MAP

Suggested Districts For The Middle Schools

Allison Park

- 13 The estimated cost of the building plan required to implement this recommended form of school organization is $3, 855, 000. This figure differs only slightly from the cost of the Board's tentative plan for three PK-5 elementary centers, a single middle school for grades 6-8, and a 9-12 senior high school. The cost can be reduced significantly by the sale

of the Engle Street and Liberty properties. A recent appraisal of these two properties set their total sale value at $808, 000. Advantages of Recommended Flan for School Organization This recommended plan for school organization was developed with careful attention to the hopes and expressed needs of Englewod residents and the overall political climate of the community. Not only does it represent the best in terms of educational opportunity, but it has been weighed carefully against the sometimes divergent views expressed in interviews with city officials, civic and religious leaders, and school personnel. The Harvard staff is convinced that most local residents

will view the recommended plan as a step toward improvement of public education in Englewood. The most important thing, however, is not the specific details of the plan itself but the educational, political, and social guidelines used in its development. Although the Board may decide, either on the basis of unexpected future developments or of its own superior knowledge of the community, to make certain specific changes in the plan as outlined,

- 14 it would be a serious mistake to violate the important guidelines and educational values used in its development. The following listing and discussion of advantages is presented here with the hope that any such violation will be avoided. 1. THE RECOMMENDED PLAN OF SCHOOL ORGANIZATION PROVIDES THE OPPORTUNITY FOR AN IMPROVED EDUCATIONAL PROGRAM. If the continuous intellectual and social development of every child is to become a meaningful goal in American education, we must continually re-examine traditional approaches to learning. Although the self-contained classroom still has many strengths, the restriction which it places on provision for individual differences has caused educators to question its importance to a modern educational program. Two new approaches -- the non-graded concept and team teaching -- are being examined as possible improvements over traditional grade and classroom organization. The plan proposed in this report provides for flexibility to use the most appropriate aspects of all three approaches and has the further advantage of providing for specialized teachers and facilities at an earlier period in the child's total educational experience. The incorporation of pre-kindergarten into the regular instructional program and the establishment of three PK-3 elementary centers will support the development of a nongraded and continuous learning experience in the early years of life. The middle school for grades 4-8 will complement this developmental experience of the early years by providing the opportunity for specialized learning and team teaching in the upper elementary years. The comprehensive senior high school for grades 9-12 will provide the specialized and general competencies of a modern vocational training program and an individualized academic program for the collegebound student. Englewood's willingness to move in the direction of an educational program of this type is evidenced by such innovations as the team teaching program at Engle Street School and the curriculum revisions proposed by the Englewood School Development Project, The organizational plan recommended in this study is designed to encourage the development of techniques and projects which will lead to an improved instructional program in Englewood.

- 15 -

2.

THE RECOMMENDED PLAN PROVIDES FLEXIBILITY FOR LONG-RANGE POPULATION GROWTH. At present, only the Dwight Morrow and Cleveland sites provide sufficient space for major school expansion. With 34 and 6 acres respectively in these two sites, it appears that major expansion of the school plant at either site could, at some future time, seriously restrict school recreation areas. Furthermore, both sites are located in Ward 3, the section of the city least likely to show a sizable increase in school enrollment. Hence, the acquisition of a large site in Allison Park and the construction of a new 4-8 middle school will enhance the opportunity for adjusting to long-range growth in school enrollments. Allison Park presents many possibilities for a. highly desirable school site, and it seems quite likely that a school could be erected on a part of the park set back from the road where it would not disrupt the operation of the developed park area or affect the beauty of the adjacent residential area. Should obtaining a large site in Allison Park itself prove impossible, the school system should consider acquiring a smaller acreage adjacent to the park on which to build a school. The park land could then provide the school's recreational areas.

3.

THE PLAN PROVIDES FOR A RACIALLY INTEGRATED LEARNING EXPERIENCE FOR ALL STUDENTS. Englewood's present school organization and districting pattern recognizes the importance of racially integrated school enrollments. Recent population shifts, however, make it advisable to implement a districting pattern similar to that outlined in the recommended plan of school organization. These recommended districts should assure a reasonable degree of both racial and socio-economic integration throughout the projection period included in this study. Moreover, should unanticipated population shifts occur, considerable flexibility exists for adjusting district lines to maintain racially balanced enrollments, particularly at the middle school level.

- 16 While the prospects for maintaining a racially integrated school enrollment in Englewood are good, the fact that the present public school enrollment is 42 percent Negro suggests a need for seeking the cooperation of numerous leaders and groups. Continual encouragement must be given to the development of racially integrated residential patterns. This appears to be the best way of preventing extreme racial concentrations in the public schools. In addition, local public school authorities should explore possible opportunities for engaging in cooperative efforts with surrounding communities and local non-public schools as a means of assuring both a socio-economic and racial integration in school enrollments. Expansion of the Bergen County student exchange program and the acceptance of tuition students into the Englewood schools are two possibilities for accomplishing this end. The public school itself will play a most important role in the maintenance of a racially integrated school system. Realization of the educational advantages implicit in the recommended plan of school organization will add significantly to the general attractiveness of Englewood. The development of a non-graded learning experience in the early years of schooling and the provision of specialized facilities and personnel in the upper elementary grades are features of the recommended plan which can serve to anchor people to the community, A general extension and intensification of present efforts to improve the public schools in Englewood will clearly influence the preservation of a racially integrated learning experience for all students. Implementation of the Harvard staff's recommendation on school organization or any other plan which preserves its basic advantages should be accompanied by a carefully planned program of community orientation. It is suggested that this summary report or a revision thereof be distributed to the people of Englewood. Following a careful examination of the recom-

- 17 mendations made by the Harvard staff and after hearing from all responsible interests in the community, the Board should make appropriate modifications in the recommendations and then set in motion the dissemination and implementation of its own long-range plans. tion effort is of crucial importance. This dissemina-

Achievement of the educational values

inherent in the recommended form of school organization, namely, the facilitation of an improved educational program, the flexibility for adjusting to long-range population growth, and the provision of a racially integrated learning experience for all students, is very much dependent upon the Board's commitment to improved education and its ability to communicate this commitment to the people of Englewood.

May 21, 1965

MEMORANDUM TO MISS BAP.3AP.A A. MGPP.IS FROM: He: Robert L. Carter Her v. Yol

1. I have gone over your ir.enjorer.du.- er read the questions the Court asked us to be pre meet. I think that you have answered all of t'r. tions very well, except for the last two. I dc that Point III answers as to what the jurisdict court belcw was and of what grant of authority have. It seems to me that you have begged the nor have you answered, specifically, what relia be granted. I an gcing to have in the library attempting to catch up with you and II of your memorandum. We will have to ta'r out to have some discussion of this. 1 will be office after the 2?th, until June 1. ~ note t'r to be away frcE June 1 until July 1. That -ear have to , We nave received a" oraer solidatlon of the removal cases ir. the Tour: There is still pending the getting together on the appeals in the state courts or. the d= cases. Is there anything that the students to be working with us this su-~er csr. dc to up either cr bcth of these projects'?

IN THE

Supreme Court of the United States

OCTOBEB TZBM, 1963

No. 865, MISCEIXANEOUS

FREDERICK M. RAUBINGEK, COMMISSIONER OF EDUCATION OF THE STATE OF NEW JERSEY and THE STATE BOARD OF EDUCATION OF THE STATE OF NEW JERSEY, Petitioners, vs. ANTHONY T. AUOELLI, JUDGE, UNITED STATES DISTRICT COURT, DISTRICT OF NEW JERSEY, Respondent.

RESPONSE TO MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF PROHIBITION, AND REASONS IN OPPOSITION TO SAID MOTION

OKSASGF-B & MUHPHT. EsQS,,

Attorneys for Gertrude P. Fuller, et als.. Plaintiffs, One Engle Street, Englewood, New Jersey.

MacCrellish & Quiglcy Co., Printeri, Trejuoc, New Jcrjcy

TABLE OF CONTENTS QUESTIONS PRESENTED: Statement Reasons for Denying the \Vrit 1 S

1. The case below, Fuller v. Fott- (Civil Xo. S47-63* raises a substantial issue of the violation of Federal Constitutional Eights S 2. The Federal District Court has jurisdiction to hear this matter 15 3. It has not been demonstrated that the District Court lacks jurisdiction nor that the applicant has no other remedy 17 APPENDIX : A. B. C. D. Complaint la Order denying Leave to Appeal 5a Decision of Superior Court of New Jersey 7s Order Reinstating Appeal and Marking Vacating Order of Dismissal . . . Ha

CASES CITED Abrams v. McGokey, C. A. X. T., 195? '360 F. 'Id. 892 . . . Balobnn v. Rubin, New York Law J o u r n a l , Sept. 11, 1963 Bell v. School City of Gnry. 213 F. Supp. ?19 (K. D. Indiana, 1963-Jan. 29. 1963-U. S. Dist. Ct.) . . Briggs v. Elliott, D. C. C. D. S. C. 13-2 F. Supp. 776 . . It?

12
9 10

Browder v. Gayle, 142 F. Supp. 707, aff'd 352 U. S. 903, 77 S. Ct. 145,1 L. Ed. 2d 114 17 Brown v. Board of Education, 347 U. S. 483, 74 S. Ct. 686, 98 L. Ed. 873 8, 12 In Re Chicago R. L P. Ry. Co., Ohio 1921, 41 S. Ct. 288, 255 U. S. 273, 65 L. Ed. 631 18 On.'.V v. Oklahoma Cita. 120 F. 2d 661 . Enmero v. TTVi?A-/V. 226 F. 2d 399 . .

County of Allegheny v. Frank Mashuda Co., 360 U. S. 185, 3 L. Ed. 2d 1163, 79 S. Ct. 1060 15 County School Board of Chesterfield County v. Freeman, 171 F. 2d 702 . 15 Dyer v. Kazukisa, 138 Fed. Supp. 220 Ermentrout T. Commonwealth Oil Co., 220 F. 2d 527 ... Evans v. Buchanan, 207 F. Supp. 820 17 16 UNITED STATES CONSTITUTION CITED Fourteenth Amendment RULES CITED Rule 30. Revised R u l e s of Supreme Co;::; STATUTES CITED 15 17 14 TEXT CITED 16 18 15
19

9: 10. 11

Ex Parts Fahey, 67 S. Ct. 1558, 332 U. S. 258, 91 L. Ed. 2041 18,19, 20 Greer v. United States, 90 F. Supp. 871 Hague v. Committee for Industrial Organization, 307 D. S. 496, 83 L. Ed. 1423, 59 Sup. Ct. 954 Ex Parte Hawk, 321 U. S. 114, 88 L. Ed. 572 (1944) . . . Ex Parte Herding, 219 U. S. 363, 31 S. Ct. 324, 55 L. Ed 252, 37 L. R. A. (X. S.) 392 Holland v. Board of Public Instructions (Fla.), 258 F. 2d 730 (5th Cir. 1958) Leimer v. Reeves, 184 F. 2d 441 (1950) .. * Lopez v. Seccomb, 71 F. Supp. 769 <Vfc.Vee.se v. Board of Education, 83 Sup. Ct. 1433 (1963) In Re Mmr, 254 U. S. 522, 41 S. Ct. 185, 65 L. Ed. 383 . . Myerson v. Samuel, 74 F. Supp. 315 15

STATEMENT In October, 1963, plaintiffs filed a complaint in the United States District Court to enjoin officials of the City of Englewood, New Jersey, from expending funds for the purpose of implementing a certain plan which is set forth infra. Said plaintiffs alleged that the plan called for school assignment on the basis of race, excluded children from their regular neighborhood schools on the basis of race, discriminated against certain students by giving a choice to some which was denied to others and called for preferential treatment on the basis of race. Subsequently, Frederick M. Raubinger (the applicant here seeking the Writ of Prohibition) moved to intervene as a party defendant as did the Englewood Board of Education. At the same time certain individuals, Volpe et als., moved to intervene as parties plaintiff. At the same time, Raubinger filed a motion to dismiss. All applicants were permitted to intervene and the motion to dismiss was denied. The complaint of Volpe, et als., the intervening plaintiffs, alleged that the suit involved rights granted to the intervening plaintiffs by the Fourteenth Amendment of the United States Constitution and further alleged that as a result of the plan in issue children of these intervening plaintiffs were no longer permitted to attend their neighborhood schools and were excluded from said schools because of race. Said intervening complaint further alleged that said plan therefore constituted a violation of the rights of these intervening plaintiffs and their children which are granted to them by the Fourteenth Amendment to the United States Constitution. A com- of said complaint is attached hereto as Appendix A, Raubinger then filed a motion for leave to appeal the denial of the motion to dismiss which was denied. A copy of said order is attached hereto as Appendix B. The Fuller plaintiffs then filed a motion for Summary Judgment, the hearing of which was adjourned by Ran-

binger because be had filed an application for a Writ of Prohibition with tbe Circuit Court of Appeals which application was denied. He then filed this present application. Subsequently other-named intervening defendant? were permitted to intervene. The basis of Raubinger's request for this extraordinary writ is that the plaintiffs have started an action in the State Courts and therefore the Federal District Court does not have jurisdiction over this controversy. It is most significant that although plaintiffs did institute suit in the State Courts no decision was ever rendered on the merits. Tbe underlying facts are as follows: The complaint below alleges that the plaintiffs are citizens of the U. S. residing in Engiewood, New Jersey, and are taxpayers in Englewood, New Jersey. The defendants in the complaint are the Board of School Estimate and the City of Englewood, N>w Jersey, and the Board of Education. It was alleged in tbe complaint that tbe Board of School Estimate has been directed by the City Board of Education to raise the sum of $66,500.00 from public fund? to finance a plan by which the existing school system would be changed. Plaintiffs asserted in that complaint that such an appropriation and expenditure of money would be illegal, unlawful and unconstitutional. Plaintiffs demanded that the court below so adjudicate and restrain defendants from further action in tbe matter. Prior to tbe filing of the above complaint, and on July 1. 1963, Frederick M. Raubinger, State Commissioner of Education of XewTfersey rendered a decision setting f o r t h that certain petitions were filed by parents on behalf of their children charging the Englewood Board of Education with maintaining racially segregated public schools and with refusal to implement plans to eliminate patterns of racial segregation alleged to exist in the public schools. A third group of petitioners (Volpe et al.) were allowed to intervene with the above petitioners. The Volpe petitioners advocated the maintenance of the neighborhood school policy.

further claiming that the Enek'.vood B'l.V-i of ^d^c-oTk was not discriminating against any cbildr-n. A ";::;: made to dismiss the Board of School E?n:r.;-i-> md ;: Mayor and Council from ibe complain:, on tb-:- erou:;:i :b the Commissioner of Education lacked j u r i s t i c : : :-r. ;-vthese parties, was granted, leaving tb-? Ensie-o-: ". Bo.-.: of Education as sole respondent. Tb~ Commissions: :o-:T that there were five elementary schools which .-.-e -:-.:-.-. ::.--by pupils assigned on the basis of residonc--? in driir^:-; attendance areas. The focus of tb~ b-i-srin;: h^fovr :'. Commissioner was on Lincoln School. Tb-- lines :-o;j:r-v"r: the school attendance district for Lincoln >cb-:-o: b a d ;. : .-ously been approved by the Commission^;-. It is most important to note thst tb-.- Commissioner d termined that there was no evidence to supr-or' :-. ?b?.;-j of intentional racial segregation by respondent, ibv .':: inissicmer slated thai it is appareii; :bat Tb-' cor.:-er-tr;i:i-," of pupils from one race results iron; p a t t e r n s of bousi:: The Commissioner did noi dispu:o thai raue::.:ior;;0 oppo tunities were equal regardk-ss of ?cboo". :i::;-::.:.-;-,i ::; :-::: of nu-asurable objective c r i t e r i a . He 'JirvOtvii ib-; Er.c. wood Board of E d u c a t i o n , bowt-vor. 1. to formulate a plau to reduce :bc- ooi:orn"r;-."ior: negro pupils in Lincoln School 2. to submit tho plan to hi:n on or b---f::> A;:;:;?" 1963. 3. to pui the plan, as approved, i n t o ; r:\-c! ;:.: :bo V ginning of the liHvvr-i sci:ooi your. On July '29. 1H6?. ibe Board of Ed-iicatic'.i of Er.pic---,-;,-. Xew Jersey, adopted a proposal i.bvreinsiter r-;-:-;r7vd as the July _ ? t b P l a n ; tvhiob would cbarce :"!;-; o x i ^ : - ; school a:it?uclauce fy?; t -ni in :bo City of Engk'-vvoo.:. Xo Jersev.

r'

order to comply with the directive of Commissioner Frederick M. Kaubinger, New Jersey State Department of Education, dated July 1, 1963, which directive directs the Englewood Board of Education to do the following things. 1. To formulate a plan or plans to reduce the extreme concentration of pupils of the negro race in the Lincoln School consistent with the principles and findings enunciated in this decision; 2. To submit such plan or plans to the Commissioner of Education for approval on or before August 1, 1963; 3. To put a plan as approved, into effect at the beginning of the 1963-64 school year. Now, therefore, in compliance with said directives, the Board of Education of the City of Englewood. Bergen County, New Jersey, submits the following plan, to take effect as of the opening of school in September, 1963, or as soon thereafter as building renovations can be effected. 1. To establish at the former Junior High School building at 11 Engle Street, a city-wide sixth grade school to which the Board assigns all sixth grade pupils of the Englewood Public Schools. "2. To assign all pupils of grades one through five residing in the Lincoln School attendance district to the Cleveland, Quarlcs and Roosevelt Schools, such assignment tqjoe determined by the Superintendent on the basis of the following criteria: A. define attendance districts so that children of the Lincoln School district will be assigned as nearly as possible to the school nearest their homes, B. provide for an even distribution of class loads, C. to permit the children whose parents wish them to remain at Lincoln School to remain there <

3.

