SCHOOL DESEGREGATION IN ENGLEWOOD, NJ

1963 JULY - DECEMBER

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

C-425 DffiCRAH SPTOILL, !, by Mr. . and Mr*. John T. 9pnalU, ** parent* and next friend*, PETITICKER,
V. THK BOARD CT BDOCATIOH CrraE COT EB5WOCO, BBUDBN COUNTT, RESPCKOSNT.

lECISICIl CF THE CCW03SICIJER c

parent, et al., PETITIONERS,

V.
BCARD CT EDUCATION CFTHE COT BMOIBWOCD, BEBQEN COUKTI, RE3PCWDEOT.

VOLPE, minors, , their parent*, et al.

PETTTIOKERS,

V. THE BCARD OF EDDCATION CF THE CITY OP EHQUSWOQD, BEBDEN COOOTI, RESPONDENT.

Wllllan K. Kunatler, Eaq. of the Kew lorlc Bar Robert Q. Platoff, Eaq. Arnold E. Brow, Eaq. Robert a. Platoff, Eaq. Oeorge B. Qelnan, Eaq. David 3. Qreenberg, Eaq. Robert L. Carter, Esq. ^ HeibertjH. Tate, Eaq. Barbara Morrisi", Esq. Maria Marcus, Eaq. Vllllaa V. Brealln, Esq. Abraham A. Lebacn,

yor Petitioner Sprulll For Petitioner* Anonan, et al. i

For Petitioners Volp*, et al. For Reepondent

Two of the petition! in tbia matter, the fixvt brought in behalf of their child by Mr. and Mr*. John T. Spnilll and the aeoond filed in the name of a group of children by their parent* and oaptioned Aporum, et !., charge the reapondent Board of Education vith the maintenance of racially aegregated pobllo schools and vith refusal to implement plans to eliminate pattern* of racial **gregation alleged to exist in the public aohoola. They seek an Order requiring reapondent to take inasdtate atepe to eliminate all aspects of racial aegregation in the Englevood public aohool system. The Ancrum petitioner* pray further that the Board of Education be directed to put into effect a particular proposal referred to aa the "central intermediate school11 plan described more fully herein* after. Reapondent deniea both charges. The third group of petitioners, Volpe, et al., In a Cross-Pet It Ion of Ippeal directed against the Bnglevood Board of Education, protest any Intentional deriation from the present composition of the elementary schools and seek to enjoin the establishment of the central Intermediate school sought by the Anorum petitioners. They pray for an Order restraining the Board of Education from violating the neighborhood achool principle or from unneceaaary expenditure* of public fund*. Respondent request* dismissal of all petition* on the ground* that the Board of Education la not discriminating against any children and that there la no basis In law or In fact for the petitions or the cross-petition. After the joining of this action, the Volpe petitioners filed a Petition to Interrene in the Spnilll matter. A motion to strike the Petition to Intervene, filed by counsel for Mrs. Spruill, was denied by the Commissioner and intervention vas granted. Subsequently, leave was also given to the Volpa party to intervene in the Ancrum matter. In addition to the Board of Education, the Ancrum petition alao named the Board of School Estimate and the Mayor and Common Sounull -of Englewood as respondents. A Motion made to dismiss the Board of School Estimate and the Mayor and Common Council from the complaint, on the ground that the Commissioner of Education iacksTwladlotion over these parties, was granted,Cleaving the . Englewood City Board of Education as the sole respondent. By consent of all parties, the separate Petitions of Appeal herein were consolidated and heard as one matter. Hearings vere held by the Assistant Corcmis- 2-

stoner of Education in charge of Controversies and Disputes on April 1, 2, 3, b, 5> 10, 15, 16, and 17 In the Bergen County Court House, Haekensack. The School District of the City of Englewood Is organized under the provtalma of Chapter 6 of Title 18 of the Revisad Statutes. Its Board of Education consists of 5 raentoers appointed by the Mayor, and Its funds for operation of the schools are s\fc ject to approval by the Board of School Estimate. There is one high school housing grades 10, ll, and 12 and one Junior high school attended by grades 7, 8, and 9. As all the children in these grades attend these schools without regard to where they reside in the school district, the Issues raised herein pertain only to the five elementary schools, to which pupils are assigned on the basis of residence in designated attendance areas. These schools, their enrollment and racial composition as pf September 19, 1962, were as follows i School Cleveland LUserty Lincoln Quarles Roosevelt No. of Pupils U77 % White
99.6 38.0 2.0 96.8 85.5

% Negro
.U 62.0 98.0 3.2

las
.

So5
nn

3U3 3U5

1U.5

While this complaint is directed to the school system generally, its focus is on the Lincoln School, whose enrollment is comprised almost exclusively of Negro children. The Lincoln School was also the center of an earlier controversy involving racial issues. In 195U, a complaint was brought before the Commissioner of Education under the Law Against Discrimination, R.S. I8t25-l, et seq., claiming that the Board of Education had drawn its attendance area boundaries so as to unlawfully discriminate against certain Negro pupils. Walker and Anderson v. En^lewppd Board of Education, decided Hay-19, 1955. InJMay, 1955, the Commissioner directed the Board to redraw the boundary lines affecting the Lincoln and Liberty Schools and also ordered the elimination of a second junior high school housed in the Lincoln School. The Board complied with the Commissioner's directive and its action was approved by him. On April 10, 1961, respondent directed its Superintendent of Schools to make a study of school enrollment problems and future needs. Two months later the

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Board auppleosented this directive by instructing the Superintendent to Include in hi* survey the question of the racial composition of the elementary schools. The study was completed in February, 1962, and reported to the Board by the Superintendent in a publication entitled "Englewood, its People and its Schools," since conaonly referred to as the "Stearns Report.*1 Before the Steams Report vas completed, an action vaa initiated in the United States District Court In Newark, Mew Jersey, on behalf of Ellen Shepard and others, naming the Englewood Board' of Education, its Superintendent of Schools and the Ccunlasloner of Education as defendants and raising issues similar to those herein. Judge Augelll dismissed the suit, sayings "Until suoh tine as plaintiffs have exhausted the state administrative remedies provided by N.J.S.A. 18:3-11; and 15, this Court.should not entertain the action." Shepard, et al..v. Board of Education of City of EngWood, et al., feo? Y. Supp. 3U1. Plaintiffs above have not brought the matter before the C crania* loner, of Education as of this date. following receipt of the Stearns Report, two plans aimed at relieving the concentration of Negro pupils in any of the elementary schools were proposed by the Board of Education. The first, announced in May, 1962, provided for enrollment on. a voluntary basis in a "demonstration school" to be housed in the former Engle Street Junior High School building now used for administrative offices. This ..

idea was abandoned when a poll of parents failed to produce a sufficient nunfaer of potential pupils to be enrolled. The second plan, announced in July, 1962, pro- >- posed rehabilitation of the former junior high school" building at 1 Engle Street 1 and the establishment there of a "central intermediate school." All 5th grade pupils, irrespective of residence, would have attended this building during the ; ; 1962-63 school year and all 5th and 6th grade pupils in subsequent years.The Board of Education then made a request for an appropriation of $35,000 to the Board of School Estimate, to be used with available surplus funds to accomplish the rehabilitation needed ~to_put,thecentral intermediate school plan into operation. This req\st was not approved by the Board of School Estimate, and the proposal to establish a central intermediate school was^not carried out. There followed then the filing of the petitions of appeal herein.

Shortly after the filing of these appeals, six neuters of the staff of . the State Department of Education conducted a survey of the Englewood Public Schools and presented their findings to the Commissioner of Education on Oetcber $, 1962, la a report entitled "A Study of Baoial Distribution In the Englewood, New Jersey, Public Schools," referred to hereinafter as the "Fact^Flndlng Report." The Mew Jersey law applicable to the Issues raised herein is found In the New Jersey State Constitution, Article I, section 5s "No person shall be denied the enjoyment of any civil or military right, nor be discriminated against In the ;; exercise of any civil or military right, nor be segre-' gated In the militia or In the public schools, became of religious principles, race, color, ancestry or national - origin." and in R.S\: "Each school district shall provide suitable school facilities and accommodations for all children who '.-,'. reside in the district and desire to attend the public schools therein. Such facilities and accojmr modationa shall include proper school buildings, together with furniture and equipment, convenience of access thereto, and courses of study suited to the ages and attainments of all pupils between the ages of five and twenty years. * * *" These appeals require the Commissioner to determine the following questions! 1. Is the Englewood Board of Education maintaining a racially segregated school system by deliberate action and Intent? ~~2~.Does~the fact that the enrollment in Lincoln School is comprised almost^exclusively of Negro pupils, whether by design or not, require- the Board of Education to take affirmative action to improve the racial balance in the school? The answer to the first question must be in the negative. While petitionera in their pleadings and in some of the testimony imply that respondent may have been guilty of intentional racial segregation, they do not press _the issue nor has evidence of any kind been produced 'to establish such a charge. Petitioner, Sprulll^
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in fact, very plainly states in her brief tha't, "No accusation that respondent was or is guilty of de jure segregation .has been made" and that she "is concerned only with de'facto segrepaticn.'! All witnesses_whg were questioned on this issue were emphatic in their denial of any action aimed at deliberate segregation by race in the schools. The Commiaaicner finds no evidence to support a charpe of intentional racial segregation by respondent.

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Thia leads to the second question and the fact that the population of the Lincoln School la almost entirely Negro. That thif concentration of pupils of one rmoe results from pattern* of housing and the operation of other soaloeconomlo foroea La apparent. The Comiaalcner agreea with reapondent when it says la It* brief, "However lamentable the housing and other non-eehool problena say be, It 1* not the reaponaiblllty of the Board, nor doaa it have any control liver theee housing and non-school problems." The Comnlaaioner has previously atated that In hia opinion the ultimate solution to thia problem lies in the free oholoe of residence and the elimination of segregated housing. Fiaher v. Orange City Board of Education, decided May 15, 1963. Reapondent maintains that the educational opportunities afforded Englewood children are equal regardless of school attended. It arguea that former Superintendent Harry Stearns ao teat If lad and points alao to a statement to that effect in the Tact-Finding Report. The Commissioner flnda no reason to dispute thia claim in terras of meaaurable objective criteria such as similarity of instructional materials, class size, teacher preparation and assignment, facilities and equipment, expenditure per pupil, etc. he Is of the opinion that * * * in the minds of Negro pupils and parents a stigma la attached to attending a school -whose ----- enrollment la completely or almost exclusively Negro, and that this sense of stigma and resulting feeling of inferiority have an undeairable effect upon attitudes related to successful learning. .RAanjcniiy JCnan this .tsremlae and recognizing the right of every child to equal educational opportunity, the Commissioner is convinced that in developing its pupil assignment policies and in " planning for new school buildings, a board of education must take into account the continued existence or potential creation of a school populated entirely, or nearly so, by Negro pupila." But aa he haa already said In Fisher v. Oranget supra,

The Commissioner holds, therefore, that compulsory attendance at an all Negro school, such as the Lincoln School, at least where appropriate means can be found to avoid it, constitutes a denial of educational opportunity under New Jeraey law which the school district Is required to correct. _.:_

There remains the question of appropriate means for reducing the racial homogeneity in the Lincoln School. The evidence In this case discloses that a nuirber of plans have been proposed to and considered by the Board. That there are _ 6 -

still other plane which oan be devised, effectively dealing vith the problsa, the ConBlaaloner has no doubt. The formulation ot the moot suitable plan, however, Is fraction ot the respondent Board of Education and the Conmisaiaoer reserve* to it the right to prescribe the precise formula vhioh will provide the beet answer to thU complex problem* Aa be aaid In the oaae of Booker v. Plainfield Board of EdBBation. decided June 26, 1963s "The Con&iaaioner believes that it la the responsibility and the prerogative of the Board of Education to determine vhioh of the propoaalfl is beat suited to the needa of the school ayatem which it la called upcn to operate.* It ia toward the adoption of a plan that would alter preaent pupil aisignnent policies that the main thrust of the Volpe petitions la directed. These petitioners argue that the "neighborhood school policy" ia the law of New Jersey and any change in that policy on the basis of racial consideration* ia Illegal. They contend that the Ccoralssloner haa no authority to set aaide the "neighborhood school policy" but. ia required to uphold it and prevent Its abuse. Thia group opposes the central intermediate school advocated by the Ancrum petitioners or any other plan that assigns pupils to a school other than the one nearest their place of residence. It ia well established that the assignment of pupils to the schools they ne to attend ia within the authority of the local board of education. Piarce T 1teion~DlBtrict' SohooTTruateea ^ U6 N.J.L. 76 CSUp. Ct, 188U) j Edwards-V. Atlantic City Board of Education, 1938 S.L.D, 683 (1923); Clauaner, at al. v. Board of Education of Millburn. 1938 S.L.D. 6h5 (1936). The assignment of pupils in tern of proximity of hone and school is the moat commonly employed method of establishing attendance areas not only in New Jersey but in the United States generally. Traditionally, school districts have erected schools in areas of moat concentrated population with the purpose of locating school buildings as close as possible to the hones of the children to be served. The logic and .the inherent educational values of such a program are indisputable. The Commissioner has alao made his -

position clear on this 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 1* attended by educatlcnal values that ark vide ly accepted, not only by educators, but by the pvtollc generally. Consideration of
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Bach factors as distance to be traveled, safety, economy of tiae, establishment of rapport between school and hone, and knowledge by the school staff of the child's environment have operated to establish oonbveoienee of access as the controlling criterion of pupil assignment, and the Importance of these values cannot 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 valuea. The CconlM loner believes that a plan for the reduction of the racial concentration at the Lincoln School can be f emulated which will not do violence to reasonable attendance areas. Whatever plan is adopted must, of course, meet the testa of reasonableness, of practicability, and of consistency with sound educational practice. From his study of the evidence In this case, the 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 beat suited to reduce the present concentration of Negro pupils In the Lincoln School which will at the same time maintain longrecognized valuea. It ia entirely possible that there may be of necessity both a shortrange and a long-range solution to this problem. The Commissioner Li aware that any long-range solution will possible require expenditures for capital construction, which cannot be accomplished by September, 1963. Although the controversy whioh the Commissioner Is asked to decide in this and similar oases is centered around the question of civil rights, it must be remembered that so far as the schools are concerned their fundamental purpose ia the proper conduct of the educational process. Controversy must be resolved so that teachers and.school leaders may go ahead with the task of Improving educational "opportunities for all pupils. Discussions which the Ccraniasloner has had with teachers, principals, and superintendents throughout the State convince him that these persona to whom education Is entrusted cannot perform their duties effectively when their work is carried on In a climate of continuous tension and controversy. It is for this reason as well as the others stated that the Commis sloner concludes that the current and long-standing dispute involving the Lincoln School must be resolved without delay. Continuation will damage the pupils of not only that school but all others in the community. Hence, the entire community has a stake in a solution which will make it possible for the school staff to devote its
!.

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undivided attention and effort to planning for better educational opportunities for all pupils. The Conmisa loner finds and determines 1. that there ia no evidence in this case of any deliberate intent by the Englewood Board of Education to segregate Its pupils by raoe in the public schools)
.. . 2. that the pupil assignment policies currently in force in the Englevood

School District result in an extreme concentration of pupils of the Negro raoe in the Lincoln School) 3. that attendance at the almost exclusively Negro Lincoln School engenders feelings and attitudes In pupils which tend to Interfere with learning) U. that, where means exist to prevent it, such a concentration of Negro pupils as exists in the Lincoln School constitutes a deprivation of educational opportunity under New Jersey law for the pupils compelled to attend the school) 5. that reasonable and practicable means consistent with accepted educational and administrative practice can be devised to.reduce the present racial concentration in the Lincoln School. Having reached these conclusions, the Commissioner sees no need to determine other issues raised and argued in this matter. The Commissioner of Education directs the Englewood Board of Education ~ 1. to formulate a plan or plans to reduce the-extreme concentration of pupils of the Negro race in the Lincoln School consistent with the principles and findings enunciated in this decision; 2. to submit such plan or plans to the Commissioner of Education for approval on or before August 1, 19635 3. to put a plan, as approved, into effect; at the beginning of the 1963-61; school year. The Commissioner reserves the right to make such further order or orders in this matter as shall be necessary to effectuate a suitable pupil assignment plan, approved by him, for the 1963-6U school year.

