MAP 4

Suggested DistrictsFor

The Middle Schools

I

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 Englew«od res-

idents 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 per-

sonnel. 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 educa-

tional 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 ORGANIZATIONPROVIDES THE OPPORTUNITY FOR AN IMPROVED EDU-CATIONAL PROGRAM.

If the continuous intellectual and social developmentof every child is to become a meaningful goal in Americaneducation, we must continually re-examine traditional ap-proaches to learning. Although the self-contained classroomstill has many strengths, the restriction which it places onprovision for individual differences has caused educators toquestion its importance to a modern educational program.Two new approaches -- the non-graded concept and teamteaching -- are being examined as possible improvementsover traditional grade and classroom organization. Theplan proposed in this report provides for flexibility to usethe most appropriate aspects of all three approaches andhas the further advantage of providing for specialized teach-ers and facilities at an earlier period in the child's totaleducational experience.

The incorporation of pre-kindergarten into the regularinstructional program and the establishment of three PK-3elementary centers will support the development of a non-graded and continuous learning experience in the early yearsof life. The middle school for grades 4-8 will complementthis developmental experience of the early years by provid-ing the opportunity for specialized learning and team teach-ing in the upper elementary years. The comprehensivesenior high school for grades 9-12 will provide the specializedand general competencies of a modern vocational training pro-gram and an individualized academic program for the college-bound student. Englewood's willingness to move in the direc-tion of an educational program of this type is evidenced bysuch innovations as the team teaching program at Engle StreetSchool and the curriculum revisions proposed by the Engle-wood School Development Project, The organizational planrecommended in this study is designed to encourage the de-velopment of techniques and projects which will lead to animproved instructional program in Englewood.

- 15 -

2. THE RECOMMENDED PLAN PROVIDES FLEXIBILITYFOR LONG-RANGE POPULATION GROWTH.

At present, only the Dwight Morrow and Clevelandsites provide sufficient space for major school expansion.With 34 and 6 acres respectively in these two sites, itappears that major expansion of the school plant at eithersite could, at some future time, seriously restrict schoolrecreation areas. Furthermore, both sites are locatedin Ward 3, the section of the city least likely to show asizable increase in school enrollment. Hence, the acqui-sition of a large site in Allison Park and the constructionof a new 4-8 middle school will enhance the opportunityfor adjusting to long-range growth in school enrollments.

Allison Park presents many possibilities for a. highlydesirable school site, and it seems quite likely that a schoolcould be erected on a part of the park set back from the roadwhere it would not disrupt the operation of the developedpark area or affect the beauty of the adjacent residentialarea. Should obtaining a large site in Allison Park itselfprove impossible, the school system should consider ac-quiring a smaller acreage adjacent to the park on which tobuild a school. The park land could then provide the school'srecreational areas.

3. THE PLAN PROVIDES FOR A RACIALLY INTEGRATEDLEARNING EXPERIENCE FOR ALL STUDENTS.

Englewood's present school organization and district-ing pattern recognizes the importance of racially integratedschool enrollments. Recent population shifts, however,make it advisable to implement a districting pattern similarto that outlined in the recommended plan of school organiza-tion. These recommended districts should assure a reason-able degree of both racial and socio-economic integrationthroughout the projection period included in this study.Moreover, should unanticipated population shifts occur,considerable flexibility exists for adjusting district linesto maintain racially balanced enrollments, particularly atthe middle school level.

- 16 -

While the prospects for maintaining a racially in-tegrated school enrollment in Englewood are good, thefact that the present public school enrollment is 42 per-cent Negro suggests a need for seeking the cooperationof numerous leaders and groups. Continual encourage-ment must be given to the development of racially inte-grated residential patterns. This appears to be the bestway of preventing extreme racial concentrations in thepublic schools. In addition, local public school author-ities should explore possible opportunities for engagingin cooperative efforts with surrounding communities andlocal non-public schools as a means of assuring both asocio-economic and racial integration in school enroll-ments. Expansion of the Bergen County student exchangeprogram and the acceptance of tuition students into theEnglewood schools are two possibilities for accomplishingthis end.

The public school itself will play a most importantrole in the maintenance of a racially integrated schoolsystem. Realization of the educational advantages im-plicit in the recommended plan of school organizationwill add significantly to the general attractiveness ofEnglewood. The development of a non-graded learningexperience in the early years of schooling and the pro-vision of specialized facilities and personnel in the upperelementary grades are features of the recommended planwhich can serve to anchor people to the community, Ageneral extension and intensification of present effortsto improve the public schools in Englewood will clearlyinfluence the preservation of a racially integrated learn-ing 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 respon-

sible interests in the community, the Board should make appropriate

modifications in the recommendations and then set in motion the dissem-

ination and implementation of its own long-range plans. This dissemina-

tion effort is of crucial importance. Achievement of the educational values

inherent in the recommended form of school organization, namely, the

facilitation of an improved educational program, the flexibility for adjust-

ing 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: Robert L. Carter

He: Her v. Yol

1. I have gone over your ir.enjorer.du.- erread the questions the Court asked us to be premeet. I think that you have answered all of t'r.tions very well, except for the last two. I dcthat Point III answers as to what the jurisdictcourt belcw was and of what grant of authorityhave. It seems to me that you have begged thenor have you answered, specifically, what reliabe granted.

I an gcing to havein the library attempting to catch up with youand II of your memorandum. We will have to ta'rout to have some discussion of this. 1 will beoffice after the 2?th, until June 1. ~ note t'rto be away frcE June 1 until July 1. That -earhave to

£, We nave received a" oraersolidatlon of the removal cases ir. the Tour:There is still pending the getting togetheron the appeals in the state courts or. the d=cases. Is there anything that the studentsto be working with us this su-~er csr. dc toup either cr bcth of these projects'?

IN THE

Supreme Court of the United StatesOCTOBEB TZBM, 1963

No. 865, MISCEIXANEOUS

FREDERICK M. RAUBINGEK, COMMISSIONER OFEDUCATION OF THE STATE OF NEW JERSEYand THE STATE BOARD OF EDUCATION OF THESTATE OF NEW JERSEY,

Petitioners,vs.

ANTHONY T. AUOELLI, JUDGE, UNITED STATESDISTRICT COURT, DISTRICT OF NEW JERSEY,

Respondent.

RESPONSE TO MOTION FOR LEAVE TO FILEPETITION FOR WRIT OF PROHIBITION, ANDREASONS 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 1

Reasons for Denying the \Vrit S

1. The case below, Fuller v. Fott- (Civi l Xo. S47-63*raises a substantial issue of the violation ofFederal Constitutional Eights S

2. The Federal District Court has jurisdiction tohear this mat ter 15

3. It has not been demonstrated that the DistrictCourt lacks jurisdiction nor that the applicant hasno other remedy 17

APPENDIX :

A. Complaint la

B. Order denying Leave to Appeal 5a

C. Decision of Superior Court of New Jersey 7s

D. Order Reinstating Appeal and Marking VacatingOrder of Dismissal . . . Ha

CASES CITED

Abrams v. McGokey, C. A. X. T., 195? '360 F. 'Id. 892 . . . It?

Balobnn v. Rubin, New York Law Journal , Sept. 11,1963 12

Bell v. School City of Gnry. 213 F. Supp. ?19 (K. D.Indiana, 1963-Jan. 29. 1963-U. S. Dist. Ct.) . . 9

Briggs v. Elliott, D. C. C. D. S. C. 13-2 F. Supp. 776 . . 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

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. Free-man, 171 F. 2d 702 . 15

Dyer v. Kazukisa, 138 Fed. Supp. 220 17

Ermentrout T. Commonwealth Oil Co., 220 F. 2d 527 ... 16

Evans v. Buchanan, 207 F. Supp. 820 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 15

Hague v. Committee for Industrial Organization, 307D. 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. Ed252, 37 L. R. A. (X. S.) 392

Holland v. Board of Public Instructions (Fla.), 258F. 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) 16

In Re Mmr, 254 U. S. 522, 41 S. Ct. 185, 65 L. Ed. 383 . . 18

Myerson v. Samuel, 74 F. Supp. 315 15

On.'.V v. Oklahoma Cita. 120 F. 2d 661 .

Enmero v. TTVi?A-/V«. 226 F. 2d 399 . .

UNITED STATES CONSTITUTION CITED

Fourteenth Amendment

RULES CITED

Rule 30. Rev ised R u l e s of Supreme Co;::;

STATUTES CITED

TEXT CITED

15

17

14

19

^

STATEMENT

In October, 1963, plaintiffs filed a complaint in the UnitedStates District Court to enjoin officials of the City of Engle-wood, New Jersey, from expending funds for the purposeof implementing a certain plan which is set forth infra.Said plaintiffs alleged that the plan called for school as-signment on the basis of race, excluded children from theirregular neighborhood schools on the basis of race, discrim-inated against certain students by giving a choice to somewhich was denied to others and called for preferent ial treat-ment on the basis of race. Subsequently, Frederick M.Raubinger (the applicant here seeking the Writ of Prohibi-tion) moved to intervene as a party defendant as did theEnglewood Board of Education. At the same t ime certainindividuals, Volpe et als., moved to intervene as partiesplaintiff. At the same time, Raubinger filed a motion todismiss. All applicants were permitted to intervene andthe motion to dismiss was denied. The complaint of Volpe,et als., the intervening plaintiffs, alleged that the suit in-volved rights granted to the intervening p la in t i f f s by theFourteenth Amendment of the United States Constitutionand further alleged that as a result of the plan in issuechildren of these intervening p la in t i f f s were no longer per-mitted to attend their neighborhood schools and were ex-cluded from said schools because of race. Said interveningcomplaint fur ther alleged that said plan therefore consti-tuted a violation of the rights of these intervening plain-tiffs and their children which are granted to them by theFourteenth 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 denialof the motion to dismiss which was denied. A copy of saidorder is attached hereto as Appendix B.

The Fuller plaintiffs then filed a motion for SummaryJudgment, the hearing of which was adjourned by Ran-

binger because be had filed an application for a Writ ofProhibition with tbe Circuit Court of Appeals which ap-plication was denied. He then filed this present application.Subsequently other-named intervening defendant? werepermitted to intervene.

The basis of Raubinger's request for this extraordinarywrit is that the plaintiffs have started an action in the StateCourts and therefore the Federal District Court does nothave jurisdiction over this controversy.

It is most significant that although plaintiffs did inst i tu tesuit in the State Courts no decision was ever rendered onthe merits.

Tbe underlying facts are as follows:The complaint below alleges that the plaintiffs are citi-

zens of the U. S. residing in Engiewood, New Jersey, andare taxpayers in Englewood, New Jersey. The defendantsin the complaint are the Board of School Estimate and theCity of Englewood, N>w Jersey, and the Board of Educa-tion. It was alleged in tbe complaint that tbe Board ofSchool Estimate has been directed by the City Board ofEducation to raise the sum of $66,500.00 from public fund?to finance a plan by which the existing school system wouldbe changed. Plaintiffs asserted in that complaint tha t suchan appropriation and expenditure of money would be il-legal, unlawful and unconsti tutional. Plaintiffs demandedthat the court below so adjudica te and restrain defendantsfrom further action in tbe matter.

Prior to tbe filing of the above complaint, and on July 1.1963, Frederick M. Raubinger, State Commissioner of Edu-cation of XewTfersey rendered a decision setting fo r th thatcertain petitions were filed by parents on behalf of theirchildren charging the Englewood Board of Education withmaintaining racially segregated public schools and withrefusal to implement plans to eliminate patterns of racialsegregation alleged to exist in the public schools. A thirdgroup of petitioners (Volpe et al.) were allowed to inter-vene with the above petit ioners. The Volpe petitioners ad-vocated the maintenance of the neighborhood school policy.

further claiming that the Enek'.vood B'l.V-i of ^d^c-oTkwas 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 :bthe Commissioner of Educa t ion lacked j u r i s t i c : : :-r. ;-v-these parties, was granted, leaving tb-? Ensie»-o-: ". Bo.-.:of Education as sole respondent . Tb~ Commiss ions: :o-:Tthat there were five e lementary 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-- l ines :-o;j:r-v"r:the school a t tendance distr ict for Lincoln >cb-:-o: b a d ;. : .--ously been approved by the Commission^;-.

It is most important to note thst tb-.- Commissioner dtermined that there was no ev idence to supr-or' :-. ?b?.;-jof intentional racial segregation by respondent, ibv .'::inissicmer slated thai it is apparei i ; :bat Tb-' cor.:-er-tr;i:i-,"of pupils f rom one race resul t s iron; p a t t e r n s of bousi::The Commissioner did noi dispu:o thai raue::.:ior;;0 oppotunit ies were equal regardk-ss of ?cboo". :i::•;-::.:.-;-,i ::; :-:::of nu-asurable objective c r i t e r i a . He ' J i rvOtv i i ib-; Er.c.wood Board of E d u c a t i o n , bowt-vor .

1. to fo rmula te 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 Vginning 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-;-:-;r7vdas the July _? tb P lan ; tvhiob would cbarce :"!;-; o x i ^ : - ;school a:it?uclauce fy? ; t -n i in :bo Ci ty of Engk'-vvoo.:. XoJersev.

H r'

order to comply with the directive of CommissionerFrederick M. Kaubinger, New Jersey State Departmentof Education, dated July 1, 1963, which directive directsthe Englewood Board of Education to do the followingthings.