4. 5. 6.

provided that it is adminis: ration ally educationally practicable to do so. A? a prerequisite to the establishment of ;::wide sixth grade school referred to in F a r a (1) above, either of the following two cond must occur ; A. 125 or more present student? of Lir.:o;r. must not elect to remain for the lr-63-64 TO Lincoln School or B. The number of transfers from Lincoln will result in class load? in Quaries. 'ri-.-v or Roosevelt Schools which, ir, the op;r: the Board of Education, is educatic:':";".' desirable. To assign to Lincoln School ali children of Ki trarttn age residing; in the present Lincoln S district. To t r a n s f e r the central administrative of:oc? Board of Education to the Lincoln School. To instruct the Superintendent to proceed im ately witb-al! necessary arrangements, - o t i r e procedures consistent with the iaws of ;he S: Xew Jersey to esecute these directives.

PROVIDED THAT ; The plan meets the requirements of th? ;aw ?.:; the Board's A t t o r n e y gives a?suran;e of iiTinnin Board members and the Superintendent fro IT. taxpayers' suits regarding ihe e x p e n d i t u r e of moneys to implement any aspect of these r:.z::s. A N T PROVIDE:! T E A T : The Commissioner approves the plan." It is significant that expressly 1. The plan is f o r m u l a t e d to deal wnh racial site in order to comply with Commissioner Ks'.iH directive.

2. The plan effects pupils from the entire city of Englewood because of the city-wide sixth grade. 3. The Plan provides for assignment of all students from Lincoln School grades one through five to Cleveland, Quarles and Roosevelt Schools. 4- The Plan permits children whose parents wish them to remain at Lincoln School to remain there. 5. The city-wide sixth grade goes into effect on the election of students from one area (Lincoln School) effecting the students from all five areas, yet the students from all districts other than Lincoln School district have no election or choice. 6. Kindergarten children residing in Lincoln School area will attend Lincoln School. 7. The plan is conditioned on the proviso that it meets the requirements of the law. Pursuant to the plan, letters were sent only to parents of students of the predominantly negro Lincoln School, giving them the choice of remaining at or leaving Lincoln Schoolgiving them the choice of whether or not the plan goes into effect, excluding any election by the similarly situated residents of all other districts. Appended to the July 29th Plan was a statement of the minimum estimated cost and expenditure required to implement the plan, which said estimate amounted to $123,000.00. On August 1, 1963, tbe Board of Education of Englewood, Xew Jersey, adopted a resolution that the amount of $66,500.00 would be required to partially implement the said plan, and further resolved that the above resolution be delivered to each^neniber of the Board of School Estimate of the City of Englewood, X'ew Jersey. The Volpe petitioners appealed the decision of the Commissioner Raubinger to the State Board of Education, which Board subsequently affirmed Commissioner Raubinger's decision. Prior to that appeal being heard suit was started in the Superior Court, Chancery Division entitled Volpe v. Perry which was heard on August S, 1963 by Judge

Donald G-. Collester. In that case plaintiff (Volpe; sough: to enjoin the Board of School Estimate and the City of Englewood from expending funds to implement the above plan. Said application was denied for the reason tLat plaintiffs had not exhausted their administrative remedies. On August H. 1963, the plaintiffs he-rein argued in tbe Superior Court Law Division, Bergen County, before Judge Gordon H. Brown, temporarily assigned, wherein plainrirT taxpayers sought to enjoin tin- Board of School Estimateand the City of Englewood from appropriating and or expending public funds to implement the July 29th Plan and that such proposed appropriation and expenditure be adjudged illegal, unlawful and unconstitutional. At that hearing the Attorney General was permitted to intervene on behalf of the Commissioner of Education, and the Board of Education was also permitted to intervene a~ parties defendant. As a result of the hearing the plaintiff;' action was dismissed without a trial on the merit? and Therelief sought was denied. Said Decision is attached hc-reio as Appendix C. That dismissal has been appealed to theSuperior Court of Xew Jersey, Appellate Division, and is still pending there, and has been marked "Hold" pending determination in the Federal Couris. Said order is anae-bee: hereto as Appendix D. The plaintiffs were not in any way effected prior TO :;:-; drafting of the July 2Ptb Plan for. prior to 'bat 'irne. the rewas no requirement for tbe- expenditure of rubiio fiir.eis. Therefore, prior TO the Commissioner rendering bis tloo:sion ana the subsequent adoption of the plan, the plaintiffs as taxpayers were not adversely effected. The thrust of the instant complaint is acaii:s; tbe apyTOpriation and expenditure of money ty tbe City of EncJewood and the Board of Se-boui E s t i m a t e which were dismissed as defendants or: motion in tbe bearings b e f o r e Commissioner Raubmc^' by tbe Commissioner for lack of Jurisdiction. Tbus neither the- 'j-lamtiffs nor the- cric-ina: defendants (.the City of Englewood and tbe Board of School Estimate) were parlies to tbe bearings held by Commissioner Raubinger.

REASONS FOR DENYING THE WRIT 1. The case below raises a substantial issue of the violation of Federal Constitutional Rights. Commissioner Raubinger f o u n d that there was no i n t e n tional segregation by race by the Englewood Board of Education. He did find that Lincoln School was 96.0 pereom negro. He also found that "this concentration of pupils of one race results from patterns of housing and the operation of other socio-economic forces. . . ' ' The Commissioner also conceded that such "housing and non-school problems are not the responsibility of the Board, nor does it have any control over these housing and non-school problems." The Commissioner also found that the Englewood school a^sienment was based on neighborhood schools, the boundaries governing which were previously approved by him. Nevertheless, he directed the Englewood Board of Education '"'To formulate a plan or plans to reduce the extreme concentration of pupils of the negro race in the Lincoln School." The basis of the present complaint originated when complaints were made before Commissioner Raubinger dealing with the Englewood School System. These complaints were made by parents of negro school children who desired their children to be admitted to schools outside of their area. The complaints could only be classified as school segregation complaints. The present action pending before the United States District Court will be determined only after a consideration of the line of cases which have been decided since Brown v. Board of Education. 347 U. S. 483. 7-5- S. Or. 6S6, 98 L. Ed. 873. The Brown case and cases following it d^llt wit}) negroes seeking admission to public schools on a non-segregated basis. It was charged that negroes who had been denied entrance to schools solely on the basis of race had been denied equal protection under the Fourteenth Amendment to the Federal Constitution. The Brown decision did decide that exclusion from school solelv on the basis

of race violates the equal proM-cnoi d teenth A m e n d m e n t . The cour: slse held Broun decision that where a =t?.:o ba> vide an opportunity for an f d ^ c i t i o ^ :n such an opportunitv i? a nsrht -*:::.;:; n:u? to all on equal terms. Th- complaints : action charge that children !.:;: :.-.:. -: neighborhood sixth grades so!e;y :<r; :_-.that this exclusion v i o i a u s the ; ".::.'. i the Four tee-nth Amendment of :L-- I':;* :ution The case of Bt'ii v. . > , - A . - >,' C'-.'j :' G :'. [N. D. Indiana. 1^33-Jan. -'?. IP-r-o-T.". with a s i t u a t i o n eo:::; le:eiy -...arailed : Commissioner R a u b i n g e r v^as called u v o Bell case there was no inteijiioca! segr->g; in the 5r'/ case as well as in :be insian School Board had followed the ge^-.-rs.; the students to attend tbe school desi^: district in which they lived resraroies? c: in the Bil'l ease was no: one of ~ecre._-: : .:e.; one of segregated bousing. The Cour decide in tbe B>'ii ease ths: i: found : p l a i n t i f f s ' position that tbe de:'e:".:i;:-r.;. v-of Education, had tbe arcrmative dr.iy ; in various sebools u n d e r its j u r i s d i ^ : l e : residence of students involved. The that there eouid still be all colored soboo] li\"in<: in a properly c o n s t i t u t e d soi;e>o; ^: and t b a t no consti;;:;ionai rich;? wor students were eon:pelied to ?.t:ei-d t::e s-. in which tbey liveIn the ease of Evans v. Bit,-t>jj. 20 Court stated: "TThen i n t e r p r e t i n g ;be e q n a i p tbe Brown case, "be Supren:-: Co-j State raav not der,v anv r-ersen o^

10

i;
of the Federal Constitution has been violated by preferential treatment to one group en :he t a s i s : and excluding the plaintiff? from their norrris.: s:h:the basis of race. In the- instant case, the studer.:: the Lincoln School were i:iven thoir choice- un.hir th 29tb Plan of attending Queries. Roosevelt or Clf School. Why is it t h a t the students fron: Quaries. Cle or Roosevelt School do no; \:>:-i their choice- 1 Is " h i s denial of equality ot' choice and therefore a denia: :-: protection* The student- fron: Lincoln Sjiioc-! are granted certain advantages iha; other sfueic-nts si: situated do not have. The basis of this distinction ~.--= Where children were once treated alike by eoinc tc in their neighborhood, the pror-osal is now to tre^' differently; and why' Purely because of color. Th is inescapable. But this inescapable fsci is sd* affecting other children. Children throughout tne ', Englewood who normally attended the sixth g r a d e school nearest their residence must now -rave: ?. : distance to the Engle Street School. They n:us: n o school in the heart of the business district causinc ; risk and danger to t h e i r person. Because of this "re: being siven for color. be:ause of tin? exclusion normally attended sixth grades, added ex]"-:n.:::-.: public funds will be imvosed upon the t a x r a y e r minimum cost of .*!2?.000.00 merely to imrienie change. In Ei'.ir.f v. Bw-.'/i.7j;.^:. ^^r-r-.:. 207 F. Sr.ru. 520 '. 1962) ) U. S. Pisuiet Court where ibe c-ouvi was con: \\-ith a situation involving an all n e g r o school ir. a residential ai'ea \v:;r. a vl'.i'.riro :i:ai t;n? vioiatv, 1 : :n-. protection clause of the For,! ;co?::h Ainc-ndinen: cf :i era! Constitution, it was argued tn.-.i :l:e S;a:c is co:: integrated education. The cour: held t h a t the s:a; not required to prov-clo an in:ecra:ed e d u c a t i o n , forth the Fourteenth An:e;;d:nen: a: race 523 as :",

It was the determination in the case of Evans v. Buchanan that discrimination is forbidden but integration is not compelledSo too in the case of Briggs v. Elliott, D. C. C. D. S. C. 132 F. Supp. 776 in construing the 1954 Brown decision at page 777 the Court held that it has not been decided that the States must mis persons of different races in the schools or must deprive them of the right of choosing the schools they attend. What it has decided and all that it has decided is that a State may not deny to any person on account of race the right to attend any school that it maintains. The Fourteenth Amendment is a limitation upon the exercise of power by the State or State agencies, not a limitation upon the freedom of individuals. In the case of Holland v. Board of Public Instructions (Fla.) 258 F. 2d 730 (5th Cir. 1958) U. S. Ct. of Appeals, the Court held that the infant plaintiff was entitled to be treated simply as another school child, without regard to his race or color, and the fact that he was a negro did not vest him with a right to attend a school located in a district in which he did not reside when that geographical rule was being applied to all children alike. Neither segregation nor discrimination are shown merely because there are more negro students in one section than another. Sealy v. Department of Public Instruction. ~25'2 F. 2d 898 (3rd Cir. 1958) Cert. Den. 365 U. . 975 (195S). In the instant case. Commissioner Raubinger has held that the mere fact that these students in Lincoln School are negro has vested them with the right to attend schools outside the Lincoln School district, even though the neighborhood school geographical rule has been applied to all children alike. In short, merely because of their color, the colored students of Lincoln School have been given preferential treatment, causing a change in the approved Englewood School attendance system. Because of this preferential treatment, other students are excluded from attending the sixth grade they would normally attend, purely because of race. Thus the Fourteenth Amendment

"nor (shall any State) deny any person within its jurisdiction the equal protection of the laws." This clause does not contemplate compelling action, rather it :-; a prohibition prevontinp: states from applying their i,;w- uneijiiailr. The court went on in state at page 824: "In effect counsel is asking the states to intentionally gerrymander districts which may be rational when vk-wcd by acceptable n on discriminatory c r i t e r i a . . . . " In the instant case the equal protection clause has been violated as to all Englewood children from the four districts other than Lincoln School, because the former are completely disregarded. The permissive transfer policy cannot be granted to only one out of five districts. The negro child from the Liberty School District should not be deprived of the privilege granted to the negro child of the Lincoln School District. If concentration of any one group is "segregation" (and hence a violation), then the Jewish, Italian, Polish, Irish or Chinese, etc., child should be given equal privilege to transfer. As a result of Commissioner Raubinger's decision and approval, we now have two standards of school attendance in Englewood, in effect one for negro students and one for white students. One for negro students; i.e., since the Lincoln School district is predominantly negro, they have the privilege of choosing any one of three schools, which is a form of open enrollment; one for white students who reside in those other three .school districts who must attend the school in their neighborhood. He has *t up two different education standards because of color and race, which is precisely what Brown v. Board of Education prohibited. The case of Bahibcn v. Rubin, reported in the New York Law Journal on September 11, 1963, decided by Mr. Justice Baker sitting in the Supreme Court, Kings County, Special Term, part 1, is quite similar to the facts in the instant case. In the Balaban case a new Junior High School X~o. 275 was constructed in Brooklyn, N. Y. There had been

in existence Junior High School Xo. 2^5. Th~ !>?! :".'": r ; were parents of children who would have L-on-; ;t ibrir neighborhood Junior High School Xo. '2^-3 t-x?~p f o r ib-.zoning scheme which now placed thorn un-Jc-r Xo. 2~o. D u r ing the construction of the now school. Xo 275. or.f Bi:-.:nick was given the responsibility of drawing' a zr.r.r for School Xo. 275. His proposed zone wa? rfoo-iir/.c-nor'i by the School Board but l a t e r rejected by the A??i-:an- S u perintendent of Schools for two reason?: 1. It was not centrally located. 2. It failed to consider the undesirable "d~ facto ;?rogation" of negro and Puerto Ric'.n childr^:: t h a : would obtain, which would be 52 por e-:iit r.eero. 34 per cent Puerto Rican and 14 per et-nt whit-?, whereas under the school plan nr.ai'iv approved ti>:percentages would be 35.'2 per cent necro. ?3.6 p-?r cent Puerto Rican and 31.2 per cent white. The court in that opinion stated;

