusions:
a. For the school year 1964-65 the Board of Education
made the assignment of pupils to the various schools,
after which all pupils had the privilege of request
ing reassignment to the school of their choice. All
the requests for reassignment were granted. With
complete freedom of choice all the white pupils at
tended the predominantly wdiite schools and approxi
mately 94% of the Negro pupils attended the pre
dominantly Negro schools. This gives substantial
strength to the present policy of teacher assignment.
b. The questionnaire sent to the teachers were returned
by 93.7% of them. The results, tabulated on a first
preference basis, are self-explanatory and have a
high degree of correlation with pupil preference
above.
c. The present policies of the Board with respect to
employment and assignment of teachers and other
personnel have provided our school system with an
effective program of education for all the pupils of
our schools. The committee recommends that we
continue our present policies, but that the Board in
the employment and assignment of teachers and
other personnel by majority vote of its members
Plaintiffs’ Exhibit 65-11
11a
make exceptions to any of its policies for valid and
sound educational reasons.
3. The Southern Association of Colleges and Schools has
recently approved for accreditation all of the elementary
and high schools in the Durham City System. Accredi
tation has been recommended by the Accreditation Com
mittee for all the Junior High Schools except two.
Shepard Junior High School is not eligible for consid
eration because it is a new school. It is anticipated that
accreditation of this school will be achieved next year.
Accreditation for Holton Junior High School was de
ferred pending removal of outstanding deficiencies. It
is anticipated that the deficiencies will be removed dur
ing the 1965-66 school year, and full accreditation will
be granted. Many of the accreditation reports referred
to the good rapport between teacher and student and
an atmosphere conducive to learning. It is with a great
deal of pride that we commend our administrators and
teachers for this achievement. Obviously, none of our
pupils have been injured because of our Teacher Place
ment Policy.
4. Desegregation has been achieved and will be continued
in the areas indicated below:
a. Supervisors, Principals, and Teachers’ meetings
b. Workshops and In-service training courses
c. Grade level meetings
d. Subject area meetings including all special subject
meetings
e. Supervisory staff work
Respectfully submitted,
George R. Parks, Chairman
Mrs. Annie Laurie Bugg
Dr. Theodore R. Speigner
Plaintiffs’ Exhibit 65-11
12a
SUMMARY OF QUESTIONNAIRE FILLED OUT
BY PROFESSIONAL PERSONNEL.
BOARD OF EDUCATION OF THE CITY OF DURHAM
In compliance with an Order of His Honor, Edwin M.
Stanley, a Committee of the Board has been giving careful
consideration and study to the hiring and placement of
teachers and other professional personnel in the Durham
City School System. For the purpose of assisting the Com
mittee in its study, the Board most respectfully requests
that each teacher answer the questions set out below.
What preferences do you have regarding your qualifica
tions and willingness to teach in the following situations?
(Enumerate your preference 1, 2, 3, etc.)
Plaintiffs’ Exhibit 65-11
WHITE TEACHERS
I am qualified to teach: I am willing to teach
20 1. Integrated classes 29
16 2. Predominantly negro classes 4
180 3. Predominantly white classes 213
54 4. Any of the above equally 24 \ ^
53 5. No preference stated 53
Given a choice:
323 Total 323 Total
I am best qualified to teach: I am willing to teach
0 1. Retarded pupils (up to 70 I. Q.) 1
0 2. Slow pupils (70-90 I. Q.) 2
104 3. Average pupils (90UL10 I. Q.) 97
68 4. Advanced pupils (110-130 I. Q.) 71
18 5. Talented pupils (130-f- I. Q.) 17
36 6. Random grouping of pupils 34
3 7. Any homogeneous grouping 9
11 8. Any of the above equally well 14
83 No preference stated 78
13a
In what public school did you teach during the 1964-65
school year?
.... 323 Total .... 323 Total
Plaintiffs’ Exhibit 65-11
Date:
Signature (optional)
Please deliver the completed blank in the accompanying
envelope to your principal who will return it to the Super
intendent.
SUMMARY OF QUESTIONNAIRE FILLED OUT
BY PROFESSIONAL PERSONNEL.
BOARD OF EDUCATION OF THE CITY OF DURHAM
In compliance with an Order of His Honor, Edwin M.
Stanley, a Committee of the Board has been giving careful
consideration and study to the hiring and placement of
teachers and other professional personnel in the Durham
City School System. For the purpose of assisting the Com
mittee in its study, the Board most respectfully requests
that each teacher answer the questions set out below.
What preferences do you have regarding your qualifica
tions and willingness to teach in the following situations?
(Enumerate your preference 1, 2, 3, etc.)
Plaintiffs’ Exhibit 65-11
NEGRO TEACHERS
I am qualified to teach: I am willing to teach:
40 1. Integrated classes 48
21 2. Predominantly negro classes 50
0 3. Predominantly white classes 1
206 4. Any of the above equally 160 f l
21 5. No preference stated 29
Given a choice:
288 T otal 288 T otal
I am best qualified to teach: I am willing to teach:
3 1. Retarded pupils (up to 70 I. Q.) 5
2 2. Slow pupils (70-90 I. Q.) 9
107 3. Average pupils (90-110 I. Q.) 97
21 4. Advanced pupils (110-130 I. Q.) 24
3 5. Talented pupils (130+ I. Q.) 4
26 6. Random grouping of pupils 17
13 7. Any homogeneous grouping 65
65 8. Any of the above equally well 43
48 9. No preference stated
In what public school did you teach during the 1964-65
school year?
.... 288 Total 288 Total
Signature (optional)
Date:
Please deliver the completed blank in the accompanying
envelope to your principal who will return it to the Super
intendent.
15a
A MINORITY REPORT
PRESENTED TO THE SUB-COMMITTEE ON THE
DESEGREGATION OF THE TEACHING PERSONNEL
AND STAFF OF THE DURHAM CITY BOARD
OF EDUCATION
Me. Chairman:
I wish to make the following recommendation:
1. That the City Board of Education should authorize
the superintendent of Durham City Schools to employ
qualified and competent persons for all positions and
jobs, regardless of race, color, or national origin.
A. To implement this resolution and to make for the
widest possible desegregation of teachers, staff,
and students the following principles should be
enacted by the Board immediately:
1) That all supervisors of instruction be assigned
to serve all city schools, regardless of race,
2) That all special subject teachers be assigned to
schools, regardless of race or color.
3) That assignment of teachers for the 1965-66
academic term shall take place wherever pupil
desegregation has occurred or will occur for
1965-66, regardless of race, color or national
origin.
4) That teachers for the ensuing academic term
be assigned to elementary schools regardless of
Plaintiffs’ Exhibit 65-12
race.
16a
5) That the Board shall authorize the appointment
of a competent and qualified Negro Assistant
Superintendent.
6) That the superintendent he authorized to inte
grate all general faculty and principal meetings
for 1965-66 school term.
7) That the superintendent be authorized to make
immediate plans for the desegregation of com
petitive sports in the city school system.
8) That the Board should authorize the employ
ment of qualified Negroes for the offices of the
Superintendent and the Business Manager as
clerks and secretaries.
Plaintiffs’ Exhibit 65-12
Theodore R. Speigner
, 1965
Date
17a
Answer of Defendant to Interrogatories Submitted by
the Plaintiffs on September 3 , 1965
* * * * #
3. Q u e s t io n : State the number, school and grade of
white children, if any, who attended predominantly Negro
schools during the 1964-65 school year; state the number,
school and grade of white children, if any, who are ex
pected to attend predominantly Negro schools during the
1965-66 school year. In each case, name the Negro schools
and the number of white students per grade in each school
having or expected to have white students.
A nswer: No white children attended predominantly
Negro schools during the 1964-65 school year. No white
children are presently attending predominantly Negro
schools during the 1965-66 school year.
* # # # #
17. Question : State the total number of new positions
created in 1963-64, 1964-65 and 1965-66 and the total num
ber of new teachers and other personnel who supervise
pupils hired during that period to fill such positions. Give
a breakdown of these totals by school, positions per school,
race of successful applicants.
A nswer: Eighteen new teaching positions were created
in 1963-64; sixteen new positions in 1964-65; and four new
positions in 1965-66. The number and race of the success
ful applicants for each of these years was as follows:
1963-64 White 10 teachers
1963-64 Negro 8 teachers
1964-65 White 2 teachers
1964-65 Negro 14 teachers
1965-66 White 3 teachers
1965-66 Negro 1 teacher
18a
Answer of Defendant to Interrogatories Submitted by
the Plaintiffs on September 3, 1965
All of the white teachers listed above were assigned to
teach in predominantly white schools, and all the Negro
teachers listed above were assigned to teach in predomi
nantly Negro schools, except that one white teacher listed
for 1965-66 was assigned to Hillside High School.
W W w -7?
20. Question : State whether the Durham City Board
of Education has issued a regulation to the effect that no
new teacher will hereafter be employed who is not willing
to work on a completely desegregated basis.
Answer: No.
* # % # #
22. Question : State the rules, procedures and practices
(including copies of any written rules), with respect to
transfer of teachers from one position to another, includ
ing separate statements with respect to transfers initiated
by teachers and transfers initiated by the school adminis
tration for the good of the school system.
A nswer : The written policy with respect to transfer of
teachers is attached hereto marked Exhibit No. 9. See
Answer to Interrogatory No. 18 with reference to the fre
quency of such transfers.
Teachers are sometimes transferred from one position
to another, at their request, to facilitate travel if the trans
fer is in the interest of the schools. Transfers are initiated
by the school administration when it is possible to place a
teacher in a position for which she is better qualified than
she would be in her former position.
# # # # *
19a
24. Q uestion : Describe generally the school board’ s
practices with respect to selecting new teachers for the
school system, i. e., the process of selecting those to be
hired from among a group of applicants.
A nswer: New teachers are selected for the school sys
tem on the basis of certification, experience, scholastic rec
ord, recommendations, and a number of intangibles which
include, among others, appearance, personality, general
attitude, and apparent fitness for a given position. Per
sonal interviews are required of applicants in order to
determine the quality of voice and the use of oral English,
and to detect any other strengths or weaknesses of the
applicant which are not apparent in a written application.
25. Q uestion : Describe generally the process of deter
mining the specific assignments of new teachers hired in
the school system.
A nswer: A sincere attempt is made to place each new
teacher in the specific position for which he or she is best
qualified and apparently will be most happy because a
teacher who is happy and satisfied is most likely to con
tribute most effectively to the school program.
Answer of Defendant to Interrogatories Submitted by
the Plaintiffs on September 3, 1965
20a
Exhibit 2-B Attached as Answer to Interrogatories
PRO JECTED C A P A C ITY OF EACH CITY SCHOOL 1965-66 (Exhibit 2-B )
Durha' C ity Schools - Sept b er 13, 1965
School G rades Capacity *
i . Durham High 10-12 1770
2. H illside High 10-12 1350
3. B rogden Junior High 7-9 780
4. C a rr Junior High 7-9 970
5. Holton Junior High 7-9 695
6. Shepard Junior High 7-9 595
7. Whitted Junior High 7-9 1430
8. Burton 1-6 745
9. Club B ou levard 1-6 680
10. C re s t Street 1-6 225
11. E ast End 1-6 770
12. Edgem ont 1 -6 475
13. F ayettev ille Street 1-6 660
14. H ollow ay Street 1-6 545
15. Lakew ood 1-6 420
16. Lyon P ark 1-7 600
17. M orehead 1-6 420
18. North Durham 1-6 420
19. W. G. P ea rson 1-6 965
20. E„ K, Powe 1-6 700
21. Y . E. Smith 1-6 640
22. Southside 1-7 380
23. C. C. Spaulding 1-6 615
24. W alltown 1 -6 285
25. G eorge Watts 1-6 420
♦Based on 30 pupils p er room in the p r im a ry grades and 35 pupils per
room in grade 4 through 8 as room s are actually assigned .
1553
581
739
535
572
337
429
356
278
270
471
515
150
321
im
•k c;
ENROLLMENT BI GRADES
WHITE
1965-66
September 13, 1965 - Monday
SCHOOL 1 2 3 4 5 6 7 8 9 10 11
1
12 i
Durham High 514 528 511 i
Brogden Junior 192 188 183 Sp 18 —
Carr Junior 224 276 _ 239
Holton Junior 212. 162
i!
i
___
1
Club Boulevard 88 102 88 108 ____It ... 12
Ed g onion t 66 12 27 30 41 50
Sp 13
Sp 13
CSIP *
85
dEsaaaot
Holloway Street 85 71 74 65 62 _ i7 .Sp 12
Lakewood 56 58 63 67 68 44
Morehead 39 46 47 43 45 33 1_25
North Durham 46 48 44 38 47 47
E. K. Powe 85 86 78 76 85 61
Y. E. Smith 83 90 82 82 69 96 Sp 13
1Southside 19 25 22 22 ___ 12__ 20 15 Sp 10
' George Watts 52 _ki ____ 18 „ ____ 18__ 1____54_ T 24
TOTAL 619 579 563 589 582 554 650 627 575 514 528 511
102 _2S 18
753 722 532
ft
0<w83
0
M*
>IP is an ungraded primary group.
E
xhibit 2-C Attached as Answ
er to
ENROLLMENT BY GRADES
NEGRO
1965-66
Monday, September 13 > 1965
%OOL
__
1 2 3 4 5 6 7 8 9 10 11
’
12 {
_J?*rham High 41 26
1
15
ogden Junior 15 14 8 Sp 1
_Cir*r Junior 57 71 55
_J<‘ .lton Junior 11 9 8
C-ab Boulevard
I-a'emont 7 5 2 4 4 2
Sp 2
Sp 4
~CSIF—
5
SiiKE
n.-.Llov/ay Street 11 7 8 6 3 11 Sp 3
L.irewood 1 3 3
! K-:~ ehead 13 15 10 10 9 9 T 3
Ik/'th Durham 10 5 9 13 8 9
E, K. Powe 1 1 2 1
Y. E. Smith 1 2 1 2
S^uthside 2 4 4 4 i 1 5 Sp 1
f
1
GeiTge V/atts 2 8 ___ 3___j ____ L 1 T 2 _ 1t
T, m 47 39 42 43 35 39 88 94 70 41 26 15
. 1 4 _ 6 1
102 io o 42
!%:
Ixi-
/S O
\Sfi I
E
xhibit 2-D
A
ttached as A
nsw
er to Interrogatories
23a
Exhibit 2-E Attached as Answer to Interrogatories
(E xhibit 2-E )
NUMBER OF PR O F SIGNAL PERSONNEL AT EAC SCHOOL BY RACE
Septem ber 13, 1965
ST A FF, BY RACE
SCHOOL White N egro
Durham High 80
H illside High 1 64
B rogden Junior High 28
C arr Junior High 40
Holton Junior High 27
Shepard Junior High 25
Whitted Junior High 48
Burton 26
Club Boulevard 23
C rest Street 9
East End 27
Edgemont 16
Fayettev ille Street 21
Holloway Street 20
Lakewood 13
Lyon P ark 19
M orehead 15
North Durham 14
W. G. P earson 32
E. K. Powe 20
Y. E. Smith 23
Southside 10
C. C. Spaulding 21
W a lit own 10
G eorge Watts 15
24a
Exhibit 4 Attached as Answer to Interrogatories
JSXH J & IT //
DURHAM CITY SCHOOLS
JUNE 1965
NUMBER OF NEGRO PUPILS AT EACH GRADE LEVEL
1964-65
SCHOOL ________1 2 3 4 5____6 7 S 9 10 II 12 Total
Durham High 1 ft 12 8 38
Brogden Jr. High 11 13 5 * 1 29
Carr Jr. High 30 67 40 137
Holton Jr. High 7 10 4 21
Club Boulevard
Edgemont 4 6 3 5 2 • 2 3 22
Holloway Street 4 5 7 4 5 10
*
3 35
Lakewood 0 0 0 0 2 0 2
Mo rehead 17 10 i i 12 5 8 63
North Durham 2 6 6 5 6 3 28
E. K. Powe 0 1 0 1 0 0 2
Y„ E. Smith 1 0 1 0 0 0 « i 2
Souths ide 2 1 3 0 0 2 1 9
George Watts 3 8 4 1 1 3 20
TOTAL 33 37 35 28 21 28 49 90 .49 18 12 8 408
* Special classes ___________7 Total
Holloway Street 1
Mo rehead 4
Y. E. Smith 1
Brogden 1
ia-tm&jtjj
-+//L r 0F a/ £0/10 c s w ^ ^ s A-rrt5A/c///& f z k o m 1 ///)//rj -i W /nr£ sw ctn-^
Monday, September 13, 19&5
a y (2
SCHOOL 1 2 3 4 5 6 7 8 9 10 11
I
i12 ,
Durham High 41 26
|
15
Brogden Junior 15 14 8 Sp 1
Carr Junior 57 71 56
Holton Junior 11 9 6
Club Boulevard
Edgeinont 7 5 2 4 4 2
Sp 2
Sp 4
"C3TP
5
Holloway Street 11 ‘ 7 8 6 3 11 Sp 3
Lakewood 1 3 3
Morehead 13 15 10 10 9 9 T 3
North Durham 10 5 9 13 8 9
E. K. Powe 1 1 2 1
Y. E. Smith 1 2 1 2
Southside 2 4 4 4 1 1 5 Sp X
i
1
' George Watts 3 2 8 ___ 3___ ___ L _ i T 2 — li
TOTAL 47 39 42 43 35 39 88 94 70 41 26 15
14. 6 1
102 100 42
4~
ct>
o
o
<<i.ObCo
E
xhibit 4 A
ttached as A
nsw
er to Int
26a
Exhibit 5 Attached as Answer to Interrogatories
(E xhibit 5 )
NEGRO PUPILS
ATTENDING PREDOM INANTLY WHITE SCHOOLS FO R THE FIRST TIME
Septem ber 1965
SCHOOL ______________ ______ GRADE T O T A L
1
i 1 2 3 4 S 6 7 a.- 9 10 11 12
Durham High S ch ool! 37 13 4 54
B roaden Junior High 13 3 16
C a rr Junior High 56 33 7 ...... 9 6
H olton Junior High 10 5 1 16
Club B ou levard 0
Edgem ont * 6 4 1 .....11 .....
H ollow ay Street * 11 6 4 1 ? 7
I
30
Lakew ood 1 3 2 6
M orehead 13 2 2 4 2 9 32
N orth Durham 9 3 4 4 5 2 i 27
E. K. Powe 1 1 1
i
i
I 3
Y, E. Smith 1 2 2
1! 5
Southside 2 2 3 1 1 4 : 13
G eorge Watts 2 1 1 1 ! 8
S p ecia l Education *
Edgem ont - C laes 1 ̂ __________ ______________________________ _____ 3
Edgem ont - C lass 2 2 2
H ollow ay Street 2 2-
Total 324
Exhibit 6 Attached as Answer to Interrogatories
/ / ('-
In terrogatory #10
27a
T each er and su p erv isory vacancies f ille d during the 1964-65 sch oo l
term :
School Number P osition
Race o f su ccess fu l
_____ applicant
Durham High 3 Ge rm an
English
Home E con om ics
White
White
White
C a rr Junior High 2 7th M ath-Science
7th M ath-Science
White
White
Holton Junior High 1 7th E n glish -S ocia l
Studies White
Shepard Junior High 1 7 th M ath-Science N egro
Whitted Junior High 2 A rt
Spanish
N egro
N egro
Club B oulevard 1 Prim ary- White
C rest Street 1 L ibrary N egro
East End 1 P r im a ry N egro
Edgemont 2 L ib ra ry
Specia l Education
White
White
Mo re he ad 1 G ram m ar White
North Durham 1 G ram m ar White
Y. E. Smith 1 Speech therapy White
Souths ide 1 P rin cip a l White
G eorge Watts 1 G ram m ar White
There was one application made at the tim e o f the vacancy fo r each of
the fo llow ing positions: C rest Street, lib rarian , Edgem ont, librarian and
sp ecia l education, A ll other vacan cies w ere filled by applicants still
available from the lis t accum m ulated during the preced in g sum m er. It
is im p oss ib le to give a re a lis tic figure on the num ber of applicants actually
available because m ost of the applicants had a lready taken other teaching
positions by the tim e the above vacan cies occu rred .
28a
Exhibit 8 Attached as Answer to Interrogatories
(Interrogatory No. 14)
Recruitment and Selection
4111
A. General Point of View
1. The outstanding educational program wanted in this
district depends upon getting outstanding teachers
and holding them.
2. This district can secure the kind of teachers it wants
by an effective recruitment program based on alert
ness to good candidates, initiative that results in
prompt action, and good personnel practices in deal
ing with applicants.
3. The effectiveness of our education program is best
secured by assigning personnel where they work best
in meeting the needs of the district.
B. Employment of Teachers
1. It is the responsibility of the Superintendent of
Schools to determine the personnel needs of each
school and to locate suitable candidates to recom
mend for employment to the Board of Education.
a. It is the responsibility of the principal to report
the personnel needs in his school to the Super
intendent as early in the year as possible.
b. It is the responsibility of the principal and the
teachers to assist the Superintendent to locate
or recommend and to secure the services of
suitable teachers.
29a
Exhibit 8 Attached as Answer to Interrogatories
The principal, with the help of the classroom
teachers, must play the major role in locating,
recommending, and securing outstanding student
teachers.
2. All candidates for employment as teachers must
make application for positions through the office of
the Superintendent.
a. The Superintendent is responsible for the final
selection of desirable candidates for recommenda
tion to the Board of Education.
Whenever possible, each principal will be asked
to interview those candidates judged by the
Superintendent as possibilities for filling the
needs of the principal’s school and to make recom
mendations concerning their employment or pos
sible assignment.
b. All applicants are to receive considerate and
prompt service. Candidates will be evaluated
on their merits and qualifications for a position;
basic essentials sought are: Intelligence, train
ing, personality, and interest in boys and girls.
In effect
January, 1965
Uniformly applied in hiring teachers and other personnel.
30a
4115
Exhibit 9 Attached as Answer to Interrogatories
(Interrogatory No. 15)
Assignment and Transfer
The assignment of staff members and their transfer to
positions in the various schools and departments of the
district shall be made by the superintendent on the basis
of the following criteria:
1. The needs of the school system as determined by the
board upon the recommendation of the superinten
dent;
2. Contribution which staff member could make to stu
dents in new positions;
3. Qualifications of staff members compared to those of
outside candidates both for position to be vacated
and for position to be filled;
4. Opportunity for professional growth;
J 5. Desire of staff member regarding assignment or
transfer;
6. Length of service in Durham City Schools,
j These criteria are listed in order of their importance.
In effect
May 24, 1965
31a
Exhibit 10 Attached as Answer to Interrogatories
\ h ; t j i J -
Jr, f en -* tU ̂ aXBSt 16
DURHAM C IT Y S C H O aS
TEACHERS H IR E D DURING THE SCHOOL YEAR EACH YEAR
SCHOOL 1 2 S 2 I9 6 0 1 9 6 1 1 9 6 2 1 2 6 1 1 9 6 4
D urh a m H ig h 1W 3W 3W
H il ls id e H ig h
B ro g d e n J r . H ig h 1W 1W 3W
C a r r J r . H ig h 2W 2W 1W 5W 3W
H o lto n J r , H ig h 2W 1 ¥
S h e p a rd J r . H ig h IN
W h it te d J r . H ig h IN IN 2N IN 3N
B u r to n
C lu b B o u le v a rd 2W 1W 1 ¥ 1W
C re s t S tr e e t IN IN
E a s t E n d IN IN 2N IN
E d g em o n t 1W 1W 1W 1W 1W
F a y e t te v i lle S tr e e t IN
H o llo w a y S tr e e t 1W 1W 2W
L a ke w o o d 1W 1W 1W 1 ¥
L y o n P a rk IN
M o re h e a d 2 ¥ 1W
N o rth D urham 1W 1W
W . G . P e a rs o n IN IN
E . K . Powe 1W
Y . E . S m ith 1W 1W 2W 3 ¥ 1 ¥
S o u th s id e 1W 1W 1W 1W
C . C . S p a u ld in g
W a llto w n IN
G e o rg e W a tts 2W 1W 2W 1W
lye j/ /iO/tt / s rvi- J r PI jCHM er-P p i ’JPA/i' ////;.• p m /i p
32a
Exhibit I I Attached as Answer to Interrogatories
/=■ / f> //
In terrogatory #19
Durham City Schools
P erson n el who serve in m ore than one sch oo l
SUBJECT
TAUGHT
NUMBER
OF TEACHERS
RACE
OF TEACHER
PREDOM INATE
RACE OF 3CHOO
A rt 1 v/hite V/hite
A rt 1 N egro N egro
L ib ra ry 5 White White
L ib ra ry 2 N egro N egro
M usic 6 White White
M usic 4 N egro N egro
P h y s ica l Education 2 V/hite White
P h ysica l Education 1 N egro N egro
G eneral Supervision 2 White White and
N egro
G eneral Supervision 1 White White
G eneral Supervision 1 N egro N egro
33a
-----4r—
Geobge Reid Pabks, a witness called pursuant to agree
ment, being first duly sworn in the above causes, was
examined and testified on his oath as follows:
Direct Examination by Mr. Nabrit:
Q. Mr. Parks, state your full name. A. George Reid
Parks.
Q. And you are a member of the Durham City Board of
Education! A. Yes.
Q. How long have you been a member, approximately!
A. Approximately six years.
Q. Mr. Parks, would you give me a brief resume of your
educational and employment background during this period,
during your work with the Durham City Board of Educa
tion! A. My educational background, Accounting Major
at the University of North Carolina, Class of 1935. I have
been employed by Golden Belt Manufacturing Company
since 1937. At present, I am President of the Company.
Q. Mr. Parks, do you have any academic training relat
ing to schools or school administration or anything like
that! A. No special courses in school administration.
Q. Now I understand you were Chairman of a Commit
tee of the School Board which had the task of studying
—5—
the problem of employment and assignment of professional
personnel and considering the matter of teacher desegrega
tion, is that correct! A. That is correct.
Q. Could you give me a statement, a general description
of the activities of your Committee, starting with when they
were appointed and who served on the Committee, what
Deposition of George Reid Parks
34a
you did in terms of meeting, and so forth? A. I believe all
of that is outlined in that statement, is it not?
Q. Well, some of it is. When was your Committee ap
pointed, approximately? A. It was probably in January.
Our first meeting was on February 5th.
Q. And the members of your Committee were? A. Mrs.
Bugg, Doctor Speigner, and I. Mr. Hannen and Mr. Rhine-
hart were ex officio members.
Q. There are three members of the School Board plus
the Superintendent and the Chairman of the School Board?
A. That’s right.
Q. I have a copy of a report dated August 20, 1965, which
has, I believe, been filed with the Court. Was this the re
port of your Committee? A. Yes, that’s the report.
Q. Now has this report and your recommendations in it
been submitted to a full Board, a full School Board? A.
— 6—
Yes, sir, it has.
Q. And has the School Board taken any action with
respect to it? A. They approved the report of the Com
mittee.
Q. About when was that? A. It’s been very recently; it
was on Tuesday, I believe, following this date. This was
filed about a week before the School Board meeting. I
believe it was the September School Board meeting. I be
lieve it was—
Q. Yesterday was September 13th.
Mr. Pearson: August the 30th.
A. August the 30th.
Q. August 30, 1965? A. That’s correct. That was a
special meeting.
Deposition of George Reid Parks
35a
Q. The report does not indicate anything with respect to
the method or criteria for hiring new teachers, new em
ployees as teachers in the school system. Can you give me
a description of how it worked? A. Mr. Hannon inter
viewed and employed teachers; I think that information
should be taken from him.
Q. As part of your Committee study, did you make any
study of this process? A. Not of the employment; not of
the techniques of selection, no.
Q. Did you make any study with respect to the plaee-
—7—
ment of teachers in specific schools and positions within
the system, what the standards were? A. Not in specific
schools, no.
Q. All right. Did you make any study of the— Are you
informed with respect to the recruitment program for in
viting applicants to take jobs or what is done along those
lines? A. I am generally informed but not specifically.
Q. What is your understanding? A. Brochures are dis
tributed to a number of schools in this area, outlining the
advantages of teaching in the Durham City schools; and
the teachers in these schools make recommendations from
time to time to people they know who would like to teach
here; those are referred to the Superintendent.
Q. Do they invite applicants for specific jobs or invite
applications? A. I don’t know.
Q. The application form, the one that’s marked “ old”
and the one that’s marked “new” , are attached to your re
port. And I notice that both of them ask for the race of
the applicant and ask for a photograph. Did your Com
mittee take any action with respect to that or any recom-
Deposition of George Reid Parks
36a
mendation with respect to the meeting of those require
ments? A. No.
Q. Did the Committee decide to continue those, or dis-
—8—
cuss it at all, or what? A. There were minor changes
made in the employment application form. Those were
attached to show the minor changes that were made. The
“old” has been in effect for some time and minor changes
were made in the “new” . There are no significant differ
ences between the two.
Q. That change you mentioned had to do with the ques
tion about the National Teacher Examination? A. I be
lieve that was one of them, yes.
Q. Do you know what the others were? I couldn’t find
any others. A. Mr. Hannen may recall. I think I would
have to make a detailed check of the old and the new in
order to answer that.
Q. Well, we won’t take the time now. But getting back
to the matter I asked before, what about this business of
asking the applicant for his race and asking for the photo
graph? Did your Committee decide that this was a thing
that should continue on the form, or what? A. That was
not discussed.
Q. Do you have a general idea, Mr. Parks, how many
applications for new positions as teachers were received
and how many positions were open, say, this year or the
last school year? A. No, I do not.
Q. You wouldn’t know either the number of new teachers
hired or the number of positions? A. No, I do not.
—9—
Q. Did your Committee use any of that information? A.
No, we did not; we did not use any of that information.
Deposition of George Reid Parks
37a
Q. Do you know the basis upon which the teachers are
paid in the system, the school system? A. Yes.
Q. What— They have a salary scale, do they? A. A
salary scale and a supplementary salary scale.
Q. What are the variables, the experience, the number
of years teaching? Are those— A. Both.
Q. Those are the two things that determine salary? A.
A Bachelor’s Degree has one salary scale and a graduate
degree has another. Of course, a graduate degree carries
a higher pay scale.
Q. And within the scales-— A. Are years of experience.
Q. —years and experience teaching? A. Yes; up to
thirteen.
Q. Do they count years taught in other systems other
than in Durham? A. Yes, sir, they do.
Q. Does the salary scale take anything else in account
that you know of? A. I ’m not sure of your question.
Q. Are there any other things that determine salary
- 10-
other than years of experience teaching? A. No.
Q. And Degrees? A. No, not once they are employed;
they do determine this scale.
Q. Your report contains references to the National
Teachers Examination? A. Yes.
Q. Am I correct in understanding that very few of the
teachers presently in the system have taken the test? Is
that the fair summary of it? A. Our report includes all
the teachers in the City schools who have taken the test
who are employed at the time of the report.
Q. If you’ll look at it and just verify this. It indicates
81 teachers have taken the test and have the scores on file
and 571 have not taken the test? A. That’s correct.
Deposition of George Reid Parks
38a
Q. Your report also mentions something about the test
now being required. Is it required of all new teachers? A.
Yes, sir, it is.
Q. How long has that been in effect? A. It was passed
by the North Carolina Legislature in 1961.
Q. I see. And it went into effect that year? A. Yes.
— 11—
Q. Well, have all the—And the minimum score required
by the Legislature is 450 points on the exam? A. That’s
required for certification.
Q. Now more recently in 1964, the Durham Board re
quires a 500 score? A. That’s correct.
Q. For employment, is that correct? A. That’s correct.
Q. Now has this been required of all new teachers who
have been hired during this period in Durham? A. Yes.
Q. How about non-certified teachers? Are there non-
certified teachers in Durham who don’t meet these require
ments? A. I believe there’s one with a B certificate.
The Witness: Is that correct, Mr. Hannen?
(Discussion off the record.)
A. (Continuing) I don’t know.
Q. Your report also refers to a questionnaire which the
School Board or your Committee distributed to teachers.
Do you have a copy of that? A. Isn’t that attached to that?
Mr. Nabrit: Off the record.
(Discussion off the recoi’d.)
Mr. Nabrit: On the record.
Deposition of George Reid Parks
39a
Deposition of George Reid Paries
By Mr. Nabrit:
Q. Was this form prepared by your Committee or for
your Committee? A. For our Committee.
— 12—
Q. And was it distributed during the last school year?
A. Yes.
Q. I ’m looking at a tabulation apparently—I think the
report indicates this is a report of the first choices? A.
That’s correct.
Q. Did you make any tabulation of the total number of
Negro and white teachers who indicated that they were will
ing, either a first, second, or third preference, to teach in
tegrated classes or classes of pupils predominately in the
other race? A. These are only first choices.
Q. That’s what I thought. I wonder if you made a tabu
lation of the other choices. A. No------
Q. Do you know how many teachers—for example white
teachers—indicated as a first, second, or third preference
that they would be willing to teach integrated classes? A.
These are their first preference. No other second or third
choices were tabulated. These are the only tabulations
made.
Q. Are the original forms still available? A. Yes, they
are.
Q. All right. Was there any other effort to inquire about
the attitude of the teachers other than this questionnaire?
—13—
A. No.
Q. They were not asked whether or not they were will
ing to serve on faculties with teachers of the other race
or any question like that? A. As far as our Committee
was concerned, there were no questions asked. This ques
tionnaire was submitted to them, filled out, and returned.
40a
Q. The questionnaire indicates, “ signature optional” .
Was that the case! A. That is the case.
Q. Now, Mr. Parks, what is your understanding* as to
the pattern of teacher assignment on a racial or non-racial
basis! On a racial basis now, specifically. Is it still true
that there are no Negro teachers teaching any white chil
dren in the system? A. That’s correct,
y Q. Are there any white teachers who teach Negro children
in the system? A. Yes.
Q. How many white? A. One.
Q. Where is that teacher employed? A. Hillside High.
Q. When did she take that post? A. The beginning of
this school year.
—14—
Q. September, ’65? A. Yes.
Q. Is that the first and only such white teacher to teach
\ in a Negro school that you are aware of? A. Yes.
Q. Did your Committee have anything to do with that?
' A. No.
Q. Did your Committee have at any time any communi
cation with the United States Office of Education about the
matter of teacher desegregation? A. Our Committee as
such had no such communication.
Q. As a member of the School Board have you— A.
There have been communications through the School Board
for the School Board.
Q. Would you be in a position to tell me what the situa
tion is? A. Well, it’s a long story. I have quite a few of
the memorandums here that we have received.
Q. Could I see some of them, or could you summarize
what’s gone on first?
Mr. Spears: Off the record.
(Discussion off the record.)
Deposition of George Reid Parks
41a
Q. Let me ask one or two questions: Has the Board
submitted a plan or plans—proposed plans—to the Com
missioner of Education? A. Yes.
—15—
Q. And have any of them been approved? A. No.
Q. Are they still pending? A. As far as I know.
Q. And of course you know there is an application pend
ing? A. As far as I know, that’s true.
Q. What has the Commissioner’s office advised the Board
with respect to teacher desegregation? A. Well, among
the things, in the application for employment we can’t ask
their sex, their race, we can’t ask for pictures; they are re
quired to teach anywhere they desire to teach. Those are
some of the most recent communications regarding employ
ment of teachers.
Q. And have any of them been adopted by the Board as
of now? A. No.
Q. If I could look at those a little bit later, please? A.
I have plenty of them.
Q. Your report indicates that no parent of a white child
has requested assignment to a predominantly-Negro school,
is that correct? A. That’s correct.
Q. And that those white children who have been assigned
to Negro schools have requested reassignment and have
been granted? A. That’s correct.
—16—
Q. Hid that experience enter into your Committee’s
recommendation on the question of whether or not to
change? A. This indicated the attitude of parents and we
submitted that as part of our report.
Q. I understand. I was just wondering what that meant
to you? A. Well, as a member of the School Board, I
think we are—I am obligated to try and serve the people
in the community; their wishes, of course, are influential.
Deposition of George Reid Parks
42a
Q. Well, did yon take this as an indication that—yon
I interpreted it to indicate that the white parents did not
\ choose schools with Negro teachers? A. That’s correct.
| Q. Your report also says that with complete freedom of
choice—I’m paraphrasing. A. Yes.
Q. —approximately 94 percent of the Negro pupils at-
S tended predominantly Negro schools. This gives substan
tial strength to the present policy of teacher assignment.
Would you explain that? A. That means that most of the
/Negro children prefer Negro teachers.
Q. And that conclusion was one of the bases that your
Committee acted on to continue your present policy? A.
Yes.
—17—
\
Q. Now your report says under the part that is Recom
mendation 2c. that—on the second sentence, says, “The
Committee recommends that we continue our present poli
cies, but that the Board in the employment and assignment
of teachers and other personnel by majority vote of its
members make exceptions to any of its policies for valid
and sound educational reasons.” What present policies
were you referring to? A. The present policy of employ
ment and assignment.
Q. On a racial basis, assigning Negro teachers to schools
with all Negro children and white teachers to the other
schools? A. Employing the best Negro teachers we could
for Negro schools and the best white teachers we could for
white schools.
y Q. And the reference to exceptions to that was that if a
particular applicant came forward, you felt that the Board
might make exceptions in a particular case, is that the idea ?
A. I think that statement is clear. I don’t know what cir
cumstance will require special consideration but they had
Deposition of George Reid Parks
43a
in mind making exception for valid, sound educational rea
sons.
Q. In any event, the general pattern would be as before
and it would only be the exceptional case that there would
be any assignment of a Negro teacher to a white school or
a white teacher to a Negro school? A. That’s correct.
Q. That was your Committee’s recommendation? A.
That was the Committee’s recommendation.
—18—
Q. And that was adopted by the Board? A. Yes.
Q. By the full Board? A. Yes.
Mr. Spears: I don’t think he understands you.
When you say “the full Board” , do you mean unani
mous?
By Mr. Nabrit;
Q. I meant that was adopted by the Board of Education.
A. That is correct.
Q. Was there a vote on that? A. Yes.
Q. Do you recall the vote? A. I believe it was five to one.
Q. Who dissented? A. If there was a dissent, it was
Doctor Speigner.
Q. Did Doctor Speigner join in the Committee report,
your Committee’s report, or did he disagree? A. There
are some areas in which he disagrees.
Q. They are not indicated on the report, are they? A.
No. He didn’t ask for anything to be added to the report.
He did not file a minority report.
Q. Did he file a minority report with the School Board?
A. He filed a statement which he read at one of the Com
mittee meetings. At the Board meeting at which this was
approved, he filed that at our request.
Deposition of George Reid Parks
44a
Deposition of George Reid Parks
—19—
Q. Do you have a copy of that? A. Yes, I do.
Q. I take it that Doctor Speigner was in favor of faculty
desegregation. He proposed eight steps listed here. Did
your Committee, or sub-committee, consider these pro
posals? A. Yes, they did. He read these at a Committee
meeting.
Q. Did you agree with any of them or disagree with all
of them, or what? A. The final agreement was as indicated
in the report. That was the majority opinion of the Com
mittee.
Q. Would it be fair to say that you didn’t agree with
Doctor Speigner’s report? A. I think it’s obvious that the
majority did not agree with that.
Q. One item on here refers to special subject teachers.
What are they? Are they teachers in junior and senior
high schools, is that— A. I—
Q. Well, I can ask him. A. That will be better.
Q. Well, what about integrating general faculty and
Principal meetings? Have they been desegregated now?
A. That’s covered in the report, the areas in which there
is complete desegregation.
Q. Well, let’s go to that. Your report on page 5 says,
— 20—
“Desegregation has been achieved and will be continued in
the areas indicated below: a. Supervisors, Principals, and
Teachers’ meetings.” Would you tell me what meetings
those are? A. I believe that’s as clear as I could make it,
Mr. Nabrit.
Q. What about the workshops and in-service training
courses? What are they and who conducts them, and so
forth? A. I don’t know who conducts them but there are
frequently held workshops for new techniques in the vari
ous courses for upgrading the staff. I don’t know the fre-
45a
quency of these and I don’t know who are the supervisors
or the instructors.
Q. What are grade level meetings! A. First grade,
second grade, third grade, and so forth; all the grades in
the school come together for a meeting on a particular
grade problem.
Q. You mean all the first grade teachers from the whole
City! A. Yes.
Q. Well what’s the frequency of those, do you know!
A. I don’t know.
Q. What do you mean by “Supervisory staff work” , that
desegregation has been achieved in supervisor}' staff work!
A. Well, to me that’s self-explanatory. It’s supervisors;
their work is integrated.
Q. You mean the whites supervise Negroes. Are there
any Negroes who supervise whites! A. I can’t give you
the complete details because I don’t know.
—21—
Q. Did your Committee make any study of distribution
of teachers and schools in terms of what schools had the
number of most-experienced teachers, which had the most
teachers of less experience, in terms of the salary groups,
scales, and standards! A. That was not discussed.
Q. You don’t know which school has the teachers with
the most experience and higher salaries and which have the
lower! A. That was not considered by our Committee.
Q. Do you know! A. Yes, I do.
Q. Do you know, in terms of the Negro schools and the
white schools! A. Yes, I do.
Q. What is that! A. The Negro teachers are, on the
average, higher-paid teachers than the white teachers.
Q. And that would he the function of experience! A.
And Degrees.
Deposition of George Reid Parks
46a
'-N„.
Q. Degrees? A. Yes.
Q. What about certification? A. Well, they all have to
be certified to teach.
Q. Did your Committee consider—or as a Board mem
ber, do you know of any State laws or regulations of the
State Department of Public Instruction which has a bearing
on the matter of faculty desegregation? A. No.
—22—
Q. Do you know whether or not the allotment of teaching
positions by the State Department is still done on a racial
basis and they allot so many white positions and so many
Negro positions?
Mr. Jarvis: I object to the form of the question,
Mr. Nabrit, “Is it still done” . It may have been done
in the past but I ’m not sure.
Q. What do you know about this subject ? A. Our Com
mittee didn’t consider; you’re asking for my knowledge ?
Q. Yes. A. This year it was discontinued; assignments
this year were not on a racial basis.
Q. You say “assignment” . I take it you mean “allot
ment” ? A. Allotments.
\ Q. Allotment of numbers. A. Allotment of numbers
■were not so many for Negro schools and not so many for
'white schools.
Q. And that was action by the State Department of Pub
lic Instruction? A. I assume it was.
Q. Have you made any study of the comparative test
scores of Negro pupils and white pupils in the system for
standardized tests? A. The Committee did not consider
—23—
Deposition of George Reid Parks
that.
47a
Mr. Jarvis: I ’m not sure I understood your ques
tion.
Mr. Nabrit: I asked Mm about a comparison of
scores of Negro and white pupils on a standardized
test.
Mr. Jarvis: You asked him— All right.
By Mr. Nabrit:
Q. Going back to the Department of Health, Education
and Welfare, are you familiar with a document issued by
the Commissioner of Education called “ Guidelines for De
segregation” ? A. I ’ve read that.
Q. Did your Committee give consideration to the provi
sions in that relating to faculty desegregation? A. No.
Q. You didn’t discuss this? A. No.
Q. Was that because you disagreed or didn’t want to do
that? A. We didn’t discuss it; the question was not raised.
Q. Did you think about it individually? A. No, I didn’t.
Q. Did you receive a copy of a so-called model desegrega
tion plan issued by the Office of Education ? Have you seen
that? A. I don’t recall that particular one.
Q. It looks something like this. Do you recall seeing it?
A. Yes, I ’ve seen this. It’s captioned, “Plan of Desegrega
tion” , not “Model” .
—24—
Q. Correct. You are referring to this document issued
by the Commissioner. Did your Committee give any con
sideration to the staff desegregation matters mentioned in
this plan of desegregation and to the attachment marked,
“Additional steps toward staff desegregation” ? A. It
wasn’t considered by the Committee.
Q. It was not? How many meetings did your Committee
Deposition of George Reid Parks
48a
have, do you know? A. I believe they are all referred to
in the report.
Q. All right. There were—February 5,1965, was the first
\ one? A. February 5 was mentioned first; then June 18th
\ was mentioned.
\ Q. Were there any subsequent meetings? A. August 16;
that was the last one.
Q. Was the final decision not to ask the teachers already
employed to take the National Teacher exam? A. That’s
correct.
Q. One of the attachments indicate that the members or
the representatives of four teachers organizations— A.
That meeting was between Mr. Hannen and Mr. Rhinehart.
Q. I see. Did your Committee consider any programs to
prepare teachers for teaching in a desegregated situation
of any kind? A. No, to give you a direct answer to that
\ - 2 5 -
question.
Q. Has any program along that line been undertaken that
you know of? A. It was hoped that if the teachers would
take this exam that it would point out some of their weak
nesses, so that additional courses and instruction would be
helpful in upgrading them, to bring them up-to-date. That
was the principle purpose in suggesting that they take this
exam.
Q. Do you know of any efforts by the Board to apply
for assistance from the Commissioner of Education, finan
cial assistance or technical assistance, under the Civil
Rights Act of 1964, a provision for financial grants for
School Boards who conduct such programs? A. No.
Q. As far as you know, there has been no— A. As far
as I know, there has been none for the teachers.
Q. All right. Has there been any requests for assistance
Deposition of George Reid Parks
49a
in drafting plans, consultants to be furnished by the De
partment? A. Not to my knowledge.
Q. Do you know if there are any State agencies that fre
quently refer teachers to you, or school placement offices
that do that? A. I know some are referred from time to
time, but I don’t know which ones or how many.
Q. Are vacancies and positions posted or listed by race?
—26—
A. Repeat your question.
Q. Well, if you have vacancies, personnel vacancies, are
they listed in any way? Do you notify the public at large
or anyone that you have so many vacancies— A. No.
Q. —and invite applications? A. No. Not about post
ing vacancies. There has been some advertising done on a
few occasions for teachers.
Q. Has the advertising indicated that you were looking
for Negro teachers or white teachers? A. I’m not sure
exactly how the ads read.
Q. Does your Committee know of any applications by
white teachers to teach in Negro schools? A. That was not
discussed and as far as I knew there was no knowledge of
that among the Committee members.
Q. What about going out to the Board? Did such a re
quest ever come to the attention of the Board? A. I don’t
know of any.
Q. I ’ll make the question broader: or white teachers to
teach in Negro schools or Negro teachers to teach in white
schools. A. I don’t know of any application.
Q. Do you know of the Board’s considering any people
for such assignments, any individuals? A. I ’ve mentioned
one that was hired.
Q. Any others? A. Not to my knowledge.
Deposition of George Reid Parks
—27—
Q. What about other staff posts! A. What others!
Q. Were there any applicants for other Negroes to work
in white schools and others—in other positions dealing with
children? A. Not that I know of.
Q. Or whites in Negroes? A. Not to my knowledge.
Q. Is it correct that the present practice and policy of
the Board, the School Board, is to assign only white per
sonnel in supervisory, administrative, teaching, and other
positions dealing with children in the schools—to the
schools that are predominantly-white where white children
attend? A. I can’t add anything to my previous statement.
Q. Well, what I was trying to get to, the previous state
ment applied to these other jobs as well as to classroom
jobs? A. I don’t know that that’s necessarily handled the
same way. Are you talking about office staff, for example ?
Q. Well, counselors, librarians, visiting teachers. A. I
do not know of any applications.
| Q. Assistant Superintendents, Principals. I ’m not asking
i you about the applicants; I ’m asking you about the assign
ments. A. I would assume that the assignment policy
would be the same as teachers.
—28—
Q. Both Negro and white schools? A. That’s correct.I ,Those that come directly m contact with the children.*
Q. Has your Committee made any recommendation with
respect to such positions? A. The recommendations dealt
with the general principle, not with a specific group.
Q. Why was Doctor Speigner’s name on the report if he
disagreed with it? A. He was a member of the Committee.
Q. Did he sign it? A. Not to my knowledge; he had an
opportunity to.
Q. Did the Superintendent, at a recent meeting of the
Board, recommend a Negro librarian or special teacher be
Deposition of George Reid Parks
51a
placed in a predominantly-white school? A. We gave
serious consideration to it. That was not the application
that he had. There was a librarian over, I believe, at East
End that was considered for Lakewood School. However,
a better-qualified librarian was found for Lakewood; and
that did not deprive East End of their good librarian.
Q. Did the Superintendent propose this to the Board |
and the Board turned him down? A. Yes, you might say
that.
Q. The Superintendent proposed employing a Negro
librarian to— A. No, not employing.
—29—
Q. Transferring. A. Transferring.
Q. Transferring a Negro librarian to a predominantly-
white school and the Board— A. Well, no action was
taken on it, sir.
Q. Well, did members of the Board indicate they dis
approved of that? A. They indicated that he should see
if he could find—if he could find a qualified, a well-qualified
librarian, to fill that position first. This was before school
started.
Q. About when was this? A. Probably a month ago. I
don’t recall the date of the meeting that was discussed.
# # # # #
Deposition of George Reid Parks
52a
A nnie Laurie Bugg a witness called pursuant to agree
ment, being first duly sworn in the above cause, was ex
amined and testified on her oath as follows:
Direct Examination by Mr. Nabrit:
Q. Would you state your full name? A. Mrs. Everett
Bugg, Jr.
Q. Mrs. Bugg, would you give me a brief resume of your
educational background, employment, and work experience
you have had? A. Well, I graduated from Duke Univer
sity in the Class of ’36, majored in History. Other than
that, primarily a wife and parent.
Q. And you are a member of the Durham School Board?
A. Yes.
Q. How long have you been on the Board? A. Approx
imately three years.
Q. And you were a member of the Committee Mr. Parks
just talked about? A. Yes, I was.
Q. You were sitting in the room when I was questioning
Mr. Parks? A. Yes, I was.
Q. Now would you look at a copy of your Committee re-
—5—
port? By the way, did you sign it? Is it your report? A.
No, sir, I neglected to do that.
Q. Do you adopt it? A. Yes, sir.
Q. This is the report you are in favor of? A. Yes, sir.
Q. Did you study any of the material from the Commis
sioner of Education on the proposed plan of desegregation
as guidelines? Did you see any of those? A. I have
tried to read each of it as it has come in to us by the week.
Q. Did you make any attempt to make recommendations
by your Committee which were consistent with the things
the Commissioner of Education sent to you? A. No, I
Deposition of Annie Laurie Bugg
•—4—
53a
made no such attempt. I don’t believe that any member of
the Committee did; I’m not sure.
Q. All right. Would it be fair to say that your feeling
as a member of this Committee and as a member of the
Board was that present policies for assigning teachers to
the schools should be continued? A. I felt that in view
of the total information that I have that I certainly agree
with the first part of our recommendation there in that
we were providing an effective program of education.
Q. And for that reason, you thought you ought to eon-
— 6—
tinue your policies, is that correct? A. With the excep
tions made in that recommendation in that last sentence.
Q. It doesn’t indicate what kind of exceptions might be
made. Do you have any ideas about what kind of excep
tions you would favor personally? A. Well, I think we
made one exception and that’s in the record already since
the assumption of that policy.
Q. Why was that done, by the way? A. Well, it was my
understanding from the Superintendent that this was the
best teacher available for this position at that given time.
Q. Would it be fair to say that the general feeling was—
that is, the normal practice—you should look for the best
Negro teachers available for Negro schools and the best
white teachers available for a white school? A. I would
certainly say that that has been our policy.
Q. And is it not your feeling that that should not be
changed to the policy of looking for the best teacher avail
able regardless of race for any school? You don’t favor
such a change? A. Certainly not. But at this particular
time, I think that any School Board member has got to be
constantly evaluating his policies and do that which they
consider best for the entire educational system.
Deposition of Annie Laurie Bugg
54a
Q. You say not at this time. What sort of changes do
you think— Do you anticipate at some future time or
what! A. I think that our recommendation there for this
particular time is a very sound approach and one in which
our students, our parents, and our teachers can have con
fidence.
Q. You think that their attitude about this is one of the
major things that leads you to that view! A. Whose at
titude, the three that I mentioned!
Q. Yes. A. Well, I think that very definitely that al
ways has to be considered.
Q. Well, what else! A. What do you mean “ what
else!”
Q. The educational standards! A. I don’t quite get—
Q. Did you make any study of the effect on educational
standards of desegregating! Did you make any kind of
study to determine what might happen! A. Well, I think
that— Of course, all along as I’ve said you do evaluate
that. Now specifically this Committee, no, other than what’s
included in this report.
Q. All right. Did you make any— Excuse me. Go
ahead. A. I think you would note in there, in this meeting
with the teachers, where it says that the morale there is
very high right at the present time among the teaching
— 8—
staff, which is of benefit to the students. I think they are
definitely.