1. To formulate a plan or plans to reduce the extremeconcentration of pupils of the negro race in theLincoln School consistent with the principles andfindings enunciated in this decision;

2. To submit such plan or plans to the Commissionerof Education for approval on or before August 1,1963;

3. To put a plan as approved, into effect at the begin-ning 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 followingplan, to take effect as of the opening of school inSeptember, 1963, or as soon thereafter as buildingrenovations can be effected.

1. To establish at the former Junior High School build-ing at 11 Engle Street, a city-wide sixth grade schoolto which the Board assigns all sixth grade pupilsof the Englewood Public Schools.

"2. To assign all pupils of grades one through five resid-ing in the Lincoln School attendance district to theCleveland, Quarlcs and Roosevelt Schools, suchassignment tqjoe determined by the Superintendenton the basis of the following criteria:

A. define attendance districts so that children of theLincoln School district will be assigned asnearly as possible to the school nearest theirhomes,

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

provided that it is adminis: rat ion allyeducationally practicable to do so.

3. A? a prerequisi te to the establishment of ;::-wide sixth grade school referred to in Fa ra(1) above, either of the following two condmust occur ;A. 125 or more present student? of Lir.:o;r.

must not elect to remain for the lr-63-64 TOLincoln School

orB. The number of t r ans fe r s from Lincoln

will result in class load? in Quaries. 'ri-.-vor Roosevelt Schools which, ir, the op;r:the Board of Educat ion, is educatic:':";".'desirable.

4. To assign to Lincoln School ali children of Kitrarttn age residing; in the present Lincoln Sdistr ic t .

5. To t r ans fe r the central administrative of:oc?Board of Education to the Lincoln School.

6. To instruct the Superintendent to proceed imately witb-al! necessary arrangements, - o t i r e

<• procedures consistent with the iaws of ;he S: •Xew Jersey to esecute these directives.

PROVIDED T H A T ;The plan meets the requirements of th? ;aw ?.:;

the Board's At to rney gives a?suran;e of iiTinninBoard members and the Superintendentpayers ' sui ts regarding ihe e x p e n d i t u r e ofmoneys 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 tha t expressly

1. The plan is f o r m u l a t e d to deal wnh racial sitein order to comply with Commissioner Ks'.iHdirective.

f r o IT. t a x -

2. The plan effects pupils from the entire city ofEnglewood because of the city-wide sixth grade.

3. The Plan provides for assignment of all studentsfrom Lincoln School grades one through five toCleveland, Quarles and Roosevelt Schools.

4- The Plan permits children whose parents wish themto remain at Lincoln School to remain there.

5. The city-wide sixth grade goes into effect on theelection of students from one area (Lincoln School)effecting the students from all five areas, yet thestudents from all districts other than Lincoln Schooldistrict have no election or choice.

6. Kindergarten children residing in Lincoln Schoolarea will attend Lincoln School.

7. The plan is conditioned on the proviso that it meetsthe requirements of the law.

Pursuant to the plan, letters were sent only to parentsof students of the predominantly negro Lincoln School,giving them the choice of remaining at or leaving LincolnSchool—giving them the choice of whether or not the plangoes into effect, excluding any election by the similarlysituated residents of all other districts.

Appended to the July 29th Plan was a statement of theminimum estimated cost and expenditure required toimplement the plan, which said estimate amounted to$123,000.00. On August 1, 1963, tbe Board of Education ofEnglewood, Xew Jersey, adopted a resolution that theamount of $66,500.00 would be required to partially imple-ment the said plan, and further resolved that the aboveresolution be delivered to each^neniber of the Board ofSchool Estimate of the City of Englewood, X'ew Jersey.

The Volpe petitioners appealed the decision of the Com-missioner Raubinger to the State Board of Education,which Board subsequently affirmed Commissioner Raubing-er's decision. Prior to that appeal being heard suit wasstarted in the Superior Court, Chancery Division entitledVolpe v. Perry which was heard on August S, 1963 by Judge

Donald G-. Collester. In tha t case plaintiff (Volpe; sough:to enjoin the Board of School Estimate and the City ofEnglewood from expending funds to implement the aboveplan. Said application was denied for the reason tLatplaintiffs had not exhausted their admin i s t r a t i ve remedies.

On August H. 1963, the plaintiffs he-rein argued in tbeSuperior Court Law Division, Bergen County, before JudgeGordon H. Brown, temporarily assigned, wherein plainrirTtaxpayers sought to enjoin tin- Board of School Estimate-and the City of Englewood from appropriating and or ex-pending public funds to implement the July 29th Plan andthat such proposed appropriation and expenditure be ad-judged illegal, unlawful and unconstitutional.

At that hearing the Attorney General was permitted tointervene on behalf of the Commissioner of Education, andthe Board of Education was also permitted to intervene a~parties defendant. As a result of the hearing the plaintiff ; 'action was dismissed wi thout a t r i a l on the merit? and The-relief sought was denied. Said Decision is attached hc-reioas Appendix C. That dismissal has been appealed t o the-Superior Court of Xew Jersey, Appel la te Division, and isstill pending there, and has been marked "Hold" pendingdetermination in the Federal Couris. Said order is anae-bee:hereto as Appendix D.

The plaintiffs were not in any way effected prior TO :;:-;draft ing of the July 2Ptb Plan for. prior to 'bat 'irne. the re-was no requirement for tbe- expendi ture of rubiio fiir.eis.Therefore, prior TO the Commissioner rendering bis tloo:-sion ana the subsequent adopt ion of the plan, the pla int i f fsas taxpayers were not adverse ly effected.

The th rus t of the ins tan t complaint is acaii:s; tbe apyTO-priation and expend i tu re of money ty tbe City of E n c J e -wood and the Board of Se-boui Es t ima te which were dis-missed as defendants or: m o t i o n in tbe bear ings b e f o r eCommissioner Raubmc^' by tbe Commissioner for lack ofJurisdiction. Tbus nei ther the- ' j - l amt i f f s nor the- cric-ina:defendants (.the City of Englewood and tbe Board ofSchool Estimate) were parlies to tbe bearings held byCommissioner Raubinger.

REASONS FOR DENYING THE WRIT

1. The case below raises a substantial issue of the viola-tion of Federal Constitutional Rights.

Commissioner Raubinger found that there was no in t en -tional segregation by race by the Englewood Board of Edu-cation. He did find that Lincoln School was 96.0 pereomnegro. He also found that "this concentration of pupils ofone race results from patterns of housing and the operationof other socio-economic forces. . . ' ' The Commissioner alsoconceded that such "housing and non-school problems arenot the responsibility of the Board, nor does it have anycontrol over these housing and non-school problems." TheCommissioner also found that the Englewood school a^sien-ment was based on neighborhood schools, the boundariesgoverning which were previously approved by him. Never-theless, he directed the Englewood Board of Education '" 'Toformulate a plan or plans to reduce the extreme concentra-tion of pupils of the negro race in the Lincoln School."

The basis of the present complaint originated when com-plaints were made before Commissioner Raubinger dealingwith the Englewood School System. These complaints weremade by parents of negro school children who desired theirchildren to be admitted to schools outside of their area.The complaints could only be classified as school segrega-tion complaints. The present action pending before theUnited States District Court will be determined only af tera consideration of the line of cases which have been decidedsince Brown v. Board of Education. 347 U. S. 483. 7-5- S. Or.6S6, 98 L. Ed. 873. The Brown case and cases following itd^llt wit}) negroes seeking admission to public schools ona non-segregated basis. It was charged that negroes whohad been denied entrance to schools solely on the basis ofrace had been denied equal protection under the FourteenthAmendment to the Federal Constitution. The Brown deci-sion did decide that exclusion from school solelv on the basis

of race violates the equal proM-cnoi dteenth Amendment . The cour: slse heldBroun decision that where a =t?.:o ba> •vide an opportunity for an fd^c i t i o^ :nsuch 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 th is exclusion v i o i a u s the •; ".:•:.'. ithe Four tee-nth Amendment of :L-- I':;*:ut ion

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 ua t i on eo:::; le:eiy -...arailed :Commissioner Raubinger v^as called u v oBell case there was no inteijiioca! segr->g;in the 5r'/ case as well as in :be insianSchool 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 Courdecide in tbe B>'ii ease ths: i: found :p la in t i f f s ' posi t ion that tbe de:'e:".:i;:-r.;. v--of Education, had tbe arcrmative dr.iy ;in various sebools under its j u r i sd i^ : l e :residence of s tudents 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 tba t no consti ; ; : ; ionai rich;? worstudents were eon:pelied to ?.t:ei-d t::e s-.in which tbey live-

In the ease of Evans v. Bit,-t>j»j». 20Court stated:

"TThen i n t e r p r e t i n g ;be eqna i ptbe Brown case, "be Supren:-: Co-jState raav not der,v anv r-ersen o^

10

It was the determination in the case of Evans v. Buchananthat discrimination is forbidden but integration is notcompelled-

So too in the case of Briggs v. Elliott, D. C. C. D. S. C. 132F. Supp. 776 in construing the 1954 Brown decision at page777 the Court held that it has not been decided that theStates must mis persons of different races in the schoolsor must deprive them of the right of choosing the schoolsthey attend. What it has decided and all that it has decidedis that a State may not deny to any person on account ofrace the right to attend any school that it maintains. TheFourteenth Amendment is a limitation upon the exerciseof power by the State or State agencies, not a limitationupon 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 betreated simply as another school child, without regard tohis race or color, and the fact that he was a negro did notvest him with a right to attend a school located in a districtin which he did not reside when that geographical rule wasbeing applied to all children alike.

Neither segregation nor discrimination are shown merelybecause there are more negro students in one section thananother. Sealy v. Department of Public Instruction. ~25'2F. 2d 898 (3rd Cir. 1958) Cert. Den. 365 U. §. 975 (195S).

In the instant case. Commissioner Raubinger has heldthat the mere fact that these students in Lincoln School arenegro has vested them with the right to attend schools out-side the Lincoln School district, even though the neighbor-hood school geographical rule has been applied to allchildren alike. In short, merely because of their color, thecolored students of Lincoln School have been givenpreferential treatment, causing a change in the approvedEnglewood School attendance system. Because of thispreferential treatment, other students are excluded fromattending the sixth grade they would normally attend,purely because of race. Thus the Fourteenth Amendment

i;

of the Federal Cons t i tu t ion has been v io la ted bypreferential t reatment to one g roup en :he t a s i s •:and excluding the p l a i n t i f f ? f rom their norrris.: s:h:-the basis of race. In the- ins tant case, the studer.::the Lincoln School were i:iven tho i r choice- un.hir th29tb Plan of a t t e n d i n g Queries. Roosevelt or ClfSchool. Why is it t h a t the s t u d e n t s fron: Quar ies . Cleor Roosevelt School do no; \:>:-i t he i r choice-1 Is "h i sdenial of equality ot' choice and t h e r e f o r e a den ia : •:-:protection* The s tuden t - fron: Lincoln Sjiioc-! aregranted certain advan tages iha; other sfueic-nts si:situated do not have. The basis of this d i s t i nc t ion ~.--=Where children were once treated alike by eoinc tcin their neighborhood, the pror-osal is now to t r e^ 'd i f ferent ly ; and why' Purely because of color. This inescapable. But th i s inescapable fsci is sd*affecting other children. Children throughout tne ',Englewood who normal ly a t t e n d e d the s ix th g r adeschool nearest thei r residence mus t now -rave: ?. :distance to the Engle Street School. They n:us: no -school in the heart of the business d is t r ic t causinc ;risk and danger to t h e i r person. Because of th is "re:being siven for color . be:ause of tin? exclusionnormally at tended s ix th grades , added ex]"-:n.:::-.:public funds will be imvosed upon the t a x r a y e rminimum cost of .*!2?.000.00 mere ly to imr ien iechange.

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 s i t u a t i o n involving an all n e g r o school ir. ares ident ia l ai'ea \v:;r. a vl'.i'.riro :i:ai t ;n? vioiatv,1 : :n-.protect ion clause of the For,! ;co?::h Ainc-ndinen: cf :iera! C o n s t i t u t i o n , 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 Four teen th An:e;;d:nen: a: race 523 as :",

"nor (shall any State) deny any person within itsjurisdiction the equal protection of the laws."

This clause does not contemplate compelling action, ratherit :-; a prohibition prevontinp: states from applying the i ri,;w- uneijiiailr.

The cour t went on in state at page 824:

"In effect counsel is asking the states to intention-al ly gerrymander districts which may be rational whenvk-wcd by acceptable n on discriminatory c r i t e r i a . . . . "

In the instant case the equal protection clause has beenviolated as to all Englewood children from the four dis-tricts other than Lincoln School, because the former arecompletely disregarded. The permissive t ransfer policycannot be granted to only one out of five districts. Thenegro child from the Liberty School District should not bedeprived of the privilege granted to the negro child of theLincoln School District. If concentration of any one groupis "segregation" (and hence a violation), then the Jewish,Italian, Polish, Irish or Chinese, etc., child should be givenequal privilege to transfer. As a result of CommissionerRaubinger's decision and approval, we now have twostandards of school attendance in Englewood, in effect onefor negro students and one for white students.

