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SCHOOL DESEGREGATION IN ENGLEWOOD, NJ

1964

The Englewood Public Library was gifted with two copies of:

ELEMENTARY EDUCATION ELEMENTARY RIGHTS THE BATTLE OVER SCHOOL DESEGREGATION IN ENGLEWOOD, NEW JERSEY

BY GREGORY H. REUBEN

A Thesis Presented to Princeton University in Partial Fulfillment of the Requirements for the Degree of Bachelor of Arts in the Department of History, Princeton, New Jersey 2003

In addition, the author presented to the Englewood Public Library the original working research papers for his thesis, most of which can be found in these bound volumes. Public school desegregation remains a central issue in Englewood history, development and politics.

Englewood Public Library Fall 2004

John I ' - l , rr,lt < -

**,

-r,l for

i,krlin8 l,r Kn-lrunnd rally.

tD FROM THE COLLECTIONS OF THE MftNUSCRIPT DIVISION, LIBRARY

OF CONGRESS

G R O S S 8 STAVIS.
COUNSELORS AT LAW

743JANI7'6I<
744 BROAD 3TRHET N E W A R K 2, N J MARKET a 370O

MORTON\3TAV13 MABEL L.RICHARDSON

C,

Ronorabl* Aatbaay 1. Aulli UniU^ ttt Dtserlat Court Federal fcalldinp 1, i!. J.
Volpe VY Yolk, incrus-

My d*ar Jud^o X bav b*fo l*Ur to you copy of Hp,


30, 1963.

, poaitlan on tb Stipulation

ftaiB
001

A. hoffMn, A. h*Jor, rbr Herri*

OF TOE MANUSCRIPT DIVISION, LIBRARY OF CONGRESS

UWIHSD StAIKS DISTRICT 3XS2BICT 0? HBV Civil Ho. 8*7-63

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at

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A. V9LK, t * . !. VHK0E&ICX M, . Coital loo*r of Education of Jra*y, atKi


al..

TO MOTION PCS SUiOUAT KOKTOJI STAVIS and VILLIA>i . KOWSTLES

IH opposmos

Attorneys for Jn*renor Spruill 7** Broad St. !*vark, K.J. 07102

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

UNITED STATUS DISTRICT COURT DISTRICT OP NEW JERSEY GEtf THUDS P. PULLER, t !.,
and

Plaintiff*, VOLPE, et al., Intervening Plaintiffs, Civil No. 847-63 AFFIDAVIT IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

V.

AUSTIN A. VOLK, .t al, Defendants,


and

FREDERICK K. R&UBINGES, Comaiiaiiontr of Education of the State of New Jersey,


and

KENNETH AWCKUH, et al,, Intervening Defendant!, STA5B OP NEW JBRSEI ) COUNTY 0? E S S S Z )


)

MQRTOH STXVIS, being (July worn according to law, upon 'his oath dpo*e and sayj 1, 2. Together with William M, Kurastler, Esq., I am I make tni affidavit In oppoaltlon to the attorney for the Intcrvenor, Deborah apruill, motloinfor eumoary judgment returnable herein on January 13,

1964.
3. At iBsue in the within action is the validity of the plan adopted by the Saglewood Board of Education to meat toe directive of the Comaisiioner of Education of the State of New Jersey, 4, In order for the Court to determine that question

Kt3?H20UCED FKW TOE COLLECTIONS OF THE MANUSCRIPT DIVISION, LIBRARY OF CONGRESS

a.
Ml would anticipate that the Court would consider a wide rang* of facts. Including Out not Halted to expert testimony as to the feasibility of alternate plans to overcome th impact ot the da facto segregation which bad existed In th school system of the City of Englewood. In that connection

we propose on behalf of the Intervenor to preaent expert testimony abowlng the several alternate techniques for Integrating tha educational structure of Englewood and to establish that the plan adopted by the Board of Education Is within the framework of the alternate techniques which are available. 5* Such expert ttetlnony shouti neoeasarlly form

part of the reoord of this oate and would show that the assignment of pupile under the Englewood plan la by no means based upon race or color but rather upon proof of the educational requirements of the school children of Englevood, 6. Such testiaony will establish that the plan

adopted by the Englevood Board of Education was adopted In an effort to comply with Its statutory obligation to "provide suitable school facilities and aoooaunodations for all children who reside In the district,,,'. Morton Starla
MORTON STAVIS

Sworn to and subscribed before me this 8th day of January, 1964.


J*flARCAR5T H:.T"OAifliOfj
NOTARY PUBLIC ol NHV JERSEY" Uj CnoimiMiiia Eifita Ajml J0( y^

DEPARTMENT OF LAW AND ARTHUR J. IILLC ATTOKNgy, QKNKHAL D I V I S I O N OF LAW

PUBLIC SAFETY T H E O D O R E I. HOTTER

STATE HOUSE ANNEX TRENTON 25

January 9, 1964

Barbara Morris, Esq. 20 West 40th Street New York 18, New York Re: Dear Miss Morris: Enclosed please find copy of our Affidavit in opposition to motion for summary judgment in the above matter. Very truly yours, Fuller et al v. Volk et al Civil No. 847-63

Joseph A. Hoffman Deputy Attorney General JAH:tl encl.

UNITED STATES DISTRICT COURT DISTRICT OF NET; JERSEY (In Equity) CIVIL NO. 847-63 GERTRUDE P. FULLER, et als, Plaintiffs, ) ) )

Civil Action
AFFIDAVIT IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

vs.

AUSTIN A. VOLK, et als, Defendants.


STATE OF NEW JERSEY ) ) SS. COUNTY OF MERCER )

) )

I. Frederick M. Raubinger, of full age, being duly sworn according to law upon my oath depose and say: 1. I am and have been, since August 15, 1952, the

Commissioner of Education, State of New Jersey, As Commissioner, I am the principal executive officer of the State Department of Education and ex officio secretary to the State Board of Education of the State Department of Education. 2. On July 1, 1963, after extensive hearings,

I rendered a decision in the case of Spruill v. Board of Education of Englewood. A copy of said decision is attached to my affidavit in support of my motion to intervene and Co dismiss the complaint in this matter and I hereby incorporate said decision by reference as a part of this affidavit. 3. Prior to the hearing in the Spruill case

and because of disturbances in the educational system of the

Englewood School District, I formed a committee to make .study of the situation existing in the Englewood public schools. The members of this committee were as follows: George C. Boone,

!j Robert A. Flood, Archie F. Hay, Jr., Anne S. Koppock, Ennett Spurlock and Robert U. Ward. A very brief and non-exhaustive

biographical profile on each member of this committee follows. GEORGE C. BOONS, CHAIRMAN B.S. Pennsylvania State University; M.A. in Educational Sociology, New York University; Ed. D. in School Administration, New York University. Teaching experience in both elementary and secondary schools; principal of both elementary and secondary schools. In the twenty years prior to joining the State Department of Education in 1960, he served as Assistant Superintendent of Schools, Coordinator of Special Services and Director of the Children's Bureau in the public schools of Passaic, New Jersey. He served on the faculty of the University of Illinois and the New Jersey State Colleges ac Paterson and Newark. He was a delegate to the 19 0 T-/hite House Conference and has served as chairman of the Conference on the Handicapped, the Welfare Council Commission en Emotionally Disturbed Children, the New Jersey White House Conference Commission on Employment Opportunities for Youth, and tha Human Relations Council of the-. City of Passaic. He is c recipient of the B'Nai Brith Award for Brotherhood Activities. Since 1960 he has been Director of Education of the Handicapped, New Jersey State Department of Education.
ROBERT A. FLOOD E.S. Pennsylvania State University; II. S. University of Pennsylvania; additional study at .Columbia and Rutgers Universities and I-iOntclair atate College. Classroom teacher 1935 to 1941, Superintendent of Schools in Sussex Borough, Maddon Heights, and Kutlej 1941 to 1956. Since 1956, County Superintendent of Schools of Sussex County. Served as a member of the Advisory Committee on Secondary Schools for the State Department of Education. Is a member of the New Jersey State Board of Examiners. Has served on numerous study groups, including the Cooperative Project in Public School Administration of the Kellogg Foundation. Was cited by the Nutley and Essex County Human Relations Commissions for work in human relations in Nutley.

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ARCHIS F. HAY, JR. B.S. Paterson State College, M.A. Teachers College, Columbia University. Teacher, principal, and superintendent of schools 1941 to 1956; since 1956 Superintendent of Schools of Bergen County. Faculty, Paterson State College and New York University. Recipient of Distinguished Alumnus Award, Paterson State College. ANNS S. HOPPOCK S.A. Rutgers, M.A. Columbia University; D. Litt. Glassboro State College. Has served as an elementary teacher, principal, supervisor and county helping teacher. Assistant Director of Elementary Education, New Jersey Department of Education, 1940 to 1959; Director of Elementary Education since 1959. Has written extensively for educational journals and yearbooks; has served on state and national committees dealing with elementary schools; speaks frequently at state and national conferences on elementary education; delegate to the -Jhite House Conference on Rural Education, 1944; delegate to the j! White House Conference on Children and Youth, I960; past ;'; president, National Council of State Consultants in Elementary |J Education. ii
II EMMSTT SPURLOCK

i'i A.B. Morris Brown College; M.A. Rutgers University. Sxtersiv^ training in Boy Scout, U.S.O. and Y.M.C.A. work. YK-S soiv^c. as elementary school principal, and administrator in the National Youth Administration, Boy Scouts of America and U.3.C. Assistant Commandant and classroom teacher, New Jersey Ix/.vaal ji Training School at Bordentown; field representative, Kew Jersey | Division on Civil Rights since 1953. Member Florence Township I' Board of Education and Florence Township Juvenile Conference I Committee.
! ROBERT W. WARD '. ' |

:, 3.A. and M.A. College of William and Mary; additional study at Paitgers University and New York University. Teacher, j: guidance director, director of curriculum and instruction in public schffols, 1950 to 1961; Assistant in Secondary Education, New Jersey Department of Education since 1961. President, Kew Jersey Association for Supervision and Curriculum Development.1
4. The above committee's reporc which v/as

entitled "A Study of Racial Distribution in the Englewood Public Schools" was submitted to me on October 5, 1962. During the course of the Spruill hearing, this report was offered into

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evidence by the petitioners.

I took judicial notice of this

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report upon the advice of the Attorney Gensral that this stso was consistent with decisional administrative law of the State

i
of New Jersey. 5. Some of the facts which are reported to ne I

by this committee and which comprised a portion of the basis for my decision in Spruill are as follows: A. Studies of pupil achievement reveal that

the Negro pupils from the Lincoln School tended to score lower than White and Negro pupils attending the other schools. For instance, at the 6th-grade level in the 1961-1962 school year the pupils at the Lincoln School scored a median of 4.4,

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on the Stanford Achievement Intermediate Battery of tests, while pupils in the other elementary schools scored an average median of 6.5. Further, it was found that far more children from the Lincoln School are left back or retained in graca

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than in any other elementary school in Englewood. For instance, in the 1961-1962 school year 17 children were retained in the 3rd grade among the 5 elementary schools, 8 of which were
I

Negro pupils from the Lincoln School. school approximated this number.

No other elementary

j
In the same year, 4 pupils

i
were retained in the 6th grade among all of the elementary

I schools, all of which were Negro pupils from the Lincoln School. :
B. The committee, in an attempt to gather

objective evidence regarding the achievement of Lincoln School pupils, made studies of relative class rank, the American Council

of Education Psychological Examinations (A.C.2. scores), and reading scores of Englcwood High School pupils. Their findings,

supported by pupil records, were that the graduates of Lincoln School ranked appreciably lower than tha graduates of cther eler.iantary schools. It might be pointed cue that the co;.v;r.i-iee

found that the Negro graduates from Liberty School (where the Negro-White ratio of enrollment had been about 50-50) ranked appreciably higher than the graduates c.2 the Lincoln School and the White graduates from the Liberty School ranked as high or higher than the graduates from the predominantly 'Tnite Cleveland and Roosevelt Schools. All of these facts are

supported by records, charts and statistics ana represent merely a sampling of the facts supporting the objective finding that Lincoln School pupils have a lower record of achieva^ert than pupils of the remaining Englewood elementary jchools. C. A study of drop-out records also supports During the 5-year period between and

the Spruill decision.

including the school year 1957-1958 to 1961-1^2, 226 pupils dropped out of the Englewood junior and senior high schools. Of this number, 100 or 44% of the total were Negro. This, of

course, means that compared with the total number of Negro pupils in the school population, a greater percentage of K'cgro pupils than White pupils drop out of school.
T..naile

the

percentage of drop-outs in the Englewood schooT :, has been decreasing, the percentage of Negroes in the drop-out group has increased. The 1961-1962 school drop-out statistics A total of 6 graduates of Cleveland

provide a typical example:

School, all White, dropped out of high school; a total of 3 Uhite and 1 Negro graduates of the "rrnklin School drooped

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out or nign of the Roosevelt School dropped out; a total or 1 Negro graduate of Liberty School dropped out; and a total of 13 Negro Lincoln School graduates dropped out of high school. In the school

year period mentioned above, the total drop-outs were as follows: Cleveland - 25; Franklin - 8; Roosevelt - 18;

Liberty - 30; Lincoln - 58. These merely represent some of the facts reported to me by my committee but they are rather salier.c ar.o demonstrative of the serious problems involved. 6. It was my decision and it remains ;~y opinion

that a stigma attaches to attendance at a school whose enrollment is completely or almost exclusively Negro and that this sense of stigma and resulting feelings of inferiority have an undesirable effect upon attitudes related to learning. Ky

decision was based on the report of the Fact-Finding Con^itcee, all of the evidence before me, and, of necessity, upon my own experience and knowledge in the field of public education. Learning results from the interaction of tha learner and his environment. Schools attempt to provide a

wide variety of experiences suited to the ages and capabilities

* of the pupils, in order that tha opportunities to learr. may


be many and diverse and present to the greatest degree possible. When the environment for learning is broad and varied, rich with experiences of many kinds, the educational climate is enhanced and learning occurs more effectively. Conversely,

when the environment is meager, impoverished or limited in scope, opportunities for learning are restricted or denied,

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:]

and education is hampered and apt to be less effective.

This

. is a generalization to which individual exceptions will be found, but, in my opinion, the statements are true with respect to pupils in general. In my judgment, the Lincoln School in

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Englewood, as it was constituted, provided a significantly less than desirable educational environment which could be

improved through reasonable, practicable and educationally sound means and that being so it constituted a denial of equal educational opportunity under New Jersey law. The major goal of public education in this country is to help each individual to become an adequate person, to achieve his optimum development as a human personality so that the welfare of all may be enlarged. To accomplish

this purpose schools must be concerned with tha at.ritu-.:.' which pupils develop about themselves., and the worlc th-_: . ,vo iii because those attitudes have ~.n incalculab_e ofjoct liocr. successful learning. How an individual sees and vievs himself

has important implications for every aspect of his behavior, in school or out. Ue know, for example, that failures in

reading and spelling occur, in most instances, not so much from incapacity Jb achieve thesa skills but from unfortunate attitudes about them. Pupils who view themselves as inadequate

are apt to respond or behave inadequately. Children's attitudes .-bout themselves, who they are and what they are, develop from the ways in which they are treated by chosewith whom they come in contact in the proces:

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of growing up.

The public school has a major role to play in

seeing Chat children's attitudes are positive ones that encourage self-davelopment. A feeling of stigma or inferiority,
:

which may be fostered by the conditions ur., _r which a child lives, should not be strengthened and parpacuated by the school where reasonable means exist to avoid it. The development of

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such feelings engenders attitudes which produce poor motivation, low aspirations, and lack of purpose with a resultant negative effect upon learning. It is tay judgment that the Lincoln

School in Englewood, as it existed at the tin 3 of the cc.^plo.ir.t before me, tended to strengthen in many of its pupils feelings of stigma growing out of conditions of housing in the conir.unity, ,that reasonable means existed to avoid this condition, anc. that failure to employ those means constituted a denial of educational opportunity under the laws of New Jersey. A boarc of education is charged by State law to provide equalized educational opportunities for its pupils. The mere fact that

the board did not initiate the conditions causing such educational deprivation does not relieve it from the legal obligation of seeking proper solution?, particularly in a cor.r:.ur:i-y such as Englewood ^ere several reasonable, practical, econouic and desirable solutions exist. A board's lack of fault does not

absolve it from the responsibility of mitigating or eliminating the harm. 7. I further ruled in the Spruill case that

where the conditions expressed above exist, that a school board must take steps to reduce the extreme racial imbalance where

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HEPflQDUCED FKM HZ OXiBCTIOtB QT 1HE MMUSOOFT DIVISION, USSWBf OP {SMQSSS

reasonable means consistent with sound jjrinclales of) education exist within that given, district. xics. rsse~s existed

in, Snjjlewood. 3tie plan submitted by iie Scjjlssood Z-c-_rc c-r Education to eliminate the undesirable situation ia "Licecls School was reviewed by Myself and sy staff ad we fsyinxd it to be

educationally sound. Upon the advice of th* At torcfiy Gte^rs.1 that tbe plan was legally sound, 1 approved it. One of Efa* ma^oT sj>ects oE the plan a tralizacion of the 4th grade. It Bight be aotad t through 12 have alreatty been, centralised In Englasoasi, It >.is ::-

j long been accepted as educationally saoadi' an-d logieasl to cr:c:a i [ centralized school grades. The e&iCatiooal adwantages ac;.to centralization for swny reasons such as the ; school ssoveaeat., ox the regioaalits:ti2E or cancel. school districts, hawe oct*s6ti^3d ebe disadwaatagas vfcich ccru to the attendance of a child at a school nsarast rj.s hosa. Tha situation in Ei^lfw>d is aucfc tr.-- ssca in :>,il the -.rj-.t-er.c ' advantages of the present jlaa fr aatval^h the cisor dis;^, vantages which accrue to Sth-gratie cisil&f^ %ibo tiaS act centralized 6thgrade, school.

X. Sub ir-S

Subscribed and sworo to before wt this y*t (igy of January,

Kotary Public of" Str

REPRODUCED FPOM THE COT.TiTTTICNS OF THE MANUSCRIPT DIVISIOM, LIBRARY OF CCNGRESS

We hereby consent to entry or the within Order.

Major & Major, Esqs.

By

Attorney for Intervening Plaintiffs Volpe, et al.

Vorsanger & Murphy, Esq. By. ; Attorney for Plaintiffs Fuller, et al.

I'l

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William V. Breslin, Esq. Attorney for Defendants Volk^and Board of School Estimate I ' ' Sidney Dincih, Esq. Attorney for Defendant Board q Education

ffV

Joseph Hoffman, Esq. Attorney for Intervening Defendant Raublnger

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APPENDIX Answer of Intervening Defendant, Frederick M. Raubinger, Commissioner of Education of the State of New Jersey to Complaint of Plaintiffs (Complaint of Plaintiffs appears at pp. 2a-7a of the Appendix to the Brief for Plaintiffs-Appellants.) UNITED STATES DISTRICT COURT DISTBICT OF NEW JERSEY (In Equity) CIVIL 847-63 * . . GERTBUDE P. FULLER, EICHABD L. GBUBMAN, THOMAS P. CACCIOLA and JOSEPHIXE CACCIOIA, his wife, and others to .be 'named,
-PJftiTltlfFR. '

'.

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: . .

1 I ' ' AUSTIN A. VOLK, WILLIAM D. TICKNOR, JR., O. CABLYSLE MoCANBLESs, CABMEN E. HINTZ, and WABBEN L. LEWIS, constituting the BOARD OF SCHOOL ESTIMATE or ENOLE-WOOD, NEW JERSEY; JOHN H. PERRY, Louis GRABOW, THEODORE, B. VAN ITALLIE, CABMEN E. HINTZ and 'WABBEN L. Lpwis, constituting the BOABO OF EDUCATION OF THE Crrr . OF ENGLBWOOD, Defendants.
*

vs.

::-...'

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!i ji'-f :fjij;
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The intervenor, Frederick M. Eanbinger, Commissioner of Education of the State of New Jersey, answers the complaint, as follows:

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I

iijf.

-. . ___ .__.

II

2a Answer of Intervening Defendant, Frederick M. Raubinger, Commissioner of Education of the State of New Jersey to Complaint of Plaintiffs . 1. He admitS-the allegation of_paragrapb_l of-the eom" 2. He is without sufficient knowledge or information to form a belief concerning the allegation of paragraph 2, and accordingly, leaves plaintiffs to their proof thereof. 3. He denies the allegation of paragraph. 3. 4. He_demes the allegation of paragraph 4, in that Englerood Board of -Education did not always apply the neighborhood school policy. 6. ..He denies the allegation of paragraph 5. 6. He admits the allegations of paragraphs 6 and 7. 7^He-denies-the-allegation-of-paragraph-8.-:8. He admits the allegations of paragraphs 9,10 and 11. 9. He 'denies the allegation of paragraph 12. 10. He admits the allegation of paragraph 13, except insofar as it states th~at pupils are to be assigned nearest their homes; the words should read "be assigned as nearly as possible to the school nearest their homes" and after the words "so remain" there should be added the wprds "provided that it is administratively and educationally practical to do so." 11. He is without sufficient knowledge or information to form a belief concerning the allegation of paragraph 14, and accordingly, leaves plaintiffs to their proofs thereof. Answer of Intervening Defendant, Frederick M. Raubinger, Commissioner of Education of the State of New Jersey to Complaint of Plaintiffs 12._He admits-the-allegation -of-paragraph15,-except the words "unrelated to the instant plaintiffs ""of "which lie is without sufficient knowledge or information to form a belief, and accordingly, leaves plaintiffs to their proofs thereof. 13. He admits the allegations of paragraphs IS, 17 and 18. 14. He denies the allegations of paragraphs 1JT and 20, in that they do not truly reflect the reasoning of the Courts. 15. He denies the allegation of paragraph 21, in that the Court found the law to be clear but admitted it was unsettled. 16.-He-denies~the-allega'tions~of~paTagraphs~22~and~23, 17. 'He admits the allegations of paragraphs 24 and 26. 18. He is without sufficient knowledge or information of the allegations in paragraph 26 to form a belief, and accordingly leaves plaintiffs_to their proofs thereof. 19. He denies the allegation of paragraph 27. FTBST SEPARATE DEFENSE The plaintiffs have brought a similar action on the merits in the Superior Court of-New Jersey, Ijaw Division on August 10, 1963, which was dismissed and they filed a Notice of Appeal in that matter before the Appellate Division of the Superior Court of New Jersey, which case is still pending in the State Courts.

ia
Answer of Intervening Defendant, Frederick M. . Raubinger, Commissioner of Education of the State of New Jersey to Corn-plaint of Plaintiffs : i. : SEOOND_SEPAKATE .DEFENSE

5a Answer of Intervening Defendant, Frederick if. Raubinger, Commissioner of Education of the State of New Jersey to Complaint of Plaintiffs
SlXTH-SEPAEiTE-DBFBNBB ---

. The Volpe intervenors brought a similar action" on the merits in the Superior Court of New Jersey, Chancery Division in August of 1963, and their case was dismissed. The intervenors filed an appeal to the Appellate Division of the Superior Court of New Jersey, and this case is still pending. Further, .these intervenors were parties before the Commissioner of Education at the original schoo ings. .They filed an appeal before the State Board of Education and argued their case fully at that level. They filed an appeal from the State Board's affirmance at the Commissioner's decision with the Superior Court, Appellate Division, and this case is still pending. THJBD SEPABATE DEFENSE The decisions of the State Courts in the above separate defenses are res judicata as to the plaintiffs and the Volpe intervenors, and precludes them from obtaining injunctive relief or from collaterally attacking the Commissioner's decision. FOUKTH SEPARATE DEFENSE This Court is without jurisdiction, in thai jurisdiction has already attached on the merits in three separate court -actions in the Courts of the State of New Jersey. FIFTH SEPARATE DEFENSE This Court has abused its discretion in failing to abstain from entertaining this action until the State Courts have disposed of the meritorious questions here involved.