" Xo person shall be refused admission ir : :o excluded from any public school in tbo Stiiio o York on account of race, creed, color, or r origin.'' The court held : "The inclusion of p e t i t i o n e r ? ' children in :::o

u u

16

from other schools to which they might have been assigned upon a lawful basis was violative of the spirit and intent of the statute." The opinion proceeds at a further point: "Respondents urge that the history of Education Law, Sec. 3201 demonstrates that it is an anti-discrimination statute intended to prohibit the segregation of minority groups in the public schools. Whatever may have been the factors which impelled its enactment, the statute by its very terms proscribes exclusion from public schools of any child by reason of race, creed, color or national origin." As in the Balaban case Englewood had an approved system of assigning sixth grade students to their local neighborhood schools. As in the Balaban case these sixth grade students are being excluded from those sixth grades by reason of racial factors, that is, undoubtedly racial balance was the compelling reason for rejection of the neighborhood sixth grade system ; unquestionably racial composition or balance was material to the determination of the Euglewood Board and of Commissioner Raubinger's decision. In fact this is expressed by the very language of the JuJy 29th Plan, and Commissioner Raubinger's decision; i.e., 1. "To foAiulate a plan or plans to reduce the extreme concentration of pupils of the negro race in the Lincoln School.. .. " and for that reason the Plan proceeds to exclude these pupils from their normally attended neighborhood sixth grades. Therefore, the inclusion of these children in the city-wide sixth grade upon the basis of race and their consequent exclusion from their traditional neighborhood school and schools to which they might have been assigned on a lawful basis was in violation of the spirit and intent

of the equal protection clause of the r. ouri-eLt:: An: ment as interpreted by the Brown decision and ;ubs~q decisions which proscribe exclusion iron: public sch ::! any child or children by reason of race, creri. colenational origin. 2. The Federal District Cour: Has Jurisdic;i:i: Hear This Matter. The Federal District Courts hare jurisdiction o~er civil action authorized by law to be commenced by a pe to redress the deprivation, under color of ?.ny Siat^ statute, ordinance, regulation. custom or usace. of a~" r privilege or immunity secured by the Constitution o: United States or by any Act of Congress providing for e rights of citizens or of all persons within :b-? j u r i s t , of the United States. 2S IT. S. C. 1343i3). To srTord protection of constitutional rights, privileges or inimtin: a Federal Court may in a proper case gran: in;native- 7Hagiie v. Committee for Industrial Qroamzniion. 307 I 496. 83 L. Ed. 1423, 59 Sup. Ct. 9M. modifying: 101 F. 2d County School Board c'' C'l'if si ir field Couti:u ^ FriV 171 F" 2d 702. aff'g. ?2 F. Supp. It". On?v - 'j'ulih City. 120 F. '2d SGI. Mycrfoit v. furtive:. 74 F. Supp. Lopes v. Scccowb. 71 F. Supp. 769. A federal suit is nor barred merely because & hclch'r the case mieht be res adjudicaT:i on the- san:e p=. litigating the ?sme is?uo in a S:?.-;- C o u r t siui :be moot the State proceeding. Cc-intii/ o: j.,'ry/:-">;> T. F llashuda Co., 360 U. S. 1?5, o L. EC. 2^ Ilo3. "P S. Ct. : TThere the action which is r.rst. brought is in p^rso and seek? only personal judc".i--"'r;t. a n o t h e r action :o: same cause in another jurisdiction or Fed or.!' D i s t r i c t C is not precluded and will not be dis;i:is?ed. G'-ccr v. ~* States. 90 F. Supp. S71. Pendency of State Cour: Action in pcrso:i;iiv. docs preclude jurisdiction ajid. is not a g r o u n d for aba: or s t a y of like action in "he Feuerf.i Ccur., '--ven ;

the same issues are being tried and the federal action is subsequent to the action in the State Court. Ermentrout v, Commonwealth Oil Co., 220 F. 2d 527. The recent case of McNeese v. Board of Education, 83 Sup. Ct. 1433 (1963) involved a situation wherein negro children were seeking registration in racially integrated schools. The respondents interposed the defense that petitioners had not exhausted their remedies. The Court on page 1435 stated: "It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy and the latter need not be first sought and refused before the federal one is invoked." On page 1437 of the McNeese case the Court stated: "Petitioners assert that respondents have been and are depriving them of rights protected by the Fourteenth Amendment." The Court went on to say that human rights under the Federal Constitution are always a proper subject for adjudication and that "We have not the right to decline to exercise that jurisdiction simply because the rights asserted may be adjudicated in some other forum." The abstention doctrine does not apply to schoo] segregation cases. Moire's Federal Practice, Volume 1A, 2d Ed. Section 0203 at page 2111, citing Romero v. Weakley. 226 F. 2d 399. where the Circuit Court held that the District Court dismissal of school segregation suit was error, stating that t h e : "Federal District Court is as well equipped to consider the evidence on this question as is the Superior Court of the county."

See also Dyer v. Kazukisa. 13$ Fed. Supp. 22v mvolvinz equal protection and civil rights act and b-rlcir.;:. t h a t ?i::b cases belong in the Federal C o u r t . The case of Broicder v. Gaule. 142 F. $U".. 707. a 5 ' z 352 U. S. 903, 77 S. Ct. 145, 1 L. Ed. 2d 114 expressly rej*c:=c the doctrine of abstention where civil rieh:? ar-;- ir^olvrc The Court at page 713 stared: "The short answer i? that doctrine has i^:- 2ppii;-s.!ioi: where the plaintiffs complain they sre brini: d e D r ^ e c of constitutional civil rights for the proteciioD :f "Lich the federal court? have a responsibility sf L~S.~ a; that which rest? on the stafe courts." In the instaut case the plaintiff? and intervening nlaint;::; complain that tbey have been and are being deprivrc :f constitutional civil right? and of tbe equal p-C'tectios of the laws. This case is a school segregation c-a?e. It ?:ar'ed out as such and has continued as such. It c-anro; cba^ee :t = complexion merely on the allegation? snd cor:t---^:io~s of certain parties. This must be a two-way ;::eet. If :bis is a school segregation case for tbe "'Brents, of tiie cbiidrer. attending Lincoln School, then it must be a school seirrfirition case for the plaintiff? in this p a r t i c u l a r scti;r_ ar.c therefore fhe doctrine of abstc-ntior, is inapplicable. M o t i o n for leave to file Writ of Prohibition should V e dvi-ied ^~'L-;-T-:the lower court has jurisdiction. 3. It Ha? Xoi Been D e m o n s t r a t e d Thjii Tbe Pistrict Court Lack? Jurisdiction Xor Tba: Tbe Av.v-iicin: Has Xo Oiher Romedv. The right of tbe Supreme Court to g r a n t ?uc-b :ir. e x t r a ordinary Writ of Prohibition i? nor doubted sr.-d ?ucb ~r::? have been g r a n t e d in p r o p e r cs?e?. \ P.irr. \',;c Y.--r~- 3' Puerto Pico S i i i i i f i \ i i - ' Co.. loo I". S. 52?. l t " S. Ct. >o, 3H L- Ed. 246. 24P. However, the :??us:^e by :be Suprenje Court of any writ a u t h o r i z e d by 2? V. S. C. !':? - aV i::;b,:dinff prohibition. 15 noi t= iiiSiter of r:cht but of sour.d discretion sparingly exercised- Puic ?C' or P: :-;-<i P<<-:? c-r Supreme Court, effective July 1. 154.

H H

If the jurisdiction of the lower court is doubtful (In Re Muir, 254 U. S. 522, 41 S. Ct. 185, 65 L. Ed. 383}, or if the complaining party has an adequate remedy by appeal or otherwise (In fie Tiffany, 252 U. S. 32, 37, 40 s". Ct. 239, 64 L. Ed. 443, 445; Ex Parte Herding, 219 U. S. 363, 31 S. Ct. 324, 55 L. Ed, 252, 37 L. R. A. (N. S.) 392), the writ will ordinarily be denied. Such a remedy should be resorted to only where appeal is clearly inadequate, and it is reserved for really extraordinary can-set;. The Supreme Court is normally unwilling to utilize such a remedy as a substitute for appeals. Ex Parte Fahey, 67 S. Ct. 1558. 332 U. S- 258, 91 L. Ed. 2041, This writ is not to be used as a method of appealing from interlocutory orders. A brains v, McGohey. C. A. X. Y., 195S 260 F. 2<1 892. The applicant for this Writ of Prohibition sets forth in his brief at page 6, paragraph 9, that his motion to dismiss was denied by Judge Augelli and that his motion for leave to appea] was also denied. This application is nothing more than a substitute for an appeal from an interlocutory order and should be dejiied forthwith. Further, in seeking a Writ of Prohibition the lack of authority of the body against which the writ is sought must be clearly shown. I'. S. Ex Rel Denholm & McKay Co, v. r. S. Board of Tax Appeals, 1942, 125 P. 2d 557, 75 U. S. App. D. C. 195. Whore that jurisdiction is in doubt or dependent on evidence the writ is normally denied. In Re Chicago R. I. P. R!/. Co., Ohio 1921, 41 S. Ct. 288, 255 U. S. 273, 65 L. Ed. 631. There is no basis for the writ where the lower court istecting within its power or jurisdiction. Vol. 3 N'icbols Cyclopedia of Federal Procedure Forms p. 102 section ioi.02Where the District Court has general jurisdiction over the subject matter and over the parties, it should be allowed to proceed to decision, and if error is committed, it may be corrected on appeal. A</w I ork d: Puerto Rico Steamship Co., 155 U. S. 523, 531, 39 L. Ed. 246, 249, 15 Sup. Ct. Rep. 183; 7n #e Afwir, 254 U. S. 522, 65 L. Ed. 383, 41 Sup. Ct. 185.

It is significant to note- Lbat the oriels! :are not petitioning. On the o:her hand. one who moved to intervene ard voiuii: himself to the jurisdiction of the Federa: The first point of this response brief ha* to enter the merits of the case b;j: TO de; Federal District Court do-?? have- jcrisdicii: The applicant for the writ concedes OD t^; that the abstention doctrine has been ruled school segregation cases, ckme R:-)r,-;r' v and 1A Mcores Federal Practice, uac-precisely the subject of this c-a~e. Further Rule 31 (3) of Revised Pn;-:~ <:; effective July 1. 1954. provides that if ihe Writ of Prohibition it shall set fonh w: why the relief sought is not available in ; This is not done in the petitioner's brie: writ will not be granted i: there i< so:r available. Vol. 3 Nichols Cvcic-i'ifdi-j :' F-: Forms, page 103. section 101.04. This remedy should be re-sorted to onir ; causes and where appeal is a eiearh' ina<; The Court is unwilling to ntiiize this r-;-:r.ed; for appeals. As e x t r a o r d i n a r y ren:ed:es tr for really extraordinary causes. .- P.irf-: 258. 91 L. Ed. 2041 UP47; : "- Pc.rtf H inSS L. Ed, 572 \V The petitioner in ihi~ insianc-e does no: c no right to appeal. If he is i;nsiio-;essfn! a be has reserved his right to apr^]. and :;;-;: the normal procedure in a ca?e whit-r. ;s -;." In the case of L<.:tr,er v. j?;--r r --. l*^ F involving a pe:i;:o:: for a Wvi: of Prr.h:'rdenied by the I". S. Cour; of Ar.nea's, ihe "Prohibition is sought againsr a c^ person as?nn:iu: to c-seririse jiuiiois! o power, commanding tho court or porso dicial or auasi yudioisl -oou-or :o oease

SIDNEY D I N C I N
C O U N S E L L O R AT LAW

2358MflY28'65
C E N T U A L I3ui 10 W P A L L A D I f

tUy 21, 1965

Ida O. Creekoff, Clark Office of tb Clerk United State* Court of For The Third Circuit 204* U. S. Courthouae tennaylvania 1 1 7 90

RSl

m . , ST Mi V. VOLX BT AL U 0 Docket Not. 15043-15044

lira. Creekofft Enclosed herewith plea** find an original and four (4)

copies of Supplemental Brief in the above-cap tionad natter.

A> you know/ thi matter La on for argument for Wednesday, Juna 3, 1 6 . 99

SIDUKY DIHC Attorney for the Board of Education of the City of Bnglewood, Hew Jercey CC< Jaiaec T. Murphy, Esq. James A. Major, Baq. Arthur J. Sills, Baq. John J. Brelin, Jr., Kaq. Morton Stavia, Kaq. Robert L. Csurter, Esq. '^^ Barbara A. Morris, Esq. >-/' Herbert Tate, Esq.

Bnclouurea 5

S I D N E Y D I N c IN
C O U N S E L L O R AT LAW GEN-THAI. Huii-niN
10 W P A L I B A D I A V E W I U E N O L K W O O D , N. J.

lUy 37. 1965

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vWX
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Attorney for th Bord at Cduation of Ch City e>f I

Sac.

J A M E S T. M U R P H Y
COUNSELLOR AT LAW

TELEPHONE LO 8 666B

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U CMrtor, te}. Morri** e*j.

STAVK. RICHARDSON, KOENICSJERC. 8 ROSSMOORE

COUNSELORS AT LAW VOS1ON jrAVIi > -viHL L. IUCHARDJON J-iiiHL M. KOENICSBERC NEWARK. N. J 07102

Kay 28, Mrs. Ida 0. Creskoff Clerk, United States Court of Appeals for the Third Circuit 2046 U.S. Court House Philadelphia, Penn. 19107 Re: Dear Mrs. Creskoff: Unfortunately, I have- an appointment in Washington, 0. C. on the morning of Jur.i 2 -./hie.-, I a;.-, unable to cancel. Under the circumstances, I shall not bo able to participate in the rearsunent before th<-- Court. Since I have already ar^uid the matter before th2 Court, I i.'ill waive any right to further oral .r;uir.c-r.i and v/ill aucpt tnc orgal argument cf Nr. Cartor. Please extend ay regrets to the Court, for my Inability to participate in the argument. Fuller et al. v. Voile et al. Nos. 15013 - 1501U

MS:mbt cc: All counsel

nf Nem Jersey
DEPARTMENT OF LAW AND PUBLIC SAFETY T R E N T O N 080(iB

May 28, 1965

Ida 0. Creskoff, Clerk United States Court of Appeals For the Third Circuit Office of the Clerk 2046 U. S. Courthouse Philadelphia, Pennsylvania 19107 Re: Dear Mrs. Creskoff: Enclosed please find an original and four copies of a Supplemental Brief in the above mentioned matter containing the arguments of intervening defendant Raubinger with respect to questions propounded by the Court in your letter of April 2, 1965. Please forgive the delay in the submission of these briefs but a number of other very urgent matters made it unavoidable. In the event a future opportunity does noc arise, I wish now to offer you my sincere and heartfelt thanks for your willing and courteous cooperation throughout the course of this matter. Sincerely yours, Fuller, et al. v. Volk, et"*al. Docket Nos. 15043. 15044

HHK:tl encl. cc: All counsel involved certified mail ret. rec. requested

Howard H. Kestin'v_ Deputy Attorney General

LAW O F F I C E

25279 JUN-9'65

MAJOR & MAJ O R

241 MAIN STREET HACKENSACK.N. J.
DIAMOND z-oaeo
J A M E S A. MAJOR JAMES A. MAJOR

June 8th, 1965

Ida 0. Creskoff, Clerk United States Court of Appeala For the third Circuit 2046 Chitod Statea Courthouse fruiaylvanlA
Rl FOLUSR, BT AL v. VOLX. t al Dooicat Mo.

Dear Mrs. Craalcom Enoload hrawith are original and throe copies ef Affidavit to b filed in the above natter. Very truly youra.

jAm/uk-enoa . , Beq. 0,0. to Jane* T. Jr., John J. Sidney Dlaoln, . Robert L. Catter, Baq. Barbara A. Morri*, B0q, Herbert Tate, Beq. Arthur J. SU1, Kwj. Jtorton St*vi, XBQ.

ma Docket No. 15043-15044

GERTRUDE P. PULLER, RICHARD L, ORUBNAN, THOMAS F. CACCXOLA and JOSEPHINE CACCIOLA, his wife, and others to be named, Plaintiff*-Appellants,

and
JERRY VOLPE, et al, Intervening Plaintiffa-AppellantB, ON APPEAL PROM UNITED STATES DISTRICT COURT APPIDAYIT
and

vs.