One for negro students; i.e., since the Lincoln Schooldistrict is predominantly negro, they have the privilege ofchoosing any one of three schools, which is a form of openenrollment; one for white students who reside in those otherthree .school districts who must attend the school in theirneighborhood. He has *t up two different education stand-ards because of color and race, which is precisely whatBrown v. Board of Education prohibited.

The case of Bahibcn v. Rubin, reported in the New YorkLaw Journal on September 11, 1963, decided by Mr. Jus-tice Baker sitting in the Supreme Court, Kings County,Special Term, part 1, is quite similar to the facts in theinstant case. In the Balaban case a new Junior High SchoolX~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 ibrirneighborhood 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. Dur -ing the construction of the now school. Xo 275. or.f Bi:- . : -nick was given the responsibil i ty of drawing' a zr.r.r forSchool Xo. 275. His proposed zone wa? rfoo-iir/.c-nor'i bythe School Board but l a t e r rejected by the A??i - :an- S u -per in tendent of Schools for two reason?:

1. It was not centrally located.2. It fa i led to consider the undesirable "d~ fac to ;?£-

rogat ion" of negro and Puer to Ric'.n childr^:: tha :would obtain, which would be 52 por e-:iit r.eero. 34per cent Puer to Rican and 14 per et-nt whi t -? ,whereas under the school plan nr.ai'iv approved ti>:-percentages would be 35.'2 per cent necro. ?3.6 p-?rcent Puerto Rican and 31.2 per cent white.

The court in that opinion stated;

" Xo person shall be refused admission ir::oexcluded f rom any public school in tbo Stiiio oYork on account of race, creed, color , or rorigin.' '

The court held :

"The inc lus ion of pe t i t i one r? ' ch i ld ren in :::o

u u

from other schools to which they might have been as-signed upon a lawful basis was violative of the spiritand intent of the statute."

The opinion proceeds at a further point:

"Respondents urge that the history of EducationLaw, Sec. 3201 demonstrates that it is an anti-discrimi-nation statute intended to prohibit the segregation ofminority groups in the public schools. Whatever mayhave been the factors which impelled its enactment,the statute by its very terms proscribes exclusion frompublic schools of any child by reason of race, creed,color or national origin."

As in the Balaban case Englewood had an approved sys-tem of assigning sixth grade students to their local neigh-borhood schools. As in the Balaban case these sixth gradestudents are being excluded from those sixth grades byreason of racial factors, that is, undoubtedly racial balancewas the compelling reason for rejection of the neighbor-hood sixth grade system ; unquestionably racial compositionor balance was material to the determination of the Eugle-wood Board and of Commissioner Raubinger's decision.In fact this is expressed by the very language of the JuJy29th Plan, and Commissioner Raubinger's decision; i.e.,

1. "To foAiulate a plan or plans to reduce the ex-treme concentration of pupils of the negro race inthe Lincoln School.. .. "

and for that reason the Plan proceeds to exclude thesepupils from their normally attended neighborhood sixthgrades. Therefore, the inclusion of these children in thecity-wide sixth grade upon the basis of race and their con-sequent exclusion from their traditional neighborhoodschool and schools to which they might have been assignedon a lawful basis was in violation of the spirit and intent

16

of the equal protection clause of the r. ouri-eLt:: An:ment as interpreted by the Brown decision and ;ubs~qdecisions which proscribe exclusion iron: public sch :••:•!any child or children by reason of race, creri. cole-national origin.

2. The Federal District Cour: Has Jurisdic;i:i:Hear This Matter.

The Federal Distr ict Courts hare ju r i sd i c t ion o~ercivil action authorized by law to be commenced by a peto redress the deprivation, under color of ?.ny Siat^statute, ordinance, regulation. custom or usace. of a~" rprivilege or immunity secured by the Const i tu t ion o:United States or by any Act of Congress providing for erights of citizens or of all persons within :b-? jur is t ,of the United States. 2S IT. S. C. 1343i3). To srTordprotection of constitutional rights, privileges or inimtin:a Federal Court may in a proper case gran: in;native- 7-Hagiie v. Committee for Industrial Qroamzniion. 307 I496. 83 L. Ed. 1423, 59 Sup. Ct. 9M. modify ing: 101 F. 2dCounty School Board c'' C'l'if si ir field Couti:u ^ FriV171 F" 2d 702. aff 'g. ?2 F. Supp. It". On?v - 'j'ulihCity. 120 F. '2d SGI. Mycrfoit v. furtive:. 74 F. Supp.Lopes v. Scccowb. 71 F. Supp. 769.

A federal suit is nor barred mere ly because & hclch'rthe case mieht be res adjudicaT:i on the- san:e p=.l i t igat ing the ?sme is?uo in a S:?.•-;- C o u r t siui :bemoot the State proceeding. Cc-intii/ o: j . , 'ry/:-">;> T. Fllashuda 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^rsoand seek? only personal judc".i--"'r;t. a n o t h e r action :o:same cause in another ju r i sd ic t ion or Fed or.!' D i s t r i c t Cis not precluded and will not be dis;i:is?ed. G'-ccr v. ~*States. 90 F. Supp. S71.

Pendency of State Cour: Ac t ion in pcrso:i;iiv. docspreclude jurisdiction ajid. is not a g round for aba:or s t ay of like action in "he Feuerf.i Ccur., '--ven ;

the same issues are being tried and the federal action issubsequent 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, 83Sup. Ct. 1433 (1963) involved a situation wherein negrochildren were seeking registration in racially integratedschools. The respondents interposed the defense that peti-tioners had not exhausted their remedies. The Court onpage 1435 stated:

"It is no answer that the State has a law which ifenforced would give relief. The federal remedy issupplementary to the state remedy and the latter neednot be first sought and refused before the federal oneis invoked."

On page 1437 of the McNeese case the Court stated:

"Petitioners assert that respondents have been andare depriving them of rights protected by the Four-teenth Amendment."

The Court went on to say that human rights under theFederal Constitution are always a proper subject foradjudication and that

"We have not the right to decline to exercise thatjurisdict ion simply because the rights asserted may beadjudicated in some other forum."

The abstention doctrine does not apply to schoo] segrega-tion cases. Moire's Federal Practice, Volume 1A, 2d Ed.Section 0203 at page 2111, citing Romero v. Weakley. 226F. 2d 399. where the Circuit Court held that the DistrictCourt dismissal of school segregation suit was error, statingthat the:

"Federal District Court is as well equipped to con-sider the evidence on this question as is the SuperiorCourt of the county."

See also Dyer v. Kazukisa. 13$ Fed. Supp. 22v mvolvinzequal protection and civil rights act and b-rlcir.;:. t ha t ?i::bcases belong in the Federal Cour t .

The case of Broicder v. Gaule. 142 F. $U".. 707. a5'z352 U. S. 903, 77 S. Ct. 145, 1 L. Ed. 2d 114 expressly rej*c:=cthe doctr ine of abstent ion where civil rieh:? ar-;- ir^olvrcThe Court at page 713 stared:

"The short answer i? that doc t r ine has i^:- 2ppii;-s.!ioi:where the plaintiffs complain they sre brini: deDr^ecof constitutional civil rights for the proteciioD :f "Lichthe federal court? have a respons ib i l i ty 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 :fconstitutional civil r ight? and of tbe equal p-C'tectios ofthe laws. This case is a school segregation c-a?e. It ?:ar 'edout as such and has continued as such. It c-anro; cba^ee :t =complexion merely on the allegation? snd cor:t---^:io~s ofcertain parties. This must be a two-way ;::eet. If :bisis a school segregation case for tbe "'Brents, of tiie cbiidrer.attending Lincoln School, then it must be a school seirrfiri-tion case for the plaint i f f? in this par t icular sc t i ; r_ ar.ctherefore fhe doctrine of abstc-ntior, is inappl icable . M o t i o nfor leave to file Writ of Prohibition should V e dvi- ied ^~'L-;-T-:-the lower court has jurisdiction.

3. It Ha? Xoi Been Demons t r a t ed Thjii Tbe Pis t r ic tCourt Lack? Jurisdiction Xor Tba: Tbe Av.v-iicin:Has Xo Oiher Romedv.

The right of tbe Supreme Court to grant ?uc-b :ir. e x t r a -ordinary Writ of Prohibition i? nor doubted sr.-d ?ucb ~r::?have been gran ted in proper 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?. lt" S. Ct. >o,3H L- Ed. 246. 24P. However, the :??us:^e by :be SuprenjeCourt of any writ au tho r i zed by 2? V. S. C. !':•? - aV i::;b,:d-inff prohibit ion. 15 noi t= i i iSiter of r:cht but of sour.d d iscre-tion sparingly exercised- Puic ?C' or P: :-•;•-<i P•<<-:? c-rSupreme Court, e f fect ive July 1. 1£54.

H H

If the jurisdiction of the lower court is doubtful (In ReMuir, 254 U. S. 522, 41 S. Ct. 185, 65 L. Ed. 383}, or if thecomplaining par ty has an adequate remedy by appeal orotherwise (In fie Tiffany, 252 U. S. 32, 37, 40 s". Ct. 239, 64L. 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 willordinarily be denied.

Such a remedy should be resorted to only where appealis clearly inadequate, and it is reserved for really extra-ordinary can-set;. The Supreme Court is normally unwillingto utilize such a remedy as a substitute for appeals. ExParte 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 frominterlocutory orders. A brains v, McGohey. C. A. X. Y., 195S260 F. 2<1 892.

The applicant for this Writ of Prohibition sets forth inhis brief at page 6, paragraph 9, that his motion to dismisswas denied by Judge Augelli and that his motion for leaveto appea] was also denied. This application is nothing morethan a substitute for an appeal from an interlocutory orderand should be dejiied forthwith.

Further, in seeking a Writ of Prohibition the lack ofauthority of the body against which the writ is sought mustbe 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 ordependent on evidence the writ is normally denied. In ReChicago 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 thelower court istecting within its power or jurisdiction. Vol. 3N'icbols Cyclopedia of Federal Procedure Forms p. 102section ioi.02-

Where the District Court has general jurisdiction overthe subject mat ter and over the parties, it should be allowedto proceed to decision, and if error is committed, it may becorrected on appeal. A < / w I ork d: Puerto Rico SteamshipCo., 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 wri t concedes OD t^;that the abstention doctrine has been ru ledschool segregation cases, ckme R:-)r,-;r' vand 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 iheWrit 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:ravailable. 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 n t i i i z e this r-;-:r.ed;for appeals. As ex t raord inary ren:ed:es trfor really extraordinary causes . £.- P.irf-:258. 91 L. Ed. 2041 UP47; : £"- Pc.rtf H in-SS L. Ed, 572 \V

The petitioner in ih i~ insianc-e does no: cno right to appeal. If he is i;nsiio-;essfn! abe 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*^ Finvo lv ing a pe:i;:o:: for a Wvi : of Prr.h:'r-denied by the I". S. Cour ; of Ar .nea ' s , ihe •

"Prohibition is sought againsr a c^person as?nn:iu£: to c-seririse jiuiiois! opower, commanding tho court or porsodicial or auasi yudioisl -oou-or :o oease

S I D N E Y D I N C I NC O U N S E L L O R AT LAW 2358»MflY28'65

CENTUAL I3ui

10 W PALLADI f

Ida O. Creekoff, ClarkOffice of tb« ClerkUnited State* Court ofFor The Third Circuit204* U. S. Courthouae

tennaylvania 19107

tUy 21, 1965

RSl mU.0, ST Mi V. VOLX BT ALDocket 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, 1969.

SIDUKY DIHCAttorney for the Board of Educationof the City of Bnglewood, Hew Jercey

CC< Jaiaec T. Murphy, Esq.James A. Major, Baq.Arthur J. Sills, Baq.

^ John J. Bre»lin, 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 I NC O U N S E L L O R AT LAW

GEN-THAI . Huii-niN10 W PALIBADI A V E W I U

ENOLKWOOD, N. J.

lUy 37. 1965

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vWX•z&anr OVKJMAttorney for th« Bo«rd at Cdua«tionof Ch« City e>f I

SBlOfSac.

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botb of tbaM a^dnloM w*r* fU«A with tba 7*dan4. DUtriot Court with UM

4*oUloc).

Vary

c.c. Acw* A. Itejor,Artbur J. »li_», E*a.Join J. fc*«llu. Jr.,SldiMy Otacia, k*».itortwo 8Uvl«, UK,.

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

for y'«1ntin» rulLar at m..

STAVK. RICHARDSON, KOENICSJERC. 8 ROSSMOORECOUNSELORS AT LAW

VOS1ON jrAVIi> -viHL L. IUCHARDJONJ-iiiHL M. KOENICSBERC

NEWARK. N. J 07102

Kay 28,

Mrs. Ida 0. CreskoffClerk, United States Court of Appeals

for the Third Circuit2046 U.S. Court HousePhiladelphia, Penn. 19107

Re: Fuller et al. v. Voile et al.Nos. 15013 - 1501U

Dear Mrs. Creskoff:

Unfortunately, I have- an appointment inWashington, 0. C. on the morning of Jur.i 2 -./hie.-, I a;.-,unable to cancel. Under the circumstances, I shallnot bo able to participate in the rearsunent beforeth<-- Court.

Since I have already ar^uid the matter beforeth2 Court , I i.'ill waive any right to further oral £.r;uir.c-r.iand v/ill aucpt tnc orgal argument cf Nr. Cartor.

Please extend ay regrets to the Court, for myInability to participate in the argument.