This Court is without jurisdiction, in that there is no substantial Federal question involved. SEVENTH SEPARATE DEFENSE Plaintiffs have alleged no facts which would entitle them to equitable relief, and that any relief granted to them would be contrary to state and fedefallaw. Attorney General of New Jersey. By: JOSEPH A. HOFFMAN, > Deputy Attorney General.

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Answer of Intervening Defendant, Frederick M. Raubinger, Commissioner of Education of the State of New Jersey to Complaint of Intervening ^__ Plaintiffs (Complaint of Intervening Plaintiffs appears at pp.jS>5b of the Appendix to. the Brief for Defendant-Appellee, the Board of Education of the City of Englewood). (FiledNovember 29, 1963.) UNITED STATES DISTHICT COOBT DISTRICT OF NEW JEBSEY (In Equity) Civil No. 847-63

7a

Answer of Intervening Defendant, Frederick M, Haubinger, Commissioner of Education of the State of New Jersey to Complaint of Intervening Plaintiffs constituting the BOABD OF SCHOOL ESTIMATE OF ENGLEWOOD, NEW JERSEY, and THE CITY OF ENGLEWOOD, NEW JERSEY, JOHN E. PERRY, LOUISE GEABOW, THEODORE B.
VAN TTAT.T.TT, CABMEN K. HlNTZ and WiBKEN L. LEWIS,

constituting the BOABD OF EDUCATION OF THE CITY OF ENGLEWOOD, Defendants, and FBEDBBICK M, RATJBINGEB, Commissioner of Education of the State of New Jersey, Intervening Defendant.

GEB.TBUDE P. Ftn.T.ra, SICHABD L. GBUBMAN, THOMAS F. CACOKPLA and JOSEPHINE CACCIOLA, his wife, and others to be named, Plaintiffs, and JERRY VOLPE and KATHEBIKE YOLPE, his wife, Louis PUOACB and BEATRICE PUGACH, his wife, AT.T.A-W LASSBR and JUDITH IHSSKH, his wife, OTTEUO D'ALESSIO and MAME D'ALEssro, his wife, SOL HANDLER and LILLIAN HANDLES, his wife, EUGEXE F. CLEMENTS and MABJOBIE CLEMENTS, his wife, EDWARD KOBBIKS and GLORIA BOBBINS, his wife, LLOYD POLLABD and BLANCHE POLLABD, his wife, Intervening Plaintiffs, AUSTIN A. VOLK, WDJUAM D. TICKNOB, JR., 0. CABLYSLE s, CABMEN B. HINTZ and WABBEN L. LEWIS,

Frederick M. Eanbinger, Commissioner of Education of the State of New Jersey, answers 'the complaint of intervening plaintiffs as follows: 1. He admits the allegation of paragraph 1 of the intervening plaintiffs' complaint. 2. He denies the allegation of paragraph 2 of the intervening plaintiffs' complaint. 3. He denies the allegations of paragraph 3 of the intervening plaintiffs' complaint, and by way of further answer thereto he states that The Board of Education of the City of Englewood, Bergen County, maintains a public school system consisting of elementary grades, a central sixth grade, a junior high school and a senior high school, and

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Answer of Intervening Defendant, Frederick M. llaubinger, Commissioner of Education of the State of New Jersey to Complaint of Intervening Plaintiffs 8. He admits the allegation ~of7paragfapt 8 of^the-intervening plaintiffs' complaint. 9. The July 1, 1963 decision of the Commissioner of Education of the State of New Jersey is a part of the pleadings and the Commissioner relies upon that as to what his decision was in the Englewood case. Spruill v. Board of Education of Englewood. 10. The order of the Commissioner in the case of Spruill v. Board of Education of Englewood is a part of the pleadings and the Commissioner relies upon that. 11. He admits the allegation of paragraph 11 of the intervening plaintiffs' complaint. . 12. He admits the allegation of paragraph 12 of the intervening plaintiffs' complaint. 13. He admits the allegation of paragraph 13 of the intervening plaintiffs' complaint. 14. He denies the allegation of paragraph 14 of the intervening plaintiffs' complaint. 15. He denies the allegation of paragraph 15 of the intervening plaintiffs'complaint. .' : 16. He denies the allegation of paragraph 16 of .the intervening plaintiffs' complaint'and by way of further answer thereto he states that after full argument the State Board of Education of the State of New Jersey on September 25,1963 affirmed the decision of the Commissioner and apprised all counsel that a written opinion would be forthr coining. Said opinion was served on all parties on October 8, 1963.

Answer of Intervening Defendant, Frederick M. Bdubinger, Commissioner of Education of the State of New Jersey to Complaint of Intervening Plaintiffs that at the close of the school sessionJn June,_1963_amongst _pth^r^uildjngs,~thisrdefendalit-opera ted five elementary public school buildings. 4. He denies the allegations of paragraph 4 of intervening plaintiffs' complaint, and by way of further answer thereto he states that during the school year, which ended in June, 1963, the five elementary public schools, kindergarten and grades one through six were operated on what is commonly known as "the neighborhood school plan", under which students generally were assigned to a school based on the place where they lived and its proximity to a school which they were designated to attend. However, the assignment may be based on other factors that are taken _into_aeconnt_such_as__(a)-safety (-b)-equalizatiflrTof"class loads and (c) special needs of certain students and practicable means of meeting these special needs B.g., trainable children, educable mentally retarded, neurologicallv impaired, physically handicapped and so forth. 6. He denies the allegation of paragraph 5 of the intervening plaintiffs' complaint but he admits that for a number of years, including the present time, the Board of Education of the City of Englewood has not based its pupil assignment policy on race, creed or ancestry. 6. He denies the allegation of paragraph 6 of the. intervening plaintiffs' complaint. 7. He admits the allegation of paragraph 7 of the intervening plaintiffs' complaint but avers that other allegations and prayers for relief were made as well.

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Answer of Intervening Defendant, Frederick M. Batibinger, Commissioner of Education of the State of New Jersey to Complaint of Intervening 17. He is without sufficient knowledge or information to form a belief concerning the allegation of paragraph 17 of the intervening plaintiffs' complaint. 18. He denies -the allegation of paragraph 18 of the intervening plaintiffs' complaint. 19r~He admits that the intervening plaintiffs join in~thTS~^ plaintiffs' prayer for judgment and that they seek an injunction but he denies that there is any federal right to attend a neighborhood school and this Conrt is completely without jurisdiction to grant the relief sought by intervening plaintiffs in paragraph 19 of their complaint.
ARTTTTTR J.

Affidavit of Fredrick M. Raubinger in Opposition to Motion of Plaintiffs for Summary Judgment in the-Court Below-(Filed-^Tannary 10,1964) UNITED' STATES DISTRICT COUET DISTBICT or NEW JEESEV (In Equity) Crra, No. 847-63

0EBTBUDE P. FuliER, ft

(lls.,

Plaintiffs, AUSTIN A. VOLK, et als., Defendants.

Attorney General, of New Jersey, Attorney for Frederick II. Batibinger. By: JOSEPH A. HOFFMAN, - Deputy Attorney General. STATE or NEW JEKSET, \Y OF MEBCER, j

I, Frederick M. Raubinger, of full age, being duly sworn according to law upon iny oath depose and say: 1. I am and have been, since August 15, 1952, the Commissioner of Education, State of New Jersey. As Commissioner, I am the principal executive officer of the State Department of Education mid ex officio secretary to the State Board of Education of the State Department of Education.

I
12a
Affidavit of Frederick M. Raubinger in Opposition to Motion of Plaintiffs for Summary Judgment in the Court Below 2. On July 1, 1963, after extensive hearings, I rendered a decision in the case ot'Sprvill v. Board of Education of Englewood. A copy of said decision is attached to my affidavit in support-of-my motion to intervene and to dismiss the complaint in this matter and I hereby incorporate said decision by reference as a part of this affidavit. . 3. Prior to the hearing in the Spruill case and beeausV' of disturbances in the educational system of the Englewood School District, I formed a committee to make a study of the situation existing in the Englewood public schools. The members of this committee were as follows: George C. Boone, -Robert A. Flood, Archie F. Hay, Jr., Anne S. Hoppock, Emmett Spurlock and Robert W. Ward. A very brief and non-exhaustive biographical profile on each member of this committee follows. GEOBCE C. BOONS;, CHAIRMAN B.S. Pennsylvania State University; M.A. in Educational Sociology, New York University; Ed. D. in School Adminstration, New Tork University. Teaching experience in both, elementary and secondary schools; principal of both -^elementary and secondary schools. In the twenty years prior to joining the State Department of Education in 1960, he served aa Assistant Superintendent of Schools, Coordinator of Special Services and Director of the Children's Bureau in the public schools of Passaic, New Jersey. He served on the faculty of the University of Illinois and the New Jersey State Colleges at Paterson and Newark. He was a delegate to the 1960 White House Conference and has served as chairman of the Conference on the Handicapped, the Welfare Council Commission on Emotion-

(fV
13ft

Affidavit of Frederick M. Raubinger in Opposition to Motion of Plaintiffs for Summary Judgment in tile Court Below ally Disturbed Children, the New Jersey White House Conference Commission on Employment Opportunities for Youth, and the Human Relations Council of the City of Passaic. He is a recipient of the B'Nai Brith Award for Brotherhood Activities. Since 1960 he has been Director of Education of the Handicapped, New Jersey State Department of Education. ROBERT A. FIXXJD B.S. Pennsylyania State University, M.S. University of Pennsylvania; additional study at Columbia and Rutgers Universities and Montclair State College. Classroom teacher -1935-to-194a-Superrntendenbof-Schools-hrSussex-Borough Haddon Heights, and Nntley 1941 to 1956. Since 1956, County Superintendent of Schools of Sussex County. Served as a member of the Advisory Committee on Secondary Schools for the State Department of Education. Is a member of the New Jersey State Board of Examiners. Has served on numerous study groups, including the Cooperative Project in Public School Administration of the Kellogg Foundation. Was cited by the Nutley and Essex County Human Relations Commissions for work in human relations in Nutley. ABCHIE F. HAY, JH. B.S. Paterson State College, M.A. Teachers College, Columbia University. Teacher, principal and superintendent of schools 1941 to 3956; since 1956 Superintendent of Schools of Bergen County. Faculty, Paterson 'State College and New York University. Recipient of Distinguished Alumnus Award, Paterson State College.

Affidavit of Frederick il. Baubinger in-Opposition to Motion of Plaintiffs for Summary Judgment in the Court Below ANHE S. HOFPOCK ' B.A. Entgers, 1I.A. Columbia University; D. Litt. Glass- ' boro State College. Has served as an elementary teacher, principal, supervisor and county helping teacher. Assistant Director of Elementary -Education, New'Jersey Department of Education, 1940 to 1959; Director of Elementary Education since 1959. Has written extensively for educational-journals-and yearbooks; has served on state and national Sommittes dealing with elementary schools; speaks frequently at state and national conferences on elementary education; delegate to the White House Conference on Rural Education, 1944; delegate to the "White House Conference on Children and Youthj 1960; past president, Na_tionalJI!oun(iiLof-State_C-QB5ultants_inJElementary Education. EMMETT SPDBLOCK A.B. Morris Brown College; M.A. Rutgers University: Extensive training in Boy Scout, U.S.O. and Y.M.C.A. work. Has served as elementary school principal, and administrator in the National Youth Administration, Boy Scouts of America and U.S.O. Assistant Commandant and classroom teacher, New Jersey Manual Training School at Bordentown; field representative, New Jersey Division on Civil Bights since 1953. Member Florence Township Board of Education and Florence Township Juvenile Conference Committee. ROBERT W. WAED B.A. and M.A. College of William and Mary; additional study at Rutgers University and New York University.

jfffidavit of Frederick N. Raubinger in Opposition to Motion of Plaintiffs for Summary Judgment in Hie Court Below Teacher, guidance director, directpr_ofMcuiTiculum and instruction in public schools, 1950 to 1961; Assistant~in"Sec-~ ondary Education, New Jersey Department of Education since 1961. President, New Jersey Association for Supervision and Curriculum Development. 4. The above committee's report which was entitled "A Study of Racial Distribution in the Englewood Pnblic Schools" was submitted to me on October 5, 1962r During tie course of the Spruill hearing, this report was offered into evidence by the petitioners. I took judicial notice of this report upon the advice of the Attorney General that this^step was consistent with decisional administrative law of the Stateiof New Jersey. < ' t I 5. Spme'of the facts which are reported to me by this committee and which comprised a portion of the basis for my decision in Spruill are as follows: A.- Studies of pupil achievement reveal that the Negro pupils from the Lincoln School terided'.fy) score lower than White and -Negro pupils attending/the' o'ther schools. For instancef at 'the 6th-grade level in the'1961-196,2 school year the pupils at the Lincoln School scored a median of 4.4, on the Stanford Achievement Intermediate'Battery of tests, while pujfelsln the other elemonta'ry 'schools scored an average median' of 6.5. Further, it was found that far more children from the Lincoln School are left back or:retained in grade than in any other elementary school in Englewood. For instance, in the 1961-1962 school year 17 children were retained in the 3rd grade among the 5 elementary schools, 8 of which were Negro pupils from the Lincoln School. No other elementary school approximated this number. In the

16a
Affidavit of Frederick 3f. Raubinger in Opposition to Metion^of Plaintiffs for Summary Judgment " in .theJOouft~Beloio~r Bame year, 4 pupils were retained in the 6th grade among all of theelementary schools, all of which were Negro pupils from the Lincoln School.' B. The committee, in an attempt to gather objective evidence regarding .the^achieyement of Lincohi School pupils^,made studies of relative class rank, the American Couucil of Education Psychological Examinations (A.C.E. scores), and reading scores of Englewood High School pupils. Their findings, supported by pupil records, were that the graduates of Lincoln School ranked appreciably lower than the -gtaduates-of_other elementary schools. It might be pointed out that the committee found that the Negro graduates from Liberty School (where the Negro-"White ratio of enrollment had been about 50-50) ranked appreciably higher than the graduates of the Lincoln School and the "White graduates from the Liberty School ranked as high or higher than the graduates from the predominantly "White Cleveland and Eoosevelt Schools. All of these facts are supported by records, charts and statistics and represent merely a sampling of the facts supporting the objective finding that Lincoln School pupils have a lower record of achievement than pupils of the remaining Englewood elementary schools. C. A study of drop-out records also supports the Spruill decision. During the 5-year period between and including the school year 1957-1958 to 1961-1962, 226 pupils dropped out of the Englewood junior and senior high schools. Of this number, 100 or 44% of the total were Negro. This, of course, means that compared with the total number of Negro pupils in the school population, a greater percentage of Negro pupils than White pupils drop out of school.

17a
Affidavit of Frederick M. Raubinger in Opposition to Motion of Plaintiffs for Summary Judgment "While the percentage of drop-outs in the Englewood schools has been decreasing; the percentage of Negroes in the dropout group has increased. The 1961-1962 school drop-out statistics provide a typical example: A total of 6 graduates of Cleveland School, all "White, dropped ont of high school; a total of 3 "White and 1 Negro graduates of the Franklin School dropped out of high school; a total of 1 "White and 2 Negro graduates of the Roosevelt School dropped out; a total of 1 Negro graduate of Liberty School dropped out; and a total of 13 Negro Lincoln School graduates dropped out of high school. In the school year period mentioned above, the total drop-outs were as follows: Cleveland25; Franklin8; Roosevelt18; LibertygOT 'Lincoln58. These merely represent some of the facts reported to me by my committee but they are rather salient and demonstrative of the serious problems involved. 6. It was my decision and it remains my opinion that a stigma attaches to attendance at a school whose enrollment is completely or almost exclusively Negro and that this sense of stigma and resulting feelings of inferiority Have an undesirable effect upon' attitudes related to learning. My decision was based on the report of the Fact-Pinding Committee, all of the evidence before me, and, of necessity, upon my own experience and knowledge in the field of public education. Learning results from the interaction of the learner and his environment. Schools attempt to provide a wide variety of experiences suited to the ages and capabilities of the pupils, in order that the opportunities to learn may

V
ite
Affidavit of Frederick 11. Ravbinger in Opposition to Motion of Plaintiffs for Summary Judgment in the Court Below Children's attitudes about themselves, who they are and what they are, develop-from the ways in which they are treated by those with whom they come in contact in the process of growing up. The public school has a major role to play in seeing that children's attitudes are positive ones that encourage self-development. A feeling of stigma or inferiority, which may be fostered by the conditions under which a child lives, should not be strengthened and perpetuated by the school where reasonable means exist to avoid it. The development of such feelings engenders attitudes which produce poor motivation, low aspirations, and lack of purpose with a resultant negative effect upon ~lear5ingr^lris-my-judgment-tha.irthe-Linooln-School-in En'glewood, as it existed at the time of the complaint before me, tended to strengthen in many of its pupils feelings of stigma growing out of conditions of housing in the community, that reasonable means existed to avoid this condition, and that failure to employ those means constituted a denial of educational opportunity under 'the laws of New Jersey. A board of education is charged by State law to provide equalized educational opportunities for its pupils. The mere fact that the board did not initiate the conditions causing such educational deprivation does not relieve it from the legal obligation of seeking proper solutions, particularly in a community such as Englewood where several reasonable, practical, economic and desirable solutions exist. lA board's lack of fault does not absolve it from the responsibility of mitigating or eliminating the harm. 7. I further ruled in the Spniill case that where the conditions expressed above exist, that a school board must take steps to reduce the extreme racial imbalance where reason-

18a
Affidavit of Frederick M. Raubinger in Opposition to Motion of Plaintiffs for Summary Judgment '- in the "CburCBeZd.ie__. be many and diverse and present to the greatest degree possible. When the environment for learning is broad and varied, rich mill eiperience olf many kinds, the educational climate is enhanced and learning occurs more effectively Conversely, when the environment is meager, impoverished or limited in scope, opportunities for learning^ are restricted or denied, and education is hampered and apt to he less effective. This is a generalization to which individual exceptions will be found, but, in my opinion, the statements are true with respect to pupils in general. In my judgment, the Lincoln School in Englewood, as it was dr-provided-a-gignineantly-les.s than desirable CUIlaClLU'LcU)yKWT** -"*a""~ educational environment which could be improved-through reasonable, practicable and educationally sound means and that being so it constituted a denial of equal educational opportunity under New Jersey law. The major goal of public education in this country is to help each individual to become an adequate person, to achieve his optimum development as a human personality so that the welfare of all may be enlarged. To accomplish this purpose schools must be concerned with the attitudes which pupils develop about themselves and the world they live in because those attitudes have an incalculable effect upon successful learning. How an individual sees and views himself has important implications for every aspect of his behavior in school or out. We know, for example, that failures in reading and spelling occur, in most instances, not so much from incapacity to achieve these skills but from unfortunate attitudes about them. Pupils who view ' themselves as inadequate are apt to respond or behave inadequately.

20a ^ Affidavit of Frederick M. Raubinger in Opposition to Motion of Plaintiffs for Summary Judgment in the Court Below able means consistent \rith sound principles of administration and education exist -within that given district. Such, means existed in Englewood. The plan submitted by~ the Englewood Board of Education to eliminate the undesirable situation in Lincoln School was reviewed by myself and my staff ^nd we found it -to be educationally sound. Upon tfiTadvice of the Attorney General that the plan was legally sound, I approved it. One of the major aspects of the plan was the centralization of the 6th grade. It might be noted that-grades 7 through 12 have already been centralized in Englewood. It has long been accepted as educationally sound and logical ~~to~cfeate~centralized~school-grades.The^educatiQBaLad-_ vantages accruing to centralization for many reasons, snch as the junior high school movement, or the regionaKzation - or consolidation of school districts, have outweighed the disadvantages which accrue to .the attendance of a child at a school nearest his home. The situation in Englewood is much the same in that the inherent advantages of the present plan far outweigh the minor disadvantages which ae1 erne to Ob-grade children who now attend a centralized eta-grade school. FREDERICK M. EAUBINBEB (Sworn to January 9,1964.)

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January 9

Mr. Mlehatl Clark, U.S. DittriBt of Xtvark, Hw

KUr, Jr. District Court Kv Jarny Jrty


Bi Fullr, t al. v. Volk, et !.,

Dtar Mr. Elln

I am ttnclosine hrvitii th* original of an Af I'idavit in Oppocition to Motion For Summary Judgownt, A copy hta tnasn garved upon all part las In th Crtiflot Of 3r7io*.

Vpy truly your, Barbara A. Morris


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Jam* X. Murphy, Ssq. Jtm A. Major, Bsq. Jobn J. Brtilia, *. 3idny Dinain, tq. Hoffman,

Hichal Bailor, Jr. rJit United SUts District Court rl Bulldlr.g Kr. Ktlltri Fullr I s Ancloslng tvo origins! Anv*rs io th ve-tatitl<i sttr for filirigt iii jtccordacce with QrcUtr of the Court of ca*r 16, 19^3* bscn auxUi on uli counoei And wi AJTi'iac.vit <xf rrlcu tfili b rrcvt-Hsl for rii Vary truly yours, Barbara A* Karri*

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

UNITED STATES DISTSICT COUST

DisTaicT or mv civil ;;o.

a n.1

P. yuULiwi, et !., Plaintiff*. g Plaintlffo,

AUSTIN A. VOtJC, at al.,

K. iUU&IMOER, Coaa. of Education of Wo* J*rcy, . t fondant a.

HOSTOK StAVIS and V1LLIAW K; KJiJSTLEB Attoru*jr for Intervenor Jc berth Spruill Kawark, ii.J. 07102

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

GERTRUDE P. FULLER, at al.,

and

Plaintiffs, i t
i Intervening Plaintiffs, i

JERRY VOLPE, et al.,

AUSTIN A. VOLK, et al.,


CIVIL NO. 81+7-63

Defendants, and
FREDERICK M. RAUDINGER, Commissioner of Education of the State of New Jersey,
AFFIDAVIT IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

and KENNETH ANCRUM, et al., Intervening Defendants, t

STATE OF NEW YORK ) COUNTY OF NEW YORK )

BARBARA A. MORRIS, being duly sworn according to lav, upon hir oath, deposes and saysi 1. That she is one of the attorneys for the Intervening Defendants, Kenneth Anorua, et al.