COMMISSIONER OF EDUCATION

JULY. 1, 1963
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v
STATE BOARD OF^UCATION OF NEW JERSEY -M<aurin-v.-Board-of-Eegentsr339-TJrSr637 Mffler v. Schoene, 276 U. S. 272, 279 Mitchell v. Board of Education of Union Free School District No. 12 of the Town of Hempstead, decided Jane 17, 1963 by'the Commissioner of Education, State of New York Eeterson v. City of 0reenville,-373 tT.-Sr244^...... Shelley v. Kraemer, 334 U._S._1 '. Steele v. Louisville and Nashville E. E. Co., 323 TJ. S. 192 Strauder v. Virginia, 100 U. S. 303 Sweatt v. Painter, 339 U. S. 629 Taylor v. Board' of Education, 191F. Snpp. 181 (S. D. N.Y. 1961) aff'd 294 F. 2d 36 (2nd Cir. 1961) .... Watson v. City of Memphis, 373 U. S. 526 Statutes and Other Authorities New-Jersey-GonstitutibnrArticle-ljJSection;5~rrr:rr' 12 BRIEF OF APPELLEES ANCRUM, et al. Preliminary Statement Throughout appellants' brief, the word "Negro" is spelled with a lower case "n". The term "Negro" denomi- 30 nates a race of persons and is a proper noun. Accordingly, it is not spelled with a lower case "n", but with a capital "N". It is spelled with the lower case letter in racially prejudiced parts of the country and with such spelling is extremely offensive and constitutes a slur to Negroes:
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DEBORAH SPRUILL, a minor, by Mr. and Mrs. John T. SpruiH, her parents and next friends, Petitioners-Appellees,

THE BOARD OF EDUCATION OF THE CFTY , OF ENGLEWOOD, BERGEN COUNTY,

12

Respondent.-

nor
On Appeal from me decision of the immissioner of. Education

5
5 5 5

KENNETH ANCRUM and LESLIE ANCRUM, minors by Mortimer W. Ancrum, their parent, et al., Petitioners-Appellees,

THE BOARD OF EDUCATION OF THE CITY/I OF ENGLEWOOD, BERGEN COUNTY,

Respondent. LAURA, ROBERT and JAY VOLPE. minors, by Mr. and Mrs. Jerry Volpe, their parents, et al., Petitioners-Appellants, vs.

1 1 12

20

THE BOARD OF EDUCATION OF THE CITY OF ENGLEWOOD, BERGEN COUNTY,

Respondent.

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Statement of the Case Appellees Ancrum, et al., filed a Petition of Appeal with the Commissioner of Education charging the respondent, JSnglewood_6chool board with tne-operation~of~~a~~8chpQl system whereiff Negro students are segregated intention_aUy_or adventitiously, and asked,-by-way of relief, entry 1" of an order requiring respondent to take immediate steps to eliminate racial segregation in that system and to put into effect the "Central Intermediate School" plan scribed in the "Stearns Report" (admitted into evidence in the course of the hearing). Appellee Spruill filed a similar Petition of Appeal except for the charge of intentional segregation and without a prayer for adoption of a specific remedy. Appellants filed a Cross-Petition of Appeal protesting 20 any deviation from the existing racial composition of the aglewood-elementary-schools^and"praying~thlit~respondent be prevented from implementing the "Central intermediate School." Appellants then moved to and were granted the right to intervene in the Spruill and Ancrum cases. The Board of School Estimate and Mayor and Common Council of Englewood, original parties in the Ancrum appeal, were dismissed upon their motions. OQ These cases were consolidated and came on for hearing before the Assistant Commissioner of Education on April 1 through 5, 10, and 15 through 17th, 1963. The Englewood elementary school system consists of five schools, two of which (Lincoln and Liberty) are predominately Negro being 62% and 98% respectively. Both the report of former Superintendent Stearns entitled "Englewood, its People and its Schools" (referred to as the "Stearns Eeport"), and the report authorized by the Commissioner of Education (of which judicial notice was 40

taken) substantiated the adverse effects of preinominately Negro schools on the education of Negro students. Additionally, both the former superintendent and the present superintendents of schools testified to the ill effects of ~the redominatelyrKegrolschoolluEpn, the: :educa:tioB~of 7~TT~ its Negro students. On Jury 1, 1963, the Commissioner of Education filed 10 his opinion in which he determined that the Negro student in the racially unbalanced school is denied equal educational opportunities, a situation the local board must remedy, when possible. That opinion recognized the existence of means to eliminate racial imbalance in the Englewood school systejn and required the submission and effectuation of a plan to reduce the racial concentration in the Lincoln Schol. With reference to appellants' contentions, the Commissioner recognized that the assignment of pupils to nearby 20 schools was not an inflexible educational concept and that reduction of racial concentrations of Negro students was a positive legal and educational obligation which could be achieved in the Englewood school system. In accordance with the Opinion of the Commissioner, a plan was submitted by respondent Board. On July 26, 1963, appellants served their Notice of . Appeal to the State Board of Education. Additionally appellants commenced proceedings in the Superior Court 30 of New Jersey purposed to defeat the order of the Commissioner of Education. Belief was denied and appellants' counsel stated that an appeal from that denial would be prosecuted.
-iippeOl LU 1-1JC KJll.lt -~

The lawbooks are filled with the record of the Negro's attempt to secure those emoluments of democracy already Compulory Adventitious Segregation in Public Schools guaranteed to him by the United States Constitution. No Effects a Denial of the Equal Educational Opportunities other racial or religious group has been required to pursue Required by the State and Federal Constitutions a long and litigious route in order to exercise basic rights willingly granted to immigrants upon debarkation. Sweatt Brown v. Board of Education, 347 TJ. S. 483, removed v. "Painter, 339 U.J3. 629 (entry to-professional schools) ;~~r 7 i-the-arena of litigable questions-the-constitutionality McLavrin v. Board of Regents', 339' U. S. 637 (entry to 10 jrf^ raaaUy segregate!! education. ^Consideration of -thegraduate schools); SHettey v. Kraemer, 334 U. S. 1 (state issnes before thin Board must begin with a recognition of enforcement of restrictive covenants proscribed); Gomillion the inherent inadequacy of the education of Negro children v. LigJitfoot, 364 U. S. 339 (racial geographical redistrictseparated by race. Whether that separation is effected ing); Steele v. Louisville & Nashville B.R. Co., 323 U. S. by legislation or by administrative means, the result is the 192 (discrimination by statutory collective bargaining same and the inherent fundamental inadequacy demands a agent) ; Strauder v. Virginia, 10J5 U. S. 303 (discrimination in jury selection); Gayle v. Broader, 352 U. S. 903 (use of facilities in intrastate,Commerce); Henderson v. United Consistent with the opinion below of the Commissioner, States, 339 U. S. 816' (use of facilities in interstate comthe Supreme Court found that the Negro child in the merce) ; Boynton v. Virginia, 364 U. S. 454 (bus terminals 20 "Negro school" is set apart and suffers from a sense of in interstate commerce); Burton v. Wilmington Parking inferiority which retards the educational process, provision .... Authority,_365JJ. S. 715 (restaurants in public buildings); of which is the responsibility of JJie_local_8chool-board Johnson v. Virginia, 373 U. S. 61 (seating in courtrooms). Krealistic review of the history of our country and of its The harmful effects of de facto segregation of Negro racial composition establishes beyond argument that thestudents cannot be diluted to the "deleterious effect on 1 Negro, who composes the largest minority group in the * * * students" because of the "presence of too many United States, has been the victim of indignities and of [N]egroes" (Appellants'Brief, p. 8). It is for this reason racial discrimination and segregation since and before his that the Supreme Court of the United States recognized that constitutional rights were recognized. The generations of denial neaped -upon him is not comparable to the experi- \s of any other ethnic segregated education is unequal education and is congroup. Unlike Caucasions of stitutionally impermissible. 30 European ancestry, the Negro did not voluntarily emigrate Education is compulsory in the State of New Jersey to the United States. Similarly, he is readily discernible. and the assignment of students to particular schools is by his color and cannot lose his racial identity in the mass effected through the rules, regulations and policies of the of the populace as can other ethnic groups. Discriminalocal school board, an agency of the state. A predomition against and segregation of the Negro, which transmits nantly or all-Negro school which is an inherently unequal institution, results from the administrative program of ' a sense of inferiority, cannot be rationally analogized to the school board. It is therefore incumbent upon that board experiences of any white ethnic group, including those of Italian ancestry in Lodi, New Jersey. to supply a remedy for that inequality. Appellants' arguments wherein great energy is devoted to undermining remedies they have erected, are not convincing. Pupil as- *

ARGUMENT

a i

signment is a normal function of a school board. Execution of a remedial program whereby school assignments of pupils are shifted neither harms the child affected nor violates his constitutional rights. The Brown case pointed out that segregation has a "detrimental effect upon the colored children," and that thejieprivation of equal rights is inflictedlupon rthe^TcEJldren of the-minority-group." ThusLitjs the assimilationjntp each_ studentJaody of the Negro child that must be effected. To argue that such assimilation, required to remove existing constitutional infirmities, is in itself illegal because racially motivated^ is sophistic. It is the inequality imposed upon the^Segrb student that is constitutionally reprehensible. Appellants' contention was rejected in Jeffers v. Whitley, 309 F. 2d 621 (4th Cir. 1962), by the court which recognized that a Negro student discriminated against in a school system does not disqualify himself from all relief by com20 plaining of discrimination and by requesting its eradication through administrative means which must, of necessity, jtake_race_into_eonsideration-in-order-to-eliminate-the-ex isting evils and to accord him his rights. Appellants' brief cites numerous irrelevancies including an opinion on the recitation of the Lord's Prayer and bible reading in the public schools and a conclusion that a decrease of non-whites inevitably flows from an increase in Negroes. We conclude that it reflects the social philosophy of appellants and their counsel, an unfortunate 30 factor not material to the issues before this Board. Whether a feasible method of reducing racial imbalance exists in Manhattan or Washington, D. C. schools need not concern us. The possibility of an irremediable situation does not mitigate against the existence of a constitutional right, and that right can be granted in Englewood, New Jersey, by a variety of methods, some of which have been presented in the course of the hearing below.
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The responsibility of a local board to reduce racial imbalance is supported by Branche v. The Board of Education of Hempstead, 204 F. Snpp. 150 (E. D. N. T. 1962). The court, in dismissing the Board's motion for summary judgment based upon their contention that the racial composition of schools resulted _frpm neighborhood patterns, rather than the design,-pattern-of conduct or contrivance of the Board, forcefully met the fundamental issue of 10 segregated education and stated: 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. Segregated education is-in-adequate and when that inadequacy is attributable to state action it is a deprivation of constitutional right. r "/' ' The central' constitutional fact is the inadequacy 20 of segregated education. That it is not ^coerced by direct action^ jm jmgjgf the state cannot, alone, be decisive of-the issue of^eprivatiotf~orcbustittf tional rights. , - . . - ' ,
* * * ' -si'

The eduoatiSnal system that is thus/"compulsory and publicly afforded must deal with the' inadequacy arising from adventitious segregation; it cannot ac* V" cept and indurate segregation on the ground that it is not coerced or planned but accepted. r ^ .

r r '

'' '30

So here, it is nq^-enough to show that residence accounts for the fact of segregation-and to contend that therefore the segregation is ineluctable. The effort ., to mitigate the consequent educational inadequacy has not been made and to forego that effort to deal. _ with the inadequacy is to impose it in the absence of a conclusive demonstration that no circumstantially possible effort can effect any significant mitigation. What is involved here is not convenience but constitutional interests.
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In Jackson v. Pasadena City School District, Gal. , P2drdecided-Jnne-27r-1963;-the"Snprenie*Conrt of California provided further support in the following language: Although it is alleged that the board was guilty of intentional discriminatory action, it should be pointed ont that even in the absence of gerrymandering or other affirmative diserinunjitoryj!piiductJby_a ~7 Brchqgl~bpjirdr7arSt53ent^tinder some circumstances would be entitied_to_relief_where, by-reason or residential segregation, substantial racial imbalance exists in his school. So long as large numbers of Negroes live in segregated areas, school authorities will be confronted with difficult problems in provid^r^ ing Negro children with the kind of education ^hey are entitled to have. Residential segregation is in itself an evil which tends to frustrate the youth in the area and to cause antisocial attitudes and behavior. Where such segregation exists it is not enough for a school board to refrain from affirmative discriminatory conduct. The harmful influence on the children will be reflected and intensified in the classroom if school attendance is determined on a geographic basis without corrective_measiiresThe rigEtTJTan equal opportunity for education and the harmful consequences of segregation require that school boards take steps, insofar as reasonably feasible, to alleviate racial imbalance in schools regardless of its cause. Our State Board of Education has adopted regulations which encourage transfers to avoid and eliminate racial segregation . . . and transfers for that purpose are provided for in New York City and elsewhere . . . School authorities, of course, are not required to attain an exact apportionment of Negroes among the schools, and consideration must be given to the various factors in each case, including the practical necessities of governmental operation. For example, consideration should be given, on the one hand, to the degree of racial imbalance in the particular school and the extent to which it affects the opportunity for education and, on the other hand, to such matters as the difficulty and effectiveness of revising school boundaries _s: 80_a8_to-elimiaate-segregation-and-the availability"6t~ other facilities to which students can be transferred. In Mitchell v. Board of Education of Union Free School District No. 12 of the Town of Hempstead, decided June 17, 1963, James E. Allen, Jr., Commissioner of Education of the State of New York, in upholding the claim of Negro 6tndents_that_racial-imbalauce-m -the school- systenarwas107" per se-adenial"of equal"edncati6ual^>pip6fSmities, slated: Having concluded that racial imbalance exists in the Wbodfield Eoad School, the question before me is whether, under the circumstances present in the district, such imbalance constitutes a deprivation of equality of educational opportunity envisioned under the Education Law of New York State for the pupils compelled to attend that school. Tfind that it doesr 'While the Board's special efforts to improve the quality of teaching in this school are desirable, they do not overcome the disadvantages attached to racial 20 imbalance. * For many years the Regents and the State EducationJJepartment.have-fostered-and-encouraged-bettB! r understanding and practice in matters affecting the educational opportunities of minority groups. In January 1960, the Regents adopted a statement of policy on 'Intercultural Relations in Education' which reads as follows: 'The State of New York has long held the principle that equal educational opportunity for all children, without regard to differences in 30 economic, national, religions or racial background, is a manifestation of the vitality of our American democratic society and is essential to its continuation. This fundamental educational principle has long since .been written into Education Law and policy . . . Subsequent events have repeatedly given it moral reaffirmation. Nevertheless, all citizens have the responsibility to re-examine the schools within their local systems in order to determine whether they conform to this standard so clearly seen to be the right of every child.'