MS:mbtcc: All counsel

nf Nem JerseyDEPARTMENT OF LAW AND PUBLIC SAFETY

TRENTON 080(iB

May 28, 1965

Ida 0. Creskoff, ClerkUnited States Court of AppealsFor the Third CircuitOffice of the Clerk2046 U. S. CourthousePhiladelphia, Pennsylvania 19107

Re: Fuller, et al. v. Volk, et"*al.Docket Nos. 15043. 15044

Dear Mrs. Creskoff:

Enclosed please find an original and fourcopies of a Supplemental Brief in the above mentionedmatter containing the arguments of intervening defendantRaubinger with respect to questions propounded by theCourt in your letter of April 2, 1965.

Please forgive the delay in the submissionof these briefs but a number of other very urgent mattersmade it unavoidable.

In the event a future opportunity does nocarise, I wish now to offer you my sincere and heartfeltthanks for your willing and courteous cooperation throughoutthe course of this matter.

Sincerely yours,

HHK:tlencl.cc: All counsel involvedcertified mailret. rec. requested

Howard H. Kestin'v_Deputy Attorney General

LAW OFFICE

MAJOR & MAJ O R241 MAIN STREET

HACKENSACK.N. J.

DIAMOND z-oaeo

JAMES A. MAJOR

JAMES A. MAJOR

25279 JUN-9'65

June 8th, 1965

sIda 0. Creskoff, ClerkUnited States Court of AppealaFor the third Circuit2046 Chitod Statea Courthouse

f«ruiaylvanlA

R«l FOLUSR, BT AL v. VOLX. «t alDooicat Mo.

Dear Mrs. Craalcom

Enoloa«d h«rawith are original and throe copies efAffidavit to b« filed in the above natter.

Very truly youra.

, Beq.Jr.,

jAm/uk-enoa .0,0. to Jane* T.

John J.Sidney Dlaoln, .Robert L. Catter, Baq.Barbara A. Morri*, B0q,Herbert Tate, Beq.Arthur J. SU1», Kwj.Jtorton St*vi», XBQ.

maDocket No. 15043-15044

GERTRUDE P. PULLER, RICHARD L,ORUBNAN, THOMAS F. CACCXOLAand JOSEPHINE CACCIOLA, hiswife, and others to be named,

Plaintiff*-Appellants,and

JERRY VOLPE, et al,

Intervening Plaintiffa-AppellantB,vs.

AUSTIN A YOLK, et al,

Defendants-Appellees,and

ON APPEAL PROMUNITED STATESDISTRICT COURT

APPIDAYIT

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

DISTRICT 07 NEW JERSEYS3.}

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, 196$. /a/ Beatrice Pugaeh

Kobliha

TRIGS

/s/JfarianJiMARIAN A. KQ&Notary Public of New Jeraey.

APPELLATE DIVISIONSUto How* Aum

Tnatam, N. J. , «r -J

June 8, 1965

Sidney Dine in, Esquire16 W . Palisade AvenueEnglewood, New Jersey

Re: Puller, et alVs : Volk, et al

Docket #A-ioQl-62

Dear Mr. Dincin:

In answer to your letter dated June 3, 1965. please beadvised that no order dismissing the injunction pending finaldeternination, after the opinion in the above-entitled matter wasfiled, has ever been entered.

enjieth S. T3arsbyClerk of the Appel/ate Division

KSBtrs

cc : James T. Murphy, Esq.

LAW or flee

M AJ OR & M AJ O R241 MAIN S T R E E T

HACKENSACK, N. J.

DIAMOND t-oe«o

JAMES A. MAJOR

JAMES A. MAJOR It JUne 3th, 196$

sIda 0. Creskoff, ClerkUnited States Court of AppealsTor the third Circuit2046 Baited States CourthousePhiladelphia, Pennsylvania

Rei KKUBt* 19 AX, v. VOUC. et alSooket Mo. 150*3-15044

Dear Mrs, Creekofft

gnoloeed herewith are original and three copies ofAffidavit 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, andother* to b« naned«

UMZTCO STATSS COURT or A»?£ALSrC« THB tHIRO CIRCOIT

fitee. 15043*15044)

>

.

and

, ET

AOSTia A. VOI4C, £T At,

D« f «n datu t«- »pp«l I«es ,

and

M. RAU9ISGC«4 CoMBi«»ionorof Atocation of the state of N*v Jerseyand

rn AHCHUK, JfcT Ai,•Ml

s?aytix, ET AZ.

f»OH.) OUITED STATES

ka UIST ICT

Si'ATK OF HSW JEKSET )SSi

DISTRICT CUT ȣW 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« £n«L* Street School.

2. The following parenta, who are th«

pp«llaBt» in the above-captioned s»att«r

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 WIFEJUJW18 POOACtt MZ> »BATJUCB FfiWiAC*, HI* W1FJ-.AUA* LA&9&* iOO JHOXIM UkSSJU« HIS KITSorrauro O-AUKSXO AIBO MUULE c'ju^asio, uia KZJTE8QI> SMflQUbB A8O JUtiilAil aAHDtAR. BIS WITS

r. cutMsns JUB> MAAJOJIIB CLUHZHTS. tnsBflSBrgs ASO QLOUA «oe»igs» HW tore

UOTO VOUAX9 AMD »UU*CHK »OI4jARD, HIS

orK.._;-.-N£TH GOULD

V^HY riltLlC CF i*>'FiV 'EF

1

IDA O. CRESKOFF

CURB

COR THC THIRD CIRCUIT

2046 U. 8. COURTHOUSE

PHILADELPHIA 19107June 24, 1965

Sidney Oincin, Esq.16 W. Palisade AvenueEnglewood, 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 pbotostaticcopy of a letter from Kenneth Barsby, Clerk of the AppellateDivision of the Superior Court of New Jersey, you point outthat Mr. Barsby apparently .used the word "injunction" when hemeant to refer to a motion for an order enjoining the SchoolBoard of Estimates of the City of Englewood, New Jersey andthe City of Englewood, New Jersey, from appropriating, expend-ing, or agreeing to expend, any public funds to implement theJuly 29 Plan of the Board of Education set forth in the affi-davits pending final determination.

The Court desires me to inform you that theapparent error in Mr. Barsby's letter should be correctedpromptly and suggests that you communicate with him again.

The affidavit of Mrs. Pugach simply states thatMiss Laurie Pugach is "eligible" to attend the sixth grade inthe public school system in the City of Englewood in September1965. There is no statement to the effect that Miss Pugachintends to do so. There is also a statement by Mrs. Pugachthat her son Lloyd will enter the fifth grade in the publicschools of Englewood in September, without any year being statedand that the plaintiffs Lasser have a daughter, Robin, who willenter the fourth grade in a private school and that the Pugachshave a daughter Andrea who will enter the fifth grade in thepublic school system in Englewood in September.

The Court desires me to inform you that thisaffidavi . is obviously inadequate. Does Miss Laurie Pugachintend to attend the *ixth grade in the Englewood PublicSchools in September 19*5 and does Lloyd intend to enter thefifth grade of the Englewood Public Schools in September 1965?Miss Robin Lasser's school attendance seems irrelevant.

LAW OFFICE

MAJOR & MAJOR

241 MAIN S T R E E T

HACKENSACK, N. J.

DIAMOND 2 - 0000

JAMES A. MAJORJAMES A. MAJOR 3 June 28th, 1965

Ida C. Creskoff, ClerkUnited States Court of AppealsFor the Third Circuit2046 United States CourthousePhiladelphia, Pennsylvania

Rei PULLER, ET AL v. VOLK. et alDocket No. 15043-15044

Dear Mrs. Creskoffj

Enclosed herewith are original and three copies ofAffidavit 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. OAOOXOLAand JOSEPHINE CACCIOLA, hiswife, and others to be owned,

Plaintiffs-Appellants,and

JERRY VOLPS, et al(

Intervening Plaintiffs-Appellants,vs.

AUSTIN A. VQLX, et al,

Defendants-Appellees,and

,£>1T APPEAL FROMUNITED STATESDISTRICT COURT

FREDERICK N. RApBINQER, Commissionerof Education of the State of New Jersey

and )KENNETH ANCRUN, et al

and )DEBORAH SPRUILL, et al

Intervening Defendant-Appellee.

« tSTATE OP NSW JERSEY )

tDISTRICT 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 Engla-

wood, 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 Engle-

wood 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

/»/ Beatricelee 1;CE PI

ich

Notary Public of New Jersey

SUPERIOR COURT OF NEW JERSEYAPPELLATE DIVISION

Bou» AMVBB», N.J.

July 6, 1965

Sidney Dincin, Esquire16 W. Palisade AvenueEnglewood, New Jersey

Dear M r . Dincin:

R e : Fuller vs. Volk, et alDocket #A-108l-62

"

In reply to your letter of June 28advised that no order dismissing the motionthe School Board of Estimate of the City ofand the City of Englewood, New Jersey, froming or agreeing to expend any of the publicthe July 29th plan set forth in the attachedletter opinion in the above-entitled matterbeen entered.

1965, please befor an Order EnjoiningEnglewood, New Jerseyappropriating, expend-fundo to implementaffidavit, after thewas filed, has ever

This letter is written to correct my letter to you datedJune 8, 1965, which inaccurately characterized this motion toenjoin as an injunction. However, I wish to point out that Iendeavored to comply with the request as stated in, your letter tome dated June 3, 1965, last paragraph.

I trust that the above will settle this point to thesatisfaction of Ida 0. Creskoff, Clerk of the United States Courtof Appeals.

enne\ S. BarsbyClrrk of the Appellata^Division

KSB:rs

WWWfiiftS&Spilft.. ! .-

I•4

noa2

r

- no »

B £f- >

o » s• > Mns

HARVARD UNIVERSITYGRADUATE SCHOOL OF EDUCATION

SPACLDIXG HOUSE, 47 [ BROADWAYCAMBRIDGE 38, MASSACHUSETTS

July 12, 1965

Mr. Byron Baer135 BelmontEnglewood, New Jersey

Dear Mr. Baer:

It is my understanding that during my absence from the officemorning you called regarding a copy of the Englewood Study. I am sto you under a separate cover; and if you have further questions rethe findings, please feel free to write or call, I had originallysend copies to only those persons who actually participated in oursessions last fall and felt that the school department would likelyto the leaders of various local organizations. Evidently they havedone so.

last Fridayending onespectingintended toorientationsend copiesnot yet

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 serioushistorical inaccuracies are involved. We will simply have to judge the con-sequences 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 (inresponse to a reading by Dr. Shedd and members of the Englewood School Board)before issuing the final report. Second, with respect to projected racial com-position in individual school districts (assuming present boundary lines), thesewere not actually computed. Our methodology involved the use of ward linesrather than school districts. As you undoubtedly know, census tracts as used bythe U.S. Census Bureau are not compatable with present school district lines andone can make only a very sketchy guess as to the estimated racial compositionin small subsections of wards. Because of the necessity of basing any projectionon observed trends over the recent past and the obvious uncertainty that thesetrends x^ill remain fixed, we are very reluctant to issue any of our best guessesas to the future composition, except on a general city-wide basis. Finally, yourquestion about the current racial composition by grade of Liberty School and ex-clusive of special students can probably be found by examining Table A-6 on page154 of the report.

If you have further questions, please feel free to write or call. Thank youfor your cooperation during the course of our study, and I trust you will findthe assumptions used in support of the proposed educational plan to be consistent

-2-

with improved public education in Englewood. This has certainly been our inten-tion.

Sincerely yours,

Howard M.Field Director^Center for Field Studies

HMJ/jb

FRANCIS J. FEEtCY

t . C A R T E R CORRISTQN

41 MAIN STREET

HACKI3NSACK, N. J. O76OITtLKPHONM

CODE ZO1

August 3, 1965

United States Court of AppealsFor the Third Circuit2046 U. S. Court HousePhiladelphia, 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 recentoral argument with regard to the above matter requested thatthis office furnish to the Court an approximate breakdown ofthe additional costs presently being incurred by reason of theCentral Intermediate Sixth Grade at the Engle Street Schoolin Englewood, New Jersey. I have endeavored to procure thisinformation from the Board of Education, but I have beeninformed by its attorney, Mr. Dlncin, that the accounting staffis overburdened at the present time with the preparation ofreports which must be filed shortly with the County Superintendantof Schools. Mr. Dincin has promised that Mr. Francis Garrity ofthe Englewood School System will furnish this information withinthe next two weeks.

As soon as we have received the report we willimmeidately forward it to you.

Yours very truly,

BRESLIN AND BRESLIN

Charles Rodgers

CR:pdCC: 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 COMPOSITIONFALL 1965

J-'i

J J•••) '.

J ' I

Jj

I If

LIBERTY(72.2%)

i

QUARLES(23. ft.)

ROOSEVEL T

SCHOOLSYSTEM

i

HQOCR W. OHC.3l.ln

rMARLCS RODGER*

-1.MCI9 J. FCKLCY

r , .nrtn CORRISTON

MICHAEL J. BRCSUN, JR.

HOOCR W. BRCSLIN, JR.

41 HAIK STUBBTHACKENOA.CK, H. J. O7QO1

September 10, 1965

United States Court of AppealsFor the Third Circuit2046 U. S. Court HousePhiladelphia, 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 ofMr. Garrity, Assistant Superintendant of the Englewood PublicSchools, pertaining to the additional expenses incurred byreason of the institution and maintenance of the CentralIntermediate Sixth Grade of the Engle Street School, which isthe subject of this Appeal. You will recall that in the oralargument you had requested that this additional information befurnished by way of supplement to the Appeal in this matter.