Another place referred in there to the recent accredita
tion which we have just gone through. And I believe that
any Board member, any student, any parent, or any teacher
who reads this certainly would have confidence that what
we have is an effective program of education.
Deposition of Annie Laurie Bugg
-—7-—
55a
Q. Do you know how many new pupils, new teachers—
or generally speaking, how many new teachers were em
ployed last year, new people this year or— A. No, I
don’t.
Q. —or any year. Do you have just a general idea?
Do you think it would be like a hundred? A. No, I don’t.
I couldn’t answer that. I know it has been published in
the paper at various times, but I ’m not very good at car
rying figures in my head.
Q. Well, I’m not asking you for a precise figure. Would
it be your impression that it’s a pretty large number of
people—new people each year? A. I think that would vary.
I think that we had probably quite a jump the year that
we were having accreditation of elementary schools when
the quantitative standards required lessening of the teacher-
student load.
Q. Did you consider changing policy for new teachers
with replacing new teachers on a non-racial basis as dis
tinct from the problem of transferring teachers? A. No.
—9—
Q. Did you consider those? A. No.
Q. You’re not in favor of that? A. I think that our
recommendations following our Committee study is a good
recommendation or I wouldn’t have voted for it.
Q. Were you at this meeting referred to by the previous
witness where Superintendent Hannen proposed the Negro
librarian for transfer to a white school? Were you at that
meeting. A. I was at that meeting. Now I ’m not just ex
actly sure whether that was a proposal or whether that was
a suggestion. It’s a possibility.
Q. Did you say anything about that? A. I ’m sure I
must have because I’m afraid I do at every meeting.
Q. About what did you say about that, if you remember?
A. I don’t recall; I honestly don’t.
Deposition of Annie Laurie Bugg
56a
Q. Do you recall whether or not you were for it or against
it? A. I was not in favor of doing that right at that time.
As I had understood, this teacher was going to be moved
from East End and I questioned—I don’t remember whether
I orally questioned it or not but in my own mind I certainly
questioned the advisability of taking the teacher who ap
parently was doing an excellent job in her present employ-
— 10—
ment and moving her. This would bother me, whether this
was to go from one predominantly Negro school to another
predominantly Negro school or if it were a white teacher
going from a predominantly white to a predominantly
white.
Q. Did the Superintendent say whether or not this
teacher was willing to be moved! A. I don’t recall ask
ing that question or that question even being asked. I was
thinking in terms of the student, not the teacher’s desire.
Q. This was a librarian, right? A. That’s right.
Q. You thought it wouldn’t be a good idea, as you said,
at that time ? Why was that, at that time ? A. Why would
you deprive the students in that school of this teacher’s
services?
Q. Teachers are transferred, aren’t they, from one school
to another? A. Considering the needs of both schools or
the system, as the case might be, that is correct.
Q. Sometimes good teachers are moved just as bad teach
ers are moved? A. Well, I’m sure this is true.
Q. And you have transfers for the good of the school
system initiated by the Administration and those requested
by the employees, don’t you, at all times? A. I don’t be-
—11—
lieve it’s quite that frequent, not all the time.
Q. Well, this happens with some frequency on occasions?
Deposition of Annie Laurie Bugg
57a
Would you say occasionally? A. Occasionally, I would
say.
Q. Have you ever voted in favor of any such transfer
when the Superintendent recommended or suggested it or
asked for it? A. Well, I suppose legally, of course, we
approve or disapprove of any action of this kind.
Q. I take it your answer is “yes” ? Wouldn’t it be fair,
Mrs. Bugg, that the principal thing that concerns you about
that transfer is that this would be a Negro who is going to
work as a librarian in a white school? Wouldn’t that be
fair, that this is something that is breaking the pattern,
breaking the chain in the system? A. I don’t believe I
could honestly say that; no, sir. I don’t believe that’s so.
Q. Well, what was the main thing that made you opposed
to it? A. Opposed to it?
Q. Well, I think you said you weren’t in favor of it.
A. At that particular time.
Q. Yes. A. That’s correct.
Q. What was your main reason? A. So far the policies
that we had were working very effectively. At that par-
—12— '
ticular time, this Committee was still making its study and
I cannot see that this would have been a very judicious
thing to have done right at that particular time until our |
studies were complete on this.
Q. You didn’t make any study of that particular lady,
did you? A. We were studying our over-all policy.
Q. The over-all policy was no Negroes in the white
schools and no whites in the Negro schools at that time,
is that right? A. Our over-all policy was that we had at- ;
tempted to hire or employ the best Negro teachers avail- i
able for the Negro schools and the best white teachers I
available for the predominantly white schools.
Deposition of Annie Laurie Bugg
58a
Q. And what about the situation where— Do you know
how many vacancies you might have a year—in a given
year—and the ratio of Negro and white applicants for this?
A. No, I don’t.
Q. What would be your view of what the School Board
should do if you had four— Suppose you had more quali
fied white applicants than qualified Negro applicants and
didn’t have enough Negro applicants to fill the positions.
Has that happened, do you know? A. I don’t know whether
that happens, no.
Q. Do you know anything about the certification situa
tion—or are the teachers certified in this State? A. Do
—13—
you mean that we have in this system?
Q. Yes. It is a policy of this Board that we hire only
properly certified teachers, certified by the State of North
Carolina.
Q. Are there types of certifications? A. I understand
that a type A certificate is issued, a type B certificate is
sued. I don’t know exactly in what category these teachers
are that we cooperate with at Duke. They have their AB
Degree on some particular subject and then they go back
and get their Master of Arts in Teaching. Mr. Hannen
could answer that. But I believe that’s sort of a special
arrangement that’s been made by the State Board; and it’s
probably called a B certificate; I ’m not sure about that.
Q. Well, anyway would you know enough about the sys
tem to know whether there is one certificate that’s kind of
higher or more qualified than another kind of certificate?
Is that the idea? A. As I understand it, the State Depart
ment sets up certificates based on several different criteria.
I ’m not real familiar with that.
Deposition of Annie Laurie Bugg
59a
Q. Have you ever compared the certificates of the Negro
and white teachers of this system! Did the Committee do
that, for example! A. The Committee did not do it, no.
Q. How does the hiring process work! How are the teach-
—14—
ers told that there’s a job vacant! Who do they get in
touch with when they want to get a job, new applicants!
Who evaluates them! A. Well, of course, Mr. Hannen can
tell you a lot more about that.
Q. Your Committee didn’t examine that process! A.
The process and the means used in doing this!
Q. Yes. For example, who does this! A. The adminis
trative staff; Mr. Hannen is head of it.
Q. What are the standards used? Has your Committee
looked into the standards used for hiring people? A. Well,
of course, we have written policies on this, Mr. Nabrit,
Q. Do you have the written policies with you! A. Yes,
we do.
Q. Could I have those, please?
Mr. Nabrit: Let’s go off the record.
(Discussion off the record.)
By Mr. Nabrit:
Q. Does the Board pass on every teacher’s assignment at
some stage or another? A. At same stage or another, yes.
Q. How is it usually done in the routine situation? A.
Give me an example.
Q. Would it be fair to say that generally the Superin
tendent presented you with a list of proposed new people
Deposition of Annie Laurie Bugg
60a
—15—
and the Board voted on them en masse ? A. Are you talk
ing about new employees?
Q. Yes. A. As I understand it, Mr. Hannen here or Mr.
Rhinehart—Mr. Rhinehart would be better to answer that
question, the techniques or procedures used.
Q. Well, let me ask you this way: Did the Board discuss
any individual teacher assignments other than this Negro
librarian and the white teacher who’s at Hillside prior to
this school year? Did you discuss the individuals on any
I other occasions? A. No. The questions usually asked Mr.
! Hannen were as to how he was coming with filling vacancies
; and if he’s having any particular difficulties.
Q. So the usual situation you wouldn’t know about every
teacher? You wouldn’t discuss every teacher transferred at
a Board meeting, would you? A. Who is transferred now?
Are you talking about transfer or hiring new teachers?
Q. Well, let’s talk about both; transfers first. A. If this
were going to be something that might—could possibly
present a difficult problem, I assume Mr. Hannen would
definitely bring it before the Board.
Q. Otherwise, you might vote on it without much dis
cussion, is that it? A. Otherwise, he would proceed in ac-
—16—
cordance with the written policies of the Board.
Q. One last thing. Did you make any studies or give any
consideration to problems that might be caused in changing
your present policy to a policy of hiring without regard
to race and assigning without regard to race? A. I think
that is pretty well covered either directly or by conclusion
in this Committee report.
Q. There’s nothing you would want to add? A. I don’t
believe so.
Deposition of Annie Laurie Bugg
* * * * *
61a
# # * # #
Redirect Examination by Mr. Nabrit:
Q. Mrs. Bugg, did the accreditation report—or the Asso
ciation accreditation report have anything to do or say
anything about faculty desegregation? A. No, sir, it did
not.
Q. Did it discuss it either way or the other or say whether
or not it would have any effect on rapport or anything like
that? A. It did not mention it. It congratulated us sev
eral times about the staff they did find at the various
schools.
Q. But there was no mention of faculty desegregation
in any report that you recall?. A. No, there wasn’t.
Q. What effect it would have on the rapport of the stu
dents? A. It’s my understanding that these teams go in to
evaluate the situation as it is, and they do make certain
—36—
recommendations and there are certain recommendations
made. Now I don’t want to leave the impression that we
don’t have weaknesses as well as strength, weaknesses
throughout the system; and one of the reasons for having
the evaluation and going through the evaluation is for the
benefit of the teaching staff itself, the administrative staff,
and the Board, to do just what it says, evaluate, “Where
are we now; where do we need to improve,” things like
this.
Q. Would it be fair to say that your idea is— You talk
about morale and possible effect of desegregation of faculty
on morale. Is it fair to say that your attitude is with a
segregated faculty with a good morale that you’re afraid
to desegregate them in that it will make a bad morale? Is
that the idea? A. Let me put it this way, that from my
Deposition of Annie Laurie Bugg
—35—
62a
own knowledge before this accreditation team ever came
in and then from reading so far the reports of this ac
creditation team, that we do have good morale among the
students, among the faculty, we have good rapport of fac
ulty to faculty, students to faculty, faculty to parents;
and that any step we take, any change, whether it be in
the instructional program, whether it be personnel policy,
whatever it be, be designed to improve; and that this
would always be done with careful study, no matter what
area we are considering.
Q. You think that many of these people are against
- 3 7 -
desegregation of faculty and with that reason you don’t
want to do it? A. Wait just a minute. I didn’t under
stand that question.
Q. You think that the majority of the parents, the chil
dren, and the faculty are against desegregation of the
faculties and for that reason it shouldn’t be done? Is that
fair? A. I think that from the support we have had from
the public and by the patrons of our schools and all the
evaluations that we have, that we have an effective pro
gram.
Q. You said you were willing to make exceptions to this
for someone who was very qualified, but as I understand
you you are not willing to make exceptions just routinely
to have the full spectrum of teachers according to ability
distributed in the schools without regard to race. A.
What would we be seeking and what would we accomplish ?
I don’t understand what you’re getting at.
Q. Well, I can’t answer your question. I ’ll just have to
ask them. A. I ’m sorry.
Q. The routine cases, you are not willing to do it without
regard to race; only the very qualified teacher, is that it?
Deposition of Annie Laurie Bugg
63a
Deposition of Annie Laurie Bugg
A. I hope that no matter how large onr school system gets
that any action we take won’t just become a matter of
routine. I think this could be bad.
Q. Well, the average new teacher that comes to work,
—38—
you wouldn’t assign her on a non-racial basis; only the very
qualified ones, is that the idea? I thought that’s what you
said in answer to Mr. Jarvis’s question. A. I don’t know
which particular question you are referring to by Mr.
Jarvis. I still say that I certainly hope that we are seeking
and employing and assigning teachers for vacancies where
they can not only do the most effective job but where they
are filling the specific needs of their specific school.
# # * * ■*
64a
D octor T heodore R. S peigner a witness called pursuant
to agreement, being first duly sworn in the above cause,
was examined and testified on his oath as follows:
Direct Examination By Mr. Nabrit:
Q. State your name, please! A. Theodore R. Speigner.
Q. Would you give us a brief resume of your educational
background and employment background? A. Graduate of
Talladega College with A B ; AM, State University of Iowa;
Ph.D, University of Michigan. My Ph.D was received in
Geography and Conservation and Conservation Education.
I served as an elementary school principal, as a high school
principal, as president of Martin Luther College in Ala
bama, and for the past eighteen years professor of History
and Geography at North Carolina College; and at the
present time, I’m serving as Chairman of the Department
of Geography and Director of the Division of Resource
Use Education.
Q. How long have you been a member of the Durham
School Board? A. On January 13, 1964.
Q. And for the written record, you are a Negro, is that
correct? A. I am a Negro.
—5—
Q- Doctor Speigner, you were a member of a Committee
that made a report on teacher employment and assignment?
A. Yes, I served as a member of this Committee.
Q. Would you describe for me in a sort of a general way
the work of the Committee, what happened in the delibera
tions? A. Well, we had three major meetings and of
course each person—each member, rather, had the respon
sibility of exploration and research as far as the subject
under advisement was concerned. And, of course, at our
Deposition o f Dr. Theodore R. Speigner
— 4—
65a
various Committee meetings we made analyses of what had
gone before, what we had done, the information we had
gathered from the Superintendent and the Administration,
et cetera.
Q. Did you agree to the recommendations of the Commit
tee to the School Board! A. No; I agreed in part 1 and
2 a and b. And c, it had to be rewritten in order that this
Committee’s report could be approved. After c had been
rewritten, I concurred with these notations that a minority
report, or a synopsis of my contentions concerning the fact
that this particular recommendation or resolution generally
did not embody any phase of complete desegregation in
compliance with the Civil Bights Act of 1964.
Q. In other words, you took the view that the Committee
did not recommend enough pertaining to— A. Didn’t go
far enough.
— 6—
Q- —to faculty desegregation? A. That was my at
titude.
Q. You had a written minority report? A. Yes, I had;
and at the meeting the Board requested that I send a copy
to the secretary so that we could have some copies for dis
tribution; and I believe that each member received a copy
of the minority report.
Mr. Nabrit: Off the record.
(Discussion off the record.)
Mr. Nabrit: Counsel stipulates that the entire
report and attachments of the Committee, dated
August 20, 1965, will be Exhibit A to the deposition
and that the minority report will be marked Ex
hibit B.
Deposition of Dr. Theodore R. Speigner
6 6 a
(Discussion off the record.)
(The two documents above-referred to were
marked for identification respectively as:
Plaintiff’s Exhibits A and B.)
By Mr. Nabrit:
Q. One of your recommendations, Doctor Speigner, in
your minority report was that the Superintendent be au
thorized to integrate all general faculty and principal meet
ings for 1965-66 school term. What caused you to make
that recommendation? What was the past practice? A. I
made that recommendation with this in mind: The princi
pal meetings had been integrated for some time but the
general faculty meetings for the teachers of the entire
— 7 —
City system had not become a reality; and I felt that if we
were going to move toward the process of integration of our
teaching personnel that we should begin with our faculty
integration. And that’s why I made that statement there.
Q. Are these the general faculty meetings at the begin
ning of the school year? A. The faculty meetings and any
of the general meetings that the Superintendent would
think advisable to call during the academic term, because
I think you have your school meetings—I mean your build
ing meetings and there you would have individual faculties.
But I had reference to the entire City system.
Q. Now what about your recommendation about desegre
gation of competitive sports? Are they segregated, and
what is the practice? A. Well, it is my observation that
we do not have the integration of our athletic activities.
In other words, the predominantly-Negro schools compete
and the predominantly-white schools compete; and you
Deposition of Dr. Theodore R. Speigner
67a
never have that cross. And sometimes we feel that the cross
is necessary if we are going to maximize the potential of
good human relations and the development of all the poten
tials of the individual; and this would be good for both
the white and the Negro.
Q. This second thing on your recommendation mentions
“ special subject teachers.” What do you mean by that?
A. I have in mind here art teachers, music teachers, phy-
— 8—
sical education teachers, special intramural, even I think
in terms of choral instructors.
Q. The paragraph number 4 mentions elementary teach
ers. What about high school teachers! What was your
feeling about that—-junior high school teachers? A. I
think that it should be across the board. I mention here
the elementary school teachers as a beginning but I think
that it should be across the board.
Q. All right. Did you make an effort to read the various
materials that—the guidelines set down by the Commis
sioner of Education? A. Yes.
Q. And the plan of desegregation of teachers that he
sent out? A. The Superintendent supplied us with copies;
plus the fact that I did some researching myself and had
the opportunity of browsing through our library; and the
Office of Education sent quite a bit to our Department of
Education at the College. And so I had a wealth of infor
mation in this particular area, and particularly Title VI
and Title IV, Title III, and Title VII.
Q. Did you make any suggestion to the Committee with
respect to trying to adopt a plan that would fit the Com
missioner’s guidelines? A. Yes. I made several sugges
tions, but to a certain extent they were not heeded, to be
frank. During the earlier days on this Board, I indicated
Deposition of Dr. Theodore R. Speigner
68a
Deposition of Dr. Theodore R. Speigner
—9—
to the Chairman what I believed should be the guideline
for complete desegregation of our City schools. And I still
feel that we should make every effort to meet the criteria
set up by H. E. W. so that we can have what I call quality
education. And quality education requires financial sup
port to a larger extent than we are able in many cases to
provide for our youngsters in our system. .
Q. You mean they need federal funds? A. We need
federal funds. I think that the citizens of Durham are
taxed now to their necks and if we were to think in terms of
eliminating federal support to our educational system here
in the City of Durham that we would run into a bottleneck
in the end. And therefore I believe it is also good human
relations. I don’t think the Durham City Schools can live
unto itself. No man is an island unto himself and neither
is the city system. And since we are meeting with people,
our graduates, our teachers, we need to understand and to
work with others and to prepare our students with a broad
outlook and a broad perspective; and this is the way that
we can do it. Because there is only one thing that is perma
nent and that is change itself. And so we have to change
in order to meet the issues of this day.
Q. What’s your recollection of what went on in terms of
the Negro librarian who was considered or talked of for
— 10—
a white school? A. The Superintendent made the presenta
tion and at that time he indicated—if I recall correctly and
I think I do— that there was the best possible person for
that position and that person was a Negro. And that was
the transfer that other members have indicated this evening.
Q, Was this a public meeting? A. This was a meeting
of the Board?
69a
Q. A meeting of the Board? What happened next? What
was the— A. Well, there was various opinion expressed.
Q. Did you express yours? A. Nothing definitely was
recorded, as such.
Q. Did you express your view? A. Yes.
Q. WThat did you say? A. I felt that it would he a good
policy, a good omen, for us to begin. We had to make a
beginning somewhere and I felt that this would be a begin
ning, because it was also stated that Hillside High—there
was a possibility of having a white person teaching over
there. I thought it was good for equalization, at least, to
make a beginning. And I was for it; I was one hundred
percent for it, because I felt that—reading the guidelines—
that if we were going to have desegregation we had to make
a start somewhere and this was a good start.
Q. Did any other members of the School Board speak
— 11—
in favor of it? A. There were some expressions pro and
con. I can’t recall the exact words of the individuals.
Q. Can you recall who supported it and who was against
it? A. Well, as far as the idea in principle I ’m sure that
we had at least another member of the Board that sup
ported the contention that I had in mind that I announced
a moment ago. But a majority were not in favor of this as
a policy, as a beginning, and they felt it would take some
time, that this was not the time. That wTas the consensus,
more or less, that this was not the time.
Q. Was there a previous occasion when there were ap
plications by white student teachers to teach at Hillside
High, at a Negro school, and a Negro student teacher to
teach at a white school? Did that come before the Board?
A. Yes. As I recall, some young lady from Duke University
was interested in doing some practice teaching at Hillside
Deposition of Dr. Theodore R. Speigner
70a
and I think that maybe a student from North Carolina was
interested in doing some practice teaching in the predomi-
nantly-white school.
Q. About when was that? A. Oh, that was during the
spring.
Q. Was it maybe the end of last year? A. Yes, more
or less; it was in that period of time. Usually the time, I
imagine, when people are getting ready to do student
— 12—
teaching; and of course that could be either in the fall or
the spring.
Q. My impression was it was before December 15th; is
that— A. Before.
Q. Before December, 1964, is that it? A. Yes, sir.
Q. What happened? Was there a recommendation on
those requests? Did they come before the School Board,
those other requests? A. Yes. One, the young lady from
Duke University.
Q. She personally came? A. No, not in person. But
she even, I think, contacted some members of the Board
concerning her desire to do practice teaching in a predomi-
nantly-Negro school.
Q. And was her request then granted? A. No, it was
not granted. I don’t think that in the end it came to a
vote.
Q. She never— A. No, she never.
Q. She never got the assignment? A. No.
Q. The Negro applicant never got the assignment? A.
No, I don’t think that the Negro applicant really followed
through; I think that ended by—
Q. Did you look at the questionnaires that your Commit-
—1 3 -
tee sent out after they were returned? A. Yes.
Deposition of Dr. Theodore R. Speigner
71a
Q. What about the second and third choices, did you look
at them? A. No, the second and third choices were not
proposed as such.
Q. Did you ever see the actual questionnaires? A. Yes.
Q. I mean the large bulk of them? A. Yes, indeed, the
Superintendent had them right there on the desk.
Q. Did you look at them? A. Oh, I thumbed through
them but not in what I would call a real research fashion.
Q. In other words, you didn’t make any tabulation? A.
No, I did not; I just thumbed through a few of them.
Q. Do you think it’s fair to say that a majority of the
Board—strike—a majority of the Committee took a view
that most of the teachers and parents wanted to continue
the same system, that they wanted to continue the same
system, that was one of their reasons? A. I think that
is expressed somewhat clearly right here in the report it
self.
Q. Did you agree with that? A. No, I did not agree
and I do not agree with it now. I think that I expressed it
— 14—
that the Board has to show leadership and we have to edu
cate these other people to the need for change. We are to
be the leaders. And of course I even mentioned the fact
that oftentimes you assign people when you employ them,
you assign them to where they are best qualified or where
you want them. That is true in a firm and that is true in a
business enterprise.
Q. Did— What did the National Teacher Examination
have to do with desegregating faculty, in your opinion?
A. Well, the Committee wanted to gather some information
in order to carry out, I imagine, an effective program or
an in-service program, I’ll say. They had to get some of
Deposition of Dr. Theodore R. Speigner
72a
this information as to the teachers who had passed the test
and in order to upgrade them, that is necessary; and I
think in that sense maybe it was good that we could get
some data concerning the scores, their qualification, their
abilities, and as such.
Q. You didn’t get much. A. No, we didn’t get much,
that’s true.
Q. Very few; 571 teachers haven’t taken the exam and
only 81 have. A. Well, we think in terms of the beginning
of this requirement. The State Department of Education,
I believe it was about 1961, really indicated that teachers
would have to take the examination; and then from that
time on, it went into effect. So it hasn’t been in operation
—I would say, oh, about four years now.
—15—
Q. It seems to me—I don’t know—that all the teachers
hired in the past four years must not have turned in score
cards. A. Well, the Superintendent wmuld have to certify
that.
Q. Doctor Speigner, the last part of the report claims
that there is desegregation in some of these matters, Su
pervisors, Principals, and Teachers meetings. Do you
know what that amounts to ? A. I think that Supervisors,
they hold their meetings, come in without regard to race,
at least in recent months, I should say. I know that to be
a fact. And the Principals have their integrated meeting.
And I believe that this fall there was the beginning of
Teachers integrated meetings—general meetings, I will
qualify it.
Q. That was the first time, this was a general meeting
of all the teachers in the system? A. According to the in
formation that I have at my disposal, that the first time
Deposition of Dr. Theodore R. Speigner
73a
that we had a general faculty meeting of all the teachers
in the City system.
Q. What about the workshops and in-service training?
What do you know about that? A. I don’t know very
much about that.
Q. What about grade-level meetings? A. I wouldn’t
know too much.
Q. Secretarial meetings, are they special subject meet-
—16—
ings? A. I imagine here that the teachers in the special
ized areas would meet together, but I’m not aware. I think
Mr. Hannen would have to indicate whether they are de
segregated.
Q. You don’t know when it began? A. No.
Q. The same for supervisory staff workers? A. Same
is true.
Q. Are there any Negroes employed in the central ad
ministration office of the school building in any profes
sional capacity? A. Not that I ’m aware. We do have su
pervisors ; we have a supervisor, but—
Q. What does he or she supervise? A. She. And it is
my understanding that her work extends beyond the bor
ders of race for this ensuing year; that’s my understand
ing.
Q. How about clerks and secretaries? A. I haven’t ob
served any clerks or secretaries. That was one reason that
I indicated in my minority report here that I felt if we are
giong to carry out a program of desegregation that the
teaching personnel and staff—of the teaching personnel
and staff, that we should make a beginning by at least hav
ing several persons of the Negro race in this particular
administrative unit.
Deposition of Dr. Theodore R. 8psigner
74a
Deposition of Dr. Theodore R. Speigner
Q. As far as you know, there aren’t any! A. As far as
I know, there are none. I imagine there are janitors and
—17—
what have you, in that kind of work.
Q. Do you know where most of the Negro teachers in the
system, the new ones, what school they come from? A. It
would be my guess that they would come from North Caro
lina, more or less; North Carolina College would be one of
your predominant feeders for the City school system.
Q. And what about the white teachers? A. It would be
my considered judgment that most of them come from
Duke University, the University of North Carolina, and
then because of the fact that we are in a center here you
have a large percentage of white teachers coming to Duke,
their husbands in Medicine or in Law or in the School of
Forestry or something of that nature. They would come
here and as a result they would cast their lot and find em
ployment if positions were open. So you would have there
a cross-section.
* # * # *
75a
Lew W. Hannest a witness called pursuant to agreement,
being first duly sworn in the above cause, was examined
and testified on his oath as follows:
Direct Examination by Mr. Nabrit:
Q. Mr. Hannen, what are your— Can you describe your
process for announcing vacancies for positions? What do
you do along that line? A. We send out a folder regard
ing the opportunities in the school system to practically all
of the Negro and white teacher training institutions in
the southeastern part of the country, inviting applications
for teaching positions. We ask all members of our staff to
consider friends that they might have or associates in pro
fessional meetings that they might meet and be impressed
by, to the extent that they might be valuable additions to
our staff, and lend every effort to the encouragement to
these people to apply for teaching positions in the Durham
City schools.
When applicants file applications and there are particu
lar positions vacant, these applicants are interviewed by
one or more members of the administrative staff. They
are referred to the Principal of the school in which the
vacancy occurs, insofar as that is possible at the time. In
other words, if the applicant should come in at ten minutes
—5—
to five in the afternoon, the chances are we would not
send her to his home. If she’s an out-of-town person and
has to return that evening, then obviously he wouldn’t see
her; or if he’s on vacation; or if it’s a Saturday morning
applicant. In other words, we make every effort to try to
secure as many good applicants as we can. And, as was
pointed out, we are extremely fortunate here in the fact
Deposition o f Lew W. Hannen
—4—
76a
Deposition of Lew W. Hannen
that insofar as .white teachers are concerned, we have a
tremendous number of applicants from all over the United
States who come here prepared to teach and in most in
stances with some background of experience, whose hus
bands attend graduate schools at Duke or Carolina. These
e people constitute a very large pool of applicants for teach
ing positions which you do not have anywhere else in this
State.
I think this is one reason for the statement by previous
witnesses that unless we do have about the best teaching
staff in the State of North Carolina, that that is certainly
evidence of poor judgment on the part of the people who
do the interviewing and selecting, because this additional
pool is here.
Q. Well, do you announce vacancies for specific jobs, go
ing back to the question of how you announce jobs. Do you
announce vacancies, as such, in this folder you send out?
A. No. This is a general announcement that there are
vacancies available. And, of course, we have many letters
— 6—
of inquiry coming in from all over the United States from
both colored and white teachers. And in replying to their
requests with the application blanks, we state that we do
have generally a number of vacancies, which is generally
true.
Now this is brought about certainly to some extent, to a
substantial extent, by the fact that these husbands whose
teachers are here only temporarily, three or four years
generally; and this makes for a larger turnover than
would be true in some other situations.
Q. Last year, a year ago, you hired about how many
new people coming in, just roughly? A. I would say that
77a
each year we jm ploy between 75 and a hundred new teach
ers. This generally would be true on account of the turn
over that we have and retirement. Now this would not be
additional teachers; this would be both additional and re
placements.
Q. These are new people f A. Correct.
Q. And this is with a teaching force of about how many,
around six hundred and some ? A. Slightly more than six
hundred.
Q. And about how many applications do you get, do you
receive? A. I would estimate that that would be between
five hundred and a thousand.
Q. Do you have any idea about this seventy-five to a
— 7—
hundred, what percentage are Negroes and what percentage
are whites? A. I wouldn’t venture a guess in the per
cent, but I would say that there are considerably more
white applicants than there are Negro applicants.
Q. Are there more white vacancies than Negro vacan
cies? A. Oh, yes, sir.
Q. Could you guess at the ratio, or estimate? A. No, I
wouldn’t guess at it; I think it would vary from time to
time. There are so many intangibles, so many invariable
factors. For example, one year you might have half a
dozen to a dozen Negro teachers retiring and another year,
it might be just the opposite. There are many variables.
You couldn’t generalize, I think, with any degree of ac
curacy.
Q. Now your standards, you discussed with Mr. Parks
that you employ on the basis of experience and Degrees?
A. That’s right.
Q. Those two objective factors? A. That’s right.
Deposition of Lew W. Hannen
78a
Q. What is the basis for hiring, for selecting a hundred
out of a thousand applicants! What are your criterias
you employ? A. That’s a long story. Of course, many of
these things are hard to measure, like personality that you
detect from a person in an interview; that would be sub
jective. There are many criteria by which you would judge
these prospective applicants on, I think, many of them that
you can’t possibly measure objectively.
—8—
Q. Well, what are some of the objective ones? A. Well,
of course we have some set up by the State already, which
you must be certified. We have one here set up by the
Board of Education that she must, as far as administra
tively possible, have a score of 500 on the National Teach
ers Examination. These are examples of the objective
type.
Q. Do you look at their grades in school, things like
that? A. Oh, yes, sir; that is, if they are fairly young
teachers. Now if the teacher has been teaching 25 years
and we employ her when she’s age 45 to 50, then the col
lege grade that she made doesn’t bear the significance that
if she were a beginning teacher. That’s what I meant by
the fact that it would take a long time to go into the de
tails of this and it would involve, in every instance, factors
of subjective judgment.
Q. Who are the people on your administrative staff who
make these subjective judgments? A. Primarily the As
sistant Superintendent, Mr. Phillips, and the Director of
High School Instruction, Mr. Hollander, and the Director
of Elementary Instruction, Mrs. McCracken. Now, of
course, you understand, Mr. Nabrit, that the Principals are
involved here, too; I mentioned that.
Deposition of Lew W. Hannen
79a
Q. Right. Does your rule and regulation hook have some
standards for this? A. There are some policy statements
in the manual.
—9—
Q- What about transfers of teachers from one position
to another, teachers and other employees, to categories,
those that are initiated or requested by the teacher or em
ployee? Do you have standards for judging those, and what
are they generally? A. In general, what we try to do, I
think, is fit a teacher into the position where she is hap
piest as well as most content and best prepared. This is
what she wants and selfishly we get in return the best
teaching in that type situation.
For example you might have a teacher who has done
her student teaching in the fifth grade, say. We don’t have
a fifth-grade vacancy at the time; we have a fourth-grade
vacancy. This, from every other standpoint, appears to be
a very desirable teacher. We place her over here in a
school, in a fourth grade, say, early in June. In July, we
have a vacancy in the fifth grade. In the meantime, we
have found an applicant who is very well qualified for
fourth grade position. We contact that teacher and, by
mutual consent, move her into the other teaching situation,
solely on the basis that this is where that teacher prob
ably will do the most effective job of teaching.
Now on the other hand, where transfers are initiated by
the teacher, this could be brought about by convenience to a
school, by personality conflict between a given teacher and
principal, for example. It could be brought about by the
— 10-
fact that in some instances that a teacher is just in a rut,
so to speak, in her own appraisal of her work in a given
Deposition of Lew W. Hannen
80a
school and she would like to get somewhere else. And we
give every consideration to transfers of that type and in a
good many instances, grant them.
Q. Do you have a fairly good number of those? A. We
have several each year; I would not attempt, there again,
to estimate the exact number because it would vary from
year to year. But there would be several each year.
Q. How about transfers initiated by the Administration
for the good of the school system? A. Well, we have men
tioned that; we mentioned that about the fourth and fifth
grade teacher, for example.
Q. I see. Oh, I thought that was where the teacher
wanted the fifth grade. A. Well, this was a case where
we both wanted it; we did it not only to please her but
selfishly because, from a standpoint of the school system
at large, she probably would do the best job where she is
happiest.
Q. Now what’s the certification system? Do all of the
teachers employed in the past four years have a 450 score
on the N T E? A. I think that is true. Of course, now
that has been raised to 500, as you know, by action of the
Board. If I might add here to clarify the question that was
— 11—
raised and not answered a while ago about the small num
ber, apparently, of these teachers in that listing. You see,
when this Act was passed—I believe I am correct—by the
1959 Legislature, it was not implemented until July 1, 1961,
as I recall. This was not made retroactive. This went into
effect for teachers certified on and after that date. And
in the meantime, between that date and the present time,
we have employed dozens of teachers with experience
enough that it exempted them from having to take that
Deposition of Leiv W. Hannen
81a
examination. And that accounts for the small number here;
I think you will be interested in knowing that, the reason
for it.
Q. Yes. Because there would be, in the five-year-period,
maybe between four and five hundred teachers employed!
A. Yes, but experienced teachers by the dozens.
Q. Who were exempted from the exam! A. Right.
Q. Are there any non-certified teachers, teachers who
have temporary certificates, lower level certificates, and
others or— A. We have a rather insignificant number,
very few teachers, who are not certified by A or G certifi
cates, A being based on the Bachelor’s certificate, the G
being based on a Masters Degree plus three years of
teaching experience. We also have each year several teach
ers from Duke University in the Master of Arts in Teach
ing program there. These teachers are given full status as
teachers under a special arrangement with the State De-
— 12—
partment of Public Instruction under which they teach on
a B certificate, with the expectation that they will complete
a Masters Degree during the first year that they are teach
ing and then in subsequent years will have an A certificate
and eventually after three years experience a—and even
tually a G certificate.
Q. You mean you’ve got three kinds of certificates, A, B,
and G! Is that it! A. There are other lower certificates,
which we don’t have involved in our teaching staff. That is,
there are substandard certificates. We just don’t employ
those teachers.
Deposition of Lew W. ffannen
(Discussion off the record.)
82a
Deposition of Lew W. Hannen
By Mr. Nabrit:
Q. Did you meet with the Committee? A, Yes, sir.
Q. Did you recommend to the Committee that they adopt
this report? Or was that just their activity? A. I was
there in a consultant capacity and to furnish any informa
tion requested by the Committee for the study and com
pilation of the report.
Q. Have you made any general recommendation to the
School Board about faculty desegregation, the principle
of i t l A. We have simply stated, from time to time, to
the Board that in our opinion this appeared to be inevitable
! sooner or later; and I don’t know that I could define
I “ sooner” or “later” very accurately.
W - 1 3 -
Q. Could you give us your recollection about the Negro
librarian that everybody has talked about, the transfer of
the Negro librarian? A. At the time we discussed that
with the Board, we had searched over a period of weeks for
a librarian for the Lakewood School. It appeared from—
Q. Well, just to interrupt you. Had the previous librar
ian left or something? A. Yes. There was a vacancy. We
had tried to secure a librarian and had been unsuccessful.
It appeared also in the light of past experience that it might
be easier to find a Negro librarian than a white librarian
at some time in the immediate future.
In the light of that supposition, we talked with the Direc
tor of Libraries of the City Schools. She appeared to be
reluctant to take a chance on putting an unknown in that
particular school as over against transfer of a known, out
standing librarian. We stated the situation to the Board
for its consideration and indicated that the Director of
Libraries—I think we indicated this—I talked with this
83a
young lady and she said that she would give consideration
to accepting this appointment if it were offered; she made
no firm commitment that she would accept it.
Now I am supposing here in what the thinking of the
majority of the members of the Board was at that time
from informal conversations, rather than direct official ae-
—14—
tion of the Board. And this is supposition largely. There
appeared to be some reluctance on the part of the Board
to make this appointment on the ground that here you
would be transferring an outstanding librarian from a
predominantly-Negro school to a predominantly-white
school and thereby denying the right—you might say—of
these children to continue to have an outstanding librarian
in the light of the fact that there was not available at that
time a replacement of equal quality in that particular situ
ation.
I think there was also very evident the feeling that this
might be—might not be out of the picture entirely. But at
that particular time when the Committee was still making
a study of the securing and placement of teachers, librar
ians and other personnel, that we might well wait to see
what the Committee was going to report on this.
I think there also might have been taken into considera
tion the fact that this very question was pending in the
Courts at the time. As I say now, this is all supposition;
there’s no record to this.
Q. Well, can you recall what was said that night when
they made a decision? A. No, I don’t; I do not recall.
Q. You don’t recall anything, what was said? A. I think
that this decision hinged largely upon a feeling that this
was an inopportune time. And of course I made it clear—
Deposition of Lew W. Hannen
84a
Deposition of Letv W. Hannen
—15—
Q. That was the impression you got that night? A.
That was the impression I got.
Q. That it wasn’t the time to do this? A. That’s correct.
And I think also the Board shared the feeling which I
haven’t possibly expressed—I’m not sure—on this point:
that a qualified librarian might just as well, at this par
ticular instance and from this particular time, show up
from the white applicants as from among the Negro ap
plicants. In other words, I couldn’t predict what’s going
to happen next week. All I could do was go on what our
experience had been in the past and the likelihood of
] another qualified applicant appearing would be more likely
| to be a Negro applicant than a white applicant at that par
ticular time.
Q. Well, after that meeting, did you subsequently find a
white applicant and hire her? A. Yes, sir, a very well-
qualified white applicant. This surprised me, I might add.
Q. Did you make any effort to get a balance in the various
schools in the system in experienced teachers, teachers with
higher Degrees? Did you try to balance them around the
schools? Did you make any surveys to see what the situa
tion is, for example? A. You can’t generalize there either
because this would vary from year to year. But in general,
— - 10 -
jof course, your more experienced teachers, as a whole,
4 would be m~tfie predominantly-Negro school system as com
pared to the predominantly-white schools, as a whole, on
' account of this tremendous turnover in the white schools
because of the wives teaching of the Carolina and Duke
University students.
Q. Would you have readily available a breakdown by
schools and experience and—Could you do that? Could
85a
you tell us pretty much what the salary schedule is, which
schools have most experienced teachers in white schools, in
experience and training? A. Yes, but I don’t know
whether that would be worth much because as I said it
would vary from year to year. Now you. could have, for
example, in one of the schools you could have possibly a
couple of new teachers in a given year, and then the next
year you might have eight or ten. I don’t see that that fac
tor is constant enough to be worth anything. But in general
it is true that, as I say, the higher salaries we pay to Negro
teachers, and the reason for that, as I say now, is once you
get them, you have them. Once you get a white teacher, that
is not true. Because those who have husbands, for example,
at Duke University are going with their husbands when
they leave. And then you have to do all over again. But
we do believe that we get some of our very best teachers
among this group because they come in from all over the
United States, bringing new ideas, new school systems,
—17—
they are young, and they have an extra challenge to do a
good job because their husbands are not going to stay in
school unless they do. And we find these teachers generally
to be a very satisfactory group.
Q. I understand there is a letter that goes out with the
application forms to teachers? A. Yes.
Q. Is that a standard form letter? A. It indicates how
to be certified.
Q. I would like to see a copy of that. A. We’ll get that.
We’ll get several and give them to you.
Q. How did the white teacher come to be hired at Hill
side High School this year? A. Because this was the best
teacher available at the time in that particular position.
Deposition of Lew TV. Hannen
86a
Q. What was the job? A. English teaching, teaching
advanced outstanding students.
Q. Was that teacher also mentioned in the same meeting
with the librarian, in the same one that had the discussion
of the librarian? A. I think so.
Q. Was a decision made then to hire her, or subse
quently? A. No, the decision was not made until the
Board changed its policy. And the Board sanctioned this
as the first exception to the—I think Doctor Speigner indi
cated this to the policy of white teachers in predomi-
— 18—
nantly-white schools and Negro teachers in predominantly-
Negro schools.
Q. How do you stand with H. E. W. on the teacher de
segregation matter? Have you been negotiating with them
about it? A. Yes, we have. I don’t know where we stand.
Q. All right. Well, have you submitted more than one
plan to them or what? A. Yes, we’ve submitted materials
a number of times. I spent one whole morning in Washing
ton with Mr. Mordecai Johnson, an attorney from the Jus
tice Department, trying to find out why our plan had not
been approved. And it appeared at the time that they were
not interested in any plans that we submitted as much as
they were in getting our signature on the so-called model
plan that they had proposed. And that’s where the matter
stands at the present time.
We have not been denied and we have not been approved.
Q. You are familiar with the fact that the Commis
sioner’s guidelines require a noil-racial policy of assign
ments for newly-hired teachers and some steps with respect
to transfers. You haven’t submitted anything like that,
have you? A. We have submitted essentially to them on
two occasions plans that were very similar to plans that
Deposition of Lew W. Hannen
87a
have been approved in this area; and ours has not been
approved. And we have not had, at any time, a written
communication specifying wherein our plans that, we have
—19—
submitted have fallen short.
Q. Could you also get me the number of teachers who do
not have one of these certificates and where they teach and
what they teach? A. You’re talking about the A and B
certificates?
Q. No, I mean teachers who are not certified, who do not
have one of these A or G or B certificates. A. Well, we
don’t have teachers of that type. That’s what I was just
saying.
Q. You don’t have any? A. That’s what I’ve just been
saying; we don’t have any.
Mr. Nabrit: Off the record.
(Discussion off the record.)
By Mr. Nabrit:
Q. Mr. Hannen, with respect to the Negro and white stu
dents who applied for positions as practice teachers, can
you enlighten me about that episode, what it was and—when
was it first? A. I can’t specify the date; I would say this
was recently, that is within the last year perhaps.
Q. All right. Now let’s take the Negro applicant first.
Where was that person in school? A. The Negro appli
cant was in school in North Carolina College.
Q. Did she have a recommendation from the school? A.
She had an approval—let us say—from the school to the
— 20-
Principal of the high school, which was irregular. That
was supposed to come from my office, me or Mr. Phillips,
Deposition of Lew W. Hannen
88a
the Assistant Superintendent. The high school Principal
referred it—•
Q. Pm confused. I was asking whether or not her own
school that she attended, North Carolina College, recom
mended her as a practice teacher. A. Recommended her
to the high school Principal of Durham High School.
Q. I see. And you say that was irregular ? A. That was
irregular.
Q. What was irregular about that? A. The regular ap
proach was that this application be made to the Superin
tendent or the Assistant Superintendent.
Q. Now when the people at North Carolina College rec
ommend to Hillside, do they deal with the Hillside Princi
pal? A. They deal with Hillside, but it’s my understand
ing that Mr. Phillips is sitting in the same capacity that I
served when the former Superintendent was here and I
was in the position that he’s in now, and that was the posi
tion that these were handled through the central office and
there was then referrals made to these various schools.
Now there’s some disagreement on that, I ’m aware, at
North Carolina College. It was our impression that that
was generally understood.
However, I think that that’s a minor aspect of it. I’m
— 21 -
not contending that seriously. It did arise at our office; it
was discussed with the Board; and at that time the recom
mendation was made that we had very definite commit
ments made both to North Carolina College, to Duke Uni
versity, and to the University of North Carolina, which have
been in effect for a great many years regarding the place
ment of teachers. And it was suggested that night that we
saw no reason for expanding the number of student teach
ers who were placed in any given school.
Deposition of Lew W. Hannen
89a
Now there were very good reasons for that.
Q. I ’m sorry to interrupt yon—
Mr. Spears: Let him finish.
Q. Go ahead. A. There were some very good reasons
for that. We had applications from Meredith College, from
Shaw University, from the University of North Carolina
at Greensboro, Guilford College, and others, to let new
teachers come into Durham here and student teachers come
into Durham and teach. But particularly at Durham High
School we had had complaints from time to time about the
number of Duke students and Carolina students who were
permitted to do student teaching there.
And, through no one’s fault but through oversight
largely, there had been instances when maybe a child would
have as many as three student teachers at one time. And
parents felt that that was not a satisfactory arrangement.
And particularly at Durham. High, we did not want to in-
— 22—
increase the student teacher load in that school.
Q. Let me understand the function that a student teacher
performs. Does she serve as a helper to the regular
teacher? A. No, she does the teaching over a period of
time.
Q. All right; I see. Do you have these student teachers
at both the elementary and secondary levels? A. We have
them at all levels.
Q, And what would be sort of a typical; does a student
teacher teach, say, a period of a week or— A. It differs
among the various institutions. It would usually run from
six to nine weeks, I think.
Q. You mean from six to nine weeks that a student
Deposition of Lew W. Hannen
90a
teaches the children? Is the student supervised by the regu
lar classroom teacher during that period? A. That’s
right. The student teacher does the teaching.
Q. And they’re both in the room? A. Not at all times.
There again there are variations among the institutions.
Some of them recommend this from time to time, that the
regular teacher absent herself from the room just to see
what happens.
Q. Yes. Now how many student teachers do you have,
say, in this school system during the course of a year? A.
Oh, that would be hard to estimate. Mr. Phillips, with some
leeway on it, might want to make an estimate of that. There
—23—
would be perhaps, in Mr. Phillips estimation, from fifty to
seventy-five. This is a very significant number.
Q. Now what about substitute teachers? How do sub
stitute teachers, how are they assigned? Do you have a
class of teachers who have a substitute certificate, for
example? A. In many instances, these would be people
who were former teachers and their families have grown
up to the place that they’re either in school or off to
college, and this particular person wants to come back
and do some more teaching.
Q. Now the substitute teachers are called in on a day-
to-day basis for illnesses and things like that? A. Yes,
by the Principal.
Q. Now do they make their arrangements directly with
the Principal? A. They make the arrangements.
Q. Although are they handled by the central office?
A. They make the arrangements directly with the Prin
cipal.
Q. Are they approved by the central office? A. The
Principals are supplied a list of these teachers by the
Deposition- of Lew W. Hannen
91a
central office; and of course in some instances—in an
epidemic, for example—you would need teachers over and
beyond those that were available on any list that we fur
nish; and the Principal has to do some ferreting out on
his own to give the vacancies at a given time.
Q. The substitute teacher lists are also on a racially
—24—
segregated basis.’ A. They have been up to the present
time. I
Q. There hasn’t been a change in that? A. Not up
until the present time.
Q. Do youhave summer school? A. Summer school pro
grams.
Q. Are the teachers segregated in the summer school
programs? A. In some instances they were, and in other
instances they were not.
Q. Did you have any Negro teachers teaching white
children? A. We had one this summer.
Q. Was that a program, a regular program, of the School
Board or wTas that a— Was this Head Start? A. Was
this— This was Head Start program approved by the
Board of Education after some pressure from Washington.
Q. But the desegregation was the result of some pres
sure from the Office of Economic Opportunity? A. This
was a decision made by the Board of Education after
a request from the Office of Education that we integrate
the teaching staff.
Q. Do you have summer school—have you had summer
school in other years or is this the first year you have
had it? A. You mean regular summer school?
Q. Yes. A. We’ve had regular summer school for a
generation at least, and recently a program has been
Deposition of Lew W. Hannen
92a
—25—
sponsored and paid for by a special foundation grant from
Duke University.
Q. What foundation? A. This is an enrichment— It’s
Ford Foundation. It’s been an enrichment-type program.
And here again, this has been open to outstanding students.
We have had all types of students in it. And the faculty
here has been chosen not only from among local teachers
but from outstanding teachers throughout. The regular
summer school program has been in effect for at least
a generation.
Q. Mr. Superintendent, the Board—or rather the Com
mittee report mentions the fact that with free transfer
programs we’ve had in effect, not all of the white pupils
who have chosen to go to a school with a white teacher
and— Is this part of your thinking on the subject? What
do you think about that? And do you regard that as a
reason for not desegregating teachers or a reason for go
ing slow in it or what? A. I can’t follow you on account
of this noise coming in here.
Q. I said the Committee’s report noted that under the
free choice plan so far in Durham, none of the white pupils
have chosen to attend Negro schools. Those who are as
signed there asked to be transferred out and none of
them has applied to Negro schools with Negro faculties.
In your view, does this indicate that these parents don’t
want to send their children to schools where there are
—2 6 -
Negro faculties? And if so, do you think that’s a reason
| not to do it? A. I think very obviously this is the choice,.
\ the parent has made. Whether this is either desirable
1 or right, I, would not be in a position to say.
Q. But as it stands, where the parent has a choice of a
Negro-faculty school or a white-faculty school, this is what
Deposition of Leiv W. Hannen
93a
it comes down to. A. What it comes down to is you give
a freedom of choice to one person or a group of persons,
it seems that you ought to give it to everybody.
Q. Well, I know that’s what’s being done. What I’m
asking is, isn’t is so that the Negro child and the white
child now have their choice between a white-faculty school
and a Negro-faculty school ? A. Yes, shy with the one
exception, at Hillside High School, of course, which we
have now.
Q. Do you think the fact— Strike. Would you go over
these five categories on the last page of the Committee
report, the part that says desegregated “Supervisors, Prin
cipals, and Teachers’ meetings?” Could you give me a
statement what meetings have been desegregated and what
meetings aren’t desegregated so we get an honest under
standing of the picture? A. I think, as was pointed out
by a previous witness, we have both white and Negro
Supervisors on our central administrative staff here and
—27—
housed in this building. And meetings are integrated that
these Supervisors have. All the Principals’ meetings have
been desegregated for many years; Principals have been
meeting as a unit. There was a general Teachers’ meet
ing last spring that was for all of the teachers of the
entire community held at the Shepard Junior High School.
There was a general Teachers’ meeting at the Durham
High School this fall for all the teachers of the com
munity.
Q. Is that the first time in recent years that you had
desegregated Teachers’ meetings? A. Yes, sir. Work
shops have been desegregated, all sorts of workshops,
for a number of years. Your in-service training pro-
Deposition of Lew W. Hannen
94a
grams have been desegregated for several years. The
grade level meetings likewise. And by “grade level” , we
mean now all of your first-grade teachers get together,
your second-grade teachers get together, and so on; your
subject area meetings.
Q. And grade level meetings, the’ve been desegregated
for a period of time? A. For a period of time. And
the subject area meetings have been desegregated for a
period of time. And the reason that other phrase is added
there, “including all special subject meetings,” that means
for example your Home Economics Teachers will all meet
together, your Shop Teachers will all meet together.
These 'would be special subject areas. And your super
visory staff work is all integrated. I believe Mr. Phillips
—28—
for the last few years has held supervisory staff meetings
regularly, about once a month, including all supervisors
without regard to race.
Q. Now are there any meetings that are not desegregated
among the teachers or principals? A. Not that are called
or sponsored by the administrative staff. You’re aware,
I ’m sure, that in this State you still have separate meet
ings of your professional associations. You have the North
Carolina Teachers Association-—
Q. Yes. What are the four associations mentioned in
that report? Are some of them all-Negro organizations?
You had four representatives from four different local
assocations. A. Yes. You have a city-wide white pro
fessional staff organization, which is an affiliate of the
state organization.
Q. Which one is that? A. This would be the Durham
City Education Association. Then you have a city-wide
white group that is a component of—or a division of the
Deposition of Lew W. Hannen
95a
State organization, a local division that is exclusively class
room teachers. This would include—
Q. What is that called? A. This is the Durham City
Classroom Teachers Association. Then you have the Dur
ham Teachers Association, which is the Negro group
comparable to the Durham City Education Association.
You have your Durham Classroom Teachers Association,
which is the comparable group to the Durham City Class
room Teachers
* # # # #
—32—
# # # # *
Redirect Examination by Mr. Nabrit:
Q. Did you have any Negro supervisors working in the
white schools that had responsibility for them? A. Not
directly with the pupils. Of course, the Negro supervisor
as well as the white supervisors are supposed to work
with teachers and that would be the extent of their work
wherever they are, with teachers; teachers rather than
pupils.
