Greenberg, Jack; and Others, 1995, undated - 65 of 114

    I n  t h e

lutttb Cmirt $f Kppmh
F or t h e  F ourth  C ircu it

No. 8534

Cy n th ia  D. Gr e e n , et al.,

-v.—

Appellants,

S chool B oard op t h e  C ity  op R oanoke, et al.,
Appellees.

appeal prom  t h e  u n ited  states district court for t h e

WESTERN DISTRICT OP VIRGINIA, ROANOKE DIVISION

APPELLANTS’ BRIEF

J ames M. N abrit, III 
J ack Greenberg

10 Columbus Circle 
New York 19, New York

R eu ben  E. L awson

19 Gilmer Avenue, N.W. 
Roanoke 17, Virginia

Attorneys for Appellants



I N D E X

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

Question Involved.............................................-.......... 8

Statement of F ac ts...........................................   9
I. The Segregated Pattern in the City School

System........................................  9
II. Facts With Regard to Plaintiffs’ Applications 12

A r g u m e n t ............................................................  21

The Pupil Assignment Policies, Standards and 
Procedures Used by the Roanoke City School 
Board and the Pupil Placement Board Are Ra­
cially Discriminatory and Should Be Prohib­
ited ...... .......................    21

A. The initial assignment system and the
feeder system are discriminatory..........  21

B. The defendants’ special transfer criteria
applied to Negroes seeking to enter white 
schools are discriminatory.....................  26

C. The Placement Board’s protest and hear­
ing procedure was not an adequate and 
expeditious remedy ................................  33

D. The Court has clear power to grant com­
plete relief by issuing an order restrain­
ing the discriminatory initial assign­
ment practices.........................................  36

PAGE

Conclusion 40



T able op A tjthobities

Cases

Adkins v. School Board of City of Newport News,
148 F. Snpp. 430 (E. D. Va. 1957), aff’d 246 F, 2d
325 (4th Cir. 1957) ...................................... ........... 34

Allen v. County School Board of Prince Edward
County, 266 F. 2d 507 (4th Cir. 1959) ...................  36

Allen y . School Board of City of Charlottesville, 3
Race Rel. Law R. 937 (W. D. Va. 1958) .................  34

Beckett v. School Board of City of Norfolk, 185 F.
Supp. 459 (E. D. Va. 1959), aff’d sub nom. Farley
v. Turner, 281 F. 2d 131 (4th Cir. 1960) .................. 23, 33

Blackwell v. Fairfax County School Board, 5 Race
Rel. Law R. 1056 (E. D. Va,, Sept. 22, 1960) ....... 34

Brown v. Board of Education, 347 U. S. 483 (1954) .... 23, 28 
Brown v. Board of Education, 349 U. S. 294 (1955) .... 36
Bush v. Orleans Parish School Board, 242 F. 2d 156

(5th Cir. 1954) .........................................................  39

Carson v. Warlick, 238 F. 2d 724 (4th Cir. 1956) ......  37
Cooper v. Aaron, 358 U. S. 1 (1958) ................... ...23, 24, 25
Covington v. Edwards, 264 F. 2d 780 (4th Cir. 1959) 37

Dodson v. School Board of the City of Charlottesville,
289 F. 2d 439 (4th Cir. 1961) ..................................  31

Dove v. Parham, 282 F. 2d 256 (8th Cir. 1960) ..........  25, 28

Farley v. Turner, 281 F. 2d 131 (4th Cir. 1960) ......  23, 33

Hamm v. County School Board of Arlington County,
263 F. 2d 226 (4th Cir. 1959) .................................. 32, 34

Hamm v. County School Board of Arlington County,
264 F. 2d 945 (4th. Cir. 1959) ..................................  32, 34

Hansberry v. Lee, 311 U. S. 32 (1940) .....................  39
Hecht Co. v. Bowles, 321 U. S. 321 (1944) .......... .......  36

11

PAGE



I l l

Hill v. School Board of the City of Norfolk, 282 F.
2d 473 (4th Cir. 1960) ......................................... 22, 24, 25

Holt v. Raleigh City Board of Education, 265 F. 2d 
95 (4th Cir. 1959) ....................................................  37

Jackson v. The School Board of the City of Lynch­
burg, Va. (W. D. Va., C. A. No. 534, Jan. 15, 1962,
not yet reported) ....... ............................................  35, 39

Jones v. School Board of the City of Alexandria, 278
F. 2d 72 (4th Cir. 1960) ..................... ............ 27, 31, 35, 39

Jones v. School Board of City of Alexandria, 4 Race 
Rel. Law R. 31 (E. D. Va., Oct. 22, 1958; Jan. 23,
1959; Feb. 6, 1959); aff’d 278 F. 2d 72 (4th Cir.
1960); 179 F. Supp. 280 (E. D. Va. 1959) .............. 34

Mannings v. Board of Public Instruction, 277 F. 2d
370 (5th Cir. 1960) ..................................................  32,39

McCoy v. Greensboro City Board of Education, 179 
F. Supp. 745 (M. D. N. C. 1959), rev’d 283 F. 2d
667 (4th Cir. 1960) ..................................................  38

McKissick v. Carmichael, 187 F. 2d 949 (4th Cir.
1951) ....................................-................................... 29

Meyer v. Nebraska, 262 U. S. 390 (1923) ...................  29

Norwood v. Tucker, 287 F. 2d 798 (8th Cir. 1961) .....25, 28,
32, 39

Pierce v. Society of Sisters, 268 U. S. 510 (1925) ......  29
Porter v. Warner Holding Co., 328 II. S. 395 (1946) 36

School Board of the City of Charlottesville v. Allen,
240 F. 2d 59 (4th Cir. 1956) ....................................  36

School Board of the City of Norfolk v. Beckett, 280
F. 2d 18 (4th Cir. 1958) .......................................  32

Smith v. Swormstedt, 16 How. (U. S.) 288, 14 L. ed.
942 (1853)

PAGE

39



IV

Thompson v. County School Board of Arlington 
County, 159 F. Supp. 567 (E. D. Ya. 1957), aff’d 
252 F. 2d 929 (4th Cir. 1957), cert, denied 356
U. S. 958 .................................................................  33

Thompson v. County School Board of Arlington 
County, 166 F. Supp. 529 (E. D. Va. 1958), aff’d 
in part and remanded in part, sub nom. Hamm v.
County School Board of Arlington County, 263
F. 2d 226, 264 F. 2d 945 (4th Cir. 1959) .................  34

Thompson v. County School Board, etc., 4 Race Rel.
Law R. 609 (E. D. Va. July 25, 1959); 4 Race Rel.
Law R. 880 (E. D. Ya. Sept. 1959); 5 Race Rel.
Law R. 1054 (E. D. Va., Sept, 16,1960) .................  34

Thompson v. County School Board of Arlington 
County (E. D. Va., C. A. No. 1341, unreported 
June 3, 1959) ..................... ............ -...................... 34

Walker v. Floyd County Board (W. D. Va., C. A.
No. 1012; Sept. 23,1959, unreported) .....................  34

Rules and Statutes
28 U. S. C. §§1291,1292(a) (1) ............................  1
28 U. S. C. §1343 .........................- .......................  2
42 U. S. C. §1981 ..............................................  2
42 U. S. C. §1983 ..................................................  2
F. R. C. P. Rule 23(a)(3) ...... .........................2,38,39
F. R. C. P. Rule 54(c) ....................................  37

* Code of Va., §22-232.8 .................................... -.....  33

Other Authorities
Black, The Lawfulness of the Segregation Decisions,

69 Yale L. J., 421 (1959) .......................................  30
Pomeroy, Equity Jurisprudence, 5th Ed., 5 Symons,

1941, Vol. 1, §§260, 261a-n

PAGE

39



I n  t h e

Ituiti'ii &mxt 0! Appals
F or t h e  F ourth  C ircuit  

No. 8534

Cy n th ia  D. Gr e e n , et ah,

—v.-
Appellants,

S chool B oard o r  t h e  C ity  of R oanoke, et ah,
Appellees.

APPEAL FROM TEIE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF VIRGINIA, ROANOKE DIVISION

APPELLANTS’ BRIEF

Statement o f the Case

This is an appeal from an order (216a)1 entered Octo­
ber 4, 1961, denying injunctive and declaratory relief in an 
action brought by the plaintiffs-appellants, Negro school 
children and parents in Roanoke City, Virginia, against 
the School Board of Roanoke City, the Superintendent of 
Schools, and the Pupil Placement Board of the Common­
wealth of Virginia. This appeal is brought under 28 
IT. S. C. §§1291, and/or 1292(a) (1).

1 Citations are to the Appendix to this Brief unless otherwise 
indicated.



2

The complaint, filed August 20, 1960, by 28 Negro pupils 
(20 of whom are appellants) and their parents and guard­
ians, was a class action “on behalf of all other Negro 
children attending the public schools of the City of Roanoke 
and their respective parents or guardians” (7a), under Rule 
23(a)(3), F. R. C. P. There was jurisdiction under 28 
U. S. C. §1343, the action being authorized by 42 U. S. C. 
§1983 to enforce rights secured by the Fourteenth Amend­
ment to the Constitution of the United States, and by 42 
U. S. C. §1981 providing for the equal rights of citizens.