AUSTIN A YOLK, et al, Defendants-Appellees,

FREDERICK M. RAUBINOER, Commissioner ) of Education of the State of New Jersey and ) KENNETH ANCRUM, et al and ) DEBORAH SPRUILL, et al

Intervening Defendant-Appellee.
STATE 09 NEW JERSEY

S3.}
DISTRICT 07 NEW JERSEY

BEATRICE PUOACH, of full age, being duly sworn on her oath according to law, deposes and sayat 1. I am one of the intervening plaintiffs in the above entitled action. I and ay husband reside at 227 Fountain Road, Englewood, New Jersey. We are the parents of a 9 year old daughter, Laurie. Laurie will be 10 years ol in September of 1965. She has completed the fifth grade In a private school and is eligible to attend the sixth grade In the public school system of the City of Englewood starting In September, 1965. 2. In addition to our daughter, the plaintiffs Pollard have a son Lloyd who will enter the fifth grade In the Englewood public schools in September. The plaintiffs Lasaer have a daughter Robin, who was 9 in March of 1965 and she will enter the fourth grade In a private school.

the plaintiffa Bobbins have a daughter Andrea, who will enter the fifth grade of the Englewood public school system in September of 1965. Sworn to and subscribed before me this 8th day of June, 1 6 . 9$
/s/JfarianJi Kobliha MARIAN A. KQ&

/a/ Beatrice Pugaeh

TRIGS

Notary Public of New Jeraey.

APPELLATE DIVISION SUto How* Aum Tnatam, N. J.

, r -J

June 8, 1965

Sidney Dine in, Esquire 16 W . Palisade Avenue Englewood, New Jersey Re: Puller, et al Vs : Volk, et al Docket #A-ioQl-62 Dear Mr. Dincin: In answer to your letter dated June 3, 1965. please be advised that no order dismissing the injunction pending final deternination, after the opinion in the above-entitled matter was filed, has ever been entered.

enjieth S. T3arsby Clerk of the Appel/ate Division KSBtrs cc : James T. Murphy, Esq.

LAW or flee M AJ OR & M AJ O R

241 MAIN S T R E E T HACKENSACK, N. J.

DIAMOND t-oeo
J A M E S A. MAJOR JAMES A. MAJOR It

JUne 3th, 196$

Ida 0. Creskoff, Clerk United States Court of Appeals Tor the third Circuit 2046 Baited States Courthouse Philadelphia, Pennsylvania Rei KKUBt* 19 AX, v. VOUC. et al Sooket Mo. 150*3-15044 Dear Mrs, Creekofft gnoloeed herewith are original and three copies of Affidavit to be filed ia the above natter.

0,0, to James T, Murphy, Bsq,

John J. BresliA* Jr., laq, .Sidney Wnain. Esq. ^Robert L, Catter. 1*4. Barbara A, Morris, Herbert tate. Bsn. Arthur J. SiU*. .. Nerton Stavis,

SBXTKODE t. TT3UUOL, OXC8ARD JL. GROBJUUT, THOJUJ P. CACdOtA and tSXPEtXJK CACCIOXA, hi wife, and other* to b naned

UMZTCO STATSS COURT or A?ALS rC THB tHIRO CIRCOIT fitee. 15043*15044 . )

>

and
, ET

) ka

fOH. OUITED STATES UIST^ICT

AOSTia A. VOI4C, T At, D f n datu t- ppl Ies ,

and

M. RAU9ISGC4 CoMBiionor of Atocation of the state of N*v Jersey and

rn AHCHUK, JfcT Ai,
Ml

s?aytix, ET AZ.

Si'ATK OF HSW JEKSET

SSi
DISTRICT CUT W JEMSfcY )

LjaHOY VC CtOUD, of full a^*, baing duly on him oath accordog to law aeposa* aiid eayai 1. Z *a tb principal of th Cautrel Sixth Ora4 nL* Street School. 2. The following parenta, who are th

ppllaBt in the above-captioned sattr do not bare any children io the Central Sixth Grade Kngle Street School SuriR9 the current 1964-1965 aohool year, to wit:

nounr VOL/* JUB> XAMUOUHK VOI^E. HIS WIFE

JUJW18 POOACtt MZ> BATJUCB FfiWiAC*, HI* W1FJ-. AUA* LA&9&* iOO JHOXIM UkSSJU HIS KITS 8QI> SMflQUbB A8O JUtiilAil aAHDtAR. BIS WITS

orrauro O-AUKSXO AIBO MUULE c'ju^asio, uia KZJTE r. cutMsns JUB> MAAJOJIIB CLUHZHTS. tns BflSBrgs ASO QLOUA oeigs HW tore
UOTO VOUAX9 AMD UU*CHK OI4jARD, HIS

or
K.._;-.-NTH GOULD V ^HY riltLlC CF i*>'FiV 'EF

COR THC THIRD CIRCUIT IDA O. CRESKOFF CURB 2046 U. 8. COURTHOUSE

PHILADELPHIA 19107

June 24, 1 6 9 5

Sidney Oincin, Esq. 16 W. Palisade Avenue Englewood, New Jersey

27802 J(JN25'65

Puller etal. vs. Volpe, etal. vs. Volk, etc., et al. Nos. 15043 and 15044 Dear Mr.-Dinein: In your letter of June 9 enclosing a pbotostatic copy of a letter from Kenneth Barsby, Clerk of the Appellate Division of the Superior Court of New Jersey, you point out that Mr. Barsby apparently .used the word "injunction" when he meant to refer to a motion for an order enjoining the School Board of Estimates of the City of Englewood, New Jersey and the City of Englewood, New Jersey, from appropriating, expending, or agreeing to expend, any public funds to implement the July 29 Plan of the Board of Education set forth in the affidavits pending final determination. The Court desires me to inform you that the apparent error in Mr. Barsby's letter should be corrected promptly and suggests that you communicate with him again. The affidavit of Mrs. Pugach simply states that Miss Laurie Pugach is "eligible" to attend the sixth grade in the public school system in the City of Englewood in September 1965. There is no statement to the effect that Miss Pugach intends to do so. There is also a statement by Mrs. Pugach that her son Lloyd will enter the fifth grade in the public schools of Englewood in September, without any year being stated and that the plaintiffs Lasser have a daughter, Robin, who will enter the fourth grade in a private school and that the Pugachs have a daughter Andrea who will enter the fifth grade in the public school system in Englewood in September. The Court desires me to inform you that this affidavi . is obviously inadequate. Does Miss Laurie Pugach intend to attend the *ixth grade in the Englewood Public Schools in September 1 * and does Lloyd intend to enter the 9 5 fifth grade of the Englewood Public Schools in September 1965? Miss Robin Lasser's school attendance seems irrelevant.

LAW OFFICE MAJOR & MAJOR

241 M A I N S T R E E T HACKENSACK, N. J.
DIAMOND 2 - 0000

JAMES A. MAJOR JAMES A. MAJOR 3

June 28th, 1965

Ida C. Creskoff, Clerk United States Court of Appeals For the Third Circuit 2046 United States Courthouse Philadelphia, Pennsylvania Rei PULLER, ET AL v. VOLK. et al Docket No. 15043-15044 Dear Mrs. Creskoffj Enclosed herewith are original and three copies of Affidavit to be filed ifl the above matter. eyy truly yours,

jam/ink-encs. c.o. to James T. Murphy, Esq. John J. Breslin, Jr., ESQ. Sidney Dinein, Esq. Robert L. Carter, Esq. Barbara A. Morris, Esq. Herbert fate, Esq. Arthur J. Sills, Esq. Morton Stavis, Esq.

OHCRTROD* P. FULLER, RICHARD L. OROBUXM, THOMAS F. OAOOXOLA and JOSEPHINE CACCIOLA, his wife, and others to be owned, Plaintiffs-Appellants, and JERRY VOLPS, et al( Intervening Plaintiffs-Appellants, vs.
AUSTIN A. VQLX, et al,

and

Defendants-Appellees,

,>1T APPEAL FROM UNITED STATES DISTRICT COURT

FREDERICK N. RApBINQER, Commissioner of Education of the State of New Jersey and ) KENNETH ANCRUN, et al and )
DEBORAH SPRUILL, et al

Intervening Defendant-Appellee.
STATE OP NSW JERSEY ) t

DISTRICT OP NEW JERSEY ) BEATRICE FDOACH, of full age, being duly sworn on her oath according to law, deposes and sayat 1. I make this additional affidavit pursuant to a letter from the United States Court of Appeals addressed to our counsel on June 24th, 1965 asking for a clarification of the status of our daughter Laurie. Our daughter Laurie formerly attended the public school in the City of Englawood, attending the Roosevelt School which is located a block and one-half from our home. When the present sixth grade was established in September of 1963, we to' k Laurie out of the public school system and put her in private school. She has remained there since. She is eligible to attend the sixth grade in the City of Englewood commencing in the school year September of 1965. If the Board of Education is ordered to discontinue the central sixth grade,

testing in this proceeding, Laurie will be sent to the Roosevelt School to attend the sixth grade. If on the other hand the Board of Education io permitted to continue the so-called central sixth grade which requires attendance by our daughter Laurie at tbe Xngle Street School, we will not send her there but will continue her education in a private school, 2. My attention has also been directed to ft part of the letter from the court in which they refer to my son "Lloyd", due to enter the fifth grade of the public schools in September, There is an error in the letter of the court as my affidavit refers to Lloyd "Pollard". Lloyd Pollard will enter the fifth grade of the public schools of Englewood in September of 1965% 3. The letter from the court refers to an Andrea "Pugaoh". Hy previous affidavit is correct when it refers to this child as Andrea Bobbins . ' ' Sworn to and subscribed before me this 28th day of June, 1965. 'a/ Marian A. Kbbliha Notary Public of New Jersey // Beatrice 1 lee

;CE PI

ich

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Bou AMVBB , N.J.

July 6, 1965

Sidney Dincin, Esquire 16 W. Palisade Avenue Englewood, New Jersey

R e : Fuller v s . Volk, e t al Docket #A-108l-62

Dear M r . Dincin:
In reply to your letter of June 28 1965, please be advised that no order dismissing the motion for an Order Enjoining the School Board of Estimate of the City of Englewood, New Jersey and the City of Englewood, New Jersey, from appropriating, expending or agreeing to expend any of the public fundo to implement the July 29th plan set forth in the attached affidavit, after the letter opinion in the above-entitled matter was filed, has ever been entered. This letter is written to correct my letter to you dated June 8, 1965, which inaccurately characterized this motion to enjoin as an injunction. However, I wish to point out that I endeavored to comply with the request as stated in, your letter to me dated June 3, 1965, last paragraph. I trust that the above will settle this point to the satisfaction of Ida 0. Creskoff, Clerk of the United States Court of Appeals.

"

enne\ S. Barsby Clrrk of the Appellata^Division KSB:rs

WWWfiiftS&Spilft..^! .-

n o a 2

I
4

- n o
B

f- >

o s > M

ns

HARVARD UNIVERSITY
GRADUATE SCHOOL OF EDUCATION
SPACLDIXG HOUSE, 47 [ BROADWAY CAMBRIDGE 38, MASSACHUSETTS

July 12, 1965

Mr. Byron Baer 135 Belmont Englewood, New Jersey Dear Mr. Baer: It is my understanding that during my absence from the office last Friday morning you called regarding a copy of the Englewood Study. I am s ending one to you under a separate cover; and if you have further questions re specting the findings, please feel free to write or call, I had originally intended to send copies to only those persons who actually participated in our orientation sessions last fall and felt that the school department would likely send copies to the leaders of various local organizations. Evidently they have not yet done so. As for the questions you raised in the telephone conversation with Mr. Richard Fiander, I will try to address myself in a general way to some of them. First, we will be glad to consider issuing an errata to the report if serious historical inaccuracies are involved. We will simply have to judge the consequences of not doing so after any such errors are brought to our attention. I might say that a few minor changes were made in the preliminary draft (in response to a reading by Dr. Shedd and members of the Englewood School Board) before issuing the final report. Second, with respect to projected racial composition in individual school districts (assuming present boundary lines), these were not actually computed. Our methodology involved the use of ward lines rather than school districts. As you undoubtedly know, census tracts as used by the U.S. Census Bureau are not compatable with present school district lines and one can make only a very sketchy guess as to the estimated racial composition in small subsections of wards. Because of the necessity of basing any projection on observed trends over the recent past and the obvious uncertainty that these trends x^ill remain fixed, we are very reluctant to issue any of our best guesses as to the future composition, except on a general city-wide basis. Finally, your question about the current racial composition by grade of Liberty School and exclusive of special students can probably be found by examining Table A-6 on page 154 of the report. If you have further questions, please feel free to write or call. Thank you for your cooperation during the course of our study, and I trust you will find the assumptions used in support of the proposed educational plan to be consistent

-2-

with improved public education in Englewood. tion.

This has certainly been our inten-

Sincerely yours,

Howard M. Field Director^ Center for Field Studies HMJ/jb

41 M A I N S T R E E T
FRANCIS J. FEEtCY t.CARTER CORRISTQN

TtLKPHONM CODE ZO1

HACKI3NSACK, N. J. O76OI

August 3, 1965 United States Court of Appeals For the Third Circuit 2046 U. S. Court House Philadelphia, Pennsylvania 19107 Attention: Ida 0. Creskoff, Clerk Re: Puller, et al. -v- Volpe, et al. -v- Volk, etc., et al. Nos. 15043 and 15044 Dear Madame: The Presiding Judge at the Hearing of the recent oral argument with regard to the above matter requested that this office furnish to the Court an approximate breakdown of the additional costs presently being incurred by reason of the Central Intermediate Sixth Grade at the Engle Street School in Englewood, New Jersey. I have endeavored to procure this information from the Board of Education, but I have been informed by its attorney, Mr. Dlncin, that the accounting staff is overburdened at the present time with the preparation of reports which must be filed shortly with the County Superintendant of Schools. Mr. Dincin has promised that Mr. Francis Garrity of the Englewood School System will furnish this information within the next two weeks. As soon as we have received the report we will immeidately forward it to you.
Yours very truly, BRESLIN AND BRESLIN

Charles Rodgers
CR:pd

CC:

James T. Murphy, Esq. Morton Stavis, Esq. John J. Breslin, Jr., Esq. Arthur J. Sills, Esq. Robert Carter, Esq. Barbara A. Morris, Esq. Herbert Tate, Esq. James A. Major, Esq. Mr.

REPRODUCED FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION, LIBRARY OF CONGRESS

RACIAL COMPOSITION
J-'i

Jj

FALL

1965

J 'I

J J ) '.

LIBERTY (72.2%)
i

I If

QUARLES
(23. ft.)

ROOSEVEL T

SCHOOL SYSTEM

rMARLCS RODGER* -1.MCI9 J. FCKLCY r , . n r t n CORRISTON MICHAEL J. BRCSUN, JR. HOOCR W. BRCSLIN, JR.