Q. Well, my question was: Were any of the Negro super
visors in— Do they deal with white schools or-— A. They
would not supervise the work of the white teachers; the}r
would observe. They would observe, I think, in some in
stances, the work of the white teachers but would not
directly supervise. That was the experience there.
Q. I take it we’re agreed that the policy has been, as
discussed with some of the other witnesses, to look for the
best person to fill the vacancy in terms of the best Negro
to fill a Negro vacancy and the best white person to fill
a white vacancy? And that’s been the policy? A. That
—33—
has actually been the way that it has turned out up to the
present time.
Deposition of Lew W. Hannen
96a
Q. This white student at Duke who wanted to teach at
Hillside High, she was doing something unusual in seek
ing to teach at a Negro school, right? A. That’s correct.
Q. And she spoke to you about this? A. Yes, sir.
Q. And she spoke to members of the Board? A. Some
members of the Board, at least.
Q. Did you ask her to speak to members of the Board?
A. She asked if she might do that; and I told her that that
was entirely up to her, whether she wanted to do it or not.
Q. Did she come to you first? A. I don’t know whether
she came to me first or not. I don’t know what all people
she approached.
Q. Was she qualified? A. I didn’t investigate it, be
cause she was not qualified to the extent that we had had
no communication from Duke University about the matter;
to that extent, she was not qualified to begin with.
Q. Well, did you advise her of that? A. We told her__
as I recall, we told her that it would be necessary for her
to get the endorsement of the University in every instance
before we place a teacher in a teaching situation—or
Carolina or North Carolina College, as the case may be.
Q. And the Negro teacher who applied to the white
school had the endorsement of her Dean, but you objected
to the Dean dealing directly with the Principal, is that true ?
A. This was a minor thing; we thought that he should do
this the way that we understood it was being done, should
be done. Then, of course, this girl was rejected on the basis
that we did not wish to expand teacher training program
at Durham High School, which already was at least as
large as it should be, and perhaps larger in some instances.
This would simply make access to Durham High School
by another teacher-training institution when we’d already
Deposition of Lew W. Hannen
97a
Deposition of Lew W. Hannen
turned them down from all around in this section of the
State.
Q. Oh, I see. You mean all of your teacher-training insti
tutions have arrangements with a particular school within
this system? A. This has been the custom in the past,
for them to deal with certain schools. Universally this has
been true and it has been limited to Duke and Carolina
and North Carolina College. We feel that if we take these
teachers from these three institutions in Durham that that’s
just about all Durham ought to be asked to do when you’ve
got other cities. We’ve got 169 school units in this State
now. We think that when we take them from the two
largest in the State and also North Carolina College, a
third teacher-training institution, that that’s about all we
- 3 5 -
can do. So we are not set to expand our program.
Q. I understand. My point was, they deal with the tra
ditional schools that their teachers have served? A. En
tirely ; entirely.
* * * * *
9 8 a
Excerpts From Transcript of Hearing,
September 23-24, 1965
* • * # *
Mybl G-. Herman was called as a witness on behalf of the
Plaintiffs and, being first duly sworn, was examined and
testified on his oath as follows:
Direct Examination by Mr. Nabrit:
Q. Mr. Herman, state your address, please. A. 46 Cliff-
side Drive, Cranston, Ehode Island.
The Court: I beg your pardon. Tell me the wit
ness’s name.
By Mr. Nabrit:
Q. State your name. A. Myrl G. Herman.
Q. And what is your profession, Mr. Herman? A. At
the present time I am Professor of Education and Director
of Laboratory Experiences at Ehode Island College.
Q. Would you give the Court a brief resume of your
educational background and your employment background
in the field of education? A. I have a Bachelor’s Degree in
Economics and History from McKendree College—
—43—
* # # * #
A. I have a Bachelor of Arts Degree in Economics and
History from McKendree College in Lebanon, Illinois. I
have a Master of Arts Degree in Education from Washing
ton University in Saint Louis, approximately 60 hours be
yond the Masters Degree in curriculum and instruction at
Washington University in Saint Louis. I have been an
elementary teacher for three years, a principal of an ele
mentary school for two years, superintendent of schools
— 4 2 —
99a
for two years; Assistant Professor of Education, Univer
sity of Oklahoma, for five years; Assistant Professor of
Education at Ball State Teachers College, Muncie, Indiana,
for two years; Associate Professor of Education and head
of Elementary Education Department in the Graduate
School of Education at Yeshiva University. There I was
Associate Director of the Teachers Fellowship Program
which was an internship program for teachers, supported
by the Ford Foundation. I was visiting Lecturer of Edu
cation at the University of Illinois for two years, Assistant
Superintendent for Curriculum and Instruction in the Villa
Park, Illinois schools, a suburb of Chicago, from which posi-
—44—
tion I came to my present position.
I have been in my present position about 25 days.
By Mr. Nabrit:
Q. What are your duties in your present job! A. My
main duties are the supervision and direction of the
student-teaching program; that’s a teachers preparation
program in the schools. I do not have direct responsibility
for that but I am generally responsible for it, I am also
responsible, generally responsible for the operation of the
campus laboratory school.
Mr. Jarvis: May I inquire what is his present
position!
Mr. Nabrit: I ’m sorry.
By Mr. Nabrit:
Q. Would you repeat that? A. I am Professor of Edu
cation and Director of Laboratory Experiences at Rhode
Island College.
Myrl G. Herman—for Plaintiffs—Direct
100a
The Court: What are laboratory experiences?
Maybe somebody will bring that out but I ’m not sure
what you’re speaking of.
By Mr. Nabrit:
Q. What is the laboratory school? A. This has to do
with all the experiences in the preparation of teachers
where a teacher is involved in learning how to teach within
a classroom setting as separated from classroom work.
—45—
The Court: I see. All right, go ahead.
By Mr. Nabrit:
Q. I think that you might clarify that, if you’re talking
about a laboratory school, what it is. A. Well, the labora
tory school is a school which is used for the preparation of
teachers in the early stages of their training—that is, the
freshman, sophomore, and junior years—where the pro
spective teachers spend time in the schools under the direc
tion of teachers, getting preliminary experience before en
tering into student teaching in the public schools.
Q. In the public schools, but the laboratory school is an
elementary school? A. Yes. It has children in it, children
four years of age through the ninth grade.
Q. And do you have a particular area of specialization
in the field of education? A. My area of specialization is
dealing primarily with instruction. I have, of course, train
ing in the area of curriculum but for approximately 15, 16
years I have spent a great deal of my time in classrooms
analyzing the teaching of teachers and the teaching of stu
dent teachers.
Myrl G. Herman—for Plaintiff s—Direct
101a
Q. Would you give the Court your view with respect to
the effect of the tendency of the policy of segregating
faculties by race—
Mr. Jarvis: Objection.
Myrl G. Herman—for Plaintiffs-—Direct
Q. -—in the context of a school policy based on a system
— 4 6—
of freedom of choice!
Mr. Jarvis: Objection.
Mr. Spears: Objection.
The Court: Now are you talking—I ’m not sure I
understand the question. Before I rule on the ob
jection, does your question relate to the pupil or the
teacher or both? I didn’t understand that in your
question, just what you were driving at. Would you
ask your question one more time ?
By Mr. Nabrit:
Q. The question was: What are your views or what is
your view as an educator of the consequences of faculty
segregation by race and how that relates to a system of free
choice for desegregating schools wherein the children or
parents choose their schools?
Mr. Jarvis: Objection.
The Court: Well, I ’ll overrule the objection and
let him answer. He didn’t ask it any differently but
I ’ll let him answer it.
Mr. Spears: Your Honor, he said what was his
view. He didn’t say if he had an opinion or not; it’s
his view.
102a
The Court: Well, that’s what I had reference to,
but I think we’d end up at the same place.
I suppose, Professor, you have an opinion in that
area, do you?
The Witness: Yes, sir.
—47—
Mr. Jarvis: Your Honor, might I just elaborate
on the objection a little bit? I don’t know whether
he has been ottered as an expert in the freedom-of-
choice systems; I don’t know if he has ever had any
experience in the system.
The Court: Well, I ’ll let you examine him on that
score. Objection overruled. Go ahead.
By Mr. Nabrit:
Q. Go ahead. A. The question is a little bit compli
cated; let me break it down. I have to pre-empt what I
have to say with the fact that of all the factors that are
involved in the education of children, the teacher is the
most crucial element. That is, the choice of the teacher who
teaches is extremely important, not only because this per
son directs the activity of the children, but also because as
a person he represents the culture to the child.
Now I personally feel that if you are assigning teachers
strictly on the basis of race as a prior question in the terms
of employment, you are actually violating the child’s right
to equal opportunity in terms of his education. I base this
on the idea—
The Court: Well, I ’ll strike that. You didn’t bring
him here to advise the Court on the question of law.
He said you are violating his rights; I guess he’s
Myrl G. Herman— for Plaintiffs—Direct
103a
talking about he feels it’s a violation of his constitu-
—48—
tional rights, and I ’m sure you didn’t intend to ask
such a question. That’s voluntary, but I don’t think
that’s competent.
The Witness: I ’m referring to his educational
right. I ’m not interpreting the Constitution as such.
I ’m saying that if you use race as a basis for employ
ing teachers and assigning teachers, you are not
actually attempting to get the very best of teachers,
the very best of teachers.
Every school system should be trying to employ
the best teachers that it can employ and assign them
to the teaching position. But if you have as a basic
element the requirement of a particular race, you
start to eliminate some of the best, the choices of the
best teachers that are available.
If you have a school that is, say, a colored school,
you have four vacancies in that building and you
are going to fill them with Negro teachers, you al
ready have discounted the fact that there are excel
lent teachers available who are white for that school
and you are not necessarily choosing the best
teachers.
By Mr. Nabrit:
Q. Do you have an opinion on the effect of faculty segre
gation on the student’s knowledge-learning process, looking
at it in the context of a situation where you have all Negro
pupils and all Negro faculty, where you have all white
—4 9 -
pupils and a white faculty, where you have all white faculty
and a predominantly white but mixed student body, those
various contexts; would you talk about them?
Myrl G. Herman-—for Plaintiffs—-Direct
104a
Mr. Spears: Objection.
The Court: Overruled. Gro ahead.
A. Well, in such cases you are actually depriving a child
of contact with the culture; the whole basic idea of educa
tion is that the child will be introduced to the culture and
all that is present within it. If he does not have contact
with teachers of various races or from various elements
of the population who make up a substantial proportion of
the population, you are actually depriving the child of that
kind of cultural contact.
I think that our children are becoming more and more in
volved in a changing kind of world. The moment that a boy
is finished with high school, he is subject to the draft, go
ing into the Army. Here he will start to come into contact
with people who are his superiors who may be from another
race. If he goes out to look for a job, he goes to be inter
viewed by personnel managers who may be of another race.
In all of his activities, he is very likely to be exposed to
people who may be superior to him or making decisions
about him and who may be of another race. The schools
will enable him to predispose himself to whatever it is that
he will meet in life.
—50—
I feel that a school which is made up of teachers pri
marily of one race then prevents this child from having a
good life experience which he deserves and should have.
By Mr. Nabrit:
Q. When you talk about cultural experience, in what
sense do you use the word “ culture” ? Would you explain
it? A. In the sense that “ culture” represents what society
does, thinks, feels, and so on, not from the use of the term
Myrl G. Herman—for Plaintiffs—Direct
105a
that you put in quotation marks where somebody is talking
about it in terms of actually making fun of cultured per
sons, so to speak. I am using an entirely different sense,
in the sense that it’s representative of what society does,
thinks, feels, and so on.
Q. Now could you relate your view to an actual program
in school such as reading textbooks? Does this relate to
the actual learning process? A. Well, one of the general
movements in this direction in order to provide the child
with this kind of contact, even if he happens to be in a
segregated school or what we would call a nonsegregated
school where there is no possibility for the child to have
contact with pupils of another race or teachers of another
race, there has been definite trends towards the organiza
tion of materials which will do this for the child. Many
reading programs are being instituted over the country,
for example, which contain multi-ethnic material where
—51—
children are reading about children of another race. They
are seeing pictures of teachers teaching children of another
race, teachers of another race teaching someone of their
own race, and so on. There is a general movement in this
direction in order to acquaint children through the means
of the curriculum with other elements of the culture that
happen to have another environment. In some of the sub
urbs around a large city there is a highly limited environ
ment where children have absolutely no contact at all with
members of the Negro population or with Chinese popula
tion or with Mexican population or what have you; and
there is a definite attempt to at least do this at another
level if it can’t be done in actuality.
Q. What is the relationship—would you make a com-
Myrl G, Herman—for Plaintiffs—Direct
106a
parison between learning by study of books and learning
by other means?
Mr. Spears: Objection.
The Court: Overruled.
A. Well, again the trend in education over the past fifty
years has been somewhat away from words and towards
more contact with actuality as a basis for words. In other
words, we have tried to give children some kind of a per
ception through experience before he uses the words for
that experience.
So I would say that this is in general what we are trying
to do in relation to training the child, social training of
the child, as well as to other elements.
By Mr. Nabrit:
Q. What about the effect of a policy of faculty segrega-
—52—
tion on a Negro child in a school with all Negro children
and all Negro teachers; do you have any opinion with re
spect to the educational impact of that? A. Well, again,
here a child is within a limited environment not having a
true representation of the culture before him or not having
experience with the true culture. In a case like this, too,
there is the matter of the self-concept which a child de
velops.
I think that the investigations in the development of
children tend to show that the only way a child can develop
self-concept and relate to the world is through the experi
ence which he has. If his experience is limited, his self-
concept is limited by that experience. He does not really
get a true picture of the world.
Myrl G. Herman—for Plaintiffs—Direct
107a
I think that a Negro child in a highly-limited environ
ment which is primarily Negro oriented tends to develop
very great prejudices which need to be offset by a con
tact with, say, good models of the white population or of
Latin population, Mexican population, or any other type
of representative element of the culture.
Q. What about the white child in the all-white—the white
child in a school that might have some Negro students but
no Negro teachers or an all-white faculty, or in an all-
white school? A. Well, he has somewhat the same prob
lem. I think if you look at such things as mobility of the
—5 3 -
population in this country, we can see what his problem
might be outside of just this one limited experience. About
a fifth of the population of this country moves every year.
This has been going on for quite some time. The possi
bility of a child moving is very great. If he has had such
a limited kind of education prior and he goes into a new
area where there, say, is a mixed population with which
he has to contend, he operates at some disadvantage with
out prior experience and prior knowledge that he needs.
Again I must relate this to life experience and to the
whole future of his life. He is going to live in a very mobile
society even if he never leaves the school system. He has
even a more limited kind of education if he doesn’t leave
it until he is an adult. Then when he is an adult, he gets
himself into situations. He is going to be very mobile.
There is great possibility of his moving. He will come into
contact with a wider culture and will not be prepared to
contend with it.
Q. Now how does the race of the teachers, where the race
of the teachers is restricted—does that have a bearing on
parents’ attitude about the school and the choice of the
Myrl G. Herman—for Plaintiffs—Direct
108a
school for their child? A. Well, in most of the communi
ties where there have been plans for transferring children,
so forth, there has been a reluctance of parents to put
—54—
their children in schools which were predominantly of an
other race. This is particularly true, I think, of the Negro
population. The studies would indicate that the Negro is
very insecure in a totally-white environment and this would
be true of Negro children who would be put in totally-white
schools. Therefore, parents would tend to hold their chib'
dren out of totally-white schools as, of course, white par-1
I ents would tend to keep their children out of total-Negrcf
schools.
The tragedy of this is when transfer does occur, it’s
usually the wrong people. They are the kind of people
who need this kind of training least.
If you will look at— I don’t know if this is true in .Dur
ham or not; I have not had an opportunity to look at this
phase. But the experience of other school systems is that
the people who tend to transfer their children—let’s take
the Negro population—the Negro parents who tend to put
their children in the white schools on an open-transfer
basis or any other plan tend to be the people who already
have had a great deal of contact with white people. Their
children tend to have had a great deal of contact with
white children. These are children who are generally
middle-class or of the higher middle-class who have had
all of the things that are needed in reference to already
understanding relationships with another type of person
in the population. The rest who do not transfer are prob-
—55—
ably the children who need this kind of contact most.
Myrl G. Herman-—for Plaintiffs—Direct
109a
Q. Now this whole business of cultural contact is I think
outside of what the average person thinks about education,
what public schooling is like. It’s not a math; it’s not
ABC’s. Is there a legitimate relationship between all of
this and public education as it is conceived in this country?
Mr. Spears: Objection.
The Court: Overruled.
A. You have the same thing here that is true of what I
spoke about a while ago. When we are teaching children
to read and we are teaching children mathematics and we
are teaching children social studies, geography, history,
and so forth, you are preparing the child for the culture;
you are preparing him to participate in the culture. You
have exactly the same kind of goal as you do in terms of
dealing with personalities in the culture, the very same
kind of people.
By Mr. Nabrit:
Q. Now, Mr. Herman, have you thought about possible
methods of changing a school system from a segregated
faculty to a desegregated faculty, various plans for doing
it, the alternatives and possible ways of doing it? Would
you indicate those and what your view is to better ways
of doing it?
Mr. Spears: Objection.
The Court: Well, I don’t know how that has any
—5 6 -
bearing on the decision. It may go to the remedy if
you reach that certain point. Let the Professor say
what he thinks in that area.
Myrl G. Herman—for Plaintiffs—Direct
110a
A. Various systems have been tried for carrying out such
a program. If you think this through or you look at the
literature on the subject, you come to some various alterna
tives which are available to you. You can use some type
of random assignment and redistribute all the teachers in
the school system, or you can use some kind of gradual
plan such as was used in Miami and Dade County with
their junior colleges. That is, they had a gradual system
where Negro teachers worked with white teachers for a
semester before being put into classrooms on their own;
or you have the alternative of some kind of a planned,
controlled procedure over a number of years where de
segregation of faculty occurs immediately to some extent.
Then you have a plan whereby this would be increased.
If you look at the three plans or the three bases, I don’t
think that you could come to any other conclusion other
than to use the latter plan. I think the plan such as was
instituted in Oklahoma City as a result of the Court’s
order there is quite a desirable one. It probably would be
effective in virtually any community if such a thing were
to be carried out.
By Mr. Nabrit:
Q. Would you describe more fully what you think would
be a desirable plan?
—57—
Mr. Spears: Object.
The Court: Overruled.
A. Well, first of all I think there would have to be some
desegregation of the faculty which is presently operating-
in the schools. In virtually any community if you survey
the teachers you will find that there is a substantial body
Myrl G. Herman—•for Plaintiffs—-Direct
111a
of teachers who are qualified and are willing to work in
desegregated classes or in classes composed mainly of
children, say, of another race. There is almost always some
body of teachers who are willing to do this, and I think you
begin with these people who have expressed this qualifica
tion and willingness to work in that type of school and
under those conditions.
I don’t know how this would be governed. I think that
perhaps Courts in general would have to set some kind of
percentage base, not necessarily just to get an arbitrary
figure because it would be plucked out of the air to some
extent, but in order that duress or coercion could not make
some difference to the people who had this willingness.
The Court: What was that last statement?
The Witness: I don’t say that this exists any
where actually. I’m just saying for the purpose—
The Court: You said perhaps “duress or coer
cion.” I didn’t get that statement you made.
The Witness: Well, a percentage figure estab-
—58—
lishecl by the Court prevents duress and coercion
of the people who have expressed a willingness to
teach in such schools.
The Court: I understand that. I couldn’t hear you
before.
By Mr. Nabrit:
Q. Go ahead. A. Following that, I think you must base
your desegregation plans on conducting your survey from
year to year of those people who are willing and who would
accept such an assignment. I think this would be a basis
Myrl G. Herman—for Plaintiffs—Direct
112a
for transferring teachers. In other words, in the beginning
you do this and you do this every year following.
Then in your employment practices each year as you
employ a new staff, you would employ a new staff primarily
on the basis of qualification, ability to teach, and so forth,
without regard to race; and these people would then be
assigned without regard to race in the schools. Over a
period of years— Of course, there is no great desegrega
tion that occurs immediately because of this, but over a
period of years you would have a substantial desegrega
tion of the teachers in the school system.
I think that some necessary prerequisites also are that
when this is first begun that the superintendent of schools
needs to be given a great deal of opportunity for judgment
here. I think that he should prepare a plan which is sub
mitted to the board, perhaps reviewed by the Court, a plan
which would cover, say, a number of years, say exactly
—59—
what the procedures will be and what will actually occur
during that period of time.
I think also within the reports or within the actions of
the school system there must be some consideration in
service education of teachers who would be working with
classes of another race or desegregated classes, integrated
classes, or however you want to classify them. In other
words, this is an essential factor which would have to be
organized and carried out over a period of time. White
teachers in a totally-segregated school system which has
been operated—white teachers would not really have the
competencies, all the competencies, that would be necessary
in working with Negroes. This would be a new experience
for them, and the same would be true on the other side of
the fence.
Mijrl G. Herman—for Plaintiffs—Direct
113a
The Court: Let’s take a five-minute recess.
(Whereupon, a short recess was taken.)
The Court: All right, you may proceed, Mr.
Nabrit.
By Mr. Nabrit:
Q, Mr. Herman, would you have an opinion with respect
to faculty desegregation on the achievement of pupils; and
if you do, would you express it? A. The overall infor
mation on this topic actually intimates that with desegre
gation of faculty, children tend—both Negro and white
children tend to achieve somewhat higher. There are some
initial effects that have been noted by school systems and
—60—
that is immediately upon desegregation of faculties, you
seem to have a slight decline; but after a period of time
the achievement level tends to be higher than it had been
previously. A study which was done by the Baltimore
schools shows this effect, and a number of other schools
that I can’t cite right at the moment.
Q. Mr. Herman, have you made any survey of the Dur
ham schools or any effort to become familiar with the
Durham schools? A. I have made no study of the Dur
ham schools, nothing other than what I would class as
superficial information, which is a few facts about the
school system which are of very recent origin.
But I don’t come here to tell people how to run their
schools or tell the Court to tell the schools how they should
be run. I come merely on the basis of my knowledge about
children and the teachers’ relationship to the children and
the effect of teachers on the children.
Myrl G. Herman—for Plaintiffs—Direct
Mr. Nabrit: Your witness.
114a
Cross Examination by Mr. Spears:
Q. Mr. Herman, you just said you have no knowledge
and made no study of the total school system here in the
City of Durham? A. That’s correct.
—61—
Q. Now you know that we have here in the City of
Durham freedom of choice for pupils? A. That’s what I
understand.
Q. Now then where a child—his parents have a freedom
of choice, then they exercise that choice as to the school
they go to? A. I understand that’s true.
Q. And any child who desires to go to a white school or
a school that is predominantly white, then he has that
choice; then he has a teacher in that school, doesn’t he?
A. That’s correct.
Q. Now if he does not exercise that choice, do you feel
then that he should be compelled to exercise that choice?
A. I feel that for the child’s own good that perhaps this
might need to be done. There are forces that are operating
to determine what the choice will be that perhaps should be
overcome. In schools—in virtually every situation where
desegregation of both faculty and children has occurred,
there has been resistance on the part of parents initially,
but later this tends not to be the case and parents tend
then after a period of two, three, four years in some cases
to think more of the welfare of their child in terms of the
education he will receive, rather than where he is getting
it and who he is getting it from.
Q. Well now, what effect would it have on a child if he
—62—
is forced to go to a school that his parents don’t want him
to go to? A. That depends on what the parents do to
Myrl G. Herman—for Plaintiffs—Cross
115a
the child. The child’s experience when he gets there is the
important factor.
Q. Well, I asked you if they force him to go to a school
that the parents don’t want him to go to, would that have
a detrimental effect on the child, whether he be white or
Negro? A. It might and it might not. There have been
studies of the adjustment of children under such cases
and these studies indicate that children normally adjust to
such conditions fairly readily, particularly within a period
of a few months rather than the first day or two days or
three days.
Q. Well, what about the choice of the teacher when he
elects to go to a particular school, then isn’t he in effect
selecting that school and selecting that teacher that’s
there at the school? A. I don’t know how to—what frame
of reference to put your question in. Would you ask it
again and let me think it through?
Mr. Spears: Would you read the question?
(Thereupon, the Reporter read the pending ques
tion as above recorded.)
A. Yes, he is.
Mr. Nabrit: Well, Your Honor, I don’t under
stand the question, whether it means the parent is
—63—
selecting the teacher or the teacher’s preference for
the school.
The Court: Well, I understood that whoever
made the choice, the choice is not only the school but
the composition of the student body and the faculty,
Myrl G. Herman—for Plaintiffs—Cross
116a
that he chose it all, as I understood what the ques
tion was.
The Witness: I understood the question to he:
Is the choice not a choice? And the choice is a choice.
By Mr. Spears:
Q. He makes that choice? A. Yes, sir.
Q. And in a democracy he is entitled to make that choice,
isn’t he? A. He may or may not be. We don’t let people
make their choices about everything that they do.
Q. Well now, speaking about the children, you are not
familiar with the Durham system? A. No.
Q. Then if a teacher is assigned to a school that the
teacher does not want to teach in, what effect would that
have on the teacher and on the pupils? A. If a teacher
is assigned to teach in a school where she or he does not
wish to teach, the result would be a deterioration of the
morale of that particular teacher and perhaps other
teachers as well.
Q. And pupils also? A. This should actually have no
effect on pupils simply because assignments are usually
—64—
made before school starts. This type of thing, if this
teacher were compelled to teach in a situation in which
he did not wish to teach, his relationship to the children
whom he is teaching would be a result of the morale
situation; in that sense, you are correct.
Q. But there is no legal way, is there, to force a teacher
to teach in a school that he doesn’t want to teach in? Is
there?
Mr. Pearson: Your Honor, I think I—
The Court: Objection sustained.
Myrl G. Herman—for Plaintiffs—Cross
117a
Myrl G. Herman—for Plaintiffs—Cross
By Mr. Spears:
Q. In other words, the teacher has a choice also, doesn’t
he! A, Not actually, no. In actuality, school systems
operate under the direction of the Board of Education and
the superintendent of schools, and the teachers are assigned
to teach where they are needed. Let me give you an illus
tration of this. Almost all school systems at some time or
another are forced to employ teachers whom they cannot
give an assignment as they do not know where that teacher
is going to teach. In other words, that teacher is going to
be assigned without choice.
Q. Well, does a teacher have any right in the matter
himself or herself? A. Legally—I don’t know the statutes
in this state but I assume they are much like elsewhere.
Legally, no; but ethically, yes.
—65—
Q. Yes. That is, he should have some right; a teacher
should have some right? A. I would support that idea,
yes.
Q. You will? A. Yes.
Q. Now in a system like we have in Durham where there
is freedom of choice and the Negro child’s parents request
that he be assigned to a predominantly-white school and
that child participates in all of the activities of that school
—that is, in curriculum, the classroom, on the playground,
the literary societies, and others—then that child is given
what you say, the opportunity for culture, a broad culture;
isn’t he? A. Yes.
Q. And you have no objection to that, do you? A. No,
I clo not have any objection to it.
Q. And if the Durham schools are doing that, then the
child who elects to go is receiving that culture ? A. That’s
correct.
118a
Q. And the child who does not elect to go, he is receiving
what he elects that he desires to have, isn’t he! A. I don’t
know.
Q. Now do yon know anything about—Well, do you know
that in the State of North Carolina that the salaries of
Negro teachers and white teachers are based entirely on
— 66—
their certificate? A. Yes.
Q. And the salary is the same across the board— A.
Yes.
Q. —without regard to race! A. Yes.
Q. And that in selecting the teachers by the Superinten
dent or the Board, they endeavor to get the best-qualified
teacher they can get for that system; is there anything
wrong with that? A. I understand that this is done with
the one restriction, that is in relation to race.
Q. To get the best-qualified teacher regardless—• A.
Except that the person must be qualified by race for a
particular school assignment.
Q. Well, if in selecting and assigning teachers, if the
best-qualified teachers are assigned to teach in the schools,
doesn t that take care of the situation? A. Assignment
implies employment; there is no way that you cannot-—fail
to relate the two.
Q. You have to employ them before you assign them,
don’t you? A. But you employ them by the number of
positions which are available and to which the teacher is
going to be assigned.
Q. Well then, if you select the best-qualified teacher
—67—
whei e jou have a vacancy, then has the Board endeavored
to furnish the students the best training they can get?
Myrl G. Herman—for Plaintiffs—Cross
119a
A. If a vacancy exists and the Superintendent chooses
and the Board then employs the best teacher for that posi
tion, yes.
Q. Yes, whether he be white or Negro. A. That’s right.
The Court: While they are conferring, Professor,
are you familiar with the National Teacher Examina
tion?
The Witness: Yes, the National Teachers Ex
amination.
The Court: What do you think of that as a means
of testing teachers?
The Witness: It’s a reasonable instrument to use.
It is used widely across the country and is a reason
able instrument to employ for this measure for the
purposes for which it is being used here.
The Court: It is ?
The Witness: I would not object to it at all.
By Mr. Spears:
Q. Well, where the Board or Superintendent employs
the best-qualified teacher to fill that vacancy and if the
best-qualified teacher happens to be a Negro teacher or
a white teacher, then isn’t the Board performing its proper
function in the educational process? A. As long as the
race element is irrelevant.
— 68—
Q. I asked you the “best-qualified teacher.” I didn’t say
anything about race, isn’t that right? A. Well, you didn’t
mention race; that’s why I added that in.
Q. Well, I mean in that question, I said the best-qualified
teacher— A. Fine, yes.
Myrl G. Herman-—for Plaintiffs—Cross
120a
Q- —to fill that vacancy, whether it be Negro or white.
A. Yes.
Q. Are you familiar with the qualifications, the respec
tive qualifications of the Negro teachers and white teachers
in this immediate area? A. Yes.
Q. You say that they are equally qualified! A. In terms
of paper qualifications, yes. As to the other qualifications,
again I don’t know because I have not had the direct ex
perience with the system or with the pnpils in the State.
Q. Now in employing a teacher you look at the rating
of the teacher, his certificate or his standing in his college;
there are other factors involved as well as proficiency in
the standing, whether he graduated near the top or near
the bottom; and in employing teachers these other intan
gibles such as personality, ability to express yourself and
to mix, shouldn’t that also be taken into consideration? A.
—6 9 -
Yes. Let me say that I have looked at the hiring policies
of the school system and there is not inherently anything
which is wrong with them. They think that the Superin
tendent and his staff should be given every opportunity
to look at intangible factors as you classify them in terms
of personality, language, and so on. This kind of choice
should rest in the Superintendent’s hands.
Q. If that is being done, then the Board and the Super
intendent are doing their work, as you say, in a proper
way; wouldn’t you say? A. Yes, sir.
Q. And experience also enters into employment, doesn’t
it? A. Yes.
Q. Will you elaborate on your statement that white
teachers and Negro teachers do not have all the competency
to teach children of the other race? A. This has to do
with the cultural background of the teacher himself. A
Myrl G. Herman—for Plaintiffs—Cross
121a
child, as I said before, needs a wide cultural contact. The
cultural contact can only come from people who come from
diverse backgrounds. A white teacher has grown up in a
different kind of cultural setting and transfers certain ideas
and structures to a child; so does a Negro teacher who
has the same kind of background, which is uniquely his
own because of the culture in which he is reared. A child
should have a chance to contact good models who repre-
—70—
sent a race other than his own.
Q. Well, should a pupil be given an opportunity to come
in contact with a person of his own background? A. Yes.
Q. Isn’t that more important or of equal importance to
coming in contact with a person of a different background?
A. No, I don’t think so. You look at the priorities here.
The priority would be for him to have contact with a per
son from a different background, in fact, from several
different backgrounds if possible.
Q. Well, even though that person might not be able to
communicate with the pupil equally or as well as a person
with the same background? A. Would you rephrase your
question ?
Q. I say, even though that person might not be able to
communicate with the pupil as well or equal to a person,
a teacher, of a similar background? A. I answer the ques
tion “yes,” if it’s a continuation of the previous question.
Q. Now I believe you stated on direct examination that
it wasn’t a question of percentage, that is, if you had a
hundred teachers you would have to have 50 Negro teachers
and 50 white teachers; you don’t mean that? A. With per
centages you are getting an arbitrary definition of who’s
competent, if you know what I mean. In other words, you
Myrl G. Herman—for Plaintiffs—Cross
122a
Myrl G. Herman—for Plaintiffs—Cross
—71—
are saying that so many people are competent. I men
tioned a percentage several different times and I would
like to know which time you are referring to.
Q. Well, I refer to whether in a school that had 50 teach
ers in one school and they were all Negro teachers, then
would you say that they should have 25 white teachers or
five white teachers or ten white teachers! A. I wouldn’t
commit myself to a percentage of that group at all.
Q. In other words, you wouldn’t say whether there should
be one or 25 or 30! A. No. They should have a hundred
percent of the most competent teachers that they can get
in their classrooms, regardless of their background.
Q. In other words, get the best-qualified teachers! A.
True.
Q. Whether they be white or Negro! A. Yes, or any
other race.
Q. Or any other race, Indian, Chinese, and so forth.
Did I understand you to say that in your opinion the
Court should designate a certain percentage! A. Yes, and
let me explain that. I thought you might be referring to
i this. I think the percentage should be small enough that
it is absolutely reasonable to expect that this can be done.
The reason the percentage figure would be used in this
—7 2 -
case would be to prevent the school system or any people
in it—and I ’m not saying that you would do this at all;
I met Mr. Hannen and he’s a very fine person—but the
intent of the Court or anyone else in issuing such an
order would be to prevent coercion or duress of teachers
who were willing to teach. Let’s say a teacher was willing
to teach but then through some subtle means you told her,
“You are not supposed to say you are willing to teach in
123a
a white school or Negro school,” you have to do something
which would prevent this from happening and I think yon
have to set some kind of a minimum percentage which
would tend to prevent this.
Q. Then if the Court should set a percentage, isn’t the
Court in effect coercing the teacher and the system to meet
that percentage ? A. It would if it were a percentage which
were extreme; but if it were perfectly reasonable, there
would be nothing wrong with this. In other words, it’s
setting some kind of a basic minimum. I don’t think the
logic here breaks down.
Q. Well then, in your opinion the assignment should be
only to those teachers who are willing to teach in that
respective school? A. That’s true, yes. As I said before,
this is related to the morale problem; I ’ve already testified
to this.
Q. Now the systems that you speak about you are famil
iar with, it’s merely that there are 50 vacancies and they
—7 3 -
employ 50 teachers, and I assume the best qualified? A.
They will employ the 50 best teachers that they can get
and assign them to the vacancies that exist.
Q. Well now, in employing a teacher, if you have a va
cancy in English in the seventh grade, that’s the teacher
you try to get, a teacher who can teach seventh-grade Eng
lish; isn’t that right? A. Sure.
Q. You don’t simply employ 50 teachers that might be
math, history, and not English; you would want to find
out, if you have a vacancy in math or English, then that’s
the teacher that you feel, that the Board feels, and the
Superintendent, that is qualified to teach that subject; isn’t
that right! A. Wherever you can specifically do it, you
employ the best person for the position.
Myrl G. Herman*—for Plaintiffs—Cross
124a
Q. That position? A. I’m talking about a single posi
tion. You’re looking for a single person to fill that single
position.
Q. And not simply employ 50 teachers and assign them
across the board regardless of their capacity or ability to
teach that certain subject? A. Correct.
Q. Because teachers, in your experience, certain teachers
do specialize in certain subjects, don’t they? A. Abso
lutely.
—74—
Q- Hstory, English, geography, math, physics, and so
forth.
So then you wouldn’t say that you would take a science
teacher who specialized in physics in college—that was their
major—and ask them to teach geography, would you? A.
You’re not permitted to do that ordinarily because of
certification laws, anyway, so that doesn’t have much mean
ing.
Q. But I mean you would not— A. I would not do that,
either.
Q. What? A. I would not do it, if that’s the question.
Q. Well, then I’ll ask you if employment and assignment
are synonymous? A. No, they are not.
Q. Well, if you employ an English teacher to teach the
seventh grade and then you assign them to teach the
seventh grade, isn’t that synonymous, to teach English in
the seventh grade? A. If he happens to be— If the va
cancy happens to be in a Negro school and you specifically
employ a Negro for that position.
Q. But if you employed the best-qualified teacher for that
position— A. That’s different.
Q. —there’s nothing wrong with that, is there? A. No.
Myrl G. Herman—for Plaintiffs—•Cross
125a
Myrl G. Herman—for Plaintiffs—Cross
—75—
Q. Well, about the seventh-grade English teacher, if yon
employ a teacher to teach English in the seventh grade,
you have a vacancy when you employ him, isn’t that an
assignment at the same time? A. That is, yes.
Q. You employ him at that particular position? A. Yes.
Q. And when you employ him, he is employed for that
position-— A. Yes.
Q. —and it is an assignment? A. Yes.
The Court: Do you have many more questions to
ask?
Mr. Spears: Just one more.
By Mr. Spears:
Q. If the Durham School Board does that, employ a
teacher for a particular place, a particular vacancy, a par
ticular subject, do you have any quarrel with that? A. If
that’s what they do, I have absolutely no quarrel with it.
Mr. Spears: All right, come down.
The Court: Mr. Herman, let me ask you a ques
tion or two, please, to see if I understand. You say
you feel that it is desirable for children in schools
to have contacts with all other races that live in their
—7 6 -
community, whether they are Negroes, white, Chi
nese, Indians, whatever it might be, because in later
life they are going to be in contact with the citizens
of the community and that if they learn to live with
them and to understand during school, then they
will be better able in later life to understand this
problem.
126a
Well, see if I do understand that. What you really
advocate is, while there has apparently been some
controversy in the North about bussing children
across town to schools to gain a balance in all
schools, is that what you’re speaking of, that that’s
a desirable thing to do?
The Witness: I ’m not referring to that. I ’m re
ferring primarily to teachers. It seems the children,
in their contacts in life and through their home and
elsewhere, gain all kinds of prejudices and get many
of the wrong contacts. They should see during their
lifetime and all their growing-up as early as possible
a good representative as well from those same
groups.
The Court: Well, I understand that that is ap
pealing; I follow you on that perfectly well. But
now to achieve that, do I understand that you feel
that the School Board then, since it is a desirable
objective, then has a positive duty to see that that
is accomplished?
The Witness: I think they should assign teachers
—77—
rather than move the children, you know, by bus,
say, from one community to another; it can be ac
complished much more readily with the teachers.
The assignment of a white teacher in an all-colored
school is an easier way to get that kind of contact.
The Court: Do you mean you think you get the
same thing if a school is an all-Negro school and a
white teacher is assigned to that school, that the
Negro child will achieve the same culture and all
the other desirable things to attain from an educa
tion by a white teacher being there?
Myrl G. Herman—for Plaintiffs—Cross
127a
The Witness: Yes. One thing about young chil
dren is their distance from home seems to have some
effect on the way they feel about school. I think
it’s important that they be at least fairly close to
home and not be bussed. As you get down to the
fundamentals of this, I would not object strenuously
to the moving of children about if they were older
but I certainly would not want to see the younger
children moved a great deal. Junior-high-school-
level youngsters, for example, are probably twelve
or thirteen years of age and they are capable of
getting around; they know how to get on and off
of a bus; they know, you know, the community, and
they know the route which they take and so forth.
But young children do not really have a perception
—78—
of this. For instance, a young child’s perception of
time and distance is very, very poor.
The Court: Well, from your experience both ac
tually from your teaching and your work and ex
periments and tests that have been conducted and
so forth, what do you feel is the best, the most
desirable way to achieve this? Now one way is to
give every child—white, Negro, Indian, Japanese,
or whatever child is in the system—complete free
dom to go to whatever school they select. Now if you
do not do that, how do you achieve what you’re talk
ing about so far as the student—I’m not talking
about the teacher now—is concerned, other than to
set up some sort of a system in the school whereby
they are purposely bussed out of the neighborhood,
if that is necessary to do it in order to achieve that,
just to achieve an intermixture of the races?
Myrl G. Merman—for Plaintiffs—Cross
128a
The Witness: Well, what you say is true. You
would almost have to do this.
The Court: Well, which do you feel is the most
desirable method, for the School Board to force the
child to do something that the child and his parents
do not desire or to give the child a complete, un
restricted and uninhibited freedom of choice to
choose his school?
The Witness: That would be hard to say. It
—79—
would depend on the community and I really don’t
know the community well enough to make this kind
of judgment. Ordinarily you could make some kind
of blanket statement here but whatever it would be
might be wrong as far as the community is con
cerned, and I don’t have that knowledge.
The Court: Well now, just one other question
about teachers. As I understand, what you have tes
tified to in substance is this: that you would think
it would be a desirable thing for any school system
to take the teachers they now have and then ask
those teachers if they are willing to teach in a school
where a race different from theirs is predominant.
If they say no, to leave them where they are. If
they say yes, then that the School Board should then
further examine those teachers with reference to the
subjects and grade level that they are teaching to
see whether they have to displace somebody else
over at another place, and consider their personality
and other qualifications on a fair, objective basis
without regard to race, and then attempt to place
those teachers who are willing to—
The Witness: Yes.
Myrl G. Herman—for Plaintiffs—Cross
129a
The Court: —in the system now.
The Witness: Yes.
—80—
The Court: And then as you employ new teachers,
that they be employed solely on the basis of merit,
in other words, that you do not consider race what
ever. If you are going to use this College Achieve
ment Score or whatever that organization was we
spoke of, that you take a person, the degrees held
—that is, their academic achievement, their score
on the board—if they used that, if they used that—
That is a non-discriminatory sort of thing, isn’t it?
The Witness: Yes.
The Court: And then the interview for person
ality and ease of communicating with other pupils,
and make an honest decision based on that for the
place where there is a vacancy.
The Witness: Yes.
The Court: And then that the Superintendent
and the Board should have wide latitude in judging
those intangibles and get the best person they can,
and leave the race entirely out of it. Do you think
that’s the best way of achieving that?
The Witness: Yes.
The Court: What is your feeling—Somebody
said something about seventh-grade English. Let’s
use ninth-grade mathematics; I suppose they teach
mathematics in the ninth grade. Suppose that you
—8 1 -
ha d, well for example, a white teacher who says,
“Yes, I am willing to teach, in any school in the
system, ninth-grade mathematics. That’s my field.”
But there is no other teacher of ninth-grade mathe-
Myrl G. Herman—for Plaintiffs—Cross
130a
matics in the system, and certainly not in a pre-
dominantly-Negro school, who is willing to teach in
a predominantly-white school. How would you treat
that? You would have one willing person but no
place to put that person.
The Witness: Well, in this case you would have
a vacancy; I would transfer the teacher, say, to
the Negro school and fill the vacancy with a new
teacher which would be the best-qualified person
that you could find.
The Court: I know, but you are displacing that
Negro teacher. You see, you’ve got a teacher in
the ninth grade in the Negro school and that teacher
is not willing to leave.
The Witness: Oh, I see, you don’t have a vacancy;
in that case, you wouldn’t have a transfer and you
would have to hold this in abeyance until there
was a chance, say, for two people even to switch
positions. The experience of school districts in
this type of thing has been that they first have a
fairly large number of people, a substantial num
ber who say they are qualified and are willing to
teach a segregated class of another race or an
—82—
integrated class or a desegregated class. They are
classified differently; in other words, they had three
different kinds of choices. But the experience has
been that there is a fairly good number of people
who will do it, then as time goes on there are fewer
people who want to do this; then after a period
of four or five years there tends to be an upswing
of quite a number of people who have the willing
Myrl G. Herman—for Plaintiffs—Cross
ness.
131a
The Court: Well, let me ask you this one further
question and then I am through. How would you
treat a situation where you have a white or Negro
teacher who told you, and you were the Super
intendent of Schools, “I am willing to go to any
school in the system without regard to race and
teach the subjects that I am qualified to teach, but
I want to tell you, sir, that I do not feel that I am
qualified to teach in a predominantly-white school,”
if it’s a Negro teacher, or vice versa; that, “I am.
willing if you want me to go, I will go, but I tell
you that in my opinion I am not qualified to do that” ;
what would you do if you were Superintendent?
The Witness: In that case I would have a tendency
not to have the person transferred, unless my own
reasoning and my own experience with this person
previously, what I knew about this person, would
— 8 3 -
lead me to believe that this person has this willing
ness and has always done a good job before, has
tried and has worked hard, and I can therefore put
her in this position and she will probably succeed;
then that kind of judgment can be made. I think
that the Superintendent and the staff will have to
be given some leeway.
# # * # #
-—84-—
Redirect Examination by Mr. Nabrit:
Q. On cross examination I believe you told Mr. Spears
that you didn’t see anything wrong with the School Board
policy of hiring the best teacher that’s available for a
Myrl G. Herman—for Plaintiffs—Redirect
132a
vacancy. What would be your view of a School Board
policy that hired the best white teacher for a vacancy in
a school with white children and the best Negro teacher
for a school with Negro children? A. Well, that’s not
what I inferred and that would not be the best way to
get the best person for the job.
Q. This morning in your examination you made refer
ence to the hiring policies of the Durham system, which
you said you approved. To what were you referring?
A. I was referring to the statement of policy prepared by
the school district.
Q. A written document that you read? A. That’s right.
That did not contain anything with reference to the race
question.
—85—
The Court: I ’m sorry, I did not hear the last
part of that ansvrer, “not” something.
The Witness: The material that I read had no
reference whatsoever to the race question in refer
ence to employment.
By Mr. Nabrit:
Q. You testified also in response to questions by counsel
for the Board and perhaps in answer to the Court’s ques
tion on the subject of the willingness of teachers to teach
in a different situation from the past, willingness to teach
in a school with children of the other race with a faculty
of the other race, and you thought they should only be
assigned where they were willing. Do you apply that to
the new employees who are coming into the school system?
A. No. I think that when people are being interviewed
for a new position, as new people within the school sys-
Myrl G. Herman—for Plaintiffs—-Redirect
133a
tem, that they should be aware of what that position is
that they are interviewing for or in general. There are
occasions when a school system has a very specific posi
tion that may be a Negro or a white school. Regardless
of who is being interviewed, they should have this made
clear to them, that they are being interviewed for this
particular position. There are times when you do have
to do some blanket hiring and employing. You know, for
example, that you usually have from year to year a num
ber of vacancies which occur, say, at the second grade;
— 86—
this occurs every year, you have a turnover rate. And
sometimes you try to beat other school systems to the
punch by employing people you would like to have before
other people get them. In other words, if you wait too
long—you know you’re going to have vacancies and you
know if you wait, you won’t have a wide number of people
available to interview, so you may hire on a blanket basis
under some conditions.
I don’t know whether the Durham system does this or
not but most school systems do. In most eases you are
employing people without their full knowdedge of the
exact position they are going to have; and in those cases
you would employ the best person you could, and again
without reference to race.
Q. In other words, at that point would you consider the
teacher’s attitude with respect to willingness to teach at
a school with children of another race? A. I would refer
to there is a possibility of being assigned, say, to one
school or another. But I certainly would not—you know,
I would pay no attention to whether they said—If they
said, “I ’ll only teach only in a white school,” you would
have to say, “Well, this is a blanket type of thing. You
Myrl G. Herman—for Plaintiffs—Redirect
134a
may be appointed to either school.” You wouldn’t take
this into consideration.
Q. Would there be other situations where perhaps at
the end of the year, close to the beginning of a new school
year, where you would be hiring people not for a specific
•—-87—
job! A. Yes. Sometimes you’ve got vacancies which occur
on towards the end of the summer, even before school
starts, and there’s nothing you can do about them. A
woman’s husband is transferred or someone becomes ill
and will not be able to teach, or these kinds of things:
these are the vagaries of the employment in the school.
In these cases, too, I think you need to employ the best
person without regard to race, and this should be a ques
tion really.
Q. You were also asked questions with respect to the
National Teacher Examination; you indicated you ap
proved of the use of them. Would you indicate specifically
what you think it should be used for, whether it should
be used as the sole criteria or in connection with other
things? A. Well, it should not be the sole criterion by
which a person is judged. There are other factors which
would be important, and these were mentioned before.
But as I understand it, according to what I read, the
Durham school system would use this as sort of a minimum
screening device. In other words, if you made a score of
500 you then became eligible for interview, at which time
other things might be considered.
I might say this, by the way, I would not take the
National Teachers Examination score as the basis; in
other words, if somebody made a 781 and somebody else
— 88—
made a 780, I don’t think that’s a reason for taking one
Myrl G. Herman—for Plaintiffs-—Redirect
135a
person over the other in that that test is not that reliable.
But if you are going to use it as a minimum screening
device—in other words, anyone over 500 will he con
sidered by the school system and not those below—I think
that would he adequate.
Mr. Jarvis: What was the last thing you said!
I ’m sorry, I didn’t hear it. What was the last thing
you said?
The Witness: I said if you used the 500 level as
the screening level, everyone above would be eligible,
those below not eligible, I think that would be an
adequate way in which to use it.
By Mr. Nabrit:
Q. What about using it for evaulating present em
ployees? A. I don’t think you actually can do this. You
have already registered your confidence in people who
already are employed in the school system. You have
some of them who probably have been employed for
many, many years, and I don’t think that you can be
retroactive with a group of people who have already served
the school district for perhaps a long period of time.
Q. Now you answered questions with respect to your
view of the free choice plan for assigning children and
I think you indicated that you would have to know more
about the particular community. Could you indicate what
- 8 9 -
in your view are the variables, the things that would tend
to make it better or worse? A. Well, open transfer sys
tems, open enrollment plans operate more effectively when
you have such a thing as, say, a homogeneous social class ;
that is, both Negro, white, Chinese populations, what have
Myrl G. Herman— for Plaintiffs— Redirect
136a
Myrl G. Herman—for Plaintiffs—Redirect
you, would be from the same social class level. There
would tend to be no restrictions here in terms of the way
\ people would move. But if you have multiple class levels,
i then people would tend to be affected by whatever their
social class distinctions are.
Another thing you are affected by is something like
the history of an area. If you have the history of a com
munity, it may be such that some things would be un-
1 desirable and some things would be desirable, but the his-
I tory of a community would affect how people would
decide where their children would go to school under an
i open transfer system.
Another thing would be general community attitudes.
This may be somewhat repeating the history thing. But if
you look at the present attitudes that prevail in a com
munity, which may have just been arrived at yesterday
—after all, attitudes can only be a day or two old—but
\ attitude structure of the people in the community again
would have some effect on an open transfer system, would
either inhibit it or promote it ; and I don’t know anything
about those variables in the City of Durham.
—90—
Q. What- would be your view of beginning teacher de
segregation by starting out with a very small number of
Negro teachers in white schools, say one single pioneer
type of thing! A. Well, I would say if this were to be
done in any one school, there should be at least two teach
ers who are not part of the predominant group, mainly
because a person who would be absolutely alone, say,
among a large group of people, would feel left out com
pletely. All of the research on group dynamics points to
the fact that a person who is screened out or ostracized
by a group or who feels different than a group, regardless
137a
of how the group feels about him, would not be in a very
good psychological position. I don’t think he would be in
a good psychological position to teach so he would need
some reinforcement from another individual. I really think
the number needs to be substantial enough that you can
say you are actually carrying on desegregation or you
shouldn’t do it. You know, it’s not worth doing if you’re
going to do some things which defeat the ends here.
In other words, you might—this could be an instrument
for destroying desegregation, so to speak, if you had so
few teachers in a building that they felt somewhat iso
lated; you could destroy the purpose of the whole thing.
So the number should be substantial enough that people
have others like themselves with whom they can relate,
at least occasionally or have lunch with them or talk with
them about some problems they may have in the building.
—91—
Q. You testified that school authorities have to use their
judgment and their discretion about who to pick for a
particular job or who they think will do, both in the hiring
process and in transfer. Suppose this School Board de
cided that in its best judgment only Negro teachers were
qualified for a Negro school; what do you, as an educator,
think of that! A. Well, I think the School Board in that
case would have to examine its conscience and its own
convictions because if they were to apply themselves to
hiring the best people for any position, this would not be
likely to happen. It might happen in an instance, but not
in a number of instances.
Myrl G. Herman—for Plaintiffs— Redirect
Mr. Nabrit: Your witness.
138a
Recross Examination by Mr. Spears:
Q. I believe you stated that you were not familiar with
the variables here in the Durham city school system? A.
No.
Q. Therefore, you have no opinion on that, do you? A.
No.
Q. That is, as to the adequacy here of the free-enroll-
ment policy? A. No. I don’t contend to make any con
jectures here about what should be true here. I can only
—9 2 -
say that there are general principles that operate; there
are general problems other districts have had, and so forth.
Q. And they would be general but they would have to be
applied. They might not be applied in one locality and
applied in another locality? A. That’s true.