/ 2. This affidavit is made in opposition to plaintiffs'

motion for summary judgment returnable June 13, 196^. 3. Among the facts in dispute in the within case is contents of paragraph four of plaintiffs' supporting affidavit. Up to June, 1963, and thereafter, the Englewood Board of Education has operated its elementary schools in accordancs with a system, pursuant to which school assignments are made on many

baits, oonsl*tnt with the educational administrative practice!. Iht residence of the child it but ona of nany factors considered. >f. Haying determined that Hegro students In Lincoln School were receiving unequal educational opportunities under the lavs of the State of New Jersey, the Commissioner of Education ordered the Englevood School Board to submit a plan which, whan iapleaented, vould remedy that inequality. Pursuant thereto, th Board of Education submitted a plan which is at issue in this case. 5* In implementing the plan, the Board continues its function of assigning students to schools. For example, in the past the Board of Education of Englevood has designated certain arias of the city as optional areas for tha purpose of school attendance and has allowed students living in those optional areas to select which of two schools they will attend. 6. Contrary to the facts set forth in paragraph 15 of plaintiffs' supporting affidavit, during the school year which ended June, 1963 the elementary schools were operated in accordance with the neighborhood concept, a variable and inconstant concept for school attendance under which students were assigned to schools which, in many cases, bore little relationship to their proximity to the residence of the student. Subsequent to June,

1963, the children of the plaintiffs have continued to attend their neighborhood schools. ?. The attendance of students at the city-wide sixth grade school is in accordance with the school assignment function of the School Board, whioh function has been carried out prior and subsequent to the commencement of this suit. Just as the School Board has in the past determined which school plaintiffs' children shall attend, it is continuing to fulfill that sama function

- 2-

at the present time. Accordingly, no child is excluded from "neighborhood sixth grade schools" which are nonexistent. 8. In order to determine the questions before this Court, i.e. the validity of the plan contested by plaintiffs, it vill be necessary for the court to consider numerous facts, including but not United to the methodology of assignment, whether the plan proposed by the Englevood Board of Education and accepted by the Commissioner of Education is consistent with sound educational principals, and whether that plan is is a reasonable reaedy to the unequal educational opportunities previously mad available to Negro students at the Lincoln School. In connection therewith, it vill be necessary to adduce proof of these matters, Including the testimony of several experts which intervening defendants will supply. 9. It will be necessary to include as a part of the record in this case testimony tending to disprove plaintiffs' aaln contention that the plan is unconstitutional because it is based upon race.

BARBARA A. MORRIS

Sworn to and subscribed before ate this 9th day of January, 196V.

- 3-

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Thl is to certify that on the 9th day of January, 196U-, I rvd a copy of the foregoing Affidavit in Opposition to Motion For Summary Judgment by first-olass mail, postage prepaid, en the foUoving; Janes I. Murphy, Esq. 1 Engle Street Englevood, Nv Jersey Ja A* Major. Esq. 2V1 Mala Street Haokensack, Hew Jersey John J. Breslin, Esq. Wl Main Street Hackensack, Nev Jersey Sidney Dinoin, Eaq. 16 Wast Palisade Avenue n{levocd, Nev Jersey Joseph Hoffman, Esq. Deputy Attorney General State House Trenton, Nev Jersey

BARBARA A. MORRIS

Sworn to before ma tais * 9th day of January,

HACKENSACK,N. J.

DIAMOND i-oo
JAMES A.MAJOR J A M E S A. MAJOR U

January 9th! 1 6 94

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CIVIL ACTION NO. 8^7-63. GERTRUDE P. FULLER, et Plaintiff!,


and
JERRY VOLPE, et ala..

Intervening Plaintiffs, vs.


AUSTIN A. VOLK, et ala.,

and

Defendants,

ON MOTIONS FOR SUMMARY JUDGMENT AND TO STAY PROCEEDINGS.

FREDERICK K. RAUBINOER, Intervening Defendant.

BRIEF OF THE IHTERVENINO PLAINTIFFS, VOLPS, S? ALS.

MAJOR & MAJOR ATTORNEYS OF INTERVENING

Plaintiffs, Volpe et als. 24l Main Street Haolcena&ck, New Jersey

JAMES A. MAJOR, Of Counsel,

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January lu. 1964 Honorable Anthony . Augelli United State* Slatriot Court Federal Siildins Newark 1. JF.J. 8| Puller - Yoip - Volk- JUubinger and Aneruaj CtYll Ho. 8H7-S3 My dear Judge Augellij In aonosction with your oonsideration or defer tun exercise of juriadietion your Honor's attention to tlw op tbe United States banded down last t-Uand' oao of England y, Louisiana State Board of That OM 4el nith tbe pr*Mntd to your Honor. rbr, b*a soujjat In tt* fd*ro,l oour court diaol8d ta orielnal ap tattars to tlMj St*t court, to llti&at* in tb Stat court, tk.d to past upon t>b fed our motion to respeatfully Suprems Court of 13, 1964 in the Examiners.

urisdictional quostione rlif bad originally , as care, the ditrioc for rli*f raferring th her*, to* parties proceeded a6 hr, the State court ional 'quation.

aa was *btur, after Tha <iuetion in of t*t o , tiii parties could go buck to tn fdral district Qourt. Sepra Court in the England ea bald tht, li#oauie it* ltr' *v not(uffioiantly el*r, it would perit tOB particular case to proeaetd in tn* fdral 4i)t it saad* it clar that for th future suoh A oour9* would n tted. Tbe Court at r*rvation uubmits his federal claim* for de<il*ien by the sttt court*, litigates them tnera, and h* them dee idsd there, then Mntber or not n *k dirsot review of the state deolaion in this Court - lie ha> elected to forego UiR rifclat to return to the District Court.* Slip sheet opinion, pp.

Licitly hold that if a party frely

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

2.

Th Supreme Court of Bourse do* a not purport to deny an opportunity for federal judicial review of tb* oonstitutiooal questions. The Court has merely directau tfcat *uoh ravieM fee had before It under it* power to rvi*v rulings of St*t c o u r t s , rathar than by a MW litigation ooc^eooad at ib* district court level. I'oa faot that, in ti in*tant oaa State court litigation bae not bean completed oak tb aituatiou an a_ fortiori oa. l'br r*naina only th* qu*ation "Mtiwr the plaintiffs froely and without reservation ubsiittd their fedtral claim* for dMision by tot Stat court*. Inspection of th pladioea and otb*r papora fil*d in Volpa Superior Court of New Jr*y, Ch&nory Division, Borgan d in Puller v, Yoljc, Superior Court of Xow J e r s e y , -a* Brgn County, and of the brief fil*U by tuosa partide tb* State Board of duoation shows tl*t faaoral constitutional grounds er preaented to the State courts and to the State Board of Lcucation. Very respectfully yours,

MS: mil o u t All counsel

Morton Stavit

JAMES t ^ M U R P H Y \R AT LAW

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OF CONGRESS

January 21*, V961t

Herbert late, Esq. 126 Court Street Newark 2, New Jersey Ret Fuller, et al vs. VolX, et al . - Docket No. 6V7-6^ Dear Herb: I am enclosing an original and copy of Affidavit of Service and an original and copy of the Order in the above entitled case. Kindly file the originals for me andsivise me of the date of filing. Very truly yours, Barbara A.- Morris Associate Counsel

BAK:anb Enclosures

.REPRODUCED FROM THE COIiECTICNS OF THE MANUSCRIPT DIVISION, LIBRARY OF CONGRESS

GROSS 8 STAVIS
.;. COUNSELORS AT LAW
JOEL GROSS ' MORTON 3TAV13 "ABEL LRICHARDJON 4 BROAD 3TR.EET N E W A R K 2, N. I.

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REPRODUCED FKM THE .COLLBCTICNS OF TIE MANUSCRIPT DIVISION, LIBRARY OF CONGRESS

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o/ opinion anJ th^t, iwMditt* *$??! fro/ the Or-Jor *t*ri*ll/ dvac ttd u i t l f l j a t c t r i n a c i c a oi' th*

20

eise of a jurisdiction to which it has no legal claim. It is primarily a restraining rather than a corrective remedy. Being; an extraordinary remedy it will not lie for grievances or errors which may be redressed or corrected in the ordinary course of judicial proceedings by other remedies provided by law. On application for prohibition the merits of the main case are not involved.... The question is whether the court was clearly without jurisdiction. If the tribunal whose acts are complained of acts within its jurisdiction prohibition will not issue to restrain its actions, however erroneous they may be. In Ex Parte Fahey, Federal Home Loan Bank Commissioner, 332 U. S. 258, 67 S. Ct. 1558, 1559, 91 L. Ed. 2041, the Supreme Court, in considering a petition for prohibition against a United States District Judge, among other things said: "Mandamus, prohibition and injunction against judges are drastic and extraordinary remedies. "We do not doubt power in a proper case to issue such writs. But they have the unfortunate consequence of making the judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants before him. These remedies should be resorted to only where appeal is a clearly inadequate remedy. AVe are unwilling to utilize them as a substitute for appeal. As extraordinary remedies they are reserved for really extraordinary causes." "WHEREFORE, Respondent says in response to the Motion herein: ^ Having thus made a full response to all the matters and tbing? contained in the Motion, Respondent prays that the Motion for leave to file Petition of Prohibition be denied. VORSANGER & MURPHY, ESQS., Attorneys for Respondents. Gertrude P. Fuller, Richard L. Gnibman, Thomas F. Cacciola and Josephine Cacciola. Dated March 9, 1964.

APPENDIX A UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY (In E q u i t y ) CIVIL No. >47-'j" GEF.TP.UIIE F. FrLi.Fi;, R i c n . \ r r ^ L. GP.UBMAN. THOMAS F. CAIVJOLA anJ i JOSEPHINE CACCIOLA. his wife, ami j others to be iianu'd. Plaintiff,
<i u d

JEF.RY VOLPE and KATHEP.INE VOLPE. his wife, Louis PUOACH and BEATRICE PutiACH. his wife. ALLAN LA?SEJ: and J U P I T H LAS=EH, hi? wife, OTTILIO D'ALF.SS:O and MAEIE P'ALLESIO. his wife, SOL HANDLER and LILLIAN HANDLEF.. his wife. ETGENE F. CLEMENTS and MAEJOF.IE CLEMENTS, his wii'e. EDWARD ROBBINS and GLOSIA ROBBIXS. hi? wife. LLOYP POLLAF.D nml BLANCHE POLLARD, hi? wife, Iitte.rrenina P l a i n t i f f . AUSTIN A. VOLK. WILLIAM D. TICK-vor.. JR.. 0. CAKLYSLE MC-CANT-LE??. CAT-.MEN R. HINTZ and WARF^X L. LE\VI?, ci-.n?iinniiij: iho Bo.\"D OF SCHOOL ESTIMATE OF ENGLEWOOP. NEW JEF.SKV, and THE CITY or ExGLE\VOOD, NEW JE;;?IY. J O H N E. PERHY. LOUISE GKABCV.-. TErorors R. VAN ITALLIZ. CAEMEN R. H;XT,~ :-r ; J "\V.*.3:r.EN L. LEWI?, ooiisiitiitinc tho BOARD OF Enue.\T!'ix OF T::~ CITY OF EN OLE WOOD. Defendant*, and FREDERICK M. R A U F i ^ E r . Commissioner of Education of the Stsu- of New Jersey, Intcri'fn in a DC ft" n >ia n i. la

2a
1. The intervening plaintiffs are citizens of the United States and of the State of New Jersey, as well as taxpayers of the City of Englewood, Bergen County, New Jersey, and are the parents of minor children who attend the public school system of tbe City of Englewood, Berg'en County, Xcw Jersey, and during all tbe times hereinafter mentioned occupied the said status. 2. This suit involves rights granted to tbesc intervening plaintiffs by the Fourteenth Amendment of the United States Constitution. 3. The City of Englewood maintains an elementary public scbool system, and at tbe close of the school season in June of 1963 operated 5 elementary public school buildings. 4. During the school year which ended in June of 1963, the said schools were operated on what is commonly known as the neighborhood school basis, under which students were assigned to a school based on the place where they lived and its proximity to the school which they were designated to attend. 5. At tbe close of the school year in June of 1963, and for a long period of time, the assignment of pupils to the respective schools was not based on race, creed, or ancestral origin. 6. Under tbe system as thus operated, the children of these intervening plaintiffs would have attended a neighborhood scbool in the scbool year commencing in September of 1963. 7. Prior to July 1st, 1963, certain parents of school children attending the Englewood school .system filed with the intervening defendant, Frederjipk M. Raubinger, petitions alleging that the defendant, Board of Education of the City of Englewood, maintained racially segregated j3ublic schools and had refused to implement plans to eliminate patterns of racial segregation alleged to exist in the public schools, and requested an order directing the defendant. Board of Education of the City of Eng-lewood, to take immediate steps to eliminate all aspects of racial segregation in the said public school system. The said petitioners fur-

3a
ther prayed that the defendant, Board of Education of ib~ City of Englewood. be required to put in effect a particular proposal known as the "central intermediate school p l a n . " S. The intervening plaintiffs were permitu-d to in'.ervene in that action. 9. On July 1st, 1963. the defeudam. Fn/d-ric:-: M. Raubinger, filed his decision in which bo b-.-ld ih.it tbf defendant, Board of Education of the City of Ei-arie-v.-ood. did not maintain a racially segregated school =v>u ; m by deliberate action and intent. He f u r t h e r be-Ki ihai tb-? enrollment in one of the said public schools, i. *.. Lincoln Scbool. was comprised almost exclusively of ni-gro r-u:::). and that the defendant. Board of Education of thr City 01 Englewood, should be required to take affirmative ?.c-non to improve the racial balance in that school. 10. The said Commissioner, Frederick M. Raubiiiee:-. by the decision above referred to. dirocu'd the d-?i'end;Hit, Board of Education of the City of EnglrwooJ. to formulate a plan, or plans, to reduce the alleged extreme con;-.?i:: ration of pupils of the negro race in the Lincoln School, nixi to submit such plan, or plans, to him on or before A::;ru?t 1st, 1963, and to put the approved plan into effect at U- begh:ning of tbe 1963-1964 ?cbool year. 11. From this decisiorTthese intervening p'ain pealed to thfe State Board of Education, in ae^ovJa the s t a t u t e in such eases made and provided. 1'2. \Vhilo the said appeal was pending. UK- ooiVruiar.:. Board of Education of the City of Enelewood. pror.::;!i;s;ed a plan and submitted it to the defendant. R^r.V.in-c]-. wbo approved it. 13. The said plan is referred to in the eomi-i'.:-i^t heretofore filed by the plaintiffs. Fuller et a!?., as ;i "ofero-r-.v to tbe said complaint will more fully disclose. 14. Under the said plan, the children of those iHiorvonir.g plaintiffs are no longer permitted to attend neighborhood schools, but are required to attend a sixth grsde vSt^hHsbed for the sole purpose of forcibly intermixing: ivr.no nupiif with negro pupils, and which plan deprive? tho children of

these intervening plaintiffs of their right to attend a neighborhood school solely because of their color. 15. The said plan was adopted without notice to these intervening plaintiffs, with no opportunity to be heard, nor to present proof or argument against the said plan, and the said plan became operative by the vote of the negro students of the Lincoln School, with no opportunity given to other students to vote on the said plan. 16. The decision of the Commissioner was approved by the State Board of Education on September 25, 1963, by a written opinion served on the intervening plaintiffs on October 8, 1963. 17. To implement the said plan, public moneys in the amount of approximately $123,000 have been appropriated and these intervening plaintiffs aver, upon information and belief, that other public moneys will be necessary to implement the said plan. 18. The plan which requires the children of these intervening plaintiffs to attend a designated school, or schools. because of their color, and which deprives them of the right to attend the neighborhood schools which they should attend, constitutes a violation of the rights of these intervening plaintiffs and their children, which said rights are granted to them by the Fourteenth Amendment to the United States Constitution. 19. These intervening plaintiffs join in the prayer for judgment, as set forth in the complaint of Fuller et als. presently on file, and in addition, these intervening plaintiffs ask tjjat an injunction issue enjoining and restraining the defendant, Raubinger, and the defendant, Board of Education of the City of Englewood, from interfering with the attendance of their children at the neighborhood school which they would normally attend. MAJOR & MAJOR, Attorneys of Intervening Plaintiffs. By /s/ James A. Major, James A. Major. Partner.

APPENDIX B UNITED STATES DlsTKK'T O't DISTRICT OF \EV\ JERSE

P. FrU-Ei:. e! ;lj?..

Plaintiff. AUSTIN A. VOLK. et ah..

Civil Afiioa

APPLICATION barine been made by A r t h u r J. SD'.s. ATtorney General 01 the Sia:e of NV.v Jer.-rv. c-n brhalf of Frederick M. Raubinger. Conditioner of Educarion of tb~ State of Xew Jersey, for leave to app-sl from as order entered on November 12, iKtf. which order drrird s. mo::os by the said Attorney Geir;;J to disrijijs :br con^ai-: >d herein, and tho court hsvinj: bp.i\ Jopb A." Ec^s:;. -Esquire. Depuiy Attorney Gc-ix-ral of the 5:s'~ of N"-~ Jersey, in support oi1 the ?.{>.} p.-.orion: Js^jfs T. Murnb". Esquire, appearing for ir.o ]-^iniirf>: J^njf; A. Ms'io'r. Esquire, appeanng for Jerry Voipe ar.d Kstberise Vofne! his wife, and oihers. imer.v-::i:; pi^iiitifrs: S:d^r~ I>:Edr. Enquire, appearing for ;he Bo.-.rd of Eduction of ibe City ol' Enplewood: and Jobn J. B r ^ r l i n . J:-.. soire. aroesring for :be Board of S(/boo; E>r:::^ie of Engl-waod". New Jersey, and rbe City o;' E:-^- p ewood. Xew Jerse^: =-d the court being of ihe opinio); for ibe reasons =e: f o r t h i.~ r.~ conclusion? stated in or.c-j:- c o u r t ;b;-.: the anv-lic'stior: -hc-u"-.-" be denied: It i?. on t b i > l^iii day of Deoe-nber. 1P63. Or.^p.zr- :bs; the application for lonve ;o sr-pea! be siid the ss^e is berebv denied: nnu

It is FURTHER ORDERED that the intervening plaintiffs, Jerry Volpe and Katherine Volpe, his wife, and others, shall, within 10 days from the date of the making of this order, file their complaint in these proceedings, and the other defendants, including the said Frederick M. Raubinger. Commissioner of Education of the State of Xew Jersey, shall have 10 days after service upon them of the said complaint within which to file their answers. /s/ ANTHONY T. AUGELLI, U. S. D. J.

APPENDIX C SUPERIOR COURT OF XEW JERSEY BERGEN COUNTYLAW DIVISION DOCKET Xo. (Xo DOCKET XUMBES) EHTIU'DE P. FULLER, RICHARD L. GF.UOMAN, THOMAS F. CACCIOLA and JOSEPHINE CACCIOLA, his wife, and others to be named. Plaintiffs, Trs AUSTIN A. VOLK, WILLIAMS D. TICKNO;:. Jr.. 0. CARLYSLE MCC.ANDLESS. CARMEN R. XINTZ and WARRES L. LEWIS, constituting THE SCHOOL BOAHP OF ESTIMATE OF THE CITY or ENGI.EWOOD. XEW JERSEY, and THE CITY OF ENGLEWOOD, XEVT JERSEY. Defendants

The above order is consented to as to form. ARTHUR J. SILLS, Attorney General of New Jersey for intervening defendant, Frederick M. Ravbiitfftr, State Commissioner of Education. By: /s/ JOSEPH A. HOFFMAN, Deputy Attorney General. /s/ JAMES T. MURPHY, Attorney for Plaintiffs. MAJOR & MAJOR, Attorneys f o r Intervening Plaintiffs, Jerry Volpe, et als. By: /s/ JAMES A. MAJOR, Partner. /s/ SIDNEY DINCIN, 4fe Attorney for Board of Education of City of Enyhwood. /s/ JOHN J. BBESLIN, JR., Attorney of Board of School Estimate of Engleicood, New Jersey, and City of Englewood, New Jersey.

HON. GORTON H.
MESSRS. VOESANGEE i- Ml'F.PHV.

By: JAMES T. MiT.rHV. EN.. For the Plaintiffs. MESSSS. BF.ESLIX & Br.ESLiN. By: JOHN J. BFXSLIN, JP.. Es*;.. Fi>r the Sthcifl Board of Efii>n3:c : the Citu of Enoleu-ocd.

SIDNEY DINCIN, ESQ., For the Board of Education of the City of Englewood. ARTHUB J. SILLS, ESQ., Attorney General, By: JOSEPH A. HOFFMAX, ESQ., Deputy Attorney General, For the State Commissioner of Education. ALBERT AGOSTINE, C. S. R., Official Stenographic Reporter. THE COURT: The Plaintiffs in this action arc Englevrood citizens and taxpayers. The defendants are the Board of School Estimate and the City itself. It is alleged that the Board of School Estimate has been directed by the City Board of Education to raise the sum of $66,500 from public funds to finance a plan by which the existing school system will be changed. The plaintiffs assert that such an appropriation and expenditure of money would be illegal, unlawful and unconstitutional. The plaintiffs demand that this Court so adjudicate and restrain both defendants from further action in the matter. Pursuant to Rule 4:37-2 the City Board of Education and Frederick M. Raublnger, State Commissioner of Education be allowed to intervene in the case. An action entitled Volpe, and others against Perry, and others, in the Chancery Division of this Court was determined by Judge Collester on August 8th, 1963. In that suit the plaintiffs were citizens and taxpayers as well as being the parents of students. They brought their action against the same two defendants who are parties here, and, also, against the Board of Education to enjoin them all from enacting the same plan. The Volpe plaintiffs had previously been petitioners before the State Commissioner to oppose any action by him

which would alter the existing neighborhood school arrangement. After extended hearings the Commissioner rendered a decision adverse to the Volpe position. The decision dated, July 1, 1963, directed the Board of Education 10 formulate a plan to change the neighborhood system and to submit the same for approval on or before August 1, 1963, for use in the 1963-1964 school year. Such a plan was submitted and approved by the Commissioner on the date mentioned. I have read the file in the Volpe case and the opinion of Judge Collester therein. He dismissed the Complaint on the ground that the action of the Commissioner and the Board of Education should not be reviewed in the Superior Court because the Volpe action constituted a collateral attack upon the Commissioner's decision. He pointed out that the Legislature has specified another forum for review of the Commissioner's action, namely, the State Board of Education; and that the nest step in review should be taken by the Appellate Division pursuant to Rule 4 :S5. There was a special circumstance in the Volpe picture. The plaintiffs there filed an appeal from the Commissioner's Decision o~f July 1st. That appeal to the State Boarcl was pending at the time Judge Collector heard the Volpe Case. Specifically, the Judge framed the pivotaj issue before him a? follows: "The issue before rce is whether or not the Chancery Division of the Superior Court can and should take jurisdiction of the cause assorted by the plaintiffs in their complaint, or whether the complaint should be dismissed because the issues are now before tbe State Board of Education." He held, in effect, that because the pkilmirTs bad pet themselves before the State Board their dispute should be heard in that place, because they bad a surScieui administrative remedy there. Judee Collester rejected a contention that the plaintiffs should have a separate judicial remedy because they sued

lOa in the Chancery Division as taxpayers while they were before the State Board only as parents. He saw no real distinction in this difference. In the case before me the plaintiffs have no nominal connection with the Volpe parties. In the case before me there is not the special circumstances of plaintiffs who have taken any steps at all in tbe administrative hierarchy. They enter this Court as citizens and taxpayers who attack directly the contemplated action of officials at the municipal level. Furthermore, there was in the Volpe Hearing and result in the Chancery Division no determination as to the merits of the issues. For these reasons the result reached by Judge Collester does not determine tbe issue before me. The question I must decide is whether citizens and taxpayers who assert that the fiscal effect of tbe plan violates the organic law of New Jersey and their constitutional rights can test those contentions in this Court at this time. It is important, I think, to underline tbat the thrust of the present complaint is against tbe appropriation and expenditure of money. The defendants named in the complaint are the Board of School Estimate and the governing body. It is only they who ought to be restrained according to the plaintiff's demand for judgment. Englewood public school affairs are managed within tbe statutory framework of a Chapter 6 District; general responsibility for the fiscal business of such a district is in the hands OT a Board of School Estimate in which members of the governing body participate. The Board of School Estimate and the governing body have no voice in, or responsibility for public school policy. These matters at the municipal level are exclusively within the province of tbe Board of Education. Thus, if tbe defendants here do take the action which the plaintiffs apprehend the defendants will be acting in a ministerial capacity only.