41 HAIK STUBBT HACKENOA.CK, H. J. O7QO1

September 10, 1965 United States Court of Appeals For the Third Circuit 2046 U. S. Court House Philadelphia, Pennsylvania 1910? Attention: Ida 0. Creskoff, Clerk Re: Puller, et al. -v- Volpe, et al. -v- Volk, etc., et al. Nos. 150^3 and 15044 Dear Madame: I enclose herewith four copies of the report of Mr. Garrity, Assistant Superintendant of the Englewood Public Schools, pertaining to the additional expenses incurred by reason of the institution and maintenance of the Central Intermediate Sixth Grade of the Engle Street School, which is the subject of this Appeal. You will recall that in the oral argument you had requested that this additional information be furnished by way of supplement to the Appeal in this matter. A copy of the report is likewise being sent to all other counsel involved. ,> Yours very truly,
AND BRESLIN
/7

By:

Charles Rodgers

CR:pd Enclosures CC: James^T. Murphy, Esq. Morton Stavis, Esq. Arthur J. Sills, Esq. Robert Carter, Esq. Barbara A. Morris, Esq. Herbert Tate, Esq. James A. Major, Esq. Mr. Francis Garrity

ENGLEWOOD, NEW JERSEY COST COMPARISON - SCHOOL UTILITIES INCREASE OR DECREASE - OVER PREVIOUS YEAR SCHOOL YEAR 1963-61* FACILITY School System - 7 Schools Engle Street School Lincoln School School System - 7 Schools Engle Street School Lincoln School FUEL CONSUMPTION 1963-64 School System - 7 Schools Engle Street School Lincoln School School System - 7 Schools Engle Street School Lincoln School $ 921.00 709.00 510.00 $ 3,148.50 $ 29,248.50 348.00 3,036.00 913.00 4,107.00 $ 30,169.50 3,7^5.00 4,617.00 INCREASE ELECTRIC SERVICE 2,828.63 2,063.97 280 6.9 353.45 $ 233.61 219 7.3 DECREASE ANNUAL COST $ 32,761.00 2,981.85 3,099-58 33,114.51 2,748.24 3,371.51

1964-65

1964-65

WATER CONSUMPTION 1963-64 School System - 7 Schools Engle Street School Lincoln School School System -. 7 Schools Engle Street School Lincoln School SEWER SERVICE $ $ ,' 98.06 536.79 34.00 37.86 $ 3,099.16 35-28 374.00 435.56 $ 3,635.95 408.00 131.80 303.76

1964-65

1963-64

School System - 7 SchorIs Engle Street School Lincoln mihool School System - 7 Schools Engle-Street School Lincoln School

0 0
0

0 0 0 0 0 0

$ 2,680.96 393.04 319.24 $ 2,680.96 393.04 319.24

1964-65

0 0 0

Maintenance Review of our Maintenance Department records reveals the total expenditures at Engle Street dxiring 1964-65, over and above normal operating expense, was $1,1*85.00 itemised as follows: $ 1008 ,2.1 Material Fire alarm system additional Renew wiring, modernize stations, install automatic detectors (boiler room, stage, storage areas); relocate alarm stations and bells Intercom System Rewire as required Electric clock system - modernized Addition classroom electric outlets Labor TOTAL EXPENDITUHE $ 465.00

$ 1450 ,8.0

INCREASE OR DECREASE - OVER PREVIOUS YEAR SCHOOL YEAH 1963-6* FACILITY School System - 7 Schools Engle Street School Lincoln School School System - 7 Schools Engle Street School Lincoln School FUEL CONSUMPTION School System - 7 Schools Engle Street School Lincoln School School System - 7 Schools Engle Street School Lincoln School $ 921.00 790 0.0 INCREASE ELECTRIC SERVICE DECREASE ANNUAL COST

$ 2,828.63 2,063.97 268.09 353.45 219 7.3

$ 32,761.00
2918 ,8.5

3,099.58
$ 233.61

33,114.51 2,748.24 3,371.51

$ 3,148.50 $ 29,248.50 3,036.00 348.00 4,107.00 913.00

510.00
WATER CONSUMPTION

$ 30,169.50 3,745.00 4670 ,1.0

School System - 7 Schools Engle Street School Lincoln School School System -. 7 Schools Engle Street School Lincoln School SEWER SERVICE School System - 7 Schools Engle Street School Lincoln School School System - 7 Schools Engle Street School Lincoln School

9.6 80

37.86 $ 3,099.16 35.28 374.00 ^ 435.56

536.79 34.00

$ 3,635.95 408.00 131.80 303.76

0 0
0

0 0 0 0 0 0

$ 2,680.96 393.04 319.24 $ 2,680.96 393.04 319.24

0 0 0

Maintenance iview of our Maintenance Department records reveals the total expenditures at talkie Street during 196^-65, over and above normal operating expense, was $1,^5.00 itemized as follows: Material $ 1,020.81 Fire alarm system additional Renew wiring, modernize stations, install automatic detectors (boiler room, stage, storage areas); relocate alarm stations and bells Intercom System Rewire as required Electric clock system - modernized Addition classroom electric outlets Labor TOTAL EXPENDITURE

$
$ 1,W5.00

OFFICE OF THE CLERK

!$ 8 2

I t) OC I ""

STATES COURT OF APPEALS

IDA O. CRESKOFF
CLMK

POM THE THIRD CIRCUIT 2048 U. 8. COURT HOUSE PHILADELPHIA 7

TKLXPHONK
WA. 2-3144

September 30, 1965 Robert L. Carter, Esquire 20 West 40th Street New York, New York 10018 Re: Fuller, et al. and Volpe, et 1. v. Volk, et al. and Raubinger, etc. and Ancrum, et al., NOS. 15043 & 15044. Dear Mr. Carter: Enclosed is a copy of the opinion filed to-day in the above entitled case . judgment Also enclosed entered to-day. is copy
of the

Very truly yours,

MEF Enc.

Deputy

Clerk

NOB. 15,043 and 15,044

GERTRUDE P. FULLER, RICHARD L. GRUBMAN, THOMAS F. CACCIOLA and JOSEPHINE CACCIOLA, his wife, and others to be named (Plaintiffs), Appellants in No. 15,043

and
JERRY VOLPE and KATHERINE VOLPE, his w i f e , LOUIS PUGACH and BEATRICE PUGACH, his wife, ALLAN LASSER and JUDITH LASSER, his wife, OTTILIO D'ALESSIO and MARIE D'ALLEST.O, his wife, SOL HANDLER and LILLIAN HANDLER, his w i f e , EUGENE F. CLEMENTS and MARJORIE CLEMENTS, his wife, EDWARD ROBBINS and GLORIA ROBBINS, his wife, LLOYD POLLARD and BLANCHE POLLARD, hi> wife, (intervening plaintiffs), Appellants in No. 15,044

vs.
AUSTIN A. VOLK, WILLIAM D. TICKNOR, JR., 0. CARLYSLE McCANDLESS, CARMEN R. HINTZ and WARREN L. LEWIS, constituting the BOARD OF SCHOOL ESTIMATE OF ENGLEWOOD, NEW JERSEY, and THE CITY OF ENGLEWOOD, NEW JERSEY, JOHN E. PERRY, LOUISE GRABOW, THEODORE R. VAN ITALUE, CARMEN R. HINTZ and VIARREN L. LEWIS, constituting the BOARD OF EDUCATION OF THE CITY OF ENGLEWOOD (Defendants),

and
FREDERICK M. RAUBINGER, Commissioner of Education of the State of New Jersey,
and

KENNETH ANCRUM and LESLIE ANCRUM, minors, by tfortimer W. Ancrura, their parent; JESSICA BRODY and LAURA BRODY, minors, by Mr. and Mrs. Alexander Brody, their parents; ERIC WEST, a minor, by Mrs. Audrey West, his parent; NICKOLAS "PATCH and ISAAC PATCH, III, minors, by Isaac Patch, Jr., their parent; SHEREEN GREGORY, DONNA GREGORY, GARY GREGORY and TODD GREGO'.Y, minors, by Mrs. Pearl Gregory, theirfrparent; MICHELLE HELLEM, a minor, by Mrs. Theodora Hellem, her parent; STEPHEN HOUSTON, a minor, by Mrs. Alma Houston, his parent; IRENE CLARK, a minor, by Mrs. Larvine Clark, her parent; DANIEL BLANK, JOSHUA BLANK and REBECCA BLANK, minors, by Irwin M. Blank, their parent; RACHEL WARNER, a minor, by Aaron W. Warner, her parent; A&DREN ROWLAND and STEVEN ROWLAND, minors, by Lewis P. Rowland, their parent; MICHELL BOLDT, a minor, by O'Brien Boldt, her parent; SHERYL GAMRIN and ELIAS GAMRIN, minors, by Mrs. Suzanna G. Gamrin, their parent; ALICE LEVINE, a minor, by Mrs. Gladys Levine, her parent; DEBORAH MILLER, ERIC MILLER and CYNTHIA MILLER, minors, by Robert J. Miller, their parent; MIRIAM SHARLIN and JUDITH SHARLIN, minors, by Mrs. Irene Sharlin, their parent; OLIVIA STANDARD, a minor, by Mrs. Frances Standard, .her parent; BRYANT McNEIL, a minor, by Mrs. Dbloris J. McNeil, his parent; ALBERT BROOKS and PAMELA BROOKS, minors, by Mrs. Dorothy E. Brooks, their parent; EDWARD MILLER, JR., a minor, by Edward Miller, his parent; JOSEPH TOWNSEND, JR., a minor, by Mrs. Aquilla L. Brown, his parent; EMILY FISHER and DAVID FISHER, minors, by Mrs. Naomi K. Fisher, their parent; (intervening defendants).

(D. C. Civil No. 847-63)

Present: BIGGS, Chief Judge, and FORMAN and FREEDMAN, Circuit Judges.

J U D G M E NT
This cause came on Co be heard on the record from the United States District Court ior the District of New Jersey and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this Court that the order of the District Court, filed June 22, 1964 and entered June 25, 1964, be, and the same is hereby vacated and the cause remanded with the direction to the District Court to proceed in accordance with the opinion of this Court.

ATTEST:

Clerk

September 30, 1965

UNITED STATES COURT OF APPEALS FOB THE THIED CIRCUIT Nos. 15043-15044 GERTRUDE P. FULLER, RICHARD L. GRUBMAN, THOMAS F. CACCIOLA AND JOSEPHINE CACCIOLA, His WIFE, AND OTHERS TO BE NAMED, Plaintiffs-Appellants, in No. 15043

AND
JERRY VOLPE, ET AL., Intervening-Plaintiff's-Appellants,
v.

in No. 15044

AUSTIN A. VOLK, ET AL., Defendants-Appellees, AND FREDERICK M. RAUBINGER, COMMISSIONER OF EDUCATION OF THE STATE OF NEW JERSEY,

AND
KENNETH ANCRUM, ET AL.
AND

DEBORAH SPRULLL^ET AL., Intervening'-Defendants-Appellees APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OP NEW JERSEY Argued March 5, 1965, Reargued June 2, 1965. Before BIGGS, Chief Judge, and FORMAN and FREEDMAN, Circuit Judges. OPINION OF THE COURT (Filed September 30,1965)

By BIGGS, Chief Judge. This civil action attacks the constitutionality of a public school districting plan in the City of Englewood, New Jersey, on the ground that the plan promulgated by the defendants by which racial imbalance in the school system was substantially reduced denies to the plaintiffs the equal protection of the laws guaranteed to them by the Fourteenth Amendment of the Constitution.1 The plaintiffs claim that the plan of integration is unconstitutional as being based on race and that the plan as formulated is unconstitutional because it gave the parents of Negro children in the Lincoln School the right to vote the plan into existence. Tr1? plaintiffs in this present action consist of two groups of plaintiffs: The original plaintiffs, hereinafter referred to as the Fullers,2 and the intervening plaintiffs, hereinafter referred to as the Volpes.8 The defendants are the members of the Board of Education of the City of Englewood; the City of Englewood; Commissioner Baubinger, the Commissioner of Education of the State of New Jersey, and some thirty-eight minor children attending the public schools in Englewood, who, by their parents, were permitted to intervene as parties-defendants in this litigation. Prior to the commencement of the September 1963 school term, the Englewood school system consisted of a
1 Cf. Morean v. Board of Education, 42 N.J. 237, 200 A.2d 97 (1964) ; Balaban v. Rubin, 14 N.Y.2d 193, 199 N!E.2d 375, cert, denied, 379 U.S. 881 (1954); Note, 19 Rutgers L. Rev. 558 (1965). 2 The caption of the original complaint, in addition to listing Gertrude P. Fuller as a party-plaintiff, sets out as additional parties-plaintiffs "Richard L. Grubman, Thomas F. Cacciola and Josephine Cacciola, his wife, and others to be named." 3 The intcrvenors-plaintiffs, in accordance with Rule 24(c), Fed. R. Civ. Proc., 28 U.S.C., filed a pleading in the court below. This pleading, captioned "Intervening Plaintiffs Complaint," sets out as intervenors, in addition to Jerry and Katberroe Volpe, "Louis Pugach and Beatrice Pugach, his wife, Alan Lasser and Judith Lasser, his wife, Ottilio D'Allesio and Marie D'Allesio, his wife, Sol Handler and Lillian Handler, his wife, Eugene F. Dements and Marjorie Clements, his wife, Edward Robbins and Gloria Robbins, his wife, Lloyd Pollard and Blanche Pollard, his wife."

central high, school, grades 10 through 12; a central junior high school, grades 7 through 9 and a system of five elementary schools, grades 1 through 6.4 These elementary schools were operated under the "neighborhood" school plan, whereby students attended elementary schools located in their own neighborhoods. Under this plan, severe racial imbalance existed in the elementary schools as a result of existing housing patterns in the community. As of September 1962 enrollment and racial composition in the elementary schools were as follows: School Cleveland Liberty Lincoln Qnarles Eoosevelt Enrollment 477 418 505 343 345 % White 99.6 38.0 2.0 96.8 85.5 % Negro .4 62.0 98.0 3.2 14.5

The intervening defendants in the instant case, the Spruills and Ancrums, petitioned Commissioner Eaubinger, charging the Englewood Board of Education "with the maintenance of racially segregated public schools and with refusal to implement plans to eliminate patterns of racial segregation alleged to exist in the public schools.'' 5 The Volpes cross-petitioned the Englewood Board of Education, protesting any departure from the status quo. After consolidation by the Commissioner of the Spruill and Ancrum petitions, the Volpes were permitted to intervene in the proceeding. The Commissioner found that the existing racial imbalance was not the product of deliberate or intentional conduct on the part of the Englewood Board of Education, but rather that it was the result of "patterns of
4 The Englewood Board of Education also operated a system o! kindergartens. The kindergartens are unaffected by the districting plan here under attack and no issue has been presented to this court or the court below concerning them. 5 Opinion of the Commissioner of Education, Spruill v. Board of Education of the City of Englewood, p. 2 (July 1, 1963).

housing and the operation of other socio-economic forces" causing "concentration of pupils of one race" in the Lincoln School district.* Commissioner Eaubinger held that "compulsory attendance at an all Negro School, such as the Lincoln School, at least where appropriate means can be found to avoid it, constitutes a denial of educational opportunity under New Jersey law which the school district is required to correct."7 The Commissioner ordered the Englewood Board of Education to formulate a plan or plans to reduce the extreme concentration of Negroes in the Lincoln School and to submit the plan or plans to the Commissioner for approval before August 1, 1963 and to put the plan, as approved, into effect at the commencement of the 1963-64 school term. In accordance with Commissioner Baubinger's ruling, the Englewood Board of Education promulgated a plan which provided for the establishment of a central sixthgrade school at the former Junior Hi^ School building at 11 Engle Street (Engle Street School). The plan also provided for the transfer of all students at the Lincoln School, grades one through five, to the Cleveland, Quarles or Roosevelt schools, taking into consideration such factors as the distance to be traveled and distribution of class loads. No provision was made for either transfer into or out of the Liberty School. The plan stated that those children in Lincoln School who did not wish to transfer should have the opportunity to remain at Lincoln School "provided that it is administratively and educationally practicable to do so.", but that "as a prerequisite to the establishment of the citywide sixth-grade school . . . either of the following two conditions must occur: 1. 125 or more present students of Lincoln School must NOT elect to remain for the 1963-64 term at Lincoln School or 2. The number of transfers from Lincoln will result in class loads in Qnarles, Cleveland, or Roosevelt Schools which, in the opinion of the Board of Education, are educationally undesirable."
6 Id. mt f. 7.
7 . at p. 81