Q. I believe you stated that if you have a minimum of
500 score on your National Teachers Examination and any
person who makes an application with a score of 350 or
450, you simply do not consider those? A. If you have
that as a policy, then that would be true and would be
applied to everyone.
Q. Yes, and then all above 500, you could then consider
those and determine which is the best-qualified person to
fill any position? A. Yes, without reference to score any
more except to wide differences. It might be that 800, you
know, would be better than 600.
Q. In other words, if they are under 500 simply don’t
ask for an interview; if they are above 500, then if other
statements in the application, experience and so forth and
educational qualifications, then you could ask for an inter
view? A. Yes.
Q. But a teacher who made 800 might be as good a
teacher as one who made 700, isn’t that right? A. That’s
Myrl G. Herman—for Plaintiffs—Recross
139a
Myrl G. Herman—for Plaintiffs—Recross
■—93—
true. You can use the score if there is a wide difference,
only I think you are a little bit risky in using the scores
of the National Teachers Examination by using these dif
ferences because if you look at the scoring process itself,
the way the norms were set up, the difference between a
700 and an 800 score on the test is maybe only one or two
test items; it’s a very small number of items, so it’s really
not too reliable. But if you are using a screening point,
use that point and let the rest go.
Q. You use a cutoff point and then after that, you inter
view them? A. Yes.
Q. And it is proper to have an interview with a teacher
you are going to employ, isn’t it? A. I should say it is.
Q. Because there are intangibles other than the actual
score on the examination? A. Yes.
Q. And taking all of those into consideration, then you
would say the Board should employ the best teacher avail
able who made application for that particular opening in
the school? A. Yes.
Q. Now you speak about vacancies; a vacancy in the first
grade and a vacancy in the seventh grade, they are both
—9 4 -
vacancies, aren’t they? A. Yes.
Q. So if you want to employ a teacher for a vacancy in
the first grade, then you look for an efficient, qualified
first-grade teacher, don’t you? A. You look for a teacher
who has primary training and. who will do well in that job.
Q. Then if you get into junior high school, say the
seventh, eighth, and ninth, or senior high, tenth, eleventh,
and twelfth grade, and you have a vacancy there, you are
looking for the best-qualified teacher to fill that vacancy?
A. Yes.
140a
Q. Now the teachers that have already been teaching
for a number of years, that experience is worth a lot to
the local school system, isn’t it, so long as they meet the
other qualifications? A. There would be a debate on that.
I think anyone who is in the profession would point out
to you quickly that somewhere around the fifth year there
is usually no appreciable—What shall I say?—improve
ment because of experience. Beyond that point some other
factor or variable has to come into operation, such as his
further graduate training or something of that sort. But
most of what one will learn from experience is learned
in about the first five years. However, almost all school
systems place a value on experience; we all accept it. The
—95—
longer you are with the school system, the more money
you make, just as a general factor, accepted everywhere.
Q. I believe in North Carolina after thirteen years you
get the maximum salary for your certificate, isn’t that right?
A. Yes.
Q. So they consider in North Carolina—you’re not quar
reling with that—thirteen years experience is considered
valuable as far as compensation is concerned? A. I accept
whatever is done by the school system or by the State by
statute in this respect. There is nothing that can be done
about this, but the actual facts of it are I think that around
the fifth year we tend to get minimal improvement as far
as a person’s experience is concerned.
Mr. Spears: That’s all. Thank you.
Redirect Examination by Mr. Nabrit:
Q. One more question. When teachers are trained to be
teachers, do they specialize in a particular grade or groups
Myrl G. Herman—for Plaintiffs— Recalled—Redirect
141a
of grades or what? A. Well, if they are elementary-
school teachers, they ordinarily stipulate their training in
this way: A kindergarten teacher ordinarily does take
some kindergarten courses separate from primary, but
she is also considered a primary teacher and she takes
primary training.
Q. What are the primary grades? A. The primary
—96—
grades would be kindergarten through the third grade,
ordinarily. For the middle grades or the fourth through
sixth grade, they would take a similar training but it
would be slightly different in some cases. So you’ve got
a specialization, primary, kindergarten, and middle grades.
And then junior high school usually has a separate certi
fication and sometimes in some states—I don’t know how
it is here—but in some states junior high certification is
different from secondary schools certification; in others
it’s the same. I don’t know which is true here.
Mr. Nabrit: That’s all.
Mr. Spears: All right, come down.
The Court: Mr. Herman, let me ask you this
question to clarify it. I ’m not sure. I f you were
Superintendent of the schools and you were trying
to do the fair and right and best thing and not dis
criminate against anybody and you had some va
cancies, we’ll say, in junior high mathematics and
a teacher came in with a high score, with good aca
demic training and experience, good personality, and
that teacher says, “Well, I will accept your employ
ment. I would like to be a part of your system; I
will come into your system. But I will only teach
in a Negro school” ; or another person said, “I will
Myrl G. Herman—for Plaintiffs— Recalled—Redirect
142a
accept it. I will only teach in this school, but I will
be glad to accept employment.” You wouldn’t know
—97—
whether you were going to get another applicant
that anywhere near met the qualifications of that
teacher. You had no more. What would you do
with a situation like that?
The Witness: Well, I would make it clear to the
person to whom I was talking that no such thing
could be done, except that we would try to accommo
date them if they felt this way, but future assign
ment might have them to be transferred. Because
this person was excellently qualified, was an excellent
teacher, I might go over to the Negro school and
ask a teacher there if she would like to move to a
white school and I would put this person in there
with the full knowledge that she had not put a club
over my head and that, you know, “I would feel
free to transfer you in the future.” You can lay it
on the line with them.
The Court: But if they said, “I will not accept
employment if I ’m going to be transferred. I will
accept employment for this purpose and for no other.
If you want me, all right. If not, well—”
The Witness: Well, if you hold the Sword of
Damocles over my head like that, no, I will not
employ you.
The Court: All right.
The Witness: No, I don’t think a school system at
—98—
any time should be threatened or clubbed into con
ceding in this ease.
Myrl G. Herman-—for Plaintiffs— Recalled—Redirect
143a
The Court: Well, Pm not talking about threaten
ing. A person says, “I will accept the employment
under certain conditions.” Like a person at a bank
might want to employ a man and they say the con
ditions of employment are so-and-so, and they say,
“No, I will accept your employment on these condi
tions,” It might be a salesman, the man is trying
to employ him and he says, “You’ll have to cover
seven states,” and he says, “No, I can’t be away from
home that much but I will take four states.”
The Witness: Well, in the professional ranks of
teaching you just don’t let things like this occur.
You know it is holding a club over our head, the way
we would accept it; I ’m sure Mr. Hannen would
accept it that way, too.
The Court: Well now, there is just one other
thing. You said something about in this freedom of
choice or transfer of students, you said you felt that
it would be freely exercised if the students of all
the races involved were of the same general—I don’t
think you used “economic”-—
The Witness: I said socio-economic.
The Court: —status, then there would be more of
—99—
a tendency, but that as that widened there would be
less. What has been your experience as to this: Is
it or is it not true that you would have that same
problem, without regard to race, in every nation on
the face of the earth that there is a natural tendency
always for people to seek association, social and
otherwise, with people that they have something in
common with?
The Witness: This is true.
Myrl G. Herman— for Plaintiffs— Recalled—Redirect
144a
The Court: Isn’t there a tendency for a person
working in the hank down here making $10,000.00 a
year to feel ill at ease living in a neighborhood with
people making $200,000.00 a year, who send their
children to Europe every summer and each one of
them have an automobile, and he can’t possibly have
that?
The Witness: Yes, I think there is a tendency for
people to feel like this. However, I think when a
school system has a program—let’s say if you’ve got
this open-enrollment program, you have it as a pro
gram because you support it, because it is your pro
gram; you’ve organized it. Then I think you also
have an obligation to implement it; in other words,
you should work at it. You shouldn’t say we have
this and then just let it sit from there on because
a lot depends on the educational level of people.
— 100—
I Uneducated people do not know the value of educa
tion and they do not respect it as much as others,
I nor do they know what might be available elsewhere
I in terms of an education; and so they aren’t likely to
have their children go somewhere else. This is sort
of a basic weakness of people.
But I think a school system should work at im
plementing any program which they support. I might
say that school systems which do work at imple
menting an open-transfer system probably eventu
ally will have bigger problems than they ever had
before because if they really work at it and the
open-transfer system is taken advantage of, you tend
to get a great many people wanting to get in the
Myrl G. Herman—for Plaintiffs— Recalled—-Redirect
145a
same building; then you have to start making de
cisions.
The Court: Well, this has nothing to do with it
and we’ve got too much to do, but I was just inter
ested in your experience in this field, if you thought
a school board would be making a contribution to the
welfare of the children: Say there is no question of
race involved, let’s say they are all white, and you
have one community over here with a junior high
school serving an area and they’re in a lower eco
nomic strata; the children have adequate clothing
and everything but they do not have a great deal,
but they are in the same general economic strata.
— 101—
Then the adjoining school happens to be a section
where the average income of the parents is $15,000.00
a year more and those children have a lot more
wealth. Do you think a school board would make a
contribution to either of those groups by encouraging
each to go to the other school?
The Witness: My answer would be no, and I would
have to qualify it just to some extent and that is
unless there was some program which had been or
ganized to take care of this in some way. This would
be a difficult program to organize, by the way.
The Court: Well, it’s just a thing that sort of
caught my interest and, as I say, that last question
has no relationship to what we are talking about.
The Witness: Well, there would be a lot of forces
here which would be negative.
The Court: Well, thank you, Mr. Herman.
The Witness: Thank you.
Myrl G. Herman—for Plaintiffs— Recalled—Redirect
146a
Dr. Joseph S. Himes—for Plaintiffs—Direct
— 102—
* * * * #
Doctor Joseph S. Himes was called as a witness on
behalf of the Plaintiffs and, being first duly sworn, was
examined and testified on his oath as follows:
Direct Examination by Mr. Nabrit:
Q. State your full name. A. Joseph S. Himes.
# # # # #
By Mr. Nabrit:
Q. Mr. Himes—Doctor—what is your profession? A. I
am Professor and Chairman of the Department of Soci
ology of North Carolina College.
Q. Would you give us a brief resume of your educational
background? A. Yes. I have a Bachelor’s and Master’s
Degree from Oberlin College, a Ph.D. from Ohio State
University, and one year of post-doctor study at the Uni
versity of California at Berkeley.
Q. And what has your work experience been in the pro
fessional field? A. Well, my major experiences, I did so-
—103—
cial work in Columbus, Ohio, for about eight years. Then
I have been at North Carolina College since 1946; now while
there I taught in the summers at Sacramento State College
in California, Syracuse University. I taught one year as
a full Professor at Helsinki University in Finland, and last
summer I taught for the University of North Carolina in
an extension summer institute in Winston-Salem. These
are the main ones.
Q. Are you a member of professional societies in soci
ology? A. Well, I belong to a good many; if I may men
tion just the more important ones, perhaps. I am a Fellow
147 a
of the American Sociological Association. I belong to the
International Sociologists Association. I am on the Board
of Directors of the National Council on Family Relations.
Perhaps the most important is that I am at the last moment
President of the Southern Sociological Society. And there
are some others if you would care to have a whole list.
Q. No, that is sufficient enough. How long have you lived
in the Durham area! A. Since 1946.
Q. Now, Doctor Himes, do you have an opinion with
respect to the value of teacher or faculty desegregation
and the effects of desegregation or segregation on children,
Negro and white children, in the schools! A. Yes.
—104—
Q. Would you set forth—would you explain your opin
ion and your views and your reasons for them to His
Honor? A. There’s a great deal of research and profes
sional judgment with which I agree that argue that the de
segregation of faculties in public schools benefits the chil
dren. To mention some of the points, for Negro children in
desegregated schools to have some Negro teachers about has
important morale value; here is somebody with whom they /
can identify from their own group. It gives them a sense j
of belonging to the school organization.
If there are Negro teachers on the school faculty, this
shows the children that they, as Negroes, are more fully /
included in the school’s organization, the school process, f
than if all the teachers are white and most of their school
mates are white.
Now the result of this is emotional and psychological.
It results in higher morale; it pays dividends in greater
motivation for these children. They feel less threatened
by the school situation and hence they are more willing to
try. They feel more enthusiasm about their schoolwork
Dr. Joseph S. Himes—for Plaintiffs—Direct
148a
under these circumstances, and thus their potentialities for
successful achievement and performance are more fully
released. As a result, for Negro children in a school of this
sort where there are Negro teachers, generally speaking
their performance is better, their morale is higher, their
—1 0 5 -
sense of belonging is deeper.
Now to have Negro teachers in schools with white teach
ers where children are mixed has benefits for the white
children as well. I think there is a great deal of opinion and
research that stresses this point, as Mr. Herman said this
morning, bringing out that children who are today going to
school, to public schools, particularly those in the elemen
tary and junior high schools, will in ten or fifteen years be
entering the military service and the labor market, labor
force; and these are parts of our world which are now very
substantially desegregated and which will in ten or fifteen
years be even more desegregated. And these children are
going to have to train with other people of both races.
They may often be under the direction of officers of the op
posite race. They will work with persons of the opposite
race and under the supervision of, sometimes, often, per
sons of the opposite race.
To have an interracial experience in elementary and
junior high school and high school now where both their
schoolmates and their teachers are racially mixed, prepares
them in a reality situation for the kind of world they’re
going to have to live in when they’re out of school. This is
one of the benefits for white children, that they will have
an actual experience in school where supervisors and mates
—1 0 6 -
are both white and Negro. This is analogous to what they
will experience, at least many of them.
Dr. Joseph S. Himes—for Plaintiffs—Direct
149a
And children—One of the great resources of American
society, American communities, is the idealism of people.
This is what a great deal of America is about and children,
young people, have much more of this than we older, more
experienced, and I ’m afraid sometimes cynical, people.
Now if children find in their schools that the democracy
that they hear about a good deal is exemplified in the fact
that all the people in the community, without reference to
color, are part of the school situation, that ideals are the
same—this is so tremendously important, that society can
be released into actuality into their lives. This I think is
an important benefit to our children.
Then a third thing that the white children can derive
from this kind of school experience is that—with Negro
mates and Negro teachers—is that they have a wide experi
ence with more different kinds of people, and I think we
believe very much that this is a good thing for people. We
spend a lot of money going to Europe and other places to
see other people, other kinds of people. Well, we might as
well get it right here, to see other kinds of people, people
who are part of our community, and come to know them.
Now I think the mixing of Negro and white teachers in
school faculties has advantages to the teachers—
—107—
Mr. Jarvis: Object.
A. —and if I may—
Mr. Jarvis: I object at this point, may it please
the Court.
The Court: Overruled. Go ahead.
A. If I may just mention one or two points here. In a
school where there are Negro and white children and there
Dr. Joseph 8. Himes—for Plaintiffs—Direct
150a
are also Negro teachers along with white teachers, the Ne
gro teachers may if necessary serve as a resource for the
white teachers. In the event they have questions or things
they don’t understand, they can turn to their white faculty
mates for interpretations and expressions and understand
ing of the problems that they may be having with Negro
children. It’s resource ready to hand in their colleagues,
to work together in a situation of this sort; and I think
this would be particularly true with some of the first white
and Negro teachers that work together.
It’s a challenging experience primarily because it’s new,
but because, in our community I ’m afraid, also some dan
gers. It’s a challenging experience and it may very well
draw out more of the best from good teachers than we
might otherwise get.
Then again I think it’s desirable, it’s beneficial, for Ne
gro and vThite teachers to work together; again, it’s an en
riching experience. They work with, they learn about, they
— 108—
come to understand people in the community that they
might never otherwise notice, in this way.
I am saying that as I see it, and I think there’s a great
deal of evidence in the field of sociology to suggest, that
the mixing of Negro and white teachers has benefit for
Negro children, white children, and all teachers.
By Mr. Nabrit:
Q. Doctor Himes, when you refer to evidence or sources
in the field of sociology, do you have any specific studies
in mind? A. Well, I can suggest some sources. There have
been, as Mr. Herman said this morning, a great many
studies. This is a subject that has been studied a great
Dr. Joseph 8. Himes—for Plaintiffs—Direct
151a
deal, and in the last ten years particularly. Let me men
tion three sources that are themselves pretty comprehen
sive summaries of many studies.
One of these is a very excellent little book entitled “ The
American Negro Profile” by Thomas Pettigrew of Harvard
University. In this book Professor Pettigrew has summar
ized from the point of view of a social psychologist prob
ably at the time of its publication everything that was rele
vant on this subject. It was published I think perhaps
about five years ago.
There is a rather monumental and exhaustive summary
of research in the field entitled “Racial and Cultural Minor
ities” by George Simpson and J'. Milton Yinger of Oberlin
College. I have nothing to do with them. This is about the
-—109—
most comprehensive compilation and summary in the field
and there is a great deal of material relating specifically to
school matters.
Another book that—
Mr. Jarvis: Pardon me, Doctor Himes. What was
the name of that last book? “Racial and Cultural—”
The Witness: “Racial and Cultural Minorities”
by Simpson and Yinger.
Mr. Jarvis: Yinger?
The Witness: Yes, Y-i-n-g-e-r.
Mr. Jarvis: Thank you.
The Witness: Yes.
Continuing:
A. There is another fairly recent book—although it is not
devoted entirely to Negro-white problems, it does have a
very long section—and it’s called “Minorities in American
Society” by Marden and Meyer.
Dr. Joseph 8. Himes—for Plaintiffs—Direct
152a
Now there is a great deal of other material but I mention
these because in this way I can sort of capture a great deal
of material in three titles.
I might mention one article that I would recommend very
strongly. I am not altogether sure about the title of the
article, but I can give you enough of the source that you
can find it if you’re interested. It’s by Professor Daniel
Katz; it’s in the “American Psychologist” for June 1964.
Now Professor Katz as a social psychologist studied the
experiences of Negro and white children in desegregated-
— 110-
school situations and segregated-school situations both at
the public-school and the college level over a period of about
eight years, and in this article summarized his basic find
ings. Now he was interested in this article particularly to
answering the question on how does a desegregated experi
ence affect Negro children and white children, what factors
seem to be decisive in making for a good educational experi
ence or a poor educational experience.
One of the main things he says is that if the school oper
ates properly that a desegregated experience is a better
educational experience for all children, both white and Ne
gro, than a segregated school situation.
By Mr. Nabrit:
Q. Doctor Himes, have you any observations or opinion
with respect to the faculty integration in institutions you
have been connected with? A. Yes. Well, I suppose the
best experience, of course, is my own college where I have
been there now—this is my twentieth year; and ever since
I have been there we have had both white and Negro teach
ers. We have had Chinese teachers and Indian teachers,
Dr. Joseph 8. Himes—for Plaintiffs—Direct
1 5 3 a
and we have always had a desegregated faculty at our col
lege.
In my department—and I know it perhaps more inti
mately than any part of the college—we have a mixed fac
ulty. We have seven people; two of these are white teach
ers. It is my considered judgment that the mixed faculty
— 111—
provides a better experience for both faculty and for stu
dents. For us, the Negro teachers, to have white colleagues
provides both a real and psychological, sometimes a vicari
ous as well as a real intellectual and academic stimulus.
Frequently our white colleagues have access to experiences
that are not accessible to us. We can get these experiences
vicariously from them.
To take one specific illustration, from my colleagues in
my department I get a great deal of the—well, it’s really
the important professional gossip, if I may use the term, of
what goes on at the University of North Carolina and Duke
University and other universities where I don’t have the
contacts. Now this is professional knowledge. I call it
“gossip” because it’s not what you find in professional
journals, but it’s important to a professional.
Let me give you another illustration of the kind of bene
fits. One of my colleagues in sociology has a Ph.D. from
Ohio State University; therefore, he has professionally
quite good training; he is a competent sociologist. One of
my white colleagues only has a Master’s Degree, but she
has had a tremendous experience traveling in Europe and
South America, Latin America, and in Asia. She has had
a vast experience working in international relations at the
semi-diplomatic and diplomatic levels. She speaks at least
three languages other than English. Now she is able to
bring to me and to my colleagues and to my students a
Dr. Joseph 8. Himes—for Plaintiffs—Direct
154a
— 112—
breadth and a depth and a richness of experience com
pletely outside of the narrow confines of sociology that my
colleague with the Ph.D. cannot bring, because he hasn’t
had this kind of experience.
In my judgment this is important for students to have
this kind of experience because again I remind you that our
students from North Carolina College are going to enter
an increasingly-desegregated world where the demands
upon them for knowledge and skill and performance are
becoming more and more like those of everybody else, not
just demands for Negroes; and we need to be able to pro
vide them more and more of the kind of thing that prepares
them for this sort of experience.
Well, this is sort of a long answer, but my point is that I
think, I think—in fact, I know, in terms of my own experi
ence—that the desegregated faculty has important benefits
for the faculty itself, for both the Negro and white faculty
members, and for our students in the college; and I would
venture to say that some of these same kinds of forces are
in operation at the public-school level.
By Mr. Nabrit:
Q. Doctor Himes, do you think the effect of a policy of
faculty segregation on the teachers and pupils—that is, a
policy of limiting the faculty at a school with all Negro pu
pils to Negro teachers and the faculty of white schools to
white teachers—what kinds of effects does it have on the
— 113—
educational process of the teachers and the pupils? A.
Well, people tend to infer from this fact of segregation at
both teacher and pupil levels that the Negro schools are
inferior to the white schools. Now I don’t argue that this
Dr. Joseph 8. Himes—for Plaintiffs—Direct
155a
is necessarily the fact, but the social realities and psycho
logical realities of our community life indicate clearly that
people draw this kind of inference. As a consequence the
Negro people, parents, teachers, children, resent the infer
ence of inferiority that results from enforced segregation.
They are discontent, they resent it, there is hostility; and
these are certainly not, I would argue, desirable sentiments
and attitudes of our general community life.
Negro children who go to schools or Negro teachers who
teach in schools which they think because they are segre
gated are inferior are likely to be limited in their motiva
tions to achieve and aspirations, the goals of their achieve
ment. I know this is true because one of my jobs is to
counsel the students in my department and particularly
when they come to be juniors and seniors and try to help
them to decide what they are going to do when they gradu
ate. And one of the most difficult problems I have is to get
Negro boys and girls who have all their lives lived in segre
gated Negro communities, attended segregated Negro
schools, worshipped in segregated Negro churches, to get
them to see that it’s possible for them to aspire to some
of the general advantages that exist in American society,
—114—
the scholarships and fellowships for graduate study, the
jobs, and so on. They come to us by the hundreds every
year and one of the hardest jobs I have is to get my stu
dents to see that: “This means you. This is not for white
people.”
One of the things that has happened to them in their
twenty years segregated life is that they are now convinced
that some things are for white people and some things are
for Negroes. Now I am arguing that one of the damages
that accrues from school segregation is this almost perma-
Dr. Joseph S. Himes—for Plaintiffs—Direct
156a
nent and hopeless damage to the motivations and aspira
tions and achievement levels of a substantial sector of our
population.
At the same time I can think of at least two other un
desirable consequences. Mr. Herman mentioned one of
these this morning. If a school district such as Durham
has only Negro teachers for Negro schools and white teach
ers for white schools, that tends to segregate the reservoir
of available teachers, to limit the reservoir. If a white
school needs a teacher and there are three available compe
tent, skilled, talented Negro teachers but they can’t teach
in the white schools, they have simply been ruled off limits
for their service in the school district.
This is an old experience and we know it; we have seen
it many times. Because we had segregation in professional
baseball for many years, we denied ourselves whole genera
tions of Willie Mayses and Jackie Robinsons; and once we
—115—
desegregated we have had a veritable explosion of fantastic
talent that before twenty years ago was sort of wasted in
segregated, kind of third-class baseball. Now this is one
of the social losses that accrue from a segregated system
Another very interesting consequence of a segregated
system is that although a school district or school board
may declare its policy as nonsegregation, but if it still has
schools which are segregated in faculties, some schools
which are segregated and all faculties or virtually all facul
ties segregated, it is really saying to the people in the
community that “what we do does not agree with what we
say.” And people, social beings, they read our actions ,
much more than they read our words; and the people in j
that community, both white and Negro, you see, will infer I
from the fact that faculties are segregated that it means j
Dr. Joseph 8. Dimes—for Plaintiffs—Direct
157a
segregation is what should be. And if the community is in
any degree committed to what all desegregation of the
schools and facilities means, the existence of segregated
faculties and segregated schools tends to negate this and
really to support the segregation that is said to be ended.
Now there are other kinds of consequences that he didn’t
mention, but I think this is all that I can think of at the
moment.
By Mr. Nabrit:
Q. Doctor Himes, as a sociologist would you have an
- l i e -
opinion with respect to the effect of faculty segregation on
the operation of a free-choice assignment system, for chil
dren to have a choice of schools? A. Yes. Well, this is
related to the point that I was just making. If there is a
very substantial amount of segregation in the school system
—I’m not talking about policy; I ’m talking about what ac
tually happens—if the faculties are completely or almost
completely segregated, if the number of children involved
in desegregated schools is minimal and only Negro chil
dren, no white children, one of the things this says—and
I am just fairly sure—it says to the Negro people that the
freedom of choice is not really meant, that they aren’t
really free, they are free in words but not in substantive
•reality.
For example, in this community my impression is that
the children—most of the children, Negro children, who are
already attending previously all-white schools are from
middle-class Negro families. Where these families—these
families have a feeling of security to take the chance with
this sort of thing, but many poor families with limited edu
cation and relatively low-status occupations, and limited
Dr. Joseph S. Himes—for Plaintiffs—Direct
158a
incomes, feel it rather risky; and they see—they see the
pattern of the community which tends to confirm to them
that this is not only risky but it’s not the general sort of
thing now I am doing.
— 117-
Now I want to argue quite strongly that whatever the
stated policy might he, if the facts of the situation seem
to say to people that segregation in schools both at the
level of pupils and teachers is the practice, then this will
tend to reinforce and support the pattern in the minds of
people and to discourage many Negro families and parents
and their children from making the break with the past
which is still the present.
By Mr. Nabrit:
Q. Does this have to do with the concept of group co
hesion? A. Well, yes. I think obviously these people, the
people I am talking about who feel it risky to take these
chances are— What I am saying is that these children and
these parents will feel more comfortable with their chil
dren attending a school where the teachers are Negroes and
feel that it is much more risky attending a school where
the teachers are white, the teachers are all white, where
most of their mates are white; this is a risky thing. They
feel comfortable, secure, with teachers and mates of their
own racial group, and hence they do not break out of this
—as one of the old sociologists said in a moment of pro
found insight, that “birds of a feather flock together”—
consciousness of kind. But I am saying that the conscious
ness of kind in this instance is reinforced by the practice
in the community.
—118—
Q. What happens too that’s sort of human nature prin
cipally if you desegregate faculties? A. Human nature?
Dr. Joseph 8. Himes—for Plaintiffs—Direct
159a
Q. Well— A. Let’s see now, will you say that again
so I ’m sure I am clear!
Q. What I am trying to say is—well, perhaps what
kinds—When you say people feel it’s “ risky”— A. Yes.
Q. —what do you mean by that! A. Well, what I am
suggesting is that parents are likely to feel that their
children will be mistreated by white teachers in a school
where all the teachers are white or mistreated by their
white mates, that the parents themselves are taking risks
of reprisals from their employers and people in the com
munity.
As a matter of fact, while I can’t argue that any of this
has happened in Durham, I do know that—-
The Court: You said what! I didn’t get that last
statement.
The Witness: I said I cannot argue, because I
don’t know the facts—I don’t know; I can’t argue
either way as to whether this has happened in Dur
ham.
A. (Continuing) —but I do know that it has happened in
other places, that these kinds of things have happened
—119—
both to schoolchildren and to parents of schoolchildren.
But now I would say—I would say that there is nothing
inevitable—as a sociologist, this is a professional opinion—
that there is nothing inevitable in human nature that would
tend to force people, sort of a natural force, to force people
to stay always in a group of people of their own kind. This
comes to be habitual but it is not human nature in the sense
that it is hereditary or a driving force. So if the social
forces permit it and encourage it, Negro children will go
Dr. Joseph S. Himes—for Plaintiffs—Direct
160a
into desegregated schools with ease. But it’s the social
pressures that tend to, not I think human nature or any
land of inherent forces.
Dr. Joseph S. Himes—for Plaintiffs—Direct
By Mr. Nabrit:
Q. What tendency does faculty desegregation have on
such a choice; in what direction would it tend to effect it ?
A. Faculty segregation or desegregation?
Q. Segregation. A. Segregation. Well, I would think,
as I suggested, that if the faculties of the schools continue
segregated, one of its consequences will be to encourage
parents, both white and Negro, to continue sending their
children to schools where teachers are of their same racial
group. White parents will continue sending their children
to schools—although they have freedom of choice—to
schools where the teachers are white. Negro parents will
tend—with, as we know, some exceptions—but will tend
— 120—
, to continue sending their children to schools where the
[teachers are Negroes. And thus our policy of free choice is
limited, negated, by our practice of faculty segregation.
Q. Doctor Himes, would you tell the Court about the na
ture of the program you worked on last summer? A. Oh,
yes, I ’ll be glad to. The Learning Institute of North Caro
lina promoted a summer institute on the problems of school
desegregation. It took place at the Advancement School
in Winstom-Salem and it was financed by a grant from the
Office of Economic Opportunities, and the program was
run by the Extension Division of the University of North
Carolina. It was for in-service junior high school teachers
and principals, counselors and supervisors in North Caro
lina. There were some 96 people enrolled in the program.
161a
I was employed as one of two people to teach a course, the
university-level course in Racial and Cultural Minorities.
The aim in this course was not to persuade people to
become unprejudiced or to become prejudiced. The aim
was not to tell people how to desegregate schools. It was
a study of the forces and factors involved in the relations
of a Negro minority in a white dominant group in the
United States, and in our region, particularly our region,
with the aim to understand what happens and to under
stand why it happens and to get some bases for planning
what might be done to change these problems, although
— 121—
we do not engage specifically in the planning.
Q. What was the racial composition of the student body
and who were they? A. They were all junior high school
people from the State; they came from about 56 of the
State’s 100 counties. About, almost even—I think there
was something like 52 percent white and 48 percent Negro,
and about the same kind of division between the men and
women in the Institute. They varied in age; I don’t know.
One gentleman I had in the class was well into his sixties,
I am sure; then there were some very young teachers there,
in their middle and lower twenties. Varying age and all
kinds of dimensions.
In addition to the course in sociology in minority rela
tions, each teacher-student took a course in education, lan
guage, arts, reading, math, or something of that sort. And
then there were structure activities, direct discussion group
activities involving specific problems in school desegrega
tion in the 56 counties and a number of school districts
in the State, trying to turn up some ideas of what people
might do specifically when they went back to their home
communities in helping the school district to comply with
Dr. Joseph 8. Himes—for Plaintiffs—Direct
162a
the desegregation process as required by the Civil Rights
Law of 1964.
We all of us lived at the Advancement School so we had
many opportunities for personal contacts, to talk together,
— 122-
play together, and work together, and provide people not
only a chance to learn about—Negroes the whites and
whites the Negroes, to learn about one another from read
ing books, but to learn about one another from living and
working and playing together, and talking about what was
for them a very real problem, hoping to find some answers
or perhaps primarily to give some direction—not specific
answers, direction-—in how to approach the problem and
how to work at it to find answers to make up answers.
Q. Would you have a view with respect to the desirabil
ity of such a program on the part of desegregation pro
grams? A. Oh, I think they are virtually indispensable.
This experience last summer told me a number of things
and one of the things it told me was that given a situation
where we are all of us, every school district in the State is
under the pressures of the Civil Rights Law and the di
rectives of the United States Office of Education to move
forward on the front of pupil and teacher desegregation,
we simply must have experiences of this sort where we
learn all we can about the facts of intergroup relations,
where we learn a great deal more than we now know about
each other.
One of the calamitous consequences of segregation is the
fact that Negro people do not know white people and white
people do not know Negro people; and I say this with full
recognition that many Southern white people claim that
—123—
they know the Negro. The facts just do not support this
Dr. Joseph 8. Himes—for Plaintiffs—Direct
163a
allegation, and we need to learn each other because we are
going to have to more and more work together and live
together. And institutes of this sort and other kinds of
institutes where administration people and teachers of
both racial groups share experiences as people, share ex
periences as professional people, share experiences regard
ing common problems, seem to me absolutely inescapable
if we are going to both move forward and have harmony.
By Mr. Nabrit:
Q. All right, Doctor Himes, do you have any views with
respect to the method of desegregating faculties in the
public school system? A. Yes. I do indeed have some
views. I ’m not sure how popular they may be in some
quarters, but I am very much disenchanted with the free
dom of choice as the method to do the job. Now the Civil
Eights Law of 1964 gives school districts three years to do
the job, until 1968, and I don’t think it can be done by a
freedom of choice. I think that what we—
Q. Excuse me. You’re talking about pupils now or fac
ulty? A. I ’m—
Q. You’re talking about pupils? A. Yes, I ’m talking
about pupils. Is that what the question was addressed to?
Q. Wei, it wasn’t, but— A. Oh, I ’m sorry.
—124—
Q. Well, you go ahead and answer that one. A. Oh.
Well, I think one of the consequences of the freedom of
choice in many places is it’s going to aggravate the prob
lem and really not achieve the end that would be hoped
for. Now what it does, I think, is this. What’s involved,
our Congress, our Congress—we the people—our Congress
has decided for us, on our behalf and for us, that we must
Dr. Joseph 8. Himes—for Plaintiffs—Direct
164a
desegregate our schools. Now this was not “ those evil
people in Washington” ; this was our Congress that we
elected, I helped to elect to Congress, and the President—
so did the rest of us—and they made this decision for us,
that we must desegregate our schools, both pupils and teach
ers. And they have given us the responsibility of imple
menting this; they have given us certain broad—
The Court: Gentlemen, this is very interesting,
but his argument as to why he does or doesn’t agree
with the Courts or what they do, I don’t think is
making any contribution. If we are ever going to
get through—it’s very interesting and he’s a very
well-lettered gentleman and I ’m enjoying it, but I
don’t think we’re ever going to get through if we
continue with this. It’s irrelevant to the issue we’re
trying.
By Mr. Nabrit:
Q. Let me ask you about the method of desegregating
faculties. A. Methods! Yes.
—125—
Q. What sort of approach, concerning new employees and
old employees, and— A. Yes. Yes. Well, I would agree
pretty basically with what Mr. Herman said this morning.
I think that he said that under the direction of the Court
that the School Board ought to indicate that a reasonable
proportion of the present faculty should be desegregated
immediately. Now in my judgment, a “ reasonable propor
tion” does not mean any percentage as small as one per
cent or let’s say a sort of a—well, one teacher here and one
teacher there on a trial experimental basis. This I think is
unreasonable. I would say that a demand of the School
Dr. Joseph 8. Himes—for Plaintiffs—Direct
165a
Board to desegregate 60 or 70 or 80 percent is also unrea
sonable.
Now something that is not extremely large and virtually
impossible to handle or something that is not so small and
trivial, is what I mean by a “reasonable proportion.” These
might very well include and perhaps even be more than the
people who have voluntarily expressed an interest in ex
changes and working in other schools. This is a beginning.
I agree with Mr. Herman that new teachers as employed
ought to be assigned where needed without reference to
race in any respect and that in addition, in reference to the
other teachers who are already on the faculties, they
would be encouraged—and I want to stress this word be-
— 126—
cause it seems to me it’s important here—-they would be
encouraged to enter the desegregation process voluntarily
and express interest that they be involved in the process
and, as Mr. Herman indicated, there would be a matter of
five, six, or seven years that all of the faculty in the district
could be included.
Now I would think finally—well, two other things I would
think ought to be involved in such a program. One, that
the School Board must make a firm and clear policy on
this matter that is acceptable to the Court and that is
clearly communicated to all of the school personnel, the ad
ministrative and teaching personnel; and second, that the
School Board ought to carry on educational processes, pub
lic relations processes, so that all those people who will
be involved, the teachers, will know what they mean and
will come to get as much understanding of what it means
and does and its consequences as possible.
Dr. Joseph 8. Mimes—for Plaintiffs—Direct
Mr. Nabrit: Your witness.
166a
The Court: Let’s take a very brief recess.
(Thereupon, a short recess was taken.)
Cross Examination by Mr. Jarvis:
Q. Doctor Himes, you have related to us your opinion
as to some of the advantages that would accrue to the
system here as a result of desegregation of the faculties?
A. Yes.
—127—
Q. Do you agree with Doctor Herman that there might
also be some disadvantages, even if temporary? A. Yes.
Q. Would you elaborate, if you would, please, sir, on
some of the disadvantages that you might expect to result
from it immediately, and if there would be any long-range
disadvantages or impairment of the effectiveness of in
struction? A. Yes. Well, I don’t see that there would be
any significant long-range disadvantages from the deseg
regation of faculties. Now this is what you’re talking about
particularly ?
Q. Yes. A. Yes. Immediately, though, it’s entirely pos
sible that in a given school where the faculty is deseg
regated, if there had not been adequate preparation and
people—the people immediately involved, the initial ones,
were not willing to participate in this kind of situation,
that there might develop tension in the school situation
that would be disadvantageous, although I don’t say that
this would happen necessarily in every case. If the deseg
regation were adequately prepared and properly directed
and controlled, this need not accrue.
Q. But I take it you would agree then, or it would be
your opinion, that it is necessary for a good deal of “public
Dr. Joseph 8. Himes—for Plaintiffs—Cross
167a
relations work”—I believe as you put it— A. Yes.
—128—
Q- —in response to one of the other questions— A.
Yes.
Q. —and that it is not something that you would expect
should be done just immediately on a large-scale basis!
A. Yes, I would agree with that, with one proviso: that
you and I clarify what we mean by a “good deal.” Now
if by a “good deal” you mean five years of preparation,
I don’t think this is necessary. But I don’t think that
teachers ought to be picked up and transferred tomorrow
with no preparation of the teachers involved and of other
teachers in the system. Now this need not require years
and years to do.
Q. But it would require some time! A. Yes, indeed.
Q. And you would recommend that that be done before
there is any significant degree of integration? A. I would
recommend that that be done before and in terms of a
firm and clear policy by the Board of Education to do it.
Q. All right, sir. I assume that you would agree that
rapport between teacher and student and also between
teachers and principal, between parent and teachers, is
very important in an effective program of education? A.
Yes, of course.
Q. Do you think that there would be any difficulties or
would be any significant drop in the effectiveness or
quality of instruction that you might expect immediately?
—129—
A. In terms of this rapport?
Q. Yes. A. Yes. Well, I don’t see why there should
be any. We have ample experience in this community and
in neighboring communities in this State that tells us
that Negro professional people, teachers, social workers,
Dr. Joseph 8. Himes—for Plaintiffs'—Cross
168a
our public health people, can work in mixed staffs with
mixed clienteles and mixed families, families of the clients,
quite adequately, successfully, sometimes indeed even
brilliantly.
You see, 1 am saying that we have much evidence that
says to us that just because this professional social worker,
teacher, educator is a Negro and works with white col
leagues and white clients or pupils, that you have to have
that rapport; we know that this does not necessarily
happen.
Q. Well, 1 assume that you would agree that you would
be less likely to find bad rapport between a teacher and
older students perhaps, even at the university level, you
would expect less disadvantages and less effect on the rap
port from integration? A. No, I wouldn’t expect less good
rapport in the case of older students than in the case of
younger students.
Q. I meant it just the opposite; perhaps I didn’t make it
clear. Would you think that the relationship between an
integrated faculty and the pupils, the students, at the uni
versity level would probably be better initially than it
—130—
would be at an elementary level or junior-high level? A.
I see no reason whatever to expect that. There may be
reasons but I don’t see them, and the experiences that I
know about do not tell me that one would necessarily ex
pect this as a general principle.
Q. All right, sir. Do you think that the desire and the
attitude of the teacher is an important consideration in the
integration, whether to desegregate the faculties or not to
desegregate the faculties— A. Yes.
Q. —in a given situation? A. Yes. The desires and at
titudes of teachers are important factors in this situation.
Dr. Joseph 8. Himes—for Plaintiffs—Cross
169a
Q. And I gather that you would agree that that is an
appropriate area of inquiry, as to just what the teachers
and parents, the general acceptance that that might meet
in the community; you would agree that that would he
a proper area of inquiry, would you not? A. Well, with
teachers, I would agree that that might be a proper area
of education and public relations.
Q. That is not my question. Do you think it would be a
proper consideration for the Superintendent to inquire
into in the hiring of teachers for a given position, whether
or not she is willing to teach in a given position! A. Let
me see, I am not altogether clear about your question.
—131—
You are talking now about a new teacher, are you?
Q. Yes. Well, I ’m talking about a new teacher or an old
teacher. Don’t you think that the desire of a teacher to
teach in a given situation is important before an assign
ment is made? A. Well, I would make a difference be
tween the handling of teachers already in the service and
the employment of new teachers. May I take a moment
and be specific about this?
Q. Yes, sir. A. Let’s take a case of teachers who have
been in the service for fifteen years or a number of years
who have worked all this time in one school and who, be
cause of this fact, have a sort of an emotional vested in
terest in this school. Now this teacher’s desires and at
titudes might very well be very strong indeed. This would
be different, I think, from the case of a teacher who taught
in the same school only one year or two years, who is
therefore fifteen or twenty or even more years younger
than the first teacher. His desires and attitudes are likely
to be much less strong and deep; he is likely, by reason
of both his youth and his short training in this school,
to be a great deal more flexible. And still a third case is
Dr. Joseph S. Rimes—for Plaintiffs—Cross
170a
a teacher that you are just hiring who doesn’t yet have
any job in the system, who is not attached to any school.
I ’m not at all sure that his desires and attitudes need be
an important matter at all.
Q. Well, wouldn’t you agree that the attitude of the
—1 3 2 -
teacher has a great deal to do with the quality of instruc
tion in a system? A. Yes, I know. Of course I do.
Q. If a teacher is unhappy, she is not going to provide
the quality of education for the children that she would
if she were perfectly content with her situation; isn’t that
correct? A. If the Superintendent is interviewing an ap
plicant and this applicant says to the Superintendent, “I
will be unhappy unless I can teach in a particular school,”
this then becomes one of the qualifications of the teacher
for the job.
Q. Well, you would certainly agree that the teacher
should not be employed unless she was going to be happy
in the position that she was employed to fill? A. Yes, but
I don’t think—I don’t think—
Q. Well now, you agree with that, first?
Mr. Nabrit: Allow the witness to answer the
question.
A. I will agree with that only in general terms.
By Mr. Jarvis:
Q. All right, sir. Now— A. Generally speaking, I would
agree that desire and attitude are important factors.
Q. Well, would you think that as far as the effect on the
pupil is concerned that desire and attitude of the teacher
is any more important in the case of teachers with ten
years experience than in the case of teachers with one year
Dr. Joseph 8. Himes—for Plaintiffs—Cross
171a
Dr. Joseph 8. Himes—for Plaintiffs—Cross
— 133-
experience? A. No, I don’t think so. But you see, the
point I am saying to you is that the desire and attitude
will be different in these cases.
Q. Yes, but you would agree that in all cases you must
have a satisfied teacher in a given situation; if she is not
content with her position, she is not going to be as effective
as she otherwise could and should be? A. Well, I would
say this. I would agree that in all eases we would hope
to have a teacher who is happy because she desires and
is contented to teach in that situation.
Q. Well, you are familiar with the reservoir or supply
of teachers that we have in this area, are you not? A.
Only in a very, very general way. I am not in teacher
education; this is not my area of specialty.
Q. Are you aware of the fact that generally there is a
shortage of teachers for public schools? A. Well, my
impression is that the shortage insofar as it exists is more
severe for white teachers than for Negro teachers.
Q. You do understand that there is to an extent a short
age of teachers, that there is some difficulty in employing
enough teachers— A. Yes.
Q. Qualified teachers. A. Yes.
— 134—
Q. —to supply the needs in practically any system in
this area of North Carolina? A. Yes, although this short
age is variable by race.
Q. Yes, sir. Well, do you have any basis for your under
standing that there is not an adequate supply of Negro
teachers? A. Well, the basis for my opinion is discus
sions with the appointment officer of our college and at the
A and T College, some discussions with principals. Now
there is a shortage; I ’m not denying this. I am saying that
172a
my impression is that the shortage is not as severe in the
case of Negro teachers as it is in the case of white teachers.
Q. All right, sir. Well, being of course connected with
sociology and that science, you are familiar, of course, and
realize that we will have—we would have some Negro
teachers in this area and some white teachers in this area
who would just not be willing to teach in a school where
their race was in the minority; would you say that that’s
correct? A. This is very possible, yes.
Q. All right, sir. And if that is the case, you would
still suggest or still agree with Doctor Herman that in the
employment of new teachers, a teacher should not be em
ployed who was unwilling to teach in any place that she
might be assigned? A. Yes. I would certainly agree that
—135—
this ought to be one of the conditions of employment as a
matter of policy.
Q. Well now, Doctor Himes, assuming—or granting for
the moment that there might be some teachers who would
just he unwilling to teach in a school where the other race
was predominant— A. Yes.
Q. —and that some of those teachers might not be re
quired to accept the employment or for economic reasons
did not have to work—• A. Yes.
Q. —do you have some suggestion of how this inade
quacy of supply of qualified teachers might he filled? A.
Well, no. My answer to that would be to say this: that
a teacher who would refuse to teach in the school to which
he was assigned because this was a school where he would
have to work with people of the other race, was not quali
fied.
Q. Was not qualified to teach? A. Was not qualified.
I am saying that in my judgment, in my judgment, as we
Dr. Joseph S. Mimes—for Plaintiffs—Cross
173a
move forward a condition of qualification ought to be the
willingness to work in interracial situations.
Q. Well, do you consider that there would be any diffi
culty in finding enough qualified teachers who would meet
that requirement to fill the needs of the school system!
A. Well, of course, you are asking me to answer a question
that is impossible to answer in the first place and that I am
—136—
not competent to answer, and the best I can give you is a
guess. But I would guess that to make that qualification
would not increase the difficulty of finding enough teachers
by any very substantial amount. It would increase it some
but by only a relatively very small amount, would be my
judgment.
Q. Well, that “very small” group of pupils that you
could not find a qualified teacher to employ for them, what
would you suggest that those pupils do for an education?
A. I don’t admit that you’ll have that situation.
Q. You don’t admit that there would be any lack of
teachers? A. That you would reach the place any more
under the situation I am talking about than you have now
where you wouldn’t have teachers for the students. I don’t
think we are talking about a real situation, sir.
Q. You are not aware of the fact that there is a real
difficulty in finding enough teachers to employ— A. Of
course.
Q. —qualified teachers, even under the present policy?
A. Of course.
Q. You are not aware of that? A. I have the same
trouble in my department. Of course. But I am saying to
make this a condition of employment would eliminate only
a very small proportion of people from the reservoir and
that it will not make it—in my judgment, in my guess, it
Dr. Joseph S. Himes—for Plaintiffs—Cross
174a
—137—
would not make it impossible to find enough teachers. It
will make it more difficult but not impossible.
Now I tell you, sir, that I am not an expert on these mat
ters and it is only a low order of judgment or a guess
about it.
Q. All right, sir. Doctor Himes, assuming that such was
a requirement and that a portion of your complement of
teachers was required to teach under those circumstances,
for economic reasons they had to work—and of course that
is their profession; we assume they’re going to work in
their profession—and those teachers reluctantly accept em
ployment under those conditions, do you think that the in
struction, the education of the pupils in the system, will
be benefited by that situation? A. I ’m afraid I didn’t fol
low your question, sir.
Q. If it becomes necessary to employ white teachers to
teach in predominantly-Negro schools who do not desire
to do so but are compelled to do so— A. Yes.
Q. —do you think that their effectiveness as teachers
will decrease and thereby deprive the pupils of the quality
of education that they are entitled to receive? A. This is
possible. This is possible. But, sir, let me remind you that
there are teachers in the Durham school system and in
every school system who are teaching under circumstances
—138—
that they do not prefer. I will venture to say that there
are a number of teachers in the system who would rather
be in another school, who would rather be in another level,
would rather be teaching another subject.
Q. I believe you admitted that you are not qualified to
speak with reference to the teacher situation in that regard
though, is that correct? A. I— I—
Dr. Joseph S. Himes—for Plaintiffs—Cross
175a
Q. You are not familiar with the qualifications of teach
ers in the area? A. No, I didn’t say that. I said that I
was not competent to talk about the supply situation.
Q. The supply of teachers, qualified teachers? A. But
I am talking about teachers in the system whom I know
and teachers in other communities whom I know. I know
teachers who are teaching at, say, the elementary level who
prefer to teach at the high school level, who are teaching
in one subject and they are better trained in another sub
ject. Now they would rather be somewhere else than where
they are.
Now we already have this situation and, if it follows
that any teacher in a situation that he doesn’t prefer re
sults in the lowering of our teaching efficiency, we already
have it.
Q. Would you agree that it might be decreased even
more? A. It might be decreased by this situation, yes.
—139—
Q. All right. Now, Doctor, you referred to your own
personal experience out at North Carolina College— A.
Yes.
Q. —your association with the students in counseling
there and what not? A. Yes.
Q. You were apprised of the attitudes and the damage,
the hopeless damage that had been done to some of these
children as a result of the years of enforced segregation
in the public school system? A. Yes.
Q. You have no experience, I take it, where pupils have
been brought up in a free-enrollment situation such as we
presently have here in Durham now, do you? You haven’t
had an opportunity to talk with, to teach, or to discuss with
pupils out there, any of whom have been raised or edu-
Dr. Joseph 8. Himes—for Plaintiffs—Cross
176a
cated in a system where assignment to schools was made
on the basis of freedom of choice? A. No.
Q. All those that yon have talked to have been brought
up in strictly segregated situations, have they not? A.
Yes, but you see, sir, your question says something different
to me from what I think it’s saying to you. If I have ar
student in my college who graduated from a high school ini
a school district where all his life they had a freedom-off
— 140- - -
choice policy but all his life he went to the Negro elementary
school, the Negro junior high school, the Negro high school,
he was still just as segregated as if there had been no free
dom of choice.
Q. Well, what I am asking you— A. And he will be
just as damaged because he went to a completely-segre
gated school system, whether it was a free-choice segrega
tion or a non-free-choice segregation.
Q. Well, I am asking you have you come in contact Avith
a single student out there who Avas brought up—who had
the opportunity to attend the school of his choice such as
under the system that we have in Durham now? A. We
have had in our school and I have taught students who
graduated from Durham High School and Central High
School and Greensboro and other schools Avhich were for
mally Avhite schools, and they exercised freedom of choice
and went to these schools. I taught them.
Q. Yes, sir. That would be just for one year or so,
wouldn’t it, freedom of choice? You don’t recall a system
anywhere in the country where a pupil has had the ad
vantages or disadvantages of a freedom-of-choice system
for twelve grades of public school, have you? A. No. Is
there any system in the country where it has existed?
Q. Not that I knoAV of. A. Oh, I see.
Dr. Joseph 8. Himes—for Plaintiffs—Cross
Dr. Joseph 8. Himes—for Plaintiffs—Cross
—141—
Q. So you have no basis of comparison? We have
passed the stage here in Durham of segregating the sys
tem and we now have a system where every pupil in the
system can select the school that he desires to attend with
out regard to race; you have no experience with that type
situation, do you? A. No, sir. But we also have segre
gated schools in Durham.
Q. Do we? A. We do, where every pupil and every
pupil is all white or all Negro.
Q. Doctor Himes, isn’t that as a result of the choice of
the pupils in that very school? A. I’m not arguing that.
I ’m saying that is in fact segregation.
Q. Well, it is segregation by choice if it is so, isn’t it?
A. Well, in the literal sense, yes; only in the literal sense
though.
Q. I gather that you personally do not feel that a system
of assignments to public schools based on freedom of
choice is adequate? A. No. I was going to express my
views on this and the Judge thought it was irrelevant.
Q. All right, sir. Well, let me ask you this: Do you think
that a system of neighborhood schools is adequate? Do you
think that zones ought to be drawn around the particular
—142—
schools and every child in that zone be required to attend
that school regardless of his preference? A. Well, I’m not
sure; this is a very moot question and I ’m not sure whether
I agree with it fully. But I can say to you that this is his
torically traditional in the United States; until ten years
ago we had never in this country experienced freedom of
choice, until we decided this was one way to deal with segre
gation. Before this every child in America went to the
178a
school to which he was assigned and he had no choice ex
cept in very unique and exceptional cases.