A copy of the report is likewise being sent toall other counsel involved. ,>

Yours very truly,

AND BRESLIN/7

By:Charles Rodgers

CR:pdEnclosuresCC: 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 -

SCHOOLYEAR

1963-61*

1964-65

1963-64

1964-65

1963-64

1964-65

1963-64

1964-65

FACILITY

School System - 7 Schools

Engle Street School

Lincoln School

School System - 7 Schools

Engle Street School

Lincoln School

School System - 7 Schools

Engle Street School

Lincoln School

School System - 7 Schools

Engle Street School

Lincoln School

School System - 7 Schools

Engle Street School

Lincoln School

School System -. 7 Schools

Engle Street School

Lincoln School

School System - 7 SchorIs

Engle Street School

Lincoln mihool

School System - 7 Schools

Engle-Street School

Lincoln School

INCREASE

ELECTRIC SERVICE£ 2,828.63

2,063.97

268.09

353.45

271.93

FUEL CONSUMPTION

$ 921.00

709.00

510.00

WATER CONSUMPTION

,'

98.06

$ 536.79

34.00

SEWER SERVICE

0

0

0

0

0

0

ANNUALDECREASE COST

$ 32,761.00

2,981.85

3,099-58

33,114.51$ 233.61 2,748.24

3,371.51

$ 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

$ 37.86 $ 3,099.16

35-28 374.00

435.56

$ 3,635.95

408.00

131.80 303.76

0 $ 2,680.96

0 393.04

0 319.24

0 $ 2,680.96

0 393.04

0 319.24

Maintenance

Review of our Maintenance Department records reveals the total expendituresat Engle Street dxiring 1964-65, over and above normal operating expense, was$1,1*85.00 itemised as follows:

Material $ 1,020.81

Fire alarm system additionalRenew wiring, modernize stations, install automaticdetectors (boiler room, stage, storage areas); re-locate alarm stations and bells

Intercom SystemRewire as required

Electric clock system - modernized

Addition classroom electric outlets

Labor

TOTAL EXPENDITUHE

$ 465.00

$ 1,485.00

INCREASE OR DECREASE - OVER PREVIOUS YEAR -

SCHOOLYEAH

1963-6*

FACILITY

School System - 7 Schools

Engle Street School

Lincoln School

School System - 7 Schools

Engle Street School

Lincoln School

School System - 7 Schools

Engle Street School

Lincoln School

School System - 7 Schools

Engle Street School

Lincoln School

School System - 7 Schools

Engle Street School

Lincoln School

School System -. 7 Schools

Engle Street School

Lincoln School

School System - 7 Schools

Engle Street School

Lincoln School

School System - 7 Schools

Engle Street School

Lincoln School

INCREASEANNUAL

DECREASE COST

ELECTRIC SERVICE$ 2,828.63

2,063.97268.09

353.45

271.93

FUEL CONSUMPTION

$ 921.00

709.00

510.00

WATER CONSUMPTION

98.06

$ 536.7934.00

SEWER SERVICE

0

0

0

0

0

0

--

-$ 233.61

-•

$ 3,148.50348.00913.00

-

-

-

$ 37.8635.28^

--131.80

0

0

0

0

0

0

$ 32,761.002,981.85

3,099.58

33,114.512,748.24

3,371.51

$ 29,248.503,036.004,107.00

$ 30,169.503,745.004,617.00

$ 3,099.16374.00435.56

$ 3,635.95408.00303.76

$ 2,680.96393.04319.24

$ 2,680.96393.04319.24

Maintenance

iview of our Maintenance Department records reveals the total expendituresat talkie Street during 196 -65, over and above normal operating expense, was$1, 5.00 itemized as follows:

Material $ 1,020.81Fire alarm system additional

Renew wiring, modernize stations, install automaticdetectors (boiler room, stage, storage areas); re-locate alarm stations and bells

Intercom SystemRewire as required

Electric clock system - modernized

Addition classroom electric outlets

Labor

TOTAL EXPENDITURE

$

$ 1,W5.00

IDA O. CRESKOFFCLMK

OFFICE OF THE CLERK !$ 8 2 I t) OC I ""

STATES COURT OF APPEALSPOM THE THIRD CIRCUIT

2048 U. 8. COURT HOUSE

PHILADELPHIA 7

September 30, 1965

Robert L. Carter, Esquire20 West 40th StreetNew York, New York 10018

Re: Fuller, et al. and Volpe, et «1. v. Volk, et al. andRaubinger, 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 .

TKLXPHONKW A . 2 - 3 1 4 4

Also enclosedjudgment 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. CACCIOLAand JOSEPHINE CACCIOLA, his wife, and others to be named(Plaintiffs),

Appellants in No. 15,043

and

JERRY VOLPE and KATHERINE VOLPE, his wife, LOUIS PUGACH andBEATRICE 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 wife , EUGENE F. CLEMENTSand MARJORIE CLEMENTS, his wife, EDWARD ROBBINS and GLORIAROBBINS, 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 OFSCHOOL ESTIMATE OF ENGLEWOOD, NEW JERSEY, and THE CITY OFENGLEWOOD, NEW JERSEY, JOHN E. PERRY, LOUISE GRABOW, THEODORE R.VAN ITALUE, CARMEN R. HINTZ and VIARREN L. LEWIS, constitutingthe BOARD OF EDUCATION OF THE CITY OF ENGLEWOOD (Defendants),

and

FREDERICK M. RAUBINGER, Commissioner of Education of the Stateof New Jersey,

and

KENNETH ANCRUM and LESLIE ANCRUM, minors, by tfortimer W. Ancrura,their parent; JESSICA BRODY and LAURA BRODY, minors, by Mr. andMrs. 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, DONNAGREGORY, GARY GREGORY and TODD GREGO'.Y, minors, by Mrs. PearlGregory, theirfrparent; MICHELLE HELLEM, a minor, by Mrs. TheodoraHellem, her parent; STEPHEN HOUSTON, a minor, by Mrs. Alma Houston,his parent; IRENE CLARK, a minor, by Mrs. Larvine Clark, herparent; DANIEL BLANK, JOSHUA BLANK and REBECCA BLANK, minors,by Irwin M. Blank, their parent; RACHEL WARNER, a minor, byAaron 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, aminor, by Mrs. Gladys Levine, her parent; DEBORAH MILLER, ERICMILLER and CYNTHIA MILLER, minors, by Robert J. Miller, theirparent; MIRIAM SHARLIN and JUDITH SHARLIN, minors, by Mrs. Irene

Sharlin, their parent; OLIVIA STANDARD, a minor, by Mrs. FrancesStandard, .her parent; BRYANT McNEIL, a minor, by Mrs. Dbloris J.McNeil, his parent; ALBERT BROOKS and PAMELA BROOKS, minors, byMrs. Dorothy E. Brooks, their parent; EDWARD MILLER, JR., aminor, by Edward Miller, his parent; JOSEPH TOWNSEND, JR., aminor, by Mrs. Aquilla L. Brown, his parent; EMILY FISHER andDAVID 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 APPEALSFOB THE THIED CIRCUIT

Nos. 15043-15044

GERTRUDE P. FULLER, RICHARD L. GRUBMAN,THOMAS F. CACCIOLA AND JOSEPHINE CAC-CIOLA, His WIFE, AND OTHERS TO BE NAMED,

Plaintiffs-Appellants, in No. 15043

AND

JERRY VOLPE, ET AL.,Intervening-Plaintiff's-Appellants, in No. 15044

v.

AUSTIN A. VOLK, ET AL.,Defendants-Appellees,

AND

FREDERICK M. RAUBINGER, COMMISSIONER OF EDU-CATION 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 THEDISTRICT 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 apublic school districting plan in the City of Englewood,New Jersey, on the ground that the plan promulgated bythe defendants by which racial imbalance in the schoolsystem was substantially reduced denies to the plaintiffsthe equal protection of the laws guaranteed to them by theFourteenth Amendment of the Constitution.1 The plain-tiffs claim that the plan of integration is unconstitutionalas being based on race and that the plan as formulated isunconstitutional because it gave the parents of Negro chil-dren in the Lincoln School the right to vote the plan intoexistence.

Tr1? plaintiffs in this present action consist of twogroups of plaintiffs: The original plaintiffs, hereinafterreferred to as the Fullers,2 and the intervening plaintiffs,hereinafter referred to as the Volpes.8 The defendantsare the members of the Board of Education of the City ofEnglewood; the City of Englewood; CommissionerBaubinger, the Commissioner of Education of the State ofNew Jersey, and some thirty-eight minor children attendingthe public schools in Englewood, who, by their parents,were permitted to intervene as parties-defendants in thislitigation.

Prior to the commencement of the September 1963school 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 GertrudeP. Fuller as a party-plaintiff, sets out as additional parties-plaintiffs "RichardL. Grubman, Thomas F. Cacciola and Josephine Cacciola, his wife, and othersto 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 toJerry 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 andMarjorie Clements, his wife, Edward Robbins and Gloria Robbins, his wife,Lloyd Pollard and Blanche Pollard, his wife."

3

central high, school, grades 10 through 12; a central juniorhigh school, grades 7 through 9 and a system of five ele-mentary schools, grades 1 through 6.4 These elementaryschools were operated under the "neighborhood" schoolplan, whereby students attended elementary schools locatedin their own neighborhoods. Under this plan, severeracial imbalance existed in the elementary schools as aresult of existing housing patterns in the community. Asof September 1962 enrollment and racial composition inthe elementary schools were as follows:

School Enrollment % White % NegroCleveland 477 99.6 .4Liberty 418 38.0 62.0Lincoln 505 2.0 98.0Qnarles 343 96.8 3.2Eoosevelt 345 85.5 14.5

The intervening defendants in the instant case, theSpruills and Ancrums, petitioned Commissioner Eaubinger,charging the Englewood Board of Education "with themaintenance of racially segregated public schools and withrefusal to implement plans to eliminate patterns of racialsegregation alleged to exist in the public schools.''5 TheVolpes cross-petitioned the Englewood Board of Education,protesting any departure from the status quo. After con-solidation by the Commissioner of the Spruill and Ancrumpetitions, the Volpes were permitted to intervene in theproceeding. The Commissioner found that the existingracial imbalance was not the product of deliberate or in-tentional conduct on the part of the Englewood Board ofEducation, but rather that it was the result of "patterns of

4 The Englewood Board of Education also operated a system o! kinder-gartens. The kindergartens are unaffected by the districting plan here underattack and no issue has been presented to this court or the court below con-cerning them.

5 Opinion of the Commissioner of Education, Spruill v. Board of Edu-cation of the City of Englewood, p. 2 (July 1, 1963).

I

housing and the operation of other socio-economic forces"causing "concentration of pupils of one race" in the Lin-coln School district.* Commissioner Eaubinger held that"compulsory attendance at an all Negro School, such asthe Lincoln School, at least where appropriate means canbe found to avoid it, constitutes a denial of educationalopportunity under New Jersey law which the school districtis required to correct."7 The Commissioner ordered theEnglewood Board of Education to formulate a plan orplans to reduce the extreme concentration of Negroes inthe Lincoln School and to submit the plan or plans to theCommissioner for approval before August 1, 1963 and toput the plan, as approved, into effect at the commencementof the 1963-64 school term.

In accordance with Commissioner Baubinger's ruling,the Englewood Board of Education promulgated a planwhich provided for the establishment of a central sixth-grade school at the former Junior Hi^ School building at11 Engle Street (Engle Street School). The plan also pro-vided for the transfer of all students at the Lincoln School,grades one through five, to the Cleveland, Quarles or Roose-velt schools, taking into consideration such factors as thedistance to be traveled and distribution of class loads.No provision was made for either transfer into or out ofthe Liberty School. The plan stated that those children inLincoln School who did not wish to transfer should have theopportunity to remain at Lincoln School "provided that itis administratively and educationally practicable to do so.",but that "as a prerequisite to the establishment of the city-wide sixth-grade school . . . either of the following twoconditions must occur: 1. 125 or more present students ofLincoln School must NOT elect to remain for the 1963-64term at Lincoln School or 2. The number of transfers fromLincoln will result in class loads in Qnarles, Cleveland, orRoosevelt Schools which, in the opinion of the Board ofEducation, are educationally undesirable."

6 Id. mt f. 7.7 «. at p. 81

In order to implement the plan, questionnaires weresent to parents of children in grades 1 through 5 in theLincoln School, to determine whether there were enoughinterested pupils to put the plan into effect. As of August19, 1963, there were 242 acceptances of assignments out ofthe'Lincoln School and 21 "votes" to remain at the LincolnSchool. Accordingly, the Board of Education proceededwith its implementation plans. The Board of School Esti-mate certified $53,000 for the implementation of the planwhich, when added to $50,000 already available to the Boardof Education, made a fund of $lo"3,000 available for theimplementation of the plan. The plan included renovationof the Engle Street School, the purchase of equipment andmoving administrative offices from the Engle Street Schoolto the Lincoln School.