In order to implement the plan, questionnaires were sent to parents of children in grades 1 through 5 in the Lincoln School, to determine whether there were enough interested pupils to put the plan into effect. As of August 19, 1963, there were 242 acceptances of assignments out of the'Lincoln School and 21 "votes" to remain at the Lincoln School. Accordingly, the Board of Education proceeded with its implementation plans. The Board of School Estimate certified $53,000 for the implementation of the plan which, when added to $50,000 already available to the Board of Education, made a fund of $lo"3,000 available for the implementation of the plan. The plan included renovation of the Engle Street School, the purchase of equipment and moving administrative offices from the Engle Street School to the Lincoln School. The school term opened on September 4, 1963, but at that time the Engle Street School was not yet ready for use. Therefore, only 125 pupils, grades one throi gh five, were assigned out of the Lincoln School into the Cleveland, Boosevelt and Quarles Schools. The Engle Street School was ready for occupancy and the city-wide sixth grade plan went into effect on October 28. Since that time, all children in grades one through five in the Lincoln School were transferred or sent to the Cleveland, Roosevelt and Quarles Schools and all children in the sixth grade have been attending the city-wide sixth grade school, the Engle Street School. The enrollment and racial composition of the elementary schools as of November 12, 1963, under the plan of integration, were as follows: Number of Schools White % Negro Pupils and Grades 290 58.3 41.7 Engle Street (6) 66.3 33.7 547 Cleveland (1-5) 39.0 61.0 283 Liberty (1-5) 65.8 34.2 310 Koosevelt (1-5) 81.4 18.6 301 Quarles (1-5)

r
The plaintiffs moved for summary judgment, Rule 56, Fed. E. Civ. Proc., 28 TJ.S.C. After argument on the motion, the court below entered judgment for the defendants, holding that the plaintiffs failed to show a denial of any constitutional right. Fuller v. Volk, 230 F. Supp. 25 {D.N.J. 1964). The plaintiffs have appealed from this judgment. But before this court can review the judgment of the court below on the merits, we must be certain that we have jurisdiction of the cause and that the court below properly acquired jurisdiction in the first instance. The original plaintiffs, the Fullers, allege that they have standing to sue to enjoin the expenditure of public funds for an unconstitutional purpose because they are taxpayers in the City of Englewood and the State of New Jersey. There is no longer any doubt that a local taxpayer can invoke federal jurisdiction to attack the constitutionality of state or local expenditures. ^Jorenms v. Board of Education, 342 U.S. 429 (1952); Everson v. Board of Education, 330 U.S. 1 (1947); see also Wieman v. Updegraff, 344 U.S. 183 (1952); Zorach v. Clauson, 343 U.S. 306, at 390, n. 4 (1952). However, in order for the taxpayer to have standing, he must show that his position as a taxpayer is in some way affected and, in short, that his is a good-faith pocketbook action. Doremus v. Board of Education, supra. Therefore, the taxpayer must be shown to be suing to prevent a misuse of public funds for this is the only interest which a federal court can protect in a taxpayer's suit. Ibid.; see Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L. Rev. 1265, 1307 (1961); cf. McGowan v. Maryland, 366 U.S. 420 (1961). The original plaintiffs, the Fullers, must bring their ewe within the ambit of federal question jnrisdictional provisions, 28 U.S.C. % 1331, in order that this court and the court below may have jurisdiction. Section 1331 (a) grants jurisdiction to the district courts in all civil actions arising under "the Constitution, laws, or treaties of the United States" in which "the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs." If jurisdiction would lie under the civil rights provision of the Judicial Code, 28 U.S.C. < 1343, there would be no issue of jurisdictional amount. Hague v. CIO, 307 U.S. 496 (1939); see Basista v. "Weir, 340 F.2d 74 (3 Cir. 1965). However, the Fullers do not sue to redress a deprivation of their civil liberties but rather to enjoin an allegedly unconstitutional use of funds. Have the Fullers an action in which the amount in controversy exceeds $10,000f Unless they can aggregate their claims and the claims of all other members of the class on whose behalf they sue the court below lacked jurisdiction, since no single plaintiff can establish the requisite amount. It is well-settled law that only in a true class action may the claims of each member of the class be aggregated in order to obtain the requisite jurisdictional amount in controversy. Clark v. Paul Gray, Inc., 306 U.S. 583 (1939); Lion Bonding & Surety Co. v. Karatz, 262 U.S. 77 (1923); "Wheless v. St. Louis, 180 U.S. 379 (1901); Koster v. Turchi, 173 F.2d 605 (3 Cir. 1949); Black & Yates v. Mahogany Ass'n, 129 F.2d 227, 232, 236 (3 Cir.), cert, denied, 317 U.S. 672 (1942); Knapp v. Bankers Securities Corp., 17 FRD 245 (E.D. Pa, 1954), aff'd, 230 F.2d 717 (3 Cir. 1956); Giesecke v. Denver Tramway Corp., 81 F. Supp. 957 (D.Del. 1949); Jones v. Mutual Fidelity Co., 123 Fed. 506 (D.C. D. Del. 1903). The question, therefore, is whether a taxpayer's suit is one in which the claims of the class may be aggregated.8 In Eussell v. Stansell, 105 U.S. 303 (1881), a group of landowners sought to enjoin a special assessment tax. They appointed several of their group to represent them in a class action. The Supreme Court held that the interest of
8 Compare 3 Moore, Federal Practice, 23.13 at 3482-83 (1964), with Note, Taxpayers' Suits: A Survey & Summary, 69 Yale L.J. 895, 920 (1960), and Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L. Rev. 1265, 1281 (1961).

each landowner was separate preventing the plaintiffs from aggregating the interests of the class in order to meet the requisite jnrisdictional amount. With one single exception, Brown v. Trousdale, 138 U.S. 389 (1891), the Supreme Court has adhered to the view of Eussell v. Stansell. See "Williams v. Eiley, 280 U.S. 78 (1929); Rogers v. Hennepin County, 239 U.S. 621 (1916); Wheless v. St. Louis, 180 U.S. 379 (1901); Colvin v. Jacksonville, 158 U.S. 456 (1895). In Scott v. Frazier, 253 U.S. 243 (1920), the Supreme Court refused to allow aggregation of claims in a taxpayers' suit to enjoin the payment of public moneys and the issuance of bonds on the ground that the state's purpose was an unconstitutional one, i.e., the spending of public money for a private nse in violation of the Fourteenth Amendment. As we have indicated the present action is controlled by Scott v. Frazier, thereby preventing the aggregation of claims. See Doby v. Brown, 13i F. Supp. 584 (M.D.N.C. 1955), aff'd, 232 F.2d o04 (4 dr.), cert, denied, 352 U.S. 837 (1956); Norris v. Mayor and City Council of Baltimore, 78 F. Supp. 451 (D.Md. 1948). It follows that the court below was without jurisdiction to adjudicate the claims of the Fullers. We come next to the jurisdictional questions as they may affect the Volpes who alleged that they are suing as parents of children in the Englewood public schools. There is no question that they have asserted a separate and independent basis for jurisdiction by their allegations that the children on whose behalf they sue are unconstitutionally being compelled to attend schools determined solely on the basis of race. This allegation presents no problem of jnrisdictioual amount in controversy. Hague v. CIO, 307 U.S. 496 (1939). However, the question remains whether their intervention can cure the jurisdictional defect thereby giving the district court jurisdiction. It is well-settled that since intervention contemplates an existing suit in a court of

competent jurisdiction and because intervention is ancillary to the main cause of action, intervention will not be permitted to breathe life into a "nonexistent" law suit. United States ex rel. Texas Portland Cement Co. v. McCord, 233 U.S. 157 (1914); Hofheimer v. Mclntee, 179 F.2d 789 (7 Cir.), cert, denied, 340 U.S. 817 (1950); Pianta v. H. M. Beich Co., 77 F.2d 888 (2 Cir. 1935); Kendrick v. Kendrick, 16 F.2d 744, 745 (5 Cir. 1926), cert, denied, 273 U.S. 758 (1927); Brictson Mfg. Co. v. Woodrough, 284 Fed. 484, 487 (8 Cir. 1922); Jacobs v. District Director of Internal Revenue, 217 F. Supp. 104 (S.D.N.Y. 1963); Beeton v. Greene County Board of Education, 32 FED 220 (E.D. N.Car. 1963); Leveuson v. Little, 75 F. Snpp. 575 (S.D. N.T. 1948). However, a court has discretion to treat the pleading of an intervenor as a separate action ,n order that it might adjudicate the claims raised by the intervenor. Hackner v. Guaranty Trust Co., 117 F.2d 95 (2 Cir.), cert, denied, 313 U.S. 559 (1941); Pikor v. Cinerama Productions Corp., 25 FRD 92 (S.D.N.Y. 1960); Trnncale v. Universal Pictures Co., 76 F. Supp, 465 (S.D.N.Y. 1948); In re Raabe, Glissman & Co., 71 F. Supp. 678 (S.D.N.Y. 1947); 4 Moore, Federal Practice 24.16 at 113-14 (1963). This discretionary procedure is properly utilized in a case in which it appears that the intervenor has a separate and independent basis for jurisdiction and in which failure to adjudicate the claim will result only in unnecessary delay. By allowing the suit to continue with respect to the intervening party, the court can avoid the senseless "delay and expense of a new suit, which at long last will merely bring the parties to the point where they now are." Hackner v. Guaranty Trust Co., supra, 117 F.2d at 98. But on the present record, even as it has been supplemented purportedly pursuant to Section 1653, Title 28, U.S.C., we cannot ascertain whether or not the intervening plaintiffs possess locus standi to maintain the suit for it does not appear that any of the intervening plaintiffs had any child

12 Third, as pointed out in the language we have just quoted from the Forasenius opinion, the decision of the federal constitutional issue which was before the court below at the time of its original decision may have been materially altered by the later decision of the Supreme Court of New Jersey in Booker." The foregoing are matters which the court below may examine and may adjudicate upon remand as the facts and law may require, and, if necessary, may supplement the record by evidence relating to jurisdictional and other pertinent issues. The judgment will be vacated and the case will be remanded with the direction to the court below to proceed in accordance with this opinion.
12 The court below did not have the benefit of the decision of the Supreme Court in Harman v. Forssenius, 380 U.S. 528 (196S) and the decision of the Supreme Court of New Jersey in Booker v. Board of Education, 45 N.J. 161, 212 A.2d 1 (1965), at the date of its decision on June ), 1964, 230 F. Stiff. 25.

A True Copy: Testa:

Cltrk of Ihi Unilti Slain Court o for Iht Third Circuit.

BOHALB A. QUARLES SCHOOL Grade Boys

OCT. 19, 196$ - RACIAL B3STRIBDTIOH WHITE NEGRO Total Boys Girls GlrTs" Tqtal
1 0 1
0

A. M. Kdg. A. M. Kdg. P. M. Kdg.

P. M. Kdg.
**, .

2 0 2
2

3
0

5 6 6
6 9
9 9

U 6 U 6 b
6 b 16 'I 1*1 10J 12J

3
2

1st Gr. (M) 1 (?)

b
2 b 2

7 6 7

13 15 13 23
20 20 22 22
2!

U
3

1
2

"

(R) _J
(K)
(W)_ (R) (W) (S) (R) (M) (B)" (L) (R)

2nd "

U
6 1? 5 3 6 6
7

7 6
12 12 10

3
2 1 1

1U
8
10
12

3rd 3rd " Uth" Uth " Uth 5th " 5th 5th

5 U
2

3
2

9 10 10 1 1 7

9 7 7 7 9

18 17 17 18
2,1

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2

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5
8

b
E5~

16

ET

TOT

TO

27T

' ' ~^-J

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S~-T

ONALD A. QUARLES SCHOOL - RACIAL BISTRIBOTION, by GRADE and CLASS

NEGRO Grade
u) 7

WHITE otal Boys

1 1

Total Boys

Total Girls

Total Girls

A. M. Kdg. P. M. Kdg.
1st Grade

?
12

10 10

-) VJ j

10

10

27

2nd
31

"

u*
30 18 28 23

w
V3 ^ r? 5"/

5 9 7

13
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October 19, 1965

TO:
FROM: SUBJECT:

Dr. Shedd
L. McCloud Racial Distribution, Engle School

Following is our enrolment by team and section of White and Negro students:

Kappa Team

Negro

Total

Mrs. Hoyte Miss Steinberg Mrs. Carboy Mrs. Sanford Mr. Jackowski Mr. Jack 3io;nia Team Mr. Bonney Mrs. 3ort,hwick Mrs. Davis Mr. Dolphin ?frs. Nunery Miss Truslovje

13 15 13 lii

9 10

9
E 1D

2k >3 2k 22 ?3 Ik

:b

] 9
LO 10 III

23
2k ' lh

111
13 170

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1
OFFICE OF THE CLERK UNITED STATES COURT OF APPEALS
IDA O. CRESKOF, CUMK
POM THK THIRD CIRCUIT

NEW TELEPHONE NO. 597-2995

2048 U. 8. COURTHOUSE

PHILADELPHIA 19107 October 19, 1965

Robert L. Carter, Esq. 20 West 40th St. New York, New York 10018

Re: Fuller, et al and Volpe, et al. Volk, et al. and Raubinger, etc. and Ancrum, et al., Nos. 15043 & 15044 Dear Sir: We are today mailing to the Clerk of the District Court a. certified copy of the judgment in the above-entitled case. This is issued in lieu of a formal mandate, in accordance with amended Rule 36 (1), a copy of which is enclosed.

Very truly yours,

-<i^7
teputy Clerk Dep

Enc

1
United States Court of Appeals
FOE THE THJBD CIBOUIT ORDER AMENDING RULE 36. It is ORDERED that paragraph (1) of Eule 36 of this Court is amended by adding the following sentences: A certified copy of the judgment and a copy of the opinion of the Court, if any, and any direction as to costs shall constitute the mandate, unless the Court directs that a formal mandate issue. In order to distinguish such certified copy of the judgment as an informal mandate from any other certified copy of the judgment, certification under this rule shall be in the following words: "Certified as a true copy and issued in lieu of a formal mandate on (date) " By THE COUBT, JOHN Bioos, JR., Chief GEBALD MCLAUGHLIN, Circuit HABBY E. KALODNER, Circuit AUSTIN L. STALEY, Circuit WILLIAM H. HASTIE, Circuit

Judge Judge Judge Judge Judge

J. CULLEN GANEY, Circuit Judge WILLIAM F. SMITH, Circuit Judge ABRAHAM L. FHEEDMAH, Circuit Judge

Dated: July 1, 1965

//

47163DEO665
MO n e ' e woo c: fuDlic .Jcnools

f. A. Girrtiy, Aaxitant 5uprintn<Jn(

October 28,

1965

Mr. Sidney Olncin Counsellor at Law 16 W. Palisade Avenue Engls*ooc, Ne* Jersey RE: FULLER, ET AL us. VOLK, ET Al_

Dear Iflr. Oincin: Confirming our telephone conversation of Thursday, October 28, the school principals report the following pupils concerned with the TULLEfi, ET AL vi VOLK, ET L, are in the grades indicated as of October 20, 1965. Lloyd Pollrd 469 Elkxood Terrace Andrea Robblns 361 Gloucester Street Grade 5 Grade S Donald A. Queries School Roosevelt School

The principals further report they have no knonledge of children, of the families involved, ho are likely to become public school pupils in the near future. Very tru

r. A. G a r r i t y A s s i s t a n t Superintendent

cc;

Dr.fflarkR. Shedd

ENCLEIt/OOD PUBLIC SCHOOLS Englevood. Hm !

rric. of the Ml.tant sup.rlnt.nd.nt October 28, 1965 1^^^^ PUPILS msT
PUGACH ) VOLPE 'OLPE VOLPE LASSER D'ALESSIO CEMENTS
HANLCR

NAH1E IRST

ORIGINAL ILEHI. npTPfrr

CURRENT ENCLEWOOD PUBLIC

-" Si,. ^ ! S"il;s0[ S"

PRIVATE SCHOOL MOVED TO HIORRIS COUNTY WED TO IDORRIS COUNTY WOVED TO MORRIS COUNTY PRIVATE SCHOOL JR. HIGH PAROCHIAL SCtJOL

NEIL
TOD
JAv

ROOSEVELT ROOSEVELT ROOSEVELT

LAURA ROBIN CHRISTINE ELIZABETH

JOY

ENCLE STREET ROOSEVELT ROOSEVE: r CLEVELAND DONALD A. ROOSEVELT

QUARLES

ROBBINS ,

NDRH

361 GLOUCESTER STREET -YD OONALD A. QUAflUS DONALO A. ^ RLES

5

10/28/65

CLERK'S OFFICE UNITED STATES DISTRICT COURT for the DISTRICT OF NEW JERSEY Newark

, t <ils

Civil Action No. ,.

to
Vaii, #t

There was entered on the docket on an order

3.S.C.*.