Q. Do you believe in the principle of neighborhood
schools! A. I don’t know. I’m not sure about this.
Q. Well now, Mr. Herman stated that he thought that
there were certain advantages in having the pupils attend
schools in their neighborhood? A. Yes.
Q. That they should not be bussed across town to a
school in an entirely different situation, entirely different
neighborhood, and whatnot? A. No.
Q. That his experience was that the educational advan
tages to the pupil were better if they attended school in
their own areas and not transferred out somewhere; do you
agree with that? A. I ’m not sure. I just said that I ’m
—143—
not sure what my views are on the neighborhood school.
I can say this on the bussing— I can say two things on the
bussing. If we bus some Negro children across town so
that they can go to a school and desegregate or we bus some
white children across town so that they can desegregate a
Negro school, the bussing of children across town to school
is not at all a new phenomenon in our community. I live
directly across in front of Hillside High School and I see
every day busloads of children come into that school and
some of those busses pass almost in front of Durham High
School. Now whether they pass literally in front of it or
not, I don’t know. So bussing children is not a unique ex
perience within cities, to say nothing of our rural com
munities.
Now on the matter of bussing children for the specific
purpose of desegregation of schools, it’s a very disputable
matter; but I would argue there that the benefits to school-
children of going to school with children of different races
Dr. Joseph S. Himes—for Plaintiffs—Cross
179a
and background and so on, the benefits are great enough to
offset some of the inconveniences, one of which may be the
bussing.
Q. Doctor, do you have any—or are you qualified to
speak in the area of the qualifications of teachers who are
available for employment in this area, the quality and
qualifications of teachers in this area; are you familiar
with that? A. Do you mean in the reservoir?
—144—
Q. Yes, six*, in our own reservoir here. A. Only insofar
as they are graduates of my college.
Q. You have had occasion to come in contact with teacher-
graduates of other colleges, have you not? A. Yes, my
college particularly.
Q. You come in contact with graduates from your own
college— A. Yes.
Q. —in the teaching profession and graduates from other
colleges who serve this reservoir? A. Yes.
Q. Well, in your opinion would you say that the Negro
teachers are equally qualified with the white teachers to
instruct the pupils in this school unit? A. Yes. Well, let
me— In this Institute this summer in my classes, I had 45
students in my classes and they were almost equally divided
as to white and Negro. All of the principals, Negro and
white principals—they put all of them, and the supervisors
and the counselors, into one class and gave it to me. So I
taught principals and supervisors and counselors in one
class and I taught teachers in another class, both Negro
and white. Now this is one limited though very concrete,
specific experience where I had white and Negro principals
and white and Negro teachers side by side in a single com
petitive situation.
Dr. Joseph S. Himes—for Plaintiffs—Cross
Now that’s one kind of experience. I know a great many
— 145—
Negro teachers in the State. 1 taught some of them at onr
college for many years. I have met them in many other
kinds of contacts. Now I don’t know a great many white
teachers, public school teachers; I know some but not a
great many. I know some in this community.
On the basis of these experiences, I would say that there
is not a great deal of difference. There is not a great deal
of difference.
1 This summer I would get the papers that my students
j wrote for me. As you see, I don’t see well enough to read
i for myself so my wife read the papers for me. I would
! not let her tell me the names of the students. I would read
! the paper first, make a judgment on it, mark my comments,
yput a grade on it, and then say, “Who is it?” Unless the
student tipped his hand by a personal comment—unless the
student tipped his hand by a personal comment which told
me that he was white or Negro, I couldn’t tell. It happened
again and again and again.
Q. Well, Doctor, you are— A. I couldn’t tell. Now let
me add some more. Then at the end of the term when the
grades were ail compiled, it was tweedledum and twee-
dledee. They didn’t separate on the basis of race; they
separated on the basis of competence and race just disap
peared.
Q. In your personal acquaintance with Negro teachers
— 146—
who live in Durham and who teach in the Durham city
school system— A. Yes, I know many of them.
Q. —you don’t know of any who are employed by the
Durham city system who are not qualified to teach in the
system, do you? A. Oh, not in my judgment. But let me
Dr. Joseph 8. Himes—for Plaintiffs—Cross
181a
say this. I know a great many of the teachers and I know
they run the full gamut from talented, dedicated, highly-
skilled teachers, teachers with tremendous talent, teachers
with great personalities and great charm—
Q. Well, based on your professional experience— A.
—and at the other end there are some who are very poor
teachers.
Q. But based on your professional experience, you would
say that the same situation would be found with reference
to the white teachers in the system, would you not? A. I
would be inclined to say the very same thing, yes.
Q. So you are not of the opinion that the Durham City
Board of Education has been assigning inferior teachers
to teach the predominantly-Negro schools as compared with
the quality of teachers who have been assigned to teach
the predominantly-white schools, are you? A. No, not at
all. This is why I don’t hesitate to suggest that we desegre
gate these teachers, because the white parents and teachers
will not lose when they get Negro teachers.
—147—
Q. And the Negro pupils would not receive any better
instruction by being taught by a white teacher than they
would by being taught by a Negro teacher, isn’t that cor
rect? A. Not necessarily, no.
Q. Well, I believe you stated that you felt they would be
equally qualified? A. Yes.
Q. Well, do you think that race alone, the race of the
teacher, everything else being equal, is any benefit to the
pupil? A. But, sir, if you wanted to argue with me earlier
as you did that to put these white teachers over here in the
Negro school will conflict with their desires and attitudes
and they would be reluctant and unhappy and therefore
they would do a poorer job, then you’ve got to admit—
Dr. Joseph 8. Himes—for Plaintiffs—Cross
182a
Q. I’m talking about now, speaking—
Mr. Nabrit: Your Honor—
Q. —speaking with reference to—
Mr. Nabrit: Your Honor, the witness was inter
rupted.
The Court: Well, I think if the witness would
be a little bit more responsive; he has a tendency,
you ask him whether it’s night or day and he has a
tendency to tell you what it was the last four years.
If he would just be—I think he has a tendency to be
— 148—
a little bit argumentative. He’s trying to get him to
answer a question.
Mr. Nabrit: Your Honor, I think the questions
are argumentative and the witness is trying to—
The Court: I think they are to a degree; I agree
that all the questions that have been asked him have
been argumentative to a degree.
But go ahead and ask your question.
Mr. Jarvis: All right, sir.
By Mr. Jarvis:
Q. You are not of the opinion that the administration
of the Durham city school system has been assigning teach
ers of inferior quality to the predominantly-Negro schools
as opposed to the predominantly-white schools? A. No.
Q. Is your answer “no” ? A. No, I am not of that
opinion.
Q. That that is the case? A. No.
Q. And everything else being equal, you would not at
tach any significance to the race of the teacher with refer-
Dr. Joseph 8. Himes—for Plaintiffs—Cross
183a
ence to the quality of instruction received by the pupil?
A. Well, if I understand what you are asking, I think my
answer is yes. I guess—no, I—
Q. If the teacher—, If you have two teachers, one white
and one Negro, and they are equally qualified and they have
—149—
the same background. A. Yes.
Q. Their experience is the same, they come from the
same section of the country, say, and their vacations have
been spent in the same countries, if you attach significance
to that; all of those things equal. A. Yes.
Q. Is there any advantage to either a white or a Negro
pupil by being taught by a person with a different color
skin? A. Not in strict educational terms; that is, within
the strict confines of arithmetic or English or history. But
in terms of this broader culture that Mr. Herman talked
about this morning, there may be.
Q. Where the culture is the same, race then would not
be a factor, would it, if they are equally qualified and have
the same background and same culture? A. All right, if
you make them identical twins; in this sense, yes, it doesn’t
make any difference there.
Q. All right, sir. You would agree that the Negro teach
ers who teach in this system come from varied backgrounds
and cultures, would you not? A. Yes.
Q. And the same would be true of the white teachers?
A. Yes.
Q. Now if a Board of Education had a policy whereby
—150—
they employ the best qualified Negro teachers available to
teach in a given teaching situation in a predominantly-
Negro school and hired the best possible qualified wdiite
teachers to teach in a similar given situation in a predomi-
Dr. Joseph 8. Himes—for Plaintiffs—Cross
184a
nantly-white school, and if there was an equally-qualified
person available for both positions, I assume that you
would agree that there would be no discrimination as to
the white pupil or Negro pupil? A. Discrimination at what
point?
Q. A disadvantage in his educational opportunities. A.
Oh, no.
Q. There would not be? A. No, I don’t see that there
would be.
Q. All right, sir. And if that situation, if it were not
true, but you would have a vacant position in a Negro
school and a vacant position in a predominantly-white
school and there were two equally-qualified white teachers
and no qualified Negro teacher for that specific situation
and the Board assigned both of those teachers to those
vacancies, there would certainly be no discrimination as to
the individual pupils in that situation, would there? A.
Now are you saying assign the white teacher in the Negro
school this time and the Negro teacher in the white school?
Q. Yes. A. Crisscross them?
Q. No, I ’m not crisscrossing them. There is no qualified
— 151-
Negro teacher available. If you just have two qualified
teachers and both are white and it’s the policy of the Board
to fill those vacancies with those two qualified teachers,
then there would be no discrimination against the pupils,
would there? A. No.
Q. Well, Doctor Himes, are you familiar with the re
cently-stated policy of the Board of Education with refer
ence to the hiring and placement of teachers? A. No.
Q. You are not? A. No.
Q. You are not aware of the fact that the Board’s
Dr. Joseph 8. Himes—for Plaintiffs—Cross
185a
presently-stated policy is to hire the best-qualified Negro
teachers and the best-qualified white teachers to fill the
positions that are vacant in the system, and that they be
assigned to those schools with the provision that exceptions
will be made in the assignment where that is deemed
necessary for a sound educational system.; you are not
aware of that policy?
Mr. Nabrit: Object to the question. It’s mislead
ing.
The Court: Well, he said he was not aware of the
policy, period, and if he’s not aware of the policy
he couldn’t be aware of those things he was stating.
Mr. Jarvis: All right, sir.
—152—
The Court: I think there was something in the
file as to what the policy is. I’m not suggesting it
wasn’t an accurate statement; I don’t know. So I
will sustain the objection.
By Mr. Jarvis:
Q. Well then, Doctor, if you are not familiar with the
present policy of the Board in the assignment and placing
of teachers, then you have no basis for an opinion that the
present policy of the Board is not appropriate? A. No.
I don’t believe I have expressed an opinion on the present
policy of the Board.
Q. So you do not have any opinion as to whether or not
the present policy is appropriate or not, do you? A. No,
because I don’t know the policy.
Q. Now I believe you suggested in answnr to Mr. Nabrit’s
question that you had some very definite views on the
Dr. Joseph 8. Himes—for Plaintiffs—Cross
186a
methods by which desegregation might be accomplished
in the faculties? A. Yes.
Q. And you indicated that you agreed with Mr. Herman
in principle that no teacher should be assigned to a situa
tion where she was not willing to teach initially, that you
should only assign those teachers—those white teachers
to a predominantly-Negro school where the white teacher
is willing to accept that position? A. Well, but I qualified
that, if you will remember; I said that I felt this would
be relevant in the beginning with the teachers already in
—1 5 3 -
service, and I said that—mainly those teachers who ex
pressed a willingness to be involved in desegregation. If
I nobody expressed a willingness to be involved in desogre'A
1J gation, then of course some folks who are unwilling are
1 going to have to be involved. So this is my qualification:
that to begin and with the Teachers already in service,
hopefully with those who express willingness to switch;
and it may be necessary, to get what I call a reasonable
proportion involved from the very beginning, it may be ;
necessary to involve some people who are mildly reluctant. J
Q. Doctor Himes, I’m having difficulty following your :
reasoning that it is more important as far as the pupil is
concerned that the preference of an experienced teacher be
given more weight than the preference of a new teacher,
when related to the pupil. I ’m not talking about the ad
vantages or disadvantages as far as the teacher is con
cerned. But as far as the pupil is concerned, why would
you give more weight to the desire and attitude of an ex
perienced teacher than you would the desire and attitude
of a new teacher? A. Well, you are shifting words a little
in there for the meaning of what I said, a little. I wasn’t
talking—I was talking about the older teacher, not in terms
Dr. Joseph 8. Himes—for Plaintiffs—Cross
187a
of his experience, but in terms of his vested-interest com
mitment to a given school and, therefore, for him this
change might be more traumatic than for the younger
teacher who has less invested in the school, who is less at-
—154—
tached to it, who feels less vested interest; that for him, he
has greater flexibility in that he may be more willing to
make the change. He may he easier to bring into it with
persuasion than this older person.
Q. I take it then— A. What I am arguing is that it
seems to me in terms of the emotional forces and the human
forces and the resistances, that the program can be oper
ated more easily with younger teachers with shorter serv
ice, with less deep investments and commitments to a par
ticular school, than with older people who have deep invest
ments and deep commitments and emotional attachments
to the school.
Q. But as I understand it, you would suggest that it be a
requirement that all new7 teachers in the system not be em
ployed unless they were willing to teach in any situation—
A. Wherever assigned.
Q. —and that if they would not agree to that, that they
just not be employed regardless of whether you had enough
teachers to go around or not? A. Yes.
The Court: Doctor, what would you do if you were
the school administrator and if it were impossible—
if you recruited and advertised in the paper and you
called and you interviewed and they said, “No, thank
you, I don’t care for this employment,” and you’ve
got 500 children out here with no teacher, do you say
—155—
it’s better for them to go without any instruction for
Dr. Joseph 8. Himes—for Plaintiffs—Cross
188a
a year than it is for the School Board to employ a
qualified teacher but who wasn’t willing to take cer
tain assignments? Which is the greater of the two
evils ?
The Witness: Well, Your Honor, when you create
a situation of this sort which is purely hypothetical—
The Court: Yes.
The Witness: —and perfunctory, you leave me no
choice but as I told counsel earlier, it’s a hypothetical
situation—
The Court: I understand that and it might not
ever happen. But I understood you to tell him just
now that you would not employ a teacher, even
though you couldn’t get a full complement otherwise,
unless they came with the commitment that they
would teach wherever assigned; and that prompted
me to ask the question: What would you do if you
had these 500 children and there was no one to in
struct them because you couldn’t get enough teachers
to come under that commitment that they would ac
cept an assignment anywhere?
The Witness: Well, I suppose if I were a Super
intendent and confronted with that situation, I would
go to my Board and say, “ This is the situation. Will
—156—
you make a specific exception to your policy in this
instance?”
The Court: For this year?
The Witness: “For this year to get us over this
hump.” But this is a specific.
The Court: Yes.
The Witness : But I would still think, Your Honor,
that this won’t happen.
Dr. Joseph 8. Himes— for Plaintiffs— Cross
189a
The Court: Well, possibly it wouldn’t; I don’t
know whether it would. But go ahead with your
questioning.
The Witness: We are engaging in guessing, I
think.
The Court: That’s right.
Mr. Jarvis: I have just one other question or two,
if the Court will indulge me a moment.
By Mr. Jarvis:
Q. Doctor Himes, have you had an opportunity to ex
amine the report of the Committee of the Durham City
Board of Education on the study of the Employment and
Assignment of Professional Personnel? A. No. No, I
haven’t seen that report.
Q. Have you had an opportunity to see that report? A.
No.
Q. Are you familiar with the results of the questionnaires
that were returned by the teachers with reference to their
own opinion of their qualifications and their willingness
to teach in schools where the composition of pupils by race
—157—
was predominantlyy one race or another? A. No. Only I
have heard just a few rather general comments about the
results of this questionnaire, but I know very little about it.
Q. Would it surprise you to know that only one Negro
teacher in the Durham City Administrative School Unit
who returned the application stated that they were willing
to teach in a predominantly-white class ?
Mr. Nabrit: Objection.
The Court: Well, we have had so much latitude on
this whole thing, I’ll let him answer this one ques-
Dr. Joseph 8. Himes—for Plaintiffs—Cross
190a
tion. I don’t know quite the relevancy of whether he
would or wouldn’t be surprised, but go ahead.
By Mr. Jarvis:
Q. You were of the opinion, I gathered—you stated your
opinion that we would have no difficulty in filling the com
plement of our teaching staff, meeting our full complement,
if the requirement was made that the teacher teach at any
position to which she was assigned? A. No, I didn’t say
that, sir. I said that it was my opinion that the School
Board, the staff would probably have somewhat more dif
ficulty if that were a condition of teaching than they now
have. I did not say they would not have any difficulty, but
I think only a little more difficulty.
—158—
Q. Only a little. And I gather that you did not base your
opinion or take in consideration that only one of 288 Negro
teachers who returned their application—returned the
questionnaire, stated that they were willing to teach in a
predominantly white class?
Mr. Nabrit: Objection. Before you answer—Your
Honor, the question is predicated on—
The Court: That is not in evidence, that you
didn’t take into consideration a fact that is not in
evidence.
Mr. Jarvis: Well, I ’m asking him what he took
into consideration in forming his opinion.
The Court: Well, he said he took into considera
tion no answers to any questionnaires whatever, that
he didn’t know anything about that; and there is no
evidence upon which your question is based. I mean
you can ask him hundreds and hundreds of questions
Dr. Joseph 8. Himes—for Plaintiffs—Cross
191a
whether there was any basis for it or not. He said
he took none of it into consideration; as I understood
the doctor to say that he didn’t even know that the
questionnaires had been sent out and answered.
The Witness: Well, I knew that the questionnaire
had been sent out and answered and I had heard
some few general comments, but this only very re
cently and my knowledge is so superficial that I ’m
really not competent to comment on it.
—159—
Dr. Joseph 8. Ilimes—for Plaintiffs—Redirect
By Mr. Jarvis:
Q. Your opinion then -was not based on any knowledge of
the feelings of individual members of the Negro teaching
staff? A. My judgment was not based on the results of
that questionnaire.
Q. Well, was it based on the result of information, any
information as to how many Negro teachers would be will
ing to teach at a predominantly-^white school? A. Not in
Durham.
Q. Not in Durham? A. Not in terms of anything ap
proximating even a very casual survey from Durham.
Mr. Jarvis: All right, I have no further questions.
The Court: All right.
Redirect Examination by Mr. Nabrit:
Q. Doctor Himes, you talked about a period of prepara
tion of teachers before we get into desegregation. Would
you put that in terms of years or months or what? A. Oh,
you recall I said that I thought something like five years
is fantastic and unreasonable. I should think a matter of
months. For example, if the School Board decided this fall
192a
to initiate this program next year, next September, that
—160—
the intervening time would provide adequate time, I would
think. It might be—it might be feasible to institute it the
next semester, but this would be relatively short notice to
plan the activities and to carry them out. I should think
that six to eight months ought to be required to do it.
Q. Now you answered one of Mr. Jarvis’s questions with
respect to what kind of policy of the School Board—if you
thought it was discriminatory. I will ask you what is your
view of a School Board policy which states that white teach
ers will be hired for white schools, schools with white pu
pils, Negro teachers will be hired for schools with Negro
pupils, and that only in exceptional cases would there be
any change of that policy?
Mr. Jarvis: Objection.
The Court: Now aren’t you guilty of the same vice
that you got up a few moments ago and said I should
prevent him from engaging in, exactly? That fact is
not in evidence, is it?
Mr. Nabrit: I asked it as a hypothetical question.
The Court: Well, you objected a moment ago to
his asking a hypothetical question based on “did you
know that so-and-so” or “if so-and-so.” I sustained
that objection. If you are basing a hypothetical ques
tion on something that’s in evidence, why I think it’s
pei’fectly all right; but there is no evidence upon
—161—
which to base the hypothesis even.
Mr. Nabrit: I withdraw the question and will at
tempt to rephrase it.
The Court: All right, sir.
Dr. Joseph 8. Himes—for Plaintiffs—Redirect
193a
Dr, Joseph P. McKelpin—for Plaintiffs■—Direct
By Mr. Nabrit:
Q. What is your view with respect to whether or not a
policy of assigning faculty by race is good or bad?
Mr. Jarvis: May I ask that that question be read
back?
Mr. Nabrit: I asked for his view of the policy of
assigning faculty by race, putting them in schools on
the basis of race.
Mr. Jarvis: Well, I object. That’s too generalized.
The Court: Well, I don’t know the relevancy of his
opinion, but he may answer it.
A. Well, I think it’s clearly a policy of segregation, and in
my judgment it’s bad.
# # # # #
—162—
Doctor Joseph P. McK elpin was called as a witness on
behalf of the Plaintiffs and, being first duly sworn, was
examined and testified on his oath as follows:
Direct Examination by Mr. Nabrit:
Q. State your name, please. A. Joseph P. McKelpin.
Q. What is your profession? A. I ’m a Professor of Ed
ucation.
Q. State your educational background in a brief resume,
please.
The Court: Excuse me. Professor of Education
where, Doctor ?
The Witness: North Carolina College.
The Court: All right.
194a
A. I received a Bachelor of Arts Degree at Southern Uni
versity at Baton Rouge, Louisiana; Master of Science in
Guidance and Education at the University of Wisconsin;
Doctor of Philosophy in Education Administration at the
University of Wisconsin.
The Court: You received your Ph.D. Degree from
where, Doctor?
The Witness: The University of Wisconsin.
The Court: The University of Wisconsin. All
right.
—163—
By Mr. Nabrit:
Q. What has your work experience been relating to edu
cation? A. Public school teacher, junior high school in
New Orleans, Louisiana. While I worked for the doctorate
degree, I was Research Assistant in the Department of
Education at the University of Wisconsin. I taught at
Tuskegee University during the summer, A and T College;
Southern University, where I spent ten years and held a
variety of jobs including regular classroom teacher, Direc
tor of Student Teaching, which included Professor of
Laboratory Experiences and was Director of the Labora
tory School. And then at North Carolina College I serve
as Director of the Bureau of Education and Research.
# # # * #
—164—
* * # # #
By Mr. Nabrit:
Q. What do you do in your current job? A. Well in my
—1 6 5 -
current job, in addition to teaching courses and adminis-
Dr. Joseph P. McKelpin—for Plaintiffs—Direct
195a
tration, researching and statistics in the Bureau of Educa
tion and Research, I am responsible for advising students
about research plans, other colleagues in the college, and
to define problems and develop plans for approaching solu
tions to those problems, principally.
Q. Doctor McKelpin, do you have an opinion with respect
to the effect of the policy of assigning teachers on the basis
of race on a school program, and would you tell us what
effect you think it has! A. Yes. But to do that, I wish
you would let me lay just a little background. I think we
need to recognize that there have been changes in societies
and cultures from time immemorial. This is just part of
the evolutionary process.
But now we find ourselves in a time where this change
has to be deliberately designed in order to do two things:
to promote the national welfare and to enhance the national
image. I could talk about this some more, but we need to
recognize that this is so.
Now when you look at another part, the role of education
has, as someone has said, traditionally been passed under
culture; but now at a time when society and culture is
changing, the role of education cannot simply be passed
under culture. You have to recognize what the new things
coming are and to make education a facilitator of the new
things that are coming in.
—1 6 6 -
In this connection we need to recognize more and more
that in the international community one of the things that
gives us most difficulty is the lack of people who can live in
peace and mutual respect with others who are different in
color and orientation. This is coming to be more and more.
The schools must now have the role of producing people
who more and more can do these things.
Dr. Joseph P. Mc-Kelpin—for Plaintiffs—Direct
196a
Another element here that is related to the national wel
fare is to be sure that we have enough talent to do the job
that needs to be done. Eight now many jobs that need to
be done are not being done because the talent isn’t devel
oped, and part of this is because we are not using people in
disadvantaged groups who have talent and developing their
talents so this can be available for the national welfare.
One other thing, and that is the whole education goes on
—if you will allow me just to reduce it to something like
this: The individual, as a result of all of his encounters
and the things that he meets, people and other things,
develops an image of the world, the world that he knows,
and this image includes himself. Now if this is true and if
this results from the encounters that he has, it is clear
that who teaches him is one of the determinants of the
image that he has, not only of the world, but of himself.
And as other speakers have indicated—and here we get
—167—
into the effect—as other speakers have indicated, this busi
ness of assigning teachers on the basis of color or ethnic
groups systematically so that teachers teach only those
who are like them in color does a disservice to both Negro
and white children, because they develop images of them
selves and of the world that are destroyed and that make
it impossible for them to live in peace and mutual respect
with people of a different color, both domestically and
internationally.
By Mr. Nabrit:
Q. What is your view of the importance of the relation
ship between the teacher and the pupil in the educational
process! A. Well, I think this has been said too. Coming
after many others speakers, I suppose many of the things
Dr. Joseph P. McKelpin—for Plaintiffs—Direct
197a
which I would want to say, I have heard already. But, of
course, this is the most critical relationship in formal edu
cation because, as has been said, not only is the teacher
the carrier of the culture but the teacher helps the child
through interacting with the child to build a concept of
himself.
For a child to have experience not with just teachers
from one color group, but cutting across whatever group
there might be in the community, gives the child a better
chance to develop a concept of himself and again of the
world that is more realistic, that is more valid, and is
likely to be verified as he moves on into the future.
Q. Well, take the case of the Negro child in the all-Negro
- 1 6 8 -
school with an all-Negro faculty. A. Well, as Doctor
Himes has indicated, there is a tendency to believe under
these circumstances that there is an element of inferiority
involved.
Q. A tendency of who to believe that? A. Well, there
is a tendency for those involved both in the school—and I
speak of Negro teachers and Negro students-—but there is
also a tendency for those who are not there, that is, white
teachers and students who are excluded from this situa
tion, to feel that it’s inferior. Now as he has also indicated,
this is not necessarily so, but the belief that it is turns
out to be a self-fulfilling prophecy which results in their
having less motivation—and incidentally, there is much
research to prove that this turns out to be pretty much
the case—feeling that their separation from the majority
of the community is a derogation of their social standing,
their social value, and their simple human dignity, and
this tends to give them less of an incentive. This tends to
give them the impression—which is actually true in too
Dr. Joseph P. McKelpin— for Plaintiffs—Direct
198a
many cases—that their opportunities for participation on
a wide range, these opportunities are limited.
So I am saying the fact of segregation tends to mirror
back to these people a sense of being placed at a lower level
in the social scale of thinking.
Q. What about the Negro child who is attending a
—169—
predominantly-white school with an all-white faculty, how
does the assignment policy affect him? A. Well, I think
so far as his peers are concerned the child develops to this
extent a more valid impression of himself and of the world.
But to the extent that there are not Negro teachers on
this faculty who would be models of authority and models
with which he could identify, to this extent, while this is
better than the previous situation you mentioned, it is less
good than it ought to be by virtue of the lack of Negro
teachers on the faculty.
* Q. Again you have mentioned study on this subject. Are
there any sources that you would care to refer to? A. Yes,
there are several. And actually I can’t remember all that
I have gone through, but some which come to me immedi
ately here, two or three are included in A. H. Pastile’s
“Education in Depressed Urban Areas,” published in 1963
by Southern University Press. One in particular is written
by David and Pearl Ausabel and it’s called “Ego Develop
ment in Segregated Negro Children.” Another study which
may interest you is—well, a whole bunch of studies that
are summarized—not summarized—described, included in
the issue of “ The Journal of Social Issues” for April of
1964, edited by Thomas Pettigrew, whom Doctor Himes
has mentioned.
Another study—and this is quite appropriate for what
we are considering here—done by Naomi and Arnold Buck-
Dr. Joseph P. McKelpin■— for Plaintiffs-—Direct
199a
—170—
heimer is called “ Equality Through Integration” and is
the report of experiences and efforts made from the late
’30s up into the early ’60s in Greenberg District Number 8,
Westchester County, and New York City, and tells the
story of how in the course of these years they hit upon a
plan called the “Princeton Plan” which seems to work very
well both for teachers and students.
One other study you might be interested in in this con
nection put out in the early part of this year by the Bank
Street College of Education, and it’s the report of a semi
nar of experts called “Education for the Segregated and
Deprived.”
By Mr. Nabrit :
Q. Do you believe the views you have expressed with
respect to the effects of segregation represent a minority
view, a general view, or what? A. I think that anyone
who cares to check the theory and research dealing with
education and segregation will find that this is a majority
view of those who have studied the situation in terms of
how it operates and its effect on both teachers and students.
Q. Can you talk about the effect of this on a child’s
learning process? A. Yes, I can.
Q. The faculty segregation on the child’s learning proc-
—171—
ess, I ’m talking about. A. Yes. I want to go back first
and mention again—I mentioned this self-image, self-con
cept, self-esteem, ego development that is achieved, then
I ’ll go on to what you have asked me.
This self-image moderates, you might say, and controls
to some extent the achievement motivation, the aspiration
of a child, the willingness to define a goal and to work
Dr. Joseph P. McKelpin—for Plaintiffs—Direct
200a
towards it. So it depends on how he sees himself and this
is determined to some extent by whether or not a child
sees in his school not only people of one group but of both
groups, so that he feels that these are goals which he could
aspire to.
Now if this is true, then a school in which you have
teachers of only one color would tend to have different and
opposite effects on white and Negro children. White chil
dren, as for instance the group for the advancement of
psychiatry indicates, would feel better about themselves
than they had any objective reason to feel, and Negroes
would feel more negative and contemptuous of himself than
they should. Whereas if you had a faculty consisting of
both Negroes and whites, there would be more reality of
the situation and so their conceptions of themselves and
their efforts towards goals and aspirations would be more
realistic.
Q. Would you say something with respect to the issue of
the effect of faculty segregation on people’s preference for
- 1 7 2 -
schools, their choice of schools? A. Yes. It seems to me
that—It is true, I suppose, “birds of a feather flock to
gether.” We need to recognize that. This is something we
have learned. This is a cultural teaching from the past.
By way of pointing out what I meant by “the thing that is
now emerging,” we are being forced to teach that while
birds of a feather may still flock together, the “feathers”
may not be determined by the color of the skin but instead
by other ways of behaving which people learn, rather than
things with which they are born about which they can do
nothing.
But in conformity with what we have learned in the past,
the Board of Education may say, “ You are free to choose
any school you want,” but if school “A” over here remains
Dr. Joseph P. McKelpin—for Plaintiffs—Direct
201a
predominantly taught by members of one color group and
school “B” by members of a second-colored group—as Doc
tor Himes pointed out, what people are really living says a
great deal more to them than the things you give them to
study or what you tell them—and so while you may osten
sibly have freedom of choice, actually you have reduced the
arena in which this freedom exists by failure to show that
you really mean what you say by doing something about it.
So if your teachers remain segregated, this tends to re- /
inforce segregation so far as students are concerned even/
though you say you have freedom of choice.
—173—
Mr. Nabrit: No further questions.
Cross Examination by Mr. Spears:
Q. Doctor, did I understand you to say that a Negro child
being taught solely by a Negro teacher gave him an inferi
ority complex? A. No, you didn’t hear me say that, but
you did hear me say—
Q. Well, I’m just asking you did you say that. A. I did
not say that but I will clarify what I said.
Q. Well, you said something about being— A. Would
you permit me to clarify it so I can put it in context, sir?
Q. Let me ask you this: Didn’t you say that if he was
taught by a Negro teacher, he would feel inferior? Did you
say that? A. May I put it in context?
Q. I just asked you if you didn’t say that a while ago.
A. May I put in context what I said?
Q. Just answer the question “yes” or “no” and then ex
plain it. A. I didn’t say that.
Q. You did not; all right. What did you say then? A.
Yes, sir. What I did say is that the existence of this pattern
of Negro teaching Negroes only and whites teaching whites
Dr. Joseph P. McKelpin—for Plaintiffs—Cross
202a
only conveys to both Negroes and to whites that the minor-
— 174—
ity group has been relegated to a second-class citizenship,
that he has been placed at a lower level in the social scale;
and this is borne out by innumerable pieces of research.
Q. Well, you now say to His Honor that you want every
teacher in every Negro school in Durham to be a white
teacher? Are you saying that? A. Would you repeat that,
sir?
Q. Did I understand you to say now that you want every
Negro teacher in Durham discharged and a white teacher
employed to teach in all the Negro schools? A. This is not
what I am saying. What I am saying is that—
Q. Well, I ask you this: Do you want all the Negro pupils
to be taught by white teachers? A. No, I do not.
Q. Do you want all the white pupils in the City of Dur
ham to be taught by Negro teachers? A. No, I do not.
Q. Then do you want them to be taught by white teachers
as well as Negro teachers? A. I want all of the students to
be assigned teachers without regard to color.
Q. And on the basis of their qualifications? A. Of
course.
Q. Yes, sir. A. Yes, sir.
— 175—
Q. In other words, you want first a good teacher, don’t
you— A. Eight.
Q. —who has the qualifications to teach in a given situa
tion? A. He should be qualified; right.
Q. Qualified. And if he is not qualified, he should not be
employed? A. And his color should have nothing to do
with his qualifications.
Q. And his color should have nothing to do with it? A.
Eight.
Dr. Joseph P. McKelpin—for Plaintiffs—Cross
203a
Q. Now you spoke about culture. You spend about six
to eight hours a day in school don’t you? A. About six.
Q. Well now, then there is culture elsewhere in the com
munity other than in the school, isn’t there? A. This is
true.
Q. You get some culture at home, don’t you? A. Yes.
I ’m wondering now how you use the term “ culture,” though.
Q. Well, you used the term “ culture” ; you talked about
it in school. I ask you this: If you get culture at school,
don’t you get it at home? A. Well, what I ’m trying to
say is that—
—176—
Q. Well, I just asked you: Don’t you get culture at home ?
Mr. Nabrit: I object. He’s not allowing the wit
ness to answer the question.
The Court: Well, he’s not answering the question.
He can answer any question “yes” or “no” if he can,
and then he can explain his answer.
Mr. Nabrit: Well, the witness tried to do that.
The Court: But he wouldn’t answer. He asked
him a specific question that could be answered “yes”
or “no.” He is entitled to explain any answer he
wants. If he can’t answer it yes or not, he can say,
“ I can’t answer that question yes or no.”
A. I can’t answer that question yes or no.
By Mr. Spears:
Q. Well, do you get culture at church? Do you get some
culture when you go to church or Sunday school? Do you
get it on the playground? A. Well, it’s operating, let me
say—
Dr. Joseph P. McKelpin—for Plaintiffs—Cross
204a
Q. I just want to know this: Do you mean to say the only
place you get culture, that a child gets it, is in a schoolroom?
Can you answer that? A. Yes. Let me answer that like
this, please. The school is recognized by a large majority
of people as being the one institution which can have some
thing like a uniform effect across various lines that split up
the community into segments. Now it is true that culture
is operating—cultures are operating—subcultures, if you
- 1 7 7 -
wish—are operating on these pupils all the time, wherever
they come into contact with their peers, but especially where
they come into contact with adults who are significant to
them and who are carriers of a culture they will have re
flected to them, mediated to them, some aspects—the pupils
will—some aspects of culture. That is, again all we are?
talking about here are the characteristic ways of thinking,j ?
feeling, and acting which have been developed in the past,1 /
brought on into the present, modified and move on into thb
future.
Q. A child, if he doesn’t go to kindergarten, he stays
home with his family six years, isn’t that right; six years
that he’s home with his parents and his brothers and his
sisters and the community? A. That is true.
Q. Well, does he develop any culture there the first six
years of his life; doesn’t he get culture there? A. Yes.
He learns the ways of thinking, feeling, and acting which
his parents carry.
Q. Which his parents and the people he associates with,
his friends? A. Eight.
Q. And then he goes to school for six hours a day for
180 days. Now then, the difference in 180 days and 365 is
about 185 more days. Where does he get his culture there?
Dr. Joseph P. McKelpin—for Plaintiffs—-Cross
205a
Did he get any more culture after he left school? A. He
—178—
is becoming aculturated all the time in all places.
Q. Well, what do you want him to do during this 185
days; do you want him to stay in his community and play
there or what do you want him to do ?
Mr. Nabrit: Object to the form of the question.
By Mr. Spears:
Q. Well, to get culture—
The Court: Well, what he wants, just what does
he suggest, if he has an opinion.
Q. Well, what should he do for the balance if you want
him to get culture 365 days a year; what should he do the
remaining time?
Mr. Nabrit : Objection. I don’t know what should
who do about what.
Mr. Spears: Well, I ’m just trying to say this:
He is arguing that a child gets culture by going to
school if he has a white teacher—
The Court: Objection overruled. Go ahead and
ask the question.
By Mr. Spears:
Q. Now then, what— A. Now let me make this clear.
I think I see the point of contention here. Of course, all
the time that people live and interact with other people—
that is, younger people especially—they are being acul
turated. Now this means, of course, that the home, the
community, the school, all aspects of these various situa-
Dr. Joseph P. McKelpin—for Plaintiffs—Cross
206a
Dr. Joseph P. McKelpin—for Plaintiffs—Cross
—179—
tions of interaction are sites at which culture is being
mediated to the child.
We simply say that the school has a special function to
present the culture at its very best which may not and
cannot, so far as we know, be done anywhere else for as
wide a segment of the population in a community.
Q. Well, likewise he gets it in Sunday school, doesn’t he?
A. Yes.
Q. His teaching? A. Yes.
Q. And his minister at the services and attending the
various activities in his community? A. True.
Q. Now you said that pupils should be permitted to be
subjected to that, that he should be permitted to have that
opportunity to have a segregated faculty; is that right?
You said that a pupil should be permitted to have the op
portunity to attend a school with a segregated faculty? A.
I didn’t say that.
Q. You didn’t? A desegregated faculty, I mean. A. Oh,
desegregated, yes.
Q. Desegregated. A. Yes.
Q. Well now, then shouldn’t he also have the opportunity,
if he desires, to go to a school where he has freedom of
- I S O -
choice that doesn’t have an integrated faculty? A. That
depends, and let me explain it. I think we have to recog
nize that there are values related to the welfare and destiny
of, let us say, the nation as a whole as well as the com
munity as a whole, that may be more important than the
desires, wishes, of a particular individual.
Q. Well then, who is going to tell him that he must go
to that school if his father and mother, parents—he’s sub
ject to their control and their discipline and they say,
207a
“ You go to this school,” then are you going to say that he
should not mind his parents? A. No, sir. I think you have
a constituted group in the community vested with the re
sponsibility for making such decisions. This is your Board
of Education.
Q. Well, I ask you, though, if you have freedom of
choice—which the boy has—should the parent then have
the right to say and decide himself where he wants his
child to go to school? Are you going to deny him of that
right, the parent? A. No.
Q. All right. I f he has that right then that’s his choice,
isn’t it? A. Oh, it’s his choice.
Q. Yes. A. I have pointed out, however, that it is a
choice pretty much in name only. It’s fairly well predeter- .
—181— :
mined by social forces and psychological forces that are j
impinging on both the child and his parents.
Q. And that would be for both white and Negro race,
wouldn’t it? A. Yes, this is true.
Q. Now I ’m a Trustee out at North Carolina College. I
want to ask you this question: Do you mean to say that
because you are down there teaching that the Negro pupil
down at your college feels like he is not getting a good ed
ucation because you are teaching him?
Mr. Chambers: Your Honor, objection to that
question.
The Court: Overruled. If he feels that way.
Mr. Chambers: Your Honor, the question doesn’t
really put the testimony of the witness in the proper
context.
The Court: Well, this is cross examination. He
may explain.
Dr. Joseph P. McKelpin—for Plaintiffs—Cross
208a
A. Mr. Spears, am I speaking to you as Trustee of my
Board or as attorney for the Board of Education?
The Court: You can forget about he’s Trustee of
your Board. You are testifying in Court. You go
ahead.
The Witness: Your Honor, he just reminded me.
A. No, I do not feel, Mr. Spears, that students coming
—182—
under my instruction are receiving inferior instruction.
But I suspect that in the Durham community as a whole
many white people feel that this is a school reserved for
the second-class citizen and I suspect that these feelings get
reflected back to students who come to me, and I suspect
that they react to that by building within themselves some
thing of a negative image with low self-esteem.
Dr. Joseph P. McKelpin—for Plaintiffs—Cross
By Mr. Spears:
Q. It may not be material, but you do have a good col
lege, don’t you? A. We have a very good college.
Mr. Spears: That’s all.
The Court: Doctor, let me ask you this. I heard
you say something a while ago but I didn’t quite
understand you. Do you think that a young child
—that a Negro child going to a predominantly-Negro
school and being taught by a predominantly-Negro
faculty develops any greater feeling of inferiority
than a white child going to a predominantly-white
school and taught by a predominantly-white faculty;
and if so, where is the difference and the distine-
209a
tionf I thought you touched on that a few moments
ago in your testimony.
The Witness: Yes, Your Honor, I did. And I can
speak of studies and I ’m particularly thinking of
the Ausabel study, which indicates that segregated
Negro children do develop unwarrantedly-low esti-
—1 8 3 -
mates of themselves; and it’s an implication of the
statement of the Group for the Advancement of
Psychiatry, on the other hand, that segregated white
children develop unwarrantedly-high estimates of
themselves. Now what I have said is that both of
these kinds of distorted self-images fail to serve
these people well when they get in situations which
require them to live in peace and mutual respect
with those of a different color.
The Court: Well, what do the psychiatrists and
sociologists say causes that, that would cause one
segregated group to develop a feeling of inferiority
while another equally segregated group develops a
feeling of superiority?
The Witness: Well, yes. In one case you have a
group—Let me back up here a minute and call your
attention again to the capacity and the tendency, the
actual fact that the individual mind in interaction
with various aspects of its environment builds an
image of the world, including the self of the person
having the mind. Now if you keep in mind that this
image reflects the effects of these encounters—now
if the encounters are always of the nature to say to
a person, “You occupy a low level in this social ar
rangement; you cannot aspire for certain goals”—
now if it said that to him. in a number of ways and
Dr. Joseph P. McKelpin— for Plaintiffs—Cross
210a
consistently, then he is going to develop this image
— 184—
of himself which is reflected back from what he
undergoes.
Likewise, if a person operates in a situation where
he can do no wrong and if he does, he can blame it
on the other guy over there who always does wrong,
he gets an unusually rosy picture of himself. And so
it’s the same process working, but at different levels
with different opportunities and methods of acquir
ing status in the social group. It’s culturally defined.
The Court: Well, let me just ask you this. I fol
low what you say there. Do you think that is still
valid if you take groups in the same economic status
and coming from environments of the same economic
status generally—you know, the same general income
group with parents with perhaps little or no educa
tion, without regard to this race question at all—that
child, the white child, doesn’t he develop that same
feeling that the neighborhood from which I come,
the opportunities that I have, the most I could ever
aspire to is a job in that mill or some manual job
out here, and he drops out of school because he
doesn’t have the motivation! Isn’t about the same
situation created as with the Negro child coming
from that same type of environment, that there is
really no motivation at home! When you put the
two side by side, do you think there is that distinc-
— 185—
tion or is the distinction you made a few moments
ago still as valid as it was, under these circum
stances!
Dr. Joseph P. McKelpin—for Plaintiffs—Cross
211a
The Witness: Yes, Your Honor, I think so, for
this reason. Admitted that you could hold socio
economic status—this is what they say—but even
though I have as much of the world’s goods as any
body else, if I am restricted in my participation in
various cultures, situations, this tells me something
about myself and what I can expect; and so I begin
to build my life in terms of the image I have of my
self and what I can expect to become.
Now this isn’t all that’s involved. I ’m not saying
this is all of it, but this still operates—
The Court: We are all restricted somewhat. I
have never had an invitation to some of the halls in
Washington or in New York and I never aspire to it
because I am not in that economic group to ever have
an invitation. We are restricted in that sense, all of
us, aren’t we?
The Witness: I think this is true.
The Court: But that’s not in context. I realize
what you are talking about. Thank you, Doctor.
# # * # #
— 192—
# * * # #
H oward M. F itts, Jr. was called as a witness on behalf
of the Plaintiffs and, being first duly sworn, was ex
amined and testified on his oath as follows:
Direct Examination by Mr. Nabrit:
Q. Mr. Fitts, state your name and address. A. Howard
M. Fitts, Jr., 2529 Weaver Street, Durham.
Q. What is your occupation? A. I am a teacher at
North Carolina College.
Howard M. Fitts, Jr.—for Plaintiffs—Direct
212a
Q. What, do you teach? A. Health education and hy
giene courses.
The Court: I ’m sorry, I can’t hear. If you would
speak as though you were speaking to the corner
of the room back there and you wanted somebody
back there to hear you, then I could hear you and
your attorneys here and everybody could. I couldn’t
here what you were saying.
—193—
What do you teach?
The Witness: I teach health education.
The Court: All right.
By Mr. Nabrit:
Q. Mr. Fitts, how long have you been in Durham, North
Carolina? A. This is my eleventh year.
Q. Do you have children? A. I have one child.
Q. Does he attend Durham public schools? A. He does.
Q. What school? A. Moreliead Elementary School.
Q. What grade is he in? A. Fifth grade.
Mr. Spears: I didn’t understand what school you
said.
The Witness : Morehead Elementary.
By Mr. Nabrit:
Q. And for the record, sir, you are a Negro, is that
right? A. I’m sorry, I didn’t hear you.
Q. For the written record, you are a Negro, is that cor
rect? A. Yes.
Q. Now does your child attend a predominantly-white
Howard M. Fitts, Jr.—for Plaintiffs—Direct
213a
school or a Negro school or what? A. Predominantly
- 1 9 4 -
white.
Q. Now are you a member of any civic association that
worked on the public school desegregation in Durham?
A. Yes, sir, I am.
Q. What is that? A. I am a member of the NAACP
and the Durham Committee on Negro Affairs.
Q. With reference to the Durham Committee on Negro
Affairs, what affairs have you participated in, what posi
tion do you hold, and so forth? A. I am Co-Chairman of
the Subcommittee on Education.
Q. Would you describe to the Judge the activities of
that Subcommittee on Education of the Durham Committee
on Negro Affairs, and tell him what you do?
Mr. Spears: Objection, Your Honor. Objection.
The Court: I didn’t understand the question. Will
you describe what?
Mr. Nabrit: The activities of this committee.
What I am doing, my purpose, Your Honor, is to
lay the basis for his observation that he will testify
to.
The Court: Objection overruled.
A. The primary purpose of the committee is to improve
educational opportunities for Negroes and youth in gen
eral in Durham. These are the primary objectives, and
we have engaged in various kinds of meetings and activi-
—1 9 5 -
ties and activities in general to carry out these aims.
Howard M. Fitts, Jr.—for Plaintiffs—Direct
214a
Q. Describe the program of the committee for the Judge.
A. Well, with reference to school desegregation, we feel
that this is one activity that will improve educational op
portunities for youth. We have encouraged the idea of
Negro children taking advantage of opportunities to enter
desegregated schools. We have had speakers at churches.
We have had speakers at public meetings. We have visited
homes in various neighborhoods. We have answered in
quiries from parents and done that type of thing.
Q. Now concerning you personally, do you get inquiries
from parents or how do they come, calls to your home,
or what! A. We get both inquiries and contacts from
meetings that we attend, from places where we make an
nouncements, and so on—and home visits, yes.
Q. Now does your committee have other activities that
bring your attention to parents that are not directly re
lated to desegregation, other educational activities? A.
We have communitywide programs from time to time, at
which time the public in general is invited to attend, and
these would be parents who are not actual members of our
organization.
Q. What I meant was do you have any programs with
respect to school dropouts and things like that? A. We
—1 9 6 -
have. We have conducted tutorial programs to help chil
dren who are having difficulty with studies or who need
guidance with their studies and so on.
Q. And what about a program with relation to school
dropouts? A. In terms of school dropouts, we have as
sociated with other grounds to help children of this type
to take advantage of the offerings of the various agencies
Howard M. Fitts, Jr.—for Plaintiffs—Direct
By Mr. Nabrit:
215a
here in the city that do have direct programs for drop
outs. We have no direct program ourselves but we do
try to enable children and make parents aware of pro
grams that are available for them.
Q. Now returning to your program with respect to
encouraging desegregation, have you been operating dur
ing the period where a freedom-of-choice program has
been in effect in this city? A. Yes, I have.
Q. Roughly what period of time has this committee been
working on that, to your knowledge, your participation?
A. Well, my participation began in the summer of 1962.
Where my participation began, whatever activities that
have gone on in this have occurred. You asked the time.
Q. Now in connection with this program, have you come
to know the feelings and fears of Negro parents, their
attitudes with respect to sending their children to schools
with all-white faculties?
Howard M. Fitts, Jr.—for Plaintiffs—Direct
Mr. Jarvis: Objection.
Q. In the City of Durham?
—197-
Mr. Jarvis: Objection.
The Court: The fears of doing what?
Mr. Nabrit: The feelings, the parents’ feelings
and attitudes with respect to sending their children
to schools with all-white faculties in Durham.
Mi’. Spears: Your Honor, we object. It can’t be
anything but hearsay evidence.
The Court: How is that competent, Mr. Nabrit?
Mr. Nabrit: May it please the Court, I think this
is about the best type of evidence you can get of
the attitudes expressed by people—that is, the
216a
verbal acts—bow they expressed themselves in com
munity activities about this kind of problem.
The Court: Well, isn’t that hearsay!
Mr. Nabrit: I think not, Your Honor. I think it
is an exception to it.
The Court: What exception !
Mr. Nabrit: Because what he would report would
be verbal acts. He would be reporting what people
say about the situation. Now the extent to which
people mean what they say is another problem, but
at least he would be reporting what they say.
The Court: What do you mean—I don’t under
stand “verbal acts.” Something that’s verbal, isn’t
that a statement! How do you perform a verbal
act!
—198—
Mr Nabrit: Well, I think, Your Honor, that what
I am trying to suggest is that this is comparable
to a statement such as in a contract situation, “I
accept,” or, “I offer to sell.” It’s similar to the
res gestae concept.
The Court: Well, of course, an offer to sell, if
the statement of the person making the offer, if he
is a party to the action, of course, it would be
competent; if not, it would be pure hearsay.
I doubt if it’s competent. I ’m going to let it
in and I ’ll hear from you later. The witness is on
the stand. As to whether it can be considered, I have
grave reservations about it, its competency, as to
what people have said to him as he has gone about
over the city.
Go ahead.
Howard M. Fitts, Jr.—for Plaintiffs—-Direct
217a
Q. Would you describe briefly what you encountered!
A. I guess I have to start with my own family, with my
self. There are fears when one considers placing a child
in what is considered a white school—and this is how they
are referred to, as “white” schools. Parents with smaller
children have fears that the teachers may show some prej
udices, that they may not give the child the feeling of
being wanted, that they may make the child feel that he
—199—
isn’t really a part of the class, that he may not have an
opportunity to participate in all school activities. These
are some feelings that do exist when one considers en
tering a child into what are called “white” schools.
For parents of older children these same feelings exist;
however, there are somewhat different feelings also.
Parents of older children and the children themselves have
fears that they may be called names, that there may be
conflict arising between children and that the teachers
and administrators may not intercede or may show par
tialities. These are some of the feelings. There are feel
ings of parents of older children, particularly high school
children, that their children will not have opportunities
to experience leadership roles, that they will have oppor
tunities for scholarship, say, that they would get in the
all-Negro schools, and that they may have more difficulty
succeeding scholastically.
I think these are generally the kinds of feelings that do
exist when parents consider the possibility of seeking-
admittance of their child to the integrated school.
Mr. Jarvis: Motion to strike, Your Honor.
The Court: Motion overruled.
Howard M. Fitts, Jr.—for Plaintiffs—Direct
By Mr. Nabrit:
218a
Q. Now, Mr. Fitts, I don’t think it’s quite clear what
parts of this are in your own situation, in your own family,
and what parts are related to your contacts with what
some people told you around the community. Would you
— 200—
tell about your own experience when your child first applied
to a white school, your own family? A. Well, my child
has been in an integrated school for two years. This is
the third year. It was my decision to seek transfer, feel
ing that he would have opportunities for a better educa
tional experience. I had some qualms about it, of course.
I had considerable difficulty getting my wife to accept this
view. She felt that the opportunities were better, but she
felt also that there might be problems that she would not
want this child to be confronted with. In fact, my wife
hardly slept the first night before he was to enter the
school.
Howard M. Fitts, Jr.—for Plaintiffs—Direct
By Mr. Nabrit:
Mr. Jarvis: Motion to strike, Your Honor.
The Court: I didn’t hear the last. I can’t hear
what the witness is saying.
Mr. Spears: I can’t understand him either, Your
Honor.
The Court: He talks so I can’t hear him. I have
asked him if he will look back over there and raise
his voice a little bit. I don’t know what his last
answer was.