~ 10

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V 10 The Regents' statement goes on to point out that modern psychological and sociological knowledge seems to indicate that in schools in which the enrollment is largely from a minority group of homogeneous, ethnic origin, the personality of these minority group children may.be damaged. There is a decrease,jn motivation and thus-an-impairuit;ut -of- ability- to learn. Public education jn such a situation-is socially-unrealistic,- blocking the attainment of the goals of democratic education, and wasteful of manpower and talent, whether the situation occurs by Jaw or by fact. ' In addition, (he Commissioner sent a directive to all school [districts in the State of New York requiring them to report iio him by September 1, 1963, whether racial imbalance ; eiisted in their district and what steps they had taken or planned to take to alleviate this condition. I Goss v. Board of Education of EnoxviUe, Tenn., 373 BJ, S. 683, struck down a transfer program whereby white Brapils were allowed to transfer out of a school in which ^ey~dia~fiorcbnstitnte a racial majority. The Supreme Bourt sought to eliminate segregated Negro schools still listing in Tennessee eight years after the Brown decision. Blearly refuting appellants' representation on page 5 of their brief that "The classification [of students by defendBut school boards] was not that engineered by a segregaKon-mmded group," is the Supreme Court's initial statei lent in its discussion: , proposed lends itself to the perpetuation of segregation.
The ratio decidendi is stated:

1 1 quence may stand under the Fourteenth Amendment. Bell v. School City of Gary, 213 F. Supp. 819 (N. D. Ind. 1963), currently on appeal before the United States Court of Appeals for the Seventh Circuit (CW No 14152) -is,._we -Submit, -in -error, -as have-"been so-many- lower "court decisions in the area of school segregation. Gary, Indiana 10 has had separate schools for Negro and white children since the beginning of its system. The composition of those schools are as racially identifiable now as before the repeal of the constitutional provision authorizing segregation oJ Negro school children. States, long accustomed to segregation in public schools, often do not readily adhere" to constitutional requirements but seek to avoid them by a variety of rationalizations. By resting its decision in the Bell ease upon the desirability of the "neighborhood plan," the court employed the same rationalization urged here 20 by appellants 'as requiring maintenance of the status quo. requires pupil attendance of the nearest school. The cry to save "neighborhood schools" is but the more sophiscated northern endeavor to preserve white schools, uncontaminated by an influx of Negro students. The record below established that the "neighborhood plan" is a fluid concept dependent on a number of variables including . safety factors, distance, topographical features and school I capacity. Thus, in Englewood, many students attending I the "neighborhood" Eoosevelt or Quarles Schools live | closer to the Lincoln School. As the court observed in Taylor v. Board of Education, 191 F. Snpp. 181 (S. D. N. Y. 1961), aff'd 294 F2d 36 (2nd Cir. 1961), " . . . the neighborhood policy is not "sacrosanct." The opinion below of the Commissioner is in accord with this finding. Assignment to the nearest school is but one practice adopted in an attempt to provide efficient
40

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1 a

ft'

3E MANUSCRIPT DIVISB

We hold that the transfer plans promote discrimination and are therefore invalid. The court concluded: Bnt no official transfer plan or provision of which racial segregation is the inevitable conse-

V 12 -education:Asoriginally conceived, -6 "neighborhood school" was to gather children from varying social and ethnic backgrounds in a given area and channel them into the same school, Thns, was it consistent with the democratic ideals of -this country. Unfortunately, as now utilized, it is a means for separation rather than assimilation of groups and when the state partieipates_JBjthat ". separatioifwhereby-Negroes are set apart and segregated, ~ Unconstitutional proscription appliesr Goss v. Board of Education of Knoxvitte, Tenn., supra (public school transfers) ; Watson v. City of Memphis, 373 U. S. 526 (public parks and playgrounds); Peterson v. City of Greenville, 373-^ TJ. S.' 244 (trespass convictions where local segregation laws or policies preempt private choice). Adequate or efficient education of the Negro child is not possible as long as that child is beset with the- stigma 2Q attached to the "Negro school" and the feeling of inferiority flowing therefrom. Provision of equal educational opportunities for that child is paramount and constitutionally requisite; it Cannot be devaluated to maintain appellants"' eoneeptlTf a "neighborhood school." Article I, Section 5, of the New Jersey Constitution prohibits discrimination based upon race. That racial separation constitutes discrimination is no longer open to doubt. Cooper v. Aaron, 358 U. S. 1. The deficiency condemned by the Supreme Court in the Brown case per30 sists in segregated schools whether that segregation is affirmatively enforced or passively accepted by public officials. Compulsory educational systems imply state action and segregated education resultant from state action is constitutionally proscribed. The school board is required to provide equal facilities for public education. As a concomitant, it must remedy the constitutional defects in the educational system it provides. Failure to deal with a condition as readily inflicts it as does the grosser imposition of it. Cf. Miller v. Sclioene, 276 U. S. 272, 279. 40

13
"CONCLUSION" For the reasons set forth herein, it is respectfully i urged that the State Board of Education affirm the | opinion of the Commissioner of Education of July 1, I 1963. - j ^Respectfully submitted. -10 ARNOLD B. BROWN, 55 West Palisade Avenue, Englewood, New Jersey.
ROBERT G.

127 Belmont Street, Englewood, New Jersey. HEBBEBT H. TATB, 126 Court Street, Newark 2, New Jersey. EOBBBT L. CASTER. _ . MAMA L. MABCTJS, BARBARA A. MORBIS, 20 West 40th Street, New York 18, New York. Attorneys for Appellees.
30

20

40

J-iiLj

m 1 u ,._ i

ENGLEWOODEN. J.

BUDGET

JULY 1,1963 to JUNE 30,1964

\D OF

EDUCATION

BOARD OF EDUCATION OF THE CITY OF ENGLEUIDOD, NEW JERSEY Notice is hereby given that a public hearing on the tentatively approved budget of tha Board of Education for the school year 1963-1964 will be held by the Board of School Estimate in Engleuiood Academic Hell on Monday, February 1 1 , 1963, at 8:00 p. m., Eastern Standard Time. The said budget, as set forth below, will be on file for examination by the public between the hours of 9 a.m. and 12 Noon, and between 1 p.m. and 4 p.m. on school days at ths Board of Education office, 11 Engle Street, Engleuiood, from the date of this publication through February 11, 1963. BUDGET STATEMENT School Year 1963 - 1964

Actual 1961-1962 Average Daily Enrollment: Resident Tuition Students Received Total

Estimated 1962-1963

Estimated 1963-1964

3,780 15. 3,795

*, :

SOURCES OF REVENUE Anticipated Revenue 19.62-1963 CURRENT EXPENSE Appropriation Balance Balance Appropriated Local Tax Levy State Aid Federal Aid Tuition Miscellaneous Revenue TOTAL CURRENT EXPENSE CAPITAL OUTLAY Appropriation Balance Balance Appropriated Local Tax Levy Federal Aid TOTAL CAPITAL OUTLAY 8 6,690.18 8 3,700.00 288.59 8 10,678.77 8 -013,100.00 4.500.00 17,600.00 8 $ 221,236,76 1,903,889.00 212,356.00 6,862.51 38,200.00 31,556.19 32,314,900.46 S 11,000.00 2,205,050.00 219,866.00 4500 ,0.0 31,000.00 10.500.00 J2,481,916.00

Anticipated Revenue 1963-1964

8 50,000.00 2,261,673.00 221,967.00 10,500.00 34,500.00 13,000.00 82,591,640.00

-018,150.00 7.800.00 25,950.00

TOTAL REVENUES

82,424,579.23

82,499^516.00

82,617,590.00

* Reflects Actual Appropriation Balance July 1, 1961 after adjustment for tuition in the amount of 8352 determined to be uncollectible. "Reflects Actual Appropriation Balance July 1, 1961.

Board of Education, 1963-196A Budget S.tatament APPROPRIATIONS Expenditures 1961-1962 S 77,186.52 14,475.16 15,830.40

-2-

CURRENT EXPENSE Administration: Salaries . Contracted Services All Other Expanses Instruction: Salaries Textbooks . Library & Audio Visual Mat. Teaching Supplies All Other Expenses

Appropriations Appropriation's 1962-1963 1963-1964 t 81,010.00 S 8,000.00 5,900.00

84,366.00 12,100.00 7,000.00

1 ,612,512.54 31.B93..49 23,520.74 65,054.33 16,136.71

1,741,000.00 23,000.00 16,500.00 32,000.00 11,500.00

1,876,133.00 21,000.00 16,300.00 28,050.00 2,0.0 3000

Attendance and Health Services i Salaries - Attendance 6,150.00 All Other Expenses - Attendance 250.00 Salaries - Health 20,500.00 All Other Expenses - Health 1,755.53 Transportat ion i Contracted Services and Public Carriers Operation: Salaries Contracted Services Heat Utilities Supplies All Other Expenses Maintenance! Salaries Contracted Services " Replacement of Equipment All Other Expenses Fixed Charges: Employee Retirement Contributions Insurance Rental of Land

6, 300. 00 .250.0028,250.00 4;70D.OO

6,600.00 250.00 31,672.00 3,200.00

22,683.25

23,100.00

^ 30,050.00

128,747.97 760 2.0 27,451.50 44,701.92 5,874.58 1,158.21

132,350.00 1600 ,0.0 33,000.00 41,350.00 8,600.00 1,100.00

120,650.00 1000 ,0.0 27,000.00 45,650.00 9,100.00 1,100.00

72,693.76 11,176.99 34,724.45 23,798.61 64,400.00 20,400.00 29,250.00 40,950.00 53,000.00 12,850.00 18,000.00 20,200.00

~. 36,832.36 28,294.34 720,00

41,381.00 2,0.0 3350 720.00

8,625.00

41,194.00 2,5.0 7950 720.00

Expenditures to Other Districts) Tuition 7,374.41 Food Services: Salaries Other Expenses Student Body Activities: Salaries Other Expenses -

9,500.00

7,750.00 1,802,19 13,300.00 10,013.45

8000 ,0.0 2,000.00 15,200.00 9,175.00

8,250.00 500.00

15,750.00 13,500.00

REPRODUCED FRCM THE COLLECTIONS OF TOE MANUSCRIPT DIVISION, LIBRARY OF CCNGRESS

Board of Education. 1963-1964 Budget Statement APPROPRIATIONS (Continued) Expenditures 1961-1962 Community Services: Civic Activities Special Schools: Summer School TOTAL CURRENT EXPENSE CAPITAL OUTLAY Buildings (Remodeling) Equipment TOTAL CAPITAL OUTLAY 8 -010.475.73 $ -017.600.00 17,600.00 $ 6,652.72

-3-

Appropriations Appropriations 1962-1963 : 1963-1964 $ 6000 ,0.0 $ 8000 ,0.0

12.992.58 12,384,734.73

13,000.00 $2,481,916.00

1B.OOO.OO $2,591,640.00

2,600.00 23.350.00 25,950.00

10,475.73 8

GRAND TOTALS CURRENT OPERATING APPROPRIATION BALANCES JUNE 30, 1962: Current Expense Capital Outlay TOTAL BALANCES TOTAL EXPENDITURES AND BALANCES JUNE 30, 1962i

$2,395,210.46

$2,499,516.00

$2,617 , 9 . 0 ; 50-0

29,165.73 203.04 2,6.7 9387

,1'

$2,424,579.23

IMPROVEMENT

AUTHORIZATIONS ,

July 1, 1961 to June 30, 1962 UNEXPENDED imPROVENENT AUTHORIZATIONS, JULY 1, 1961 TOTAL REVENUES -TOTAL-REVENUES AND BEGINNING BALANCE IMPROVEMENT1 AUTHORIZATION EXPENDITURES! Sites Buildings Equipment TOTAL IHIPROVEH1ENT AUTHORIZATION EXPENDITURES UNEXPENDED IMPROVEMENT AUTHORIZATIONS, JUNE 30, 1962 TOTAL EXPENDITURES AND ENDING BALANCE $ t 16,461.65 1 ,224.85 29.012.22 $ 46,698.72 8.9.8 3759 130,494.70 $ $ 130,494.70 -0130,494.70

WINIFRED R. 5CHANBERA, Secretary

AWAY

?C 3
!Dr. Raubinger Makes It Official
Commissioner Rauhinger's decision on the racial imbalance in the Lincoln School at Englewood had been foreshadowed in all of. its details by his decisions in the Orange and Plainficld cases, not to mention his 1955 decision on the old Englewood districting paltern. The Board of Education is to devise by August 1 a plan for the immediate reduction of the 98-per-ccnt concentration of Negroes in the Lincoln School. Dr. Raubinger will expect, besides this, long-range planning which may entail capital construction. Unless a pupil-assignment program acceptable to him is devised for the school year beginning in September he will institute a plan of his own. He has left no doubt that he expects a solution with respect to the IB-month-old Lincoln ! School crisis:
Continuation will damage the pupils of not only that school but all others in the community. Hence the entire community has a slake in a solution which will make it possible lor the school staff to devote its undivided attention and effort to planning for better educational opportunities for all pupils.

WAITING TO REGISTER: Negro children from Englewood's mirth Ward wait in the office of the Kirst Ward's Donald A. VIM School this morning while their parents attempt to transfer Km Irom predominantly Negro elementary schools. Seven parents wired at the school led by attorney Paul Zuber in an attempt bbrcak what they called dc facto segregation in Englpwood. Their iquesl was denied on grounds children must attend the school tarest their home. Zuber said he tfilL take the matter to a fedpi court. (The Record photograph.)' l

The decision is binding, although under the relevant law it may be appealed to i h e State Board of Education, and it may be assumed that the Board of Education will move promptly to puts its meaning into effect with the understanding that Dr. Raubinger is pretty much of a home-rule man, perhaps disposed to give a school board the benefit of any doubt if he's persuaded that it is really trying. The bottleneck in Englewood has not been the Board of Education. Its efforts at solution have come to grief in the Council-dominated money-handling Board of School Estimate. But perhaps this agency can bear in mind that one of the State Commissioner's enforcement powers involves the distribution of State aid money in Englewood's case on the order of $200,000 a year.

DECEIVED IN THE OFFICE OF CITY CLERK

I JUL -5flM8: W
IENGLEWOOD, N. J.
To the Mayor of the City of Englewood and the Members of the Common Council Gentlemen:

King Street Englevood, Nev Jersey July ?, 1963

This is an appeal for an appeal. I refer, of course, to the de^ cision of Commissioner Raubinger which was released yesterday. Since the question primarily is one for the School Board, my purpose in writing to you is to urge that you encourage the Board to make an appeal by indicating to the Board that it will have your moral and financial support if it does. On the present state of the record Englewood stands convicted of discrimination against its Negro citizens. This is neither true nor just, as you know, yet the order which Commissioner Raubinger has issued, following two years of widespread publicity of the charges which were made, has had the effect of confirming those charges and leaving Englewood with a permanently blackened reputation. Fortunately, the City does not have to accept this state of affairs; it is still entitled to its day in Court in which it not only can overcome trie unfairness to which it has been subjected but may yet emerge as a hero in the eyes of many other communities which have been subjected to the same Kind of campaign. In support of an appeal it should be noted thwt Commissioner Raubinger, in his Orange decision, and again in Englevood1s c*se, neglected to take into account the requirements of the federal Constitution, particularly the L4.th Amendment. Yet unless his decisions are in accordance with the Constitution this is a fatal defect because tne rights which are guaranteed, and the duties which are required, may not be contravened. Even a hasty review of the Brief filed by the Board will show that the decisions are not in accordance with the Constitution. At present there is not a single federal cnse, even in the lower courts, which holds that "de facto segregation" is violtive of the Constitution. Even in the New Hochelle case, often cited for that proposition, Judge Kaufman expressly excluded "de facto segregation" as being the basis. Ultimately, of course, whether Englewood appeals or not, the Supreme Court will be obliged to render a decision on this cuestion because there are several cases now in the lower courts where it is in issue. While Englewood's case might not be selected by the Supreme Court to be heard, the effect of an appeal would be to preserve the status quo until that issue was decided. In case it might appear tempting, either for the sake of peace or in order to spare expense, simply to comply with the Conmissioner's order and let some other community carry the burden of an appeal, I would like

to suggest that to capitulate in that way, to take the "easy way out , could turn out in the long, run to be the worst possible mistake, an< easy at all. for If, after Englewood has made the changes neces comply, some otner community establishes bv court action the unconsl tionality of such an order, Englewood then will hve to undo or unscramble changes previously made. Aside from the difficulty inherent in such scrambling, and the increased bitterness* which nv cham-e back woulc sure to engender, it may then be too late to overcome other consequences of compliance. One almost certain consequence of compliance, for example, is an acceleration of the population shift already going on; the departure whites and the arrival of Negroes. And there can be no undoing of of this nature. If there is any doubt that it is a real poss: has only to consider Washington, B. C., a much larger community, wh< population shift in just nine years has lowered the percentage children in public schools to 15^. The legal brief which was prepared for the School Board by its counsel, A. A. Lebson, Esq., was an excellent statement^ tne is unfortunate the Commissioner ignored its contents. Since ever, and since Englewood deserves to hve a full consideration of .ase, an appeal to the i-ederal Court is inciceted. It is my earnest hope yoi will encourage the Board to rafke one.

Daniel V. Allen

CTTY CLEWS OFFICE COPY SENT TO:

inn do. Rut if five sites, equally X"od. arc available, then I think it's luirely in order for the President to Meet a different site. It isn't just limisliment, but everybody knows low Mississippi discriminates. We ouldn't be able to employ any NeIro carpenters or bricklayers, since lione are in the unions there." He freed t h a t changing the site wouldn't help the Negroes any, but l<lueii mat it wouldn't harm them tidier. His point was confirmed by former member of the Justice Department's Civil Rights Division who recently said: "I know well, lor fcample, one Mississippi county where hi the last decade seven industrial plants have been established. ot a single one of these factories nploys a Negro." The commission's general counsel loted that the retraining-program asco a year and a half ago proBled another example of the diffiilties involved in increasing techniBl aid to the state. At that time, a Boram to train 1,200 farm hands B drive tractors was about to be Bunched, and $435,000 of Federal Honey had been provided under the Hea Redevelopment Act. Only a Bw days before the program was Bened, however, the Delta planters Bio had drawn up the plan withBev, and the whole thing was canBed. Though the training was Hsperately needed, the planters had Hi second thoughts about the adHability of accepting Federal funds. Hi: ot upsetting the racial status Ho was the predominating motive, H; there were also vague fears that Be program would bring in a m i n i Mum wage or minimum housing Bidards in some unexplained way. Reaching Mississippians and inniing them of what can be exlected as a result of Federal aid and Hat Federal aid can do will take food measure of resourcefulness. fortunately, the newspapers in state cannot be counted on to Be constructive information about programs. When the commission Bed its recent recommendations on Hsissippi, for example, the editor of Jackson Daily News itemi/ed the His he thought the President had Bii asked to cut off, and found on list a million dollars in redevelBient programs. "We're not clear this fund," he wrote, "but we'll

make a deal. Mississippi will give it up if the Federal government will abolish the equally expensive Civil Rights Commission." Whether the editor will ever get "clear" on" redevelopment programs is difficult to say, but it is pretty sure he won't get his wish about the commission's demise. Although its term expires this fall, the President has asked that its life be extended for at least four years. The commission would be the first to agree with the crack about its having "got all the facts it set out to collect," but not about its not knowing what to do next. "If fact finding were to continue to be the only function of the commission," one of its recent memorandums stated, "it might be preferable for the agency to be terminated." Instead, the time has come for action. "In many areas of Federal programs, the problem has not been the^ absence of policy so much aUdifir'cukres in impiementingfadeqijatfljly existing rules and regida^cmsOreaiiinrig nondiscrimination." \ \\S Who should advise/the govern-

ment on "administrative techniques" that would carry out its presemly ineffective regulations regarding nondiscrimination, and who should take on the broader role of guiding communities toward workable programs for civil-rights progress? The commission itself, not surprisingly, IKIS stepped forward for the job, and it ought to be recalled that the idea for the agency first sprang from the Justice Department, which long ago recogni/ed the need lor an independent group to gather the lacts and expose the patterns of injustice in the field. six has I N gainedVF.AR.S theandcommissionexpebroad valuable rience in analyzing civil rights, not only in voting but in education, housing, employment, and the administration of justice. A number of Es recommendations have provided the basis for Congressional action or have been put into effect by Executive order. As the President has said, the commission "is now in a position 10 provide even more useful service to the nation."