11s If what they do in the way of raising man?" ba? HD~ impact upon the rights of the plaintiff? is ihi? case it will b* because tbe purpose for raising the mocev is in son:* ~*y wrong. Necessarily involved then in the case which plait" tiffs submit to this Court for judicial review is ibe n:-rit of the plan and its underlying policy. These documents are. as the complain" ns?i: a:;???-?, simply implementing a school policy they did no; make, ~d indeed cannot thwart. The contemplated action by tbese two defends.:;;; car- b-: justiciable only if tbe plan is objectionable. To re"ie~ ibf propriety of the part played by these ministerial sgeDt; without at the same time reviewing the policy formi-UT-d by their principals would be impossible. Public school policy in Englewood ba= bn ace continue? to be in tbe throes of controversy. R. S. 18:3-14 provides that the State ConinHsnoner of Education shall decide all controversies and disputes arising under the school laws or state rules srid recuiaTions. It further provides tbat bis decision shall be binding' u n t i j superseded by action from the State Board of Ed-iioaiioE after appeal. He has made a decision in "his area. Tbe City Board of Educaiion. Board of School E?-:n:-s:e. and the governing body arc bound by this decision. I' i? presumptively valid as it affects the present defer-dar:-*. Tbe Englewood Board of School Estnr.aie ai:d the governing body are so situated in tbe contest "bit they are required by law to implement a plan made valid .is of 'bis moment by a presumption of law. Tbe plan i^us: be regarded as having continued validity under Isw. constitutional or otherwise, until upset in the appellee fashion prescribed in Title IS of the Revised Sfstuu-*. Tbere cannot be a collateral attack on the piss eves for tbe reasons urged by the present plaintiffs. This is because they present fl controversy of a peculiar type. It is & public school controversy. As to such an issue the Lecislsiure

H h

I2a
has clearly relegated its resolution in all aspects to a special and quasi-judicial domain into which this Court should not and will not enter. By the direction of the Rules of Court in R. R. 4:88 an appropriate judicial tribunal is provided for the protection of the constitutional rights of citizens and taxpayers in Englewood. Thus the Volpe plaintiffs, if they avail themselves of the appellate procedure to the end of the administrative road will have recourse to a Court. Apparently the constitutionality of the plan is already slated for a judicial test. I read now from Judge Collester 's hand written opinion, "I think that the failure or refusal to consider the constitutional questions raised before the Commissioner and left undecided by him in his decision does not bar the plaintiffs from raising those questions before the State Board on their appeal, or before the Appellate Division on an appeal from an adverse decision by the State Board." It is noted that the brief filed by plaintiffs in the appeal to the State Board of Education in fact does raise as an issue the constitutional questions. If public moneys will be spent before these constitutional issues can be heard in the Appellate Division it is not because this Court is indifferent to such a result, it is because this Court believes that in the field of public education the Legislature itself has outlined a special treatment for remedies of any kind when the Legislature said in R. S. 18:3-14 that all controversies and disputes arising under the school laws shall be determined in the manner stipulated. The Legislature meant what it said. This is a controversy which I will not review for any reason. The motion of the State Commissioner of Education and the motion of the Englewood Board of Education to dismiss the complaint is granted. Court is recessed.

13a

I, ALBERT AGOSTINE, a Certified Shorthand ReDorter of the State of New Jersey, certify thai the foregoing is a :n:~ and accurate copy of my stenographic notes. ALBERT AGOSTIXE, s ALBERT AGOST-NE. Certified Shorthand Rf i - o r r - f r . Dated: S/20/63

APPENDIX D SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET No. A-10S1-62 (FILED JANUARY 30, 1964) P- FULLER, et al., AITSTIX A. VOLK, et a].
Order Keinstat-

ing Appeal and Vacating Order of Dismissal

Tbis matter was beard oil December 23, 1963, on the Court's motion to dismiss the appeal for want of prosecution. James T. Murphy, Esquire, counsel for the plaintiffsappellants, filed an affidavit with the Court in opposition to the motion to dismiss. Mr. Murphy asserted that there was an action pending in a Federal court involving the same issues and he requested that the instant appeal be held pending determination of the matter in the Federal court. It appears that it was the intention of this Court to hold the instant appeal iii accordance with Mr. Murphy's request but, inadvertently, an order of dismissal was enteredon January 7, 1964. It is, therefore, ORDEBED on this 27th day of January. 1964. that the above-entitled appeal be reinstated and that the order of dismissal entered on January 7. 1964, be and the same hereby is vacated. FOR THE COURT: EDWAHD GAVLEIS, S.J.JL.D. I hereby certify that the foregoing is a true copy of the original on file in my office. I. GRANT SCOTT, Clerk.
Ha

APPENDIX D SUPERIOH COURT OF XE\ JERSEY APPELLATE DIVISION DOCKET X'o. A-10S1-62 ( FILED JANUARY 30, 1964) Gsmm-DE P. FULLER, et al.,

vs. AUSTIN A. VOLK. et al.


This matter was heard on December 23, l?t3S. on the Court's motion to dismiss the appeal for want of prosecution. James T. Murphy, Esquire, counsel for the piainrlffsappellants. filed an affidavit with the Court in opposition to the motion to dismiss. Mr. Murphy asserted thai there was an action pending in a Federal court involving the same issues and he requested that the instant appeal be held pending determination of the matter in the Federal court. It appears that it was the intention of this Court to bold the instant appeal in accordance with Mr. M u r p h y ' s request but, inadvertently, an order of dismissal was entered on January 7, 1964. It is, therefore. OKDEREP on this 27ih dsy of J a n u a r y . 1964. that the above-entitled appeal be reinfisted snd thai the order of dismissal entered on January 7. IPtU. be and th^ s-ame hereby is vacated. FOR THE C O U R T :

I hereby certify that the foregoing is a true copy of the original on file in my office. I. GRANT SCOTT. Clerk.

I4a

! H

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Docket Nos. 15043-15044 GERTRUDE P. FULLER, RICHARD L. GRUBMAN, THOMAS F. CACCIOLA and JOSEPHINE CACCIOLA, hia wife, and others to be named, Plaintiffs-Appellants,

Civil Action (No. 847-63 ] On Appeal frota Summary Judgment of the United States District Court for the District of New Jersey Sat Below: Augelli, U.S.D.J.

and
JERRY VOLPE, et al.,

Intervening Plaintiffs-Appellants, ]
vs. i

AUSTIN A. VOLK, et al., Defendants- Appellees,


and

j )

FREDERICK M. RAUBINGER, Commissioner of Education of the State <f New Jersey, )

and
KENNETH ANCRUM, et al.,

)
)

and
DEBORAH SPRUILL, et al.,

)
)

Intervening Defendants-Appellees. )

SUPPLEMENTAL BRIEF PURSUANT TO COURT'S DIRECTION

HOWARD H. KESTIN Deputy Attorney General Of Counsel

ARTHUR J. SILLS Attorney General of New Jersey, Attorney for Intervening Defendant Appellee, Frederick M. Raubinger State House Annex Trenton, New Jersey

PRELIMINARY STATEMENT At oral argument in the within cause, the Court requested counsel to provide it with a supplemental brief discussing the nature of appeals from administrative agency decisions in New Jersey in order that the Court might, if necessary, have an adequate basis for making a determination whether such appeals are administrative in nature so as to come wichin the doctrine of exhaustion of administrative remedies or whether they are essentially Judicial in nature so as to place such appeals outside the scope of that doctrine.

DISCUSSION

UNDER THE LAW OF NEW JERSEY APPEALS FROM STATE ADMINISTRATIVE AGENCIES ARE JUDICIAL IN NATURE AND ARE NOT PART OF THE ADMINISTRATIVE PROCESS. Appeals from State administrative agencies are proceedings in lieu of prerogative writs under the law of New Jersey. The traditional common law prerogative writs and

attendant actions have been abolished in New Jersey by rule of court, R.R. 4:88, and there has been substituted therefor a procedure by which identical ultimate relief may be obtained without the necessity of facing numerous, cumbersome, technical requirements, the usefulness of which has long ceased to be appreciated. In abolishing traditional prerogative writs and

common law substituting therefor a new mode, the procedure in lieu of prerogative writs, the Supreme Court of New Jersey under a proper exercise of its functions, Winberry v. Salisbury, 5 N.J. 240 (1950), created an entirely new cause of action which bears certain necessary substantive resemblances to the old prerogative writs but is nevertheless procedurally sui generis, Since R.R. 4:88 is the only enactment governing the new procedure,

all questions pertaining thereto must be answered by a study of

- 2 -

the rule itself and cases and texts dealing directly therewith. Any inquiry into the former procedure is inapposite when made for the purpose of shedding light upon adjective matters in the new mode. R.R. 4:88-2 provides:

"Review, hearing and relief heretofore available by prerogative writ and not covered by rules 4:88-7, or 4:88-8, or 4:88-10 shall bJ afforded by a civil action at law in the Law Division of Che Superior Court. * * *" (Emphasis supplied). Clearly then, all actions in lieu of prerogative writs with three exceptions, must be brought in the Law Division of the Superior Court. Appeals from administrative agencies, which

are actions in lieu of prerogative writ among the named exceptior-s, must be brought in the Appellate Division of the Superior Court pursuant to R.R. 4:88-8. Though actions under R.R. 4:88-8 are styled in that rule as "appeals from administrative agencies" and though the procedure provided therein is definitely appellate in nature, such factors do not detract from the essential nature of such actions as proceedings in lieu of prerogative writs. The rule is concerned primarily with matters of procedure and not of substance. In establishing the new cause of action in

lieu of prerogative writs, the rulemakers were free to provide

any appropriate procedure whereby the contemplated relief might be obtained. That, in the case of prerogative writ type actions in-

volving administrative proceedings, they chose to provide a typically appellate procedure in a principally appellate courc does not render a review of State agency proceedings any less actions in lieu of prerogative writ (sounding in certiorari) thar. the review of a municipality's grant or denial of a zoning variance (also sounding in certiorari). An action of the latter type is a

proceeding in lieu of prerogative writ under R.R. 4:88-2, et seq. The authors of the rule, for reasons which are readily apparent, chose to provide a different forum for inquiring into State proceedings than for reviewing local actions. Baldwin Construction Co. v. Essex County Board of Taxation, 27 N.J. Super. 240, 242 (App. Div. 1953), affirming 24 N.J. Super. 252 (Law Div. 1952); cf., Jersey City v. Tiene, 29 N.J. Super. 172, 176-177 (App. Div. 1953). The rule, it is respectfully submitted, permits

no exceptions as respects agency proceedings and actions in lieu of prerogative writs arising therefrom. Just as other proceedings

in lieu of prerogative writs are, in the first instance, solely within the competence of the Law Division of the Superior Court, so are actions arising out of State administrative agencies

exclusively within the competence of the Appellate Division whether final or interlocutory in nature.

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"The function of reviewing the actions of governmental bodies is divided between the two branches of the Superior Court in such wise that the Law Division reviews the actions of local boards and officers, while the Appellate Division reviews the actions of State administrative agencies." Baldwin Construction Co. v. Essex County Board of Taxation, supra, 27 N.J. Super. at 242. Thus, while actions involving controversies and disputes arising under the Education Laws of the State of New Jersey are initially administrative matters to be heard first by the Commissioner of Education, N.J.S.A. 18:3-14 and then by the New Jersey State Board of Education, N.J.S.A. 18:3-15, once this portion of the prescribed procedure is completed, the administrative nature of the proceedings comes to an end. Further consideration of the controversy must then be had in an essentially judicial proceeding which, while for all practical purposes is an appeal of right conducted as a genuine appells ce proceeding, is nevertheless a proceeding in lieu of prerogative writ, and as such is clearly distinguished from the administrative process. See Baldwin Construction Co. v. Essex County Board of

Taxation, supra. 27 N.J. Super, at 242-243.

- 5 -

.*
Therefore, it is respectfully submitted that should this Court find it necessary to rule upon the character of appeals from administrative agencies in New Jersey, such a determination should be that such proceedings are judicial in nature and are not a part of the administrative process subject to the rule of exhaustion of administrative remedies.

Respectfully submitted, ARTHUR J. SILLS Attorney General of New Jersey Attorney for Intervening Defendant Appellee, Frederick M. Raubinger, Commissioner of Education of the State of New Jersey

HOWARD H. KESTIN Deputy Attorney General

Of Counsel

REPRODUCED FHCM THE COLLECTIONS OF THE MANUSCRIPT DIVISION, LJBRARi' OF CCNGSf

GROSS 8 STAVES
COUNSELORS AT LAW )

N E W A R K 2. M. 1.

i'ebruary 7, i,6* Clark, United States District Court District or Hew Jarsey Fdral Building Mrk 1, few Jrsy v. Volk. t"tl."and ^^"^r 'and Anoru* t al. - ciTil So. 8*7^63

nolos*d original ^txirah Spruili, to tbe of tb intarvanlng

to

Vary ,ruly yourt,

Morton S eo; ill oounsal nolour

REPRODUCED FRCM THE COLLECTIONS OF THE MWJJSCRIFT DIVISION LIBRARY CF COSGSESS

UHITKD STATES DISTSICT CCUST DISTRICT OP MEW JE8SEI Clril NO. 847-63

QEHT80DE P. JPOLLEH, at al..

jtad JSriHY YOU?. at al.,

,y

r. ad

Intrvea-ios

AtfSTIJi A. TOIJC, t al
RKOBUCX K. iUUalMQBR, Coaa* of Wneation f tew Jr<Mjr( Ad KS1WSTB JUCHBH, *t ml.,

STAVIS and VILUUUt M. rj KSTLES <Utoro;r for Intrrtr>or, Dborab Sprulil 7*1 Broad St. . it. J. 07102

REPRXOCEB FRCM THE COLLECTIONS OF THE ^ftNUSCRIPT DIVISION,

i' CF CONGRESS

UNITED STATES DISTRICT COURT DISTRICT OP NEW JERSEY

QBRTRUDK p, DULLER, at ai.,


and Plaintiffs,
CIVIL NO. 847-63
JERRI VOLPE, et . l , . a.

r.

Intervening Plaintiff*,
ANSWER Of INTSRVEHOR, DEBORAH SPROILL

AUSTIN A. VOLX, at a . l,

Defendants,

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

and
KENNETH ANCRUM, at al.,

Intervening Defendants,

The* Intrvnor, Dt>orah Spruill, an*aring the Coaq?laint of ti plaintiff*, Gertrude P. Puller, et al., say as 1. Sne admits the allegations contained in Paragraphs 1, 2, 6, 7, 9, 10, 11, 14, 16, 17, 13, 21,25 and 26. 2. Sha denies the allegations contained in Paragraphs 3, *, 5, 8, 12, 13, 19, 20, 21, 22, 23 and 27. 3. Sba does not have information sufficient to enable her to foraf an opinion"as TcTThe allegations contained in Paragraph 15. The Intervenor, Deborah Spruill, answering the Complaint of the intervening plaintin^. Jerry Volpe, et al., say si 1. She admits the allegations contained in Paragraphs 1, 3, 7, 8, 11, 12, and 13.
r

REPRODUCED FROM THE COLLBCTICNS OF THE MANUSCRIPT DIVISION, LIBRARY Of CCNGRESS : '

ijf

-2-

2, 3,

She denies tho allegations contained in ParaAs to the allegations of Paragraphs 9 and 10,

graphs 2, 4, 5, 6, It, 15, 16, and 18. she denies them, but refers the Court to the text of the decision of fchse-Comniissioner. 4, She does not hare information sufficient to enable her to form an opinion as to the allegations of Paragraph 17.
FIRST SEPARATE DEFENSE

This Court lacks Jurisdiction over the subject B&tter of plaintiffs' complaint.
SECOND SEPARATEDEFENSE

The plaintiffs have brought this same action in the Superior Court of New Jersey, Law Division and have filed a Notice of Appeal before the Appellate Division of the Superior Court of New Jersey. courts. The appeal is still pending in the state Accordingly, plaintiffs hare elected a forun in which

to process their grievances and are required to pursue their appeal in the state courts*
THISD SEPARATE DE?EMS

Principias, of oosity require this Court to dlssdss plaintiffs 1 action since the subject matter of this suit is properly before the state courts of the State of Kew Jersey.
FOURTH SEPARATE DSFEKSE

Plaintiffs have failed to state a claim upon which relief can be granted.
FIFTH SEPARATE DEFENSE

Plaintiffs Fuller, et al., and Intervening^laintiffs, Volpe, et al., are precluded from obtaining tta_ relief sought in this aotion by the doctrines res judicata and collateral 9 at qf pel.
,

KEPKOCUCED FROM THE COLLECTICNS OF THE MANUSCRIPT DIVISION, LIBRARY CF CCNGRESS

-3SIXTH SEPARATE DEFENSE 1. The matter of the raoial composition of the

Englewood schools and of the concomitant obligation of the Bo*r4,.Tof Education to rudy raoial segregation in those school* has baen litigated before th Commissioner of Education, subsequent to this Court's having declined to enterta; the saw oause of action in the United States District Court for the District of Now Jersey. As a result of that hearing,

the Commissioner of Education ordered the Board of Education to submit a plan to remedy the raoial c o m p o s i t i o n of Lincoln elementary school in Englewood, N, J. Appeals were filed and

the case is now pending before the Appellate Division of the Superior Court of New Jersey, 2, The plan proposed by the Board of E d u c a t i o n of the

City of Englewood and approved by the Commissioner of Education, is proposed and adopted to remedy the denial of equal educational opportunities inflicted upon the intervening defendants by reason of the provision, operation, and maintenance of segregated public schools in Englewood, N . J . , in violation of the Constitution of the State of New Jersey and the statutes of the State of New Jersey, 3, Resolutions of the Board of School Estiaata of

Englewood, N . J . , whereby certain funds wre appropriated to iffipleaent the plan approved by the Commissioner, are a part of and in conformity with the remedy provided by the decision of the Commissioner of Education in order to ternlnat* e x i s t i n g infringements upon the constitutional rights of-Vhe Intervening defendants, WHEREFORE, Intervenor Spruill demands dismissal of the complaints of the plaintiffs and the intervening plaintiffs, together with costs of suit to be taxed. MORTON STAVIS and Va. M. KUHSTLER Attorneys for Interrenor Spruill

Syj

-"' Morton Stavls

f
17332 flPR21'6-:
Office: OF THE CLERK SUPREME COURT OF THE UNITED STATES W A S H I N G T O N , D. C.. 2OB-43

ffl

Apt11 20, 1964

RE:

RAUBINGER, ET AL. v. AUGELLO, JUDGE, ETC., No. 865 Misc., Oct. Term, 1963

Dear Miss Morris: The Court today entered the following order In the above-entitled case:
The motion for leave to file a petition for a writ of prohibition is denied. Mr. Justice Douglas is of the opinion that the motion for leave to file should be granted.

Very truly yours, JOHN F. JJAVIS, Clerk By Assistant Miss Barbara Morris 20 West 40th s t. New York, K.Y. /

1
UNITED STIPES DISTRICT COURT DISTRICT OF NEW JERSEY GERTRUDE P.1 FULLER, et al., Plaintiffs, vs. AUSTIN A. VOLK, et al., constituting the BOARD OF SCHOOL ESTIMATE OF THE CITY OF ENSLEWOOD; the 'CITY OF ENGLEWOOD; and JOHN H. PERRY, et al., constituting the BOARD OF EDUCATION OF THE CITY OF ENGLEWOOD, Defendants. JERRY VOLPE, et al., Intervening Plaintiffs, and FREDERICK M. RAuBINGER, Commissioner of Education of the State of New Jersey, and KENNETH ANCRUM, et al., and DEBORAH SPRUILL, Intervening Defendants. Civil Action No. 847-63 0 P I N ION

ANTHONY T. AUGELLI United States District Judge FILEDj JUNE 3, 1964.

Counter-Statement of Facts This intervening defendant-appellee, Frederick M. Ranbinger, Commissioner of Education of the State of Ne^ Jersey, joins in the counter-statement of facts presented m the brief of defendant-appellee, the Board of Education of the City of Englewood, and the counter-statemen! of foe case contained in the brief of intervening defendanis-appe!lee-s Kenneth Anenrm, et al. and Deborah Sprawl. Additionally there is presented herein, by u-ay of appendix to this brief, the answers of this intervening defeadsni t-o tie complaints of the plaintiffs (DC-la to DC5a)' and the intervening plaintiffs (T>C6a to DClOa) 35 filed m ibe court below. The affidavit of this intervening defendant submitted to the court below in opposition to plaintiffs' motion for summary judgment is also presented (DClia to DC20a).

balance ID !he jra&tt 5#boote CSJFM?*! MM & concerted or even (x>B?-e*s? *eik*a <&& i^# psai * ss anthoriuffj-, iH3i raiber by CM her. nsor^ r* a)!j of an ?nviro3imf'nt! 3ia??, jjfJUBg or involniHsrv "gb-^iio " h*huaift3 v ^"!tb s poHcy of r:X>H"r}e s^&ooj Hi'
school;- eioS-?.?.i iO iiiftir bOiBf^. T f - J ' T ^ T

si! "whicii a rsw or ^ihitif. srOHi> oi'M3


J sh;0-BJ TO Vc1?gX?^ 5.l*h?!-SU?3 J}T dL; ">

prC'-Sf'iH1*1 in ife? ^iJcsikM^st wtmimamv Tb? ^r?svam t > -o/ sjH>si! ture. F'ir?i. ib? sppollsnj= ; re.i-e.T ibi>. COB? 4 ?* s of cjr5.e? in oiher circans ia visoh is ijsr i>v,-3 es! 5-cjiool saifeorii!?5 insj -3-0? be wtGiiwlVo ai" /fW.f'rt ;<-.QCK*l seffr?gfli}CtB. Tbii f5.*Bce of ratine ?4ftp> i>o school >~ li >s rft>,pftvi f"li j s.uh ab?face of SBihonij 5.piKvrnj> 5cripii'Oa seaiujt consi^raiioj*? nf race ^a i^se 8tijsisi?.irfiison of VHibJic ?cbooi 5.T5-i^m?. is order io ff&si&ad /or a parj>orJ?d rnft* flf * whi<^ i? -?js>d io profeihii ^rii^ auihoriiift? from eoij.SHTe-n&g rsciai i"acir? ;n sa ftffon io elimi^aif ^^ /s/s-o i:*"^<">i ?*erMrai>a. la "HV ^fl5n, ih^j relv fipon jiMiicifi! d^eiarsiion? foefe 5. J9rp* T Bfwsd &j EJ*r*JM, af Top^*-- 347 I". S. 4-xl 74 5. ^.. 6-%^ 9RL. Ed. S73 (]954) in vhitih ?fe^ ffpiw.ra! privcijplie >?, ?,isi-5 *>. a fw5.35. for iBTfi^idsuBjr fc, jwrt f^grsgauoia, ami vbf.r?hT frus=3Esll >er>^;. feeld i.bs* -foiO eliisimsi^ <JCTT i? ife^B of -rk

ARGUMENT POINT 1 State and local school authorities are not prohibited by any doctrine of Federal Constitutional Law or by any cognizable constitutional rights of the appellants from acting to eliminate racial imbalance in the public
The basic problem underlying this controversy has come to be known, in .popular parlance, as de facto school segregation. Stated more preciseJy it is a condition of racial im* DCa refers to the appendix to the brief of Intervening Vfendaht-Appellee, Frederick M. Raubinger. CommissJotwr of E-docation of the State of New Jersey.

trate a rule of law intended to be a vital implement in eliminating a system of segregatoin in the public- schools.. Thus, the Appellants 'seek to use a sword designed to excise the cancer of racial segregation as a shield io preserve it. Authoritative judicial tribunals hare rejected such as approach. The number of cases in the field of dt fatJ-o school segregation i severely limited. They begin with Brovm v. Board of Education of Topeka, supra, a d* fwre segragation case, which established the general principal ihai loc.fi 1 public school authorities may not act to segregate pupils by race or, presumably, by other invidioas.iy discrimiBaiory factors such as religion or ancestry. In ibis coimeerion. tb?. Court said, c-onsiderations of race are eonsJiiuiionaHy- prohibited. As a tool with which to destroy a barrier Jo ifee full effectuation of constitutionally demanded principles of equality and justice, the Brovrn decision has sad as eminently salutary effect. Its requirement that ?. j*r?- segregation in the public school? be eliminated as a maiic.r QJ constitutional obligation is set forth with MerUiwr ^Jariiy. No less clear is the policy underlying that, dpc.taraticmjb&t such "segregation of children in public school? sole!> on the basis of race . . . deprive(3 the children 01 i"h mn>ofity group of equal educational opportunities." 357 V-. ?.. at 493. Though the system of segregated education -srhich TTSS invalidated in the Brown case resulted from a eon?okns policy and action pursuant thereto on the part of the. Board of Education of Topeka, 'Kansas, the broad }x>3k:y siaiement of the United States Supreme Court ba? given rise. to other proceedings in which there have been s-GSjjrM declarations that systems of de facto school segregation," v^, resulting from factors other than the efforts of local school authorities, may under certain circumstance? sisb be constitutionally infirm.