The complaint identified the defendants City School 
Board and Superintendent of Schools (7a) as a state 
agency and a state agent, respectively, exercising various 
duties in maintaining, operating, and administering the 
public schools oof Roanoke City, and identified defendants 
Oglesby, Justis and Wingo constituting the Virginia Pupil 
Placement Board, a state agency vested with statutory 
powers to place pupils in schools (10a). The complaint 
alleged that despite the Supreme Court’s decisions that 
state-imposed racial segregation was unconstitutional and 
plaintiffs’ applications to the defendants to attend public 
schools which they are eligible to enter except for their 
race, the defendants were pursuing a policy, practice, cus­
tom, and usage of racial segregation and would continue 
to do so unless restrained by the Court (lla-12a). The 
complaint alleged that defendants were applying the Vir­
ginia Pupil Placement Act in such a manner as to perpetu­
ate the pre-existing segregation system (lOa-lla); that they 
required pupils seeking to attend a nonsegregated school to 
pursue certain inadequate administrative remedies (11a); 
that plaintiffs had applied to enter all-white schools prior 
to the 1960-61 school term and had been denied admission 
on a racially discriminatory basis (12a); and that the vari­
ous practices of the defendants complained of denied plain­
tiffs their liberty without due process of law and the equal



3

protection of the laws secured by the Fourteenth Amend­
ment (12a).

Plaintiffs sought a declaration that certain of the ad­
ministrative procedures prescribed by the Pupil Placement 
Act were inadequate to secure plaintiffs’ rights to a non- 
segregated education and need not be pursued by them as 
a prerequisite to judicial relief, and prayed for a declara­
tion that the Pupil Placement Board’s policies and practices 
in assigning pupils to segregated schools on the basis of 
race was unconstitutional (13a-14a). The complaint also 
sought temporary and permanent injunctive relief to re­
strain defendants “from any and all action that regulates 
or affects, on the basis of race or color, the admission, 
enrollment or education of the infant plaintiffs, or any other 
Negro children similarly situated, to and in any public 
school operated by the defendants” (14a). The complaint 
asked that the defendants be required to present to the 
Court a comprehensive plan for desegregation of the school 
system in the event that they requested any delay in full 
compliance (15a).

On August 23, 1960, Judge John Paul heard and denied 
the motion for preliminary injunction as well as the School 
Board’s oral motion to dismiss. On September 12, 1960, 
the city school authorities filed a “Motion to Dismiss and 
Answer” (19a). The motion to dismiss urged that the com­
plaint failed to state a claim charging (1) that facts de­
tailing the allegations of discrimination were not alleged;
(2) that plaintiffs had not exhausted administrative 
remedies under the Virginia Pupil Placement Act, and
(3) that plaintiffs should be required to seek judicial re­
view in the state courts. The answer admitted the identity 
of the parties as alleged; denied that plaintiffs were en­
titled to maintain a class action; admitted that plaintiffs 
applied for admission at certain schools and were assigned



4

elsewhere, but denying that the refusals were racially dis­
criminatory. The answer alleged that the School Board 
had “devoted itself to a concerted effort to maintain good 
race relations” ; that prior to the plaintiffs’ and other ap­
plications in May 1960, no Negro pupils had requested 
admission to any white school; that of the 39 Negro ap­
plicants to white schools, 9 had been granted admission 
to white schools by the Pupil Placement Board on August 
15, 1960, and; that plaintiffs were assigned to all-Negro 
schools in accordance with educational policy and not on 
account of race or color.

The Placement Board’s answer (24a) generally denied 
the allegations of the complaint except for the identity 
of the defendants; asserted that plaintiffs’ requests were 
denied because of the lack of a favorable recommendation 
from the city school authorities and the Placement Board’s 
policy “that no pupil shall be transferred from one school 
to another in the absence of a favorable recommendation 
by local school officials” ; denied that the plaintiffs were 
placed in school or denied transfers on the “sole ground 
of race or color in contravention of any constitutional 
rights” ; asserted that the Placement Board was “under no 
obligation or compunction to promote or accelerate the 
mixing of the races in the public schools” and that “vol­
untary segregation of the races is lawful and the normal 
wish of the parents of the overwhelming majorities of 
both Negro and white races” ; and set up in defense the 
fact that the plaintiffs had not invoked the Board’s protest 
and hearing procedures.

Judge Oren R. Lewis, sitting by special designation, 
tried the case on May 25-26, 1961. Evidence presented by 
the plaintiffs was received. The Court called a witness 
and introduced the Court’s exhibits. Defendants called no 
witnesses. On July 10, 1961, the Court filed its memoran­
dum opinion (202a).



5

The Court determined that plaintiffs had been denied 
transfers on the basis of the Placement Board’s criteria 
relating to residence, academic aptitude and achievement, 
and sibling relationships (205a). The Court rejected de­
fendants’ claim that plaintiffs’ suit should be dismissed for 
failure to file a protest with the Pupil Placement Board 
under the placement statute holding that since the trans­
fers were denied only five or sis days before the school 
term “there was unsufficient time to have heard a protest 
if one had been filed” (206a). The Court ruled that the 
protest procedure was “not unreasonable and must be 
complied with escept in unusual cases” (209a), and sug­
gested that the Placement Board establish an earlier date 
for applications to be submitted (209a). The Court also 
ruled that the state judicial remedies provided by the Act 
need not be pursued by plaintiffs (209a).

With regard to plaintiffs’ individual applications, the 
Court determined:

1. that one pupil had been admittedly denied a transfer 
in error and must be admitted at the next term (206a);

2. that three pupils had been denied on the ground 
of residence; that this was nondiscriminatory and injunctive 
relief was denied (206a) ;

3. that five pupils were denied transfers on the basis 
of residence and because they were academically below 
the median of the white school; that this was not dis­
criminatory and injunctive relief should be denied (207a);

4. that one pupil had been denied on the basis of a 
“very low scholastic aptitude” ; that that was nondis­
criminatory and relief was denied (207a);

5. that five pupils were denied because below the median 
at the school applied fo r; that the Court could not deter­
mine how far they were below the median and that the



6

Placement Board should re-examine these applications 
(207a) ;

6. that two pupils were denied because they were 
“slightly below or even with the median” of the class ap­
plied fo r; that “this ground alone would appear to be 
discriminatory” and, therefore, the Placement Board should 
re-examine the applications;

7. that three applicants were denied on the ground that 
they were “only slightly above the median” ; that this 
ground was “obviously discriminatory” and that the Court 
would order their admission “unless, upon re-examination, 
the Board establishes nondiscriminatory reasons for deny­
ing these applications” ;

8. that five applicants were denied because of sibling 
relationships; that these applicants should not be denied 
unless the Board could establish that this criterion was 
uniformly used and these applicants should be re-ex­
amined.

The opinion directed the Placement Board to report to 
the Court before August 20, 1961, the result of its re­
examination of 15 of the pupils, and stated that “the de­
fendants will be heard upon the report of the re-ex­
amination and any exceptions thereto, at a date to be 
fixed by the Court” (208a).

The Court concluded that there was no evidence to justify 
the charge that the Pupil Placement Board members were 
administering the Act so as to preserve and perpetuate 
the policy, practice, custom of assigning children to sepa­
rate schools on the basis of their race and color (210a), 
but that they were “conscientiously endeavoring to perform 
their official duties in accordance with law and without 
regard to race, color or creed” (211a).



7

The Court held that the Placement Board had statutory 
power to place all students and that there was “no evidence 
indicating that the School Board of the City of Roanoke or 
its Division Superintendent are, in fact, performing these 
duties; therefore, there is no legal justification for the 
entry of a permanent injunction, and the motion so re­
questing is herewith denied” (211a).

On August 20, 1961, the Placement Board served a copy 
of its report on plaintiffs’ counsel2 indicating that five of 
the pupils re-examined by it were granted the requested 
transfers and that the other ten were again denied trans­
fers on the grounds previously urged. Plaintiffs filed ob­
jections to this report on September 8, 1961, and again 
requested injunctive relief (212a). No hearing has yet been 
held by the Court on the report and exceptions.

The Court’s order was entered on October 4, 1961, deny­
ing the injunctive relief requested by plaintiffs (216a).3

Twenty of the infant plaintiffs filed a timely notice of 
appeal from the order of October 4, 1961, on November 1, 
1961 (220a).

2 The report was apparently also mailed to the Court, but was 
not filed with the Clerk’s office and has not been included in the 
record.

3 A proposed order was promptly tendered to the Court as di­
rected in the opinion filed July 10, 1961, but was not entered until 
October 4, because plaintiffs were unable to secure agreement of 
counsel for the Placement Board as to the form, until after the 
Court had fixed a hearing date for settlement of the order.