By Mr. Nabrit:
Q. Would you repeat the last part of that to the Judge?
A. The last part of my answer had to do with my own
219a
experience. I said that I had made the decision some two
years ago to seek admittance to an integrated school for
— 201—
my son and that it was a decision of my own. I had some
qualms about making the decision, but I decided that this
would be a better opportunity for the child. I attempted
to convince my wife of this and she felt too that the educa
tional experience could be—
Mr. Jarvis: That’s my objection, Your Honor.
I object to anything that his wife might have felt.
He can speak from his own experience.
The Court: Well, my feeling is that it’s objec
tionable, but I ’m going to let him put it in the
record. I will reserve for you that it should not be
considered as to what his wife said.
By Mr. Nabrit:
Q. Go ahead. A. Well, she felt too that the educational
experience could be better in that school; however, she
felt the problems which he might be faced with were prob
lems that she was not sure that she would want him to
undergo. Nevertheless, I persuaded her to agree with me
in this. And my last statement was that she hardly slept
the night before he was to enter the school.
Q. Was there any specific problem that bothered you
relating to an all-white faculty in that school your son
was applying to? A. As I stated earlier, I was uncertain
as to the kind of treatment that the child would receive.
— 202—
I was concerned as to whether he would be treated with
warmth, whether he would be shown the kind of love that
Howard M. Fitts, Jr.—for Plaintiff's—Direct
220a
I felt teachers should show children, and whether he
would be given the encouragement and the aid that I felt
teachers should give him, and whether he would be given
opportunities to experience full school-life participation,
Mr. Nabrit: Your witness.
Cross Examination by Mr. Spears:
Q. When did you exercise the right of freedom of choice
for your son to go to Morehead, what year! A. Two
years ago; that would have been 1963.
Q. At what grade— A. At the third-grade level.
Q. Third-grade level; that was ’63-’64! A. That’s right.
Q. And did he attend the third-grade level! A. Yes.
Q. He was promoted? A. He was promoted.
Q. And did he attend the Morehead School in ’64-’65?
A. He did.
Q. In what grade? A. Fourth grade.
Q. Fourth grade. Did he complete that grade? A. He
—203—
was promoted.
Q. He was promoted to the fifth grade? A. Yes, sir.
He was promoted, sir.
Q. And he is now attending Morehead School this year?
A. Yes.
Q. In the fifth grade? A. In the fifth grade.
Q. What school was your child attending in the first
grade? A. He was attending Spaulding School.
Q. That’s Spaulding Elementary School? A. Elemen
tary School.
Q. And so at the end of that first grade, the first year,
then you made application— A. No. The school zone
changed and he was assigned to Fayetteville Street School.
Howard M. Fitts, Jr.—for Plaintiffs—Cross
221a
Q. But in other words, he was in Spaulding School one
year? A. That’s right.
Q. And then the next year he was assigned to Fayette
ville? A. That’s right.
Q. That’s when you requested reassignment? A. That’s
right.
Q. And it was granted? A. It was.
Q. And your child has been automatically initially as
signed each year to Morehead since that time? A. Up
—204—
until this year when the freedom of choice went into effect.
Q. Well, this year then you were given a choice? A.
That’s right.
Q. And you have exercised the choice to return him to
Morehead School because you were satisfied with the
progress your child was making there? A. That’s right.
The Court: Professor, have you found that your
fears and apprehensions were unfounded to begin
with?
The Witness: With my child there has been only
one experience which I can say was an unpleasant
experience. It was not an activity of the school,
but an outside agency which operated in the schools ;
and I was very unhappy with this. I reported it
to the School Board. Other than this, with my child
I have no experience to report that I think was an
unfair situation, Your Honor.
The Court: Well, in that then your fears and
apprehensions, as it turned out, the one time—
The Witness: Well, the only actual thing I can
say that I care to point to here, Your Honor, is that
Howard M. Fitts, Jr.—for Plaintiffs—Cross
one.
222a
The Court: All right.
By Mr Spears:
Q. You have no complaint about the treatment of your
- 2 0 5 -
child by the teacher in these grades, do you? A. No, I
have not.
Mr. Spears : That’s all.
The Court: All right. Thank you.
(Witness excused.)
Mr. Jarvis: Your Honor, we would like to move
to strike, for the purpose of the record, all of this
witness’s testimony.
The Court: Well, motion denied. I ’ll give further
consideration to it. It’s still conditional in the
record.
Mr. Nabrit: Mr. Hannen.
Lew W. Hannen—for Plaintiffs—Direct
Lew W. Hannen was called as a witness on behalf of
the Plaintiffs and, being first duly sworn, was examined
and testified on his oath as follows:
Direct Examination by Mr. Nabrit-.
Q. State your name, sir, and your position with the
Durham Public Schools. A. Lew W. Hannen, Superin
tendent of Durham City Schools.
Q. Mr. Hannen, I show you several pieces of paper
marked “ Special Meeting, Board of Education, City of
—206—
Durham, June 9, 1965.” Attached to that are four sheets
223a
that are marked “Resolution.” They have your signature.
Would you identify those, please? A. These are accurate
documents.
Mr. Nabrit: May it please the Court, I offer into
evidence as Plaintiffs’ Exhibit Number 1 under date
1965, minutes of the Special Meeting of the Board
of Education for the City of Durham dated June 9,
1965, with two attached resolutions.
The Court: All right.
Mr. Jarvis: No objection.
The Court: All right, let the exhibits be received
in evidence.
Well, let’s identify these as Plaintiffs’ Exhibit
65-1, 65-2, and so on; and if the defendant has ex
hibits put the defendant’s exhibits as 65-1 and 65-2
so as to distinguish them from exhibits previously
received. Wouldn’t that do it?
Mr. Nabrit: Very well, Your Honor. Thank you.
(The documents above referred to were marked
for identification and received in evidence as:
Plaintiffs’ Exhibit No. 65-1.)
By Mr. Nabrit:
Q. Mr. Hannen, I show you a document marked “ Special
Meeting, Board of Education, July 2, 1965,” and ask you
—207—
if you can identify it as the minutes of the meeting on
that day? A. This is an authentic copy of the minutes
of that meeting of July 2, 1965.
Mr. Nabrit: I offer this in evidence as Plaintiffs’
Exhibit 65-2.
Lew W. Hannen—for Plaintiffs—Direct
224a
Mr. Jarvis: No objection.
The Court: Let the exhibit be received in evidence.
(The document above referred to was marked
for identification and received in evidence as:
Plaintiffs’ Exhibit No. 65-2.)
By Mr. Nabrit:
Q. Mr. Hannen, I show you a copy of a paper marked
“Special Meeting, Board of Education, August 30, 1965,”
and ask you if that is a copy of the minutes of that meet
ing? A. This is an accurate copy of the minutes of the
meeting of August 30, 1965.
Mr. Nabrit: If it please the Court, I offer this in
evidence as Plaintiffs’ Exhibit 65-3.
The Court: Let the exhibit be received in evidence.
Mr. Nabrit: May it please the Court, counsel for
the defendant has asked me to note for the record
that in the last exhibit there was a resolution or
—208—
prepared statement which is not included in this
copy of the minutes. I don’t believe that it has any
bearing on this matter.
Mr. Jarvis: We agree that it’s not relevant to
this inquiry, Your Honor.
The Court: Do the minutes refer—
Mr. Nabrit: The minutes say, “Enter statement
here,” and in the official copy the typist typed it
in at that point.
The Court: All right. Let the exhibit be received
in evidence.
Lew W. Hannen—for Plaintiffs—Direct
225a
(The document above referred to was marked
for identification and received in evidence as:
Plaintiffs’ Exhibit No. 65-3.)
By Mr. Nabrit:
Q. Mr. Hannen, I show you a set of papers and ask you
if these are not copies of pages from the official rules
and regulations of the Durham City Schools which per
tain to various personnel policies and which were supplied
to me by your office? A. These are copies of pages taken
from the Policy Manual adopted recently by the Durham
City Board of Education.
Q. Approximately when was this adopted? A. In the
spring of 1965.
Mr. Nabrit: If it please the Court, I offer this
—2 0 9 -
group of pages as one exhibit, Plaintiffs’ Exhibit
65-4.
The Court: Are they stapled together, Mr.
Nabrit?
Mr. Nabrit: No, they are not, Your Honor. I
agree they should be.
The Court: If they are not, I wish you would
have the Clerk to staple them.
Any objection?
Mr. Jarvis: No objection, Your Honor.
The Court: All right, let the exhibit be received
in evidence.
(The documents above referred to were marked
for identification and received in evidence as:
Plaintiffs’ Exhibit No. 65-4.)
Lew W. Hannen—for Plaintiffs—Direct
226a
Lew W. Hannen■—for Plaintiffs—Direct
By Mr. Nabrit:
Q. Mr. Hannen, I show yon a document marked “Con
tract for Instructional Service, For Use of the City Ad
ministrative Unit,” and I ask you if you can identify that
document and tell the Court if it’s used and, if so, how?
A. This document is the state form used for contractual
purposes in the employment of teachers in the State of
North Carolina, and is the one used by the Durham City
Schools.
Mr. Nabrit: May it please the Court, I offer this
contract form in evidence as Plaintiffs’ Exhibit 65-5.
The Court: Any objection?
Mr. Jarvis : No objection.
— 210—
The Court: Let the exhibit be received in evidence.
(The document above referred to was marked
for identification and received in evidence as:
Plaintiffs’ Exhibit No. 65-5.)
By Mr. Nabrit:
Q. Mr. Hannen, I show you a document marked “Appli
cation for Position, Durham City Schools,” and ask that
you identify the document, if you can, and tell the Court
if this document is used and, if so, for what purpose? A.
This form is used for the re-employment of teachers who
hold teaching positions in any given year in the Durham
City Schools.
Q. Is it correct that a different form is used as an appli
cation for position of new employees? A. Yes, sir.
227a
Lew W. Hannen—for Plaintiffs—Direct
Mr. Nabrit: May it please the Court, I offer this
document marked “Application for Position, Durham
City Schools,” as Plaintiffs’ Exhibit 65-6.
Mr. Jarvis: No objection.
The Court: Let the exhibit be received in evidence.
(The document above referred to was marked
for identification and received in evidence as:
Plaintiffs’ Exhibit No. 65-6.)
By Mr. Nabrit:
—211
Q. Mr. Hannen, I show you a blank form letter with the
letterhead of Superintendent of the Durham Schools, and
ask you whether or not this is not a standard form letter
sent to persons who write to you requesting job applica
tion forms? A. That is correct. This has to do with how
they might obtain certificates.
Mr. Nabrit: May it please the Court, I offer this
as Plaintiffs’ Exhibit 65-7.
Mr. Jarvis: No objection.
The Court: All right, let the exhibit be received
in evidence.
(The document above referred to was marked
for identification and received in evidence as:
Plaintiffs’ Exhibit No. 65-7.)
By Mr. Nabrit:
Q. Mr. Superintendent, I show you a document marked
“Durham City Schools, Durham, North Carolina, Teachers
Salary Schedule 1965-66,” and ask you to identify it. A.
This is the salary schedule adopted by the Board of Edu
cation for teachers’ salaries for the school year 1965-66.
228a
Mr. Jarvis: No objection.
Mr. Nabrit: May it please the Court, I offer this
as Plaintiffs’ Exhibit 65-8.
The Court: Any objection!
— 212—
Mr. Jarvis: No objection.
The Court: Let the exhibit be received in evidence.
(The document above referred to was marked
for identification and received in evidence as:
Plaintiffs’ Exhibit No. 65-8.)
By Mr. Nabrit:
Q. Now, Mr. Hannen, looking at Plaintiffs’ Exhibit 65-8,
would you undertake to explain the various columns of
information on this document so that we may tell what
the symbols indicate? A. The letters on this—
Mr. Nabrit: Excuse me. Your Honor, would you
like to look at one?
The Court: Yes.
A. The letters in the extreme left column indicate the ex
tent of training as a teacher. The B certificate is for a
teacher who does not have a Bachelor’s Degree and the
necessary hours of education, including student teaching.
In other words, this is a substandard certificate compared
to the A certificate. The A certificate is regularly granted
to those applicants who have completed a Bachelor’s De
gree and have fulfilled the requirements, professional train
ing and education, including student teaching. The G cer
tificate is a graduate certificate and it’s based upon both
training and experience.
Lew W. Hannen—for Plaintiffs—Direct
Lew W. Eannen—for Plaintiffs—Direct
—213—
The numbers at the side of the letters indicate the num
ber of years of teaching experience. For example, the “A-0”
would be a certificate rating given to a teacher who had a
Bachelor’s Degree and fulfilled the educational require
ments, but had had no teaching experience prior to the
time that the schedule was in effect.
By Mr. Nabrit:
Q. N owt in order to get a G certificate, is it required that
you have a Master’s Degree? A. That’s correct.
Q. Is the lowest category G-3, is it—the first two years
experience don’t count; is that correct? A. You are re
quired to have three years of teaching experience before
you can attain a Master’s rating. The reason for the G-2
being there is that if the teacher starts with a B rating
and then goes to two years in the A rating, then it would
be a G-2 rating. That’s the only instance in which the G-2
would be used.
Q. Now the next column to that is headed “ State, 1
month.” What is that? A. That is the official state salary
schedule, and this would be paid to the teacher the first
month.
Q. And the next column is headed “State, 9% Months.”
A. That’s multiplying the previous column by 185 days in
the school year or nine and one-fourth school months.
—214—
Q. Nine and one-fourth school months is the length of
the school year? A. Right.
Q. That’s the basis on which the teacher is paid out of
state funds? A. That’s correct.
Q. And the next column is headed “Amount Supplement.”
230a
Would you explain that to the Court? A. That is the
amount of local money which is used to pay teachers at
the various levels. This is derived from a local supple
mentary school tax. This is paid at the request of the
teachers themselves, part of it early in January and the
remainder of it at the conclusion of the school year or the
first of June.
Q. Now do all teachers in the Durham system get this
local supplement for their level? A. All teachers in the
Durham City Schools are under the same salary arrange
ment.
Q. And the final column is entitled “ Salaries” ? A.
That’s correct.
Q. The actual total salary paid to the teachers? A.
That’s correct.
Q. And there’s a footnote at the bottom. Would you
explain that? A. Now the State has provided additional
funds for payments over and above the regular salary
—2 1 5 -
schedule for those persons who happen to hold a Doctor’s
Degree—that is, an earned Doctor’s Degree.
Q. Thank you, Mr. Hannen. Mr. Hannen, I show you a
document marked “Durham City Schools, Classroom Teach
er Distribution, 1963-64,” and ask you if you can identify
this. A. This is information that was compiled by the
business office of the Durham City Schools for the school
year 1963-64.
Mr. Nabrit: May it please the Court, I offer this
in evidence as Plaintiffs’ Exhibit 65-9.
The Court: Any objection?
Mr. Spears: No, sir.
Lew W. Hcmnen—for Plaintiffs—Direct
231a
The Court: Let the exhibit be received in evidence.
(The document above referred to was marked
for identification and received in evidence as:
Plaintiffs’ Exhibit No. 65-9.)
Mr. Nabrit: May I hand a copy of this to the
Court?
By Mr. Nabrit:
Q. Mr. Hannen, would you undertake to explain this
teacher distribution chart, starting with the top row of
columns; what do they indicate, across the top row? A.
The top row indicates the certification status of the vari
ous teachers in the various schools for the school year
1963-64.
—216—
Q. So that, for example the fifth column, which is marked
“A -l,” indicates teachers with A certificate, one year ex
perience; is that correct? A. That’s correct.
Q. In the A group the highest category you have is A-12.
Would you explain that? A. That means that after a
teacher has taught 12 years, she will not receive further—■
higher remuneration per year for further experience be
yond the twelfth full year with an A certificate.
Q. Now would the column of numbers under “A-12” indi
cate teachers with A certificates and 12 or more years of
experience? A. That’s right.
Q. This could be anywhere from 12 up to the oldest
teacher in the system? A. That’s right.
Q. And is the same thing true or a similar thing true
for the category “ Gf-13” ? A. That’s correct.
Q. That’s 13 years or more? A. Yes, sir.
Lew W. Hannen—for Plaintiffs—Direct
232a
Q. Now I notice yon have one teacher with a category
C-4. I believe you indicated to me that there was no longer
any such certificates in the system? A. That was a sub-
—2 1 7 -
standard certificate by one of the very old teachers at the
time, and in the meantime she has completed work which
should entitle her this year to a B rating.
Q. Now, Mr. Hannen, is the distribution of teachers indi
cated on this form for 1963-64 generally representative of
the pattern which has continued to the present time? A.
I can’t answer that without having that information for
the various years.
Q. Well, it’s two years old. I am trying to ascertain if
this is more or less typical.
Mr. Jarvis: Mr. Nabrit, if you would permit me
to interrupt. At the time that this was furnished
to you, there was not available a distribution sheet
or schedule like that for the current year. We will
get one in the hands of the Court, if you would like
to so stipulate, and substitute it or add it to this
exhibit, as soon as we can get it up. I understand
that there may be one available now that one of
the members of the Board has, if you would like
to do that.
Mr. Nabrit: Very good. I will accept that stipu
lation, with the Court’s permission, that the parties
would file a document comparable to Plaintiffs’ Ex
hibit 65-9, but up-to-date, brought up to the most
recent figures; and we would request, Your Honor,
—218—
that that be given an exhibit number now, perhaps.
The Court: Well, let’s put it 65-9(a) when filed,
Lew W. Hannen—for Plaintiffs—Direct
233a
stipulated—I’m just going to write on the bottom
of this in pencil; Stipulated that the defendant will
furnish the Court with comparable data with respect
to— You haven’t filed these figures for ’65-66?
The Witness: No, we have not.
Mr. Jarvis: If it please the Court, we’ll add the
’64-65 and, as soon as one is available for ’65-66,
we’ll also furnish that and furnish counsel for the
plaintiffs with copies, of course.
The Court: Well, let me ask this. Mr. Hannen,
you are not bound by this, but I imagine you have a
pretty fair idea as to whether or not these ’65-66
figures are reasonably comparable to these.
The Witness: That is right.
The Court: There has been no dramatic change,
has there?
The Witness: It would vary from year to year,
but in general it would follow this pattern.
The Court: So isn’t it true that to add to and to
show any changes there, that this year would prob
ably reflect a comparable change?
Mr. Jarvis: Yes, sir.
—219—
The Court: All right. Now that’s it; I put a nota
tion down on this Exhibit 9 that it has been re
ceived in evidence, and see if that’s in accordance
with your understanding.
Mr. Jarvis: Do you want us to sign this, sir?
The Court: No, that’s all right. The record will
disclose it. That is your understanding?
Mr. Jarvis: Yes, sir.
Mr. Nabrit: Yes, sir, Your Honor.
The Court: All right, let it be received in evidence.
Lew W. Hannen—for Plaintiffs—Direct
234a
Lew W. Hannen—for Plaintiffs—Direct
L
& i
By Mr. Nabrit:
Q. Mr. Superintendent, I ’ll ask you if generally Exhibit
65-9 indicates that approximately in the neighborhood of
48 percent of the total number of Negro teachers in the
syslenrhave graduate degrees? A. That’s right.
Q. And I’ll ask you if it also isn’t true that Exhibit 65-9
indicates that something slightly less t.ha.u-2£L percent,
between 18 and 20 percent of the white teachers in the
system have graduate degrees? A. That’s right.
Q. Mr. Superintendent, I ’ll also ask you if generally the
exhibit does not indicate that a substantially greater per
centage of Negro teachers were in the upper range of
experience—that is, 13 years and above, 12 years and
above—than white teachers? A. That’s right.
— 220—
Q. And that conversely you had a large percentage of
white teachers who had less degrees of experience than
there were Negro teachers in that category? A. That’s
right. And of course the factor there that’s important is
that you have a large pool of hundreds and hundreds of
white teachers available as wives of graduate students at
Duke and Carolina.
The Court: Has what? I didn’t hear that.
The Witness: Wives of graduate students who
attend Duke and the University of North Carolina.
By Mr. Nabrit:
Q. What is the pattern with some teachers? I mean do
they come— Isn’t it true that they come and stay a few
years, two or three years, while their husbands are in
school, sometimes one year, and then leave? A. Gener-
235a
ally, these people who are employed stay three or four
years.
Q. Now I’ll ask you to indicate generally—what could
you tell me about what the turnover rate is ; do you know
that? A. No, I don’t know the answer to that.
Q. Well, let me try to get that information in another
way. A. If you are indicating that the turnover rate is
larger, considerably larger, among the white teachers than
among the Negro teachers, that would be correct.
— 221—
Q. Well, can you give the Court an estimate, or the
actual figure perhaps by looking at the interrogatories, of
the number of new people hired? A. Yes. Normally we
would employ between 75 and 100 new teachers each year;
and by “new” teachers, we mean not only additional staff
members, but replacement of staff members.
Mr. Nabrit: May it please the Court, at this time
I would like to offer in evidence the answer of the
defendant to interrogatories submitted by the plain
tiffs on September 3, 1965.
The Court: That’s Plaintiffs’ Exhibit 65-10. It is
the defendant’s answer to—
Mr. Nabrit: Interrogatories submitted by the
plaintiff on September 3, 1965.
Mr. Jarvis: May it please the Court, those an
swers—
The Court: Were the answers submitted Septem
ber 3 or the interrogatories submitted September 3?
Mr. Nabrit: Interrogatories.
Mr. Jarvis: May it please the Court, as a matter
of information, those answers restate the questions
that were submitted—
Mr. Nabrit: Yes.
Lew W. Hannen—for Plaintiffs—Direct
236a
Mr. Jarvis: —so perhaps just introducing the
answers would be appropriate since the questions
are also there.
— 222—
The Court: Well, the original of this is in the
Court file, the original of the answers, and the
answers were filed with the Clerk on September 22,
1965, and appear to be dated, the certificate of
service, on September 21, 1965.
Mr. Nabrit: Yes, Your Honor.
The Court: Do you want to introduce another
copy or do you want this original?
Mr. Nabrit: I would like the original to be marked
perhaps by the Clerk.
The Court: Well now, the original has a number
of exhibits and you would include, of course, the
exhibits attached to it?
Mr. Nabrit: Yes, I would.
The Court: Well, Mr. Clerk, maybe you’d better
take these answers, and they are originals, and mark
them as Plaintiffs’ Exhibit 65-10, and let them be
received in evidence.
(The documents above referred to were marked
for identification and received in evidence as:
Plaintiffs’ Exhibit No. 65-10.)
Mr. Jarvis: May it please the Court, as I under
stand it then, the questions and the answers are
being introduced in evidence?
—223—
The Court: That’s true. The answers wouldn’t
help you much without the questions.
Mr. Jarvis: No. That’s the reason I made that
point.
Lew W. Hannen—for Plaintiffs—Direct
237a
The Court: You do repeat, I believe, in your an
swer you repeat the question and then give the
answer.
Mr. Jarvis: Yes, sir.
The Court: Do those answers have attached any
of the material that you have previously introduced
as an exhibit?
Mr. Nabrit: Any of it? I think not.
The Court: Well, I knew there were some charts
and tables; I didn’t know if there was any duplica
tion.
Mr. Jarvis: I do not believe so, Your Honor.
Mr. Nabrit: I don’t believe there’s any.
Mr. Jarvis: The other information that has been
introduced was furnished informally to the plaintiffs.
The Court: Well, that’s all right. If there is, I
will detect it. It would not make any difference.
Mr. Hannen, while he is looking at that, let me
ask you a question. I imagine your experience is
much the same as other School Boards’. You say
that the Board employs from 75 to 100 new teachers
a year, which are for new positions created because
of expanding enrollment, I presume, and also for
—2 2 4 -
replacement of teachers who resigned the year be
fore. Do you have normally as many applicants,
teachers with A or G certificates that is, qualified
applicants, as you have positions to fill or do you
have to go recruit or do you have two applications
for each position or one and a half; can you give
me any information about that?
The Witness: Yes, sir. We do recruit in various
ways, particularly from all the student training in-
Lew W. Hannen—for Plaintiffs—Direct
238a
stitutions in the southeastern quarter of the United
States, plus sending out a brochure. We also ask
our teachers and principals when they go to educa
tional meetings to try to find some friends or ac
quaintances, those who would be desirable to try
to recruit to come to Durham.
But in addition to that we have these girls,
largely girls, from all over the United States who
come here with their husbands to do graduate
work, which means that we have a pool of perhaps
between five hundred and a thousand applicants
among that group. And this would not be true in
any other large city system in North Carolina, and
very few places in the Southeast. This means that
ordinarily we in most cases would have many more
applicants than we .have teaching positions.
For example, English or social studies would be
- 2 2 5 -
fields in which we would have dozens more applica
tions than we would have vacancies each year. On
the other hand, when you start looking for a chemis
try teacher or a vocational teacher or someone to
teach Russian, for example, we might have con
siderable difficulty in finding that particular person
at a given time.
The Court: Do you teach Russian here!
The Witness: Yes, sir. Only two schools in the
State are teaching it; Durham High School is one
of them. We also teach German; I think there are
about eight or nine high schools in the State teaching
German.
The Court: Well, you have answered. Thank you.
Lew W. Ilannen—for Plaintiffs—Direct
239a
Lew W. Hannen—for Plaintiffs—Direct
By Mr. Nabrit:
Q. Mr. Hannen, if yon will look at your answer to In
terrogatory Number 17, isn’t it correct that this indicates
the number of new teaching positions, that is the net in
crease in teaching positions, during those three school
terms, those last three school terms? A. These figures
are the number of teachers employed to fill vacancies
which occurred during the school term each year.
Q. Would you— Are you sure of that, sir? I ’m not dis
puting you; I just— Would you read that? A. I ’m sorry.
I thought this was another table that you had.
Q. All right. A. These are the positions that were
—226—
created as new, additional positions during these years
given.
Q. So that you had in ’63-64 eighteen new positions, in
’64-65 sixteen new positions, and ’65-66 four new* positions ?
A. That’s right.
Q. But in each of those years you were— A. Replacing
people.
Q. —nonetheless hiring in the neighborhood of 75 to
100 people as replacements or including— A. Including
these.
Q. Including these and replacements? A. Right.
Q. Now, Mr. Hannen, I would ask you to look at Exhibit
1(e) to the answers to interrogatories, which is a page
headed “Number of Professional Personnel at Each School
by Race, June 1965,” and I ask you if these two pages of
that document do not indicate the staff distribution by
race for the last school year, ’64-65 year? A. That’s cor
rect.
240a
Q. The situation in June when the school ends? A.
That’s correct.
Q. Now isn’t it also true, sir, that this document in
dicates that at that time in the schools that were attended
entirely hy Negro pupils, there were only Negro teachers
and there were no white teachers in those schools as of
June 1965? A. That’s correct.
—227—
Q. And that in the schools where white pupils attend,
including in that category both the all-white schools and
the predominantly-white schools, there were no Negro
faculty members and only white faculty members? A.
That’s right.
Q. Now is it also correct that that pattern, that that
came about because of the policy and practice of the
Durham school system to assign teachers on the basis of
the race of the pupils in the schools, a system that grew
up under the segregation laws and has continued to 1965;
isn’t that correct? A. This was the system or custom or
i practice. I cannot say that I have been able to find any
! written policy to that effect.
Q. Now to return to Exhibit 2(e) to the interrogatories,
a similar document dated September 13, 1965, and I ask
you if this isn’t the faculty distribution by race as of
the most recent date available, the beginning of this school
year? A. That’s right.
Q. And I ’ll ask you, sir, if the prior racial pattern did
not continue with one exception at Hillside High School?
A. That’s correct.
Q. And that one exception is a white teacher who has
been hired at Hillside High School, an all-Negro school?
{A. That’s correct.
Lew W. Hannen-—■for Plaintiffs—Direct
241a
Q Now I ’ll ask you, sir, if it’s not a fact that on August
—228—
30, 1965, the Durham School Board voted to continue in
effect its policies with respect to assigning teachers by
race, the present policy, the pre-existing policy, and stated,
however, that by majority vote of the Board it might make
exceptions in the future; is that a fair statement of what
they did? A. With one other phrase at the end, for as
signment—
Mr. Spears: Excuse me. He’s asking about some
thing written. Just read the statement.
Mr. Nabrit: I ’m asking him about his under
standing of—what his understanding was.
Mr. Jarvis: Your Honor, that statement is already
in the record there. It might be different from what
is actually stated in the record.
The Court: Well, I think that what they did would
be the controlling thing. I don’t know whether Mr.
Hannen has any recollection or understanding dif
ferent from what it is; and why would his under
standing be relevant? If he has an erroneous under
standing—I don’t know that it is any different.
Mr. Nabrit: I think it’s ambiguous—slightly am.
biguous—not really, I think.
The Court: Is this in the record anywhere? A
copy was filed?
Mr. Jarvis: Yes, sir. It’s part of Exhibit Num-
—229—
ber 3.
The Court: Attached to what?
Mr. Jarvis: I believe that’s the minutes of the
Lew W. Ilannen— for Plaintiffs—Direct
242a
meeting of August 30th that are in evidence, and
that’s where that policy was stated.
Mr. Nabrit: That’s correct, Your Honor. If you’ll
look on page two of Exhibit 65-3.
The Court: Yes, that’s on the second page; I
see it. Now I’m not just sure; I guess this was
filed pursuant to the memorandum here of July
22nd, but there was filed on September 13th with
the Clerk a more comprehensive report concerning
practices of the Board with respect to the employ
ment and assignment of teachers and so forth.
Now is that a part of the record anywhere? It’s
just in the Court file here.
Mr. Jarvis: It has not been introduced into evi
dence yet, Your Honor. That is what is referred
to in these meetings; that was adopted at this
meeting.
The Court: Well, I notice the same paragraph is
in that report. Do you propose to introduce— You
have a copy of this, I assume?
Mr. Nabrit: Yes, I have one right in hand, Your
Honor.
The Court: It’s addressed to—the first part of
the report is addressed to Mr. Herman A. Rhine-
—2 3 0 -
hart, Chairman, and so forth. Do you propose to
introduce that? I don’t know whether you’ll want
it in the record or not.
Mr. Nabrit: Well, I am in the position, Your
Honor, where I want it in the record but I also
want to cross-examine the witnesses about the docu
ment. I’m reluctant to put it in as my own exhibit,
unless I question witnesses about it.
Lew W. Hannen—for Plaintiffs—Direct
243a
The Court: Well, I ’ll give you some latitude on
that. Do you propose to put it in?
Mr. Jarvis: We propose that it should be in the
record.
Mr. Nabrit: I agree.
The Court: Well, I wanted to get it out of the
Court file if I ’m not supposed to consider it. It’s
just there and I had looked over it preparatory to
this hearing, and I didn’t want to be considering
something that was not a part of the record and
that was the reason for my inquiry.
Mr. Nabrit: That was properly before the Court.
It was filed in response to Your Honor’s direction
that the committee make a report.
The Court: Well, if you want to put it in, I ’ll
give you latitude about cross examination.
Mr. Nabrit: Very well, Your Honor. I ’ll ask Mr.
— 231—
Hannen about it now.
By Mr. Nabrit:
Q. Mr. Hannen, would you identify the document be
fore you, which is a great number of pages there? Would
you tell what the various documents put together here
are, the first one? A. This is a report to the Chairman
of the Durham City Board of Education, Mr. Herman A.
Rhinehart, dated August 20, 1965, pertaining to the work
of a committee studying employment and assignment of
professional personnel. It sets forth information regard
ing meetings of the committee, information accumulated
by the committee, and concludes with some recommenda
tions and observations by the committee; and it has at
tached to it certain—
Lew W. Hannen—for Plaintiffs—Direct
244a
Q. What is the first document attached to it? A. __cer
tain documents, one on the National Teachers Examina
tion.
Q. Now that document, “Subject: National Teachers
Examination,” is that the— A. This is a report of—
Q. A report from the School Board Chairman and you
to this committee about a meeting you had? A. Yes. This
is an explanatory insertion here that is referred to in
the document submitted by the committee and it purpoi'ts
to give the results of a meeting held between the Chairman
of the Board and the Superintendent on the one hand
—232—
and a committee of professional people on the other, re
garding certain suggestions with reference to giving the
National Teachers Examination.
Q. All right. Now turning to the next attachment, it’s
marked “Summary of Questionnaire Filled out by Profes
sional Personnel.” There’s one sheet that has on it “White
Teachers” ; the next sheet has on it “Negro Teachers.”
Am I correct that this purports to be a tabulation of ques
tionnaires answered by the teachers? A. That’s right.
Q. Now can you tell us how the tabulation was con
ducted? A. The tabulation was made by the clerical staff
of the Durham City Schools under the direction of the
Superintendent, and then was made again, was double-
checked by other members of the clerical staff.
Q. Now am I correct that on this questionnaire the
person who made the tabulation indicated “No preference
stated” for any respondent who did not use the numerical
preference system, one, two, three—that is, someone who
wrote in “yes” or wrote a little note or put check marks
—people that responded in that fashion were listed “no
Lew W. Hannen—for Plaintiffs—Direct
245a
preference” ? A. I think that the instructions given were
that if there was one check mark in a series of possibilities,
where you had, for example here, five choices and here
you had eight choices—
Q. Well, I guess I—
—233—
Mr. Jarvis: Well, let him explain, please, Mr.
Nabrit. I think he’s attempting to.
By Mr. Nabrit:
Q. Go ahead. A. Where there was one check mark for
any one of these series, this was counted as a first choice
since it was the only choice; or if it was a “yes” or a “no,”
it was counted as a first choice if that was the only mark
in that series.
Now if these were labeled one, two, and three, we counted
just the first choice of this person, so that in the final
tabulation you would have exactly the same number of
answers that you had respondents to the questionnaire.
Q. There was no tabulation of second choices? A. No
tabulation of second or third choices.
Q. Now isn’t it correct that the actual questionnaire,
under the first half of the page there where, “I am qualified
to teach,” there are really only four questions and no
preference is stated on the questionnaire? A. That’s right.
Q. They had four categories; it was: “ I am qualified to
teach,” and “I am willing to teach,” either “integrated
classes,” “predominantly Negro classes,” “predominantly
white classes,” or “any of the above equally” ; those were
the four? A. That’s right.
Q. Blanks the teachers could mark. Now who prepared
this questionnaire, do you know? A. This questionnaire
Lew W. Ilannen—for Plaintiffs—Direct
246a
Lew W. Hannen—for Plaintiffs—Direct
—234—-
was prepared by the committee working on the employ
ment and assignment of professional personnel.
Q. Do you know if any of them had training as to
opinion-sampling techniques, as to how to design a scien
tific opinion instrument? A. I think you would have to
ask them that question.
Q. You don’t know that any of them had that training?
A. I ’m not aware of what training that any of them had.
Q. Continuing with the documents in this set of papers,
we next come to a document that is marked “Application
for Position,” and has handwritten at the top “old.” A.
That’s right.
Q. And that’s followed by another one, similar but
slightly different form, that has at the top “new” ? A.
That’s correct.
Q. Now would you tell us what these two documents
are? A. These are the applications for positions used by
the Durham City Schools, that are sent to the various
applicants who are seeking teaching positions in the Dur
ham City Schools.
Q. Now what are the old and new? When was the old
used and when was the new used? A. The new was
adopted within the last two years when it became in
creasingly important that we have data on hand regarding
the scores of teachers on the National Teachers Examina
tion. This is essentially the main difference in the two
—2 3 5 -
documents.
Q. Now am I correct that these are the forms which are
sent to the new person who has never been associated
with this system before who applies for a job? A. That’s
correct.
247a
Lew W. Hannen—for Plaintiffs—Direct
Q. Now is it also correct that both applications, the old
and the new, asks for the race of the applicant and for a
photograph to be attached? A. Yes, sir.
Mr. Nabrit: May it please the Court, I would
offer the documents that the witness has just de
scribed, the report of the committee studying the
employment and assignment of professional per
sonnel and the various attachments.
The Court: How about taking the one filed with
the Court bearing the Clerk’s stamp of September
13, 1965? You look that over and see and then we
will not have duplicates in.
Mr. Nabrit: We offer this as Plaintiffs’ Exhibit
65-11.
The Court: Let it be received in evidence.
(The documents above referred to were marked
for identification and received in evidence as :
Plaintiffs’ Exhibit No. 65-11.)
By Mr. Nabrit:
—236—
Q. Mr. Hannen, I show you a document marked “Mi
nority Report of the Subcommittee on the Desegregation
of Teacher Personnel and Staff of the Durham City Board
of Education,” and ask you if you identify this document?
A. Yes. This is a notation or report to the Chairman of
the Board from Doctor Theodore E. Speigner, stating rec
ommendations that he wished to make regarding the em
ployment and placing of teacher personnel.
Q. Doctor Speigner was a member of the subcommittee—
A. Yes, sir.
Q. —referred to in Exhibit 10? A. Yes, sir.
248a
Q. And his name is listed on that report but he also filed
a he didn’t sign it but he filed a minority repo rt; is that
correct? A. That is right.
Mr. Nabrit: May it please the Court, I offer in
evidence the minority report of Doctor Speigner.
The Court: That will be Plaintiffs’ Exhibit 65-12.
Let it be received in evidence.
(The document above referred to was marked
for identification and received in evidence as:
Plaintiffs’ Exhibit No. 65-12.)
* * * * *
— 237—* * * * *
Mr. Nabrit: May it please the Court, at this time
I would like to offer into evidence the depositions of
Lew W. Hannen, Doctor Theodore R. Speigner, Mrs.
—238—
Annie Laurie Bugg, and Mr. George Reid Parks,
three members of the School Board and the Super
intendent of Schools, taken in this case—
Mr. Jarvis: Objection.
* * * * *
—242—
* * * * *
Mr. Jarvis: Well, as I say, we withdraw our ob
jection.
The Court: Well, I believe it would be better then
to give them separate exhibit numbers. Now Plain
tiffs’ Exhibit 65-13 is the deposition of Mr. Parks,
and Plaintiffs’ Exhibit 65-14 will be what deposition?
Lew W. Hannen—for Plaintiffs—Direct
249a
Mr. Nabrit: Mrs. Bugg.
(The depositions above referred to were marked
for identification, respectively, as: Plaintiffs’
Exhibits Nos. 65-13 and 65-14.)
The Court: And Plaintiffs’ Exhibit 65-15 is the
deposition of!
Mr. Nabrit: Doctor Speigner, S-p-e-i-g-n-e-r.
(The deposition above referred to was marked
for identification as: Plaintiffs’ Exhibit No.
65-15.)
The Court: And Plaintiffs’ Exhibit 65-16 is the
deposition of?
Mr. Nabrit: That will be the deposition of Mr.
Hannen.
—243—
(The deposition above referred to was marked
for identification as: Plaintiffs’ Exhibit No.
65-16.)
The Court: And Plaintiffs’ Exhibit 65-17?
Mr. Nabrit: We have all four of them, Your
Honor; we have 13 through 16. There were only
four that were deposed.
The Court: Only four, all right. Well, let those
exhibits then be received in evidence without objec
tion.
(The four depositions above referred to, hereto
fore marked for identification, were received
in evidence as: Plaintiffs’ Exhibits Nos. 65-13,
65-14, 65-15, and 65-16.)
Lew W. Hannen—for Plaintiffs—Direct
250a
Mr. Spears: Now, Your Honor, I want to make
a statement; as far as I ’m concerned, it’s off the
record. We did not object in the beginning to Mr.
Parks’ because Mr. Parks had to be out of the city,
and it was agreed between counsel that we could use
his deposition because he could not be here; and
that’s the reason we didn’t object to Mr. Parks’.
The Court: All right, sir.
Mr. Nabrit: If it please the Court, at this time I
would like to offer into evidence four documents
which are certified as true copies in a form accord-
—244—
ing to the statutes by the Assistant General Counsel
of the Department of Health, Education, and Wel
fare. These four documents all pertain to school
desegregation and, in order, they are a document
entitled “ Plan of Desegregation,” which deals—the
first sheet deals with instructions and then the second
is a sort of a blank form, “Desegregation Plan Based
on a Freedom of Choice System.” The second docu
ment is a memorandum from the United States Com
missioner of Education dated June 9, 1965, on the
subject of “Discriminatory Dismissal of Negro
Schoolteachers in Connection with Desegregation.”
The third document as certified is a document en
titled “ General Statement of Policies Under Title
VI of the Civil Eights Act of 1964 Respecting De
segregation of Elementary and Secondary Schools.”
That’s dated April 1965. And the fourth document,
another document entitled “Plan of Desegregation,”
which deals with—it’s a blank form plan dealing
with geographic attendance zones.
Lew W. Hannen—for Plaintiffs—Direct
251a
I have copies of these.
Mr. Spears: We object to each of those documents
offered.
The Court: Have you seen a copy of them?
Mr. Jarvis: Yes, sir.
Mr. Spears: He showed me this morning, but I
- 245-
object to it.
Mr. Jarvis: We have seen these documents as they
were furnished to the Board from time to time.
The Court: As they were furnished to the Board?
Mr. Nabrit: By the Department of Health, Edu
cation, and Welfare.
Mr. Jarvis: By the Department of Health, Edu
cation, and Welfare.
The Court: Well, let me see them.
Mr. Jarvis: We don’t think that these documents
are competent.
Mr. Nabrit: May it please the Court, on the issue
of authenticity, I think that’s covered by the Federal
Rules.
Mr. Jarvis: Oh, we would stipulate that they are
authentic. It’s a question of their competency.
Mr. Nabrit: May it please the Court, as I say, my
principal purpose in submitting these is at the con
ference we had here in open Court this summer, the
Court indicated it wanted to be informed about the
policies of HEW respecting faculty desegregation.
So I talked with the staff there in Washington and
asked them to give me the documents which indi
cated their policies. This was the agreement. That’s
why I’m offering it.
Lew W. Hannen—for Plaintiffs—Direct
252a
Lew W. Ilannen—for Plaintiffs—Direct
— 246—
The Court: Well, I don’t remember verbatim what
was stated. I think what I had in mind when I made
that statement back then was that I was generally
familiar with the fact, that it had been in the press
that the Department of Health, Education, and Wel
fare were requiring something in this field as a pre
requisite to the receipt of Federal funds in the
operation of school systems, and that perhaps if this
administrative unit received and used Federal funds
that it would be a final solution to this entire area
between the obligation imposed upon the School
Board by Health, Education, and Welfare as a pre
requisite to the receipt of those funds; thereby it
might avoid any further controversy in Court in the
area, I think is what I had in mind.
Mr. Nabrit: May I say, Your Honor, that I intend
to question the witness about the negotiations of the
School Board with HEW, the present status of it,
about the receipt of these documents I just offered
in evidence from HEW, the Board’s consideration
of them.
I represent to the Court that there is a discussion
of these documents by the witnesses in the deposi
tions, and I am prepared to argue a great variety
of reasons why these documents are relevant and
of interest.
One of them, the document has quoted it in full,
—247—
the recent opinion of the Fifth Circuit, the guide
line, the appendix, it’s completely printed in Federal
Second. So these are not documents of any great
secret or anything. These are publicly-announced
253a
policies of the Department. I think they have a direct
legal bearing on the situation.
The Court: Well, I can see this, Mr. Nabrit, that
if you think that you are attempting or these plain
tiffs are attempting to enforce some provision of the
Civil Eights Act, then that’s one thing, if that law
is applicable to this situation. Now if it is not and
you are seeking the protection of constitutional rights
in what some Federal bureau or agency might or
might not do in this field, it doesn’t seem that it’s
pertinent to this inquiry.
Now the question, if the plaintiffs here are content
with the requirements of Health, Education, and
Welfare and what they require of the School Board
and the School Board’s compliance with that as long
as they receive Federal funds, then that ends all of
our controversy because there is another agency en
forcing it.
But here now you are applying to the Court, and
I don’t see how you can have it all ways, to say: I
want what they require the Court to enforce and then
—248—
I want, in addition to that I want to go beyond their
requirements and to take the combination of those
requirements and the requirements of the decisions
of the Courts in the field, and I am seeking the more
favorable of the combination.
I don’t see that you can do that.
Mr. Nabrit: I am almost put in the position by
Your Honor’s question of having to make a full
argument on the merits, but let me try to do it real
quickly.
The Court: All right.
Lew W. Hannen—for Plaintiffs—Direct
254a
Mr. Nabrit: Number one, our suit is under the
Constitution and is authorized by the Acts of Con
gress giving District Courts the right to jurisdiction.
Number two, it is relevant for the Court’s con
sideration of what to do about any constitutional
question, what Congress has done, said, and author
ized the Executive Branch to do in carrying out, in
implementing the first section of the Fourteenth
Amendment and an Act passed under the fifth sec
tion of the Fourteenth Amendment.
Number three, the Fifth Circuit has held twice a
proposition which I think commends itself to rea
son, and that is that it’s just a matter of relation
ships between the Judicial and the Executive
Branches of the Government; that the Judicial
Branch ought to pay attention—when they are both
—249—
operating in the same field, the Judiciary ought to
inform itself on what the Executive Branch is doing
in the same area and make efforts to—not to work
in conflict, at least, within of course—recognizing,
of course, the different responsibilities, the fact that
the Court’s obligation in the last analysis is not to
do what the Executive Branch wants, but what is
constitutional, and all that.
The Fifth Circuit held in the Singleton case re
cently and in the case called Price against Dennison
that it would give great weight to the Office of Edu
cation guidelines, one of these documents I just of
fered in evidence; and I think that’s only reasonable
because certainly the Congress, in passing Title VI,
putting the Commissioner in the picture, didn’t in-
Lew W. Hannen—for Plaintiffs—Direct
255a
tend to promote conflict between the Judicial and
the Executive Branch any more than was necessary.
The Court: Well, let me ask you this. I know
nothing about— Is it or is it not a fact that the Com
missioner, where there has been a Court order, has
adhered to the Court order and accepted that com
pletely or has the Commissioner gone beyond the
Court order and imposed additional restrictions on
boards as a condition precedent to the receipt of
funds ?
Mr. Nabrit: I have no reliable information other
—250—
than those guidelines, what he said he was going
to do.
The Court: What does he say he is going to do?
Mr. Nabrit: And it’s vague. It’s vague. What
they say, the reference is to final Court orders and
Court orders of a certain kind.
The Court: Where is that?
Mr. Nabrit: Well, if you start at the first page
of the guidelines, Roman numeral II, “Methods of
Compliance” indicates four things. One of them, one
of the alternatives is : “Submitting a final order of a
court of the United States for the desegregation of
the school or school system which satisfies the re
quirements specified in IV below, together with an
Initial Compliance Report” ; and then IV is also on
the same page. They undertake to— They talk about
final orders and they talk about orders which direct
desegregation of the school system. They talk about
the compliance reports, and then—
The Court: Well, that would look like, just from
reading this—I have never seen this before—but it
Lew W. Hannem—for Plaintiffs^-Direct
256a
looks like that he would accept compliance with the
Civil Rights Act or compliance with the Court order
if the Court order is to his liking, but if it’s not to
his liking that he will impose additional require
ments. Isn’t that about what he says ? “Submitting
a final order of a court of the United States for
—251—
the desegregation of the school or school system
which satisfies the requirements specified in IV be
low” ; and the IV : “A school system subject to
a final order of a court of the United States will
be eligible for Federal assistance only if the order
directs desegregation of the school system; it does
not suffice if the order merely directs school author
ities to admit certain named persons or otherwise
fails to require the elimination of a dual or segre
gated system of schools based on race, color or na
tional origin.” And then they have to indicate the
present state of compliance with the order and the
school district’s program.
In other words, if it goes as far as he thinks it
should go and contains the provisions he thinks
it should, that he will approve it; otherwise, that
he will impose requirements beyond the Court order.
Mr. Nabrit: Well, we can all read it. I have no
access to any information beyond this document.
The Court: Well, that’s the first time I ’ve ever
seen this document; but I just don’t, Mr. Nabrit,
see how that is germane.
Now I am going to do, as I am given the wisdom
to know and to read and to understand, what the
Courts have said is proper in this area depending
upon the evidence adduced. That I have always
Lew W. Hannen—for Plaintiffs—Direct
257a
Lew W. Hannen—for Plaintiffs—Direct
—252—
attempted to do in these orders. Now we have here
specifically an opinion of the Court of Appeals for
this Circuit some three months ago speaking to the
only areas that we have before us. Number one is
what sort of plan should be required of the Board,
that is, a continuing type of plan; should the Board
be required to submit a plan based on compact dis
tricts and using natural boundaries and so forth, or
is a true freedom of choice as was laid out in some
detail in the Richmond case and referred to in the
opinion here in this case—is that sufficient if the
Board elects to do that.
Now that is one question we have. The other is
this desegregation of the faculty and administrative
personnel. As I read those decisions, it was that
the plaintiffs are entitled to show as to how the
present practices or lack of desegregation of teacher
and administrative personnel affects the child; and
if there is a showing that a child is adversely af
fected, then that you have perhaps met the require
ments. But it seems to me that is the only area; and
how the Secretary of Health, Education, and Wel
fare by his rule can help us in that area I do not
know.
I have tried to give you every latitude possible
and, as you recall, even your own witness said
yesterday, “Well, maybe I shouldn’t go into that
—253—
because that has been covered in other speeches to
day.” And they were largely “ speeches.” It was all
right; I let it in. I have tried to get everything in
that is germane to this. But if we go to taking the
258a
opinions of all agencies and individuals who write
rules and regulations to try to aid us in this, we’ll
be here for weeks.
I just do not think it’s competent under the deci
sions of the Court. They are my guide and I ’m
going to try to comply with them just as scrupu
lously as I know how. Now if you will point out to
me—I’m going to follow—I don’t think anybody
should ask me to do otherwise—I am going to
follow as nearly as I know how to do it the pro
nouncements of the Court of Appeals for this Fourth
Circuit and the Supreme Court of the United States
if they have spoken in appeal. Now if they haven’t
spoken in appeal, then of course the Fifth or Tenth
or any other Circuit becomes important, if they
haven’t spoken. But if the Fourth Circuit has spoken
in an area, there is no need to suggest to me that I
ought to take another Circuit over our own Circuit
and to substitute my judgment for theirs. I’m not
going to do that.
Mr. Nabrit: Your Honor, isn’t that a point that
the Fourth Circuit hasn’t really definitively decided
—254—
the issue of, teacher segregation? They sent it back
for evidence.
The Court: No, they have said it and as I under
stand it—the decisions are here; we can get them
out—they said that these plaintiffs had standing to
complain but there had been no record made and
no attempt to show how their rights were affected
by the other, and it was remanded to give the plain
tiffs an opportunity to show how the rights of the
individual minor plaintiffs and their parents were
Lew W. Hannen—for Plaintiffs—Direct
259a
affected by the policy of the Board; and that’s what
we are here taking evidence on.
But how the Secretary of Health, Education, and
Welfare can aid us in that area I do not see.
Mr. Nabrit: The point was a simple one in per
haps a half a dozen cases in the past. My reference
to the Fifth Circuit was not to suggest that this
was directly binding on you, but to show how one
Court regarded the HEW policy as not only being
relevant but controlling.
The Court: Well, I have read those cases of the
Fifth Circuit. I attempt to read every advance sheet
from cover to cover when it comes out, and I read
those cases. I have not gone back and studied it.
Mr. Nabrit: Well, Your Honor, I don’t want to
be arguing with your ruling but—
—255—
The Court: I want to give you every bit of lati
tude I can, but there must be some bounds within
which we keep it. You can establish that, the policy
here and how it affects the students here; I think
that’s what our Court of Appeals has said. And as
to what Health, Education, and Welfare might re
quire of some school board as prerequisite to getting
funds, I don’t know. I have had no experience with
them and I am not suggesting that they would do
anything. But they say, well, I have the funds, and
they can make all sorts of demands that could or
could not be enforced in Court. I can see that and
I am not prepared yet to say that a Court should
take what they say as gospel and to abdicate your
authority. Our Court of Appeals hasn’t said it.
When they do I’ll be glad to comply, but until they
Lew W. Hannen—for Plaintiffs—Direct
260a
instruct me to do that I just do not think it is rele
vant to the inquiry.
Mr. Nabrit: May it please the Court, I would
move that the documents I have offered in evidence,
and which Your Honor has rejected, be marked for
identification and filed in the record under Rule 43
as excluded evidence.
The Court: Sure, I ’ll be glad to do that. It will
still bear the mark of 65-17 and will be a part of
the record, but it will not be received in evidence.
—256—
(The documents above referred to were marked
for identification as: Plaintiffs’ Exhibit No.
65-17.)
The Court: Let’s take about a five-minute recess.
(Whereupon, a short recess was taken.)
Mr. Nabrit : May it please the Court, perhaps this
is an excess of caution. I don’t know if I am required
or not to indicate an exception to the exclusion of
the Exhibit 65-17.
The Court: All right. You may put it in the
record.