S-ome eoar*? is (e^i, re-fas-ins io avelT SB order * eliBHsai*Bask. 10 saoij dwisjossj ^A:= h ieeath Aiaeikisse.^ dc*!= BO

hsr?

JKs*. #*", r; ".. 229 F, ^ (E. D. Obk* 1364): B-flB v. L^d(rf Cuw / O-orw, 313 P. S\nm Sift <N. D. iad. 3963), / V 3?4 P. 2d 189 (rili Cir. l9Cvi): ^r/. >*.. 377 T. S. ?1>4. >4 5:. 0*, 1"?3S j^ 1>, Ed. 3d -216 (1964); EM. T, AvdhMMM^ 30? P. Se-Bp, * > F. S^pp. S <E.D. S30 <D. I>eJ. 1< F, Sopp T76 (E. D. Mh. 196?.). 8, Car. 1956). Oih?r ^xiBT'i aa oppos'jie. r ?rih. of rf-<" /o

.WfiA^^. A-flM: Vri.. -326 F. Spp. -20= (B D. S\ i964) /rf., 229 F. Snpp. 709 -<E- f>- !^- Y. 1%4) i ^, 259 F. Sx-pp 714 (E. T>. X. Y. 3964) ; ^rn^A T. &#*rj oj EJ*G8wr* ; Tow* o/ Hfi*tpf.l4*J, 204 F. Sapp. 3 aft (E, D-, K. Y. 3965) Jacks 9* v. P.-W<mrt Ct/y SfJMml nwrirt. 38? P. 3fed S7J {Csl 1963)- O/., Eoihuui T. B&tir<i / Psi&if, inantotio* ^w-pro.. Tfee foregoing ca?

6 school authorities may be compelled to eliminate &e farto school segregation. But none -of them, even upon th-e most imaginative reading, constitute the slightest authority for invalidating such action when voluntarily undertakes. To the contrary, persuasive authority exists which sanctions the exercise of such power whether sought to be accomplished in furtherance of valid educational considerations or in pursuance of the underlying policy of the Fourteenth Amendment to the Constitution of the United St-ates as articulated by -the United States Supreme Court in Brown v. Board of Education of Topekn, svpm. S-ee Korean v. Board of Education of Montdoir. 42 N. J. 237 (1961); Balaban v. Rubin, 14 N. Y. 2d 193, 350 N, T. S. 2d 2S1, 199 )*. E. 2d 375 (1964), cert, de*. I'. S. . S. Ct. , L. Ed. 2d -(1964). In both the. foregoing cases, the parties challenging measures undertaken to ameliorate de facto segregation relied upon the constitutional prohibition against considerations of race in the administration of public school systems. See Goss v. Board o; Education, 373 IT. S. 683, 83 S. Ct. 1405. 10 L. Ed. 2<3 633 (1963); Ptessy v. Ferffuso*, 163 U. S. 537, 559, 16 S. Ct. 1136, 41 L. Ed. 256 (1896) (dis-senting opinion). In eaci case the theory thus proposed TV as rejected in context AS a ludicrous attempt to preserve an invidious situation through the nse of a principle originally advanced to eliminate it. As noted earlier, it has been stated as a matter of constiHitionaJ^w that "segregation of children in public schooU solely orTOie basis of race, even through the physical facilities and other 'tangible' factors may be equal, deprive[s] the children of the minority group of equal educational opportunities." Brown v. Board of Education of Topc&i, supra, 347 U. S. at 493. This is a general doctrine which inveighs against a particular type of circumstance, *--, the detrimental separation of the races in the public schools. T&e principle speaii viib reopen to i&? &v& *sd the u^C'fcs.s.ify f-or re*soaflbk >iep.? m he i*tes v* Q/T&&T * achieve iis eiiniiaaikwi. It ooes 3&t aodress ilseif ie t*e cAiise. eicepi >a appikario^ io a psrnc'Q'sr s.;^r,^ t*i f-wscs^ miehi, artfw^We, give rise ;o s feoldiefi iii iu es by ^ega^ coispulsiou mast ocrar m ;s"t*?.5s^ai^T circiimstaBces. ibe isslsDce wfee-f? TohjBVsrr

iiai3 :; b*fd OB!T g^s 3d >pase*!K ar*c*3 su a^hfihej imfiitioBsl or ff*r?ain<vo?. >?. e w n u ^ M k j sssa3< or, as a pranks., produces resulU Trfe*ri sre >es?. oesir-

proceeding be.for? fis Okismsi s.sicw*?.? ol Edsstj^ Uif. of Ne Jerse.T, ibe poiwr of ib?. SUi* of N> ^inflj^rapeH 10 ds }&cio >oparaucva of ifee rac^s TT.?

ioBJts?,? afforded Eng)?Toon e.hilfkea* arc ^sfil re-gaTtii?>= of =<^o<] aiie,Bdwi. Tt srsroi1? iljsi former SoperinindeDi Bsrry .Sfnt< ?o iesiifeeo also io a uaiemem o iat ?freri in i^ Fa R^^vori. Tfee Coma* 3?;.i oner firi-Q* Trc- rt*,ft.>o.B w> di^pote ifeis. claim IB t?na5: of BHAsarshte objwaiT-e. eriteris >,*x4i fi? fimilariiT of ia^.inicikmsl msi*TJaU. class site,. i&Aeie.r preps rsison ai>d as&tgBSMfti., faoalUift? sad eqojpraftBu Ripwditar* pe.r pwpiK e.ir. Bai as. W fe? *iredT ?id in Fisi^r T, Oro*-*^, .;<?pr, W b ol ii* opiBJoB ihsi

'* * *in the minds of Negro pupils and parents a stigma is attached to attending a school whose enrollment is completely or almost exclusively Negro, and that this sense of stigma and resulting fueling of inferiority have an undesirable e.ffeei upon aiiitndes related to successful learning. Reasoning from this premise and recognizing the right of every child to equal educational opportunity, the Comniissioner is convinced that in developing its papil assignment policies and in planning for new school buildings, a board of education must take iaio account the continued existence or potential ereaUos of a school populated entirely, or nearly so, by N*egro pupils.' "The Commissioner holds, therefore, that eompo??o.rT attendance at an all Negro school, such as the Liacohi School, at least where 'appropriate. me.ans eas be found to avoid it, constitutes a denial of educational opportunity under New Jersey law which tie scfcooi district is required to correct. 1 ' (P15a to Pl6a). It is clear that the foregoing statement of edacAijasa^ policy was formulated only in tie light of other sigrnfiesiu/ considerations of educational'and public. poHcy. "There remains the question of appropriate mean? for reducing the racial homogeneity in the Lines in School, The evidence in this case discloses that a aamber of plans have been proposed to and considered by the Board. That there are still other plans whioi ean be devised, effectively dealing .with tie problem, the Commissioner has no doubt. The formulation of the most suitable plan, however, is a function of the respondent Board of Education and the Commissioner reserves to it the right to describe the precise fcntraU

. problem. As ae tjiki ia sfee *s? *f

s*-ai h biluy SB ibf pr-eTOg-aiife 01" ii^ I^Br So def^.rmii^ w-feiefe 03' iie j>rop*&s) is b?* ^eii tjje seeds of i>e 5^*.feoo| ?V5*a5! Tf^jefe K is. io operate.' "l ?? ;owaro i.h adcfpi.ms &f * Mas ah-er pf?^.nf v*Hpt! s s^ignmesi palkias. "i^s ihnssi of ib? Voljv?. VK>i.i*ios; i-5 tioaer; arinx1 i^si i^b? " aea^'febftrfeeod scfeoo^ is i>e. iaw of .N>w jf-.r^y S2?d s icy o*j i.be hs^ris fti rsc*a! ecmskfe . ftonie.?*C; iifii ifee 0BWMS^Wiy sa.f BO i^ifeonlj i* sei asj-de Uift ao.iebboT*K>o<i ;<^oo? j-^Krf hai i? rBiT?M to a^oki ii aBd j>reTei?; *i>. sb?i-= the ceairsJ iaierojedifii^ ?<eol adTocas^d by tfe? cmaa p^iiiio&er? -or asy wiie? piss i.bi as-'sses* pejaKs io a ^ool oifefr tbaa tJbf? o?*e iw-aress ifeeir 'f*fca*e. o* "Ii. is_ weiS e>;sbH?heri f&i; 1&? fi^.i to ife*1 ?<-hooi> iHev sr? *o sitftftd J* V Gic-riiy of i&fi locsj board ol eoi*csus. /^t^rr* T, f7i(Hf District $<:tKw>4 Tnt&tt*, 46 N. J. L. -?6 (Sf. C. - 193S S. U D. GR3 (1933) ; Ci . B<i#KiJ.wn QJ MZlkw*^ ]93S S L D. 645 (3936). gs^gDrrw.B? of popi^? in ieons of prorimiiy 01
fiJHi SC*JOC^ "5 ifef B3ft5t COtBDHHiJT ?3Bfil<)y?d OJ^Siod O!

establishingfiiii>.i>cfii?pftarea? soi OEly is New Jer#T bm in ib-ft tljie<i S?a^.>. g?;T/pra"OT. Trad^tioBsHv scfrooi di>-iriris bsv? pr?e?^ coDoeBtrfiJe^d popnlsikm viis

II

i- i

-J

10

u
' I i is ?.siireiy possible iiai i&ere m*T be as sity botb a siori-rasge SBC a lang-ra^ge ^o>o ibis problem. Tbe Cama*5>oaeT is airsre u iong-range s!ai.i<ai ri!! posssWi- reqairf ip^a for capital eoastrBe^ioB, vb?^ c-i3ao4 h by September, 1963. "AiuiOBgb ibe cosirovers.y "wbscfe ibe Cam 25 askeri to .d-eckie in ibis aad ss^iJar ea.3es is around tie qoesuoa of erni rjsbi?., is ma?n V ber?<i thai so-ljtr-^? i&? ?^feool= are ^^mwT fTirvi-^sr(*p.-c\i.ai naroos* !?, ibe i^roiwr coaOiH.'! 1 \&&'\? slid 5 ifts,k of iaiproriBg ?rd iescaers, pruwipAis, aii sspenateadesHA i^ra tie &i.ate ocaiviBced bias iisi iJaes* fw-.rsos? is {^dacatioa is esirusied csafio? performs ifeeir efTe^ijv^JT vbea U&eir wx>Tk ? r&rried oa im A of doaiiBSOB* ie&s.ioa ami ooBirflT-?r>j. Ji i; ell a= ifee osJK'.rs stfii^d ibsi ifee O de.? iisJ iire, cerre.ut asd i<H^g-s.tft&<J

school bail-dings as dose as possible -to the homes of the children to be served. The logic and the inherent educational values of such a program are indisputable. The Commissioner has also made his position clear on the question in Fisher v. Orange, supra, when he said: 'The practice of assigning pupils to schools near their homes, particularly with regard to children of elementary school age, is well established and is attended by educational values that are widely accepted, not only by educators, but by the public generally. Consideration of such factors as distance to be traveled, safety, economy of time, establishment of rapport between school and home, and knowledge of the school staff of the child's environment have operated to establish convenience of access as the controlling criterion of pupil assignment and tie importance of these values c-annot be denied.' "Obviously, however, the assignment of pupils to nearby schools is a general principle and is not to be applied inflexibly when other considerations outweigh its values. The. Commissioner believes that a plan for the reduction of the racial concentration at the Lincoln School can be formulated 'which will not do violence to reasonable attendance area?, "Whatever plan is adopted must, of course, meet the tests of reasonableness, of practicability, and of consistency with sound educational practice. From his study of the evince in this case, tbe Commissioner is convinced that the respondent Board of Education can choose from among the proposals already made to it or from others that it has already devised or will formulate, the means best suited to reduce the present conce.rrt.ration of Negro pupils in the, Lincoln School -which will at the same time maintain long-recognized values.

, viilioDi diflT, OoniinBSiKtn TriH dsmsre of not only list scficxvl ba* aH oibers ia i,b Hefiee, ^? f.mire cciB2Bajiy bs? a ,*iAt* in & soletioa Trbi<*fi Trill make. U ^wsfibi?, for iie sceoo! ?tsif to d*roJe its (indivKisd ai'.e.Riina snd effort to plssiiing for beit^i educauonAl opporianKies for si} f*Bp/iis~:; (Pl6 to Pl9s).
aTing bw.B apprised of ifee ^ohik1 pc^i e.T Jersey aad all ma ieria I conjj^f'rsi.ions ftreiB, ib? Board of JBdocation of ;be Ciij of ed ioirard impfenieBvaiioa by adoptieg 2 pjam -

!1

12

13
POINT II

would tend to reduce particular racial concentrations is the Englewood school system. Coincident-ally, the general policy articulated by the United States Supreme Court is Brown v. Board of Education of Toptka, supra, wa= aiso furthered. The appellants herein now seek to overtarn the effectuation of both the educational and public policy of the State of Xew Jersey and the basis of prevailing; constitutional doctrine by a rather perverse application of principles enunciated by the United States Supreme Court in declaring the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States to require reasonable steps leading to a cessation of the practice whereby ^persons are separated in the public s^-hooh of this nation by race. In their remaining contentions on this point, the plaintiffs-appellants argue that three specif*?- forms of racial discrimination against white pupil? were practiced by she Board of Education of the City of Englewood in seeking to implement .its plan. As stated by the coon beknr these contentions are:

Summary Judgment in f a v o r of wa* properly granted by the Coqs-t bdow.


ife#> Witb tftspeiH io i&e qiH&ikie m in grfiimisg summary jadEi^st- oasks pr sidere<J The two dociiawnis *o m-kiri ibe Iast5 BOV object, this iaierT-Msnig ck.fi in the brk> of tief?JKtasi-s|.HXiJk*. B-c**;ro ihe. Qty af BniHewood. Even if t"be sji&J-vfi? proto5*-<J fey i^ l&nii respecting ifee ssisre of ife^se iir* as
tfea<

of Doctor itfirk K, SbwkJ <DB3^ * OB^afe) &n of ?fes intftrreaing dwe^sdsrsi "s asdsvi^ ^DC* is were mcntioii^ by ih,-> 0<ran hek>v va Hs <^ak*a, iis <fecs.ion ^ai in IH> sigroSftftW -srsj b8??-d V*|K*B say msu,pr cfmtainwi in ihese. <ioxaiBHyi35. I%^P mef * rwcvJJAl toy s 5 rial ETi of iie e.s.35-te,ncp of sJiklavi;,? gii^ msie^iai con1a\3Wid iisTeiH is a decision on a mo-lion for fsmmarj j&c^irmeBJ if we^ ir? "First, all sixth grade pupils, in EngJevood are required to attend the Engle Street School, which i.-\d outside the previous fi-d of ii=eU. anindiesuoa *&&* 5.acii mauer T~S? re!^ epos attendance areas of ?ofneJ
la a

of these pupil?. Second, the- pupils in the element anschools, other than Lincoln, wore no4 given :he right to vote, on whether or not the Plan wooid lwrora, effective. Third, these otner pupils, unlike those aifending grades one through five at the- Lincoln School, wfre not given the privilege of attending a school omsioe their neighborhoods. 31 (P37a). The court below, it is respectfully submitted, adequate]7 disposed of those contentions by ruling that they Jarfcwl constitutional dimension? and. furthermore, that the plamtiffs-appellants had failed to make any adequate shoving of harm to them either as taxpayers or parents suflWieBi enough to enable then; to prevail (P3~a to P3&a),

mitied 10 be mapproprisie for SB ,fpll^ ccmrt io re^ersp s iris! eoari :? crftsi of sanirnflrT jodg^pftsi smfer rate D if siJegpid fsc.iaai diiTpreao^s or oifesr ae-v msue,* were. SCM ms'u'Tisi or g-e.nrnive or Ttrrp. B<*5 ^?-5eB'iisJ 10 Ifee <iof.j5io!! rftfldie^ beJow. Sw. Perf** r, /VKW^I 6Vic, 11"? F, ^d 3 <Stb 'CSr, 1540} . f^ri. ite*, ?.31 V. S- 67'>, 61 S. Ci. ->X Ri L. Ed. ^32 (1<MO). li, is cie-sr from ifte o^mmi bfikvw (P~Xte i P3S) jfeai i^se subject of ih-e w>s5ri^= oe^ifm werr- ;lw r*ryK>Ti^d <-<fiiJaimnai Qucsiiorts rai^eri by the pisiutiifs, T%e ceari d?tXs?.od

14

15

of any argument that local school authorities are prohibited from remedying de facto school segregation (P3oa to PS-ja) and then proceeded to a consideration of whether local school authorities are barred from taking into aeeoum matters of race in their considerations of appropriate measures which, might be taken to accomplish this ejxi (P35a to P36a). With respect to these points ihe court below held first, that local school authorities are not prohibited from acting independently to remedy de facia school segregation nor are they barred from achieving su^ii a salutary result by any constitutional prohibition against considerations of race in the administration of a school system. Finally, the court below considered the allocation? af plaintiffs that three specific forms of racial discriniinsiion against white pupils had been or were being praeiieod by the. Board of Education of the City of Englewood in implementing its plan adopted pursuant to the direction of the Commissioner of Education of the State of Xew Jersey. The court found these allegations to Jack constitnticmai dimensions and found furthermore, that ihe plaintiffs h*fJ made no showing that they had been harmed by the operation of the plan either as taxpayers or parent?. It is the position of this intervening defendant therefore. that the court beJow was not barred from considering ;he two documents to which the plaintiffs-appellants now lodfre objection. In any event, however, these documents -\vere unessential to the decision reached on the question? present^te and decided by the court.

CONCLUSION
For the reasons stated berejn H b rc*p*cthd$? that the judgment below of tW Linked States District Cort for the District of New Jersey tfeoaJd be *&rmed ie aS respec U-

Geiwrsl. On- Ikt. Brief.

r>

Public Schools
--tangiewood, New Jersey

eveii Jcnool UiTur C. Campbell, Principal

June 5,

1964

AND PERCENTAGE np NEGRO PUPILS IN EACH CLASS.

TOTAL NUMBER AF CHILDREN TN CLASS.

NT?^fBER
1

^F

PERCENTAGE OF

>'Ei3RO CHILDREN TN CLASS.

NEGRO CHILDREN
TN CLASS.

'-'da. M rs

y .'>-< '? 1

21

11
1

11

119

/V

6
UNITED STATES DISTRICT COURT DISTRICT OF HEW JERSEY GERTRUDE P. FULLER, et al. ,

Plaintiffs ,
AUSTIN A. VOUC, et al. , constituting the BOARD Of SCHOOL ESTIMATE 0? THE CITY OF ENGLEWOOD; the CITY OF EHGLEUOOO; and JOHN H. PERRY, at al., constituting th BOARD OF EDUCATION OF THE CITY OF ENGLEWOOD,

Defendant*. JEBRY VOLPE, et al., Intervening Plaintiffs,

Civil Action No. 847-63


NOTICE OF MOTION AND MOTION TO SETTLE FORM OF JUDGMENT

and
FREDERICK M. RAUBINCER, Coamitsionar of Education of the State of New Jery,

and KENNETH ANCRUH, et al.,


DEBORAH SPRUILL,

Intervening Defendant*. TO: VORSANOBR & MURPHY, ESQS. Attorney* for Plaintiff*, Gertrude P. Fuller, et al. , By: Jasws T. Murphy, Eq. , 6 South Depot Square, Englewood, New Jersey BRESLIN & BRESLIN, ESQS. Attorney* for defendant*, Austin A. Volk, et . constitut!, ing the Board of School Estimate of tb* City of Englevood; and the City of Englewood By: John J. Brealin, Jr., Eq. 41 Main Street, Hackenseck, New Jersey
MAJOR & MAJOR, ESQS., Attorney* for intervening plaintiffs, Jerry Volpe, et al. , By: James A. Major, Esq., 241 Main Street, Hackensack, New Jersey

N o If^New Jersey, Attorney | r intervening defendant, Frederick M. Raubinger, S by: Joseph A. Hoffman, Esq., State House Annex Trenton, New Jersey

OF CCNGRESS

HERBERT H. TATE and BARBARA A. MORRIS, ESQS. Attorn*y for intervening defendant*, Kenneth Aaervm, t *l. 126 Court Street, Newark, Kew Jeraey MOftTOM SXAVXS and WILLIAM M. KUMSTLER, ESQS. Attorney! for intervening defendant, Deborah Spruill, 744 Broad Street. Newark, Mew Jrey PLEASE TAKE NOTICE tbt the uaderaigned will aove tbia Court at the United Statee oiicricc Court, Court Houae, Federal Square, Hetwrk, Mew Jeraey, on the 22nd day of June, 1964 at 1 : 0 A.M. in toe forenoon of that date or ** aooo 00 thereafter aa eoonael can be beard for a sattleewnt of the fora of the Order for Suaaary Judgment and Jttdgaent aa pr che attached Order for SuaBary Judgment and Judgment.

City of KngMwood.

- 2-

<_AJJJUC*_IJX*O

LU.vlbJ.UN, J_J_BKAKY OF CONGRESS

UMITBD STATES DISTRICT COURT DISTRICT OF BKW JERSEY

P. FULLER, et *!., Plaintiff*, AUSTIH A. VOLK, et . !, Defendants . JERRY VOLPE, et al., Intervening Plaintiffs, and nUUKRHX M. RAOBISGES, Ccwoiiotur of Education of the Stat of Mv jary ,

and
EE10JETH AUCJOIM, C al. , DEB08AB SFRUIU,, laterveaing Defendants . Civil Action Ho. 847-63 NOTICE OF NOTION AND MOTION TO SgTTtE FOKM OF JPDGMEHT SIDMET DVKIM Attorney for Defendant, The Board of Education of the City of Eaflcvood 16 tfeat Falisada Avenue nglewood, Hew Jersey

r
GERTRUDE P. FULLER, *C al. ,

USITED STATES 0ISTSL1CT COURT DISTRICT Of HEW JERSBT

Plaintiff ,
vs.
AUSTIN A. VOLX. et al., constituting the BOARD OF SCHOOL ESTIMATE 07 THE CITY OF BNCLEWOOO; the CITY Of EMGLEW000; and JOHN H. PERKY, et *!., constituting Ch BOARD OF SDOCATIOK 07 THE CITY OF ESGLEWOOD, De f *n<ian t * .