!'/, 1

$&&&&&

*e*tff>

S.:t I

Michael Keller, Jr., Clerk

BEST AVAILABLE COPY

December

1965

The Honorable Anthony T. Augelli United States District Court District of New Jersay Newark, Hew Jersey 07101 Puller e_t aj. v. Volk et al Dear Judge Augelli: The following is in reply to your letter requesting that all parties to the above entitled Hatter present briefs and argument concerning the questions of the standing of the Volpos to maintain their cause of action, whether exhaustion of administrative reaedies is required and whether the federal doctrine of abstention is applicable. Counsel for the intervening defendants (Ancrum et al Spruill) join in the brief submitted by the defendant, TEe fiaglewood Board of Education. With regard to standing, information supplied by the Board of Education indicates that two of the intervening plaintiffs are in the fifth grade and would therefore be required to litigate the question of the sixth grade plan now if they expect to obtain relief prior to entering the sixth grade.
and

Regarding abstention, it appears that the decision in Booker v. Board of Education, 45 H, J. 161 has resolved all State q"uestlohsV thereby rendering the doctrine of abstention inapplicable. The applicability of McNeese v. board of Education, #3 Sup. Ct. 1 3 ( 9 3 has beau previously argued before 43 16) this Court in connection with motions to dismiss and la discussed at length on pages 17 and IS of the Motion for Leave to Pile Petition for Writ of Prohibition filed by the Attorney Oeneral of the State of New Jersey. Although subsequent to the filing of that notion the appeal of the Volpes to the Appellate Decision has bean dismissed, the remaining discussion of that case is consistent with our contentions. Withdrawal of the Volpe appeal from the administrative proceeding and the decision of the Third Circuit Court

-2-

or Appeal* which raises several procedural questions but does not determine the aerlts of the issue, leave the parties, la ay opinion, precisely where they were prior to the appeal. It is our contention that the procedural questions do not inhibit this Court fro* entertaining the case on the merits, that the aerits have been exnaustibly diseussed previously, and that the questions before this Court which have been briefed, disoussed, and argued should be determined consistent with the prior decision of this Court. Respectfully,

Barbara A. Morris

I/
fuDiic Jcnools v-fc>nglewooa, New Jersey Roosevelt Ockool Umer Cx. Campbell, Principal

October Total number of children per class

1965.

Also

Total number of Negro children per class.

Teacher

Grade

Number of Negro children per class.

Total number of children per class.

13 11

Mrs. DiSiena Mrs. DiSiena Mrs. Keen Mrs. Keen Miss Tait Miss Tait Mrs . Penny Miss Sekol Miss Wendt Mrs. Battle Miss Johnson Mrs. Watson Miss Cooper Miss Earle Mrs. Poinsett Mrs. Carlson Mrs . Sarner Mr. Mitchell Mrs. Williams Total

A.M. P.M. A.M. P.M. A.M. P.M.

Kdg. Kdg. Kdg Kdg Kdg Kdg

4
3 4 3

13
10

4 __^y ^ i //^ j
12

-/V

12

I I 1 2 2 2

13 11 11

27 27
sSfyS 27 / ^

\/

22
-xA-ty

10 (*?//,

23 21 21

3
2 3

10 12 11 ^ MJ 7
"^ .r tf

24
7"\ ' ** ,> , ,

4
4

10 />7IV;
12 12

25
^r// *?a yY 27

5
5

27
A "
26

f 3 *f

161

390

/.
AS OF OCTOBER 20, 196$ - V WITH TOTALS FOR XSOBO AID LIBERT! SCHOOL PERSONNEL Room 108
n

HEIM, RAYMOND, PRINCIPAL * * Adams, Myrtle (Mrs.) Secy. Baker, Ethel A.,M

won
,..Ui,

TOTAL

jflUBUftt

no U2 Kdfl. n

" n " " "

M

?
5
8 8 3 IT 5

.,., .,.^0,01

Nelson, Imogene Nelson (Mrs. Oaskin, Audrey (Mrs.) P.M. Hayes, Doris A.M.

19

21* 23 22 2U

79.25C 69.656 , 6,3f6?

101; " " "

1
i

^
1U
21

102 1st.

Garrity, Mrs. Elizabeth

87.53C 73.3$ 78.3$

oo. f J*

103 1st. .-. Giegold, Kathryn JLUJL 1st. 1C3 LJ.

(Pre-Pri 4uT)n

15 23,
,,...Tmr,jj^,,.ii

"

Knudseh, Viola' (Mrs.)'....., AP., fl^U at..) ......

""IB"

n^*
2(jp

""'TT3

Fiawner," Blame ";..'.""',

Ceriit, Valerie (Mrs*)..... Greene", Anne {Mrs. 5
9

"""" g6" " iyy; %

1i
h ri 11

fr~~

5 U
9

2%

7o. X

211 3rd 2l2 207 ' "

16
. 10

""56*
19

^o. i
52.6$

Hauck, Katherine (Mrs.)...;

,. 15

;r""iy
1

20 "H '7^. *
,^^.l,,,:,

^Tjf1"""
1

7' "" "'"&"

1 - 1 M ?OB, M I 1 11

MJ chfll.-.KlirijM-fliM i ) Cirillo. Robert

jMi^paM""""" ' ....-

"^"5U
-

7?r* ^76.8$
73.9$
77. $
U2^9$ 88.8$ 72.2$

203 5th 201 "

17

23
26

" " "

Rauscher, Catherine (Mrs.) 1 ... 20 Haufrecht, Betty (Mr*.^ Eldryw, Call. (M^J.J -.<. v> ;,Total.... ... ... ....

6 If 1 119 ._ , ,

109 N.I. 2B Ed.

7
9 U28

Library - Biker, IPiru {j?T5. J~ U B-

309 p=

JoT>33, Marlens (:-!r3} Rsad-jjig Sr>e?ia Let -

Art - Walker, Chai'les

Su ?rnava..^e, Iharl OB - C u? tod AH Sc< adnrs, Ful .on

1
CLEVELAND SCHOOL Racial Distribution

October 20, 1965'

W
21 21 18

/f

(/

Grade
Hg.

( JL

Total 30 28 29 29

'd

Mrs. Mrs. Mrs. Mrs.

Brown Dor an Greengras Kay ford

9 1 11
10 37
10

19
7?

Total First ie Grade Mrs. Stevens Mrs. Mrs. Miss Mrs. Grey Johnson Sullivan Sweeney

n6
16 27 28 28 27

j;./?A/

6
19 17 17

11
12

11
12

JS.
68

Total Grade
Mrs. Barclay

no
29 28 29 29

-> V

* '*

1^

1C

111

Mrs. Hill Mrs. Bush Mrs. PwOss

Total

15 1U
13 56

15 13 15 16 55 18 Hi 19 16 67 16 13
12

n5
26 27 26 __28

i - o ~'f

"~r~

Grade

Mrs. Little
Mrs. MacDonnell

8 13
7
12

Miss Schelling Kiss Webster

Total

ho

ic7
25

37 y JL
v r> ; ^j.
?.J /J

Grade

Mrs. Greenwald Mrs. Nagl

Mrs. Perry Mrs. Schultz

Total

:; Hi Hi
10
a7

27 26

16 57
20

J6

lou
26 27 26
26

Grade

Mrs. Carroll
Miss Diefenbach Mr. Mahood

6 9 12

18 1L.

Mr. Pagnozzi

9
36

17
69

105
673

&

109

Grand Total

268

Uc$

Jf.^ i

DWIGHT MORROW HIGH SCHOOL Englewood, New Jersey

October 20, 1965

NEGRO Boys Girls

WHITE Boys Girls

OTHERS Boys Girls

Grade 10 Grade 11 Grade 12 Total

47' 65 47 159

66" 56 1+8 170

73 71 92 236

74 88 82 244 0 1

f- *>ff i" '< Hi- 1- 1- 1- f f i- V f T i- 1s i- 1* -F -f -f f V -r T V "f V f - f f -f "f -r V f V V i- T V *f ^p V V

BOYS

GIRLS

TOTAL

wEGRO WHITE Chinese TOTAL

159 236

170
o i 4^/f/f

329 ~M^i rt /-v if-oU " ' ** '

395

415

S10

Attendance Office

To: Dr. Mark Shedd From: Mr. E. Keller

2NGLEUOOD JUNIOR HIGH SCHOOL New Jersey

October 21, 1965 3.ACIAL DI3T11I3UTION Grade 7 7-1 Gl 7-2 Ga 7-3 Go 15 -4 3 11 12 17 _o Total

7 7-3 Rev .-6 17 .

:s
236

239

CO I

1 . I

co b'
I . r I

I i I

i.O

. J

:,

i; i-i a

n>

00

..

f>

o
L,J

CJ O

L-J 3 C3

r-j >-p* o r< t'j o

i'-l

OQ (-J
r J

HT* '^-t

M O ^0
*-> 11

ii

(-1I-J

(D

t- Cfi
--4

LTJ
* y

21

:."J

1-1 CO n "<

C-, (0

n
CM

tr1 I. .

o
. ,

n '. ,

'.

I
31

-i--

; , i

: '

H O O >1 it fj

ro rs

l-' C...

tfttflflH

ENGLSWOOD JUNIOR. HIGH SCHOOL Znglewood, Hew Jersey )ctober 21, 1965 IIAGIAL .'Ismi^UTION ~!o--s
Grade 8
o * -j - 1 )C

r-ir_s

?otal

Grand Total

3-2 He 3-3 Ha .j ~'~ 7 .'

LO

27'

> - "7 o t / ^ *,

J-ii :jo

JNGL2WOOD JUNIOR HIGH SCHOOL Znglewooti, :~ov7 Jersey October 21, 1965 HACIAL jISn Boys Grade 9
T\ *.T

Girls

Total

1;

'1 o

:; 11 3 9' 11
9

"7 15 20 20 15
1-3

Crane Total
25 2
! C

9-1 Be
o_~ o ./ o r1

~ /

10
_-

4 3 5
2

10 79
3

9-3 He y-4 3W 9-5 Mi 9-6 IIu 3-7 Ea

2 ' 30 2:

13 ,
-i
-

5 5

7 3

10 113

20 IS 17 20 15

9-3 :;u
9-9 ?o 3

- -, ., *w

10 11

10 12

30

*
-i

_; , '
301 r

, 0

UCC.

<I.L,

J.JO3

TO: FROHI:

Dr. Shedd Dan Friedman, Lincoln School Enrollments by Racial Distribution

CLASS NEGRO

OLt^e^f-A-^-t^_^

SUBJECT:

WHITE
10 ID 9 12 9 11 12 12 ^g?" 5 4

TOTAL

Pre-Kindergarten Wrs. Tarnower AW Wrs. Tarnower PW Wrs. Gunthorpe AW Wrs. Gunthorpe PW a Wrs. Marshall AW

9 1G 11 7 9 7 B J

19
20 20 19 18 18 20

Wrs. Warshall PW Wrs. Sullivan AW Wrs. Sullivan PW Special Education Wrs. Alia Wrs. WcKnight Wrs. Sher Uliss Wallace TOTAL - Lincoln School Wrs. Worey (Loubriel)

fora) / -iJzT V.
8
6 9 7
8

18_-

? 7 1

2-1 112 Whit8(5VAl90

DF: jn

10/21/65

i u D i i c .Jcnools
M^nglewood, New Jersey

Kcymona A.

Mein

Liberty Jcnooi 1 enemy Koaa

inncipal

LO 8-7108

October 21, 1965

Memorandum to DR. SHEDD: Her Racial Distribution

Attached is a list of enrollment as of Oct. 20, 1965 Nagro and white students, by grade and class.

Raymond A. Heim, Principal,

RAH/ma

.,-a.^^.
[ " 2B Ed. E?.dr.\-lc'3 > c?.?"!. (.Mr-'.'.) -rf * * Total....

!-.-,.,_

8 309

1 119

9 U28

88.8$ 72.2$ - - -"- " """*' *- *-

Ii B -

Jongs j Marleus (r-Irs..} .Rsacilju? ^nerria *t

Art - Walker, Charles

Su marrftge,

hArlo - Cfltod an SL> idnrs, Ful .o.n

'

Engleuuood Public School Census by School, Grade, And Race, October 22, 1965 PK

10

11

12

Sp.
38 27

Total
190 112

% __N

Lincoln W N Cleveland

152 85 67

11 116 79 37 92 30 62 51 43 8 70 51 19 110 68 42 62 12 50 61 41 20 81 45 36 115 59 56 75 20 55 53 43 10 66 34 32 107 67 40 59 18 41 54 42 12 68 35 33 104 57 47 75 22 53 72 57 15 52 35 17 105 69 36 49 12 37 71 51 20 53 29 24 281 170 111

286 153 133 281 164 117 301 182 119 260 147 113 281 269 159 174 121# 95 281 269 159 174 12} # 95

78 673 405 268 428 119 309 362 277 85 390 229 161 281 170 111

41.1

Ul N
Liberty

16 6 10 16 5 11

39.8

Ul N
Queries

72.2

Ul N
Roosevelt

23.5

W N
Engle St.

41.3

Ul N
Junior High

39.1

Ul N
Senior High

12 2 10

880 501 379 810 480 329

43.1

Ul N
TOTAL W N
%
N

152 85 67
44.1

329 203 126

38.3

314 166 148

47.1

309 156 153

49.5

288 162 126

43.8

303 171 132

43.6

278 .281 286 161 170 153 117 111 133 42.1

281 164 117

301 182 119 39.5

260 147 113

82 40 42
51.2

39.5 46.5 4 1 6 ..

43.5 43.1 35.3

* 40.6 4014 2293 1720 * 4. 29 42.9

*other jn/10/25/65

Engleiuood Public School Census by School, Grade, And Race, October 22, 1965 School Lincoln Ul N Cleveland
PK

10

11

12

Sp.

Total

_N
152 85 67

38 27 11

190 112 78

41.1

Ul N

116 79 37 92 30 62 51 43 8 70 51 19

110 68 42 62 12 50 61 41 20 81 45 36

115 59 56 75 20 55 53 43 10 66 34 32

107 67 40 59 18 41 54 42 12 68 35 33

104 57 47 75 22 53 72 57 15 52 35 17

105 69 36 49 12 37 71 51 20 53 29 24 281 170 111

286 153 133 281 164 117 301 182 119 260 147 113 281 269 159 174 121 . 95 I * 281 269 159 174 121 . 95 i * 43.1 35.3
*other

16 6 10 16 5 11

673 405 268 428 119 309 362 277 85 390 229 161 281 170 111

39.8

Liberty
Ul N

72.2

Quarles Ul N
Roosevelt

23.5

Ul N
Engle St.

41.3

Ul N
Junior High

39.1

Ul N
Senior High

12 2 10

880 501 379

43.1

Ul N
TOTAL W N 152 85 67

329 203 126

38.3

314 166 148

47.1

309 156 153

49.5

288 162 126

43.8

303 171 132

43.6

278 161 117 42.1

281 286 281 170 153 164 111 133 117 39.5 46.5 4.1.6

301 182 119 39.5

260 147 113 43.5

82 40 42
51.2

810 480 329 * 1 AD U _L HU fi 4014

2293 1720 I * 42.9 42.9

% N

44.1

jn/10/25/65


7
/a //

7
jWT tf J^L
_
e
y./ I/to

J5 fj^jj"
!*

:M.. //-' Li?" w\

-f*--

3EF

^
.
'&ULA

~&

.V

A!
2o

4- 7/ /

LJ^.

JzWa z.-_.
-

JL

/ _^i jti

VK Jt.

_k^
Z75-

_.^.^
_.._/xc^__

y/
f?5

j^^
/!'

7T

/'^iv
6L
LL

:r: L2L

i Lm/o
"7

//
7*

/f

^^
3AI
ZJS.S

, ^W2'--'.

MX-*'

4-|-|-t-

^bi^

V f\L

-?J^

yx^

/fl

fl

* ii? ^ 3O / & VJ7

.3

-f.4
-m
L(J^

-V

>^L

*[* 7^!o
t& I

7T
L/^

i .