By Mr. Nabrit:
Q. Now, Mr. Hannen, isn’t it a fact that the policy of the
School Board with respect to placing teachers as imple
mented by you has been to attempt to screen Negro appli
cants to obtain the best Negro applicants for the jobs in
the Negro schools, and to screen white applicants, white
applicants only, in the schools with white pupils, to try to
get the best of that group ? A. I don’t want to belabor the
Lew W. Hannen—for Plaintiffs—Direct
261a
semantics in the case, but there is no written policy that
I have been able to find on that; but that has been the pro
cedure and the custom.
Q. And it has been your understanding that this is what
the School Board required you to dot
Mr. Spears: Objection.
The Court: Well, ask him like this: Has that
—-257-
procedure and custom met with the approval of the
School Board?
The Witness: Yes, it has.____
The Court: Isthat what you want?
Mr. Nabrit: Yes, sir. Thank you.
By Mr. Nabrit:
Q. Now isn’t it a fact, Mr. Superintendent, that you have
had discussions with the School Board about changing the
policy and about a program of faculty desegregation? A.
Yes, sir.
Q. Isn’t a a fact, Mr. Superintendent, that during the
summer of 1965 at one meeting you suggested to the School
Board the possibility of transferring a Negro librarian
from a Negro school to a white school, but that the Board
declined to approve that suggestion, indicating generally
that they didn’t think it was time for such a step? Is that
accurate? A. It is accurate that this was discussed and
that that suggestion was made, but there was no action
taken by the Board or referred to in the minutes as action
of the Board at that meeting.
Q. Well, isn’t it accurate to say—and didn’t you testify
on your deposition—that your perception of the majority
response of the Board members was that they thought it
Lew W. Hannen—for Plaintiffs—Direct
262a
wasn’t the time to do such thing? A. That was my testi
mony in the deposition; that is correct. But I still assert
—258—
that there was no motion made, seconded, and passed at
that meeting, and therefore no formal action taken. And
I gave in my deposition purely my personal impression of
what the general attitude of the Board was toward that
particular situation.
Q. And subsequently, after that meeting you employed
a white librarian for that vacancy, so the question was
resolved in that manner? A. Yes, sir.
Q. Now, Mr. Superintendent, there is in evidence a Board
resolution which pertains to this subject in the minutes of
August 30, 1965. Let me ask you first if it’s not a fact
that Doctor Speigner submitted a minority report of that
committee and disagreed with part of the committee report
and so indicated at that meeting? A. I don’t recall that
that was submitted as a minority report at that meeting.
I do recall that Doctor Speigner read a statement, several
parts, at the meeting.
Q. And that statement he read, is that the document
which is in evidence as Exhibit 65-12? A. I ’m not sure
that that is the exact document. I am sure that it contains
essentially the point of view that Doctor Speigner ex
pressed at that meeting.
Q. Now referring to Exhibit 65-3, at the bottom of the
second page there is a resolution which is quoted there.
—259—
I’ll ask you first to read it to the Court. A. “The present
policies of the Board with respect to employment and
assignment of teachers and other personnel have provided
our school system with an effective program of education
Lew W. Hannen•—for Plaintiffs—Direct
263a
for all the pupils of our schools. The committee recom
mends that we continue our present policies, but that the
Board in the employment and assignment of teachers and
other personnel, by majority vote of its members, make
exception to any of its policies for valid and sound educa
tional reasons.”
Q. Mr. Superintendent, as far as you know, is this the
only written policy of the Board that relates to the assign
ment of personnel by race? A. That is true, except for
any of the documents that were introduced from the policy
manual that might be pertinent to this.
Q. But the policy manual doesn’t reflect the practice you
just spoke of, assigning Negro teachers to Negro schools
and whites to white; is that correct? It doesn’t say anything
about it one way or the other? A. No, sir. But it does
discuss the employment and placement of teachers.
Q. But in terms of this matter of racial assignment
policies, this paragraph you just read is the only thing
that there is that’s written? A. To the best of my knowl-
—2 6 0 -
edge, that’s correct.
Q. Now, Mr. Hannen, referring to the Exhibit 65-11 and
in particular to the page marked, “ Summary of Question
naire Filled Out by Professional Personnel,” the one indi
cating white teachers, would you refer to that?
Now, first, isn’t it a fact that in the tabulation there was
no indication given to people’s second preference or third
preference? A. Yes, sir.
Q. And also isn’t it a fact that the tabulation doesn’t
really indicate—there’s no effort to indicate the intensity
of the feeling of the respondents about that, whether their
second preference was something they really would do, for
Lew W. Hannen—for Plaintiffs—Direct
264a
example? A. This simply was a tabulation of the re
sponses by the various teachers regarding what they pre
ferred to do, and we assumed that their first choice was
what they preferred to do.
Q. Do you have any idea of the number of white teachers
who are now actually teaching integrated classes? A. No.
Q. It would be in excess of the 29 that indicated willing
ness, wouldn’t it? A. Probably.
Q. Isn’t it a fact that the answers to interrogatories
—261—
indicate that Negro students are at a good number of the
predominantly-white schools. Do you know how many? A.
All but one.
Q. All of the white schools— How many white schools?
A. It would be ten I believe.
Q. And they are at all grade levels? A. I don’t follow
your question there.
Q. The Negro pupils attending. A. At all grade levels
in some schools, but not at all grade levels at other schools.
Q. And Exhibit 2 attached to the answers to interroga
tories indicates how they are distributed throughout the
school system? A. Yes, sir.
Q. Now what was the total number last year of Negroes
attending school with whites, and this year? A. As I re
call, the total last year was between four and five hundred;
it varied from time to time. And the total this year as of
the date that this deposition was taken, or the latest avail
able information for the deposition was 601.
Q. Returning to this questionnaire, you had 24 white
teachers who have indicated that they were willing to teach
any of the classes equally, is that correct? A. That’s cor
rect.
Lew W. Hannen—for Plaintiff s—Direct
265a
Q. And you had 53 who didn’t indicate any preference
— 262—
at all? A. That’s correct.
Q. Isn’t it a fact that some of those persons in that 53
were people who made check marks under one, two, and
three, or one, two, three, and four, without indicating which
one was their first choice, just indicated check marks on
all the boxes, one or more of the boxes? A. If there were
instances of that, then these people would be counted as
not having given a preference.
Q. And there were such persons? A. I’m not sure. I
suspect there were a few.
Q. There wasn’t any count of all the people who didn’t
return the questionnaire with some marking on it, I mean
in this total of 323? A. Nor, sir, all of these were.
Q. All of these indicated something? A. Some response,
that’s right.
Q. Now turning to the next page, which is a summary
of the responses of Negro teachers, 48 said they were will
ing to teach integrated classes; correct? A. That’s correct.
Q. And 50 said they were willing to teach predominantly
Negro classes? A. Yes, sir.
Q. One said predominantly white classes? A. Yes, sir.
—263—
Q. And 160, by far the largest number, said they were
willing to teach “Any of the above equally” ? A. Yes, sir.
Q. With 29 more saying no preference? A. Yes, sir.
Q. Now, Mr. Superintendent, wouldn’t you conclude—
or do you conclude from this questionnaire in the form it’s
in now that with respect to both white and Negro teachers,
there are fairly good numbers who would be willing to
try a different situation from their prevailing practice if
Lew W. Hannen—for Plaintiffs—-Direct
266a
the administration offered them the opportunity? A. I
think you would have to take these statistics exactly as
they are given and go on from there.
Q. With these questionnaires you didn’t have the names
of the people in all eases; some signatures were signed but
no signatures were necessary? A. That’s correct, and you
would have no way of knowing who these people were so
that you could follow through administratively on the
choices.
Q. You would know some but you wouldn’t know for
others? A. That’s correct.
Q. And isn’t it a fact, Mr. Superintendent, that the
School Board has not to date taken any action or made any
statements to the teachers in the system indicating that
it’s in favor of such applications or would look with favor
— 264—
on such applications? A. There has been no statement, to
my knowledge, of that type.
Q. Now isn’t it correct that at the deposition you testified
that you had informed the Board and believed that faculty
desegregation would eventually come or inevitably come
or something like that? A. Yes.
Q. You told the Board that? A. Yes. I made the state
ment I think in the deposition that in my opinion that
faculty desegregation was in the offing, but how soon that
would come and to what extent I was not in a position to
say.
Q. This was something you told the Board in these dis
cussions during the past years? A. That statement has
been made at either a Board meeting or a committee meet
ing; I think at a Board meeting, as I recall.
Q. But the only action the Board has taken with respect
to this is that resolution of August 30th, the one that you
Lew W. Hannen—for Plaintiffs—Direct
read? A. That action, plus the fact that the Board, you
will recall, did approve the assignment of the white teacher
to the high school.
Q. When was that done? A. You have the record there.
Q. It was in 1965? A. 1965.
—265—
Q. Is it also correct, Mr. Superintendent, that no white
pupil has yet attended any of the schools that have Negro
faculties in Durham? A. That is correct. I
Q. Now, Mr. Superintendent, in your testimony or depo
sition a year ago—I think in your testimony to the Court
you described the fact that the State Board of Education—
the Department of Public Instruction allotted the number
of teachers to local units, including Durham, on the basis
of race—in other words, they allotted you so many Negro
teachers and so many white teachers—based on the school
population and a formula. Is it correct that that policy
by the State Board has been changed, they no longer allot
numbers on the basis of race? A. Thafa correct.
Q. So that there is nothing about the allotment procedure
which would require or encourage local authorities to keep
faculties racially separate at this stage, is that right? A. 1
There is no indication regarding race now in the State j
policy.
Q. There is nothing in these regulations which requires
faculty segregation? A. There is nothing, period.
Q. They have also not adopted any policy requiring it,
—266—
I take it? A. That’s right.
Q. That is, requiring desegregation? A. That’s right.
Q. Mr. Hannen, isn’t it a fact that the Board has de
clined to submit a plan or commitment on the subject of
Lew W. Hannen—for Plaintiffs—Direct
268a
faculty desegregation to the Department of Health, Edu
cation, and Welfare?
Mr. Jarvis: Objection.
Mr. Spears: Objection.
Mr. Nabrit: Your Honor, I thought I ought to
ask the witness that question; this involves what the
School Board has done.
The Court: Well, I think you can establish that.
I ’m going to sustain the objection. What I am afraid
of, you are going to lead into a whole wide area
again with the Health, Education, and Welfare. He
has stated what the policy has been and how they
defined it and what the Board was doing.
Mr. Nabrit: Well, one more question, again not
intending to defeat your ruling but—I want to work
within the limits of what Your Honor has said. I ’ll
ask the question so that your objection to— Don’t
answer it until counsel has an opportunity to object.
By Mr. Nabrit:
Q. Isn’t it a fact that the Department of Health, Edu-
—2 6 7 -
cation, and Welfare has to date declined to approve the
Durham system for receipt of Federal funds because of
their requirements under Title VI of the Civil Rights Act?
Mr. Jarvis: You may go ahead and answer that.
A. Would you restate your question, please?
Lew W. Hannen—for Plaintiffs—Direct
269a
Q. I asked if it isn’t a fact that to date— A. Are you
saying “today” or “to date” ?
Q. To date, up until now. —they haven’t—declined to
approve it? A. They “haven’t” declined to approve it?
Q. No, they “have” declined to approve it. Have they
approved it or not? A. We answered that in our deposi
tion to the effect that we don’t know where we stand. We
have had no written communication whatsoever from
Health, Education, and Welfare indicating that they have
approved or disapproved our plan. Although we have tried
more than once and the Chairman of the Board has tried
to get them to spell out wherein the multitude of docu
ments that we have sent up there from time to time fall
short of what they require, as of right now we have had
no written communication that has indicated whether we
are approved or disapproved.
Q. You do know that you haven’t received anything tell
ing you you have been approved? A. We sure haven’t.
—268—
Q. And has this actually affected your receipt of Federal
funds for this current school year?
Mr. Jarvis: Objection.
The Court: Overruled. He can answer it.
A. The Business Manager would have to answer that ques
tion. I am not evading it or side-stepping it. It’s simply
this: Ordinarily we would get funds for the first quarter
of the fiscal school year, which would include July, August,
and September. Now we did receive funds for the entire
last school year up through June 30th. These funds are
Lew W. Hanneiv—for Plaintiffs—Direct
By Mr. Nabrit:
270a
reimbursement funds after reports are sent in for this
quarter, and sometimes you get those funds in October,
sometimes November, and sometimes December. We have
not received funds for this current quarter because the re
port is not concluded yet—at least our reimbursement
funds.
By Mr. Nabrit:
Q. Has the School Board made any application to the
Government for funds under the Civil Bights Act of 1964
to grant to the Board money for technical assistance to aid
you in your desegregation program—
Mr. Spears: Objection.
Q. —or for funds which are available for the Govern
ment to give the School Board to conduct training institutes
that ease the process of desegregation, any of those funds'?
Have you ever applied for any?
— 269—
Mr. Spears: Objection.
The Court: Overruled. He may answer.
A. We have not made application and I think this is largely
because I have made no recommendation to the Board that
they make application for these funds, inasmuch as you
have Duke, Carolina, and North Carolina College here and
other colleges in the area that have made application for
funds, and I think a substantial number of our teachers
have taken advantage of courses given under those funds
that were appropriated to the institutions, which would
put us in a different light from some place where there
weren’t these colleges and universities.
Lew W. Hannen—for Plaintiffs—Direct
271a
Q. But the fact of the matter is that the Durham School
Board hasn’t embraced any of these programs? A. That’s
correct.
Lew W. Hannen—for Plaintiffs—Direct
By Mr. Nabrit:
Mr. Jarvis: Objection.
The Court: Overruled.
By Mr. Nabrit:
Q. Mr. Superintendent, is it your understanding of your
present authority of the School Board, the present policy
of hiring and assigning, that you would not have authority
on your own. to assign a white teacher to a Negro school
or a Negro teacher to a white school and that you would
have to submit this, if such a matter came up, to the Board
to determine whether or not, by a majority vote, they
would make an exception? A. That is my understanding.
Q. This questionnaire sent around to the personnel, the
tabulation for Negro teachers has one person who indicated
willing to teach predominantly-white class and 160 who
said “Any of the above equally.” Now do you understand
“Any of the above equally” like I do, to mean that these
are people who would be willing to teach white classes,
Negro classes, or integrated classes! A. I don’t know how
to interpret that because I don’t know why that large num
ber would check that way. It’s rather difficult to know
what motive might have been behind that. There may have
been a multitude of motives. I have not attempted to in
terpret it. I have just taken the figures for what they
say, that is, that it’s evident that there are 160 out of that
group that have said that they are qualified or willing—
272a
that they are willing to teach in any of the above three
equally well.
Q. I take it you would need to know more than this ques
tionnaire tabulation indicates to really know what you
could do if you adopted a program of assigning people who
were willing? A. I think in the long run you would need,
before you made any assignments from this data, you cer
tainly would need to know who these individuals were
because there would enter into this many of these other
factors that we have labeled as intangibles and so on. I
think that you would not, on the basis of that questionnaire
—271—
alone, you would not assume to assign teachers any dif
ferently from what you have already assigned them or
change teachers from one position to another.
Q. Mr. Superintendent, don’t you think it would be rea
sonable to expect that a teacher’s willingness and willing
ness to tell you if they were willing to make such a change
would depend at least in part on whether or not the teach
ers thought the School Board favored this or was reluctant
or against it ? Don’t you think it would make a difference
whether or not the School Board told them that, “ This is
our program and we want you to cooperate,” or if the
School Board indicated on the other hand that they didn’t
like it, that this would affect the teachers’ responses? A.
I think in any instance that a teacher professionally would
want to cooperate with the Board of Education for the
betterment of the school system; and if this would fall
under that category, I think that would be true.
Q. It would matter whether or not the School Board
took a positive attitude about this or a negative one in
terms of how the teachers reacted to it, don’t you think?
Lew W. Hannen—for Plaintiffs—Direct
273a
A. I think the teachers in general would try to cooperate
with the Board in any effort to improve the school system.
Q. Well, what I am asking you specifically I guess is: In
a program to change the existing system, the teachers’ will
ingness to change would depend in part on if the School
—2 7 2 -
Board indicated a willingness to change; don’t you think?
A. Well, I think this is an “ iffy” question, that certainly
individuals would react to it in varying degrees and in
varying ways. First of all, I think it would depend on what
the School Board was asking them to do. Now whether a
teacher would consider that this was for her benefit and
the benefit of the school system, I wouldn’t be in a position
to say, I think.
Mr. Nabrit: Your witness.
Cross Examination by Mr. Spears:
Q. Mr. Hannen, in the employment of teachers in the
Durham city schools, it is an employment to fill vacancies;
is it not? A. Yes, sir.
Q. And for a vacancy in a specific class in a school? A.
Yes, sir.
Q. And in employing a teacher to fill that vacancy, please
state whether every effort is made by you and your as
sistants and the principal to get the best teacher available
for that vacancy. A. That is correct.
Q. Whether it be white teacher or Negro teacher? A.
That is true, of course with the reservation that we under
stand where the teachers are to be assigned.
—273—
Q. But an effort is made to get the best teacher available
for that vacancy? A. Yes, sir.
Lew W. Hannen—-for Plaintiffs—-Cross
274a
Q. Do you have an interview with the teacher? A. Yes,
we do.
Q, Does the principal have an interview with the teacher
applicant? A. Wherever that is feasible.
Q. And is the applicant told where the vacancy is, what
grade, what school? A. Yes. The applicant is told that,
with the reservation that this is a tentative assignment.
Q. So the applicant is privileged not to accept the offer
of employment? A. Yes, sir.
Q. In the data of this report, it indicates that one Negro
teacher out of a total of 288 stated that she was willing
to teach in a predominantly-white class? A. That is cor
rect.
Q. Only one out of 288, first choice? A. That’s my recol
lection.
Q. Now these exhibits have the words “ Negro Teach
ers”—the Exhibit Number 11 offered by the plaintiffs has
the words “ Negro Teachers” and “White Teachers.” I ask
you if the questionnaire was sent out—-if it had any desig-
—2 7 4 -
nation of race on it? A. It had no designation on it as
to race.
Q. And it was optional whether the questionnaire was
signed by a teacher or not? A. Yes, sir.
Q. And it was optional whether the questionnaire would
be returned or not? A. Yes, sir.
The Court: How did you determine whether or
not the questionnaire was filled out by a Negro or
a white teacher?
The Witness: The teachers were instructed, Your
Honor, to return these in a sealed envelope to the
principal. These were turned in by schools.
Lew W. Hannen—for Plaintiffs—Cross
275a
Q. In other words, the questionnaires were sent to a
principal of a certain school, of various schools, and they
were distributed and collected by the principal— A. Yes,
sir.
Q. —and sent back? A. Yes, sir.
Q. So that’s the only way you knew whether it was a
white school or a Negro school or a predominantly-white
school? A. Yes, sir.
Q. Now since it was optional whether it would be signed
or not, then there was no compunction there, was there,
—275—
about the teacher not being willing to return that making
a frank statement about the questions submitted? A. The
teacher was under no compulsion to sign the blank or to
return the blank.
Q. Regardless of whatever the policy of the Board may
have been prior to that time? A. Yes, sir.
Q. That one Negro teacher that indicated she was willing
to teach in a predominantly-white school, you would have
to find out what grade and what subject that person was
teaching, wouldn’t you? A. If we were to move that
teacher.
Q. Yes. You would have to determine the grade and the
subject the person was teaching and then whether or not
there was a vacancy in a school that she might be trans
ferred to? A. Yes, sir.
Q. Now in making a transfer, Mr. Hannen, I ’ll ask you
this: In making transfers you try to take into considera
tion or do take into consideration that for the teacher trans
ferred there will be a person employed that is equally well
qualified to fill that vacancy by reason of the transfer? A.
Lew W. Hannen—for Plaintiffs—Cross
By Mr. Spears:
276a
We would make the transfer only if she were better quali
fied to.
Q. And then you would endeavor, would you not, within
the policy, endeavor to obtain a qualified teacher to take the
—276—
place vacated by reason of the transfer? A. Yes, sir.
Q. In other words, the desire of the teacher to make a
transfer, that is only one of the requisites of the policy of
the Board? A. That’s right. And it would be somewhere
down in the list; it would not be first.
Q. I ’ll ask you if your policy isn’t expressed in Plain
tiffs’ Exhibit 65-4 on Page 4115, and that’s entitled what?
A. Entitled “Assignment and Transfer” of teachers.
Q. I ’ll ask you to read it.
Mr. Spears: Your Honor, this is in the record,
but to keep you from having to look through it.
By Mr. Spears:
Q. Would you read that, please, sir? A. “ The assign
ment of staff members and their transfer to positions in
the various schools and departments of the district shall
be made by the superintendent on the basis of the follow
ing criteria:
“ 1. The needs of the school system as determined
by the board upon the recommendation of the superin
tendent ;
“2. Contribution which staff member could make to
students in new7 positions;
“3. Qualifications of staff member compared to
Lew W. Hannen—for Plaintiffs—Cross
277a
those of outside candidates both for position to be
— 277—
vacated and for position to be filled;
“4. Opportunity for professional growth;
“5. Desire of staff member regarding assignment
or transfer;
“6. Length of service in Durham City Schools,
“These criteria are listed in order of their importance.”
are being exercised, yes, sir.
Q. Now, Mr. Hannen, something was said by one of the
witnesses for the plaintiff about the fear of a pupil being
transferred to a predominantly-white school as to his not
being received by the teacher and by his classmates. I ’ll
ask you if you have had any complaint from a Negro child
or a Negro parent that their child assigned to a predomi
nantly-white school has been in any way mistreated or
hasn’t been given full opportunities afforded in that school1?
A. I have not had any objection of that type that I recall.
Q. Have you yourself made inquiry of the Negro pupils
who have been assigned to predominantly-white schools as
to how they were being treated and how they were get
ting along? A. I have done that a great many times in
formally when I would go to a school that was predomi
nantly white and would see either individual Negro pupils
or groups of Negro pupils about the school. I have inquired
specifically, “How are you getting along?” And they
would say, “Well, all right.”
“ Is everyone treating you all right?”
“Yes.”
Lew W. Hannen—for Plaintiffs—Cross
278a
Lew W. Hannen—for Plaintiffs—Cross
—278—
“How are you getting along with your teachers and the
other pupils? Are you getting along all right without any
one taking advantage of you or anyone bothering you in
any way?”
And I haven’t had a single instance in which a pupil has
reported other than that they had been treated by stand
ards that they considered satisfactory.
Q. Now those Negroes who have been assigned to pre-
dominantly-white schools, they are permitted to participate
in all of the full programs of that school, are they not? A.
We have followed that as a policy regularly.
Q. Band, football, baseball, basketball? A. Chorus, clubs,
and the entire gamut of activities in the school have been
offered freely to all pupils on the same basis.
Q. And they are being exercised, are they not? A. They
are being exercised, yes, sir.
Q. Every school in the city is an integrated school other
than Club Boulevard, isn’t it? A. Every formerly all-
white school is integrated except Club Boulevard.
Q. That’s what I meant. Every formerly all-white school
except Club Boulevard now is an integrated school. A.
Yes, sir.
Q. And under the freedom of choice, there are no zones
now? A. No zones at the present time.
—279—
Q. Explain to His Honor in compliance with the order
what the Board did in July with reference to the initial as
signment of the 1965-66 school year. A. We followed his
order as clearly as we could to the best of our understand
ing in giving absolute freedom of choice to the pupils
throughout the city schools administrative unit.
279a
Q. And I’ll ask you if the requests have been granted.
A. All the requests have been granted.
Q. Both Negroes and white for freedom of choice? A.
Yes, sir. And in every case this was the first choice of
the parent.
Q. And thus far has there been any overcrowding in the
city schools? A. There has been slight overcrowding in
two or three places based on the standard of 30 pupils per
classroom, which the Board has in the past attempted to
hold to as far as possible. But there is no overcrowding
under the standard set up by the State and Southern As
sociation which allows up to 35 in these grades four through
eight.
Q. Now you were asked about the applicants available
for teaching in the Durham city schools and as to how long
was their experience from the exhibit handed to you; and
you stated that a great many applicants were wives of
graduate students, law students, medical students at the
University of North Carolina, Duke University, and North
—280—-
Carolina College. Is that correct? A. That’s correct.
Q. Now as a rule they do not teach more than how many
years here? A. As a rule they teach three or four years.
Q. Now you, at the time you employ them you realize
that, you know it will be temporary as far as their being
here ? A. That’s right. Unless of course they change their
mind in the meantime and like Durham so well they stay,
and that happens in some instances.
Q. Now I’ll ask you, of that pool if you had a similarly
qualified applicant, a person who lived in the area and was
going to be more or less permanent here, then which one
would you select? A. Other factors being equal, we would
select the person who would be here through the years.
Lew W. Hannen—for Plaintiffs—Cross
280a
Q. And that would account for the fact that in certain
grades that you have here—or a certain number of teach
ers—the turnover due to this employing the wives of these
medical, law, and graduate students! A. Yes, sir.
Q. And that turnover from your standpoint, as far as
the Board, is really not desirable, is it! A. Not if you
could find qualified applicants.
Q. I mean if you could find qualified teachers who would
- 281-
say, “ This is my life work and I want to stay here” ! A.
If these teachers were of equal ability to these temporary
teachers, we certainly would employ the ones who were
going to be here for an extended period of time.
Q. Now I ask you if you agree with Mr. Herman’s state
ment yesterday that you couldn’t just look at an appli
cant’s record and his certificate and tell whether he or she
was well qualified for the position that was vacant! A.
On that basis alone you could not tell.
Q. You should have an interview; and are there not in
tangibles that enter into the employment of a teacher! A.
Yes, sir. I have stated a number of times—
The Witness: If His Honor will permit me to
enlarge on this just a moment.
A. —that in every instance in which I interview a teacher,
as I talk with that teacher I am asking myself constantly
the question: Is this the type of vibrant, enthusiastic, per
haps optimistic, friendly, and capable person that I would
want teaching one of my two sons or my daughter!
Lew W. Hcmnen—for Plaintiffs—Cross
281a
Lew W. Hannen—for Plaintiffs—Cross
By Mr. Spears:
Q. And does it necessarily follow that an applicant or
a teacher who has a graduate degree is better than a person
who has an A.B. Degree? A. I didn’t follow you.
Q. I say does it necessarily follow that a person, an ap
plicant or a teacher, who has a graduate degree—that is,
—282—
a Master’s Degree—is necessarily a better teacher than
one who has only an A.B. Degree? A. No, that doesn’t
necessarily follow at all. In one very recent year, as I re
call, the only white teacher that we did not re-employ at
the end of the year was a teacher with a Master’s Degree
and ten years of teaching experience.
Q. Well, why was she not re-employed? A. Incompe
tence. We judged that by the year; we had that teacher
just one year. I’m not implying that we had her all ten.
Q. Well, that’s what I was going to ask you, if you had
her ten years to find out that she was incompetent. You
say that one you refer to was here only one year? A. Was
here only one year. There may have been one or two other
teachers that I don’t recall released that year, but this
one impressed me very much.
Q. The Plaintiffs’ Exhibit Number 3, the minutes of the
Specail Meeting of the Board August 30, 1965—now at the
meeting on September 13th, were these minutes read at
that time? Were these minutes read at the meeting on
September 13th? A. No, these minutes were not read.
They are submitted to the Board some days prior to the
meeting.
Q. Each member of the Board? A. Each member of the
282a
Board, after they had been written up by the Superin-
—283—
tendent and checked with the Chairman of the Board.
Q. And at that time was there an amendment to show
this vote was a four-to-two vote? A. That’s right. And I
think those members of the Board who voted against that
motion requested that their votes be recorded.
Q. The minutes of August 30th were corrected to show
that the vote on the report as far as the employment of
teachers was four to two rather than five to one, is that
correct! A. That’s correct.
Q. Now at that meeting on August 30th when the report
of Mr. Parks, Mrs. Bugg, and Doctor Speigner was pre
sented and read, at that meeting did Doctor Speigner sub
mit a signed minority report at that time ? A. I think not.
Q. He did read a statement? A. As I recall he read a
statement, and I believe passed that statement over to me
as a part of the record of the meeting, and as I recall it
was not a signed statement at the time. And again as I
recall, I do not believe it was labeled as a minority report;
I may not be correct in that statement.
Q. Well, was any motion made that the minority report
be adopted rather than the majority report? A. No, sir.
—284—
Q. And the majority report of the committee was adopted
by a vote of four to two? A. Yes, sir.
Q, The salary schedules of teachers who have the same
certificate, is that salary the same throughout the entire
school system, where you have the same certificate, the
same experience? A. Yes, the same training and experi
ence, then the salary is uniform.
Q. Uniform throughout the system? A. Yes, sir.
Lew W. Hannen—for Plaintiffs—Cross
283a
Q. And the supplement is also uniform? A. Yes, sir.
Q. Now the principal, is the principal’s salary based
on the number of students in that particular school? A.
It’s based largely upon the number of teachers, the way
the State salary schedule is set up; and with that State
salary schedule in mind, we pay a lump sum annually to
the principal for what we consider adequate compensation
for that particular job.
Q. And that is uniform throughout the system? A. Yes,
sir.
Q. Both as to a Negro principal and a white principal?
A. Yes, sir.
Mr. Spears: That is all, Your Honor.
—285—
Redirect Examination by Mr. Nabrit:
Q. Mr. Superintendent, you pay your salaries on an ob
jective basis and it’s based on two tangible factors, ratings
and experience; is that right? A. Yes, sir.
Q. You have to act on these intangibles but you some
times make mistakes, like the teacher you had to discharge;
right? A. Yes, sir.
Q. The final analysis of how much money you give a
teacher is on the objective standings? A. That’s correct.
This teacher, by the way, had excellent recommendations,
which led us to be believe that maybe somebody was get
ting rid of the teacher.
Q. Now just so the exhibit will be correct, Exhibit 65-3,
the minutes of August 30th, you say that the minutes should
be corrected to indicate that someone else voted against the
motion? A. Yes, sir.
Lew W. Hcinnen—for Plaintiffs—■Redirect
284a
Mr. Nabrit: Can we do that on the copy, Your
Honor, so that the actual minutes will be correct?
By Mr. Nabrit:
Q. Who was it that voted against it? A. Mr. Sessoms,
as I recall.
Q. Would it be correct to say that Doctor Speigner and
Mr. Sessoms voted against the report? A. Yes, sir.
—286—
Q. Would you make that correction on the copy?
Now you agreed with one of Mr. Spears’ questions which
included a statement that there was only one Negro who
was willing to teach in a predominantly-white school. Isn’t
it a fact that as far as you know from that questionnaire
there are 161 who were equally willing to teach in any
school?
Lew W. Hannen—for Plaintiffs—Redirect
Mr. Jarvis: I think that the report speaks for
itself.
The Court: Well, I understand that. I under
stood his question—you have brought that out be
fore—that there are 160 who said they would be
willing to teach at any of those, predominantly white
or integrated or any of the schools.
Mr. Nabrit: One final question. This is some
thing I neglected to go into on direct.
By Mr. Nabrit:
Q. Has the Board adopted or committed itself to the
free-choice policy for a long term or for any particular
period of years, or has it considered going back to zones
or has that been discussed or what?
285a
Mr. Jarvis: I object. That resolution is a part of
the record. You have introduced it, and it states
what the policy of the Board is. The Board has
adopted a resolution stating what its policy is and
I think it speaks for itself.
The Court: You mean this one year?
—287—
Mr. Jarvis: No, sir, for the future until such time
as they may change it. That resolution was adopted
June 9th, immediately following the decision of the
Court of Appeals in this case. The resolution is in
the record.
Mr. Nabrit: Well, I still want to continue my
question. I want to know what his understanding is
about the plan.
A. My opinion is that we will continue operating under the
system that we are operating under now until that is
changed.
By Mr. Nabrit:
Q. Well, do you have any in.dica.tian whether there are
plans to change it or not? A. That has been discussed in
formally. I don’t know that any definitive action by the
Board has been taken.
Q. What has been discussed informally, the idea that
maybe you might go back to zones or you can’t do this free
choice too long or what? A. Simply that this is only one
way of doing this thing and that this could very well give
way to some other practice in the near future.
Lew W. Hannen—for Plaintiffs—Redirect
286a
Beeross Examination by Mr. Spears:
Q. There has been no report or any resolution adopted
to change the present freedom of choice in Durham city
- 2 8 8 -
schools, has there, Mr. Hannen'! A. That’s correct.
Q. And it’s working satisfactorily, isn’t it? A. Well, we
have been able to accommodate all of the pupils in school
in the situation requested by their parents.
Mr. Spears: All right, that’s all.
(Witness excused.)
Elliott B. Palmer—for Plaintiffs—Direct
Elliott B. Palmer was called as a witness on behalf of
the Plaintiffs and, being first duly sworn, was examined
and testified on his oath as follows:
Direct Examination by Mr. Nabrit:
Q. Mr. Palmer, state your name and address. A. My
name is Elliott B. Palmer. I live in Raleigh, North Caro
lina.
Q. What is your present employment? A. I am the
Executive Secretary of the North Carolina Teachers As
sociation.
Q. Mr. Palmer, give us a brief resume of your back
ground and education. A. I went to the public schools of
Durham City. I graduated with a B.A. Degree at North
Carolina College in Durham in Social Science and Eco
nomics. I graduated from the North Carolina College in
— 289—
Durham with a M.A. Degree in Administrative Education
287a
Elliott B. Palmer—-for Plaintiffs—Direct
and Economics, and did further study at Duke University
at Durham.
Q. And what has been your employment background?
A. I worked in the junior high and senior high schools in
Durham County as a teacher. I worked as principal of
the Lakeview Elementary School in Durham County; four
years as a teacher, four and a half years as a principal,
and one year present employment.
Q. What are your duties in your present employment?
A. Working in the scope of the teaching profession in
North Carolina, Negro teachers in particular, who work
from kindergarten through the higher education, a pro
gram of professional growth and development, protection
of rights of the teaching members.
Q. In your job do you come in contact with teachers,
Negro teachers particularly, around the State; and what
access do you have— Do you consider their complaints
and their problems and find out about them? A. Yes. And
my duty is particularly any time a complaint of unethical
or unprofessional practice is entered by a teacher, it’s my
job to inquire into the situation and make recommendations
to the Board of Directors.
Q. Have you had specific inquiries relating to the deseg
regation process?
—290—
Mr. Spears: Objection.
The Court: Overruled, if he has had any inquiries.
A. I have had many.
By Mr. Nalbrit:
Q. Would you describe—describe your job in connection
with what has happened?
Mr. Spears: Objection.
Mr. Jarvis: Objection, Tour Honor. I don’t know
how this could possibly lead to any competent evi
dence.
The Court: Well, I don’t either, but let him de
scribe his work. Objection overruled.
A. With regards to the desegregation of schools, we have
had several problems that have been conveyed to my office
and we have made inquiries into. Among these complaints
we have had some systems where a school where Negro pu
pils who have been previously going to all-Negro schools
being reassigned to white schools. In this instance when
the Negro pupils are taken into the white schools where
they have segregated faculties, because of the loss of the
Negro-pupil population in the previously-Negro school
there has been a loss of teacher jobs for the Negro teachers.
In other systems we have had complaints about teachers
who have been harassed in their community because pupils
requesting assignment, sometimes their own children, some
times children of other parents, who then complain to the
teachers who in turn complain to us for assistance.
—291—
The Court: Now wait just a minute. What’s the
relevancy of this to this Durham case? The plain
tiffs’ own evidence is that there has been no such
here.
Mr. Nabrit: Well, the question was directed to
the witness as to his opportunity for knowing about
teacher attitudes in the State and his opportunity
for contacting teachers and what he knows about
teachers. This was a prelude to the next question.
Let me ask the next question; I ’ll ask him that.
Elliott B. Palmer—for Plaintiffs—Direct
289a
The Court: Well, this is hearsay in the record.
I wanted to give him all sort of latitude, but I de
clare, for somebody seeing this record, that it is so
totally crammed full of incompetent evidence—-I’m
trying to be just as fair as I know how and give you
all the latitude, but I don’t see the relevancy or the
competency of it. But you go ahead.
By Mr. Nabrit;
Q. Mr. Palmer, do you have an opinion with respect to
the relationship between faculty segregation and the free-
dom-of-ehoice system—
Mr. Jarvis: Object, Your Honor. I don’t know
how this witness is qualified—
The Court: Well, he hasn’t finished asking the
question; I don’t know what the question is. I ’ll
have to understand it. He was still talking. Wait
until he finishes his question and then we can un
derstand it and object.
- 2 9 2 -
Go ahead and restate your question again and
finish the question.
By Mr. Nabrit:
Q. My question was whether or not you have an opinion
about the relationship between faculty segregation and the
operation of the freedom-of-choice desegregation plan.
Have you had an opportunity to observe them and do you
have an opinion with respect to it!
Elliott B. Palmer—-for Plaintiffs—Direct
Mr. Jarvis: Objection.
290a
The Court: He asked if he had an opinion. Objec
tion overruled.
Mr. Jarvis: Your Honor, I don’t know if he’s
qualified to give an opinion. He hasn’t shown that
he’s had any opportunity to observe.
The Court: Well, all he’s asked him so far is if
he has an opinion.
Mr. Jarvis: All right, sir. I ’ll withdraw my
objection.
The Court: All right. Do you have an opinion?
The Witness: Yes, sir.
A. Freedom of—
Mr. Jarvis: I object to his stating what his opin
ion is.
The Court: Well, this is along the line of some
other evidence that’s already in. I don’t think it
- 2 9 3 -
helps much, but go ahead. Objection overruled. You
can cross-examine him on it.
A. My opinion on the relationship of faculty segregation
and the freedom-of-choice plan is based on one of the rea
sons that the Board of Directors for the group by which I
am employed took a serious look at the problem here in Dur
ham City. If a sufficient number of pupils exercise the free
dom-of-choice plan and are admitted to enter the previously
all-white school and no provision is made for the faculty to
be desegregated, the question inevitably will come: What
i will happen to the Negro teachers when they have lost the
1 pupils in the integrated school T This pattern has been evi-
\ denced all over our State as to what happens in the final
\analysis: Negro teachers lose their jobs.
Elliott B. Palmer—for Plaintiffs—Direct
291a
Elliott B. Palmer—for Plaintiffs—Direct
By Mr. Nabrit:
Q. Now how does that problem affect the operation of the
free-choice plan in the communities you have observed? A.
Many Negro teachers then, in order to protect their employ
ment, have encouraged the students to not request reassign
ment to the previously all-white schools.
The Court: Do you know of an instance where that
has occurred in the Durham school system that you
could give us specifically the name, place, date, the
teacher involved?
The Witness: I would not be in a position to do
—294—
that.
The Court: I’ll sustain the objection.
By Mr. Nabrit:
Q. Do you have an opinion with respect to the willingness
of Negro teachers, members of your association, the associ
ation by which you are employed, to work on a desegregated
faculty—on a desegregated faculty basis! A. I have not
made a sample study, but in traveling throughout the state
and talking with Negro teachers, they are willing to work
in an integrated program but they expressed reservations
as to whether or not their expressing a desire to work in an
integrated program will result in economic flashbacks. For
example, some teachers have stated that they admit they
will teach in a white school; if asked to teach in a white
school, it may not be the sort of attitude the administration
would be expecting of them. And with this one-year con
tract, they may find their jobs in jeopardy.
292a
The Court: Do you know of any instance where
that has happened in the Durham city system?
The Witness: That I ’m not at liberty to say.
The Court: What?
The Witness: That I ’m not at liberty to say.
The Court: Well, you are at liberty to say it if
you are going to testify here.
The Witness: For the same reason, sir.
By Mr. Nabrit:
Q. The question is do you know; the question is : Do you
—2 9 5 -
know of any such facts? A. No, I can’t admit to that.
Q. You weren’t trying to keep anything from the Judge?
A. No. No.
Q. The last thing you mentioned was the one-year con
tract. Explain how that works briefly. A. North Caro
lina’s public school system issues a contract to its personnel
for the period of one year’s service. At the end of that
period contracts are reissued to those who are desired to be
kept and not issued to those who are not desired to be kept.
Q. Is there any tenure? A. No.
Mr. Nabrit: That’s all.
Cross Examination by Mr. Jarvis:
Q. Your concern, Mr. Palmer, and your interest in this
matter is the effect on the teachers of an integrated or
freedom-of-choice system, is that correct? That’s your in
terest and that has been the face of the matter that you have
studied? A. My work deals with the employment of the
teacher. My interest, of course, is on the effect on the Negro
student and teacher, of course.
Elliott B. Palmer—for Plaintiffs—Cross
293a
Elliott B. Palmer—for Plaintiffs—Cross
Q. But you are the Executive Secretary of the North
Carolina Teachers Association, and it was your Assoeia-
—296—
tion which asked to intervene in this matter for the protec
tion of rights of the teachers, is that correct? A. Of the
Negro student and teacher. We asked for it on the basis of
teachers, yes.
Mr. Jarvis: I have no further questions.
The Court: All right, come down, sir.
(Witness excused.)
Mr. Nabrit: I think I am ready to rest, Your
Honor. May I have a moment?
The Court: Well, if you think you are, maybe
these gentlemen will want to confer to see what evi
dence they have. We’ll take a very brief recess.
(Whereupon, a short recess was taken.)
The Court: Anything further for the plaintiffs?
Mr. Nabrit: No, Your Honor. The plaintiff rests.
Mr. Jarvis: The defendant rests also, Your Honor.
294a
Plaintiffs’ Exhibit 65-2
SPECIAL MEETING
Durham City Board or Education
July 2, 1965
A special meeting of the Durham City Board of Educa
tion was held Friday evening, July 2, 1965, at seven-thirty
o’clock, in the Board of Education room in the Fuller
School building. Members present included H. A. Rhine-
hart, chairman; Dr. John Glasson, George R. Parks, Carlie
B. Sessoms, and Dr. Theodore R. Speigner. Mrs. Annie
Laurie Bugg was not present as she was out of the city.
Also attending the meeting were Mr. Marshall T. Spears,
attorney for the Board, Mr. Robert L. Foust, executive
director of Operation Breakthrough, Miss Ethel G. Reade,
educational director of Project Head Start, Mr. Herman
C. Hollander, director of secondary instruction, and Mr.
Leonard E. Davis, local director of Project Head Start.
The meeting was called to take action on a demand from
the Office of Economic Opportunity, received by the super
intendent at 3:40 p. m. today, that the teaching staff for
Project Head Start be integregated as a definite require
ment for approval of the Project.
On motion by Mr. Sessoms, seconded by Dr. Glasson,
the Board waived written notice of the meeting, and de
clared a special meeting to be in session.
A motion was made by Mr. Parks, seconded by Mr.
Rhinehart, that the proposed Head Start program be car
ried out as understood by the Board in the application
submitted and the contract signed.
Following a very lengthy discussion, a substitute motion
was made by Mr. Sessoms and seconded by Dr. Speigner
295a
Plaintiffs’ Exhibit 65-2
that a white teacher be transferred from Edgemont School
to East End School, and a Negro teacher be transferred
from East End School to Edgemont School, and a white
teacher’s aide from Holloway Street School be interchanged
with a Negro aide from one of the predominantly Negro
schools in order to comply with a statement by Mr. James
Heller from the Office of Economic Opportunity that this
arrangement would be the minimum of faculty integrega-
tion required by the OTEcTof Economic Opportunity. The
motion carried.
Mr. Rhinehart, Mr. Foust and Mr. Hannen conferred
with Mr. Heller by telephone and reported the minimum
requirements to the Board prior to a vote on the motion.
The meeting adjourned at 9 :45 p. m.
/ s / H. A. Rhinehart
H. A. R hinehart,
Chairman
/s / Lew W. Hannen
Lew W. Hannen,
Secretary
lrl
296a
Plaintiffs’ Exhibit 65-9A
(See Opposite)
X
E
R
O
'..
ittdwsm o i <priiulti/ SCHOOLS CLASSROOM. TEACHLH DISTRIBUTION - l$6h-6$ \ 6 r -7 '
L — ....J.. .. . ( , , ...... .........
i
pL- J5 S k ^ S h
05 150 D1 E6 AO A1 A 2 A3 Ait a5 A6 A7 AS A. 9 A1G A l l A12 03 oa o5 C-6 G7 G8 G9 QIC o n 012 0 1 3 6 TOTAL ^
Durham Hinh 1 6 11 5 1 2 1 2 2 13 1 2 2 2 2 19 71 .
Broaden Jr* 3 3 2 1 ]. 1 1 8 1 ___l ____1 28 _
Carr Jr® 2 1 5 2 k 1 1 _ 1 _ 2 7 37 -
a Iton J r . 1 2 3 2 1 2 8 l 1 1 1 ____ 1 26 „
C lub l l v d . h 2 1 1 1 8 i 1 3 2 2 __
Edf;cvnont 1 5 1 1 1 1 3 i 1 * 15 _
H ollow ay 1 7 1 2 2 2 1 3 19
Ir’k'UfOOd 3 h 1 ___L i 13
Morehead 2 1 1 2 _ L - — £ —1_ _ — i£—
II® Durham 1 1 1 1 1 8 1 Hi .
E. K. "-c'-.o 1 h 1 2 2 __ 2_ _______ 12—
X. R. Smith 5 a 3 1 1 6 20
Southside 1 l 1 1 1 *3 ___ 2. ____ — 10—
y»-M- r* 1 3 h 1 1 1 )- L_HLh ______ 15
Special Education 2 t'£
TOTAL WHITE 1 3 1 1 36 38 3h 16 6 12 7 6 3 3 5 2 92 r\c. i 2 3 5 2 3 2 3 " 36 325 _
H ills id e Hirii 1 1 2 O 1 2 1 2 1 2 1. 11 1 i 1 Z 17
4
50 -
She'oard Jr.
— ~ •
1 1 1 2 2 " h i _ J L — L- _ _ 2 _ L l . ------ X 2C
L’hittcd Jr. 2 1 2 1 3 ] 1 _ 2 _ - U J 3 — L 2 __ 1 1 h3— —----- ---- - — -
l ? 1, 1 1 5 _ 1 _ _ 1 _ — 12. ____.— 25, -Burton
Crest St. 1 1 3, __ L . T ............9
Fast End 1 1 1 1 1 7 — JL ... 1.2 ..........25
Fayetteville St, 1 2
— f—r
1 1 5 — ]— T _ Z ------ 11X9—
Lyon Hark 1 — 1 . — L - — L . ___12. 2C
Pearson 1 1 ? 1 13 __1_ ___1 2 .32
Soaulding 1 2 1 1 ] _L _ — 1h _ 2 __ ___1_ f* .......— 21
Wa litown 1 a 3 , 8 ~
Special Education 1 — 2
TOTAL COLORED
.
3 3 8 8 10 9 h 9 6 a a a 70 1 i 1 a 5 l 2 6 3 5
1
l o t 27 9
TOTAL 1 3
1 . 1 1 .
39 111 h2 2 L 16 21 11 15 9 7 9 6 162 3 2 3 a 8 6 a 9 5 6 xaa 60k
TS ■ <0!
\
297a
298a
In the United States District Court
For the Middle District op North Carolina
Durham Division
Memorandum and Order Denying Intervention
[same title]
These cases were commenced in 1960. Numerous opin
ions and orders have been entered by this Court, and the
cases have been considered by the Court of Appeals on
three occasions. The last decision of the Court of Appeals
was on June 1,1965, at which time the cases were remanded
for further proceedings. The Court had a conference with
counsel for the plaintiffs and the defendant on July 22,
1965, at which time the cases were set for a hearing on
September 23, 1965, on all pending issues, one being the
issue relating to the employment and assignment of teach
ers and other school personnel.
On September 20, 1965, the North Carolina Teachers
Association filed a written motion for an order permitting
it to intervene as a party plaintiff in these cases and file
a complaint in intervention. The certificate of service in
dicates that copies of the motion papers were served on
counsel for the defendant by mail on September 17, 1965.
The applicant for intervention alleges that it is a profes
sional teachers association, organized as a private, non
profit, membership corporation, and that most of its mem
bership is composed of Negro teachers teaching in public
schools of North Carolina, including the Durham City
School System. It is contended that the intervention should
299a
be permitted on the grounds that (1) the applicant and
its members are members of the class who are or might
be affected by the relief prayed for by the original plain
tiffs, (2) the applicant and its members have a substantial
interest in the subject matter of the action, (3) the ap
plicant and its members may be bound by any judgment
relating to the desegregation of pupils and teachers, (4)
the claims of the applicant and that of the original plain
tiffs present common questions of law and fact, and (5)
the intervention will not to any extent delay or prejudice
the adjudication of the rights of the original parties who
are represented by the same counsel.
The applicant for intervention is represented by the
same counsel as the original plaintiffs. The applicant and
its attorney have known since the litigation was first started
back in 1960 that the question relating to the employment
and assignment of teachers and other school personnel
in the Durham School System was one of the issues being
litigated in these cases, and have known since July 22,
1965, that the issue was one of the issues set for trial
on September 23, 1965. The defendant has not filed a
response to the motion to intervene and, indeed, under
Local Rule 21(g) has 20 days after service of motion to
file its response. This 20-day period is, of course, long
after the case is set for trial. If the complaint in inter
vention should be allowed, the defendant would have a
reasonable time within which to file its answer, and this
again would delay the trial scheduled for September 23,
1965.
The right of intervention is controlled by Rule 24 of the
Federal Rules of Civil Procedure. Broadly speaking, Rule
24 treats two sorts of intervention. One is a matter of
Memorandum and Order Denying Intervention
300a
right, and the other is permissive. Intervention as a mat
ter of right is allowed if (1) a Federal statute confers an
unconditional right to intervene, (2) the applicant may
be bound by the judgment and his interest is or may be
inadequately represented by existing parties, or (3) the
applicant may be adversely affected by a disposition of
property in the custody of the court. It is not contended
that there is a Federal statute conferring an unconditional
right on the applicant to intervene, or that there is any
property in the custody of the court for distribution.
Neither is there any question about the present parties
being inadequately represented because they are repre
sented by the same counsel who represent the applicant for
intervention. Not being a party to the action, the rights
of the intervenor, if any they be, could not possibly be
affected by any judgment entered in favor of or against
the original plaintiffs in these actions. Intervention is
permissive when a statute of the United States confers a
conditional right to intervene, or where the claim of the
applicant and the main action have common questions of
law and fact. It is not claimed that any statute confers a
conditional right to intervene, and if intervention is per
mitted, it must be on the basis that the applicant’s claim
and the main action have common questions of law and fact.
If the questions of law and fact are identical, it is diffi
cult to perceive, particularly when represented by the same
counsel, why intervention is desired. I f the applicant for
intervention has superior rights or claims to those of the
original parties, then new questions of law and fact are
introduced into the litigation, which will necessarily delay
the trial. Counsel for the applicant stated that in no
event did they desire a delay in the trial.
Memorandum and Order Denying Intervention
301a
And finally, for intervention, either as a matter of right
or permissive, to be allowed, the application must be
“timely” made. It is difficult to understand how the appli
cant for intervention can seriously contend that the ap
plication has been timely filed, particularly in view of the
history of the litigation, including the fact that on July 22,
1965, the cases were set for trial on all pending issues on
September 23, 1965, and the further fact that the original
plaintiffs and the applicant for intervention are repre
sented by the same counsel. Clearly, by standing mute
until September 17, 1965, less than a week before the trial,
the application cannot be said to have been timely made.
The Court, in the exercise of its discretion, concludes
that motion to intervene should be denied. Becton v.
Greene County Board of Education (E.D., N.C.), 32 F.R.I).
2201 (1963); Securities and Exchange Commission v. Bloom
berg, 1 Cir., 299 F. 2d 315 (1962); Tessyman v. Fisher,
9 Cir., 231 F. 2d 583 (1955); Kelly v. Pascal System, Inc.,
(E.D., Ky.), 183 F. Supp. 775 (1960).
O R D E R
For the reasons stated, I t I s Ordered that the motion of
the applicant, the North Carolina Teachers Association, to
intervene as a party plaintiff in these cases, and to file a
complaint in intervention, be, and same hereby is, denied.
/s / Edwin M. Stanley
United States District Judge
Memorandum and Order Denying Intervention
Entered as of
September 23, 1965.
302a
To the Honorable Edwin M. Stanley, Chief Judge,
United States District Court
For the Middle District oe North Carolina:
The Durham City Board of Education, defendant in the
above entitled actions, pursuant to a Memorandum Order
entered on September 24, 1965, respectfully submits to the
Court the following “Plan for Desegregation of the Dur
ham City Schools” to govern assignments and enrollments
of pupils in the Durham City Administrative School Unit
during the 1966-67 and subsequent school years:
Permanent Plan oe Desegregation
Durham City Administrative School Unit
City of Durham, Durham County, North Carolina
I.