8

Question Involved

Whether the Court below erred in denying injunctive 
and declaratory relief prohibiting and condemning as 
racially discriminatory the defendants’ pupil assignment 
standards and procedures where:

a. all pupils are initially assigned to schools in a racially 
segregated pattern by the use of neighborhood area as­
signments without any uniform rule of proximity or school 
zones, and by the use of a “feeder system” in which the 
all-Negro schools are organized in a separate unit for 
assignments;

b. “routine” assignments and transfers recommended by 
local authorities without parental objection are accepted 
by the Placement Board without question and without the 
application of any other criteria, but special assignment 
criteria, unrelated to the organization of the pupils in the 
schools, involving proximity of residence to schools, aca­
demic test scores in relation to the median of the class 
applied for, sibling relationships, and personality are ap­
plied to the transfer applications of plaintiffs, since they 
were Negroes seeking to enter all-white schools, and did 
not have favorable recommendations by the local authori­
ties;

c. Negro pupils applying to white schools must pursue 
a burdensome and discriminatory protest and hearing pro­
cedure except in “unusual cases” ;

d. the school authorities refuse to make any plans for 
initial desegregation or eliminating the system of routine 
placement on the basis of race.

These questions are presented by the pleadings and the 
evidence received below and were decided against the con­
tention of the appellants.



9

S tatem en t o f  Facts

I. T h e Segregated P attern  in the City School System .

The Roanoke City public school system has about 40 
schools (197a-199a) serving about 19,000 pupils, approxi­
mately 4,100 of whom are Negroes (34a). There are seven 
all-Negro schools, five elementary schools, a junior high 
and a high school, which make up “Section No. II” in the 
Roanoke City system (PL Ex. H, 65a, 197a). The other 
schools in the system were attended only by white pupils 
until 1960 when 30 Negro pupils applied to attend white 
schools and nine of them were admitted in three schools 
—Melrose, West End and Monroe Junior High School 
(32a-33a).4 The all-Negro schools are staffed only by 
Negroes, and the “white” schools are staffed only with 
white teachers and principals (34a).

In September 1961 the all-white and predominantly white 
schools were expected to have approximately 1,300 empty 
seats (about 2,100 empty seats by the middle of the 1961-62 
term), while the all-Negro schools were overcrowded and 
expected to have 400 pupils above seating capacity in 
September 1961 (36a, 197a-199a),

The Roanoke City schools are organized in six sections, 
each section being composed of several elementary schools 
which “feed” their students to a designated junior high 
school which, in turn, “feeds” pupils upon promotion to 
a designated high school (35a, 70a, 197a). Entering pupils 
are placed in the school in their neighborhood—each 
principal being familiar with the neighborhood his school 
serves routinely recommends assignments on Pupil Place­
ment forms in accordance with the neighborhood system

4 Since this case was decided a few other Negroes have been 
admitted to white schools, including about 6 of the plaintiffs.



1 0

(70a). When pupils are promoted from one school to 
another, the principals routinely make recommendations 
on the basis of the feeder system (70a). In the all-Negro 
“Section I I” the all-Negro schools feed their pupils only 
to other all-Negro schools. The Superintendent could re­
call no case where the Pupil Placement Board had not 
accepted the local recommendation under the feeder sys­
tem (70a). All of the schools have general programs, there 
being no separate schools established with reference to 
achievement or ability (52a, 56a, 57a). Assignments upon 
promotion from one level to another are based on the 
feeder system without regard to ability and achievement 
tests (52a-53a). Within the schools there is some group­
ing of pupils by ability or achievement (57a-58a). Where 
pupils request transfers on the basis of change of resi­
dence or when a new pupil enters the system, there is no 
study of their academic tests or comparison with the 
median scores in the schools they seek to enter (except in 
the case of crippled or retarded children) (73a-75a).

The Pupil Placement Board routinely assigns over 99% 
of the pupils without individual examination on the basis 
of the local recommendations (135a) (10,000 pupils “for 
an ordinary morning—a good Monday” (154a).

Mr. Oglesby testified that the Placement Board had no 
standard procedure of reviewing the routine assignment 
practices used in the local school districts, such as school 
zones and feeder systems (142a). He stated when asked 
if he knew anything about the Roanoke “feeder school” 
system:

I don’t know the slightest thing about how they operate
their schools in Roanoke, not the slightest (142a).

In the small percentage of cases where the parents and 
school authorities are in dispute, or where as in plaintiffs’



1 1

cases there is no local recommendation,5 the Placement 
Board applies its assignment criteria for protested cases 
(135a-141a), which involve generally the Board’s appraisal 
of the pupil’s record to determine ability to adjust to a 
new situation academically and otherwise, and a judg­
ment of the distance from the pupil’s residence to the 
schools involved (159a). The Board criteria are not in 
writing and are only vaguely defined, as the testimony 
by Chairman Oglesby set forth below, indicates.6

5 The Placement Board’s answer asserted its policy not to grant 
transfers from one school to another “in the absence of a favorable 
recommendation by local school officials” (24a).

6 Upon questioning by the Court, Mr. Oglesby testified (158a- 
160a):

“Q. Now, does the Board or did the Board have at the time 
of the Roanoke hearing had the Board itself, previous thereto, 
established any standards or criteria which they used in con­
nection with evaluating each of these applications! A. We 
had been in existence, I believe, less than a month. We haven’t 
had very much time for establishing criteria. We had not 
established anything and we have not as of now established 
any that would be considered. I think we just took the cases 
as they were and tried to make a decision on our best judg­
ment as it appeared to us.

Q. Then the Court understands that you didn’t have any 
advance criteria or standard to compare these applicants with 
at the time of the Roanoke hearing and you do not have any 
now? A. That’s right,

Q. How can you make all transfers equal insofar as meeting 
or coming close to a fixed standard throughout the State if 
you don’t have a standard to go by? A. I don’t know, sir.

Q. What? A. I don’t know the answer to that, sir. We 
have tried not to put a child in a situation where he couldn’t 
handle himself, where we felt he was going to fail. The cri­
teria for that would vary from place to place.

Q. I appreciate that. A. And we have, of course, gradually 
formulated certain ideas, but as for having written out firm 
criteria, I don’t think we have them.

Q. Now, you do use and you did use then in the Boanoke 
case, as one of the criteria, the considered judgment of the 
Board pertaining to the qualifications of the applicant to fit 
in with the group he was seeking to enroll? A. Yes, sir.

(continued next page)



1 2

Neither the Roanoke school authorities nor the Place­
ment Board have made any announcements of any plan 
for desegregation (32a, 91a-92a).

II. Facts W ith  Regard to P laintiffs’ Applications.

In May 1960, thirty Negro pupils submitted applications 
for transfer to all-white schools to Superintendent Rushton; 
nine other pupils filed such applications shortly there­
after (38a, 193a-196a). The Pupil Placement forms of 
these pupils are Exhibits F-l through F-39 (28a). They 
also filed a petition requesting desegregation (194a). 
Superintendent Rushton presented the applications to the 
City School Board, and then forwarded them to the Pupil 
Placement Board without any recommendations (38a, 48a). 
The Placement Board asked the superintendent to submit 
additional information with regard to these pupils “which 
had to do with such things as maps showing the location 
of pupils and academic records, health records, and any 
other pertinent information which might be helpful in

Q. And, insofar as that criteria is concerned, it would ob­
viously be different from locality to locality? A. Yes, sir.

Q. Because the reason he was seeking, obviously might be 
different? A. Yes, sir.

Q. What other oral criteria did the Board have in mind 
and use in addition to this fitness in the case of the Roanoke 
applicants? A. My recollection, Your Honor, was very little 
else except in the case, I believe, about four of them, the 
matter of distance.

Q. But did you have any distance criteria? Did the Board 
at that time have more or less a standard policy subject to 
minimum or variation that distance would be one of the con­
trolling criteria in approving or disapproving applicants? A. 
Yes, sir.

Q. And did you have any other except distance and the 
Board’s opinion after investigating all of the facts you could 
get as to the fitness of the child to co-mingle with those he 
sought to enroll with? A. I believe everything else could be 
listed in that second classification in this case, my idea of it. 
That is what I meant by that classification.”



13

understanding the local situation” (38a-39a). Mr. Wingo, 
a member of the Placement Board, asked Superintendent 
Rushton three questions with regard to these applications: 
(1) “Are there Negro pupils who cannot he excluded from 
attending white schools except for race?”; (2) “Would the 
Superintendent and School Board so certify to the Pupil 
Placement Board?” ; (3) . . what would happen in the
local communities if some Negro pupils were assigned to 
white schools?” (39a). (Emphasis supplied.)