Civil Action
JERRY VOLPE, et al., Intervening p l a i n t i f f s , : :

Ho. 847-63

and

Jersey, and

FREDERICK M. RAUBIJKER, Cocisioner of Education of cb State of Mew

: s
:
J ;

ORDER FOR SD**UST JUDGMENT AMD JUDCKEKT WERE CROSS-MOTIOH MADE FOR StMiARY JPDQtEliT

KENNETH ANCRUH, t al. ,


and

DEBORAH SPRUILL, Intrvning 0feodanCJ.

Thi eatu* caa on to b* b*ard on wocion of th plaintIff od the intrv*ning plaintiff* for ury Judgnroc and an oaral cro->oCion of tb dfwiant, TS Board of Education of th City of Eaglood for tumuxj judgment ad* at tb ua*ry Judgarot hearing, pursuant to Rul 56 of the Federal Rule* of Civil Procedure, and the court having considered the pleadings in the action, the stipulation of facts made in open court on December 16th, 1 6 end the several exhibits MTked in 93 evidence on December 16th, 1 6 , including a *p shoving the 93 school attendance areas in EngTeH** P^ior and subsequent to the effective date of the plan of The Board of Education of the City of Englewood, dated, July 29th, 1 6 ; the affidavit of Gertrude 93 P. Fuller submitted on behalf of the plaintiffs and the affidavits filed on behalf of the intervening d-efeodants, Ancrua and

^^

Spruill; Che Affidavit of Dr. Mark R. Shedd oo behalf of the defendant, The Board of Education of the City of Englewood; end the affidavit of Frederick M. Xaubiager, Coaaiijloner of Education of the State of Mew Jereey an intervening defendant, and the Court having heard the argument of counael aad due deliberation having been had thereon, and having found that there exist* no genuine issue of material fact to be tried and that defendants are entitled to a judgment aa a matter of law, it i* ORDERED, that plaintiffs' notion and intervening plaintiff*1 notion for timmtry judgment be and the tame i* hereby denied, and it it further
ORDERED, that the defendant, The Board of Education of the City of Englevood's notion for ua&ary judgment be and the sane hereby is granted, and it is further ORDERED, ADJUDGED AMD DECREED, that be entered in favor of defendant* and again*t the plain-

tiffs and intervening plaintiff*, and that"the defendants recover their coat*. DATED: , 1964.
SfSTES DISTRICT JUDGE

- 2-

UHXTBD STATES DISTRICT COURT DISTRICT OF MEW JERSEY

GSWRUDE r, FULLER, t ai.,


Plaintiffs,

va.
AUSTIN A. VOX, at ml., Defendants. JERRY VQLFS, t *!.,

Intervening plaintiff*, and FREDERICK M. RAUBIMGEK. , CoUaiooar of Education of the State of Mew Jersey, and KENNETH AUCRUM, at al., add
DEBORAH SPRUILL, Intervening Defendants. Civil Action Mo. 847-63 ORDER FOR SDtftURt JUDGMENT AKD
JUDGMEMT WHERE CROSS-MOTIOH MAE FOR SOMtARY JUDCMEST

Attorney for Defeodant, Th Board of Eduaation of the City of Englewood 16 Mat PaliiatU Avenue Englewood, Mw Jersey

SIDNEY DIMCIS

THE 03LLBCTICNS OF THE MANUSCRIPT DIVISION, LIBRARY OF CONGRESS

SIDNEY

DlNCIN C K N T M A I . Hi I

C O L ' N S E L L O B AT LAW

June 8, 1964

Barbara A. Morris, Esq. 20 Vest 40th Street New York 18, New,York

RE:

FULLER, ET AL. VS. VOLPE, E T A L . United States District Court matter

Dfar Madam: I Enclosed herewith please find copy of Notice of Motion : and Motion to Settle Form of Judgment, to which is fattached a copy of the Order for Summary Judgment and Judgment where Cross-Motion made for Summary Judgment i in the above-captioned matter, the original of which I '~ i this day filing with the Clerk of the Court.

SDitsn Enc. CMRSR

'; > cs "' vs, f

{X'' <\

<- y

Engle St. School Pupils White Boaney, Leo C- ^

Teacher

15
16
12 12

10

Borthwick, Dorothy Mrs. ' < Carboy, Margaret Mrs. 6 r^ Davis, Opal Mrs. Tack, Odell ackowski, Arthur itchell, George unary, Thelma Mrs. norevola, Richard agnozzi, Joseph anford, Mary Mrs. roof, Ann Mrs.
/ .

9
12

13 1 1
9 10 10 1 1

14.
16

13 111. 14
12 16

13 9 1 1
128

13

167

SCHOOL Memo from the Principal's Office __ DATE June 10. 196L '

NEGROES

WHITES

D Kdg. L
IB 10 IS 1SW 2B 2H 2J 2K

35
32

n 10
12

16 17 16

/ f*

3H 3L 3M 3S

10

8 Ui*

16 17 15 16 17 18 1=

V 1

/ H

_____ -~

UN UP
UI 5E

SM 5T

15 11 11

17 22 22
^1 X

Mr, MitdadSr
Miss Tai-j Mrs. Phillips Hr0 Tooner Mrs. Hansen Dr, Robbins Mr, Walker

~-525 School Enrollment

-7 U

7/

r
20 Vet WOtb Street Sew York, lev York 10018

September 1,

Major d Major 2<+l Kaln. Street Uackaosack, Hew Jerjsy, aod Jaoes T. Kurphy. q. 1 Bnti* Street Bnlewood, Sew Jersey Oeatleoeni
Kei

A.

et a

v. Valk. at

I would appreciate It if you would eeod 11 paper* in connection with the appeal of tbe above-captlonad c&se to the address set forth abort, Qxe only papers la ay rilas relating to tbe appeal is the deal^aaUaa or Record uaico reflects that you are fcd4ree>l&g both Kr. Tate aaa oyself at ay hoae addrees, ^9 H*dipa xvenue, Honcolair, Bew Jersey I have never received any notices or appeal or paper* other than the aforesaid designation* I have Made this request oooe before vui. would appreciate your forwarding pleadings and letters in connection with the appeal an indicated herein. Very truly yours, Barbara 1. Horris
BULMljpb

cct Sidney Oinclc, Esq. Mrs. Ida 0. Creakoff, Clerk United States Court of Appeal* Third Circuit Philadelphia, PeoasylYaoia

^fonglewoocl Public JcLoolj


-fonglewood, New Jersey Kooseveit Jchoo! Elmtr C. Comptell, Principal

September 14, 1964

The percentage of Negro pupils presently enrolled at Roosevelt School for the year 1964 - 1965.

}RADS

TOTAL ENROLLMENT

NUMBER OF NEGROES

PERCENTAGE OF NEGROES

Kdg

92 'fl= il. 63 - ? -' k c 7148 61 53

i? JZ

ir>

-34v8 -^^9 ^.3

J#
W
'S

^4r6

3 4 5

11
29 14

22.9 47.5 24.1

398

148

,^3J^.2

-> -^ 3L/

CLEVELAND SCHOOL

NEGROES Kdg. Kdg. Kdg. Kdgo IB 10 1J IS


1SW

wig
26 21 21
2k

T;^/

DATE

15.

D G H L

8 6 fc__
22-

^z

.' i z-

13 13 _J*-
10

10

12 12 12 ^-~ " L3

13

)io

m
3L

2B 2H 2K

11

10

~~~""<V6'

5_

"""

II 18 17 18

3M 3S 3W

Uo UN UP Us 5c
5D
-*

13 13 U _!?_-on
U 12
~" i/ C

13 13 _5^ f t 17 16 18
^ (0

' ! Z-

/ cr

Vi-7

' C> (

377

8 10 9

15
17

18

656 School Barollawt Mr* Onorevole Mrs. Rosenthal Mrs. Feier Mrs. Phillips Mrs. Hanaen Mr0 Tooner

Engleiuood Public Schools Engleurood, New Jersey Enrollments and Racial Distribution
Oct. 1, 1964 SCHOOL 12th llth 10th 9th 8th 7th 6th Liberty Roosevelt Quarles Cleveland Lincoln (Pre-K) 154 174 161 143 162 160 164 148 250 294 416 75

N
87 104 132 109 114 135 117 307 154 57 253 75 6

Our Total 241 278 293 252 276 295 281 455 404 351 669 150 26 3971 Sr. High SP Jr. High SP Total

Engleu/ood Total
239 277 287 251 278 287 283 457 404 347 667 152 23 3952 7 14 3973

# 36.1 37.4 45.1 43.3 41.3 45.8 41.6 67.5 38.1 16.2 37.8 50. 23.1 41.5

Grade 10-12

1
39.8

7-9

43.5

6 K-5

41.6 41.5

Lincoln (Tr)20 Total

2321 1650

IYiRS:jn 10/10/64

Qto*>er 6,

Jaoe* T* Murphy, Xeq. " 6 Sou tti Depot Square Bnglevood, lew Jer**y Major A Major Atti Jaae* A. Major, JUq. 2m Main Street Hackenaclc, Hw Sidney Wnoln, *?. 16 Vt Pali4* Avr.u SD(lvood, Scv Arthur J, Sill*, Bsq Atti Howard X*tio, Stat* Hou Annx Trar.ton, v J*ry Morton Start*, Siq. 7M* Bro*d S wark, KMT

-Zfi I a* forvurdie* dir*otly to Mr. J* Murphy tn atlpulation *ad lx copi xt*odlng our tim to .! a '! rpo&dinz tori*? is tb* *bOT-Oftptiood e**. Ou* Due to court cooniteect*, I will not return to office until October 26th and eooeequectly, vill aot bare ufflelect tie* to prepare tbe brief. ZM* Mtter ba* been dlcu**ed by telepbooe. wltb Mr. Murpbjr, Mr. Major aod Mr. Xeatln

* '""-r.

It would be appreciated if after *igoing tbe *tlpul^tloc, Mr. Murphr would forvard tbe eoeloeure* to Mr. Major and tbat tbe cocteot* will then be forwarded to Kr. Dlrcln, Mr. Ke*tln and Mr. Stavl* for their l?r.aturs, and Mr. Stavl* will return It to tbi office for filing

-aT.
Oototwr 6, with th United 8tt Court of Appeal* for tb Xhird Circuit. Copiea vill D provided for the file* or ll eouneel. Vry truly B*rbar A. Morri
BAMzjpb

or THE

UNITED^STATES COURT OF APPEALS


IDA O. CRE8KOFF FO THE THIRD CIRCUIT 2040 U. . COURTHOUSE PHILADELPHIA 19107
W*. 1-11 4

October 1, 1964

Barbara A. Morris, Esq. 20 West 40th Street New York, N. Y. 10018 Re: Puller, et al. v. Volk, et al. No. 15,043-4 Dear Miss Morris: Miss Matysik of my office advised me of your telephone call With respect to the above-entitled case. We have examined our file and find that the Attorney General of the State of New Jersey, Arthur J. Sills, entered his appearance for the Intervening Defendants and Morton Stavis, Esq. for Deborah Spruill, Intervenor. We have no record of your appearance on behalf of any of the Intervenors and have, therefore, not communicated with you. If you do in fact represent some or all of the Intervening Defendants, please sign the enclosed appearance form and return it to, this office. Very truly yours,

fm enc.

Clerk

G R O S S STAVIS
COUNSELORS AT LAW
:CEL CROSS nOR-TOK JJTAVJ3 ^JEL L.RtCHAiU55ON 7-4^ BRO-<D STS.EE7 NEWAAK, N.J. O7JO2

October 20, 1964 Re: To All Counsel: In order to save the time of all counsel, we propose to amend the Stipulation extending to November 23, 1961 the time within which the brief and appendix on behalf of Intervening-Defendants-Respondents Kenneth Ancrura, et al. shall be filed, by adding the name of Intervening-refendantRespondents Deborah Sprulll, et al. Fuller v. Volk

If there are no objections, we shall so amend the Stipulation. Very truly yours,

Morton Stavis HS:mbt

T^JMJUUaj fMM IMt: UULLELTICNS CF THE MftNUSCRIPT DIVISICN, LIBRARy OF CCNGRESS

flf Beta Stretg


DEPARTMENT OF LAW^ND PUBLIC SAFETY
OIVISIONlpF LAW
A L A N B. H A N D L E R

October 21, 1964

JUJor and Major, Keqa. Attni JMM A. Major, 241 Main StTMt Korean 1744 Bread StTMC
/BUrt

A. 20 WMC For INw York 18,1

Gertrude f. roller, ec al v. Auatin A. Volk, et al Docket Ha. 15043-15044


0itlMa xJ Hilt JtorrUi It has b>aoa< oeomary for to r*que a utculoa of tim la the *bov oeioned mtttn du to C!M prw of other urgene bu*in< which h* prevented M frw preparing the brief in thi setter for October 29, ebi date upon which it i due. Tou heve inforeerf *e by ktUpboae *b*t the tenu of the enclosed cipuletioa are [DOC objectionable to you* Z m forwarding en original *ad 6 copies of the tipuletion eittendtng the tiae to file ite brief of thia office to Mr. Major.

- 2 -

Mlas Morris.

X would appreciate the kindness of Mr. Maj ad the ebove Tinrr-* eddreitee la fenwrdlag tbi* itipcOa to each Other la the ordr aeaed abov* ad r*oa**c that MiM Morri* x*eum th ^oxieod ttpul*tloa ad to M. Z will tb* provt4 11 COUOM! with fully eefocaod eoolM for thair fllM. m order ce irp^U ttr, 1 tondint tol* tlyolatlon la two t. Oo* C It bin 4dr**d to M***r*. Mtfrphy, Irwltn cad Dlnela and the other to Metsrt, Major and Stcri* aad Thak you for your kiada***. Try truly yours, Btwvr* H. l*tio Deputy Attom*y Coacrsl

DC*.

,/

Untied States (tart jrf Ajiprala


FOB TBDI THIBD CisctnT.

Dock* N. 15043-15044. GEBTBUDE P. FULLER, RICHARD L. GRUBMAN, THOMAS F. CACCIOLA and JOSEPHINE CACCIOLA, iua wife, and others to be named, Plamtift-Appellantt, and JEBBY VOLPE, et al.,

AtrsriN A. VOLE; < ai,


and

FREDERICK M. BAtTBUfGEB, Commisaiojier of Edooition of the State of Hew Jersey,


MM*

KENNETH ANCBUM, < at, W DEBORAH SPBOTLL, ** A,


OH MTfMAL TROU JVDOMWXT Or Tat USTTK) STjiTK DISTB1CT

causer ros TSM DISTRICT or trrw Jissrr.

BRIEF OF DEFENDANTS-RESPONDE>fTS (Atutin A. Voli, et a/.).


ERSSLIX JOBN J. BRBSUN, Ji., BRESUN. fa41 Miin StrMt,

. Cr Ie., Uw Priim. ri-ri Cfatai Sena. N<wt i. N J.MAnpc J-<<

O3G

October 28,

Mrs. Ida 0. Creskoff , Cleric Unit ad States Court of Appeals for th Oilrd Circuit Unitad States Courtbousa Phildalpiila , Pnnsylv*ni Dai- Mrs.' Cr1coff *
Ra:

- I av aocloslng baravith tba original aod tvo copies of Stipulation in tba above-entitled causa. ' Yarjr truly yours, Barbara A. Morris
BAM:jpb

M O

s
**

52 ^5
P M *

U.

E <*
OH

* O US

-<
f-C , n) *

a8

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is

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li' o Sprii i h ing Hov*sbr 23

WifWJLUJUi) FHjn 'AMC (JUUJJJ-i il_T3 !_ 'IMt MrtHU_KJ.t-J.- UJ.Vii.iLWy

for fVolpt, t al.

Ai-thor J. ittorny 0nr*l for th


ns r*/1

X, Ea'-ibingr, Cocais^lcner c Bducation of th Stata of P

Korton wvi for I n t r r n l r -

Breslin & Breslin ,, Attorneys, for Defeadantg-RESPOKDE Austin A. Voile et si

-2-

I
TABLE OF CONTENTS. PAGE COUNTEB-STATEMENT OF STATEMENT OF PACTS .. STATEMENT OF LAW . . . CONCLUSION
Gis CITED. .E

UESTION PRESENTED

1 2 2 2

Brown v. Board of Education, 347 T. S. 4S3 (1954).. UNITED STATJS CoNSTrrunox CITH>. Fonrt^enth Amendment ..

to

en

Counter-statement of Question Presented.

Should the determination of the United States District Court for the District of New Jersey, below, that no violation of plaintiffs' constitutional rights by the decision and directive of the New Jersey Commissioner of Education or the Jnly 29th plan implementing the same has been sho'mi, and the consequent entry of summary judgment in favor of defendants, be affirmed!

FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION, LIBRARY OF COERESS

October 30, 1961* Mrs. Ida Creskoff, Clark United States Court of Appeals for the Third Circuit 20**6 U.S. Courtbousa Philadelphia, Pennsylvania 19107
Dear Mrs. CresJcoff : Be: Fuller, et al., v. Voile, at al, ' ' Noa.' 15, 0^-1?, OM

In raply to your letter of October 29, 1961*, pleas* be advised that the reason for which the extension is revested In tha above-entitled cause vas the fact that I had been out of the state for three veeks prior to tba time on which the brief vas due for various appearances, Including one before the Supreme Court of the United States and a trial before the United States District Court for the District of Massachusetts. I an enclosing herein y notice of appearance on bthalf of Ancrun, et al.. Will you kindly provide us vlth another fora so that Robert L. Carter, Esq., of this, address nay. also enter his appearance in the sane natttr. Very truly yours, Barbara A. Morris
BAM:Jpb Enclosure

^ OFFICE OF THE CLERK

UNITED STATES COURT OF APPEALS


fro* THK THIRD CIRCUIT Z04 u. S. COURTHOUSE PHILADELPHIA 19107 W* 1-J144

October 29, 1964

Barbara A. Morris, Esquire

20 West 40th Street


New York, New York 10018 Re; Puller, et al., appellants, vs. Volk, et al., Nos. 15,_043-15,044 Dear Mrs. Morris: This will acknowledge receipt of the original and two copies of the stipulation to extend the time for filing the brief and appendix on behalf of Kenneth Ancrum, et al. and Deborah Spruill, et al. Although the Court is very generous about approving stipulations it will not consider any stipulation unless it is accompanied by a reason for the requested extension. This may be in a letter. We are holding the stipulation in abeyance. Your status in the case is not clear. We note that Mr. Stavis has entered an appearance and signed the stipulation on behalf of Spruill, et al. However, we have not received an appearance for Ancrum, et al. and no one has signed the stipulation on their behalf. Please advise us as to your status in the litigation. Very truly yours,

Clerk

bw

Statement of Facts. Defendants-respondents, Anstin A. Volt, et al, adopt the statement of facts as set forth in the briefs submitted on behalf of plaintiffs-appellants, Gertrnde P. Fuller, et aL, and Jerry Volpe, et al., together with the appendices thereto. Statement of Law. The analysis of the facts pertinent to thi appeal and the law dispositive of the issues raised have been exhaustively set forth in the opinion of the Honorable Anthony T. Augelli, District Judge, below. Clearly the language of Brown v. Board of Education, 347 U. S. 483 (1954), prohibits racial segregation in the public schools as violative of the equal protection clause of the Fourteenth Amendment to the Constitution of The United States. Equally clearly, the spirit of that decision (and common sense) dictate that a reasonable integration program adopted in due course by a local board of education, such as that here under review, may not be construed as substantially discriminatory of the rights of white pupils affected thereby. Conclusion. These respondents respectfully pray: ^That for the reason* let forth in the opinion of Judge Aojelli below, the summary judgment entered in faror of defendants should be affirmed. Respectfully submitted, BBBSLIN AND Bsssmr, Attorneys for Defendants-Respondents. JOHN J. BBESUJ?, JE., Of Counsel

REPRODUCED FROM THE CULLU-T1CN5 Uf

int.

^T% * *
IN

.
THE

; :

mteo States; Court of appeal Fon THE THIRD CIRCUIT


,
I
Dock.* No. 15043-15044

GERTRUDE P. FULLER, RICHARD L. GRUBMAN, THOMAS F. CACdOLA ud JOSEPHINE CACQOLA, hi. wife, mod other* Co be aimed,

V-

ad JERRYVOLPE. end
-t-

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AUSTIN A. VOLK, et .1 D,fn4a*trRittom<imi, ad FREDERICK U. RAL'BINGER,,Cominj..io n ci of Education of the State of Ne Jetiey ud KENNETH ANCRUU, >1 ad DEBORAH SPRUILL, ! lHtmml*rDi/fulml*Xf+o*Jml*.

BRIEF AND APPENDIX FOR PUINTIFFS-APPELLANTS (CWrtrud. P. F u l l e r , . o l )

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JAMEST. MURPHY, Attorney for PlainUlft-^ppttltmts Gcrtntk P. Fuller, at da. 6 South Depot Square Eogiewood, New Jereey

JAMES T. MURPHY, ESQ. 0 It* Brie/


JOSEPH C TCMISH CO.. App*lllll Printing, THNTOM. N. J

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QUESTIONS PRESENTED 1. Does the Decision and Directive of Commissioner Raubinger and the July 29th Plan Implementing same violate the Constitutional Rights of the PlaintiffsI Appellants ? 2. Should Summary Judgment be granted in favor of Plaintiffs-Appellants or, in the alternative, should this cause be remanded for a Plenary Trial ?

STATEMENT OF FACT This is an appeal from an order entered by the ^United States District Court, District of New Jersey oh June 25, 1964, which 1. denied plaintiffs' (appellants) motion and intervening plaintiffs' motion for summary judgment, and 2. granted the motion of the defendant, The Board of Education of the City of Englewood for summary judgment and 3. granted judgment of dismissal of the complaint (Appendix A.). On October 14, 1963, a verified complaint and Order to Show Cause were filed with the court below (Appendix B) to restrain the City of Englewood from implementing a plan which allegedly required the shifting of grade school children in the City of Englewood, New Jersey. The Fuller appellants claimed that under this plan (hereinafter referred to as the July 29th Plan) their constitutional rights as taxpayers and parents granted by the Fourteenth Amendment of the United States Constitution, the New Jersey Constitution and New Jersey Statutes were being violated. Subsequently, the Volpe Appellants intervened with the Fuller Appellants claiming the same violation of rights as Parents and Taxpayers. Up to and including the close of the school year in June, 1963, Englewood operated the public schools grades kindergarten through sixth inclusive on a neighborhood school system on the basis of geographic lines. There was no allocation of students nor exclusion of students on the basis of race, color, creed or national origin. Much of the factual background in this case has been set forth in a brief filed by these appellants in the Court

below and will be repeated herein. Prior to the commencement of this litigation and on July 1, 1963, Frederick M. Raubinger, State Commissioner of Education of New Jersey rendered a decision setting forth that certain petitions (Spruill and Ancrum) were filed by parents on behalf of their children charging the Englewood Board of Education with maintaining racially segregated public schools and with refusal to implement plans to eliminate patterns of racial segregation alleged to exist in the public schools. A third group of petitioners (Volpe et al) were allowed to intervene with the above petitioners (Appendjx C). The Volpe petitioners advocated the maintenance of the neighborhood school policy, further claiming that the Englewood Board of Education was not discriminating against any children. A motion made to dismiss the Board of School Estimate and the Mayor and Council fiom the complaint, on the ground that the Commissioner of Education lacked jurisdiction over these parties, was granted, leaving the Englewood Board of Education as sole respondent. The Commissioner found thftt there were five elementary schools which are attended by pupils assigned on the basis of residence in designated attendance areas. The focus of the hearing beiase the Commissioner was on Lincoln School. The lines controlling the school attendance district for Lincoln School had previously been approved by the Commissioner. (Appendix C). It is most important to note that the Commissioner determined that there was no evidence to support a charge of intentional racial segregation by respondent. The Commissioner stated that it is apparent that the concentration of pupils from one race results from patterns of housing. The Commissioner did not dispute that educational gpportunities were equal regardless of school attended in terms of measurable objective criteria (Appendix C). He directed the Englewood Board of Education, however, citing Fisher v. Orange

City Board of Education, decided May 15, 1963. 1. to formulate a plan to reduce the concentration of negro pupils in Lincoln School, 2. to submit the plan to him on or before August 1, 1963, and, 3. to put the plan, as approved, into effect at the beginning of the 1963-64 school year. (Appendix C). In short, the Commissioner directed Englewood to embark upon an educationaJ program of racial juggling apparently believing, though not setting forth facts to substantiate same, in a philosophy of education through racial osmosis. On July 29, 1963, the Board of Education of Englewood, New Jersey, adopted a proposal (hereinafter referred to as the , uly 29th Plan^vhich would change the existing school attendance syffem in the City of Englewood, New Jersey. A copy of said plan follows: "Be it resolved by the Board of Education of the City of Englewood, Bergen County, New Jersey, that in order to comply with the directive of Commissioner Frederick M. Raubinger, New Jersey State Department of Education, dated July 1, 1963, which directive directs the Englewood Board of Education to do the following things. 1. To formulate a plan or plans to reduce the extreme concentration of pupils of the negro race in the Lincoln School consistant with the principles and findings enunciated in this decision; 2. To submit such plan or plans to the Commissioner of Education for approval on or before August 1, 1963;

3. To put a plan as approved, into effect at the beginning of the 1963-64 school year. Now, therefore, in compliance with said directives, the Board of Education of the City of Englewood, Bergen County, New Jersey, submits the following plan, to take effect as of the opening of school in September, 1963, or as soon thereafter as building renovations can be effected. 1. To establish at the former Junior High School building at 11 Engle Street, a city-wide sixth grade school to which the Board assigns all sixth grade pupils of the Englewood Public Schools. 2. To assign all pupils of grades one through five residing in the Lincoln School attendance district to the Cleveland, Quarles and Roosevelt Schools, such assign..umt to be determined by the Superintendent on the basis of the following criteria: A. define attendance districts so that children of the Lincoln School district will be assigned as nearly as possible to the school nearest their homes, B. provide for an even distribution of class loads, C. to permit the children whose parents wish them to remain at Lincoln School to remain there provided that it is administrationally and educationally practicable to do so. 3. As a prerequisite to the establishment of the city-wide sixth grade school referred to in Paragraph (1) above, either of the following two conditions must occur; A. 125 or more present students of Lincoln school must not elect to remain for the

1963-64 term at Lincoln School or B. The number of transfers from Lincoln School will result in class loads in Quarles, Cleveland or Roosevelt Schools which, in the opinion of the Board of Education, is educationally undesirable. 4. To assign to Lincoln School all children of Kindergarten age residing in the present Lincoln School district. 5. To transfer the central administrative offices of the Board of Education to the Lincoln School. 6. To instruct the Superintendent to proceed immediately with all necessary arrangements, notices and procedures consistent with the laws of the State of New Jersey to execute these directives. f PROVIDED THAT: The plan meets the requirements of the law and that the Board's Attorney gives assurance of immunity of Board members and the Superintendent from taxpayers' suits regarding the expenditure of public monies to implement any aspect of these plans. AND PROVIDED THAT: The Commissioner approves the plan." (Appendix E). It is significant that expressly 1. The plan is formulated to deal with racial attendance in order to comply with Commissioner Raubinger's directive. 2. The plan effects pupils from the entire city of Englewood because of the city-wide sixth grade.

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

tion, which Board subsequently affirmed Commissioner Raubinger's decision. Prior to that appeal being heard suit was started in the New Jersey Superior Court, Chancery Division entitled Volpe v. Perry which was heard on August 8, 1963, by Judge Donald G. Collester. In that case plaintiff (Volpe) sought to enjoin the Board of School Estimate and the City of Englewood from Expending funds to implement the above plan. Said application was denied for the reason that plaintiffs had not exhausted their administrative remedies. On August 14, 1963, the plaintiffs herein agreed in the New Jersey Superior Court Law Division, Bergen County before Judge Gordon H. Brown, temporarily assigned, wherein plaintiff taxpayers sought to enjoin the Board of School Estimate and the City of Englewood from appropriating and/or expending public funds to implement the July 29th Plan and that such proposed appropriation and expenditure be adjudgedfclegal, unlawful and unconstitutional. At that hearing the Attorney General was permitted to intervene on behalf of the Commissioner of Education, and the Board of Education was also permitted to intervene as parties defendant. As a result of the hearing the plaintiffs' action was dismissed without a trial on the merits and the relief sought was denied. The plaintiffs appellants were not in any way effected prior to the drafting of the July 29th Plan for, prior to that time, there was no requirement for the expenditure of public funds. Therefore, prior to the Commissioner rendering his decision and the subsequent adoption of the plan, the plaintiffs appellants as taxpayers were not adversely effected. The thrust of the instant complaint by the Fuller Appellant is against the appropriation and expenditure of money by the City of Englewood and the Board of School Estimate which were dismissed as defendants on motion in the hearings before Commissioner Raubin-

ger by the Commissioner for lack of Jurisdiction (Exhibit C). Thus neither the plaintiffs Appellants nor the original defendants (the City of Englewood and the Board'of School Estimate) were parties to the hearings held by Commissioner Raubinger. Plaintiffs-Appellants have therefore been placed in a position where their constitutional rights have been effected by the Commissioner of Education who would not determine the constitutional questions and yet insisted that his directive be carried out prior to the courts having an opportunity to determine the constitutionality of the issues involved. Plaintiffs-Appellants have maintained and do maintain that all people regardless of race, color or creed are entitled to equal opportunities and that no group of individuals are entitled to preferential treatment merely because of their color. Essentially this is a case involving a high concentration of negro students in one school (Lincoln School) which is the result solely of housing and not of any intentional design on the part of the City of Englewood, nor the Board of Education of that city. At the beginning of the School year of 1963 and up until October 28, 1963, the sixth grade students in Englewood attended classes at their neighborhood schools; that is, Cleveland, Liberty, Lincoln, Quarles, and Roosevelt Schools. After October 28, 1963, these students were taken out of and excluded from their neighborhood schools and shuffled across town to the recently opened central sixth grade at 11 Engle Street. The only purpose for this shift and exclusion was to balance the races. In order to comply with the July 29th Plan provision that 125 or more present students of Lincoln School must not elect to remain there, letters were sent to the parents of Lincoln School pupils giving them the choice to remain in their neighborhood school or to be assigned to another school. No children from any

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10 other school were given this choice, yet the children from the other schools were to be effected by the choice given to Lincoln School pupils (Appendix D). The pupils of Lincoln School bad the ability to vote that plan into effect, which would transfer children from all other neighborhood schools attending the sixth grade. Very simply, if the vote is given to some children to be effected, it should be given to all children to be effected. When the 1963-64 school term opened on September 4, 1963, approximately 125 school pupils, grades one througi five were assigned to Cleveland, Roosevelt and Quarles Schools. All other children remained in their neighborhood schools, including pupils in Liberty School (AppindixD). In the opinion below, the Court considered the following facts based upon affidavit 1. In Dr. Shedd's expert opinion, the Plan is educationally sound. 2. Continued use of Lincoln School was limited due to age and condition of the school. 3. The Central Sixth grade provides superior educational opportunities. 4. Distance traveled to the Central Sixth is not an undue hardship or safety hazard for the children (Appendix D). Plaintiffs-Appellants complained that the children were required to attend a central sixth in an industrial or business area. Dr. Shedd presented no qualifications to render an opinion on use of a structure, nor was there any evidence of the distance traveled or the traffic problems encountered. The Court below also considered an affidavit of Commissioner Raubinger which set forth findings of his committee which he took into consideration in rendering

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his decision. (Appendix C). The contents of this affidavit were objected to as being hearsay, and it is significant that Commissioner Raubinger relied upon ifhis committee findings but none of the litigants were /aware of'this evidence which Commissioner Raubinger | considered. Furthermore, the Court below considered this evidence even though it was hearsay. (AppendixD). The court below found the vote of the effectiveness of the plan was given to the children whom the Board proposed to move out of their neighborhood school, and therefore, they were the most logical ones to be removed. However, the plan also called for the removal of sixth grade students from Liberty, Cleveland, Quarles and Roosevelt Schools, ani1 they did not have a vote. (Appendix D). The court below also found that any discrimination that may exist was not of constitutional dimensions. This will be considered in the argument under the Statement of Law.

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13 teenth Amendment to the Federal Constitution. At page 493 the Supreme Court framed the precise and only question before it; i. e., " "Does segregation of children in public schools solely (emphasis supplied) on the basis of race, even though the physical facilities and other 'tangible' factors may be equal deprive the children of the minority group of equal educational opportunities?". The court decided the question in the affirmative because such segregation solely on the basis of race violates the equal protection clause of the Fourteenth Amendment. The court also held at page 493 that where a state has undertaken to provide an opportunity for an education in its public schools, such an opportunity is a right which must be made available to all on equal terms. The Brown decision is the law of the land, it if the law that governs each state and each municipality in the Union. It is also the law that governs Commissioner Raubinger and the New Jersey State Board of Education. It is most important to emphasize that the Brown decision prohibits segregation solely on the basis of race, or, as the Spruill and Ancrum petitioners referred to it, "de jure segregation." However, Commissioner Raubinger found that there was no intentional segregation on the basis of race in the Englewood School System; i.e., no "de jure segregation." In short, that system was perfectly lawful and legal. However, Commissioner Raubinger took the position that the Englewood school assignment system was and is unlawful. Defendants-Intervenors-Respondents attempt to substantiate Commissioner Raubinger in this view by citing Jeffers v. Whitley. 309 F 621 (1962) and Branche v. Board of Education of Hempstead, 204 F. Supp. 150 (E.D.N.Y. 1962).

STATEMENT OF LAW POINT I The Decision and Directive of Commissioner Raubinger Violates Constitutional Rights of Plaintiffs-Appellants. Commissioner Raubinger found that there was BO intentional segregation by race by the Englewood Board of Education in the public schools. He did find that Lincoln School was 98.0 per cent negro. He also found that it is apparent that "this concentration of pupils of one race results from patterns of housing and the operation of other socio-economic forces . . .". The Commissioner also conceded that such "housing and non-school problems are not the responsibility of the Board, nor does it have any control over these housing and non-school problems." Toe Commissioner also found that the Englewood school assignment was based on neighborhood schools, the boundaries governing which were previously approved by him. Nevertheless, he directed the Englewood Board of Education "To formulate a plan or plans to reduce the extreme concentration of pupils of the negro race in the Lincoln School." (Appendix C). The school segregation cases are based on the 1954 Supreme Court Decision of Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98L. Ed 873. The Brown case came up to the Supreme Court together with numerous other cases involving the same issues. These cases were all grouped together and decided under the title of Brown v. Board of Education supra. These cases dealt with negroes seeking admission to public schools on a non-segregated basis. The negroes had been denied admission to white schools due to segregation laws, most of which were based on the "separate but equal" doctrine. It was charged that this denied these negroes equal protection under the Four-

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When briefs were filed in opposition to a motion for injunction in this matter, Defendant-IntervenorRespondent, the Board of Education of the City of Englewood relied on and quoted extensively from Jeffers v. Whitley to substantiate its position. However, it is rather significant that the following quotations from the Jeffers case were conveniently omitted: "They (applicants) did contend and they proved that they were not in the Training School by their volition and they were denied the right to attend Bartlett Yancey because of their race." (underscoring ours.) p. 625. "The record in this case strongly indicates that some of the minor plaintiffs, particularly the Sanders (sic) children, were dejued reassignment solely on the basis of their ra'-e." (underscoring ours) p. 626. The court went on to hold on page 629, "On behalf of others, similarly situated, the appellants are not entitled to an order requiring the School Board to effect a general intermixture of the races in the schools. They are entitled to an order enjoining the School Board from refusing admission to any school of any pupil because of the pupils race." (underscoring ours) The only other case set forth by Defendants-Respondents with citation to substantiate the Commissioners position is Branche v. Board of Education, supra. In the Branche case a negro student applied to attend a school outside her area and instituted suit to compel the defendant Board of Education to admit the student. The defendant Board of Education moved for Summary Judgment. The court denied the Summary Judgment stating at page 153: "The fact brought forth by the defendants do not authorize Summary Judgment in their favor.

"Defendants show facts compatible with an absence of responsibility on their part for the racial Segregation that exists in the schools, but these facts do not demonstrate that there has not been segregation because of race." The Branche case was a denial of a summary judgment and not a determination on the merits. The only implication to be drawn from the above language is that if it had been demonstrated that there had not been segregation because of race, the summary judgment would have been granted. To cite the Jeffers and Branche cases to substantiate the constitutionality of the Commissioner's directive to juggle the races is completely without merit and has no basis either in law or fact. Let us now examine the cases which deal with attempts to transfer students from one school district to another where there is no showing of segregation because of race. The case of Bell v. School City of Gary. 213 F. Supp 819, (N.D. Indiana, 1963 Jan. 29, 1963-U. S. Diet. Ct.), was a Declaratory Judgment action brought by minor negro children alleging segregation in the school system. It was held that plaintiffs failed to establish that the Board of Education had deliberately or purposely segregated neighborhood schools according to race by drawing of boundary lines so as to contain negroes in certain areas and whites in others. The court in the body of the Bell decision found that the school areas had been reasonably arrived at and that the boundary lines were not drawn for the purpose of including or excluding children of certain races. The evidence in the Bell case as well as in the Instant case showed that the School Board had followed the general policy of requiring the students to attend the school designated to serve the district in which they lived regardless of race. The court went on to state,

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17 affirmative duty on the part of the Board to bring about a racial balance. To support this position plaintiffs cited Brown v. Board of Education. 347 U.S. 483, 494 which enunciates the doctrine that separation of negroes solely because of race generates a feeling of inferiority. The plaintiffs in the Bell case conceded that the question of affirmative duty to strike a racial balance had never before been decided upon by any court. The court then distinguished the Branche case for the same reasons listed above. Because of the unique correlation between the Bell case and the instant case, the following language of the Bell case shall be set forth at length. "The Court is of the opinion that a simple definition of a segregated school, within the context in which we are dealing, is a school which a given student would be otherwise eligible to attend except of his race or color or, a school which a student is compelled to attend because of his race or color." "The neighborhood school which serves the students within a prescribed district is a long and well established institution in American public school education. It is almost universally used, particularly in the large school systems. It has many social, cultural and administrative advantages which are apparent without enumeration. With the use of the neighborhood school districts in any school system with a large and expanding percentage of negro population, it is almost inevitable that a racial imbalance will result in certain schools. Nevertheless, I have seen nothing in the many cases dealing with the segregation problem which leads me to believe that the law requires a school system developed on a neighborhood school plan; honestly and conscientiously constructed with no intention or purpose to segregate the races, must be destroyed or abandoned because the result-