Englewood, New Jersey: Visitors in the Classroom

SPENCER KLAW ENGLEWOOD, NEW JERSEY, as in INmany other Northern communities, Negroes have been expressing their concern and resentment over dc facto segregation in the public schools. Englewood used to be referred to in the Sunday supplements as the bedroom of Wall Street, and it is still thickly populated by bankers, brokers, and insurance men who commute to work in Manhattan. But today more than a quarter of it 26,000 residents are Negroes, and in the last eighteen months a series of boycotts, mass meetings, sit-ins, and prayer meetings have served notice on the city's white leaders that they have a serious segregation problem on their hands. The focus of discontent in Englewood's Negro community is the Lin-

coin Elementary School, a two-story brick building whose surroundings consist mainly of grimy bars, boarded-np stores, and sway-backed frame houses whose back yards are strewn with the remains of old automobiles. Dissatisfaction with Lincoln stems less from its dismal setting, however, than from the fact that its enrollment, like the population of Englcwood's Fourth Ward in which it is located, has been ninety-nine per cent Negro. Some parents feel that this racial imbalance is so harmful that they took their children out of Lincoln in February and kept them out. These are the children who, on May (>. began a sit-in at another elementary school, Cleveland, just a mile away from Lincoln, where the enrollment
THE REPORTER

II

\ - i - i ^ i i ; ]><.! < c ' i n w h i t e . On ilit: Li .i.iv ol ihe sit-in, the Negro pen, wlio range in age I mm twelve years, were told t h a t It'oukl not be permitted to enter wilding. (On the first day, they t before anyone realized what livtre up to.) But when they sat i n n the steps and announced lil they were kept out no other pen would be allowed in either, liiiliorinYs relented. After that, liters were permitted to enter |l;md each day as "unauthorized js."Tliey attended classes, look Discussions, played with their j hosts at l u n c h t i m e , and did finned homeworkwhich, how teachers were instructed not ft ruts ol the visiting children |ihat even in these somewhat , circumstances the sit-ins llmore than they would have Kin. This impression was by a talk I had with a bar-old visitor named DiBombs. He told me that the f \t Cleveland seemed to lot more than those at , and that consequently the lived a lot faster. There were Jildren in his class, he said, teacher, instead of giving km as the teachers tended [Lincoln, gave them a great j attention. "She wanlx the lildren to learn," he said. (added that he was particuiCtl hy the fact that chil| Cleveland seemed to like )\vell that they were always t special reports they had Inn their ownsomething he Inost never happened at
ill;, Hill

do a great m a n y Negro children. But there are likely to be pupils in every class at Lincoln whose parents are recent immigrants from the South who work as unskilled laborers and who in some cases can barely read and write. The argument about Lincoln turns on whether it is true, as the state investigators suggested, that going to a segregated schooleven if the segregation is not a result of gerrymandering but simply reflects the fact that the school serves a predominantly Negro neighborhoodis in itself psychologically h a r m f u l to Negro children. Many white residents dispute this notion, agreeing with Englewood's mayor, a lorty-

';,'>'.'<..'. -''.''~-i-v^>"

J > y "they" Ful lei vv.is rcleiring primarily to Adam Clayton I'owell. who spoke recently at a ( i v i l - r i g h t s rally in Englewood, and to Paul Znber, a New York lawyer who makes a specialty of h a n d l i n g schoolsegregation cases. Zuber has not only represented Lincoln School parents in several legal actions but has also acted from time to time as a spokesman for and co-ordinator of a coalition of local Negro leaders, known as the Englewood Movement, that has been directing the campaign for integration. A handsome, burly, e m i n e n t l y quotable m a n , Zuber has irritated many people, i n c l u d i n g some supporters of the Englewood Movement, by his verbal belligerence. In the course of a few days last August, for instance, he promised that Englewood would be turned into a n o t h e r Albany,' Georgia; that a Negro boycott would be launched forthwith against white Englewood merchants, and t h a t photographs would be taken of any Negro who defied it; and that unless the Reverend f. Isaiah Goodman, one of Englewood's leading Negro clergymen, would personally lead a boycott of Lincoln School when it opened in September (as it turned out, he didn't), "as God is my witness, I'm going to run him out of town." oNF. of these threats were carried out, and while Zuber has been made much of in the newspapers, it is unlikely that things would change very much in Englewood if he were to disappear completely from the scene. Moreover, it is not true, as Fuller maintains, that the only local people really worked up about segregation at Lincoln are a few Negro malcontents and an equally small number of white eggheads. Actually, Englewood's board of education itself put forward last summer a plan to reduce racial imbalance in the elementary schools; it was supported not only by the Englewood Movement, the Urban League, and the local chapters of the NAACP and CORK, but also by the League of Women Voters, Englewood's PTA Council, and the Englewood Ministerial Association. It had the support, too. of Vincente Tibbs, a Negro social worker who represents the Fourth Ward on the five-man
15

|in tnglewood denies t h a t : Cleveland tend to know I) children at Lincoln. A Investigators s eiu to Engleyear hy the New Jersey bner of education reported pidard achievement tests [jradc pupils at Lincoln I years behind sixth-graders Is other elementary schools. anyone (jiiestion the fact pent family backgrounds t n d o with this disparity. kite children in Englewood idille-dass homes, and so

two-year-old insurance man named Austin N. Volk, who has said that the fuss about Lincoln is mainly the work of troublemakers from outside the city bent on "distorting the image of Englewood into t h a t of a Little Rock." This conception seems to be rather widely held by people who, like Volk, are identified with what Negro leaders refer to as the white power structure. W i l l i a m E. Fuller, president of the Englewood Taxpayers League, wrote not long ago: "If there is a 'problem' in Englewood today it is the result of a device of professional agitators and politicians who must create continual agitation to survive economically and professionally." They have picked on Englewood, Fuller told me, mainly for geographical reasons. "They can run over here from New York and agitate on weekends," he said.

first Negro churches were built with the help of the white families on the Work, Tibbs has actively sup- Hill. Their descendants still are apt the pupil sit-ins; each morn- to contribute to Negro churches, and this past spring he was on may even attend special services that ,nd at Bill's Variety Shop, a candy- a few churches still regularly hold l-solt-drink establishment across to honor their white benefactors. street from the Lincoln School, UT since the war, a radical change Ben the children gathered there Be driven to Cleveland. has taken place in the city's phile the Fourth Ward's tradi- Negro community. Along with al leaders, the clergymen, were unskilled workers from the South Ictant at first to become involved have come large numbers of Negro the sit-ins, I gathered from a businessmen, skilled workers, and 1 had with the Reverend Mr. professionals. They and their childman that their patience is wear- dren, some of whom are now leaders thi:.. Rocking back and forth in a in the Englewood Movement, do not leaky swivel chair in his study at want to be patronized. Many hold First Baptist Church, Goodman views that coincide with those of heriy criticized the intransigence Augustus B. Harrison, who moved Englewood's white leaders"They to Englewood twelve years ago from up there on the Hill, have their New York, where he works as a fents, and they don't come into subway towerman, and who is presipet with anyone but their own dent of the local branch of the he saidand deplored the NAACP. "There are three factions in that flats in the modern apart- Englewood," he told me. "There are t buildings that line Grand the people who want the status quo, nue, one of Englewood's princi- who don't want anything changed. Blhoroughfares, are barred to Ne- Then there are the liberals; they Hs, who often have to pay $125 want to give us something so long as month or more for the most it's enough to keep us quiet, but not Hrable son of accommodations in enough to do us any good. And then fourth Ward. Like Tibbs and there's the extreme end, which I eaders of the Englewood Movet, Goodman is convinced, howB that the first objective is deHgation of the schools. "We want uncoiri closed," he said emphatiB, and I got the impression that Hs the city has taken a very big oward integration by Septem> there is a strong likelihood that Jegro community will effectiveLincoln by direct action in fcrm of a boycott. This is a possibility that many khite residents, especially those guess I belong to. We feel we must live on the Hill, the high-lying have equal citizenship, we must have Ti section of Englewood where equal education, and we're not going louses are big and separated to settle for anything less." Harrison the streets by great expanses of made it clear that his mistrust of find it difficult to believe. liberals extends to Negroes who acthe agitators came, they tell cept their favors. "You still have Ihere was no trouble between some Negroes in t ! i i > :own who, so Bees in Englewood. Negroes and long as you throw them a bone, will have in fact lived there bow and scrape," he said. per for more than eighty years The hard attitudes held by Harrisince prosperous lawyers and son and other leaders of the EngleBssmen began building houses wood Movement reflect, in part, Englewood and staffing them with their conviction that the city's adservants from the South. A ministration has simply not dealt in fcgro settlement was established in good faith with their demands.

il. A short, miUl-iiiuiiuerucl bi who graduated from Columbia Jversity's New York School of So-

w 1 I <.: 1 c: L t l C

Negroes thai included Harrison first urged that something be done about racial imbalance in the elementary schoolssince there is only one junior high and one high school, the problem does not arise there the board of education reacted sympathetically. It pointed out that the then superintendent of schools. Dr. Harry L. Stearns, with the help of consultants from Rutgers and MIT, had already begun a major study of enrollment patterns in the Englewood schools, and it promised that the scope would be broadened to include a "study in depth" of racial concentration. The board further agreed to take on a third consultant, to be chosen from a list of names to be furnished by the NAACP. In return, the local NAACP chapter said it would not for the time being make any attempt to test the board's school-assignment policy in the courts by trying to enroll Lincoln School pupils at one or more of the city's other elementary schools.
Delay, Impatience, Trouble

By the following January, however, Harrison and a number of other Negroes began to suspect that the city was stalling. Publication of the Stearns report, which was tn have been ready by February, 1962, had been postponed for several weeks, and Mayor Volk had let it be known that he intended to put through a 1962-1963 school budget containing no provisions for carrying out any recommendations the report might contain. In an effort to force the city to commit itself to taking some positive action, a group of Negroes and whites staged an all-night sit-in at the city hall on February 1, 1962. Eleven of the demonstrators were arrested on charges (later dismissed) of disorderly conduct, and there followed a series of rallies and candlelight processions and an unsuccessful attempt to institute a shoppers' boycott. These evidences of opposition did not prevent the school budget from going through as planned. But the Negroes were given unofficial assurances that if the board of education should need additional money to implement the Stearns report, it would almost certainly be made available by the board of school
THE REPORTER

estimate, and the demonstrations tapered off. When the report finally came out I in March, Negro leaders were jubilant. It contained a strong indictment of all forms of school segregation, and offered detailed proposals tor eliminating it in Englewood. In July, the board of education an! noiinced that certain of these propals would be put into effect I when school opened last September, idle plan, advamed as a first step toItfarcl more complete integration, I was to establish a central intermeJdiate school, to which all fifth- and Kill-graders in Englewood would he assigned. While the plan had [wide support, as noted earlier, it IMS attacked by a newly organixed [group called the Save Our Neighjborhood Schools Committee. This [group's principal objections were [that the new intermediate school [was to be located in a buildingan [abandoned junior high schoolthat [Superintendent Stearns himself had [once called worn out and obsolete, [and that children would have to [cross heavily traveled and dangerous thoroughfares to get there. Giving [these ami other reasons for their decision, the mayor and his colleagues J>n the board of school estimate Died to deny the board of educajiion the S85.000 that it had said it would need for renovations and the plan went on the shelf.

low Republicans on the city councilTibbs is the only Democrathave been able to point to the results of a referendum held last fall, which was not binding on the city but in which the idea of a central intermediate school was disapproved by a four-to-one vote. There have been charges that the question put to the voters was loaded, and the results may, in fact, exaggerate the extent of opposition to the proposal. But the opposition is nevertheless strong, and in many cases arises from considerations that have little to do with the dangers of crowded streets. Several of these were brought up in the course of a talk I had not

^^HgyrB
?

long ago with Edward F. Johnson, a leading opponent of the plan. Johnson, who works in a New York brokerage firm, and whose wife belongs to one of Englewood's most influential families, told me he i(> MANY Negroes, and many white didn't see why he should have to send his children to a school outL supporters of integration as well, his was an act of betrayal. When side their neighborhood just to acIchool opened last September, there commodate Negroes. "Anyway," he Iras a three-day boycott of Lincoln asked rhetorically, "what makes diool, during which two-thirds of people think the colored person lie pupils stayed away. Petitions with a child at the Lincoln School Ulcging illegal segregation in Engle- wants him to come up here and sit wood's schools were filed with the next to my child?" Johnson went on Itate commissioner of education, to say that, in general, Protestants fend there was a new series of rallies, like to associate with Protestants, Itrect demonstrations, and sit-ins. In Catholics with Catholics, and Neebruary a second boycott of Lin- groes with Negroes. If Englewood's Icoln was called. On the first day, schools are totally integrated, he pearly half of the children stayed added, there may be a flight of white pay, but the number of absentees families and a corresponding influx on dwindled to less than forty of Negroes that might well lower Biihlren, who, until the sit-in at educational standards and breed Cleveland began in May, received crime.
llaily instruction from volunteer leachers at a special "boycott school" let up by the Englewood Movement. I In resisting demands for further tegration, Mayor Volk and his fel4, 1963

THAT may, some further BE degree as itintegration seems cerof tain to come in Englewood, and fairly soon. New Jersey's commis-

sioner of education, r u l i n g in a case brought by Negro parents in Orange, recently held that extreme racial imbalance in a school, at least where means exist to prevent it, constitutes an illegal "deprivation of opportunity for the pupils compelled to attend the school." He ordered the Orange board of education to take immediate action to reduce such imbalance in a school whose enrollment was nearly all Xegro. The commissioner's action left little doubt that he would respond in similar fashion to the Englewood petitions that were before him. Moreover, even before the Orange decision was handed down, Mayor Volk and Council President \Villiam D. Ticknor had begun meeting with a semi-official conciliation committee thereby signifying at least their full awareness that racial imbalance in the city's schools is an urgent problem. But the fact that this move came so belatedlyand then only under the pressure of a sit-in by Negro childrenseems certain to have a profound effect on future relations between whites and Negroes in Englewood. Many Englewood Negroes indicated quite clearly to me that, in pressing their demands, they are in no mood to trust any man whose skin is white. They are convinced that any victories they win will have to be won by their own efforts. Even whites who have actively supported the campaign for integration in the schools tend to feel more and more cut off from the leaders of the Englewood Movement, and those whites who are still working closely with it are careful to remain as much as possible in the background. "Please don't emphasize my race," one such man, a former freedom rider who spent many weeks in Southern jails, asked me at the conclusion of a talk I had with him. One of the most common arguments for integrating schools is that the white children who attend them are less likely to grow up with a prejudice against Negroes. But resistance to full integration of the schools in Englewood, which in any case seems almost sure to come about, seems only to have contributed to an increase in prejudice against whites.
17

''''
.TOi PROS! i SUBJECT! MEHBERS OF THE BOARD OF LAURENCE C. LIGHT, A'.I.AY'"'. LINCOLN AND LIBERTY SCHOOLS

After an axamination of th plng and aking inapactiona of^both building'*,togathar ith Dr. Fred Banlaealco, 4 herewith aubajlt tha^fpllowing raportv* ' '
|l) LINCOLN SCHOOL^ " y / ^^^^^

Consisting, of tha CanUr Sactlon built" in i917',fwith thraa (3)

and undar tha lat Floor Corridor, tha balanca of tha framing ia of nonfiraproof cohatruotion ith'^l-ippd .Tttmln^:fisrW >;;:*;;'."^y":':.v. (a) Roof raftara ovar ij|jppj^^ (b) Roof raftara ovar Audltotiuvand Cyajnaaiuai . : . . . J.- /.^ .'.. (c) Ceiling baama.ovar lat end- -2nd Floor Corridoca ..... --". ' " (d) Floor Joists undar.'lat and-2nd floor Claas] Rooaw .' . j (e) Floor Joists undar 1st Floor Autiitorim" and Cywiaaiui ; . .V. :(f) Cirdara in lat Floor Conatructiort,v*'T?*T4^ (g) 3" x 411, atud partition*batwain :C Thar*.iri 5* 0" higfiv which ia oaf in*t*: crawl apac* Into th* pip* tunnala of both tha ;928;al 1927 Addition*, , a fir. brlQlnating iri th* orawl 'apMaffiouU. ' . ' tha *ntir*. hyi Iding j ^including th| .^939'Ajd^^ A-1 Th* vwtilftiort in Tliiwi'fiooip*^^'1Li-'-:'''^ -.;:..; Cycmaiusi ntiul4 ba ehaokad'by^ raquirad. nuwDar of ir cb^^. O *cw~*i ^ ^ J<^^

- *v_- v*1^ ****>* +-*<*t^**tm

lat Floor co atalrluiib^>ot fatal luabar . N o stud part itiohf. lat Floor Hatal luribar for Wood for roof : No' atud parti tio

EAST 1927 ADOIT ION

"D"

NORTH

-,.
Ventilatng No tud partition*

H.