The school term opened on September 4, 1963, but atthat time the Engle Street School was not yet ready foruse. 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 planwent into effect on October 28. Since that time, all chil-dren in grades one through five in the Lincoln School weretransferred or sent to the Cleveland, Roosevelt andQuarles Schools and all children in the sixth grade havebeen attending the city-wide sixth grade school, the EngleStreet School. The enrollment and racial composition ofthe elementary schools as of November 12, 1963, under theplan of integration, were as follows:

Schoolsand Grades

Engle Street (6)Cleveland (1-5)Liberty (1-5)Koosevelt (1-5)Quarles (1-5)

Number ofPupils

290547283310301

White % Negro58.3 41.766.3 33.739.0 61.065.8 34.281.4 18.6

r

The plaintiffs moved for summary judgment, Rule 56,Fed. E. Civ. Proc., 28 TJ.S.C. After argument on themotion, the court below entered judgment for the defend-ants, holding that the plaintiffs failed to show a denial ofany constitutional right. Fuller v. Volk, 230 F. Supp. 25{D.N.J. 1964). The plaintiffs have appealed from thisjudgment. But before this court can review the judgmentof the court below on the merits, we must be certain thatwe have jurisdiction of the cause and that the court belowproperly acquired jurisdiction in the first instance.

The original plaintiffs, the Fullers, allege that theyhave standing to sue to enjoin the expenditure of publicfunds for an unconstitutional purpose because they are tax-payers in the City of Englewood and the State of NewJersey. There is no longer any doubt that a local taxpayercan invoke federal jurisdiction to attack the constitution-ality of state or local expenditures. ^Jorenms v. Board ofEducation, 342 U.S. 429 (1952); Everson v. Board of Edu-cation, 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 havestanding, he must show that his position as a taxpayer isin some way affected and, in short, that his is a good-faithpocketbook action. Doremus v. Board of Education, supra.Therefore, the taxpayer must be shown to be suing to pre-vent a misuse of public funds for this is the only interestwhich a federal court can protect in a taxpayer's suit.Ibid.; see Jaffe, Standing to Secure Judicial Review: PublicActions, 74 Harv. L. Rev. 1265, 1307 (1961); cf. McGowanv. Maryland, 366 U.S. 420 (1961).

The original plaintiffs, the Fullers, must bring theirewe within the ambit of federal question jnrisdictionalprovisions, 28 U.S.C. % 1331, in order that this court andthe court below may have jurisdiction. Section 1331 (a)grants jurisdiction to the district courts in all civil actionsarising under "the Constitution, laws, or treaties of the

United States" in which "the matter in controversy ex-ceeds the sum or value of $10,000, exclusive of interest andcosts." If jurisdiction would lie under the civil rights pro-vision of the Judicial Code, 28 U.S.C. <§ 1343, there wouldbe no issue of jurisdictional amount. Hague v. CIO, 307U.S. 496 (1939); see Basista v. "Weir, 340 F.2d 74 (3 Cir.1965). However, the Fullers do not sue to redress a de-privation of their civil liberties but rather to enjoin anallegedly unconstitutional use of funds. Have the Fullersan action in which the amount in controversy exceeds$10,000f Unless they can aggregate their claims and theclaims of all other members of the class on whose behalfthey sue the court below lacked jurisdiction, since no singleplaintiff can establish the requisite amount.

It is well-settled law that only in a true class action maythe claims of each member of the class be aggregated inorder to obtain the requisite jurisdictional amount in con-troversy. 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. MahoganyAss'n, 129 F.2d 227, 232, 236 (3 Cir.), cert, denied, 317 U.S.672 (1942); Knapp v. Bankers Securities Corp., 17 FRD245 (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 tax-payer's suit is one in which the claims of the class may beaggregated.8

In Eussell v. Stansell, 105 U.S. 303 (1881), a group oflandowners sought to enjoin a special assessment tax. Theyappointed several of their group to represent them in aclass action. The Supreme Court held that the interest of

8 Compare 3 Moore, Federal Practice, §23.13 at 3482-83 (1964), withNote, 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).

8

each landowner was separate preventing the plaintiffs fromaggregating the interests of the class in order to meet therequisite jnrisdictional amount. With one single exception,Brown v. Trousdale, 138 U.S. 389 (1891), the SupremeCourt has adhered to the view of Eussell v. Stansell. See"Williams v. Eiley, 280 U.S. 78 (1929); Rogers v. HennepinCounty, 239 U.S. 621 (1916); Wheless v. St. Louis, 180U.S. 379 (1901); Colvin v. Jacksonville, 158 U.S. 456 (1895).In Scott v. Frazier, 253 U.S. 243 (1920), the Supreme Courtrefused to allow aggregation of claims in a taxpayers' suitto enjoin the payment of public moneys and the issuanceof bonds on the ground that the state's purpose was anunconstitutional one, i.e., the spending of public money fora private nse in violation of the Fourteenth Amendment.

As we have indicated the present action is controlled byScott v. Frazier, thereby preventing the aggregation ofclaims. 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 courtbelow was without jurisdiction to adjudicate the claims ofthe Fullers.

We come next to the jurisdictional questions as theymay affect the Volpes who alleged that they are suing asparents of children in the Englewood public schools. Thereis no question that they have asserted a separate and inde-pendent basis for jurisdiction by their allegations that thechildren on whose behalf they sue are unconstitutionallybeing compelled to attend schools determined solely on thebasis of race. This allegation presents no problem ofjnrisdictioual amount in controversy. Hague v. CIO, 307U.S. 496 (1939).

However, the question remains whether their inter-vention can cure the jurisdictional defect thereby giving thedistrict court jurisdiction. It is well-settled that sinceintervention contemplates an existing suit in a court of

competent jurisdiction and because intervention is ancillaryto the main cause of action, intervention will not be per-mitted 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 InternalRevenue, 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 pleadingof an intervenor as a separate action ,n order that it mightadjudicate the claims raised by the intervenor. Hacknerv. 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 PicturesCo., 76 F. Supp, 465 (S.D.N.Y. 1948); In re Raabe, Gliss-man & Co., 71 F. Supp. 678 (S.D.N.Y. 1947); 4 Moore,Federal Practice §24.16 at 113-14 (1963). This discre-tionary procedure is properly utilized in a case in whichit appears that the intervenor has a separate and inde-pendent basis for jurisdiction and in which failure to ad-judicate the claim will result only in unnecessary delay.By allowing the suit to continue with respect to the inter-vening party, the court can avoid the senseless "delay andexpense of a new suit, which at long last will merely bringthe parties to the point where they now are." Hackner v.Guaranty Trust Co., supra, 117 F.2d at 98. But on thepresent record, even as it has been supplemented pur-portedly pursuant to Section 1653, Title 28, U.S.C., wecannot ascertain whether or not the intervening plaintiffspossess locus standi to maintain the suit for it does notappear that any of the intervening plaintiffs had any child

12

Third, as pointed out in the language we have just quotedfrom the Forasenius opinion, the decision of the federalconstitutional issue which was before the court below at thetime of its original decision may have been materiallyaltered by the later decision of the Supreme Court of NewJersey in Booker." The foregoing are matters which thecourt below may examine and may adjudicate upon remandas the facts and law may require, and, if necessary, maysupplement the record by evidence relating to jurisdictionaland other pertinent issues.

The judgment will be vacated and the case will be re-manded with the direction to the court below to proceed inaccordance with this opinion.

12 The court below did not have the benefit of the decision of the SupremeCourt in Harman v. Forssenius, 380 U.S. 528 (196S) and the decision of theSupreme 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, 230F. Stiff. 25.

A True Copy:

Testa:

Cltrk of Ihi Unilti Slain Court ofor Iht Third Circuit.

BOHALB A. QUARLES SCHOOL - RACIAL B3STRIBDTIOH OCT. 19, 196$

Grade Boys

A. M. Kdg. 2

A. M. Kdg. 0

P. M. Kdg. 2

P. M. Kdg. 2*••*,

1st Gr. (M)

1 » (?)

1 " (R) _

2nd " (K)

2 » (W)_

3rd « (R)

3rd " (W)

Uth" (S)

Uth " (R)

Uth « (M)

5th " (B)"

5th » (L)

5th » (R)

•.

3

U

J 3

2

3

2

1

1

3

U

2

U

bE5~

NEGROGlrTs"

1

0

1

0

b2

b

2

3

5

U

2

3

2

5

1

b

ET

Tqtal

3

0

3

2

7

6

7

U

6

1?

5

3

6

6

7

5

8

w

WHITEBoys

5

6

6

6

9

9

9

7

6

12

12

10

9

10

10

11

7

TOT

Girls

U

6

U

6

b

6

b

16

1U

8

10

12

9

7

7

7

9

TO

Total

'I1*1

10J

12J

13

15

13

23

20

20

22

22

18

17

17

18

16

27T

2!

2,1

<yf 0 *

' ' ~^-J S~-T

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

u) 7

31

fc3

Grade

A. M. Kdg.

P. M. Kdg.

1st Grade

2nd »

3rd »

Uth «

5th "

^ U T

? </ 3 ' n

/z-

NEGRO

Total Boys Total Girls

10

10

)c

V

r.

10

5

9

7

10

CT

?

WHITE

otal Boys

11

12

27

13

2U

29

28

nnr

t

Total Girls

10 -)VJ

10 j

u* • w30 V3

18 ^

28 r?

23 5"/

"I5T ITT^rw

j fe^i7

•

, C - (_

October 19, 1965

TO: Dr. Shedd

FROM: L. McCloud

SUBJECT: Racial Distribution, Engle School

Following is our enrolment by team and section ofWhite and Negro students:

Kappa Team

Mrs. HoyteMiss SteinbergMrs. CarboyMrs. SanfordMr. JackowskiMr. Jack

131513

lii

Negro

910

•9E

1 D

Total

2k>32k22?3Ik

3io;nia Team

Mr. BonneyMrs. 3ort,hwickMrs. DavisMr. Dolphin?frs. NuneryMiss Truslovje

: b

11113

170

•9

]LO

•10

III

232k

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23isr

„ »/ .1 I^ 5 /v

. , ~1 r,i If ' °

i^' *- ii u ; o

, I

1IDA O. CRESKOF,

CUMK

OFFICE OF THE CLERKUNITED STATES COURT OF APPEALS

POM THK THIRD CIRCUIT

2048 U. 8. COURTHOUSE

PHILADELPHIA 19107

October 19, 1965

NEW TELEPHONE NO.597-2995

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 theDistrict Court a. certified copy of the judgment inthe above-entitled case. This is issued in lieu ofa formal mandate, in accordance with amended Rule 36(1), a copy of which is enclosed.

Very truly yours,

-<i «7teputyDep Clerk /

Enc

I

1

United States Court of AppealsFOE THE THJBD CIBOUIT

ORDER AMENDING RULE 36.

It is ORDERED that paragraph (1) of Eule 36 of thisCourt is amended by adding the following sentences:

A certified copy of the judgment and a copy of theopinion of the Court, if any, and any direction as tocosts shall constitute the mandate, unless the Courtdirects that a formal mandate issue. In order todistinguish such certified copy of the judgment as aninformal mandate from any other certified copy of thejudgment, certification under this rule shall be in thefollowing words: "Certified as a true copy and issuedin lieu of a formal mandate on (date) "

By THE COUBT,

JOHN Bioos, JR.,Chief Judge

GEBALD MCLAUGHLIN,Circuit Judge

HABBY E. KALODNER,Circuit Judge

AUSTIN L. STALEY,Circuit Judge

WILLIAM H. HASTIE,Circuit Judge

J. CULLEN GANEY,Circuit Judge

• WILLIAM F. SMITH,Circuit Judge

ABRAHAM L. FHEEDMAH,Circuit Judge

Dated: July 1, 1965

/ / M H

47163DEO665

MO ne 'e woo c: f u D l i c .Jcnools

f. A. Girrtiy, Aaxitant 5up«rint«n<J«n(

October 28, 1965

Mr. Sidney OlncinCounsellor at Law16 W. Palisade AvenueEngls*ooc, Ne* Jersey

RE: FULLER, ET AL us. VOLK, ET Al_

Dear Iflr. Oincin:

Confirming our telephone conversation of Thursday, October 28, the schoolprincipals report the following pupils concerned with the TULLEfi, ET AL viVOLK, ET «L, are in the grades indicated as of October 20, 1965.

Lloyd Poll«rd Grade 5469 Elkxood Terrace

Andrea Robblns Grade S361 Gloucester Street

Donald A. Queries School

Roosevelt School

The principals further report they have no knonledge of children, of thefamilies involved, »ho are likely to become public school pupils in thenear future.

Very tru

r. A. Ga r r i t yAssis tant Superintendent

cc; Dr. fflark R. Shedd

ENCLEIt/OOD PUBLIC SCHOOLSEnglevood. H»m !•••••••

PUPILSmsT

PUGACH

) VOLPE

'OLPE

VOLPE

LASSER

NAH1E£IRST

NEIL

TOD

J A v

LAURA

ROBIN

ORIGINALILEHI. npTPfrr

rric. of the «Ml.tant sup.rlnt.nd.nt

October 28, 1965

1^^^^

CURRENT ENCLEWOOD PUBLIC

-«££" Si,. S!" S"il;s0[ROOSEVELT

ROOSEVELT

ROOSEVELT

ENCLE STREET

ROOSEVELT •

D'ALESSIO CHRISTINE ROOSEVE: r

CEMENTS ELIZABETH CLEVELAND

HAN°LCR JOY DONALD A. QUARLES

ROBBINS «NDRH ROOSEVELT

, 361 GLOUCESTER STREET

— -YD OONALD A. QUAflUS DONALO A. RLES 5

JR. HIGH

PRIVATE SCHOOL

MOVED TO HIORRIS COUNTY

WED TO IDORRIS COUNTY

WOVED TO MORRIS COUNTY

PRIVATE SCHOOL

PAROCHIAL SCtJOL

10/28/65

CLERK'S OFFICEUNITED STATES DISTRICT COURT

for theDISTRICT OF NEW JERSEY

Newark

, »t <ils»Civil Action No. ,.

to

Vaii, #t «

There was entered on the docket on

an order £$&&&&& *«e*tf«f>

3.S.C.*.