Subsequently, the superintendent’s two assistants (Mr. 
A. B. Camper, now deceased, and Mrs. Dorothy Gibb on ey) 
investigated the school records of the 39 Negro pupils 
(40a). They gathered summaries of the children’s aca­
demic records, including teachers’ comments on the pupil, 
recent school grades and scores on intelligence and achieve­
ment tests in the files (80a). Studies were made of the 
achievement and intelligence test scores of the pupils in 
the classes the Negroes sought to enter, and the class 
median scores were determined (81a).

At a meeting held on August 15, 1960, Superintendent 
Rushton, Mr. Camper and Mrs. Gibboney met with the 
members of the Placement Board and the Board’s Execu­
tive Secretary, Mr. Hilton, to discuss these 39 Negro pupils 
(43a). The Superintendent insisted that neither he nor 
his staff made any recommendation to the Placement 
Board (48a-49a). He said: “and when they asked me for 
a recommendation, I said straightforwardly that ‘it is 
your responsibility to assign pupils; we will answer your 
question’” (50a). However, there were nine pupils whom 
Mr. Rushton “indicated to the Board could not be excluded 
for any reason other than race” (45a). These nine pupils 
were granted transfers to white schools by the Placement 
Board on that day (45a, 28a-29a). Mr. Rushton testified: 
“I told them that in my opinion if any of these 39 would



14

be successful in transferring from a segregated to a de­
segregated school, I thought that these nine would prob­
ably be more successful. That was my valid judgment. It 
was not a recommendation. It was just when I was asked 
a judgment as I was in these cases” (51a). The Placement 
Board’s minutes for August 15, 1960, assigning the nine 
Negro pupils to white schools recite in part as follows:

Inasmuch as the local school authorities of Roanohe 
City applied, at the request of the Pupil Placement 
Board, criteria and standards dealing with the trans­
fers and assignments of pupils of different races to 
the schools of that school division, which are regarded 
by this Board as valid and reasonable, and since, 
through the application of these criteria and stand­
ards, the local school authorities are not in a position 
to oppose legally the following assignments and trans­
fers, the Pupil Placement Board takes the following 
action: [List of 9 pupils and schools.] (28a-29a) (Em­
phasis supplied.)

There was no written record of the August 15 meeting 
except for the minutes quoted above, and a summary sheet 
used during the conference and produced at the trial by Mr. 
Hilton (87a-90a). This sheet is Plaintiffs’ Exhibit J  (200a), 
and was approved or accepted by the Board by acquiescence 
as a summary of its action (161a-162a).

Mr. Oglesby, Chairman of the Placement Board, was not 
able to state the reason for the denial of any particular 
child’s transfer (153a). He said generally (136a-137a) :

Your Honor, we spent most of the afternoon, it is 
my recollection, it might have been more, we spent a 
good part of the day considering these 39 cases. We 
got all of the information they could give us. At the 
end of that time, based upon everything that we had,



15

we decided that in the case of 30 of these students they 
weer poor risks. What I mean by that is, in some 
cases they would definitely pull down the standards of 
the school they went into. But in general our feeling 
wyas that the child was not prepared to do the work 
that he would have to do in that school; that he would 
probably fail. I don’t mean all of them would fail. 
But what I do mean is that in each case I felt there 
was at least more than an even chance that he couldn’t 
do the work. As a gambling proposition, I think— 
statistics and probability are so tied together that the 
simplest wray to talk about statistics is talk in terms 
of probability. And the easiest way to make that clear, 
clear as a gambling proposition, I would have felt if 
somebody had been willing to offer me a bet, an even 
bet, for $100 on each of those pupils, if I was betting 
in the ordinary course of events, that child would not 
make good in the school that he wants to be put in. 
I wouldn’t consider it a gambling case for the 30. I 
would consider it an investment. We are not infallible. 
All w7e did was to judge the facts as we had—the best 
we could get. That was our feeling about it. I believe 
that it would have been a profitable gamble on the 
basis of my having to give, say, two to one on the odds. 
That is, of course, again, just guessing. That is the 
way we decided it. That is about all we can do.

Mr. Wingo, called as a witness by the Court (161a), 
testified as to the reasons for the rejection of each of the 
pupils (170a-173a). His statement of the reasons for re­
jection was accepted by the Court in its opinion (206a- 
208a), as described above in the Statement of the Case, p. 5, 
supra. Plaintiffs’ Exhibit J, mentioned above, indicated 
only one ground for rejection of each pupil (200a, 169a); 
Mr. Wingo, under questioning by the Court, indicated more



1G

than one ground for refusal of several pupils (170a). The 
general categories involved were residence, academic test 
scores, and sibling relationships (170a-173a).

With regard to residence, pupils were rejected who lived 
closer to the schools attended than to the schools applied 
for. Mrs. G-ibboney’s handwritten notes (Court’s Ex. No. 
1, see column marked “Distance”) indicated the compara­
tive distance between each pupil’s homes and the two 
schools involved.7 8

Among the 11 pupils rejected on the ground of residence, 
9 lived from one to seven blocks farther from the white 
school than the Negro school; one pupil (No. 10) lived an 
equal distance between the two schools, and another (No. 
3) lived one block closer to the white school. Note that 
pupils No. 10s and No. 3 were denied solely on the ground 
of residence. The 17 plaintiffs rejected on other grounds 
lived from 4 to 19 blocks closer to the white schools than 
the Negro schools they attended.9 * 11 Thus, while living closer 
to the Negro schools, an equal distance between Negro and 
white schools, or even one block closer to the white schools 
was treated as a basis for denying transfers on the resi­
dence criterion; the fact that a pupil lived even as much 
as 19 blocks closer to the white school did not entitle him

7 This portion of the Exhibit is explained at 115a. For example, 
“ +19” means that a pupil is 19 blocks closer to the school applied 
for than the one attended; minus figures indicate that the pupils 
are a given number of blocks farther from the school applied, for 
than the one attended.

8 Throughout the record pupils were referred to by key numbers 
rather than names (30a). The key numbers are listed in Exhibit I 
(201a).

9 The breakdown is as follows: There were 2 living 19 blocks
closer; 3 living 16 blocks closer; 2 living 12 blocks closer; 2 living
11 blocks closer; one living 10 blocks closer; one—9 blocks closer; 
two—2 blocks closer; one—6 blocks closer; two—5 blocks closer, 
and one—4 blocks closer (Court’s Exhibit No. 1).



17

to transfer to it. For example, Negroes living within one 
block of a white school were denied transfers and assigned 
to more crowded Negro schools 20 blocks away (133a). 
Thus, no uniform proximity rule was applied; distance was 
applied only as a factor to justify exclusions, not transfers.

The Placement Board applied its academic criterion to 
reject 19 pupils as indicated in the opinion below (207a). 
The Board compared the pupils’ intelligence test and 
achievement test scores with the median scores of the 
classes they sought to enter, and rejected all pupils who 
were not more than slightly above the median score in the 
white classes (163a, 170a-173a). The data considered by 
the Board indicated the number of I.Q. points each plain­
tiff scored above or below the median (see Court’s Exhibit 
No. 1, column headed “Deviation from Median I.Q.” ; 117a), 
and the achievement scores above or below the median 
(see Court’s Exhibit No. 1, column headed “Deviation from 
Median Grade Level” ; 118a). The Board had no data 
from which it could determine the relative standing of 
the Negroes in relation to the white classes except whether 
they were in the top or bottom half. Plaintiffs’ expert wit­
ness, Dr. Bayton, testified that without knowing more than 
a pupil’s score on a test and the median score it would 
not be statistically possible to determine his standing in 
the class, because a median is a statistic which describes 
nothing more about a group other than that half are above 
that point and half are below it (94a, 97a-99a). To find 
out a pupil’s position in a group it would be necessary to 
know at least the “standard deviation” from which it 
would be possible to calculate how the individuals are 
grouped around the median and thus a given individual’s 
position (100a, HOa-llla, 112a). Mr. Wingo acknowledged 
that the Board did not have information about the standard 
deviation (179a-180a) or any figure to describe the group­
ing of pupils around the median, but he stated that he



18

did not “need” that since the Board was concerned only with 
whether or not a pupil was above or below the median 
(180a-181a). Mr. Wingo explained the Board’s reason for 
applying the requirement that transferring students be 
above the median to Negroes, but not to whites, as fol­
lows (175a-176a):

Q. Well, would you state whether or not it is the 
policy of the Board in reviewing applications for 
transfer in the cases of both white and colored students 
that both categories, in order to get approval on their 
transfer, that they should be at least equal or a little 
better than the average median of the class they seek 
to attend? A. Yes, with one reservation, Your Honor. 
In the case of Negroes transferring from, schools that 
were Negro schools to predominantly white schools, if 
these transfers or these attempts to transfer are ran­
domly made, the chances are three out of four that 
each one that applies will be below the median for 
the white school or predominantly white school to 
which he is applying. That is a matter of course, if 
they are selected at random—three to four. On the 
other hand, if whites are applying for transfer to a 
white school, the chances are one in two that they are 
below or one in two above. In other words, the thing 
becomes an academic situation in the case of the whites. 
But in the case of the Negro applying for—to enter 
the white school, that difference makes it a statistical 
problem.