---

- -

IN GENERAL .-,-. The 1917 CENTER,SECTION by t*> (2) coel-fit*d CENTER SECTION, ,Without considering the poeeibl\eatt of fireprrofihg eoe of the ee lieted under "A" rJ e poeidble eaeernixetibn'or the venHleting eytee, _jend due to ^ M.409 ^ M* A - * *florid!^'ori^itt?. _-* A. _.ttMT^ * _ t ." -.. - _* t__ a_ A- _l_ _ _it*_ jl*' A.k: ^ * TLi 1 *'_& '-tl ' - _

taeemeht, Flret'ehdl bulH in 1902

"-' : ' ' " '..l'..': I- :''-' ^'^\".f-^\^Tt^

" ttNTER' SttrtlMI ^*-^^

B" SOUTH - lJSl'2 APOltlOM '-Ail' ^ineKto^

<g) Stud pertiUone; ph.r ^ (hj >ntiUtton ? .

' .r

'

^^i. v r ~Tf .^i^-pTT.ir ^

() toed true for (b) Hood ceiling bewe .< (c) Steel tiwet-grip jeie* end

,.;;:.

-3-

IN GENERAL "GUIDC" Requiroment states, Page 32, P-B-3i"In no caae shall an Auditorium, Assembly Room, Gymnasium, Cafeteria, or any space subject to occupancy by 200 or more person, so situated that an occupant of its main floor, using main exits, must descend or ascend mora than 8' 0" to reach the outside grade." The 2nd Floor Auditorium is 19' 2", plus or minus, above grade. In addition, there are no aisles leading to the Auditorium exits. " Pupils must travel from the exits 51' 0", plus or minus, along the North Corridor to the stair smoke screen doors, and 53' 0", plus or minus, along the South Corridor to reach tha stair smoke screen doors. Four ( ) rooms in the Basement are used for Arts and Crafts, Library, 4 one (l) Special Class Room and one (1) for Cducable children. Some have insufficient natural light. ,-;.-..-. Ulhereas, the Basement Gymnasium Floor averages from 7' 0", plus or minus, to 8' 3", plus or minus, below grade, the two (2) South exit doors, 5' 4" in width, which open out, block more than S0% of the .4* 8" exterior concrete steps to grade, reducing the 41 8" steps to 21 6", plus or minus. ..-

CONCLUSION Included are some Polaroid Prints of both Schools, photos taken by ffir. Iftaniscalco. : . In my opinion, the use of these tuto (2) schools should not be in any long range program. This is in the interest of the and comfort of 4v pupils. .In addition, -the high costs for repairs ma'inten<nce should be an important factor.' '
'

,-. '. Ar.

..ir? -'

Respectfully submitted,

Y
Lawrence C. Licht

^.-

BOARD OF EDUCATION Enqlei'jood,Ne'Ji/ Jersey PROPG5EO ACTIONS REGARDING THE DECISION EDUCAT'3N - ~/l/3 Of THE Superintendent recommends1. That the Englewood Board of Education attempt to comply with the Commissioner's directives of 7/1/53 12. That tne Board seek the Commissioner's approval of the following plan to be implemented at the opening of school in September 1963: a) Close Lincoln School for regular classroom instruction

b) Establish at the former Junior High School building at 11 Engle Street a city-wida sixth grade school c) Assign Lincoln School ouoils in grades 1-5 to Cleveland, Guarles and Roosevelt Schools using the following criteria: * * define attendance districts that will assign children, as nearly as possible, to the school nearest their homes provide for an even distribution of class loads

d) Permit ths voluntary enrollment of fifth grade pupils from any elementary school in a central fifth grade scnool at II Engie Street s] Assign kincergarten children from Lincoln School to 11 Engle Street and Establish s voluntary city-wide are-school program for children 4 years of age on or ccfor:; December 31st

f) Initiate a program of extended educational services designed to raise levels of attainment and aspiration of unoerachieving pupils (higher Horizons) g) Suoport programs of the Adult School zf Enoleiuocc suited to the needs -and interests of parents of school unceracnievers. h) In view of rscsnt studies of traffic safety concitions of oupil routes to all elementary schools, consider a revision of transportation policies as fellows: * * Kindergarten thru Grade 3 - transport beyond bounds established by Bcarc ( of approximately 3/4 nils; Graoes 4 thru 6 - transport beyond bounds established by Scare (of approximately 1 mile)

Proposed Actions continued i)

-2-

Retain three irainable clashes at Lincoln School and locate central offices and system-wide operations at the Lincoln School

That the Board direct the Superintendent to conduct a study of the following long-range proposals: a) Proceed immediately with program study and building survey leading to the development of educational specifications for a four year comprehensive saconriary school program at Owight Harrow High School.

b) Conduct a faculty study of a junior high school program for grades 6-8 c) Conduct an elementary school (K-5) enrollment study and building needs survey with particular attention to replacing facilities at Liberty School and to eliminating the use of 11 Engle Street at an early date.

\Jl
Tn the r...,.. .. Examination of Commissioner TUubincer's derision in the Knglewood school *" " conclusion*: 1. The decision holds that \vherc is an extreme racial imbalance, in. the assignment of negro imbalance] has resulted v::thout sr.y intentional segregation, then the legal, rights of the negro pupils involved have been violated, provided only that ippropriate means can be found to ivoid the concentration of, the negro pupils in the school in question. 2. Dr. Raubinger gives no indication, in either the Englcwood decision or in the Orange or Plainfield cases, (decided earlier this year) who is to decide whether "appropriate means" can be found to eliminate the racial imbalance. No legal authority for the Raubinger decision is cited by the Commissioner, other than his own laymen's interpretation of Article I, Section 5 of the New Jersey , Constitution. No basis for his decision can be found in the 1954 ruling by the U. S. Supreme Court known as the Brown cafe. * Tn the Brown case, the Supreme Court decided only that intentional, or purposeful, segregation of public education is a denial of rights under the 14th amendment to the Federal Con stilution. Fcrtunttt fsf City Fortunately for the citizens of! Englewood, the courts ol. this I State are Mill open for the pro-' tcclion of all of our citizens, in obtaining a definitive ruling on the fundamental question -whether the rights of a minority group have been violated because of. unintentional racial imbalance. The logic implicit in thr R.iubinjer decision points clearly to but one conclusion viz:where there are "appropriate means'" available to rectify the ra.cil imbalance found in pupil assignments, then the local school , board (and by the same token, the Board of School Estimate) is under a duty to take the necessary steps to correct tho imbalance, and irrespective of the cost to the taxpayers as a whole, liut not vict
V*M.

Says Quota Plan . Abhorrent Idea^/s

To the Editor: I would like to call to the attention of your readers an article appearing in the Now York Times of July 11. 1963 reporting on a< case heard by the New York State Commission on Human Rights. The . owner oC an apartment building 1 containing eight rental units, seven ] of which were occupied by whites and one by negroes, sought to protect the inter-racial character of the building by refusing any additional negro tenants in the belief that there was an i m m i n e n t danger ot losing what he considered to be a proper racial balance m the building. The Commission held that Ihe landlord's action was unlawful stating that a racial quota system is "unfair and undesirable under any circumstances." It slated that it I was mindful that "disturbing and ! ominous portents" indicated an extension oC I he concept into the i fields of education and employment. U went on to say "the very nature o fthe quota system violates nature of the quota system violates freedom of choice and substitutes for it potentially arbitrary and tyrannical controls.1* Arc not some o those who ad-1 vocatft a system of enforced "racial balance" in the Englewood public schools really proposing that we establish a racial quota system in this community? Very tntly yours, GEORGE B. MOON 140 West ivy Lane Englcwood, N. J.

SONS Appeals State Ruling; / Board Confers

-7/'8/03
C

Groups in MonlcUir and Orange, which face the SJtme probIcrm, may join Englewood in * general appeal of the ruling* from Trenton all of which are 1 similar in that they call lor - desegregation of * given school and change in the neighborhood school policy. i ' ; i KNCl.KWOtm \\hil-- Hie Kn ': "Irv.x*! Hoard <>l Kilix-ation ctmti ' i nut-s i l i vrii\ of informal confer 1 '. 1'iirr^ a% ;i Ixi.ird .-itut also wilt " memluT- il ilu- Bimnl nl Schnn ' I'Siimaie. ihf Save our Noit'hlinr Irnod Srhu:iK < 'nnuiiiltrr 1l}i> wi-cV file*! an nili'iitiim of appeal a;;:iins .' ihi- !t;iul)in^cr nnlri in it<'>csn-;'al( . Lincoln Sellout. The SONS i s , H i licit! n 'k ftn lil , inn -"I ispi'i'-t' i'Sj'<'vtiii>; In 1 Board " i o f KiliicJition lo lak'* M rh action " ! >vi in vir-.v t;J' l!i.' l.,ili .- of lin1 Unani o! Kdiiealion In o M) On SUNS K t m i p .sifiiptit MI i Siu-h an api i- l- luvn-\i'v. \\oiilfl . not i '-,h ,M" lite Unarrl of l-alnralinn ,' In in i Mihmillin;', pviposetl plan to KrMeiuk \V. U:itihinuiT. thf . in-iil. n Mr li.-itihinui-v h;tx rnllfd
f i l l ' M i r h ,1 p K H i O s i l ) l)> ;\IC I-

s^)^S IN .:p|ii-:ilini: tin- ttiiuhmci*! nMli-i- nn Ihr ^ciMinds 1h.it il i;. m-l , , valwl. thitl nny tilnu In Ht-M-jri-rwu ' I Lincoln Schit'il. winch is prcpim ! ilt-rnntly N'-j-.m h*--;,u-i- il r, lli ' ( iifiuhlwirhiio'l schnol tn Mir I\'",: :u-r-j, M'ttit'l ( i f , mv ..Hi. r - l i i i . l i . .()( HiCM i i!ll In ; lit ...I ')>" ..." ' Jami's Mirjfir n| H-k-:i.-iirk, .. tii'orninrnl altorn'-y wlm h:ii r'1 |ir->.fnli'tl a nunih'M iif rivtl niJltl'* ra.vs. is r-pr.^.-nlHtt: SONS. Wtl limn V. HI olt n, iOtnicr All.rn<-v foi' SON'S. ^ now KnntfWdnfl 'rily so I ir ii'ii ;m( r;ttniML fpri-wn* SONS in ih- -(pii'-iil , Mf{itiv.-lulc. John H. C'-rry. pri'\ nl' nt ol Hi" l;n;inl f Ivlurnlion, I di>,rl'-s<" lh;ii nif'trtnal r'tnf*'ninri" .inifin^ 1','iiil't n| lvln<-;ill'ill lie in h.-rs HMO v. Mil rjn-mltT ; 01 th'lioaiil Mt S'-h'")| lv.llri<:il>'. v/ltirli ''Milt)ls M - hmt :ipjiropn:ih*iir , ) : t ) i uii'S ! /..:!, in" it'i.m! n-,.:i/c !h:il nml'T p:i:,1 p'.h>-;. Dx- H-.-mi ol Si-h'inl r.:-.tnn;itr- li;i\l rii*-:iMiM--. r:illn,:' I'M liirj-.- .i|Mi'i
1

Because o[ HIP doubtful validity of Dr. Raubingor's decision, as a legal proposition, [ heartily join in the suggestion made by Daniel E. Allen that the Englcwood mu nicipal authorities file an immediate appeal from this decision both to the State Board of Educai tion, and there-after to our courtr ot law, in order that the citizen and taxpayers ot Knglewood ma; be reliably informed of our r\pective responsibilities in copi with this difficult problem. In vi*w o{ Jhc positions prc ously taken by the Englewood Board of Education, it seems doubtful that a majority of that Board will authorize the taking oC an appeal. I>espile the fact that the Board of School Estimate and the Mayor and Ommon Council are i no longer formal parties to the I proceedings which have resulted in the Kaubinger decision, the threat (which both he and Governor Hughes have so broadly hinted) that the State Aid funds which normally move to Englcwood will I he cut oft unless Dr. Raubingcr's edict is complied with, should be sufficient to persuade the Mayor and Council to take the necessary steps to get this case before the courts at the earliest possible date. Very truly yours, GEORGE G. TEXNANT JR

On
'-'lui'-l I ft V/illl I M ' H.

lli.inl ol :-.i-Ji'il KMi *-IM'III\M ic:i'li'-l lt'iot ti'iiti'l v.-iM pi. nl , iinhl Itavntj; In .! Milmiil , lff( tin-in In Mi* Slate ( 'tmiiiiiv,i'in , ,. Tlic t.'.;.nf r. ti'il'hnK .. in-'-iin;: on Miiri'hiy ni::ht, .I<ilv .'.'), '' - '(r.<- },,n .-ui'l !.i'fti;j)<lv Hi- vii. i i - ' 1 n\M .cii'i'il >n'>p'i .;>! . v.ilt

DINCIN
COTJNSSI.I.OS AT LAW
CENTHAI.BtIII.niUG

18 W. PAUSJIDK AVZNTJB EKOI.EVOOD, N. J.

LOWSIL B-3000

July 23, 1963

ft

CoooiSBion of Education Robert G. Platoff, Esq. Arnold E. Brown, Esq.

George B. Geloan, Esq. David S. Greenberg, Esq.

Robert L. Carter, Esq. Herbert H. Tate, Esq. Barbara A. Morris, Esq. Maria Marcus, Esq.
Major & Major, Esqs. RE:

SPRUXLL, ET ALS. V. THE BOARD OF EDUCATION OF im CITY OF ENGLEWOOD, BERGEN COUNTY

Gentleaen: Enclosed herewith please find Substitution of Attorney showing that I, Sidney Dinein, am now the attorney for the Board of Education of the City of Englewood. Will you, therefore, please note this substitution of attorney on your records. '

SIDNEY D SD:tsn Certified Mail Return Receipt Requested

I1&4
BEFORE THE CCMdSSIONER OF EDUCATION OF NEW JERSEY

LAURA, ROBERT and JAY VOLPE, et . !, Petitioners, vs. KENNETH ANCRUM and LESLIE ANCRUM, et ml., Appellants, vs. THE BOARD Of EDUCATION OF THE CITY OF EHOLEWDOD, NEW JERSEY,

SUBST-ITUTION OF ATTORNEY

Respondent.

I, ABRAM A. LEBJOW, do hereby consent that Sidney Dincin, Esq. be substituted In ary place and stead as attorney for the Respondent, The Board of Education of Th$ C-ttv of Englewnod. New racy.

DRAFT

TENTATIVE PROPOSAL GF A PLAN TO COMPLY IJITH THE

DECISION OF THE STATE C Gf'WlI SSI ONER OF EDUCATION OF rvEL'J JERSEY

DIRECTING THE ENGLEWQOD BOARD OF EDUCATION

TO REDUCE THE EXTREME CI-NCEUTRATION OF MEGRO PUPILS ITJ THE LINCOLN SCHOOL

Hoard cf education ^-Dod, N.J.