!•'/, 1

S.:t I

Michael Keller, Jr., Clerk

BEST AVAILABLE COPY

December 1965

The Honorable Anthony T. AugelliUnited States District CourtDistrict of New JersayNewark, Hew Jersey 07101

Puller e_t aj. v. Volk et al

Dear Judge Augelli:

The following is in reply to your letter requestingthat all parties to the above entitled Hatter presentbriefs and argument concerning the questions of the stand-ing of the Volpos to maintain their cause of action, whetherexhaustion of administrative reaedies is required and whetherthe federal doctrine of abstention is applicable.

Counsel for the intervening defendants (Ancrum et aland 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 indicatesthat two of the intervening plaintiffs are in the fifthgrade and would therefore be required to litigate the ques-tion of the sixth grade plan now if they expect to obtainrelief prior to entering the sixth grade.

Regarding abstention, it appears that the decisionin Booker v. Board of Education, 45 H, J. 161 has resolvedall State q"uestlohsV thereby rendering the doctrine of ab-stention inapplicable.

The applicability of McNeese v. board of Education,#3 Sup. Ct. 1433 (1963) has beau previously argued beforethis Court in connection with motions to dismiss and la dis-cussed at length on pages 17 and IS of the Motion for Leaveto Pile Petition for Writ of Prohibition filed by the At-torney Oeneral of the State of New Jersey. Although sub-sequent to the filing of that notion the appeal of theVolpes to the Appellate Decision has bean dismissed, theremaining discussion of that case is consistent with ourcontentions.

Withdrawal of the Volpe appeal from the administra-tive proceeding and the decision of the Third Circuit Court

-2-

or Appeal* which raises several procedural questions butdoes not determine the aerlts of the issue, leave the par-ties, la ay opinion, precisely where they were prior to theappeal. It is our contention that the procedural questionsdo not inhibit this Court fro* entertaining the case on themerits, that the aerits have been exnaustibly diseussed pre-viously, and that the questions before this Court which havebeen briefed, disoussed, and argued should be determinedconsistent with the prior decision of this Court.

Respectfully,

Barbara A. Morris

Roosevelt Ockool

Umer Cx. Campbell, Principal

Also

I/ IfuDiic Jcnools

v-fc>nglewooa, New Jersey

October 1965.

Total number of children per class

Total number of Negro children per class.

Teacher Grade Number of Negro Total number ofchildren per class. children per class.

Mrs. DiSienaMrs. DiSiena

Mrs. KeenMrs. Keen

Miss TaitMiss Tait

Mrs . PennyMiss SekolMiss Wendt

Mrs. BattleMiss JohnsonMrs. Watson

Miss CooperMiss EarleMrs. Poinsett

Mrs. CarlsonMrs . Sarner

Mr. MitchellMrs. Williams

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

A.M. KdgP.M. Kdg

A.M. KdgP.M. Kdg

II1

222

323

44

55

43

43

4 __^yi // £j

1213

/•

\/

111110 (*•?//,

1012

11 MJ

710 />7IV;1212 A "

1311

1310

^ -/V 12

2727

sSfyS 27 £/

2223

-xA-ty 21

2124

"• . r 7"\• 'tf ** ,> ,•• ,

25^r// 27

27*? a yY 26 f 3 *f

Total 161 390

/.AS OF OCTOBER 20, 196$ - V

WITH TOTALS FOR XSOBO AID

LIBERT! SCHOOL PERSONNEL

Room 108 HEIM, RAYMOND, PRINCIPAL* *

n no Adams, Myrtle (Mrs.) Secy.• •

" U2 Kdfl. Baker, Ethel A.,M

n « n Nelson, Imogene Nelson (Mrs.

" 101; " Oaskin, Audrey (Mrs.) P.M.

" " " Hayes, Doris A.M.

" 102 1st. Garrity, Mrs. Elizabeth

M 103 1st. .-. Giegold, Kathryn (Pre-Pri

" JLUJL 1st. Knudseh, Viola' (Mrs.)'.....,

1C3 LJ. A«P., fl^U at..) ......

•""»— 'TT3 * Fiawner," Blame ";..•'."•"•'••,

h 211 3rd Ceriit, Valerie (Mrs*).....

ri 2l2 '• Greene", Anne {Mrs. 5 9

11 207 " Hauck, Katherine (Mrs.)...;

1 -1M?OB,MI1«- MJ chfll.-.KlirijM-fliM i ) • -

11 203 5th Cirillo. Robert

" 201 " Rauscher, Catherine (Mrs.)

" 109 N.I. Haufrecht, Betty (Mr*.^ ...

" 2B Ed. Eldry«w», Call. (M^J.J ....

-.<. v> •;,- Total....

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

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

Art - Walker, Chai'les - SuSc<

,..Ui,

1 19

1 ^i 1U

21

4uT)n

""IB"

n^*••— 2(jp—

1i£16

. 10

,. 15;r""iy

17

1 ... 20

... 3

r 8309

p=

Let

?rnava..^e,adnrs, Ful

won

?5

8

8

3

IT

5

— fr~~5

U

9

5

1 7' "•"• jMi^paM""""" '

. . . . -

6

6

If

1

119. „ _ , ,

f—Iharl OB.on

TOTAL

.,.„»«„,

21*

23

22

2U

15

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

•"""" g6" " •

2%

""56*

19

20 "H,^^.l,,,:,

"'"&"

" "5U— -

23

26

79

U28

- C u«? tod»

jflUBUftt

.,. 0,01

79.25C

69.656

, 6,3f6?

87.53C

73.3$

78.3$

oo. f J*

i — yy; % —

7o. X

^o. i52.6$

'7^. *

•^Tjf1"""

1 7?r*

^76.8$

73.9$

77. $

U2^9$

88.8$

72.2$

AH

1CLEVELAND SCHOOL

Racial Distribution

Hg.

•Firstie

Grade

Grade

Grade

Grade

Grade

Grade

Mrs. BrownMrs. Dor anMrs. GreengrasMrs. Kay ford

Total

Mrs. Stevens

Mrs. GreyMrs. JohnsonMiss SullivanMrs. Sweeney

Total

Mrs. BarclayMrs. HillMrs. BushMrs. PwOss

Total

Mrs. LittleMrs. MacDonnellMiss SchellingKiss Webster

Total

Mrs. GreenwaldMrs. NaglMrs. PerryMrs. Schultz

Total

Mrs. CarrollMiss DiefenbachMr. MahoodMr. Pagnozzi

Grand Total

f

( JL

911110

37

10

z111112

12

111151U13

56

813712

ho

:;HiHi10

a7

69129

36

268

October

W

21211819

7?

6

191717JS.68

15131516

55

18Hi1916

67

16131216

57

20181L.17

69

Uc$

20, 1965' \ 0

Total 'd

30282929

n6 j;.«/?A/16

27282827— °* 1C ^-> V 1 '* 1^no

29282929

i - o ~'f "~r~n5262726

__28

ic7 37 y JL i252726J6

lou v r> ; j.26272626

?«.J /J &105

673 Jf.^ i

/ f (/•

U —

109

DWIGHT MORROW HIGH SCHOOLEnglewood, New Jersey

October 20, 1965

NEGRO WHITE OTHERS

Grade 10

Grade 11

Grade 12

Total

wEGRO

WHITE

Chinese

TOTAL

Boys

47'

65

47•f- *£>f«f i" '<• H

159

BOYS

159

236

395

Girls Boys Girls Boys Girls

66" 73 74

56 71 88 I

1+8 92 82i- 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

170 236 244 0 1

GIRLS TOTAL

170 329 ~M^-o i i rt /-v4^/f/f if-oU " ' ** '

415 S10

To: Dr. Mark Shedd

From: Mr. E. Keller

Attendance Office

Grade 7

7-1 Gl

7-2 Ga

7-3 Go

7-3 Rev

2NGLEUOOD JUNIOR HIGH SCHOOL

New Jersey

3.ACIAL DI3T11I3UTION

October 21, 1965

Total

15 11

-4 12

3 17

7

.-6

17

: s

_o

.

236

239

COI

•o

1 ..I

co

b'I .r -

I:,

Ii I

i.O

. J

,n

i ;i-i»an>00

..f

•f> oL,J

i

CJ

O

L-J3

C3

r-j>-p*or<t'j§oa

C•

i i

(-1-I -J

t- •Cfi

-•- 4

i'-l

OQ(-Jr J

MuLTJM•:."J* y

v

HT*•' -t

(D21

C-,(01-1COn

"•<

MO^0

*->••1— 1O

wnCMOotr1

/I .

. o

• I

. ,'.

n'.,

31

N -i--; ,• i

. : 'H OO >1it fjro rsl-' C...

•tfttflflH

Grade 8

1 "7 ^ *,> - / o t

ENGLSWOOD JUNIOR. HIGH SCHOOL

Znglewood, Hew Jersey

IIAGIAL .'Ismi^UTION

~!o--s r-ir_s

o •*-j - 1

3-2

3-3

.j ~'~

)C

He

Ha

7

7

.'

:

:

LO

)ctober 21, 1965

?otal

•

GrandTotal

:

27'

J-ii :jo

JNGL2WOOD JUNIOR HIGH SCHOOL

Znglewooti, :~ov7 Jersey

HACIAL jISnOctober 21, 1965

Grade 9

9-1 Be

o _ o r1./ ~ o

9-3 He

y-4 3W

9-5 Mi

9-6 IIu

3-7 Ea

9-3 :;u

9-9 ?o

- 3 *

BoysT\

~/

-

-

i

-i

*.T

j

10

_-

6

13

,

-i

- -,., *w

L

Gir l s Total1; '1 :; "7

o 11 15

4 10 3 20

3 7- 9' 20

5 9 11 15

2 3 9 1-3

5 7 10 20

5 3 11- IS

3 17

3 10 10 20

11 12 15

CraneTotal

25

2

•! C

2 '

30

2:

30

_; ,•

'•

,0 301 r

TO: Dr. Shedd

FROHI: Dan Friedman, Lincoln School

SUBJECT: Enrollments by Racial Distribution

CLASS

Pre-Kindergarten

Wrs. Tarnower AW

Wrs. Tarnower PW

Wrs. Gunthorpe AW

Wrs. Gunthorpe PWa

Wrs. Marshall AW

Wrs. Warshall PW

Wrs. Sullivan AW

Wrs. Sullivan PWJ

Special Education

Wrs. Worey (Loubriel)

Wrs. Alia

Wrs. WcKnight

Wrs. Sher

Uliss Wallace

TOTAL - Lincoln School

NEGRO

9

1G

11

7

9

7

B

WHITE

10

ID

9

12

9

11

12

12

^g?"

5

4

?

7

1

2-1

^^^-^^^—UCC. <I .L , J.JO3

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

TOTAL

19

20

20

19

18

18

20

1 8 _ -fora) -iJzTV. /

8

6

9

7

8

112 Whit8(5VAl90

DF: jn

10/21/65

i u D i i c .Jcnools

M^nglewood, New Jersey

Kcymona A. Mein

inncipal

Liberty Jcnooi

1 enemy Koaa

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

[ " 2B Ed. E?.dr.\«-lc'3 > c?.?"!. (.Mr-'.'.)

-rf * * Total....

Ii B - Jongs j Marleus (r-Irs..} .Rsacilju? ^nerria

Art - Walker, Charles - SuSL>

8

309

*t

•marrftge,idnrs, Ful

.,-a. .