Q. Then, in that particular category, color does have 
a bearing on it? A. I am sorry?

Q. Then, in that particular category, color does in 
fact have a bearing on the decision? A. It does inso­
far as our concern for scholarship qualifications are 
concerned, yes.



19

Q. So, to that extent, there is a different standard 
in the case of a white applicant and a colored appli­
cant? In other words, he is required to have an aver­
age above the median to a greater degree than a white 
student would require ? A. Well, the situation is this: 
Whites selected randomly for transfers will not change 
the picture. Negroes selected randomly, without ap­
plication of test scores and academic qualifications, 
generally, will lower the standards.

Five pupils were denied transfers on the ground of the 
“sibling relationship” criterion. These five pupils had test 
scores above the medians but were rejected on the ground 
that if they were transferred they would be separated from 
their siblings who had scores below the median (178a). 
Mrs. Gibboney testified that the local authorities told the 
Placement Board that it was inadvisable to separate sib­
lings (127a). But Mrs. Gibboney acknowledged that three 
of the plaintiffs (pupils Nos. 8, 9 and 13) were siblings in 
the second, sixth and seventh grades, respectively, who 
were then attending three different all-Negro schools (128a- 
131a). Mr. Wingo testified that the Placement Board “gave 
some credence” to the Roanoke City policy and was “con­
cerned about disrupting the family” (178a). He testified 
that the Board was “concerned about the individuals not 
being placed in situations that would be educational [ly] 
frustrating and upsetting and lead to failures” (179a), and 
that while the Board was not sure that the separation 
“would necessarily cause harm . . .  we just don’t want to 
take a chance” (179a).

With regard to the personality or social adjustment cri­
terion, Mr. Oglesby testified that the record of teachers’ 
comments about the pupils was one of the important things 
the Board considered in appraising the pupils’ applications 
(148a). He said:. “We were trying to get all of the in­



2 0

formation we could and we could think of nothing more 
important to a clear understanding of our part so we can 
do a square job on the thing than what the teachers thought 
about the ability of what they could do” (148a). In stating 
the reasons for denial of transfers, Mr. Wingo mentioned 
this factor only in regard to one pupil whom he mentioned 
had “a record of poor adjustment in school” (172a).

Dr. James Bayton, a man with 22 years experience as a 
college and university teacher of psychology, having con­
siderable additional experience as a psychologist in busi­
ness and Government (92a-94a), testified as an expert 
witness for plaintiffs.10 He testified that he did not believe 
that teachers were competent to make clinical evaluations 
of pupils’ personalities such as some of the statements 
about the plaintiffs contained in the School Board’s sum­
mary sheets (see Court’s Exhibit No. 1); that such teacher 
comments as “not well adjusted” and comments on “leader­
ship abilities” are not reliable; and that Virginia had a 
certification law requiring clinical psychologists to be li­
censed to make such judgments (101a-105a). Dr. Bayton 
said he knew of no testing that could be done by psycholo­
gists which would enable them to predict how a given child 
would adjust when placed with a given group of children; 
that even if psychologists agreed in evaluating one pupil’s 
personality, it would be necessary to know something about 
the personalities of the group; and that he knew of no 
scientific or other way to determine how an individual will 
get along with a group of 30 others (113a-114a).

Dr. Bayton testified that “sibling relationships” were 
discussed a great deal in developmental psychology and 
in personality theory, particularly with regard to rivalry

10 Mr. Wingo of the Placement Board is not a psychologist. His 
graduate training is in education (185a). Mr. Oglesby is a uni­
versity mathematics professor (134a).



2 1

between siblings, but that he knew of no accepted theory 
or view in psychology that it is bad to separate brothers 
and sisters in different schools, and had never heard of 
any such thing (105a-106a). He commented: “They are 
both likely to be on a different pace, anyway, unless they 
are twins. So, they get separated and they get separated 
when one goes to junior high school and other is behind” 
(106a).

By letters dated August 17 and August 22, respectively, 
the Placement Board notified the parents that the transfer 
requests had been denied and the Superintendent notified 
them of the assignments made (PI. Ex. D; 27a). Neither 
letter informed the parents of any reasons for the denials 
of transfers. This case was filed on August 20, 1960 (la).

ARGUMENT

T he P u p il A ssignm ent Policies, S tandards and  P ro ­
cedures Used by th e  R oanoke City School B oard  and  the  
Pupil P lacem en t B oard  A re R acially D iscrim inato ry  and 
Should Be P ro h ib ited  and  D eclared  Invalid .

A. T he initial assignm ent system  and the feeder  
system  are discrim inatory.

It is readily apparent that initial assignments of pupils 
entering the school system are based upon race, as is demon­
strated by the completely segregated pattern resulting from 
the routine initial assignment policies and procedures. The 
“Negro” schools in the City are organized in a separate 
“Section II” in the system; all Negroes are routinely as­
signed to the schools in Section II, and no white children 
are assigned there. No formal rigid school zones are in use. 
Elementary schools serve traditionally designated neigh­
borhoods. But clearly the segregated pattern of schools 
is not entirely the result of residential segregation, for as



plaintiffs’ eases demonstrate (see Court’s Exhibit No. 1), 
numbers of Negroes living closer to the all-white and pre­
dominantly white schools than to the Negro schools are, 
nevertheless, routinely placed in the all-Negro schools.

The feeder system by which, once a Negro pupil enters 
an all-Negro school, he is moved to a designated Negro 
junior high and high school, similarly regulates assignments 
on the basis of race. This assignment system is similar to 
that held invalid by this Court in Hill v. School Board of 
the City of Norfolk, 282 F. 2d 473, 474 (4th Cir. 1960), 
where the Court said, “The concept of moving within a so- 
called ‘normal stream’ based upon race can no longer be 
availed of in these situations.” The Court went on to com­
ment in the Hill case:

However, assignments to the first grade in the pri­
mary schools are still on a racial basis, and a pupil 
thus assigned to the first grade still is being required 
to remain in the school to which he is assigned, unless, 
on an individual application, he is reassigned on the 
basis of the criteria which are not then applied to 
other pupils who do not seek transfers. As we recently 
held in Jones v. School Board of City of Alexandria, 
Virginia, 4 Cir., 278 F. 2d 72, such an arrangement 
does not meet the requirements of the law.

It is submitted that the Roanoke City feeder system, 
which, admittedly, has continued routine assignments on 
the same racial basis used when segregation was compelled 
by state law, is invalid. Such racial regulation of school 
assignments cannot be justified on the theory that this is 
“voluntary” segregation. State officers are supposed to use 
non-racial grounds for assigning pupils and not continue to 
use race on the presumption that the majority favors segre­
gation. A majority desire for segregation cannot justify 
state officers’ action in assigning pupils on the basis of race,



23

under Brown v. Board of Education, 347 U. S. 483 (1954) 
and Cooper v. Aaron, 358 U. S. 1 (1958). The organization 
of Negro pupils in a separate all-Negro section of the 
school system is obviously not in conformity with the school 
authorities’ responsibilities to eliminate school assignments 
on a racial basis.

The mechanical arrangement used to accomplish the seg­
regated initial assignments, involving the relationship be­
tween the local authorities and Pupil Placement Board, 
cannot alter the unconstitutionality of the result. The Place­
ment Board routinely approves the assignments made by 
the local authorities which, as demonstrated, are made on 
a racial basis. The fact that the Pupil Placement Board 
(which has statutory authority to place pupils) has not 
concerned itself with the details of the feeder system, and 
merely “rubber stamps” the local recommendations in rou­
tine cases, does not insulate either the Placement Board or 
the local authorities from accountability for the racial 
assignment practices. A similar Placement Board policy of 
automatically approving all assignments not involving re­
quests for desegregation existed in the Norfolk case as de­
scribed by Judge Hoffman in Beckett v. School Board of the 
City of Norfolk, 185 F. Supp. 459, 460 (Finding No. 1), 
(E. D. Ya. 1959), aff’d sub now,. Farley v. Turner, 281 F. 2d 
131 (4th Cir. 1960). From the standpoint of the Fourteenth 
Amendment, all the defendants are State agents and agen­
cies, all answerable in law for the product of their discrim­
inatory activities, whatever the formalities of the relations 
between them. In an analogous situation where one state 
agency attempted to excuse its discriminatory conduct on 
the basis of interference by another agency, the Supreme 
Court rejected the claim, stating in Cooper v. Aaron, 358 
U. S. 1, 16:

The situation here is in no different posture because
the members of the School Board and the Superinten-



24

dent of Schools are local officials; from the point of 
view of the Fourteenth Amendment, they stand in this 
litigation as the agents of the State.

The Court went on to say at 358 U. S. 17:
In short, the constitutional rights of children not to 
he discriminated against in school admission on grounds 
of race or color declared by this Court in the Brown 
case can neither be nullified openly and directly by state 
legislators or state executive or judicial officers, nor 
nullified indirectly by them through evasive schemes 
for segregation whether attempted “ingeniously or 
ingenuously.” Smith v. Texas, 311 US 128, 132, 85 L ed 
84, 87, 61 S Ct 164.