July 24, 1963

A Proposed Design for Action by the Engieuuooa, New Jsrsey, Board of Education to Comply with the Directive of Commissioner Frederick ft". Raubinger, New Jersey State Department of Education to Reduce the Extreme Concentration of Negro Pupils in the Lincoln School: fls of the opening of school in Septemoer 1353: 1. To establish at the former Junior High School building at 11 Engle Street a city-wide sixth grade school to whicn the Board assigns all sixth grade pupils of the Englei'jood 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 assignment 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 provide for an even distribution of class loads

b)

3. To provide any child so assigned an option to remain at the Lincoln School uDon application oy the parent or guardian to the Superintendent prior to August 21, 1965. 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. 5. 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.

OVIDED THAT: The Board's Attorney gives assurance of immunity of Board members from taxpayers suits regarcing the expenditure of public monies to implement any aspect of these plans .... IND PROVIDED THAT: The 3oard of School Estimate approves funds necessary to put these plans into effect according to the estimates attached hereto.

-2-

ITEW Building R e n o v a t i o n - f o r m e r J u n i o r H i g n School

:GNT?ACT
3 105,000

BOARD OF EDUCATION
S 50,570

Equipment

10,000
700

10,000
700

[loving of Board o f f i c e s

Faculty P r e p a r a t i o n

3,500

3,500

Cleveland School t e m p o r a r y classrooms

5,200

5,200

didnistration- 11 Engle Street

19,300

19,300

Oration - 11 Engl e S t r e e t
U I n '_ 3

9,500 153,700

9,500 I99,270

-3Proposed supplementary actions: 1. To revise pupil transportaticn policias as follows: a) Kindergarten through grace 3 - transport beyond bounds established by the Board of Education ( approximately 3/4 mile) b) Grades 4 through 6 - transport beyond bounds established by the Board of Education ( aonroximately 1-J mile) 2. To establish at the former Junior High School at 11 Engls Street a voluntary city-wide pre-kindergsrten program for children four years of age on 3r before December 31st.

3. To initiate a program of extencsd educational services and opportunities designed to raise levels of attainment and aspirations of underachieving pupils (Higher Horizons) 4. To support programs of the Adult School of Englemood suited to the needs and interests of parents of serial underachievers 5. To continue and intensify sffcrts to unify and improve the curriculum of the schools at all levels thrcugn programs of in-service education of teachers and administrators through increased use of visual and auditory aids to learning, and through local action research projects. 5. To initiate studies of the following Icng-range school imorovement proposals: a) A program study and building survey leading to the development of educational specifics-ions for a four year comprehensive secondary school orograr. at Djjignt filer row; High School

b) A faculty study of a junior high school program for grades six through eight c) An elementary school (X-5) enrollment study ana building nseds survey with particular a-~ention to replacing classroom facilities at Liberty and Lincoln Schools and to eliminating the use of school properties at 11 Engl<2 Street at an early data.

r
-4ESTIMATED COSTS (SUPPLEMENTARY)

Pupil Transportation

3 3G.G2Q

Pre-Kindergarten Program

6,GOO

Higher Horizons

25,000

Adult Education

2 ,GQG

Consultants Fees TOTAL

5, GOO
2 69,000

A Rebuke To Time"
Things are tough enough all over without Time Magazine making them worse. In its soupcd-up, breezy manner in its July 12 issue it contains this item on Engle\vood. "In 1954 the city school board redrew school boundaries in a way that concentrated Negro stndents in the Lincoln School district Negroes have fought the move ever since." Eme's writers should be more careful. If they had read any of the documents on the Englewood school [situation they would be aware that Frederick W. Raubingcr, commissioner of education, has gone out of kis way in all his reports to point out [hat the Lincoln School racial imbalice is not intentional, not planned, lot deliberately discriminatory but the result of housing and economic Ltterns. Lincoln School is the neighhood school-located in the heart the Negro district. At one lime, riien the area was predominantly ! Me, Lincoln School was predomi- ! intly white. As Negroes displaced j lites in the area, they displaced ' rites in the school. | In 1954 the Board of Education .de minor shifts in the boundary lues affecting Lincoln, Liberty, and Cleveland Schools. They were made 'y Dr. Harry L. Stearns, then super- j fctendent of schools, in an effort to lieve overcrowding in Cleveland ; tool. On appeal by a group of Nc- i :s, C o m m i s s i o n e r Raubingcr , [lifted the line between Lincoln and i Iberly so as to technically remove j y feeling that the board's action : Ld been directed against those few gro pupils.

\Kaps lltos \ it .Another

Tn the Kditor: , Jt i.s u n f o r t u n a t e th;i' ihc "lit--'. ; cord'' appears to he miablrr r un- i j u iMini; lo accurately report th*> i : statements a-nd a t t i t u d e s ol" those j f groups or individuals w i l h whom ' it is not iit agreement. In ;>n nrefiitn* of nn intvrv:?*.*. u i i h Ilie undersigned published in the "Record" last week, certain M.Tlement.s were attributed t me.; Later, t h e reporter who conducted' 'he interview, Mr. Martin -Side-,j ad mil ted freely, before \vilnc*.>**. I t h a t these >t;itementv a> published.' - \vrre campJetel\ incorrect, had j never been made hy me. a riff in j I fact were not the way he had n:--' ported the interview to the "Kf*jcord." He stated also t h a t ihis ar-' t ticlc had been w r i t t e n hy 3 mem-' i; ber of the staff of tho 'Record"' ( f r o m the notes he had s i[>mit'ed. j ' It is not loo d i f f i c u l t lo fiqurr o u t ; I just w h i c h member of the "Record.'"! i staff was involved in thi>. The story in Ihe "Record" !n% : ladder! lo the general confusion con-' jcerninji Ihc appeal of Commi&MOnorj Haubingcr's decision. The forts are j I these: The: Tiofice of intention to an-; , pf-al .vhich has been filed is 3 ' I mere formality, made necessary by' ! the fact that the Board of Kduca-S 1 lion has announced t h a t no pro-' ' posal woulrl be made public prior! to August 1. Since August t ends' i bo s t a t u t o r y time limit for the i j f i l i n g i>f any appeal from this d c - j ! cision, we woulrl be precluded from j t a s k i n g for state remedies after tha! j :cla(e, no m a t t e r Iiow intolernhle a ! plan Board m'slit cotne up w i t h . There are serious doubts conj ceiTiing the validity and *onstilu*. | j l u m a i i l y of Comniissioner H a u b i n - j l {tier's decision. Despite IIK lindrn**.| tt is against the laws of Ihis St;rtei ! for n member of n Bo.trd tf Kduca- i ! lion to exclude ?/ child from i! | ! school because of race, creed, or j , ; national ancestrv. In \ew York I j Slate, the M.ilvorne IJoaril of Kduc-j ! a I ion is appe;rlini: a similar decision ;. by Commissioner Allen. Tbr M:- ! nhassef. Uoard of Kducation is fijilii-ji j ine; the same kind of case in FeH-li icrnl Court. In N'e'A* Jersey, besides j jMiglcwood, there is opposition lo. j l h e Cfimmissioner's ruling tn Or, iinge and Platnficld. and ^Ic.-nlclair has already filed suit in Federal Court. Commissioner Kaubinxcr b:rs i i come up wilh :i rather novel ap-1 i prnnch in law. He has decided, in j j e f f r c t . I h a t the prat ice of a.vsi.cnin^ I \n lo school in Kn^lrwood 1 was le;0*nl and constitutional up Jo July 1, 1%'f. However, with no j cnnnji'.'s in the Constitution or HK % ! i law. he hns decider! I h a t tlu-v.* 'same pr.iclkes arc illegal and uncons(ilution;d a f t e r J u l y I. The asloundini; part of the whole d o - j ci>ion is thai Cnmmis.-inner i | R.TubmCer based hi^ dwision! on no evidence whatsoever, i Tlis own Hcarins Officer. Commis-; sioner GroezinCcr. .iaid publicly a: the heatings and il is in the o f f i c i a l Iransrr'pt. Ihat ''iitlle or no evidence has been adduced at the liear-j \W? to help t h r Commissionc:' : reach :i decision, and t h a t f l i c o p i n - j IOMS ut individuals w;is uol e v i d e n - j
1 i

Ti> draw a parallel, i' is as if, i n i I a neijlif.'1'ncc case, the dcfe'idant t ] was found not g u i l t y of \\\r , ' charges bnui^lii nu;iin>t h i m . an'i ! yet \v-a-- contpcltetl lo pay d;:ma.m- ' bec-inse ol some \e "li-elin-/ " on the part of the ;>l:uiilifi. A dc ' j cision like this could never Man.! j [ up in any court. To put it p l a i n K . \u- belie1, e ! | Il'.at tlie :?>.-.i^iiincu! of vlnld'cti !u ' ; school on I h*' b;i\i-; nf r,\rt* ?< in violation nf t h e 14th Amendment. ; and in contravention l thf l!)ii4 Supreme Court decision. De-pi tv I his own Mniement that he i- not ; , passing on the c o n s t i t u t i o n a l 'ine-.-i ( lion, t h e Ceinmissiom'r h,'.<. in rf- ; feet, ordered the Knclev.oud Muar;l ; ; of K d u c n l i o n to make race n factor ; i in assii;nmenl li> vchool, * How ulttvly ludicrot:- t h e Com:ni-sioner'< decision \vas c::ii bo! be illustrated iu tlie Omii'je casej \e lie .mii^c^ts that one u -iy | o L re l.'cvi n.U t he racin I i m ha I LI nee j ; at n "chool which has r. !>fi '"I. No-M j'.ro eprolhnf nl i*- tn combine iN | enrollment w i i h :i fid r' school, * h u - j makini: t w o iMcially imbaUrticeit ; | 75 ': ..25 '"- !tchool>. \Vnulo" il;<* ; (.'oiiiniissioni'r also advucali* liie ' combining uf Lincoln and i.tberiy Sc'iitols. in Kntlrv, iod. since itt. I resulting unbalance. preMimably.j | '.-.OHM not be ohji>i-ti(xuihlc lo him.*;] hi vopotT-e lo a wavr of inrti^tu-ti lion in N'ew %'ork a! the )in>pei-' i of m'cd1<\N>I> s b u t t l i i i ^ rhililivnl I back and hu'lii to .fvbu-vr .-onuv j ideal, temporary rthinc balance. C'nininiNMOnt'r Allt-n ha-; alreadv! been forced i back-track. The principle involved in Knulcwnod I is prccis*1>* the snme. In oiu- v>f t h e i r inon- -ciii/.nphrf.' ;ii<- ediiiMMal.-, tin- "Ret- r-i" -;;itci! "\V)i'n :...v- .;;- ..; :;. unequal trea'nu'iit, the f\y one j j C us i- in di'nycr t -in-; T h , . j j i | U a t i ' y all men lone lor and m a t c h 1 1
n aiifi iiiu .tim "ivr iui .-^. ..->,_

lelicvc.-; in rhis principle whole- lj iicarte'!! 1 -. The Cnui'^ h.i'. ' un:- 'j ounly h-ld thr.t i n r q u a l i t y i n c l n d f le-i Ui:tn ft\u;i\i :*.- v.t-lt ' ;> rflcifti.'il I n - y t i n r n l . lioth J i - ' Vovir very tnil}, I.OCIS PCC.ACH Unl Van \o-.!ran'' ;i\c,.iuKni:!-wood. N. J.

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

PROPOSAL OF A PLAN TO .COMPLY WITH THE DECISION OF THE STATE COMMISSIONER OF EDUCATION OF NEW JERSEY DIRECTING THE' ENGLEWOOD BOARD OF EDUCATION TO REDUCE THE EXTREME CONCENTRATI0N OF HEGRO PUPILS
i 'r

IN THE LINCOLN SCHOOL

dciard of Education Englewogd, N.J.

July 29, 1963

Bs it resolved by tha Board of Education of the City-of Engleuiood, Bergen County, New Jersoy, that in order to comply with tha directive of Commissioner Frederick M. Raubinger, Menu Jersey State Department of Education, dated: July 1st, 1963, which directive directs the Englewood Board of Education to do the following things: 1. To formulate a plan or plans to reduce the extreme concentration of pupils of the Negro race in the Lincoln School consistent with the principles and findings enunciated in this decision; 2. To submit such plan or plans to the Commissioner of Education for approval on or before August 1, 1963; 3. To put a plan, as approved, into affect at the beginning of

the 1963-64.school year. NOUJ, therefore, in compliance with seid directive, the Board of Education of the City of Engletuood, Bergen County, Meiu Jersey-,- submits the following plan, to take affect as of the opening of school in September, 1963, or as soon thereafter es 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 "assignment 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 bs assigned as nearly as possible, to the school nearest their-homes", b) provide for an even distribution of class loads 0) To permit tha children whose parents wish tham to remain at tha Lincoln School to remain there provided "that~it "is administratively and educationally" practicable to do so. 3. As a prerequisite to--thB"Bstablishment of the'ctty-mjiUB Btn^ggade school referred to in Paragraph (l) above,jreit.ner of the follow-? ..: ing two conditions must-occur: _ .--'. . . ---' 1) 125 or more present_stijdetrts_p.f__Lincoln~Schoo-l-must N0T-elffct""t'o"rsine"irr~for the 1963-64 term at Lincoln School or '_ .^.J : 2) The number of transfers from Lincoln School will result in class loads in Queries, Cleveland, or Roosevelt Schools which, in the opinion of the Board of Education, are educationally undesirable. -\J

To assign to Lincoln School all children of Kindergarten age residing in tha present Lincoln School district.

; -5.

-2-

To transfer the central administrative offices of tha Board of Education to the Lincoln School. To instruct the Superintendent"wo proceed immediately with all necessary arrangements, notices and procedures consistent with the laws of the State of-New Jersey to execute thase directives.

6.

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 ofpublic monies to implement any aspect of these plans. AND PROVIDED THAT: ' This Soar'd of School Estimate and the governing Body of the City of Englewood approves funds necessary to put these plans into effect according to the estimates attached hereto. AND FURTHER PROVIDED THAT: The Commissioner approves the above plan. ':'','

.E3TIi"A ;U COSTS
BOARD OF EDUCATION

Building Renovation - former Junior High School

Equipment

3 50,600.00

10/000.00

ffloving of Board Offices

700.00'
I

' / -J J . -' ;'

j .J ,
-'

Faculty Preparation
"

3,500.00 ./
"

-' /
' /

' j

Cleveland School temporary classrooms

5,200.00

J 1

ESTIMATED COSTS Pupil Transportation

(SUPPLEMENTARY) 8 15,000.00

Pre-Kindargartsn Program Higher Horizons

Adult Education

6,000.00

2,000.00

'' it ''
Consultants" I'BBS" 5,000.00

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY GERTRUDE P. FULLER, et al., Plaintiffs,

vs.
AUSTIN A. VOLK, et al., constituting the BOARD OP SCHOOL ESTIMATE OP THE CITY OP ENGLEWOOD; the CITY OF ENGLEWOOD; and JOHN H. PERRY, et al., constituting the BOARD OF EDUCATION OP THE CITY OP ENGLEWOOD, Defendants. Civil Action No. 847-63

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.

)
0 PI I 0N

) )

)
Appearances: Vorsanger & Murphy, Esquires, Attorneys for plaintiffs Gertrude P. Fuller, et al., Byj James T. Murphy, Esquire;

Breslin & Breslin, Esquires, Attorneys for defendants Austin A. Volk, et al., ccsTi^uting the Board of School Estimate of the City of Englewood,- and the City of Englewood, Byt John J. Breslin, Jr., Esquire; Sidney Dincin, Esquire, Attorney for defendants John H. Perry, et al., constituting the Board of Education of the City of Englewood;

Major & Major, Esquires, Attorneys for intervening plaintiffs Jerry Volpe, et al., By: James A. Major, Esquire;

Arthur J. Sills, Esquire, Attorney General of New Jersey, Attorney for intervening defendant Frederick M. Raubinger, By: Joseph A. Hoffman, Esquire, Deputy Attorney General; Herbert H. Tate and Barbara A. Morris, Esquires, Attorneys for intervening defendants Kenneth Ancrum, et al.t Morton Stavis and William M. Kunstler, Esquires, Attorneys for intervening defendant Deborah Spruill.

.RPGELLI.