DH

Engleuiood Public School Census by School, Grade, And Race, October 22, 1965 School Lincoln W N Cleveland W N PK 152 85 67

10

11

12

Sp. 38 27 11

Total %
JV 190 112 78 673 405 268 428 119 309 362 277 85 390 229 161

41.1

116 79 37 92

110 68 42 62 12 50 61 41

115 59 56 75 20 55 53 43 10 66 34 32

107 67 40 59 18 41 54 42 12 68 35 33

104 57 47 75 22

105 69 36 49 12 37 71 51 20 53

16 6 10 16 5 11

39.8

Liberty W N Queries

30
62 51 43 8 70 51 19

53 72 57 15 52
35 17

72.2

\a
N

Roosevelt
Ul N
Engle St. \H N

20 81 45
36

23.5

29
24

41.3

281 170 111

286 153 133 281 164 117 301 182 119 260 147 113 329 203 126 38.3 314 166 148 47.1 281 269 159 174 121 95 I * 281 269 159 174 12^ 95 43.1 35.3 12 2 10

281 170 111 880 501 379 810 480

39.1

Junior High
Ul N

43.1

Senior High Uf
N
TOTAL W N 152 85 B7

# 40.6
82 40 42 51.2 4014 2293 172} . 42.9

309 156
153 49.5

288 162 126 43.8

303 171 132

43.6

278 . 281 286 161 170 153 117 111 133 42.1

281 164 117

301 182 119 39.5

260 147 113 43.5

% N

44.1

39.5 46.5 41.6

4. 29

*other jn/10/25/65

///1/c.sUNITED STATES DISTRICT COURT (IN EQUITY) DISTRICT OF NEW JERSEY CIVIL ACTION NO. 847-63 GERTRUDE P. FULLER, et als., PLAINTIFFS and JE.xRY VOLPE, et als., INTERVENING PLAINTIFFS, -vsAUSTIN A. VOLK, et ais., DEFENDANTS ana FREDERICK M. RAUBINGER, INTERVENING DEFENDANT.

BRIEF ON BUHALF OF THE DEFENDANT, THE BOARD OF EDUCATION OF, THE CITY OF ENGLEWOOD, BERGEN COUNTY. SIDNEY DINCIN Attorney for defendant. The Board of Education of the City of Englewood, BERGEN COUNT7 16 West Palisade Avenue Englewood, New Jersey

STATEMENT OF FACTS

i j

The Court, by its letter of November 19, 1965, pro- ' i pounded three questions, and it will be the purpose of this brief to discuss these three questions.

A R G U M E N T POINT I.

WHETHER THE INTERVENING PLAINTIFFS IN VOLPE HAVE STANDING TO MAINTAIN THEIR CAUSE OF ACTION, OR WHETHER SAID CAUSE OF ACTION HAS BECOME MOOT OR IS PREMATURE.

The defendant. Board of Education, respectfully subraits that the cause of action has become moot as to the
s'

following intervening plaintiffs, to wit: KATHERINE VOLPE, his wife; his wife;

JERRY VOLPE and

LOUIS PUGACH and BEATRICE PUGACH

ALAN LASSER and JUDITH LASSER, his wife; OTTILIO SOL HANDLER and

D'ALLESIO and MARIE D'ALLESIO, his wife; LILLIAN HANDLER, his wife;

EUGENE F. CLEMENTS and MARJORIE

CLEi-iSNTS, his wife, by virtue of the fact that at the preft sent time, none of these parents have any children in the Englewood Public School System from grade one, to and including grade six.

As to the intervening plaintiffs, EDWARD BOBBINS and GLORIA ROBBINS, his wife, they have one child, ANDREA ROBBINS, in grade five in the Roosevelt School, and as to the intervening plaintiffs, LLOYD POLLARD and BLANCHE POLLARD, his wife, they have one child, LLOYD POLLARD, in grade five in the Quarles School. The Court of Appeals, in its decision of the case of Puller v. Volk 351 F 2d 323 at Page 329, stated as follows: "The plan itself, insofar as the intervening plaintiffs are concerned, involves only the sixth grade. The complaint and petition for intervention alleges only that the children aue students in the Englewood public school system, but does not allege the grades that they are in. Some may now be past the sixth grade, thereby rendering their action moot. Some may only be at the first or second grade level, thereby rendering their action premature." Therefore, certainly, s regards the Volpes, the action is moot because the Volpes moved from Englewood on or about the 29th day of January, 1965, and have no children in the Englewood Public School system at the present time. The case is moot as to the Pugachs since they

have no children in the Englewood Public School System at this time and the case is moot as to the Lassers 1acause they have no children in the Englewood Public School System at this time. The case is moot as to the D'Allesios be-

~cause~they~have~no~children~in the Englewood "Public School"

System at this time, and the case is moot as to the Handlers' because the only child that they have in the Englewood Public I School System, is enrolled in the Englewood Junior High School in the eighth grade, and the case is moot as to the Clements' i because the only children that they have in the Englewood Public School System are in classes above the sixth grade level. The question then resolves itself into whether the Pollards and the Robbins have standing because of the fact that the Robbins have a child in grade five at the Roosevelt School and the Pollards have a child in grade five at the Quarles School. The Board of Education submits that since the Court ! I of Appeals, in its decision stated that "some may be only at the first or second grade level, thereby rendering their action premature"; therefore, the Court must have intended

by inference that if any of these plaintiffs had children in the third, fourth or fifth grades, the action would not be premature. Therefore, in light of the decision < f the

fCourt of Appeals, this defendant, the Board of Education believes that the Robbins and the Pollards have standing to maintain their cause of action. 3

POINT II.

WHETHER THE INTERVENING PLAINTIFFS IN VOLPE SHOULD BE REQUIRED TO EXHAUST STATE ADMINISTRATIVE REMEDIES IN THE LIGHT OF BOOKER v BOARD OF EDUCATION, 45 N.J. 161. This defendant respectfully submits that the inter-

!
vening plaintiffs, Robbins and Pollard, should not be re-

i
quired to exhaust state administrative remedies in the light of Booker v Board of Education because this defendant believes that in the light of the decision of the Court of
i

Appeals, the intervening plaintiffs would gain nothing by j j pursuing this avenue of approach.

.POINT III. WHETHER THIS COURT SHOULD APPLY THE DOCTRINE OF ABSTENTION TO THE VOLPE LITIGATION IN ACCORDANCE WITH THE PRINCIPLES ENUNCIATED IN HARMAN V. FORSSENIUS, 380 US 528.

In Harraan v Forssenius, 380 US 528; 14 L ed 2d 50 U.S. Supreme Court, 1965, the GOUJt at 14 L ed 55 stated as follows: "At the outset, we are faced with the State's contention that the District Court should have stayed the proceedings until the courts of Virginia had been afforded a reasonable opportunity to pass on underlying issues of -4-

state law and to construe the statutes involved. We hold that the District Court did not abuse its discretion in refusing to postpone the exercise of its jurisdiction. In applying the Doctrine of Abstention, a federal district court is vested with discretion to decline to exercise or to postpone the exercise of its jurisdiction in deference to state court resolution of underlying issues to state law. Railroad Conun'n v Pullman Co, 312 US 496 85 L ed 971, 61 S Ct. 643.7 Where resolution of the federal constitutional question is dependent upon or may be materially altered by, the determination of an uncertain issue of state law, abstention may be proper in order to avoid unnecessary friction in federal-state Hiations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication. E.g., Railroad Comm'n v Pullman Co., supra. The doctrine, however, contemplates that deference to state' court adjudication only be made where the issues of state law is uncertain. Davis v Mann, 377 US 678, 690, 12 L ed 2d 609, 616 84 S Ct 1453; McNeese v Board of Education 373 US 668-673-674, 10 L ed 2d 622, 626 83 S Ct 1433; Chicago v Atchison, T & S.F.R. Co., 357 US 77 84 2 L ed 2d ' 1174, 1180, 78 S Ct 1063.8 If the state statute in question, although never interpreted by a state tribunal, is not j fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question, it is the duty of the federal court to exercise its properly invoked jurisdiction. Baggett v Bullitt, 377 | US 360, 375-379, 12 L ed 2d 377, 387-389, 84 S Ct 1316. Thus, 'recognition of the role of state courts as the final expositors of state law implies no disregard for the primacy of the federal judiciary in deciding questions of federal law. ' England v Louisiana State Board of Medical Examiners 375 US 411, 415-416, 11 L ed 440, 445, 84 S Ct 461."

Also, in the same case, the Courc at 14 L ed 2d 50 at Pages 56 and 57, stated as follows: "In addition to the clarity of Virginia statutes in issue, support for the District Court's refusal to stay the proceedings is found in the nature of the constitutional =-.5i-

deprivation alleged and the probable consequences of abstaining. Griffin v County School Board of Prince Edward County 377 US 218, 229 12 L ed 256, 264 84 S Ct 1226; Baggett v Bullitt 377 US 360, 375-379, 12 L ed 2d 377, 387-389 84 S Ct 1316. The District Court was faced with two class actions attacking a statutory scheme allegedly impairing the right to vote in violation of Art. 1, 2 and the Fourteenth, Seventeenth and Twenty-fourth Amendments. As this Court has stressed on numerous occasions, 'the right to vote freely for the candidate of one's choice is of thej essence of a democratic society and any restrictions on that right strike at the heart of representative government.' Reynolds v. Simms, 377 US 533, 555 12 L ed 2d 506, 523 84 S Ct 1362. The right is fundamental 'because preserva-: tive of all rights.' Yick Wo v Hopkins 118 US 356, 370 30 L ed 220 226 6, S Ct 1064. In appraising the motion toj stay proceedings, the District Court was thus faced with a! claimed impairment of the fundamental civil rights of a broad class of citizens. The motion was heard about two ,' months prior to the deadline for meeting the statutory requirements and just eight months before the 1964 general elections. Given the importance and immediacy of the problem, and the delay inherent in referring questions of state law to state tribunals, it is evident that the District Court did not abuse its discretion in refusing to abstain. Griffin v County School Board of Prince Edward County, 377 j US 218, 229 12 L ed 2d 256 2^64 84 S Ct 1226; Baggett v Bullitt 377 US 360, 375-379 12 L ed 2d 377, 387-389 84 S Ct 1316. In connection with the Harman case, the Board of Education respectfully calls the attention of the Court to| i the following casess England v Louisiana State Board of Medical Examiners 375 US 411, 11 L ed 440 ( US S Ct 1964)
i

and Griifin v County School Board of Prince Edward County 377 US 218, 12 L ed 2d 256 ( US S Ct 1964).

j
j I

In the England v Louisiana State Board of Medical Examiners case, the Court at 375 US 411 at Page 419, 11 --6--

L ed 2d 440 at Page 447 stated as follows: "But *we see no reason why a party, after unreservedly litigating his federal claims in the state courts, although not required to do so, should be allowed to ignore the adverse state decision and start all over again in the District Court. Such a rule would not only countenance an unnecessary increase in the length and cost of the litigation; It would also be a potential source of friction between the state and federal judiciaries. We implicitly rejected such a rule in Button, when we stated that a party elects to forgo s right to return to the District Court by a decision'to seek a complete and final adjudication of his rights in the state courts.' We now explicitly hold that if a party, freely and without reservations, submits his federal claims for a ! decision by the state courts, litigates them there, and has them decided there, thenwhether or not he seeks direct review of the state decision in this Courthe has elected to forgo his right to return to the District Court."
i

In the Griffin v County School Board of Prince Edward County 377 US 218, 12 L ed 2d 256, 84 S Ct 1226, 12 L ed 2d 256, at Pages 264 and 265, the Court stated as follows: "Since 1959 all Virginia counties have had the benefits of public schools, but one: Prince Edward. However, there is no rule that counties, as counties, must be treated alike;/the Equal Protection Clause relates to equal protection of the laws 'between persons as such rather than between areas.' Salsburg v Maryland 346 US 545 551 98 L ed 281, 288 74 S ct 280 ( 9 4 . Indeed, showing that different persons are treated 15) differently is not enough, without more, to show a denial of i equal protection. Kotch v Board of River Port Pilot Comm'nrs. 330 US 552, 556 91 L ed 1093, 1096 67 S ct 910 ( 9 7 . It is 14) the circumstances of each case which govern. Skinner v. Oklahoma ex rel. Williamson 316, US 535, 539-540, 86 L ed 1655, 1659 62'Set. 1110 ( 9 2 . 14)"

I
Therefore, as regards the Doctrine of Abstention, in the instant case, does the fact that there are just two plaintiffs constitute a broad class of citizens within the meaning I of the Harman case? The Board respectfully submits _that _the ' _ -7-

two plaintiffs in the instant case do not come within the meaning of the Barman case. However, if the Court abstains,! | the plaintiffs will have no place to go because of the iI fact that they, of their own volition abandoned their action i in the state courts. However, since all of the original parties to the action before this Court, with the exception ; i of the Attorney General, agreed that this Court should decide the issue if the Court decides that it has jurisdiction, i then it is the belief of this defendant, the Board of Education, that this Court should decide the matter on the merits.

Respectfully submitted, r-

SIDNEY DINC3 Attorney fof/the Board of Education of the City of Englewood Bergen County.

LIBERTY SCHOOL PTA BUILDmG NEEDS COMMITTEE 1665 REPORT

This committee concurs with the position taken by the Liberty Educational Needs Committee and the PTA Council Educational Needs Committee - that our most serious problem, racial imbalance, must be corrected by the start of the 1966-67 school year. We are aware that any plan to implement this objective will probably require that Liberty School either be abandoned or utilized in a different way or for different class combinations than at present. Therefore, we believe it impractical fo? us to attempt to make specific building needs recommendations when we do not know specifically how the building will be expected to function beyond the present year, at least for the near future. However, we are making the general recommendation that the elimination [ of racial imbalance be planned so that the Board oi Education Budget for the 11II 1966-67 school year includes whatever expenses for classroom alterations, etc! f may be needed to carry out the adjustments necessary to correct racial imbalance. Respectfully submitted, Fyron Baerf Chairman Mrs, Alice Pueschner John Wilson Mrs, Donald L0 Gregory

SCHOOL PTA SDOCATIOM&L NEEDS COMMITTEE' REPORT " It Is recommended that a full time guidance counselor or equivalent be employed at Liberty for this current school year. In our opinion, such a counselor is urgently needed now to deal with special problems at Liberty, to work with teachers and parents, to assist in referrals, and to handle special problems as they arise We also believe that the school system needs a second psychologist lit the Division of Pupil services. However^ the committee recognizes that by far the most pressing and serious educational he jd 6 the need to elTminate the"racial imbalan'ce at this school. Attention has been called to this problem for many years. As of yet", no concrete plan or time schedule has been adopted for solving this urgent problem. Last year the Liberty PTA stated, "Liberty school is a defacto segregated school and the education of all the children in it is therefore affected. The PTA wants this situation remedied and we are not going to sit patiently by awaiting action." Since that time other factors have made the need for action even more imperative, if this is possible In the 1-1 st year, the Negro pupil percentage at Liberty has Jumped to over 7 ^ 2 . The ratio of Negro to white pupils at Liberty is now over 3i times higher than that at any other elementary school here. (Last year it was less than 2 times higher.) | Also in the last year, the N.J. Supreme Court historic Plainfield decision ruled that educational authorities are responsible for the correction of substanclal racial imbalance even though it has not reached the standard of all Negro or nearly all Negro. It is our belief that there can be no further delays on this matter. The welfare of our children Is at stake A solution should be implimented by September 1966 0 We therefore urge that the PTA Council Educational Needs Committee and the PTA Council adopt and especially highlight the following recommendation! THE ELIMINATION 0? RACIAL IMBALANCE SHOULD RECIEVE IMMEDIATE ATTENTION. CKILDfliSN AT LIBERTY SHOULD NOT BE SUBJECTED TO ANOTHER YEAR 0? THIS HARMFUL CONDITION. THE CORRECTION 0? RACIAL IMBALANCE SHOULD NOT BE DELAYED AN ADDITIONAL SCHOOL YEAR 3Y 3EING DEPENDENT ON LONG RANG;:; SCHOOL CONSTRUCTION

&'; .C X/ _iI1'J-~II i

LI. Barnco
Mrs. v'i f^iai.:. Joim.jon

Mrs. Oscar Mrs. Davil Hinton Mrs. Gladys Rcoinsor: