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 MEILEN PRESS INC. — N. Y. * '»