District Judge:

The plaintiffs in this case challenge the validity I of a plan (hereinafter called the "Plan") adopted by the Englewood |Board of Education on July 29, 1963, entitled "PROPOSAL OF A PLAN [TO COMPLY WITH THE DECISION OF THE STATE COMMISSIONER OF EDUCATION I OF NEW JERSEY DIRECTING THE ENGLETOOD BOARD OF EDUCATION TO REDUCE ITHE EXTREME CONCENTRATION OF NEGRO PUPILS IN THE LINCOLN SCHOOL". The following facts are based on a stipulation made in court on December 16, 1963, and on the several exhibits parked in evidence on that date, including a map showing the ichool attendance areas in Englewood prior and subsequent to the pffeotive date of the Plan. The School District of the City of Englewood is organzed under the provisions of Chapter 6 of Title 18 of thdRevised Statutes of New Jersey, N.J.S.A. 18:6-1 gt sec;. The Englewood

.~~-

Ipard of Education consists of five members appointed by the Mayor, Bid its funds^for operation of the schools are subject to approval w the Board of School Estimate.

2.

The City of Knglewood is a comraunity with a popula/

tion of approximately 30,000 people, and has a geographical area / which measures roughly 2.7 miles in length and 2,3 wiles in width. The City has one jjunior high school, attended by children in grades 7, 8 and 9; and one senior high school, attended by children in. grades 10, 11 and 12. The controversy in this case centers around the elementary schools of Englewood, with its focus on the Lincoln School where the enrollment was composed almost exclusively of Uegro children. Prior to the adoption of the Plan, there were five elementary schools in Englewood, kindergarten through sixth grade, to which pupils were assigned generally on the basis of residence in certain designated attendance areas. As of September 19, 1962,

these schools, their enrollment, and racial composition, were as follows: School Cleveland Liberty Lincoln Quarles Roosevelt Enrollment % White 99.6 38.0 % Negro
.4

477 418 505 343 345

62.0 98.0 3.2 14.5

2.0
96.8 85.5

Prior to the commencement of this litigation, the intervening defendants herein, Spruill and Ancrure et al., filed petitions with the Commissioner of Education of the State of New Jersey, in which they charged the Englewood Board of Education with the maintenance of racially segregated schools cind with refusal to consider plans, including a proposal for a central intermediate school, to eliminate such racial segregation. The

intervening plaintiffs herein, Volpe et al., were permitted to intervene in the proceedings before the Commissioner,
3.

They

objected to the establishment of a central intermediate school, and sought to restrain the Board of Education free violating the neighborhood school principle and from expending public 'funds in furtherance of the changes demanded by the Spruill and Ancrua petitioners. The Englewood Board of Education denied that it was guilty of intentional segregation or discrimination. It asserted

that educational opportunities afforded Bnglewood children were equal, regardless of the school attended. The Board also pointed

out that the racial imbalance that existed at the Lincoln School resulted not from any action attributable to the Board, but from the fact that the neighborhood in which the school was located

was inhabited by a predominantly Negro population. In an opinion dated July 1, 1963, the Coawissioner directed the Bnglewood Board of Education to formulate a plan to reduce the extreme concentration of Negro pupils in the Lincoln School? to submit such plan to the Commissioner for approval on or before August 1, 1963? and to put a plan, as approved, into effect at the beginning of the 1963-64 school year. This decision

was based upon the Cccsnissioner's determination that the pupil assignment policies then in force in the Englewood School District resulted in an extreme concentration of Negro children in the Lincoln School; that attendance at the almost exclusively Negro Lincoln School engendered feelings and attitudes in pupils which tended to interfere with learning? that such continued concentration of Negro pupi^s^as existed at the Lincoln School constituted a deprivation of educational opportunity under New Jersey law for those pupils compelled to attend that school; and that reasonable and practicable means, consistent with accepted educational and administrative practice, could be devised to reduce the racial concentration in the Lincoln School. 4 . The Commissioner also found

CUUJ*.TICKS OF TOE MANUSCRIPT DIVISION, LIBRAE CF CCNGRESS

that there was no evidence in the case before him of any deliberate attempt by the Englewood Board of Education to segregate the pupils in its public schools by race. Acting pursuant to this decision by the Commissioner, the Englewood Board of Education formulated the aforementioned Plan, and submitted it to the Commissioner for approval. Commissioner approved the Plan on August 1, 1963. directed the Board to taXe the following action: "1. To establish at the former Junior High SC)K>O! 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 assignment 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, provide for an even distribution of class loads, to perait the children whose parents wish them to remain at the Lincoln School to remain there provided that it is administratively and educationally practicable to do so. The

The Flan

b)

c)

3. As a prerequisite to the establishment of the city-wide sixth-grade school referred to in Paragraph (1), either of the following two conditions must occur:

1)

125 or more present students of Lincoln Schoe-1 must NOT elect to remain for the 1963-64 term at Lincoln School

2)

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, are educationally undesirable.

4. To assign to Lincoln School all children of Kindergarten age residing in the present Lincoln School district.

5.

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 jill necessary arrangements, notices and procedures consistent with the laws of the State of New Jersey to execute these directives."

Meanwhile, on July 16, 1963, the Volpe group had filed an appeal from the Commissioner's decision of July 1 to the State Board of Education. The State Board affirmed the Cocranissioner's

decision, and from that determination the Volpe group appealed to the Appellate Division of the Superior Court of New Jersey, which appeal has since been withdrawn. In addition, the Volpe

group, as well as the Fuller plaintiffs in this action, filed complaints in the Chancery and Law Divisions of the Superior Court of New Jersey, in which they sought to enjoin the expenditure of funds to implement the Plan. Injunctive relief was denied to

the Volpe and Fuller plaintiffs, and appeals taken from these decisions are presumably still pending. Following the Commissioner's approval of the Plan, Dr. Mark R. Shedd, the Englewood Superintendent of Schools, sent to the parents of the 325 pupils in grades one through five of the Lincoln School a letter and questionnaire, in which the parents were asked to indicate whether they desired their children to remain at the Lincoln School or be assigned to the Cleveland, Quarles or Roosevelt Schools. The returns from these question-

naires, as of August 21, 1963, showed 242 acceptances, .of assign^ ments out of the Lincoln School and 21 preferences to remain at Lincoln. On August 19, 1963, the Board of School Estimate certified the sum of $53,000.00 to implement the Plan, which sum was transferred by the City of Englewood to the Board of Education on or about September 11, 1963. In addition, $50,000.00 of bond /' 6.

REPRODUCED FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION, LIBRARY CF CCNGRE

money was transferred by the Board of Education from the Improvement Authorization Account to the Capital Outlay Account. total sum of $103,000.00 was allocated as follows: Building renovation at 11 Engle Street Equipment for 11 Engle Street Moving Board offices from 11 Engle Street to Lincoln - School Temporary classrooms at Cleveland School Faculty preparation Pre-kindergarten program Higher Horizons Adult education $50,600.00 10,000.00 700.00 5,200.00 3,500.00 6,000.00 25,000.00 2,000.00 The

When the 1963-64 school term opened on September 4, 1963, approximately 125 Lincoln School pupils, grades one through five, were assigned to the Cleveland, Roosevelt and Quarles Schools in accordance with the Plan. The full Plan did not go into effect at this time because the renovation of the building at 11 Engle Street had not yet been completed. The Fuller plaintiffs filed their complaint in this Court on October 11, 1963. They named as defendants the City of

Englewood, and the members constituting the Board of School Estimate and the Board of Education of that City. Plaintiffs sought to enjoin the appropriation and expenditure of public funds to implement the Plan, and to have such appropriation and L_ expenditure, as well as the Plan itself, declared unconstitutional and unlawful. They predicated their right to relief on the Fourteenth Amendment and their status as taxpayers of the municipality?

7.

REPRODUCED FRCM THE COLLECTICHS CT TOE M&NUSCRIPT DIVISION, LIBRAE* CF CO*

"The Fullers complained that, under the Plan, the neighborhood school policy, pursuant to which children beneath the junior high school grades had been assigned to attend schools on the basis of residence within a particular attendance area, regardless of race, was abandoned; and that children from the entire city were now required, because of racial considerations, to attend a sixth grade school in the industrial area of Englewood at 11 Engle Street. They also complained that they were unduly

discriminated against on account of race, because the children in grades one through five in the elementary schools, other than Lincoln, were not given a right to vote on the effectiveness of the Plan. Another objectionable feature of the Plan, according

to plaintiffs, was that the children residing in the attendance areas of the elementary schools, other than Lincoln, were not permitted to attend schools outside of their previously established attendance areas. These latter two provisions, it was

alleged, denied equal protection of the laws to the pupils in four out of the five attendance school areas, and gave a preference to the Lincoln School pupils that was based solely on race and color. On October 14, 1963, plaintiffs obtained from this Court an order directing defendants to show cause why they should not be enjoined from appropriating or expending public funds to implement the Plan. At the hearing on October 21, 1963, the order

to show cause was discharged on the basis of an agreement among the parties that defendants spend no additional money, other than for normal operating expenses, in furtherance of the Plan, and that every effort would be made to fix an early date for final hearing. In addition, at this hearing, the Volpe group was

permitted to intervene as plaintiffs in the action, and the

8.

Commissioner of Education was allowed to intervene as a defendant. A motion by the Commissioner to dismiss the complaint for lack of jurisdiction was also heard on October 21, 1963, denied. Subsequently, the Commissioner applied for leave to and

file an interlocutory appeal from this decision, which also was denied. Thereafter, the Commissioner, who had not joined in the

above-mentioned October 21 agreement, made applications to the Court of Appeals for this Circuit and to the United States Supreme Court for leave to petition for a writ of prohibition on the jurisdictional issue. The Court of Appeals denied the

Commissioner's application on December 3, 1963, and the Supreme Court took like action on April 20, 1964. On October 28, 1963, the renovations at 11 Engle Street were completed, and the remainder of the Plan went into effect, as followsj all sixth grade pupils in Englewood were the remaining pupils at

assigned to the 11 Engle Street School?

Lincoln School, grades one through five, were assigned to the Roosevelt, Quarles and Cleveland Schools; Lincoln was eliminated

as an elementary school, except for the kindergarten grade and trainabla classes; and finally, the offices of the Board of

Education were established at Lincoln. As of November 12, 1963, after the assignments contemplated by the Plan had been made, the composition of the student body, grades one through six, of the elementary schools in Englewood was as followsi

9.

'IMt CULLECTICNS OF THE MANUSCRIPT DIVISION, LIBRARY OF CCNGRfSS

3t of Pupils Engla Street (6) Cleveland (1-5) Liberty (1-5) Roosevelt (1-5) Quarles ( - ) 15 290 547
283 310 301

X White 58.3 66.3 39.0 65.8 81.4

% Hegro 4. 17 33.7 61.0 34.2 18.6

On November 15, 1963, the Volpe intervening plaintiffs, as parents of children attending the Englewood public schools and as taxpayers, filed their complaint, in which they joined in the prayers for relief in the Puller complaint filed on October 11, 1963, and additionally sought to restrain the Englewood Board of Education and the Commissioner of Education from interfering with the attendance of their children at their neighborhood schools. These plaintiffs alleged that, under the Plan, their children, solely because of color, were no longer permitted to attend the school located in their neighborhood, and were recjuired to attend a sixth grade school established for the sole purpose of forcibly intermixing white pupils with Negro pupils. They complained

that the Plan became operative by vote of the Negro first through fifth graders of Lincoln School, and that no opportunity was given to students in the other elementary schools to vote on the effectiveness of the Plan. They claimed that the Plan, therefore,

resulted in a violation of rights secured to them and to their children by the Fourteenth Amendment. ^x^

The Fuller plaintiffs have now moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. TfH intervening Volpe plaintiffs joined in the motion. Affidavits for and against the motion have been filed. A hearing was held

on January 23, 1964. The Englewood Board of Education took the

10.

position that the existence of disputed questions of fact would preclude the granting of the summary judgment motion, but suggested that if the Court concluded otherwise, the state of the record was such as to justify summary judgment in favor of the defendants. The other defendants also contended that there were

disputed issues of fact, and that there should be a final hearing for the purpose of adducing additional proofs. In addition, at

this hearing, a motion by the intervening defendant Spruill, joined in by the intervening Ancrum defendants, to dismiss the complaint or, in the alternative, to stay further proceedings in this Court, was denied. was also denied. A consideration of the affidavits filed on the sunsnary judgment motion is now in order. The affidavit filed by the Leave to appeal from this determination

plaintiff Gertrude P. Fuller in support of the motion adds nothing to the stipulation of facts and the allegations of her complaint, which have been discussed earlier in this opinion. The affidavits filed on behalf of the intervening defendants Ancrum and Spruill likewise make no factual contribution to the case. These affidavits merely seek to show that additional

factual as well as expert testimony should be taken on the juestion of the reasonableness of the Plan before the Court indertakes to decide the case. In an affidavit filed on behalf of the Englewood Board >f Education, Dr. Shedd states that race, creed, and color are in 10 way considered in making assignments of children to the public chools of Englewood; that in connection with the Plan, all

ixth grad^children in Englewood were assigned to the Engle treet School, without regard to color or to the desires of their

1. 1

parents; and that the reasons only the parents of the Lincoln School children, grades one through five, were given the right to / vote the Plan into effectiveness were that theirs were the children who/; according to the Comnissioner's decision of July 1, 1963, were being denied equal educational opportunity, and that theirs were the children who, if they so chose, would be moved out of Lincoln School to attend a different school. Dr. Shedd,

who holds a degree of Doctor of Education from Harvard University and has had thirteen years of experience in teaching and in school administration, gives his expert opinion that the Plan is educationally sound. He also points out that, in any event, the

continued use of Lincoln as an elementary school was limited, because of its age and physical condition. He further states

that the educational opportunities for the children assigned to the city-wide, sixth grade school at Engle Street are superior to opportunities previously available at the individual elementary schools, because of the pooling and consolidation of resources. Finally, according to Dr. Shedd, the distances traveled to the Engle Street School and the conditions of travel do not constitute undue hardship or safety hazards for the children, In the affidavit filed by the Commissioner, he recites that he appointed a committee of six expert educators to maXe a study of the situation existing in the Englewood public schools, and sets forth a brief biographical profile of the members of the committee. This committee submitted a report to the CommisThe report, which the Commissioner

sioner on October 5, 1962.

states he considered in preparing his decision of July 1, 1963, disclosed that, among the Negro pupils at the Lincoln School, achievement scores were lower, retentions in grade were higher, high school records of graduates were poorer, and drop-outs among graduates were higher, as compared with the Negro and

12.

l-'JIJ 'FL -'L'' u^^>

UT

iric. i'tf1

white pupils in the other elementary schools.

The Commissioner

states that, in his opinion, "a stigma attaches to attendance at a school whose earolljnent 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," The Commissioner found that these conditions

existed at the Lincoln School, not due to any deliberate action by the Englewood Board of Education, but because of the segregated living pattern of the neighborhood. Notwithstanding the

lack of intentional action by the Board, the Commissioner was of the opinion that since several reasonable solutions existed, the Board was under a legal obligation to take appropriate steps to mitigate or eliminate these conditions at the Lincoln School. Finally, the Commissioner states he believes that the Plan is an educationally sound method of carrying out its objective. The Court is satisfied from an examination of the record made in this case that the material facts necessary to decide the constitutional issue raised by the pleadings are not disputed, and that therefore there is no need to delay the matter further by the taking of additional proofs. The provisions of The circum-

the Plan have already been recited in this opinion.

stances surrounding the adoption and operation of the Plan, its purpose to reduce the extreme concentration of Negro pupils in the Lincoln School, and its effect on the racial composition of the individual schools in Englewood have all been stipulated"; c Even the evidence that the Plan is educationally sounchhas not been challenged. The constitutional issue, put simply, is

whether or not the Plan, in its operation, deprives plaintiffs * of any "of the rights secured to them by the Fourteenth Amendment to the United States Constitution.