1

119

hArlo«.o.n

!-.-,.,_

9

U28

- C»fltod

'

88.8$

72.2$

- - -"- " """*•' *- *-

an

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

PK 8 10 11 12 Sp. Total %

Lincoln 152W 85

• N 67

ClevelandUlN

LibertyUlN

QueriesUlN

RooseveltWN

Engle St.UlN

Junior HighUlN

Senior HighUlN

TOTAL 152W 85N 67

% N 44.1

1167937

923062

51438

705119

329203126

38.3

1106842

621250

614120

814536

314166148

47.1

1155956

752055

534310

663432

309156153

49.5

1076740

591841

544212

683533

288162126

43.8

1045747

752253

725715

523517

303171132

43.6

1056936

491237

715120

532924

281170111

286 281 301153 164 182133 117 119

260 281 269147 159 174113 121 # 95

278 .281 286 281 301 260 281 269161 170 153 164 182 147 159 174117 111 133 117 119 113 12} # 95

42.1 39.5 46.5 4.1.6 39.5 43.5 43.1 35.3

382711

16610

16511

12210

824042

51.2

19011278

673405268

428119309

36227785

390229161

281170111

880501379

810480329

401422931720

42.9

__N

41.1

39.8

72.2

23.5

41.3

39.1

43.1

* 40.6

*42.9

*other

jn/10/25/65

Engleiuood Public School Census by School, Grade,And Race, October 22, 1965

School PK 8 10 11 12 Sp. Total

Lincoln 152Ul 85N 67

ClevelandUlN

LibertyUlN

QuarlesUlN

RooseveltUlN

Engle St.UlN

Junior HighUlN

Senior HighUlN

TOTAL 152W 85N 67

% N 44.1

1167937

923062

51438

705119

329203126

38.3

1106842

621250

614120

814536

314166148

47.1

1155956

752055

534310

663432

309156153

49.5

1076740

591841

544212

683533

288162126

43.8

1045747

752253

725715

523517

303171132

43.6

1056936

491237

715120

532924

281170111

286 281 301153 164 182133 117 119

260 281 269147 159 174113 121 . 95

I *278 281 286 281 301 260 281 269161 170 153 164 182 147 159 174117 111 133 117 119 113 121 . 95

i *42.1 39.5 46.5 4.1.6 39.5 43.5 43.1 35.3

382711

16610

16511

12210

824042

51.2

19011278

673405268

428119309

36227785

390229161

281170111

880501379

8104803291 *_L

401422931720

I *42.9

_N

41.1

39.8

72.2

23.5

41.3

39.1

43.1

AD fiHU • U

42.9

jn/10/25/65

*other

©

tfjWTJ^L

_

7 /a //

7 3EF:M..//-'

Li?"w\

ey./

I/to

J5fj^jj"

!*- f * - -

.V

^

££.~&

'&ULA

£.

A!

2o

4- 7/£/

JzWa—z.-_. VK

Jt.L£J^.

JL•/ _^i - •jti

_k^_. .

y/j^^/!'

Z75-

7T_.._/xc^__

f?5 //7*

/'^iv6L LLf

i Lm-/o /f V-

:r:^^"7

L2L

MX-*', ^W2'--'.4-|-|-t-—•

^bi^Vf\L

3AI ZJS.S -?J^ *£ ii? /

VJ7

3O

& -my -V

-f.4L(J^i r•*[*

7^!o

7T

L/^ f

yx^ /fl fl .3 >^L t&I i.

DH

Engleuiood Public School Census by School, Grade,And Race, October 22, 1965

School PK

Lincoln 152W 85N 67

ClevelandWN

LibertyWN

Queries\aN

RooseveltUlN

Engle St.\HN

Junior HighUlN

Senior HighUfN

TOTAL 152W 85N B7

% N 44.1

K

1167937

923062

51438

705119

329203126

38.3

1

1106842

621250

614120

814536

314166148

47.1

2

1155956

752055

534310

663432

309156153

49.5

3

1076740

591841

544212

683533

288162126

43.8

4

1045747

752253

725715

523517

303171132

43.6

5 6 7 8 9

1056936

491237

715120

532924

281170111

286 281 301153 164 182133 117 119

278 . 281 286 281 301161 170 153 164 182117 111 133 117 119

42.1 39.5 46.5 41.6 39.5

10 11 12 Sp.

382711

16610

16511

12210

260 281 269147 159 174113 121 „ 95

I *260 281 269 82147 159 174 40113 12 » 95 42

43.5 43.1 35.3 51.2

Total

19011278

673405268

428119309

36227785

390229161

281170111

880501379

810480

#

40142293172} .

42.9

%JV

41.1

39.8

72.2

23.5

41.3

39.1

43.1

40.6

42.9

*other

jn/10/25/65

///1/c.s-

UNITED STATES DISTRICT COURT(IN EQUITY) DISTRICT OF NEW JERSEYCIVIL ACTION NO. 847-63

GERTRUDE P. FULLER, et als.,

PLAINTIFFS

and

JE.xRY VOLPE, et als.,

INTERVENING PLAINTIFFS,

-vs-

AUSTIN 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 DINCINAttorney for defendant.The Board of Education ofthe City of Englewood,BERGEN COUNT716 West Palisade AvenueEnglewood, New Jersey

STATEMENT OF FACTSi

jThe Court, by its letter of November 19, 1965, pro- '

ipounded 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 STANDINGTO MAINTAIN THEIR CAUSE OF ACTION, OR WHETHER SAID CAUSEOF ACTION HAS BECOME MOOT OR IS PREMATURE.

The defendant. Board of Education, respectfully sub-

raits that the cause of action has become moot as to thes '

following intervening plaintiffs, to wit: JERRY VOLPE and ;

KATHERINE VOLPE, his wife; 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. CLEMENTS and MARJORIE

CLEi-iSNTS, his wife, by virtue of the fact that at the pre-ft

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 plain-tiffs are concerned, involves only the sixth grade. Thecomplaint and petition for intervention alleges only thatthe children aue students in the Englewood public schoolsystem, but does not allege the grades that they are in.Some may now be past the sixth grade, thereby renderingtheir action moot. Some may only be at the first or secondgrade 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 pre-

sent 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 PublicI

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 Roose-

velt 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 BEREQUIRED TO EXHAUST STATE ADMINISTRATIVE REMEDIES IN THELIGHT 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 ofi

Appeals, the intervening plaintiffs would gain nothing by jj

pursuing this avenue of approach.

.-POINT III.

WHETHER THIS COURT SHOULD APPLY THE DOCTRINE OF ABSTENTIONTO THE VOLPE LITIGATION IN ACCORDANCE WITH THE PRINCIPLESENUNCIATED 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 con-tention that the District Court should have stayed the pro-ceedings until the courts of Virginia had been afforded areasonable opportunity to pass on underlying issues of

— -4-

state law and to construe the statutes involved. We holdthat the District Court did not abuse its discretion inrefusing to postpone the exercise of its jurisdiction.

In applying the Doctrine of Abstention, a federaldistrict court is vested with discretion to decline to exer-cise or to postpone the exercise of its jurisdiction indeference to state court resolution of underlying issues tostate law. Railroad Conun'n v Pullman Co, 312 US 496 85 Led 971, 61 S Ct. 643.7 Where resolution of the federalconstitutional question is dependent upon or may be mater-ially altered by, the determination of an uncertain issueof state law, abstention may be proper in order to avoidunnecessary friction in federal-state Hiations, interferencewith important state functions, tentative decisions onquestions of state law, and premature constitutional adjud-ication. 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 statelaw is uncertain. Davis v Mann, 377 US 678, 690, 12 L ed2d 609, 616 84 S Ct 1453; McNeese v Board of Education373 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 jfairly subject to an interpretation which will renderunnecessary or substantially modify the federal constitutionalquestion, it is the duty of the federal court to exerciseits 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 finalexpositors of state law implies no disregard for the primacyof the federal judiciary in deciding questions of federallaw. ' England v Louisiana State Board of Medical Examiners375 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 inissue, support for the District Court's refusal to staythe proceedings is found in the nature of the constitutional

=-.5- i-

deprivation alleged and the probable consequences of abstain-ing. Griffin v County School Board of Prince Edward County377 US 218, 229 12 L ed 256, 264 84 S Ct 1226; Baggettv Bullitt 377 US 360, 375-379, 12 L ed 2d 377, 387-389 84S Ct 1316. The District Court was faced with two classactions attacking a statutory scheme allegedly impairingthe right to vote in violation of Art. 1, § 2 and theFourteenth, Seventeenth and Twenty-fourth Amendments.As this Court has stressed on numerous occasions, 'the rightto vote freely for the candidate of one's choice is of thejessence of a democratic society and any restrictions onthat right strike at the heart of representative government.'Reynolds v. Simms, 377 US 533, 555 12 L ed 2d 506, 52384 S Ct 1362. The right is fundamental 'because preserva-:tive of all rights.' Yick Wo v Hopkins 118 US 356, 37030 L ed 220 226 6, S Ct 1064. In appraising the motion tojstay proceedings, the District Court was thus faced with a!claimed impairment of the fundamental civil rights of abroad class of citizens. The motion was heard about two ,'•«•months prior to the deadline for meeting the statutoryrequirements and just eight months before the 1964 generalelections. Given the importance and immediacy of the pro-blem, and the delay inherent in referring questions of statelaw to state tribunals, it is evident that the DistrictCourt did not abuse its discretion in refusing to abstain.Griffin v County School Board of Prince Edward County, 377 jUS 218, 229 12 L ed 2d 256 2 64 84 S Ct 1226; Baggett vBullitt 377 US 360, 375-379 12 L ed 2d 377, 387-389 84 SCt 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 Countyj

377 US 218, 12 L ed 2d 256 ( US S Ct 1964).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 unreser-vedly litigating his federal claims in the state courts,although not required to do so, should be allowed to ignorethe adverse state decision and start all over again in theDistrict Court. Such a rule would not only countenance anunnecessary increase in the length and cost of the litigation;It would also be a potential source of friction between thestate and federal judiciaries. We implicitly rejected sucha rule in Button, when we stated that a party elects to forgos right to return to the District Court by a decision'to

seek a complete and final adjudication of his rights in thestate courts.' We now explicitly hold that if a party, freelyand without reservations, submits his federal claims for a !decision by the state courts, litigates them there, and hasthem decided there, then—whether or not he seeks direct re-view of the state decision in this Court—he has elected toforgo his right to return to the District Court."

i

In the Griffin v County School Board of Prince EdwardCounty 377 US 218, 12 L ed 2d 256, 84 S Ct 1226, 12 L ed 2d256, at Pages 264 and 265, the Court stated as follows:

"Since 1959 all Virginia counties have had thebenefits of public schools, but one: Prince Edward. However,there is no rule that counties, as counties, must be treatedalike;/the Equal Protection Clause relates to equal protectionof the laws 'between persons as such rather than between areas.'Salsburg v Maryland 346 US 545 551 98 L ed 281, 288 74 S ct280 (1954). Indeed, showing that different persons are treateddifferently is not enough, without more, to show a denial of iequal protection. Kotch v Board of River Port Pilot Comm'nrs.330 US 552, 556 91 L ed 1093, 1096 67 S ct 910 (1947). It isthe circumstances of each case which govern. Skinner v.Oklahoma ex rel. Williamson 316, US 535, 539-540, 86 L ed1655, 1659 62'Set. 1110 (1942)."

ITherefore, as regards the Doctrine of Abstention, in

the instant case, does the fact that there are just two plain-

tiffs constitute a broad class of citizens within the meaningI

of the Harman case? The Board respectfully submits _that _the ' _-7-

1

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 iIfact that they, of their own volition abandoned their action

iin 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 Edu-

cation, that this Court should decide the matter on the

merits.

Respectfully submitted,

SIDNEY DINC3Attorney fof/theBoard of Education ofthe City of EnglewoodBergen County.

r-

LIBERTY SCHOOL PTA

BUILDmG NEEDS COMMITTEE

1665 REPORT

This committee concurs with the position taken by the LibertyEducational Needs Committee and the PTA Council Educational NeedsCommittee - that our most serious problem, racial imbalance, mustbe corrected by the start of the 1966-67 school year.

We are aware that any plan to implement this objective will probablyrequire that Liberty School either be abandoned or utilized in a differentway or for different class combinations than at present.

Therefore, we believe it impractical fo? us to attempt to make specificbuilding needs recommendations when we do not know specifically how thebuilding will be expected to function beyond the present year, at least for thenear 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 11II1966-67 school year includes whatever expenses for classroom alterations, etc! fmay be needed to carry out the adjustments necessary to correct racialimbalance.

Respectfully submitted,Fyron Baerf ChairmanMrs, Alice PueschnerJohn WilsonMrs, Donald L0 Gregory

SCHOOL PTA SDOCATIOM&L NEEDSCOMMITTEE' REPORT - "

It Is recommended that a full time guidance counselor or equivalentbe employed at Liberty for this current school year. In our opinion,such a counselor is urgently needed now to deal with special problemsat 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 litthe Division of Pupil services.

However^ the committee recognizes that by far the most pressingand serious educational he jd 6 the needto 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 thisurgent problem.

Last year the Liberty PTA stated, "Liberty school is a defactosegregated school and the education of all the children in it is thereforeaffected. The PTA wants this situation remedied and we are not going tosit patiently by awaiting action."

Since that time other factors have made the need for action evenmore imperative, if this is possible „

In the 1-1 st year, the Negro pupil percentage at Liberty has Jumped toover 72 . The ratio of Negro to white pupils at Liberty is now over 3itimes higher than that at any other elementary school here. (Last yearit was less than 2| times higher.)

Also in the last year, the N.J. Supreme Court historic Plainfielddecision ruled that educational authorities are responsible for thecorrection of substanclal racial imbalance even though it has not reachedthe 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 implimentedby September 1966 0

We therefore urge that the PTA Council Educational Needs Committee andthe PTA Council adopt and especially highlight the following recommendation!

THE ELIMINATION 0? RACIAL IMBALANCE SHOULD RECIEVE IMMEDIATEATTENTION. CKILDfliSN AT LIBERTY SHOULD NOT BE SUBJECTED TO ANOTHERYEAR 0? THIS HARMFUL CONDITION. THE CORRECTION 0? RACIALIMBALANCE SHOULD NOT BE DELAYED AN ADDITIONAL SCHOOL YEAR3Y 3EING DEPENDENT ON LONG RANG;:; SCHOOL CONSTRUCTION

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

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

Mrs. OscarMrs. Davil HintonMrs. Gladys Rcoinsor:

•