Thus, both the local and state authorities are legally 
accountable for the racial initial assignments and the “nor­
mal stream” (or “feeder system” as it is called in Roanoke), 
which are invalid under this Court’s decision in Hill v. 
School Board of the City of Norfolk, supra.

While the school authorities did begin limited desegre­
gation in Roanoke in 1960, without an injunctive order re­
quiring it, this limited voluntary compliance with the 
requirement of desegregation does not justify approval of 
the placement criteria on even an interim basis, as was held 
to be appropriate in the Hill case, supra. The Hill case 
involved obvious differences in the actual assignment pro­
cedures. A further distinction between this case and the 
Hill case, is that here neither the trial court nor either of 
the defendants has sought to justify the pupil assignment 
procedures as a temporary or interim measure or as a part 
of a planned program of gradual desegregation. Both de­
fendant boards indicated that they had no plans for deseg­
regation other than to continue the present procedure in­
definitely; they defend it as valid and the court below 
agreed.



25

Plaintiffs submit that contrary to defendants’ arguments, 
under Cooper v. Aaron, 358 U. S. 1, 7, school authorities do 
have affirmative obligations with respect to desegregation:

It was made plain that delay in any guise in order to 
deny the constitutional rights of Negro children could 
not be countenanced, and that only a prompt start, dili­
gently and earnestly pursued, to eliminate racial segre­
gation from the public schools could constitute good 
faith compliance. State authorities were thus duty 
bound to devote every effort toward initiating desegre­
gation and bringing about the elimination of racial 
discrimination in the public school system (emphasis 
supplied).

The Eighth Circuit has subsequently emphasized the af­
firmative obligations of school boards to desegregate. Nor­
wood v. Tucker, 287 P. 2d 798, 809 (8th Cir. 1961). That 
Court has also made it plain that “subjective good faith” or 
a conscientious belief by the authorities that their actions 
were proper could not justify the use of discriminatory 
pupil assignment procedures. Dove v. Parham, 282 F. 2d 
256, 261 (8th Cir. 1960).

The trial Court’s refusal to grant permanent injunctive 
relief prohibiting an indefinite continuation of the assign­
ment practices reflected that Court’s view that the proce­
dures were nondiscriminatory (210a). The Court took this 
view despite the fact that it had found the application of 
some of the transfer criteria to be racial discrimination 
in individual cases (207a-208a). Plaintiffs urge that the 
trial Court should be directed to retain jurisdiction over the 
cause in order to supervise and insure the elimination of 
the discriminatory initial assignment and transfer prac­
tices. Cf. Hill v. School Board of the City of Norfolk, 
supra.



26

B. T he defendan ts’ special transfer criteria applied  
to Negroes seeking to en ter w hite schools are 
discrim inatory.

The record in this case amply demonstrates that the de­
fendants nsed special standards and procedures in deter­
mining the transfer requests submitted by plaintiffs. The 
defendants’ entire approach to the applications of the 
39 Negroes who applied to enter white schools in May, 1960 
is reflected by Mr. Wingo’s question to the School Super­
intendent: “Are there Negro pupils who cannot be excluded 
from attending white schools except for race!” (39a). 
Plaintiffs’ Exhibit J  (200a), the summary sheet used at the 
August 15th conference on these applications, demonstrates 
that the entire process was a search for reasons to disqualify 
applicants. The exhibit indicates that the Board began with 
39 applicants and proceeded to subtract applicants as rea­
sons for opposing their transfers were agreed upon. The 
Placement Board’s minutes also reflected this approach 
(28a-29a), stating that the nine Negroes admitted to white 
schools were pupils who “the local school authorities are 
not in a position to oppose legally” (28a-29a). Thus, the 
entire screening process is revealed as a search for grounds 
to oppose the transfers rather than an application of pre­
viously determined assignment criteria. The lack of any 
uniform objective and agreed standards for assigning pupils 
was clearly acknowledged by the Placement Board Chair­
man (158a-159a).

The transfer criteria applied to the Negro applicants were 
special criteria not routinely applied to white pupils rou­
tinely admitted to the same schools by operation of the 
“feeder system”. The minutes even referred to them as 
“criteria and standards dealing with the transfers and 
assignments of pupils of different races to the schools” (28a- 
29a). The entire procedure was in violation of the prin­



27

ciples set forth in Jones v. School Board of the City of 
Alexandria, 278 F. 2d 72 (4th Cir. 1960), where the Court 
said:

“If the criteria should he applied only to Negroes seek­
ing transfer or enrollment in particular schools and not 
to white children, then the use of the criteria could not 
he sustained. Or, if the criteria are, in the future, 
applied only to applications for transfer and not to 
applications for initial enrollment by children not pre­
viously attending the city’s school system, then such 
action would also be subject to attack on constitutional 
grounds, for by reason of the existing segregation pat­
tern it will be Negro children, primarily, who seek 
transfers.”

Mr. Wingo acknowledged that the academic criteria ap­
plied to Negro pupils and not to white transfer applicants, 
attempting to justify this on the theory that three out 
of four Negro pupils were below the median of the white 
schools, and it was necessary to screen Negro pupils aca­
demically and admit only those significantly above the 
median in order not to lower the median in the white schools 
(176a). He said that admitting whites to the same schools 
at random, would not change the white schools’ median, and 
therefore it was not necessary to apply the academic median 
criterion to white transfer students (176a). This argument 
seeks to justify the Board’s requirement that Negroes be 
above the median, that is have academic scores above half 
of the white pupils in the class applied for, to be granted 
transfers. It is obvious that a rule requiring Negro transfer 
applicants to be superior to more than half of the white 
students in the class they seek to enter is patently racially 
discriminatory. School segregation cannot be justified on 
the basis of any theory that Negro pupils as a group have 
lower academic test scores than white pupils as a group.



28

Such arguments were made by the states and rejected in 
Brown v. Board of Education, 347 U. S. 483 (1954).

If a school system desired to group pupils by reference 
to their academic test scores and established special schools 
for pupils with certain academic abilities, there would be 
no constitutional objection. However, this has not been 
done in the Roanoke schools, as the Superintendent freely 
admitted (52a-53a; 56a-57a). Roanoke does have ability 
grouping where it is considered necessary within given 
schools, but all of the schools accept pupils routinely with­
out reference to their academic test scores. They are some­
times grouped academically after they are admitted (57a).

All of the plaintiffs were discriminated against by the 
application of the academic criterion. No matter how high 
or low the individual plaintiffs’ intelligence and achieve­
ment test scores (and the Board used no data to find out 
exactly where they stood in relation to the white pupils), 
the simple fact remains that white pupils were admitted 
without reference to such test scores. Nondiscriminatory 
treatment requires that Negro applicants similarly be ad­
mitted without reference to the academic test scores.

Defendants’ explanations that the academic screening was 
done with good motives, out of solicitude for the Negro 
pupils themselves and to assure that they would be success­
ful if admitted to white schools, cannot justify the dis­
criminatory criteria. Similar arguments were rejected in 
Dove v. Parham, 282 F. 2d 256, 258, 8th Cir. (1960) and 
Norwood v. Tucker, 287 F. 2d 798, 809 (8th Cir. 1961). The 
Court said in the Dove case tha t:

“An individual cannot be deprived of the enjoyment 
of a constitutional right, because some governmental 
organ may believe that it is better for him and for 
others that he not have this particular enjoyment. The



29

judgment as to that and the effects upon himself 
therefrom are matters for his own responsibility” 
(at p. 258).

This Court stated the applicable principles forcefully in 
McKissick v. Carmichael, 187 F. 2d 949, 953-954 (4th Cir. 
1951), a case where state officials argued that it would be 
to a Negro’s advantage to attend an all-Negro school 
rather than the all-white state law school. Judge Soper 
writing for the Court said:

“Indeed the defense seeks in part to avoid the charge 
of inequality by the paternal suggestion that it would 
be beneficial to the colored race in North Carolina as 
a whole, and to the individual plaintiff's in particular, 
if they would cooperate in promoting the policy 
adopted by the State rather than seek the best legal 
education which the State provides. The duty of the 
federal courts, however, is clear. We must give first 
place to the rights of the individual citizen, and when 
and where he seeks only equality of treatment before 
the law, his suit must prevail. It is for him to decide 
in which direction his advantage lies.”

The Supreme Court long ago invalidated State efforts 
to over-ride parental decisions as to the best educational 
choices to make for their children, stating that:

“The child is not the mere creature of the State; those 
who nurture him and direct his destiny have the right, 
coupled with the high duty, to recognize and prepare 
him for additional obligations.”

Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925) (in­
validating State denial of right to attend private schools). 
See also Meyer v. Nebraska, 262 U. S. 390, 401-402 (1923) 
(invalidating State prohibition of foreign language instruc­



30'

tion). The defendants’ conception that Negro pupils must 
bear the burden of demonstrating that obtaining a non- 
segregated education will benefit them, advances a unique 
proposition in our constitutional law. Professor Charles 
L. Black discussed this theory in a recent article, The Law­
fulness of the Segregation Decisions, 69 Yale L. J. 421, 
428 (1959):

“It is true that the specifically hurtful character of 
segregation, as a net matter in the life of each segre­
gated individual, may be hard to establish. It seems 
enough to say of this, as Professor Poliak has sug­
gested, that no such demand is made as to other con­
stitutional rights. To have a confession beaten out of 
one might in some particular case be the beginning of 
a new and better life. To be subjected to a racially 
differentiated curfew might be the best thing in the 
world for some individual boy. A man might ten years 
later go back to thank the policeman who made him 
get off the platform and stop making a fool of himself. 
Religious persecution proverbially strengthens faith. 
We do not ordinarily go that far, or look so narrowly 
into the matter. That a practice, on massive historical 
evidence and in common sense, has the designed and 
generally apprehended effect of putting its victims at 
a disadvantage, is enough for law. At least it always 
has been enough.

“I can heartily concur in the judgment that segregation 
harms the white as much as it does the Negro. Sadism 
rots the policeman; the suppressor of thought loses 
light; the community that forms into a mob, and goes 
down and dominates a trial, may wound itself beyond 
healing. Can this reciprocity of hurt, this fated mutu­
ality that inheres in all inflicted wrong, serve to vali­
date the wrong itself?” (Footnotes omitted.)



31

The “sibling relationship” criterion as applied by the 
defendants to deny plaintiffs’ transfer request is equally 
invidious and discriminatory. This criterion was sought 
to be justified by Mr. Wingo on grounds similar to those 
just mentioned, namely, as an attempt to protect plaintiffs 
from being in frustrating situations (178a-179a). Mr. Wingo 
said he was concerned about disrupting the families by 
putting siblings in different schools (178a), and also that 
where one sibling had an academic record below the median, 
he considered this an indication that the other children in 
the family might have difficulty succeeding academically, 
saying: “Generally speaking, the children in a family will 
be more or less alike” (166a). Thus, by this criterion, pupils 
were excluded, despite their own test scores above the 
median, on the ground that they had siblings who were 
below the median.

If the academic median criterion is held to be discrimina­
tory, the sibling relationship criterion must naturally fail 
as it depends entirely upon the validity of the academic 
criterion. In other words, if no pupils can be excluded for 
a score below the median, their siblings (who also applied 
for transfers) would not be separated from them. The 
sibling relationship criterion would be inoperative. There 
is no need here to decide whether school authorities might 
use another type of sibling relationship rule unrelated to 
a discriminatory acadamic standard. The court need not 
consider, for example, whether a board might validly make 
it a condition that all pupils in a family at a given school 
level seek transfers together. That situation was not in­
volved here. Here several siblings sought transfers to­
gether. When some pupils were excluded from white 
schools by the discriminatory academic ground, the Board 
required that their siblings be excluded with them. This 
Court’s decisions in Jones v. School Board of the City of 
Alexandria, 278 F. 2d 72 (4th Cir. 1960); Dodson v. School



32

Board of the City of Charlottesville, 289 F. 2d 439 (4th Cir. 
1961) and Hamm v. County School Board of Arlington 
County, 264 F. 2d 945 (4th Cir. 1959), indicate that such 
applications of assignment criteria are invalid.

The Board’s residence criterion was also applied in a 
discriminatory manner. Negro transfer applicants were ex­
cluded if they lived closer to the all-Negro schools than to 
the all-white schools or an equal distance between schools. 
However, Negro pupils living closer to the all-white schools 
were not required to attend those schools because they 
lived closer to them. To the contrary, Negroes living with­
in one block of white schools and twenty blocks from all- 
Negro schools were not only initially assigned to the all- 
Negro schools—they were not even permitted to transfer 
to the white schools (133a). Thus, it is plain that a differ­
ent residence criterion has been used in determining trans­
fer applications from the method used in deciding initial 
assignments. This also falls within the rule of the Jones 
case, supra, prohibiting the use of special criteria for trans­
fers not used in original placements. See also, Norwood 
v. Tucker, 287 F. 2d 798, 803 (8th Cir. 1961), and Mannings 
v. Board of Public Instruction, 277 F. 2d 370, 374 (5th Cir. 
1960).

The screening of pupils on the basis of teacher’s com­
ments about their personalities and school adjustment was 
another special criterion applied only in the case of the 
Negro transfer applicants. Similar subjective standards, 
sometimes referred to as “adaptability” criteria, were re­
jected in Hamm, v. County School Board of Arlington 
County, 263 F. 2d 226 (4th Cir. 1959) and School Board 
of the City of Norfolk v. Beckett, 280 F. 2d 18, 19 (4th Cir. 
1958). It is clear that no personality appraisals are used 
in the routine initial assignments of pupils. Use of this 
standard in screening the plaintiffs was discriminatory.



33

C. T h e Placem ent B oard’s pro test and hearing p ro ­
cedure was not an adequate and expeditious
rem edy.

The court below held that plaintiffs’ failure to file a 
protest with the Placement Board after their applications 
were denied did not bar them from obtaining judicial relief 
because of the circumstance that the Placement Board did 
not act on the applications until shortly prior to the school 
term and there was “insufficient time to have heard the 
protest if one had been filed” (206a). Plaintiffs submit that 
this ruling was correct in the circumstances of the case. 
The statute relied upon by defendants (Va. Code §22-232.8) 
requires a substantial period of time before a hearing can 
be held and the Board is allowed thirty (30) days after 
the hearing to decide the ease. Numerous courts have held 
that the procedure provided by §22-232.8 was inadequate: 
Judge Hoffman’s holding in Beckett v. School Board of 
City of Norfolk, 185 F. Supp. 459 (E. I). Va. 1959), aff’d 
sub nom. Farley v. Turner, 281 F. 2d 131 (4th Cir. 1960), 
while relying in part on the Placement Board’s fixed oppo­
sition to desegregation, was also based upon a determina­
tion that the remedy was inadequate since the Placement 
Board had not acted upon the applications until three days 
prior to the school term and the protest procedures required 
so much time.

Prior to the Beckett case, Judge Bryan had reached a 
similar conclusion on several occasions in the Thompson 
case, infra. None of the Negro pupils who obtained ad­
mission to white schools during the several years such 
orders were issued in Arlington were required to follow 
the protest machinery. This was true both before and 
after the Placement Act amendments of 1958. Compare 
Thompson v. County School Board of Arlington County, 
159 F. Supp. 567 (E. D. Va. 1957) (procedure is “too



34

sluggish and prolix”), aff’d 252 F. 2d 929 (4th Cir. 1957), 
cert, denied 356 U. S. 958, and Aclhins v. School Board of 
City of Newport News, 148 F. Supp. 430, 442-443 (E. D. 
Va. 1957), aff’d 246 F. 2d 325 (4th Cir. 1957), with Thomp­
son v. County School Board of Arlington County, 166 
F. Supp. 529, 531 (E. D. Va. 1958) (after amendment to 
present form, Placement Law held “still not expeditious”), 
aff’d in part and remanded in part, sub nom. Hamm v. 
County School Board of Arlington County, 263 F. 2d 226 
and 264 F. 2d 945 (4th Cir. 1959). Judge Brya.n rejected 
the protest machinery as inadequate once more after the 
invalidation of the massive resistance laws. Thompson v. 
County School Board of Arlington County (E. D. Va., 
C. A. No. 1341, unreported “Memorandum on Formulation 
of Decree on Mandate” dated June 3, 1959), holding that 
Negro pupils could ignore the protest machinery because 
it still was not expeditious.

The simple fact is that none of the dozens of Negro 
pupils who obtained admission to white schools by court 
orders in the Arlington County case,11 12 13 Fairfax County f 2 
or Alexandria13 school segregation cases were required to 
pursue the Placement Board’s protest machinery.

There were similar rulings in the Charlottesville and 
Floyd County cases by Judges Paul and Thompson, Allen 
v. School Board of City of Charlottesville, 3 Race Rela­
tions Law Reporter 937, 938 (W. D. Va. 1958); Walker

11 See for example Thompson v. County School Board, etc., 4 
Race Rel. Law R. 609 (E. D. Va. July 25, 1959) ; 4 Race Rel. Law 
R, 880 (E. D. Va. Sept. 1959); 5 Race Rel. Law R. 1054 (E. D. Va. 
Sept. 16, 1960).

12 Blackwell v. Fairfax County School Board, 5 Race Rel. Law R. 
1056 (E. D. Va. Sept. 22, 1960).

13 Jones v. School Board of City of Alexandria, 4 Race Rel. Law 
R. 31, 33 (E. D. Va. Oct. 22, 1958; Jan. 23, 1959; Feb. 6, 1959); 
aff’d 278 F. 2d 72 (4th Cir. 1960) ; see also 179 F. Supp. 280 
(E. D. Va. 1959).