A bolition oe Zones and Feeder System oe A ssignments
Effective as of June 10, 1965, all attendance zones pre
viously adopted for elementary and junior high schools
in the Durham City Administrative School Unit and the
feeder system of assignments to high schools were abol
ished, and effective with the 1965-66 school year, the
Durham City Board of Education established one general
school district within the Durham City Administrative
School Unit and opened enrollment to all students at all
schools within the district without regard to race, color,
religion or national origin.
Plan for Desegregation of the Durham City Schools
303a
II.
A nnual Freedom of Choice of Schools
The Durham City Board of Education has adopted a
policy of complete freedom of choice to be offered an
nually to all pupils in all grades of all schools without
regard to race, color, religion or national origin.
The parents, guardians, or persons acting as parents
(hereinafter referred to as “parents” ) of each pupil eligible
to attend the schools of the Durham City Administrative
School Unit shall have the right and responsibility to select
the school to be attended by their child, teaching the grade
in which said child is entitled to be enrolled, in accordance
with the following practices and procedures.
Teachers, principals and other school personnel are not
permitted to advise, recommend or otherwise influence
which choice is made, and they are not permitted to favor
or penalize children because of choices.
III.
Pupils Entering First Grade
Parents of any child entering the Durham City Schools
for the first time at the first grade level shall register
such child in the school desired by presenting such child
at the pre-school registration to be held at each elementary
school on scheduled dates which will be publicly announced
annually. In advance of the time for pre-school registra
tions each school year, the Board will announce through
local newspapers of general circulation and other news
media a schedule of times and places for pre-school regis
trations in all schools, together with appropriate instruc
tions for registration of first grade pupils at the school of
Plan for Desegregation of the Durham City Schools
304a
the parents’ choice. No first grade pupils will be registered
prior to the dates set for pre-school registration.
When registering first grade pupils, parents will he re
quired to complete an “Application for Assignment” form
(a copy of which is attached hereto marked Exhibit “A ” ).
The child may be registered at any elementary school in
the school system, and the choice may be for that school
or for any other elementary school in the system. Parents
who do not request assignment for their child at the pre
school registration may register their child at the school of
their choice by filing an Application for Assignment at
any time after such pre-school registration or by present
ing such child at such school on the opening day of the
school year and completing an “Application for Assign
ment” form at that time.
Assignments of children will be made in accordance with
the highest preferred school specified in such applications
until the maximum capacity per classroom has been at
tained at each school. If none of the designated choices
for a child can be granted, the parents of such child will
be notified and required to make another choice from
among all other schools in the system where space is
available.
Written notice of assignments will be mailed to parents
of first grade pupils filing “Applications for Assignment”
within fifteen (15) days after the close of the preceding
school year or within fifteen (15) days after receipt of
the applications, whichever last occurs.
Plan for Desegregation of the Durham City Schools
305a
IV.
Pupils Promoted to Junior High School and
Senior High School
Pupils who will complete the course of instruction in an
elementary school and will be promoted to junior high
school for the following school year, and pupils who will
complete the course of instruction in a junior high school
and will be promoted to senior high school for the follow
ing school year shall be furnished an “Application for
Assignment” form (Exhibit “A ” ) together with appro
priate written instructions, to be delivered to their parents
with their report card for the next to last six-weeks period.
Additional forms and written instructions wTill be readily
available to parents, students and the general public in
the school offices during regular business hours.
Parents will be instructed to designate, in order of pref
erence, by first, second and third choice, the school to be
attended by their child during the following school year.
The completed application form must be delivered to the
child’s teacher by a date therein stated, which date shall
be not less than fifteen (15) days from the date of delivery
to the pupil. Applications will be honored on the basis
of the order in which such forms are returned, for the
highest preferred school specified in such forms offering
the grade in w7hich the child is eligible to be enrolled and
having the capacity to accommodate him. If none of the
designated choices can be granted, the parents of such
child will be notified and required to make another choice
from among all other schools in the system serving his
grade level where space is available.
As to each “Application for Assignment” completed and
filed within the designated period, the Board of Education
Plan for Desegregation of the Durham City Schools
306a
will enter the final assignment of such pupil on his final
report card and mail the same to his parents not later
than fifteen (15) days after the last day of the school year.
Notice of final assignments of all other pupils whose
parents have completed and filed “Applications for Re-
Assignment” will be mailed to such parents not later than
fifteen (15) days after the return of such applications.
Parents who do not return the completed “Application
for Assignment” form within the designated time will be
required to file an “Application for Assignment” form
when their child is presented for enrollment. Any pupil
who presents himself for enrollment at a particular school
on or after the opening day of the school year, and no
application form has been obtained from his parents, will
be enrolled at such school providing it teaches the grade
in which he is eligible to be enrolled and has the capacity
to accommodate him.
In the event none of the preferences specified by a parent
can be granted by reason of overcrowding, or if an “Ap
plication for Assignment” form cannot be obtained from
the parents of any child who cannot be enrolled at the
school where he presents himself for enrollment at the
opening of school, such child will be assigned to the school
nearest his residence teaching the grade in which he is
eligible to be enrolled and having capacity to accommo
date him, without regard to race, color, religion or na
tional origin.
V.
Pupils Not Promoted From Highest Grade in
Elementary and Junior High Schools
Pupils who are presently enrolled in the highest grade
at any elementary or junior high school and who are not
Plan for Desegregation of the Durham City Schools
307a
promoted to the next highest grade for the following
school year will be assigned to the school where they are
presently enrolled. Notice of such assignments shall be
entered on the pupils’ final report cards, which shall be
mailed to parents not later than fifteen (15) days after
the last day of the school year.
Parents of such pupils will be mailed an “Application
for Re-Assignment” form (a copy of 'which is attached
hereto marked Exhibit “B” ) with appropriate written in
structions which will be enclosed with each pupil’s final
report card and notice of assignment. Additional forms
and written instructions will be readily available to parents,
students and the general public in the school offices during
regular business hours.
Parents of such pupils shall have the unqualified right
to obtain the transfer of their child from the school to
which assigned to another school of their choice by com
pleting and mailing or delivering the “Application for
Re-Assignment” form to the office of the Superintendent
of City Schools by a date therein stated, which date shall
be not less than fifteen (15) days from the date the final
report card was mailed. The completed form shall desig
nate, in order of preference, by first, second and third
choice the school to which transfer is desired for the
following year.
Applications for Re-Assignment will be granted on the
basis of the order in which such completed forms are
retuxmed, for the highest preferred school specified in such
applications teaching the grade in wdiich such child is
eligible to be enrolled and having the capacity to accommo
date him. If none of the designated choices can be granted,
the parents of such child will be notified and required to
Plan for Desegregation of the Durham City Schools
308a
make another choice from among all other schools in the
system serving his grade level where space is available.
Written notice of final assignments will be mailed to
the parents of all such children requesting re-assignment
not later than thirty (30) days prior to the beginning of
school.
VI.
Pupils W ho Have Not Completed All Gbades at
School A ttended
Pupils who are eligible to be enrolled for the following
school year in a grade taught at the school presently at
tended will be assigned to the school where they are pres
ently enrolled. Written notice of such assignments for
the following school year shall be given to parents of each
such pupil on or with his report card for the next to last
six-weeks period of each school year. At the same time
the parents of each pupil will be furnished an “Applica
tion for Re-Assignment” form (Exhibit “B” ), together
with appropriate written instructions.
Parents of such pupils shall have the unqualified right
to obtain the transfer of their child from the school to
which assigned to another school of their choice by com
pleting and returning the “Application for Re-Assignment”
form to their child’s homeroom teacher, or to the office of
the Superintendent of City Schools, by a date therein
stated, which shall be not less than twenty (20) days from
the date the report cards and notice of assignment are
issued. The completed form shall designate, in order of
preference, by first, second and third choice the school to
which transfer is desired for the following year.
Plan for Desegregation of the Durham City Schools
309a
Applications for Ee-Assignment will be granted on the
basis of the order in which such completed forms are re
turned, for the highest preferred school specified in such
applications" teaching the grade in which such child is
eligible to be enrolled and having the capacity to accommo
date him. If none of the designated choices can be granted,
the parents of any such child will be notified and required
to make another choice from among all other schools in
the system serving his grade level where space is available.
The Board of Education will enter the final assignments
of all such pupils on the pupils’ final report cards, which
shall be mailed to parents not later than fifteen (15) days
after the last day of the school year.
VII.
Pupils E ntering Upper Grades por First Time
Parents of any child entering the schools of this Ad
ministrative School Unit for the first time at any grade
level above the first grade may register such child in the
school of their choice, teaching the grade in which the
pupil is eligible to be enrolled, by completing and filing
an “Application for Assignment” form (Exhibit “A ” ).
Such forms will be available during regular business hours
at the various school offices and at the office of the Super
intendent of City Schools on and after the date report cards
for the next to last six-weeks period have been issued to
students enrolled for the school year next preceding such
application.
Applications from parents of such children shall be re
turned to the office of the Superintendent of City Schools
and will be processed and honored, and assignments made
Plan for Desegregation of the Durham City Schools
310a
therefrom, in accordance with the procedures outlined in
paragraph IV.
Written notice of final assignments will be mailed to
the parents of all such children requesting assignments
not later than thirty (30) days prior to the beginning of
school or fifteen (15) days after receipt of Application
for Assignment, whichever date last occurs.
VIII.
Pupils Changing Residence Aetee A ssignment
Parents of children moving their residence within the
Durham City Administrative School Unit after assign
ments have been made may obtain the transfer of their
child from the school to which assigned to another school
of their choice by completing and mailing or delivering
an “Application for Re-Assignment” form (Exhibit “B” )
to the office of the Superintendent of City Schools. Such
completed forms shall designate, in order of preference,
by first, second and third choice the school to which transfer
is desired.
Applications for Re-Assignment by reason of change of
residence will be granted on the basis of the order in which
such applications are received, for the highest preferred
school specified in such applications teaching the grade in
which such child is eligible to be enrolled and having the
capacity to accommodate him. If none of the designated
choices can be granted, the parents of such child will be
notified and required to make another choice from among
all other schools in the system serving his grade level where
space is available.
Written notice of final assignments will be mailed to the
parents of all such children requesting re-assignment not
Plan for Desegregation of the Durham City Schools
311a
later than thirty (30) days prior to the beginning of school
or fifteen (15) days after receipt of Application for Re-
Assignment, whichever date last occurs.
IX.
N o n - R e s i d e n t A t t e n d a n c e
Pupils not residing in the Durham City Administrative
School Unit may be permitted to attend public schools of
this system only if the enrollment of any such pupil does
not result in the denial of a resident pupil’s preference of
assignment.
X.
S p e c i a l E d u c a t i o n C l a s s e s
The Board of Education may, consistent with sound edu
cational criteria and practices and in a non-discriminatory
manner, assign pupils to special classes for mentally re
tarded and talented children with consent of their parents,
and without regard to race, color, religion or national
origin.
XI.
C a p a c i t y a n d O v e r c r o w d in g
The “capacity” of each school and each classroom shall
be determined in accordance with the maximum capacity
per classroom permitted under the minimum standards for
accreditation established by the North Carolina State
Department of Public Instruction and the Southern Asso
ciation of Colleges and Schools.
Applications for Assignment and Re-Assignment will be
honored on a first come, first serve basis, although excep
tions may be made in some instances in a non-diserimina-
Plan for Desegregation of the Durham City Schools
312a
tory manner. The exceptions herein referred to will be
made where necessary to assure that any pupil wishing to
attend a school with substantial numbers of the other race
has an unequivocal and realizable right to do so.
XII.
T b a n s p o b t a t i o n
The Durham City Board of Education has not in the past
and does not presently provide transportation for any
pupils attending school in this Administrative School Unit.
In the event that school transportation is subsequently pro
vided for any pupils in this system, for any purpose, it will
be provided on an equal basis without segregation or other
discrimination because of race, color, religion or national
origin.
XIII.
S e b v ic e s , F a c i l i t i e s , A c t i v i t i e s a n d P b o g e a m s
There shall be no discrimination based on race, color, re
ligion or national origin with respect to any services, facili
ties, activities and programs sponsored by or affiliated with
the schools of the Durham City Administrative School
Unit.
XIV.
N o t i c e a n d P u b l i c i t y
Upon the approval of this Plan by the United States
District Court for the Middle District of North Carolina,
copies of this Plan, including forms of the “Application
for Assignment” and “Application for Re-Assignment” and
instructions to parents, will be made freely available to
Plan for Desegregation of the Durham City Schools
313a
all persons at the office of the Superintendent of City
Schools, and will be given to all television and radio sta
tions and all newspapers serving this area. News media
wdl be asked to give conspicuous publication to the Plan,
including a description of all its provisions. If the Plan
does not receive prominent and complete newspaper cov
erage, appropriate advertisements will be conspicuously
placed in the newspapers serving this area. The adver
tisements or other newspaper coverage will set forth the
text of the Plan, the application forms and the instructions
to parents. Individual notice and instructions to parents
will be delivered to the parents of all pupils attending the
schools of this Administrative School Unit, as provided in
the Plan.
In addition, meetings and conferences will he called to
inform all school system staff members of, and to prepare
them for, the school desegregation process. Similar meet
ings will he held to inform Parent-Teacher Associations
and other local community organizations of the details of
the Plan, to prepare them for the changes that will take
place effective with the 1966-67 and subsequent school
years.
Annually at least three (3) weeks before the final dates
set for filing Applications for Assignment, conspicuous
notice will again be prominently placed in the newspapers
serving this area for at least three (3) consecutive weeks
immediately preceding said dates. In addition, copies of
the Plan, including the instructions to parents and appli
cation forms, will be freely made available at all times to
any person at the Superintendent’s office and at all schools
during regular business hours.
Plan for Desegregation of the Durham City Schools
314a
XV.
C o n t i n u i n g A p p l i c a t i o n
This Plan for Desegregation of the Durham City Schools,
upon approval by the Court, will govern the assignment
and enrollment of pupils in the Durham City Administra
tive School Unit during the 1966-67 and subsequent school
years, and shall remain in effect until such time as the
Durham City Board of Education shall present and, with
the approval of the Court, adopt some other Plan for the
assignment and enrollment of pupils in this Administrative
Unit.
XVI.
C e r t i f i c a t i o n
This Plan for Desegregation was duly adopted by the
Durham City Board of Education at a meeting duly called
and held on the thirteenth day of October, 1965.
Plan for Desegregation of the Durham City Schools
315a
Plaintiffs, by their attorneys, respectfully submit to the
Court the following response to the defendant’s permanent
Plan for Desegregation of the Durham City Schools
adopted October 13, 1965.
1. In a Memorandum dictated September 24, 1965, the
Court stated:
“ • . . that it was of the opinion and would so hold that
the defendant Board was at liberty to continue in
definitely the assignment and reassignment of pupils
on a free-choice basis as outlined by the Court of Ap
peals for this Circuit in the Richmond case handed
down by the Court of Appeals on April 7, 1965, or in
the decision in this case decided on June 1, 1965, or
that the Board might adopt nongerrymandered school
zones and boundaries and assign students in accord
ance with such zones.”
The Memorandum directed the Board to file a plan not later
than October 15, 1965, and directed that not later than
October 25, 1965, plaintiffs “ advise the Court . . . wherein
the plaintiffs contend that the proposed plan of the defen
dant Board does not comply with either the freedom-of-
choice plan referred to or the compact-school-zone plan. . . .
If the plaintiffs’ counsel is of the opinion that the plan
does comply, he will so advise the Court and the plan will
then be approved.”
2. In accordance with the direction of the Court, plain
tiffs have studied the plan filed by the defendant Board
and hereby advise the Court that insofar as they are aware
Plaintiffs’ Response to Defendant’s Permanent
Plan of Desegregation
316a
the plan is consistent with the freedom-of-choice assign
ments referred to by the Court of Appeals in the Richmond,
Virginia school case decided April 7, 1965 (Bradley v.
School Board of City of Richmond, 345 F.2d 310).
3. Plaintiffs, however, do not consent to or acquiesce in
an order approving the Board’s plan and respectfully object
thereto on the following grounds:
a. The issue of faculty segregation and the Board’s con
tinuing practice of assigning teachers to schools on the
basis of race, which has not yet been ruled upon by the
Court, is vitally related to the adequacy of the plan for
pupil assignments as an effective desegregation plan. Plain
tiffs submit that the freedom-of-choice type of plan is in
adequate to effect desegregation of the school system in the
context of the continuing policy of placing teachers in
schools on the basis of race in a segregated pattern.
b. In the context of this case, the freedom-of-choice plan
is not adequate to disestablish the pattern of segregation
in the Durham City schools because:
(i) the segregated pattern was deliberately created
by the school authorities through a variety of compul
sory pupil assignment methods based on race or color;
(ii) the defendant Board has a history of resistance
to desegregation and has employed a variety of devices
and stratagems to maintain segregation by compulsory
assignment practices;
(iii) the Board’s previous actions and the Board’s
continuing faculty segregation policy operate to dis
courage pupils and parents from using the freedom-
Plaintiffs’ Response to Defendant’s Permanent
Plan of Desegregation
317a
of-choice plan to eliminate the existing segregated pat
tern ;
(iv) the freedom-of-choice plan was adopted by the
Board which had knowledge of the fact that the free
choice system previously in effect in Durham has not
resulted in the desegregation of a single class in any
of the all-Negro schools in Durham, has knowledge of
the fact that no white pupils have chosen to attend any
of the schools with all-Negro faculties and student
bodies, and by reason of this knowledge and experi
ence has reason to believe that the free choice plan
will not operate to actually desegregate any of the
all-Negro schools in the system.
Respectfully submitted,
Jack Greenberg
James M. Nabbed, III
Debbick A. Bell, Jb.
10 Columbus Circle
New York, N. Y. 10019
Conrad 0. Pearson
M. Hugh Thompson
W illiam A. Marsh, Jr.
203% East Chapel Hill Street
Durham, North Carolina
F. B. McK issick
209% West Main Street
Durham, North Carolina
J. H. W heeler
116 West Parrish Street
Durham, North Carolina
Attorneys for Plaintiffs
Plaintiffs’ Response to Defendant’s Permanent
Plan of Desegregation
318a
Plaintiffs, by their attorneys, respectfully submit the
following as their supplemental response to the defendant’s
permanent plan of desegregation adopted October 13, 1965,
and in opposition to the defendant’s proposed order ap
proving the aforesaid plan.
Plaintiffs’ position is that the Court should reserve deci
sion with respect to the defendant’s Plan until the issues
relating to the defendant’s practice of allocating teachers
to schools on a racial basis have been resolved. Plaintiffs
reiterate their objection that the plan submitted is inade
quate in that it fails to provide for an elimination of faculty
assignments on a racial basis. The recent opinion of the
United States Supreme Court in Bradley v. School Board
of the City of Richmond, Va., 34 U.S. Law Week 3170,
November 15, 1965, directly supports plaintiffs’ position.
The Court held in Bradley that the Court of Appeals
erred in finally approving a free-choice plan without having
considered the claim of Negro pupils and parents that the
plan was inadequate because of “alleged” faculty segrega
tion, and in not requiring a prompt evidentiary hearing on
this matter. In this case, unlike the Richmond ease, faculty
allocation on a racial basis has been conclusively established
on a substantial uncontroverted evidentiary showing and
is conceded. The Richmond school board contended in the
Supreme Court that the slight evidence on this point was,
in effect, stale and that in fact faculty segregation policies
have been abandoned.
Thus, we submit that it would be error for the Court
in this case to approve the plan in its present form without
ruling on the merits of plaintiffs’ claim that the plan is
Plaintiffs’ Supplemental Response to Defendant’ s Per
manent Plan o f Desegregation and Opposition to
Defendant’ s Proposed Order Approving the Plan
319a
inadequate because of faculty segregation. This involves
no prolonged delay since the evidence has been adduced,
briefs are due to be filed December 6, 1965, and plaintiffs
are willing to submit the matter without further oral argu
ment.
A piecemeal disposition of the case, by deciding part but
not all of the issues, would be inefficient and possibly bur
densome because it would raise the possibility that there
would be separate appeals by one or both parties from the
two separate orders dealing with a completely interrelated
subject matter.
Furthermore, plaintiffs submit that the question for deci
sion by the Court is not whether the proposed plan, ab
stractly viewed, is “constitutional.” Rather, the question
is whether the plan is “adequate” to eliminate the segre
gated system created by the school authorities in the
existing factual context. Plaintiffs have contended in their
previously filed “Response” to the plan that experience
with the free choice method in Durham to date demon
strates that it will not eliminate effectively the segregated
system, and that some affirmative steps to eliminate exist
ing segregation must be required. We reiterate that view.
However, if that contention be rejected by the Court, plain
tiffs submit alternatively that any approval of the free
choice method should be not only concurrent with a re
quirement of prompt and effective faculty desegregation,
but also temporary and conditional upon a future demon
stration by the school board that the plan in its actual
Plaintiffs’ Supplemental Response to Defendant’s Per
manent Plan of Desegregation and Opposition to
Defendant’s Proposed Order Approving the Plan
320a
operation is effective to accomplish the objective of school
Plaintiffs’ Supplemental Response to Defendant’s Per
manent Plan of Desegregation and Opposition to
Defendant’s Proposed Order Approving the Plan
desegregation.
Respectfully submitted,
Jack Greenberg
James M. Nabrit, III
Derrick A. Bell, Jr.
10 Columbus Circle
New York, N. Y. 10019
Conrad C. Pearson
M. Hugh Thompson
W illiam A. Marsh, Jr.
203% East Chapel Hill Street
Durham, North Carolina
F. B. McK issick
209% West Main Street
Durham, North Carolina
J. H. W heeler
116 West Parrish Street
Durham, North Carolina
Attorneys for Plaintiffs
321a
Stanley, Chief Judge.
This is another chapter in these consolidated cases in
volving the desegregation of the public schools of Durham,
North Carolina. The actions were commenced in 1960. For
mal opinions have been rendered by this Court on two
previous occasions,1 and the cases have been reviewed three
times by the Court of Appeals for the Fourth Circuit.2
Following the last remand by the Court of Appeals,3
counsel for the parties, on July 16, 1965, presented to the
Court a consent order governing the assignment and re
assignment of pupils in the Durham School System for the
1965- 1966 school year.
At a conference with counsel on July 22, 1965, schedules
were fixed for the parties to further express themselves
with respect to (1) a constitutionally acceptable plan gov
erning the enrollment and assignment of pupils for the
1966- 1967 and subsequent school years, (2) the elimination
of discrimination in the employment and assignment of
teachers and administrative personnel, and (3) the reno
vation, enlargement or construction of school facilities
designed to perpetuate, maintain, or support segregation.
All unresolved issues were scheduled for trial on Septem
ber 23, 1965.
Findings o f Fact, Conclusions o f Law, and Opinion
1 Wheeler v. Durham City Board of Education, 196 F. Supp. 71 (M.D.
N.C., 1961) ; Wheeler v. Durham City Board o f Education, 210 F. Supp
839 (M.D. N.C., 1962).
2 Wheeler v. Durham City Board of Education, 4 Cir., 309 F. 2d 630
(1962); Wheeler v. Durham City Board o f Education, 4 Cir., 326 F. 2d
759 (1964); Wheeler v. Durham City Board of Education, 4 Cir., 346
F. 2d 768 (1965).
3 Wheeler v. Durham City Board of Education, 4 Cir., 346 F. 2d 768
(1965).
3 2 2 a
At the opening of the trial on September 23, 1965, the
Court was advised that the defendant on September 13,
1965, had filed a detailed report with respect to its contem
plated capital improvement program for the year ending
June 30, 1966, including its reasons for the enlargement of
particular schools, the selection of new school sites and the
construction of new school buildings. The plan set out in
detail the current status of all buildings previously author
ized by the defendant Board and also reviewed its long-
range planning. Counsel for the plaintiffs stated that they
had received a copy of the report, and that they did not
desire to file objections or exceptions thereto. The right
was reserved, however, to later object to the construction
or enlargement of facilities not referred to in the report.
Without objection, the Court, on September 28, 1965, en
tered a memorandum and order authorizing the defendant
Board to proceed with the acquisition of school sites, the
construction of new buildings, and the enlargement or reno
vation of existing school buildings and facilities, in accord
ance with its report dated August 20, 1965, and received
in evidence as Defendant’s Exhibit No. 65-1. The order was
without prejudice to the rights of the plaintiffs to there
after file specific written objections to the acquisition of
other school sites, or the construction of new buildings, or
the enlargement or renovation of existing school buildings
not set out and referred to in said report. The said report
of August 20, 1965, and the Court’s memorandum and
order of September 28, 1965, are incorporated herein by
reference.
With respect to the enrollment and assignment of pupils,
the defendant Board, on September 23, 1965, was directed,
not later than October 15, 1965, to file with the Court, with
a copy to counsel for the plaintiffs, its plan for the enroll
Findings of Fact, Conclusions of Law, and Opinion
3 2 3 a
ment and assignment of pupils for the 1966-1967 and sub
sequent school years. The Court expressed the opinion that
the defendant was privileged to submit a plan based on
either freedom of choice, as approved by the Court of
Appeals in Bradley v. School Board of City of Richmond,
Virginia, 4 Cir., 345 F. 2d 310 (1965), and Wheeler v. Dur
ham City Board of Education, 4 Cir., 346 F. 2d 768 (1965),
or the compact school zone plan as referred to in Gilliam
v. School Board of City of Hopewell, Virginia, 4 Cir., 345
F. 2d 325 (1965). On October 25, 1965, the defendant filed
a comprehensive plan governing the assignment and enroll
ment of pupils in the Durham School System during the
1966-1967 and subsequent school years, and indicated that
a copy of same had been mailed to counsel for the plaintiffs
on October 14, 1965. On October 25, 1965, the plaintiffs
filed their response to said plan, advising the Court that,
insofar as they were aware, the plan was consistent with
the freedom of choice plan referred to by the Court of
Appeals in Bradley v. School Board of City of Richmond,
Virginia, 4 Cir., 345 F. 2d 310 (1965). The plaintiffs did
not, however, consent to, or acquiesce in, an order approv
ing the plan for the reasons that the issue of faculty seg
regation was vitally related to the adequacy of the plan.
It was further contended that, in the context of these cases,
the freedom of choice type of plan was inadequate to effect
desegregation of the school system in view of the policy
of the defendant in placing teachers in schools on the basis
of race. In plaintiffs’ supplemental response to said plan,
filed on November 25, 1965, the Court was requested to
reserve decision on the plan for the enrollment and assign
ment of pupils “until the issues relating to the defendant’s
practice of allocating teachers to schools on a racial basis
[had] been resolved.” Plaintiffs asserted that their request
Findings of Fact, Conclusions of Law, and Opinion
324a
found direct support in Bradley v. School Board of the City
of Richmond, Virginia, 34 LW 3170 (November 16, 1965).
The plan for permanent desegregation of the Durham City-
Schools, as filed with the Court by the defendant on Octo
ber 25, 1965, and the responses of the plaintiffs filed on
October 25, 1965, and November 26, 1965, are incorporated
herein by reference.
On September 20, 1965, the North Carolina Teachers
Association filed a written motion for an order to intervene
as a party plaintiff in these cases, and to file a complaint
in intervention. The certificate of service indicates that
copies of the motion papers had been served on counsel
for the defendant by mail on September 17, 1965. The
applicant for intervention alleged that it was a professional
teachers association and that most of its membership was
composed of Negro teachers teaching in the public schools
of North Carolina, including the Durham City Schools.
It was contended that the intervention should be permitted
on the grounds that (1) the applicant and its members
were members of the class who would or might be affected
by the relief prayed for by the original plaintiffs, (2) the
applicant and its members had a substantial interest in
the subject matter of the action, (3) the applicant and its
members might be bound by any judgment relating to the
desegregation of pupils and teachers, (4) the claims of the
applicant and those of the original plaintiffs presented
common questions of law and fact, and (5) the interven
tion would not to any extent delay or prejudice the adju
dication of the rights of the original parties who were
represented by the same counsel. The applicant for inter
vention was represented by the same counsel as the original
plaintiffs. Consquently, the applicant and its attorneys had
known since the litigation was first started back in 1960
Findings of Fact, Conclusions of Law, and Opinion
325a
that the question relating to the employment and assign
ment of teachers in the Durham City Schools was one of
the issues being litigated in this case, and had known since
July 22, 1965, that this issue was one of the issues set for
trial on September 23, 1965. Under Local Rule 21(g), the
defendant had 20 days after service of the motion to file
its response. If the complaint in intervention had been
allowed and the defendant given time to file its answer,
the evidentiary hearing scheduled for September 23, 1965,
would have been delayed. Counsel for the plaintiffs stated
that in no event did they want to delay the hearing. The
Court denied the motion to intervene, and on September
28, 1965, filed a memorandum and order, incorporated
herein by reference, setting forth its reasons for the action
taken.
Commencing on September 23, 1965, a full evidentiary
hearing was held on the one remaining issue, namely, the
relation between employment and assignment of teachers
and other school personnel on a racially segregated basis
and the adequacy of the plan for the enrollment and as
signment of pupils. At the conclusion of the hearing, the
parties were given specified times within which to file pro
posed findings of fact, conclusions of law, and briefs. Oral
arguments were waived. Since the plaintiffs offered no
evidence, and requested no findings or conclusions, with
respect to the employment and assignment of administra
tive personnel in the Durham School System, it is assumed
that this issue has been abandoned.
The request for findings of fact, conclusions of law, and
briefs of the parties having been received, the Court, after
considering the evidence, including exhibits, answers to
interrogatories and depositions, and briefs filed by the
Findings of Fact, Conclusions of Law, and Opinion
326a
parties, now makes and files herein its Findings of Fact
and Conclusions of Law, separately stated:
F indings of Fact
1. During the present school year, the Durham City
Public School System is composed of two high schools, five
junior high schools, and eighteen elementary schools. As
of June, 1965, the System employed 652 teachers, 348 white
and 304 Negro, and enrolled 14,365 pupils, 7,114 white and
7,251 Negro. By racial composition of students, one of the
high schools is predominantly white and the other is at
tended solely by Negroes; three of the junior high schools
are predominantly white, and the other two are attended
solely by Negroes; and one of the elementary schools is
all-white, nine are predominantly white, and the remaining
eight are attended solely by Negroes.
2. In June of 1965, there were 408 Negro pupils attend
ing thirteen schools with white pupils and white faculties.
The balance of the Negro pupils attended schools with all-
Negro faculties and pupils. All white children attended
predominantly white schools with all-white faculties. No
white child attended any of the eleven all-Negro schools.
3. In September of 1965, 600 Negroes attended school
with white pupils and white faculties, 324 of them being
in predominantly white schools for the first time. All white
children in the System attended predominantly white
schools with all-white faculties. The balance of the Negro
students attended the eleven all-Negro schools. In Sep
tember of 1965, one white teacher was employed by the
all-Negro Hillside High School to teach English to out
Findings of Fact, Conclusions of Law, and Opinion
327a
standing students, and all other teachers in the eleven
Negro schools were Negroes.
4. The Southern Association of Colleges and Schools, an
accrediting agency, has recently approved for accreditation
all of the elementary and high schools in the Durham City
School System. Accreditation was also recommended for
all junior high schools, except one attended solely by Negro
pupils which was not found to be eligible because it had
not been in operation one full year, and another attended
predominantly by white pupils which had accreditation
deferred pending the removal of certain deficiencies. Dur
ing its survey, the Association did not report any instance
where pupils in any school did not have the same level of
instruction, or rapport between teacher and pupil, as found
in all other schools in the System.
5. In recent years, the Durham City School System has
employed between 75 and 100 new teachers each year as
replacements and to fill new positions. Ordinarily, there
are between 500 and 1000 applicants to fill these vacancies.
Even with this large number of applicants, made up in part
by wives of graduate students at Duke University, con
siderable difficulty has often been experienced in finding
teachers in certain fields. The turnover among white
teachers has been greater than among Negro teachers, re
sulting in a larger percentage of Negro teachers in the
System having more years of experience than white
teachers. Approximately 48% of the Negro teachers have
graduate degrees, while only from 18 to 20% of the white
teachers have graduate degrees.
6. The Durham City School System has a uniform salary
scale for all teachers, both white and Negro, and salaries
Findings of Fact, Conclusions of Law, and Opinion
328a
are based upon years of experience and degrees held. All
public school teachers in the State of North Carolina, in
cluding the Durham City Schools, are employed on a year-
to-year basis, and do not have tenure. There are no laws
or regulations, State or local, governing the assignment
of teaching personnel to particular schools. Teachers pre
viously employed are required to make application each
spring for re-employment, using a simplified application
form. In addition to the employment of teachers before
the commencement of the school year, a number of new
teachers are employed to fill vacancies which occur during
the year. For example, during the last six years, there
have been from eleven to twenty vacancies during each
school year.
7. During the 1963-1964 school year, eighteen new teach
ing positions were filled by four white teachers and four
teen Negro teachers. In 1965-1966, four new positions were
filled by three white teachers and one Negro teacher.
8. As earlier noted, white teachers have been employed
to teach in schools attended predominantly by white pupils,
except for one white teacher who is employed at the all-
Negro high school. Additionally, during the 1965 summer
school program, a Negro teacher taught at a predominantly
white elementary school, and a white teacher taught at an
all-Negro elementary school. Integration of professional
employees and activities in the Durham City School System
has been achieved in the area of (1) meetings of super
visors, principals and teachers, (2) workshops and in-
service training course, (3) grade level meetings, and (4)
supervisory staff work.
Findings of Fact, Conclusions of Law, and Opinion
329a
9. Since 1959, no teacher in the Durham City Schools
has been discharged or demoted by reason of decrease in
enrollment of pupils at a particular school, or the practices
of the defendant Board in making teacher assignments.
10. There is no evidence to support a finding, and indeed
the plaintiff does not contend, that the defendant Board
has not assigned equally qualified teachers to all schools,
or that the quality of instruction at schools employing
Negro teachers is not equal to the quality of instruction
at schools employing white teachers.
11. There is no written policy requiring the assignment
of teachers on a racial basis, but the practice and custom
is admittedly maintained with the approval of the defen
dant Board.
12. Practice teaching programs have also been operated
on a segregated basis. This results in students from white
colleges going to white public schools, and those from Negro
colleges going to Negro public schools, for their student
training. A white college student who sought assignment
to a Negro school, and a Negro college student who sought
assignment to a white school, were both denied such as
signments. The superintendent maintains, however, that
these applications were handled by the applicants in an
unorthodox manner.
13. The defendant Board recruits teaching personnel by
sending brochures containing general announcements of
vacancies to both white and Negro training institutions in
the southeastern part of the United States. Newspaper
advertising is also employed at times to recruit personnel.
Findings of Fact, Conclusions of Law, and Opinion
330a
The brochures emphasize the advantages of teaching in
the City of Durham and in the Durham City School System.
All interested persons are furnished with applications,
which they are required to complete and return to the
superintendent. New teachers are selected from such ap
plications on basis of certification, experience, scholastic
record, recommendations, appearance, personality, general
attitude, and apparent fitness for a given vacancy. Before
employing a teacher for any position, the applicants are
personally interviewed in order to determine the quality
of voice, and to discover the oral use of English and other
traits not apparent from the written application. The
application form requires that the applicant state his or
her race, and submit a photograph.
14. In order to receive certification by the State of North
Carolina, all new teachers are required to take the Na
tional Teacher Examination and receive a minimum score
of 450 on the examination. Since April 3, 1964, the defen
dant Board has required all applicants to take the National
Teacher Examination. During the last two years, all
teachers who have been employed by the defendant Board
have been required to have a score of 500, or better, on the
examination.
15. While the defendant Board has no policy requiring
the employment of Negro teachers to teach at all Negro
schools, or the employment of white teachers to teach at
all white or predominantly white schools, the admitted
practice of the Board has been to employ the best quali
fied available Negro teachers for schools attended by Negro
pupils, and the best qualified white teachers for schools
attended solely or predominantly by white pupils.
Findings of Fact, Conclusions of Law, and Opinion
331a
16. On August 30, 1965, by a 4-2 vote, the defendant
Board voted to continue its existing policy with respect to
teacher assignments, but stated that it might, by majority
vote, “make exceptions to any of its policies for valid and
sound educational reasons.” The Superintendent under
stands this policy to mean that he has no authority to
assign a white teacher to a Negro school, or a Negro teacher
to a white school, without first submitting the matter to
the defendant Board to determine if it will make an ex
ception to the general policy. The majority report indi
cated that a considerable number of white parents had
expressed “their dislike of having their children under
Negro teachers” ; that during the two years of free trans
fers, no white parent had requested transfer to a Negro
school; that those white pupils assigned to a Negro school
had in every instance requested reassignment to predomi
nantly white schools; and that some Negroes had sought
transfer from white schools to Negro schools. Because of
the fact that in 1964-1965, under a free transfer plan, all
white pupils attended predominantly white schools, and
94% of the Negro pupils attended all-Negro schools, the
majority felt that substantial strength was given to their
present policy of teacher assignments. The majority also
believed that its questionnaire of teacher preferences cor
related with pupil preferences, and that its policy of
teacher assignments had provided the school system with
the most effective program of education for all pupils.
Dr. Speigner, a Negro member of the defendant Board,
submitted a separate statement disagreeing with the deci
sion to retain the racial policy in making faculty place
ments.
Findings of Fact, Conclusions of Law, and Opinion
332a
17. A committee of the defendant Board appointed to
study the employment and assignment of teachers made
a survey of the preferences of teachers employed in the
Durham City Schools, and of their attitudes toward faculty
integration. The results were tabulated from question
naires sent to all teachers in the system. A return of the
questionnaire was not required, and teachers who did
return the completed forms were permitted to sign them,
or not sign them, at their election. The questionnaire was
returned by 93.7 per cent of the teachers. Of the 228 Negro
teachers who returned the form, not a single teacher indi
cated that he or she felt better qualified to teach predomi
nantly white classes, and only one indicated a preference
to teach predominantly white classes. Of the 323 white
teachers who completed and returned the questionnaire,
the great majority indicated they felt best qualified to
teach, and were most willing to teach, predominantly white
classes. The white teachers indicated that they were least
qualified, and least willing, to teach predominantly Negro
classes.
18. The plaintiffs offered the testimony of several wit
nesses in the fields of sociology and education in an attempt
to show the extent parental choices were influenced by
faculty segregation where students were given complete
freedom to attend schools of their choice. While none of
these witnesses were found, or declared to be, experts in
their respective fields, they nevertheless were permitted to
express views with respect to the consequences of faculty
segregation in a system where children were free to choose
the schools they desired to attend.
19. The first witness offered by the plaintiffs was Myrl
Gr. Herman, Professor of Education and Director of Lab
Findings of Fact, Conclusions of Law, and Opinion
333a
oratory Experiences at .Rhode Island College, who testified
that while he had made no study of the Durham City
School System, and had no opinion concerning the ade
quacy of the free-enrollment policy presently in effect, he
felt that schools should always employ and assign the best
available teachers without regard to race. He further
stated, however, that school boards should only assign
teachers to schools where they were willing to teach, since
a serious morale problem would arise if teachers were
assigned against their wills. In the employment of teachers,
Mr. Herman felt that the school board should be able to
consider such factors as standing in college, experience,
proficiency, personality, and ability to express themselves
and to mingle with others. He stated that his experience
taught that it was always desirable for school children to
come in contact with all other cultures since they would be
required to mix with other cultures after they had com
pleted their education. Generally, he felt there was a
reluctance on the part of parents to request an assignment
of their children to schools which were totally or predomi
nantly of another race, and that this was true of both
white and Negro parents. He approves of the National
Teacher Examination to the extent that school boards re
quire all applicants for teaching positions to make a mini
mum score before their applications are considered.
19. Dr. Joseph S. Himes, Chairman of the Department
of Sociology at North Carolina College, testified that a
mixture of teachers by races had an advantage to pupils
and teachers alike; that Negro teachers at an integrated
school had an important morale value in that it gave them
a sense of belonging; that segregated faculties had a ten
dency to create the impression that Negroes are inferior,
Bindings of Fact, Conclusions of Law, and Opinion
334a
Findings of Fact, Conclusions of Law, and Opinion
and tended to demonstrate to Negro students that it was
not possible to work with whites; that one of the conse
quences of faculty segregation was to encourage both Negro
and white parents to continue sending their children to a
school where teachers were of their same racial group;
that he was against freedom of choice for students; and
felt that schools should be forced to integrate. Dr. Himes
stated, however, that he was not sure that his ideas had
any validity in the Durham City School system since he
was not familiar with the freedom of choice method em
ployed to assign teachers, or the effect such methods had
on the employment and assignment of teachers.
20. Dr. Joseph P. McKelpin, Professor of Education at
North Carolina College, stated that school children needed
experience with all color groups in the community for the
reason that such experience would cause some children
to develop a better concept of themselves, and their efforts
toward their goals and aspirations would be more realistic.
Dr. McKelpin expressed the opinion that freedom of choice
for students would not be meaningful without faculty de
segregation for the reason that freedom to choose a school
was an empty gesture as long as teachers remained seg
regated.
21. Howard M. Fritts, Jr., a teacher of Health and
Hygiene at North Carolina College, and a member of the
Durham Committee on Negro Affairs, testified that he has
a child attending the fifth grade at Morehead Elementary
School, a predominantly white school in the Durham City
School System; that the primary objective of the Durham
Committee on Negro Affairs was to improve educational
opportunities for Negro youths, and that one of its activ-
335a
it-ies had been to encourage Negro children to enter deseg
regated schools; that when parents considered sending
children to schools with segregated faculties, they had fears
that the teachers might show some prejudice and might
not give their children the feeling of being wanted; and
that there is also a fear that their children might not have
the opportunity to participate in all school activities. Mr.
Fritts also felt the parents of older children, and the
children themselves, had fears that they might be called
names, that there might be conflicts arising between chil
dren and the teachers, and that administrators would not
intercede or be impartial. Mr. Fritts went on to testify
that this was the third year his child had been in an inte
grated school, and that he experienced the same fears as
those expressed by other parents when he first entered his
child in a predominantly white school with an all white
faculty. He concluded, however, by stating that the ex
perience with his own child had proved his fears to have
been unfounded.
22. Elliott B. Palmer, Executive Secretary of the North
Carolina Teachers Association, testified that he had re
ceived complaints in other North Carolina communities
about the loss of jobs by Negro teachers because of the
loss of population in Negro schools, and because of seg
regated faculty policies. However, he had no specific infor
mation concerning the Durham City School System.
23. Negro pupils who have requested assignment to pre
dominantly white schools have participated in the full
programs of those schools, including band, football, base
ball and basketball. All such and similar activities have
been offered to, and exercised by, all pupils on the same
Findings of Fact, Conclusions of Law, and Opinion
336a
basis. The defendant Board has received no complaints
from any Negro child or parent to the effect that any child
assigned to a predominantly white school had been mis
treated in any way, or had not been given equal oppor
tunities within the school. In several instances, personal
inquiry by school officials had been made of Negro students
attending predominantly white schools, and in all such
instances the Negro students had reported that they were
getting along well with their teachers and white classmates,
and had no complaints.
24. The plaintiffs have offered no direct evidence that
Negro children in the Durham City School System, or
parents, have been threatened or coerced, or have otherwise
been reluctant to exercise their free choice of assignment,
by reason of the present practices of the defendant Board
in the employment and assignment of faculty members.
25. Under the freedom of choice system presently exist
ing in the Durham City Schools, and under the plan for
the enrollment and assignment of pupils during the 1966-
1967 and subsequent school years, as filed with the Court
on October 25, 1965, the parents of every child, white and
Negro, are given the unrestricted right and opportunity
to select the school they desire their child to attend.
Discussion
There can be no question but that the comprehensive
plan governing the enrollment and assignment of pupils
in the Durham City School System for the 1966-1967 and
subsequent school years, as embodied in the report filed
with the Court by the defendant Board on October 25, 1965,
is consistent in every respect with, and embodies every
Findings of Fact, Conclusions of Law, and Opinion
337a
essential element of, the freedom of choice assignment plan
approved by the Court of Appeals in Bradley v. School
Board of City of Richmond, Virginia, 4 Cir., 345 F. 2d 310
(1965), and cited with approval in Wheeler v, Durham City
Board of Education, 4 Cir., 346 F. 2d 768 (1965). It em
braces a system whereby each student is accorded the truly
unrestricted freedom to attend the school of his choice.
It is true that the Bradley case was remanded by the
Supreme Court4 on the ground that the Court of Appeals
should have remanded the matter to the district court for
an evidentiary hearing on the relation between faculty al
locations on an alleged racial basis and the adequacy of
the desegregation plan, but the Supreme Court pointed out
that it expressed no views on the merits of the case.
The plaintiffs, after a full evidentiary hearing, have
totally failed to prove their allegation that there is any
substantial relationship between the employment and as
signment of teachers on a basis of race and the freedom
of choice plan adopted by the defendant Board governing
the enrollment and assignment of pupils, or that the method
of employing and assigning teachers in any way renders
inadequate the jjroposed plan for the enrollment and as
signment of pupils.
It is interesting to note that none of the witnesses ten
dered by the plaintiffs as experts had any knowledge of
information whatever concerning the freedom of choice
plan presently being employed in the Durham City School
System, and which the defendant Board proposes to con
tinue in the future, and that their testimony was confined
to generalities and sociological theories. No specific ex
amples were given. The one exception was Howard M.
Findings of Fact, Conclusions of Law, and, Opinion
4 34 LW 3170 (November 16, 1965).
338a
Fx'itts, Jr., and he stated that his earlier feelings with
respect to the consequences of his child being enrolled in
a predominantly white school, and taught by an all white
faculty, had proved to be unfounded. The language of
Judge Brown, in discussing testimony of a similar nature
in Monroe v. Board of Com., City of Jackson, 244 F. Supp.
353 (W.D. Tenn., 1965), seems particularly appropriate:
“Plaintiffs offered some testimony from Negro parents
that Negro pupils are reluctant to attend schools in
which all the teachers are white, some because they are
afraid that the white teachers would require higher
performance and perhaps others because they are
afraid that they would not receive fair treatment.
These witnesses gave no specific examples. It should
be noted, however, that the intervening plaintiffs, at
least, are seeking to attend schools with all white
faculties. Plaintiffs’ education experts largely testified
in terms of the educational desirability of mixed facul
ties, but we do not believe that this is a constitutional
consideration. Plaintiffs’ sociology expert testified that
in his investigation of the question at Nashville he had
not turned up much evidence that fear of going to
school to all white teachers is a deterrent, but he also
testified that having all Negro teachers stigmatizes a
school as a ‘Negro’ school which tends to keep it
segregated.”
Since the testimony of plaintiff’s witnesses was based on
theory rather than existing problems, and since the plain
tiffs have totally failed to prove their charge that freedom
of choice on the part of students and their parents has in
any way been coerced, discouraged or otherwise affected
Findings of Fact, Conclusions of Law, and Opinion
339a
by placing teachers in schools on the basis of race, it neces
sarily follows that the defendant Board is entitled to have
the freedom of choice plan for the enrollment and assign
ment of pupils approved as being free of constitutional
infirmities. Actually, the testimony of Myrl G. Herman,
the most impressive witness offered by the plaintiffs, tends
to disprove the plaintiffs’ charge. While recognizing the
desirability of assigning teachers without regard to race,
Mr. Herman felt that school children received the greatest
benefit by coming into contact with the people of other
races and cultures. This benefit would be denied Negro;
children attending a predominantly white school if they
were not also taught by white teachers.
It is rather apparent that what is being attempted here
is to use the pupils as a vehicle for obtaining a desegre
gation of faculties without in any way involving teachers
in the litigation. This the plaintiffs may not do. Teachers
are clearly not within the class represented by the plaintiffs,
and the plaintiffs cannot assert, or ask protection of, con
stitutional rights of others not parties to the action. Mapp
v. Board of Education of Chattanooga, 6 Cir., 319 F. 2d 571
(1963).
Nothing that has been said is to be construed as the Court
condoning racial discrimination in the employment and
assignment of teachers. On the contrary, any policy that
requires, or even permits, any racial consideration what
ever in the employment and placement of teacher person
nel is clearly unlawful. Colorado Comm’n. v. Continental,
372 U. S. 714 (1963). However, as earlier noted, the con
stitutional rights of the teachers must be vindicated by
the teachers themselves, not by some group or organization
acting on their behalf. The plaintiffs only acquire standing
Findings of Fact, Conclusions of Law, and Opinion
340a
by showing that they themselves are affected by the action
complained of.
For the reasons stated, the defendant Board is entitled
to an order approving its plan for the enrollment and as
signment of pupils in the Durham City School System for
1966-1967 and subsequent school years, as embodied in its
report of October 25, 1965. Consequently, an order is being
entered approving said plan.
Conclusions of Law
1. The Court has jurisdiction of the parties and of the
subject matter.
2. The policies and practices of the defendant Board in
the employment and assignment of teachers do not coerce,
discourage, or interfere with the unrestricted freedom of
pupils to be enrolled in, and assigned to, schools of their
choice, and such plan is in all respects free of constitutional
infirmities.
3. The application of the plaintiffs for an order requir
ing the employment and assignment of teachers in the
Durham City School System without regard to race should
be denied.
Findings of Fact, Conclusions of Law, and Opinion
January 19, 1966
/%/ Edwin M. Stanley
United States District Judge
341a.
O R D E R
(Filed January 19, 1966.)
Following the remand of these cases by the Court of
Appeals (Wheeler v. Durham City Board of Education, 4
Cir., 346 F. 2d 768 (1965)), the Court, on July 16, 1965,
entered a consent order governing the enrollment and as
signment of pupils in the Durham City School System for
the 1965-1966 school year, and directed the defendant Board
to file a plan, free of constitutional infirmities, governing
the enrollment and assignment of pupils for the 1966-1967
and subsequent school years.
Pursuant to the direction of the Court, the defendant
Board, on October 25, 1965, filed with the Court a “Perma
nent Plan for Desegregation of the Durham City Schools,”
which embodied the unrestricted freedom of choice ap
proved by the Court of Appeals in Bradley v. School Board
of City of Richmond, Virginia, 4 Cir., 345 F. 2d 310 (1965),
and cited with approval in Wheeler v. Durham City Board
of Education, 4 Cir., 346 F. 2d 768 (1965). The certificate
of service indicated that a copy of the proposed plan had
been served on counsel for the plaintiffs on October 14,
1965. On October 25, 1965, the plaintiffs filed a response
to said plan, advising the Court that the plan was consistent
with the freedom of choice system approved by the Court
of Appeals in the Bradley and Wheeler cases, but objected
to the approval of the plan for the reason that faculty
segregation in the Durham City School System rendered
the plan inadequate. The plaintiffs further requested that
a decision on the plan for the enrollment and assignment
of pupils be deferred until the issues relating to the prac
tice of the defendant Board in allocating teachers on a racial
basis had been resolved.
342a
Order
Following a full evidentiary hearing, the Court has on
this date made and filed herein its Findings of Fact, Con
clusions of Law, and Opinion wherein it was found and
concluded that the policies and practices of the defendant
Board in the employment and assignment of teachers do
not coerce, discourage, or interfere with the unrestricted
freedom of pupils to be enrolled in and assigned to schools
of their choice, and that said “Permanent Plan for Deseg
regation of the Durham City Schools,” governing the en
rollment and assignment of pupils for the 1966-1967 and
subsequent school years, should be in all respects approved.
Now, therefore, in accordance with said Findings of Fact,
Conclusions of Law, and Opinion, It is o r d e r e d , a d j u d g e d
a n d d e c r e e d :
1. That the “ Permanent Plan for Desegregation of Dur
ham City Schools,” as filed with the Court by the defendant
Board on October 25, 1965, the provisions of which are
incorporated herein by reference, be, and same is hereby,
in all respects approved, and that said plan shall hereafter
remain in effect until such time as the defendant Board
shall present, and with the approval of the Court adopt,
some other plan for the enrollment and assignment of
pupils which is also free of constitutional infirmities.
2. That the application of the plaintiffs for an order
requiring the employment and assignment of teachers in
the Durham City School System without regard to race be,
and same hereby is, denied.
3. That all previous injunctions issued by the Court shall
continue in effect.
343a
Order
4. That jurisdiction of these causes be retained for the
entry of such orders as are necessary and proper.
/ s / Edwin M. Stanley
United States District Judge
January 19, 1966
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