"The problem in Gary is not one of segregated schools but rather one of segregated housing. Either by choice or design, the negro population of Gary is concentrated in the so called central area, and, as a result, the schools in that area are populated by negro students. If the negro population was proportionately scattered throughout the city, the racial percentages within the schools would be in relative proportion of negroes to whites." The court then distinguished the case of Taylor v. Board ot Education. 191 F. Supp. 181, 294 F. 2d 36 where there had been deliberate segregation to include negroes and exclude whites as to a certain school. The court held that the Taylor case did not apply to the Bell case because in the Bell case there was a lack of intent or purpose on the part of the Board to segregate the races in ( ft-tain schools. The Bell decision then states: "The fact that certain schools are completely or predominantly negro does not mean that the defendant maintains a segregated school system. See Brown v. Board of Education of Topeka, 139 E. Supp 468. There the three Judge Court, charged with the duty of implementing the decision of the Supreme Court (349 U.S. 294) held, in passing upon the plan submitted by the school board for de-segregation of the Topeka schools, that a school is not segregated because it is attended by all negro students if the district is inhabited entirely by negroes and they are compelled to attend the school in the district in which they live." The Bell case goes on to disclose that the plaintiffs contend that regardless of the motive or intent of the Board, actual segregation exists because of the large percentage of white students in one school and negroes in another, and plaintiffs further urge that there is an

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19 admission to the public schools on a non-racial basis . . . " (emphasis added) These instructions clearly indicate that the Supreme Court intended that the de-segregation policy was to be carried out within the framework of "school districts and attendance areas." In carrying out the instructions of the Supreme Court, the three-judge District Court in the District of Kansas said in Brown v. Board of Education. 139 F. Supp 468: 'It was stressed at the hearing that such schools as Buchanan are all-colored schools and that in them there is no intermingling of colored and white children. Desegregation does not mean that there must be intermingling of the races in all school districts. It means only that they may not be prevented from intermingling or going to school together because of race or color.' 'If it is a fact, as we understand it is, with respect to Buchanan School that the district is inhabited entirely by colored students, no violation of any constitutional rights results because they are compelled to attend the school in the district in which they live.' "By this expression, the District Court clearly indicated that even in a school system that had been segregated and where the burden was on the Board to show that their desegregation plan eliminated racial segregation as such, there could still be all colored schools if all of the students living in a properly constituted school district were negroes, and that no constitutional rights were violated because students were compelled to attend the school in the district in which they lived." In the recent case of Evans v. Buchanan, 207 F. Supp 820, the Court said: 'The court holds that the States do not have an affirmative, constitutional duty to provide an in-

ing effect is to have a racial imbalance in certain schools where the district is populated almost entirely by negroes or whites. On the other hand there are many expressions to the contrary, and these expressions lead me to believe that racial balance in our public schools is not constitutionally mandated." In its original opinion in Brown v. Board of Education, supra, the Supreme Court set the case for further argument on the question of how its decision should be implemented. One of the questions to be re-argued was: "4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment A. Would a decree necessarily follow providing that, within the limits set by normal geographic districting, negro children should forthwith be admitted to schoolftf their choice." (emphasis added) (See footnote 2,349 U. S. 298) Following re-argument, the Supreme Court handed down the second decision in the Brown case, 349 U. S. 294, which was in effect its instructions to the District Courts involved as to how its policy of de-segregation should be carried out. In instructing the District Courts, the Court said in part: "While giving weight to these public and private considerations, the Courts will require that the defendants make a prompt and reasonable start towards full compliance with our May 17, 1954 ruling . . . To that end the Courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining

21 tegrated education. The pertinent portion of the Fourteenth Amendment of the United States Constitution reads, 'nor (shall any State) deny any person within its jurisdiction the equal protection I of the laws.' This clause does not contemplate compelling action; rather, it is a prohibition preventing the States from applying their laws unequally.' 'When interpreting the equal protection clause in the Brown case, the Supreme Court held only that a State may not deny any person on account of race the right to attend a public school. Chief Justice Warren, speaking for the court said, 'To separate them (negroes) from others . . . solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.' (Emphasis supplied.) The clear implication of this statement isftiat if races are separated because c f geographic or transportation considerations or other similar criteria, it is no concern of the Federal Constitution. Thus, discrimination is forbidden but integration is not compelled.' |"The court finds no support for the plaintiffs position that the defendant has an affirmative duty to balance the races in the various schools under its jurisdiction, regardless of the residence of students involved." I As e^ressed in the Bell decision, there was at that | time (Jan. 29, 1963) no decision on the precise issue I BOW before the court. Therefore, when this matter was heard by Commissioner Raubinger the only decision precisely on the question (as to affirmative duty to strike a racial balance regardless of the School dis; tricts or residence of the Students) was the Bell decilion. The Bell decision was then the law and Commisr Bioner Raubinger was obliged to follow it. Otherwise ', Commissioner Raubinger would not be following exist| . ing law, but making new lawwhich is what he did in the instant case, thus exceeding his authority. So too in Briggs y. Elliott. D. CC. D. S. C. 132 F. Supp 776 in construing the 1954 Brown decision at page 777 the court sado1: " . . . it is important that we point out exactly what the Supreme Court has decided and what it has not decided in this case. It has not decided that Federal Courts are to take over or regulate the public schools of the States. It has not decided that the States must mix persons of different races in the schools or must deprive them of the right of choosing the schools they attend. What it has decided and all that it has decided, is that a State may not deny to any person on account of race the right to attend any school that it maintains . . . The Constitution does not require integration, it merely forbids discrimination. It does not forbid such segregation as occurs as a result of voluntary action. It merely forbids t'.e use of governmental power to enforce segregation. The Fourteenth Amendment is a limitation upon the exercise of power by the State or state agencies, not a limitation upon the freedom of individuals." "But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them." id p. 778 Merely because Commissioner Raubinger may disagree with these constitutional principles does not give him the right to exclude children from their neighborhood schools due to consideration of racial factors, which is what he directed the Englewood Board of Education to do. In the case of Holland v. Board of Public Instructions (Fla) 258 F 2d 730 (5th Cir. 1958) U.S. Ct. of Appeals,

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a negro parent charged that her child had been segregated with regard to school attendance. He applied for admission to school outside his district and was denied on the basis that "The Fourteenth Amendment does not speak in positive terms to command integration, but negatively, to prohibit governmental enforced segregation." The court held that the infant plaintiff was entitled to be treated simply as another school child, without regard to his race or color, and the fact that he was a negro did not vest him with a right to attend a school located in a district in which he did not reside when that geographical rule was being applied to all children alike. Neither segregation nor discrimination are shown merely because therf are more negro students in one section then another. Sealy v. Department of Public Instruction. 252 F 2d 898 (3rd Cir. 1S58) Cert. Den. 365 U.S. 975 (1958). "Our constitution is color blind, and neither knows nor tolerates classes among citizens. Dissenting opinion of Mr. Justice." Harlan in Plessy v. Ferguson. 163 U.S. 537. In the instant case, Commissioner Raubinger has held that the mere fact that these students in Lincoln School are negro has vested them with the right to attend schools outside the Lincoln School district, even though the neighborhood school geographical rule was being applied to all children alike. In short, merely because of their color, the colored students of Lincoln School have been given preferential treatment, causing a change in the approved Englewood School attendance system. Because of this preferential treatment, other students are excluded from attending the sixth grade they would normally attend, purely because of race. This not only violates the Fourteenth Amendment of the Federal Constitution, but also the 1946 New Jersey Constitution, Art. 1 paragraph 5 which provides that

"No person shall be denied the enjoyment of any civil or military right, nor be descriminated against in the exercise of any civil or military right, nor be segregated in the militia or in the public schools, because of Religious principles, race, color, ancestry or national origin." Implementing this constitutional provision is the antidiscrimination law, N.J.S.A. 18:25-1 et seq., N.J. S.A. 18:25-4 provides: "All persons shall have the opportunity . . . to obtain all the accommodations, advantages, facilities and privileges of any place of public accommodation . . . without discrimination because of race, creed, color, national origin or ancestry, subject only to conditions and limitations applicable alike to all persons. This opportunity U recognized as and declared to be a civil right." In section 18:25-5 (j) of the same statute a "place of public accommodation" is defined to include: . . . any kindergarten, primary and secondary school, trade or business school, high school, etc. In Henry v. Godsell. 165 F. Supp 87 (E.D. Mich. S.D. 1958) U. S. Dist. Court, the court stated at page 91 "The plaintiff has no constitutionally guaranteed right to attend a public school outside of the attendance area in which she resides. The utter chaos that would prevail if each child were permitted to choose the school that he or she desired to attend without regard to the attendance area in which the child resides is readily apparent." In the instant case, the students from Lincoln School are to have their choice under the July 29th Plan of attending Quarles, Roosevelt or Cleveland School. They are excluded from choosing Liberty School solely because of race. Why is it that the students from

24

25 The court went on to state at page 824: "In effect counsel is asking the States to intentionally gerrymander districts which may be rational when viewed by acceptable nondiscrimin'' atory criteria. The dangers of children unnecessarily crossing the streets, the inconvenience of traveling great distances and of overcrowding and of other possible consequences of insuring mixed schools outweigh the deleterious psychological effects, if any suffered by negroes who have not been discriminated against, as such, but who merely live near each other. As with most problems its cure rests in elimination of its roots. The problem in this case grows out of segregated housing." In Brown v. Board of Eudcation. 139 F. Supp. 468, 470 (D. Kan., 1955) (U. S. District Court) the Court held at page 470 that de-segregation does not mean that there must be intermingling of the races in all school districts. If the district is inhabited entirely by colored students, no violation of any constitutional right results because they are compelled to attend the school in the district in which they live. It has been the rule in New Jersey for many years that it is unlawful for Boards of Education, solely on the basis of race to exclude children from any public school, or to refuse them admission to the school nearest their residence, or to require them to attend segregated schools. Sheppard v. Board of Education, 207 F. Supp. 341, 347 and cases cited therein. The case of Taylor v. Board of Education, 294 F. 2d 36 (Clark, J.) involved a situation wherein the majority found that there had been deliberate and intentional maintenance of racial segregation by the Board of Education. However, a dissenting opinion which was written by Judge Moore held that there was no deliberate or intentional racial segregation. Judge

Quarles, Cleveland or Roosevelt school do not get their choice ? Is this not a denial of equality of choice and therefore a denial of equal protection. Are not the students from Lincoln school being granted certain advantages that other students simEarly situated do not have ? Is not the basis of the distinction color ? Where children were once treated alike by going to school in their neighborhood, the proposal is now to treat them differently; and why? Purely because of color. This fact is inescapable. But this inescapable fact is adversely affecting other children. Children throughout the city of Englewood who normally attend the sixth grade at the school nearest their residence must now travel a further distance to the Engle Street School. They must now go to school in the heart of the businesi district causing greater risk and danger to their person. Because of this preference being given for color, because of this exclusion from normally attended sixth grades, added expenditures of public funds will be imposed upon the taxpayers at a minimum cost of $123,000. 00 merely to implement the change. In Evans y. Buchanan, supra. 207 F. Supp 820 (D. Del. 1962) (U. S. District Court) where the court was confronted with a situation involving an all negro school in a negro residential area with a charge that this violated the Equal Protection Clause of the Fourteenth Amendment of the Federal Constitution, it was argued that the State is compelled by Equal Protection clause to provide affirmatively an integrated education. The court held that the States are not required to provide an integrated education, setting forth the Fourteenth Amendment at page 823 as follows: "nor (shall any State) deny any person within its jurisdiction the equal protection of the laws." This clause does not contemplate compelling action, rather it is a prohibition preventing states from applying their laws unequally.

26

27

Moore stated at page 40 " . . . Beneath a banner emblazoned with the words 'constitutional rights' and 'segregation1 is a decision which in its far reaching implications, in my opinion, may seriously affect the school system of this county. Our future is closely linked to our educational program but more closely connected with our heritage are such concepts as individual freedom, democratic elective processes, States' Rights and equal protection of our laws for all. Too easy is it to march behind a banner bearing such slogans. History records that the populace, singing and cheering, once marched behind a certain gigantic house of wood. It seemed harmless enough at the time. History has a. way of repeating itself. Would that my Cassandra-like pessimism may prove to be ill founded. It is doubtful in any event that her warnings ever saved any ie or any nation." In the Instant case the Equal Protection clause has been violated as to all Englewood children from the four districts other than Lincoln School, because the former are completely disregarded. How can a permissive transfer policy be granted to only one out of five districts? Why should the negro child in the Liberty School District be deprived of the privileges granted to the Lincoln School District ? If concentration of any one group is "segregation" (and hence a violation) why should not the Jewish, Italian, Polish, Irish or Chinese, etc., child be given equal privileges to transfer? Regardless of protestations to the contrary, the effect and Implications of Commissioner Raubinger's decision are to place the operations of the schools of the State in the hands of a single man. His personal views as to those pupils who should be granted or denied transfer will control; he alone will decide what racial mixtures satisfy his concept of integration. Of necessity he will have to pass upon district lines if he

chooses to permit neighborhood schools to continue. His decrees will cause schools to be built, altered or abandoned. Attendant thereto will be a fixing of the city's 'school tax rate to accomplish his bidding (Taylor v. Board of Education, supra. P. 50 et seq). It makes a mockery out of the function of the local Board of Education and Board of School Estimate. These are not exaggerations. These are facts. Commissioner Raubinger ordered Englewood to formulate a new system; it was held in the court below that the action of the Board of School Estimate in appropriating additional monies was only administrative; Englewood taxpayers will be required to spend a conservative minimum of $123,000.00 and probably substantially more; only Commissioner Raubinger in his mind knows what percentage he considers an imbalance; it is his decree and approval of the July 29th Plan which will cause the Engle Street School to be extensively renovated and altered and virtual abandonment of Lincoln School as a school; it is by his decree and approval that children from one district are entitled to virtual open enrollment while children from the four remaining districts must attend neighborhood schools. It is not that as a result of his decree and approval we now have two standards of school attendance in Englewood, in effect one for Negro students and one for white students. One for negro students; i.e., since the Lincoln School district is predominantly Negro, they have the privilege of choosing any one of three schools, which is a form of open enrollment; one for white students who reside in those other three school districts who must attend the school in their neighborhood. Has he not set up two different education standards because of color and race, which is precisely what Brown v. Board of Education prohibits ?

OFFICE OF THE Cl-ERK

UNITED STATES COURT OF APPEALS


FOR THE THIRD CIRCUIT O. CRESKOFF CIXXK

2O46 U. S. COURTHOUSE PHILADELPHIA 191O7

W*. 1-3-.A.*

November 2,
Arthur J. Sills^ Esquire Attorney General State House Annex Trenton, N. J. 0 6 5 82 Re: Fuller, et al., appellants, vs. Volk, et al., Nos. 15,0^3-15,0^ Dear Sir: The Court has today approved the stipulation to extend the time for filing the brief of Intervening Defendant, Frederick M. Baubinger, to November^30, 19o4 in the above case. Very truiy yours, IDA. 0. CRES.CP? jlerk
bw enc. T. Murphy, Esq. cc: Ji. /- .GJ A. Major, Esq. Major, Es^q. Sicney Dincin, Es-qtr~x Norton Stavis. ESQ.

-'Barbara A. Morris, Eso^ jonn'J. Breslin, Jr., Ssq.

r
ED STATES COURT OF APPEALS TriE THIRD CIRCUIT et No. 15043-15044 GERTRUDE P. FULLER, et al., Plaintiffs,

vs.
AUSTIN A. VOLK, et al., constituting ) the BOARD OF SCHOOL ESTIMATE OF THE CITY OF ENGLEWOOD; the CITY OF ) ENGLEWOOD; and JOHN H. PERRY, et al., constituting the BOARD OF EDUCATION ) OF THE CITY OF ENGLEWOOD, Defendants .

Civil Accion STIPULATION

JERRY VOLPE, et al., Intervening Plaintiffs, and FREDERICK M. RAUBDJGER, Coraaissioner ) of Education of the State of New Jersey,

I KENNETH ANCRUM, et al., and 1 DEBORAH SPRUILL,

Intervening Defendants.

It is hereby stipulated and agreed by the undersigned that the'brief of intervening defendant, Frederick M. Reub^^r, originally due to be filed .oVtiUs Court on October 29, 1964, ; aay be filed with ,Che Court no lacer than November 30, 1964 cue
;

to a representation by the Attorney for saic intervening defendant, Arthur J. Sills, Attorney General of Kew Jersey, by

Howard H. KesCin, Deputy Attorney General, Chac the press of


er

urgent duties, including ;: r.ur.iber of appearances before

j the courts of the State of New Jersey, prevents the filing of said brief on the date originally s3up..

VORSANGER AND MURPHY, ESQS. Attorneys for Plaintiffs, Gertrude P. Fuller, et al

BRESLIN AND 3RESLIN, ESQS. Attorneys for Defendants, Austin A. Volk, et al, constituting! che Board of School Estimate r. the' City of Englewood; and the City of Englewood

By:

,___
John J.' Breslin, Jr., Esq.

DINCIN, JESQ'/ Attorney for Defendants, John A. Perr^j, ec al, constituting the Board or Education of the City of Englewood

MAJOR ANT) MAJOR, ESQS. Attorneys for Intervening Plaintiffsj, Jerry Volpe, ec al

i.:c^i,,:cy General of New Jersey tiotLiey for Intervening Defendant, ! Frederick M. Raubinger

Howard H. Kesciii (s Deputy Attorney General

"3,

H2113ERT K. TATE, ESQ. and BARBARA A. MORRIS, ESQ. Attorneys for Intervening Defendants Kenneth Ancrun, et al

3y:

Barbara A. Morris

KClcTCN STAVIS, ESQ. and WIILIAK M. KUNSTL2X, ESQ. for Intervening Defendant, Deborah Soraill

rton Staves

APPROVED: KALODNER

MOVMiMP 2, 196*

j \Miairi,. jL

LiiViiiLTi,

CF CCNGRESS

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Docket No. 15043-13044

d:-: P. FULLER, at al., Plaintiffs, vs. AUSTIN A. VOLK, et al., constituting the BOARD OF SCHOOL ESTIMATE OF TOE CITY OF EKGLS-OOD; the CITY OF KKGLEWOOD; and JOHN H. ?ir-:lv. c;: --:!., constituting the BOARD Or = AVtx. OF THE. CITY OF HNGLH-.'OOD , Defendants etc.

Civil Action STIPULATION

ARTHUil I. SILLS Attorney General of New Jersey Attorney for Intervening Defendant, Frederick M. Rau'otnger State House Amiex Trenton, New Jersey By: Howard H. Kestin Deputy Attorney General

^J

UNITED STATES COURT OF APPEALS


FOR THI THIRD CIRCUIT 2048 U. . COURTHOUSE

OFFICE OF THE CLERK

-v^058 NQ]/-. '/,

j*

PHILADELPHIA J9W7

M|44

November 2, 1964 Barbara A. Morris,- Esquire 20 West 40th Street New York, N. Y. 10018 i Res NOB. 15,.Q43-15,_OM Puller, et al., appellants, va. Volk, et al., Dear Miss Morriss The Court has today approved the stipulation to extend the time for filing the brief and appendix of Intervening-Defendants-Respondents, Kenneth Ancrum, et al. and Deborah in the above case. Spruill, et al. to November 23, 1964 Receipt is acknowledged from you on October 31, 1964 of appearance ing-Defendants, Ancrum, et al. of counsel for IntervinEnclosed is appearance form for Robert L, Carter, Esquire. /
' ??</

Very truly yours, IDA 0. CRESKOPP / A Clerk

bw eno. co; James T. Murphy, Esq.

James A. Major, Esq. Sidney Dincin, Esq. Morton Stavis, Esq. Barbara A. Morris, Esq. John J. Breslin, Jr. , Esq.

' Puller, et al., appellants | vs. Volk, et al.

UNITED STATES COURT OF APPEALS THIRD CIRCUIT

Docket No. 15*

The following hv been received and filed today:

Appearance of counsel, for Intervening Appellees.

46640 NOV-9'6111-7-64
Clerk.

oreaber IS,
T, 6 South .Oepot 5<juAra *v Jar ley
Kajor Attui Ju,r.8 A. mijor, 2Vl Main trt Jarse/ 16 West }'olls*ie

^Arthur J. Sllli, Attat Howard Xestlc, iaq. State House Treatoc,


Stavlt,

flrealic < Attsu Joba J. Brealic, Jr., VI Main Street


g^ jArmn mj*8r.

Kt

al .

your grMct vitb y orf lc cur till* d*t, it 1 vsadcrcUod tlut you will Mad <tlroUy to Kr . IU4 Crkof/, Clrk oT tb Court of App*il* /or tb* TMrxi Circuit la Jtsil*JlpM, a lttr cocntini to an rtetcn of tia for tt of wuvwiac brief* en bb*lf of prulll aod aenai t *!., eonitct vith Ui aelo*d eopy of *., th itipolAtioa. 8* prcacur* of work In th attic* h Dot llovd to ooplt tbt hrif with sufficient tiM to C*T it printed *o4 filed toy

5=0 HO

r
o

i&& I ?; P* IL
I

l!
-s <

November 18, 196V Mrs. Ida C, Creakoff , Cleric United States- Court of Appeals for the Third Circuit United States Courthouse
Philadelphia, Pennsylvania Dear Mrs.- Creakoff: Re: Puller, at al. v t i efr

In accordance with our conversation of this date, I aa' enclosing an original and three copies of a stipulation extending the tlae within which defendants-respondents Sprulll and- Ancrua, et al., nav file their answering brief froa November 23, 196V to Hoveaber 30, 196V. Unfortunately, the pressure of litigation in ay office has not allowed ae to coaplete the brief so that it could go to the printer within sufficient tine. I have communicated with all counsel in accordance with your instruction and have requested that they write directly to you confirming their agreement to this extension of tiaa. Thapk you very auch for your consideration. Very truly yours,
Barbara A. Morris BAM/SWEndv (V)

orncti BRESLIN AND BRESLIN


41 MAIN BTKCCT HACKINIACK. N. J.

Hooorabl* Ida 0. Crtnltoff Clark United Stata C*urt or Appaala 2046 o. S. OourtbouM 19107 at &l.j appvllaota, v. Voile, t &!., Me. 15043-15.044 ootint that th XntrvetUngD*fadantfl-K*o;xxxUQt, ttmwth Anoru*, t al. And Dborh Spruill, t 1. have an *xtnaion of tins until Jtovwbr 30, 1964 in whioh to file their crier ppQdix in tin abow atitlad aattcr. Your* vry truly, Jobn J. Brulia, Jr.
JJBiWH

BidnT dnaln, JUMB A. Mtjor, Barbara A. Morrti, Ba<j, AHMB T. Norpbgr, Morton starts,

COPY

KtfMJUAJOJ fMJM IHt l limlTl'lUMK <Jt Hit MftNUbCKJ-FT UiVXbltN, IdlKAKlr CF CCNGRE5S

James T. Murphy Attorney-at-Lav 6 South Depot Square

&glevood, Nev Jersey

November 20,

Mrs. Ida C. Creskoff, Clerk United States Court of Appeals for the third Circuit United States Courthouse Philadelphia, Pennsylvania Dear Mrs. Creskoff s
Re; Fullerf at al i1I have no objection to an extension of time for the filing of defendants Spruill and Ancru* et al., briefs fro* Hov ember 23, 196V to Hovenber 30, 196>.

Verr truly yours ,


James T. Murphy Attorney for PlaintiffsAppellants

UJ.V.L>.LL4N,

OPTIC* Of TH OJtRK

UNITED STATES COURT OF APPEALS


IDA O, CRESKOFP KW TM THIRD CIRCUIT 204a U. COUKTHOUU

PHIUDEU>HU I9W7

November 23, 1 6 94

Barbara A. Morris, Esq. 20 West 40th Street New York, N.Y-/ 1 0 3 0 1

Re:

Fuller, et al., v. Volk, et al. , No. 15043/4

Dear Sir: The Court has today approved the stipulation to extend time for filing appellees' (Ancrum, et al. , and Spruill, et al.) brief and appendix to November 30, 1 6 in the above entitled case. 94 Very truly yours. .IDA 0. CRESKOFF Clerk Janes T. Murphy, Hsq. Major 4 Major, Ssqs Sidney Dincin, Esq. Arthur J. Sills, Esq. Morton Stavis, Esq. Breslin & Breslin .Herbert Tata, Esq. .

'

kb cc:

a*

COLLECTIONS OF THE MANUSCRIPT DIVISION, TJBRAPY OF CCNGRJSS

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Docket No.

GERTRUDE P. FULLER, RICHARD L. GRUBMAN, THCKAS F. CACCIOLA and JOSEPHINE CACCIOLA, his wife, and others to be named",

Plaintiffs-Appellants, )
and JERRY YOLPE, et al.,

Intervening Plaintiffs-) Appellants,


vs.

AUSTIN A YOLK, et al., Defendants-Respondents ,


and

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


and

)
)

KENNETH ANCRUN, et al.,


and
DEBORAH SPRUILL, et al.,

)
)
) Intervening Defendants-} Respondents

This is to certify that on the 30th day of Hoveeber, 1961)-, I served a copy of the foregoing brief and appendix fcr defendants-appellees by first-class aail postage pre-paid upon : James I. Murphy, Esq. 6 South Depot Square Englevood, Nev Jersey Major & Kajor > Attns James A. Kajor, Esq. 2^1 Kain Street Hackensack, New Jersey

;Sidney Dincln, Esq. 16 West Palisade Avenue Snglewood, l.'ew Jersey sreslir. & Breslin ittn: Joha-J v Brsslln, Jr., EiMain Strett Hackensack, Nav Jersey
Esq.

Arthur J. Sills, Esq. Attm Howard Kestln, Esq. State House Annex Xrenton, New Jersey

Barbara A. Morris 20 West H-0 Street New York, New York 10015 Attorney for Intervening Defendants-Appellees

-2-

UUU^TIOC CF BE KWUEOUPT Dms

Kovesber 30,

ania ^r t.rs. Creskoff:


fie:
J am sendin ng you under separate cover, to e o filed, 2O copies of the joint brief &M afjjeniix be or. behalf of intervening defendants-appel!eas , .-f.criia, et al., :nd Spruill, et :-.!. Bse f i v e c o r i t s cf tr.ebrif hav* ton served on each c p ^ o s j i g counxei in accor<laric* with R u l ( 3?. Our C t r t i f i c * t<; cf Service in -thjs rig'ard is artt-acheci hrto.

rt--l>- yours,

-' i. orris
end. (1)

OFFICE OF THE Cl-ERK

UNITED STATES COURT OF APPEALS


IDA O. CRESKOFF
CLKMC

FO TK THIRD CmCUtT

2O4 U. 8. COURTHOUSE PHILADELPHIA 19t07

W.

.J14i

December 1, 196s* Barbara A. Morris, Esq. Robert L. Carter, Esq. 2O West 40 Street New York, New York 10018 Re: Puller, et al., appellants, vs. Volk, et al., No. 15,Ot3-15,O^A Dear Miss Morris: Receipt is acknowledged from you on November 30, 1964 of 20 copies of joint brief and appendix for intervening defendants-appellees, Kenneth Ancrum, et al., and Deborah Spruill in the above entitled case. Very truly yours, IDA 0. CRESKOPP Clerk bw cc: Morton Stavis, Esq. Herbert H. Tate, Esq.

Xtrftrii taten (Brnol at


For the Third Circuit Docket No. 15043-44
GERTRUDE P. FULLER, RICHARD L. GRUBMAN, THOMAS f. CACOOLA JOSEPHINE CACdOLA. ha wife, *ad odKn lo be JERRY VOLPE, ET U-. n. AUSTIN A. VOLK, a u_ FREDERICK M. RAUBINGER, Cotanuaiooa ol EdaotioB at Eke Stue oi New JeneT, KENNETH ANCRUM. CT iL, DEBO&AH SP8.LTLL,

JOINT BRIEF AND APPENDIX FOR INTERVENING DEFENDANTSAPPELLEES KENNETH ANCRUM, ET AL., AND DEBORAH SPRUILL

MORTON STAVE, 744 Brod Street, Newark, New Jeney. Attorney for

ROBERT L CARTER. BARBARA A. MORRIS, 20 Wot 40 Sro, New Yori, New Yt 1001, HERBERT H- TATE, U6 Conn Street. Newark, New Jersey. Attanuyt far liutr>tjtiitt-D*?em4**U' Appdttel Zemiutk JOAN FRANHUN,

or CnatfL

REPRCCOOD FRCM THE COLLECTICNS OF THE W^USCRIPT DIVISICR,- I "ia?y T CCKGSESS

OFFICE OF THE CLERK

\D STATES COURT OF APPEALS

IDA O. CRESKOFF

FO THt THIRD ClUCUtT

2O46 U. S. COURTHOUSE PHILADELPHIA t9W7

Deceabtr 2S, 1964

Howard H. Kcstin, Esq. Deputy Attorney General Department of Law i Public Safety State House Annex Trenton, O8625, N. J. Fuller, et al., etc. and Volpe, etal., No. 15O4 appellants vs . Volke, etc. , Fuller, etal. appellants in ?15O-t3 Dear Sir: We acknowledge receipt rrcaa you today of thre-e copies ox a motion for leave -co file your brief on betjaif or Rabuinger (intervening defendant) out of tiae. Please send, us an additional copy of the action and four copies of a letter indicating a specific date to which yoc wish the extension. If all counsel will notify us in writing that they do not oppose the action we can listit as indicated on January 18, 1965 without hearing.

Very truly y

IDA O. CREiKOFF Clerk sw cc:

KGC^: i ; L. Carter, Esc, James A. Major, Esq. Barbara A. Morris, Esq.

REPROOJCED FROM THE CC3LLEOTICNS OF Til MANUSCRIPT DmsiOi, L2.EPAK? CF CCtCHEas

OFFICE OF THE CLERK

UNITED STATES COURT OF APPEALS


>0 THE THIRD CIRCUIT

IDA O. CRESKOFF

2O46 U. 5. COURTHOUSE PHILADELPHIA 19107

Deceaoer 28, 1964

Howard H. Kestin, Esq. Deputy Attorney General Department of Law i Public Safety State House Annex Trenton, O8625, N. J.

"5-

Fuller, et al., etc. and Volpe, etal., No. lSO4~a appellants v.s. Volke, etc., Fu 1 ler, e.tal. appellants in I5O43 Dear Sir: We acknowledge receipt froa you today of three copies of a action for leave to file your brief on behalf of Rabuinger (intervening defendant) out of tiae. Please send us an additional copy of the action and four copies of a letter indicating a specific date to which you wish the extension, If all counsel will notify us in writing that they do not oppose the action we can listit as indicated on January 18, 1965 without hearing.

Very truly yours,

sw cc:

IDA O. CRESKDFF Clerk Jaise s X . M: - p h y , Esq. Morton Stavis, Esq. John J. Bresiin, J r . , Esq. Arthur J. S i l l s , Esq. Sidney Dincin, Esq. R o b e r t L. C a r t e r , Esq. Jases A. Major, Esc. Barbara A. M o r r i s , Esq.

REPRCOUCEB FFCM THE COLLECTIONS OF THE MANUSCRIPT DIVISION, I.TRRftpy CF CCHSRESS

DEPARTMENT OF LAW AND ARTHUR J. *ILLI ATTOftNIV OtNCHAI.

PUBUC SAFETY

C i . ' 1 ' C N O* LAW STATE BCU* ANMCX


TBtNTOH C 0 2 5

December 29, 1964

Ida 0. Creskoff, Clerk United States Court of Appeals For the Third Circuit 2046 U. S. Courthouse Philadelphia, Pennsylvania 19107

Re:
Dear Madam:

Fuller, et al v. Volk, et al Docket Nos. 15043. 15044

Enclosed please find an additional copy of my motion for leave to file the brief of intervening defendant Raubinger in the above mentioned matter out of time in accordance with your request dated December 28, 1964. Please be advised that the specific date to which I wish the extension is January 18, 1965, the date for which the motion is listed. In sending notices of the aforementioned motion to all parties in this matter, I enclosed forass of consent along with stamped envelopes addressed to you. If these other parties do not object to the motion, they will presumably execute such forms and forward then to you. Thank you for your aid and cooperation. Very truly yours,

Howard H. Kestin Deputy Attorney General HHK:tl encl. cc: all attorneys