35

v. Floyd County School Board (W. D. Va., C. A. No. 1012; 
Sept. 23,1959, unreported).

Plaintiffs submit that the remedy provided by this sec­
tion is inadequate for a more fundamental reason than 
the time element involved in exhausting it. So long as the 
practice of initial assigning standards on the basis of race 
continues, it is discriminatory to require that students seek­
ing to obtain a desegregated assignment pursue a protest 
and hearing procedure. This is particularly true where 
the protest proceedings are not designed to correct the 
practice of assigning pupils on the basis of race but in­
volve merely the application of special criteria for pro­
tested cases (the same criteria already applied ex parte 
in this case). In light of the Placement Board’s policy of 
using different assignment criteria to review protested 
transfer applications than the criteria used to place pupils 
initially, the entire protest procedure is necessarily dis­
criminatory within the rule of Jones v. School Board of 
the City of Alexandria, supra.

District Judge Michie recently wrote in Jackson v. School 
Board of the City of Lynchburg, Va. (W. D. Va., C. A. 
No. 534, January 15, 1962, not yet reported):

If the Pupil Placement Board is not going to make 
the initial placements of all public school students in 
the state (and, as indicated above, it obviously cannot) 
and if on appeal it is not going to consider whether 
or not those placements have been made on a dis­
criminatory and racial basis, then obviously the ap­
peal to the Pupil Placement Board can afford no ade­
quate remedy to those children who have been 
discriminated against because of their race unless per­
chance they happen to live nearer to the school they 

. wish to attend. Under these circumstances it would 
be almost a cruel joke to say that administrative reme­



36

dies must be exhausted when it is known that such 
exhaustion of remedies will not terminate the pattern 
of racial assignment but will lead to a remedy only 
in a few given cases based on geography—a considera­
tion which has been disregarded in the assignment of 
white pupils.

D. T he court has clear pow er to grant com plete  re lief 
by issuing an order restraining the discrim inatory  
initial assignm ent practices.

The court below refused to issue an injunction against 
the defendants as prayed,14 holding that the Placement 
Board’s practices and policies were justified and that the 
County Board and Superintendent were not in fact per­
forming assignment duties, and concluding that there was 
no justification for entering a permanent injunction (211a).

One of the traditional equity principles which Brown v. 
Board of Education, 349 U, S. 294 (1955), requires the 
courts to use in shaping remedies in these cases is that of 
granting complete relief. Hecht Co. v. Bowles, 321 U. S. 321, 
329 (1944). The obligation to grant complete relief, even 
when it benefits persons not before the court, is evident from 
Porter v. Warner Holding Co., 328 U. S. 395 (1946) where 
the Court said:

And since the public interest is involved in a pro­
ceeding of this nature, those equitable powers assume 
an even broader and more flexible character than when 
only a private controversy is at stake. Virginian R. 
Co. v. System Federation, R. E. D., 300 US 515, 522, 
81 L ed 789, 802, 57 S Ct 592. Power is thereby resi­

14 Part B of the Prayer for Relief (14a) was modeled after the 
language approved by this Court in School Board of City of 
Charlottesville v. Allen, 240 P. 2d 59, 61 (4th Cir. 1956), and 
directed to be used in Allen v. County School Board of Prince Ed­
ward County, 266 P. 2d 507, 511 (4th Cir. 1959).



37

dent in the District Court, in exercising this jurisdic­
tion, “to do equity and to mould each decree to the 
necessities of the particular case.” Hecht Co. v. Bowles, 
321 US 321, 329, 88 L ed 754, 760, 64 S Ct 587. It may 
act so as to adjust and reconcile competing claims and 
so as to accord full justice to all the real parties in 
interest; if necessary persons not originally connected 
with the litigation may be brought before the court 
so that their rights in the subject matter may be deter­
mined and enforced. In addition, the court may go 
beyond the matters immediately underlying its equi­
table jurisdiction and decide whatever other issues and 
give whatever other relief may be necessary under the 
circumstances. Only in that way can equity do complete 
rather than truncated justice. Camp v. Boyd, 229 US 
530, 551, 552, 57 L ed 1317, 1326, 1327, 33 S Ct 785.

Indeed, Buie 54(e), F. R. C. P. requires the courts to grant 
the relief to which the parties are entitled whether or not 
demanded.

The defendants argued below that under Carson v. War- 
lick, 238 F. 2d 724 (4th Cir. 1956), the plaintiffs could not 
maintain a class action but in light of the pupil placement 
law can only obtain individual relief for assignment to 
particular schools. The manner of the trial court’s citation 
of Carson v. Warticle, supra, indicates apparent agreement 
with that view (209a-210a).

Plaintiffs submit that Carson v. Warlick, supra; Coving­
ton v. Edwards, 264 F. 2d 780 (4th Cir. 1959) and Holt 
v. Raleigh City Board of Education, 265 F. 2d 95 (4th Cir. 
1959), are inapplicable and do not support the proposition 
that the courts are powerless to deal with discriminatory 
assignment practices affecting pupils in a school system, 
except by reviewing individual applications to a particular



38

school. This was the theory used to justify the trial court’s 
action in McCoy v. Greensboro City Board of Education, 
179 F. Supp. 745, 749-780 (M. D. N. C. 1959), which this 
Court reversed, 283 F. 2d 667 (4th Cir. 1960). Actually, 
the Carson, Covington and Holt cases held that injunctive 
relief would not be granted where parties had failed to 
pursue reasonable and adequate administrative remedies 
under a pupil placement law. The Court in Carson made 
it plain that it was not deciding what relief might be 
granted where some individuals had exhausted their ad­
ministrative remedies or where the remedies afforded were 
inadequate or unreasonable. The Court said in Carson, at 
238 F. 2d 724, 729:

“We are dealing here, of course, with the admin­
istrative procedure of the state and not with the right 
of persons who have exhausted administrative reme­
dies to maintain class actions in the federal courts in 
behalf of themselves and others qualified to maintain 
such actions.”

The procedural aspects of the class action issue may be 
disposed of without difficulty, for it is the substantive issue 
as to what relief may be granted that is really in dispute. 
The case comes within Rule 23(a)(3), F. R. C. P. in that 
it involves a numerous class of persons (all Negro pupils 
in the system); it is obviously impracticable to bring them 
all before the court; and they are represented by “one or 
more members of the class.” The fact that the rights in­
volved are personal and individual constitutional rights 
does not remove the case from Rule 23(a)(3). That pro­
vision applies only to “several” rights. The case meets 
the requirement that the “several” rights involve common 
questions of law and fact and that common relief be sought. 
The fact that other members of the class have not pursued 
individual transfer requests does not place them in a dif­



39

ferent class, because the common relief sought goes only 
to those issues of law and fact which do affect all Negro 
pupils in the community in common, and for which there 
is no administrative remedy to be exhausted, namely, the 
policy of making initial assignments on the basis of race.

Buie 23(a)(3) was designed to cover exactly this type 
of situation, to “clean up” the litigious situation in one 
action (see Pomeroy’s Equity Jurisprudence, 5th Ed., 5 
Symons, 1941, Yol. 1, §§260, 261a-n) and to avoid a multi­
plicity of actions, as the equitable origins of the class action 
attest. Smith v. Swormstedt, 16 How. (U. S.) 288, 14 L. 
ed. 942 (1853); Hansherry v. Lee, 311 U. S. 32, 41-42 
(1940). See Bush v. Orleans Parish School Board, 242 
F. 2d 156, 165 (5th Cir. 1957).

The defendants’ argument that no class action may be 
maintained is in essence a substantive argument that they 
can insulate themselves from an injunction requiring them 
to cease the dual racial initial assignment system, and that 
the placement law renders the court powerless to grant 
relief against this practice. This doctrine would effectively 
overturn the rule of the Jones case, supra. It is submitted 
that the contrary view taken by the 8th Circuit in Norwood 
v. Tucker, 287 F. 2d 798 (8tli Cir. 1961) is sound, and that 
the courts have and should exercise full power to prohibit 
discriminatory initial assignment practices. Manning v. 
Board of Public Instruction, 277 F. 2d 370 (5th Cir. 1960). 
See, also, Jackson v. School Board of the City of Lynch­
burg (W. D. Va.) (C. A. No. 534, Jan. 1962), unreported, 
requiring a school board to present a plan for eliminating 
discriminatory initial assignments.



40

CONCLUSION

It is respectfully submitted that the judgment o f the 
court below should he reversed and the case remanded  
with directions that the appellants be granted the relief 
sought and such other and further relief as may be just.

Respectfully submitted,

J ack Greenberg

J ames M. N abrit, III 
10 Columbus Circle 
New York 19, New York

R exjben E. L awson

19 Gilmer Avenue, N.W. 
Roanoke 17, Virginia

Attorneys for Appellants