13.

i1 DIVISION, LIBRARY op (

The plaintiffs, who acknowledge that the material facts in thia case are free from dispute, contend that these facts demonstrate that the Plan was adopted solely out of racial considerations, that it discriminates against the white pupils because of their color, and that it is, therefore, unconstitutional. Plaintiffs argue that since in this case the school

attendance areas were honestly drawn without regard to race or color, and racial imbalance in the schools resulted because such attendance areas are populated almost entirely by Segroes, there is no affirmative duty on the part of the Englewood Board of Education to blend Negro and white pupils in any particular school to eliminate such racial imbalance. Since the Constitu-

tion is supposed to be "color-blind", plaintiffs argue, the state is constitutionally prohibited from requiring the Board to take racial factors into consideration in order to eliminate the extreme concentration of Negro pupils in a particular school. It cannot be seriously disputed that racial considerations were a motivating factor in the formulation of the Plan. The school attendance lines in this case were redrawn to eliminate the condition that the Coiranissioner found to exist at the Lincoln School. This poses the question as to whether or not a

local board of education may take race into consideration in redrawing school attendance lines in order to reduce the extreme concentration of Negro pupils in one of its public schools, where such concentration admittedly resulted, not from deliberate state action, Jiut from de facto or adventitious segregation. Plaintiffs place great reliance on the case of Bell v. School City of Gary, Indiana, 213 F.Supp. 819, aff'd. 324 F.2d 209 (7 Cir. 1963), cert, den. 32 LW 3385 (1964). That

action was brought on behalf of Negro children to enjoin the

14.

tttll 1ME (JULLBCnCNS CT TOE MBWSCRIPT DIVISION., LIBRARY CF CCNGKESS

maintenance of racially segregated public schools in Gary, Indiana. The evidence satisfied the district court that there

was no intent or purpose on the part of the defendant to segregate the races in certain schools. The plaintiffs in that case

contended that, regardless of the motive or intent of the defendant, actual segregation of the races existed in the schools because a large percentage of the Negro children were required to attend schools that were totally or predominantly Negro in composition, whereas a large percentage of the white students attended schools that were totally or predominantly white. They took the position that there was an affirmative

duty on the part of the defendant to integrate the races so as to bring about, as nearly as possible, a racial balance in each of the schools in the Gary school system. The district court,

in rejecting these arguments and dismissing the complaint, held that the defendant did not have an affirmative constitutional duty to alter racially segregated attendance districts, resulting from the application of the neighborhood school policy in residentially segregated areas. On appeal, the Court of Appeals

for the Seventh Circuit affirmed, and the Supreme Court denied certiorari on May 4, 1964, Several other federal courts have taken the same view as the court in Bell on this question of the constitutionality of de facto segregation. Bricrgg v. Elliott. 132 F.Supp. _t_ 776 (E.D. S.C. 1955); Henrv7v7x-Codsell. 165 F.Supp. 87 (E.D. Mich. 1958); Evans v. Buchanan. 207 F.Supp. 820 (D. Del. 1962); Webb v. Board of Education of City of Chicago, 223 F.Supp. 466 ( . . 111. 1 6 ) ND 93. Some courts have disagreed. Blocker v. Board N.Y.

of Education of Manhasset, Hew YorX, 226 F.Supp. 208 (E.D.

1964); Branche v. Board of Education of Hempstead, 204 F.Supp. 15.

\-ui ,i fk,-j-ujHS> ur unt

DIVISION, LIBRARY OF CONGRESS

' 150 ( . . N.y. 1962); Jackson v. Pasadena City School District. ED 382 P.2d 878 (Calif. Sup. Ct. 1 6 ) 93. In each of the above cited cases involving this issue of the constitutionality of de facto segregation, Segro plaintiffs sought to compel local boards of education to take affirmative action to reduce or eliminate de facto segregation in the public schools. Here, the Englewood Board of Education has already acted, and white plaintiffs are now seeking to have that action set aside. Thus, under the particular facts of this

case, the issue before this Court is not whether a local board of education must or is constitutionally required to act, but rather whether a board may or is not constitutionally prohibited from acting. Since the summary judgment motion was argued, both the Supreme Court of New Jersey and the Court of Appeals of New York have handed down decisions in cases that have quite similar factual situations to the case at bar. In Korean v. Board of Education of Montclair, decided on May 4, 1964, and not yet reported, the New Jersey Supreme Court held that, in formulating a plan which provided for closing down one school and transferring its students to other schools in the school district, a local board of education could take racial factors into consideration, where the board's moving purpose was in furtherance of the constitutional mandate against segregated j, schools and where all pupils were treated^*} an equal and reasonable manner. In that case, a number of white pupils attending

the Montclair schools alleged that they had been discriminated against, since the pupils in the closed junior high school were given a choice as to which of the three other junior high schools they could attend. The white pupils claimed that the Board of

16.

ur inr. mmust-tufr UJ.Vit.lUN, LIBRARY CF CCNGRESS

Education was applying a double standard of pupil assignment, since they were required to attend their neighborhood schools while the pupils front the closed school, which had a Negro population of approximately 9O%, were permitted to attend schools outside their neighborhood. The white students argued that this

double standard of pupil assignment was racially motivated, with the object of bringing about racial balance in the junior high schools in Montclair, and therefore was discriminatory and in violation of the equal protection clause of the Fourteenth Amendment. In Balaban v. Rubin, decided on May 7, 1964, and reported in 32 LW 2600, the Court of Appeals of New York held that a local board of education could take racial factors into consideration in establishing school attendance zones, where the plan adopted excluded no one from any school and had no tendency to foster or produce racial segregation. In that case, a number

of white school children in BrooXlyn claimed that they were being discriminated against, by reason of their inclusion within the school attendance area of a newly-established junior high school for the purpose of bringing about a racial balance in that school. This Court is in agreement with the principle enunciated in the foregoing state court decisions that a local board of education is not constitutionally prohibited from taking race into account in drawing or redrawing school attendance, lines _t for the purpose of reducing or eliminating de f actcT^segregation in its public schools. In grown v. Board of Education, 347 U.S.

483 (1954), the Supreme Court of the United States determined that Uncial segregation in the public schools violates the equal protection clause of the Fourteenth Amendment, in that such

17.

inc. . .. .1-1. i-IHM-. ut int MflNUbCKLFI DIVISION, T.TRRAKy CF CCNGSESS

segregation discriminates against Hegro pupils.

In essence, a

principal contention of plaintiffs in this case seems to be that racial integration violates the equal protection clause of the Fourteenth Amendment because such integration discriainates against white pupils. Plaintiffs have not shown, nor does this

Court believe, that racial integration, per se, discriainates against white pupils. Only if specific provisions of the Plan

do in fact discriminate against plaintiffs because of their race, could it be said to result in an infringement of their constitutional rights. Plaintiffs allege that there are three specific forms of racial discrimination against white pupils in the Plan. First, all sixth grade pupils in Englewood are required to

attend the Engle Street School, which is located outside the previous attendance areas of some of these pupils. Second, the

pupils in the elementary schools, other than Lincoln, were not given the right to vote on whether or not the Plan would becoae effective. Third, these other pupils, unlike those attending

grades one through five at the Lincoln School, were not given the privilege of attending a school outside their neighborhoods. Viewing the Plan as a whole, and taking into consideration the factual background leading up to its adoption and the objectives sought to be achieved thereby, it is difficult to see wherein the Plan is unreasonable or discriminatory in its i. application. The city-wi3e^\^ixth grade school established at 11 Engle Street applies equally to all Englewood sixth graders, and no hardships are shown to have been suffered by plaintiffs or their children as a result of this provision. It is no

different in principle from the single, city-wide junior and

18.

senior high schools which exist in Bnglewood.

While the right

to vote on the effectiveness of the Plan was limited to the parents of the children in grades one through five in the Lincoln School, these were the children whom the Board proposed to move out of their neighborhood school, and therefore were the most logical ones to be consulted. The assignment of these children

to the other elementary schools in Englewood was determined under the Plan by the Superintendent of Schools on the basis of certain criteria, which took into consideration an even distribution of class loads and distances of the other elementary schools from the residences of the relocated Lincoln School students. Finally, it is unrealistic to argue that since the students at the Lincoln School, grades one through five, were given an opportunity to attend schools outside their neighborhood, similar opportunity must be given to the pupils in the same grades in the other elementary schools to attend schools outside their neighborhoods. In the opinion of this Court, any discrimination that

may be said to exist in this case is not of constitutional dimensions. Moreover, plaintiffs have made no showing that they have been harmed by the operation of the Plan. As taxpayers,

plaintiffs must establish that their tax moneys are being spent for an invalid purpose. See Doremus v. Board of Education of

the Borough of Hawthorne, 342 U.S. 429 (1952); Massachusetts v. Mellon, 262 U.S. 447 (1923); Craropton v. Zabriskie, 101 U.S. 6O1 (80, 18) As parents, they must establish that their children are See

being discriminated against to their injury under the Plan.

Blocker v. Board of Education of Manhasset, New YorX, 226 F.Supp. 208, 227. Plaintiffs have failed in both these particulars.

1. ?

f
This Court finds no evidence that plaintiffs have been harmed in a constitutionally recognized way, either as taxpayers or as parents, by the action taken by the Englewood Board of Education in this case. Under these circumstances, plaintiffs' motion for summary judgment must be denied. Although defendants have not

formally moved for summary judgment, the Court believes, as the Englewood Board of Education suggests, that it may enter summary judgment for defendants. (2nd Ed. 1953). See 6 Moore's Federal Practice, J56.12

Since the Court has already determined that

there exists no genuine issue of material fact to be tried and that defendants are entitled to a judgment as a matter of law, summary judgment will be entered in favor of defendants against plaintiffs. Counsel for defendant Englewood Board of Education

will please submit an appropriate order on notice to all counsel.

20.

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TO.-

'Attorney for Board of School Eatiaate of Englewood, New Jersey wd t,h- City of Englewood, N.J. re*'. , New Jersey Attorney fcr Board of Education of City of Englewood \fj wst Pall?ad -Avenue Erigjowoodj N?w Jeroey ARTHUR J. SILLS, Attorney General of Mew Jeroey Attorney" of Frederick M. Raublnger Stsle Kouae Annex Trenton, New Jersey
JAMKS T.

JV*N J. B.'iKs:.r.N, JR., ESQUIRE

sir-KEY OINCIV, ESQUIRE

Attorney of Gertrude P. Puller et all 1 Engle 3tr<?et

Englawood, Wew Jersey

MURPHY, ESQUIRE

EH?ERT H. TATE and BARBAjbA A. MORRIS, ESQUIRES Attorneys for Anoruw ^9 M^disor. Avenue M o r r r l a l r , Now Jersey ARNOLD BROWN, ESQUIRE Attorney of Ancrua i>5 West Palisade Avenue Englewood, New Jereey WILLIAM M. KUNSTLER and MCTOM STAVIS, ESQUIRES Attorneys of Spruill 7A^ Broad Street Newark, Nw Jersey

.--*> i

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^*fi

Mr

T-.-~^'

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Dear Mr. Davis: Thank you for your note of July 3 and for the kind words contained therein.
I share your hopes for a speedy, equitable cad effective solution to the problcn of de facto segregation In Eigleuood. I thiqfc Cotaalssloner Baubinger's decision has moved us a long way In that direction.

Sincerely yoursy

.
GOVERNOR

M, Joba V. Davis 112 Rcadc Street Englevood, Sew Jersey July 30, 1963
JHK/cal

JOHN W. DAVIS 112 READE STREET ENGLEWOOD, N. J.

' I
July 3, 1963
D. 11,

The Honorable Richard J. Hughes The Governor of New Jersey State Capitol Trenton, New Jersey Dear Governor Hughes: Permit me to thank you for the interest which you have shown in corrj?c.ting. .racial imbalance in the Linco'n School in Englewood, New Jersey. Your stand has been one for improving the citizenship of our state. The matter is again in the hands of the Board of Education in Englewocd. It is my hope that said Board will produce a plan which will Jre*ln the highest interest of the youth of Enolewood amd tHe restoration of harmony and common understanding^ aj^onjB the citizenry.

13; rforce te Coll v deceased) :Ghee, College, treet te Techni

4AACP Member Horn. on 928, higher com. at. Edn. Central n. Nat. ie
. Office tion Dm Day of New Baptist, Basing

Again, thanks and congratulati

Sin

<ing ^public

1958;

DAVIS, John Warren, educator; b. Milledgeville, Ga., Feb. 11, 1888; s. Robert Marion and Katie (Mann) D.; A.B., Morehouse Coll., Atlanta, Ga., 1911, A.M., 1920; studied U. of Chicago, 1911-13; D.Litt., State College, Orangeburg, S.C., 1931; LL.D., Wilberforce Univ., 1939, Howard Univ., 1940, Va. State Coll., Morgan State Coll., 1952; Harvard U., 53;tfnarried Bessie Rucker, Aug. 24, 1916 (deceased), children - Constance "Rucker, Dorothy Long; m. 2d. Ethel M. McGhee, Sept. 2, 1932; 1 dau., Caroline Florence. Teacher Morehouse College, Atlanta, Ga., 1911-15, registrar, 1914-17; exec. sec. 12th Street Branch, Y.M.C.A., Washington, D.C., 1917-19; pres. W.Va. State College, 1919-53, president emeritus since 1953. U.S. dir. Technical Coop. Administration, Monrovia, Liberia, Africa, 1953-54. Special Director, Dept. Teacher Information and Security of NAACP Legal Defense and Educational Fund, Inc. since Jan. 1, 1955. Member Hoover's Organization on Unemployment Relief, Nat. Advisory Com. on Edn. of Negroes; mem. Nat. Land Grant Coll. Survey Staff, 1928, Nat. Advisory Com. on Edn., 1929; mem. Commn. on Instns. of Higher Edn. of North Central Assn. of Colleges, 1936-48; mem. exec. com. North Central Assn. Colls, and Secondary schs., 1947; mem. Nat. Edn. Assn. for Defense of Democracy Through Edn. 1945-52; mem. N. Central Assn. Com. on Evaluation of Accrediting Procedures, 1948; mem. Nat. Sci. Bd., Nat. Sci. Found., 1950-56; chmn. Nat. Commn. for the Defense of Democracy Through Edn., N.E.A., 1950-52; mem. U.S. Office of Edn. Wartime Commission. o/Member N.E.A., National Association Teachers in Colored Schools^president 1928) ; National Freedom Day Assn. fv.p. since 1948); Member of The Colonization Society of New York State; Trustee African-American Institute; Sigma Pi Phi Fraternity; Granted Harmon Award in Edn., 1926; Republican, Baptist, Home: Englewood, N. J. 1. Decorated by The Republic of Haiti in 1948 for increasing the understanding and good-will existing between Haiti and the United States of America. "Order of Merit" 2. Decorated by The Republic of Liberia in 1955 for making stronger the bonds of Friendship and good-will between the Republic of Liberia and the United States of America. "Order of the Star of Africa"

I/U. of Liberia, 1956; Dr. of Humanities, /. Va. State Coll., 1958; D.C.L.. U. of Liberia, 1959. ConsultantPeace Corps, 1961.

Englewood,New Jersey

^/1
The Board, upon receiving the opinion of Commissioner Frederick M, Raubinger in the Anderson and Walker cases, have conferred with its counsel. Since the Commissioner based his opinion on the proposition that a child was entitled to attend a school nearest his residence and has reserved decision in the Walker case pending a proposed new boundary line, the Board has requested Superintendent Harry L. Stearns to make a detailed survey of the residences of the pupils of kindergarten and first grade entering in September 1955. Arrangements have been made with Fairleigh Dickinson College to conduct this survey immediately. After such survey, the Board

will further discuss the entire situation with the Commissioner or one of his deputies. The Board feels that the opinion, holding that the Anderson case is moot, substantiates the contention of the Board refuting any charge of discrimination in that case. The Board fully agrees with the Commissioner on the abolition of the Lincoln Junior High School. The Board in 1953 issued its brochure containing its opinion to that effect and the testimony of the Superintendent and Board members before the Commissioner was to the same effect. The action of the Board in recommending to the present Council of the City the erection of a new Junior High School for all such pupils is a further substantiation of the Board.'s agreement with the Commissioner.

To Members of the Board: At 3:30 Mrs. Schambera gave me a copy of the Commissioner's decision on boundary lines. I have had no chance to read it, but a cursory glance indicates the following decisions: 1. The Anderson case is moot* 2. Segregation is not a factor in boundary lines, but the Englewood Board must draw new lines on the basis that "a pupil shall be educated in the public school nearest his residence unless there is some just and compelling reason for sending him elsewhere". This new line must be submitted to the Commissioner on or before July 1, 1955 and decision on the Walker case is reserved pending this information, 3. "the separate junior high school for the Lincoln School district must be eliminated by September 1, 1956, unless prior thereto a firm commitment is made to the Commissioner to provide for all junior high schools in Englewood new facilities which cannot be completed by September 1, 1956.

Copies of the eleven-page decision will be made for you as soon as possible. Sincerely yours,

May 19, 1955

Harry L. Stearns Superintendent of Schools

HLS:mw

State of New Jersey Department of Education 225 West State Street Trenton 25 August 1, 1963

Mrs. Winifred R. Schambera Secretary Board of Education Englewood, New Jersey Dear Mrs. Schambera: This is to acknowledge your letter of July 30, 1963, and the accompanying plan designed to conform to the Order of the Commissioner of Education in the case of Deborah Spruill, Kenneth Ancrum, et al, Laura Volpe, et al., v. Board of Education of the City of Englewood, issued on July 1, 1963. It is noted that the plan was adopted by unanimous vote at a meeting of the Board of Education of Englewood held July 29, 1963. After careful study of the plan, the Commissioner has concluded that it meets the requirement of the Order, and therefore the Commissioner approves the plan to be put into operation in September, 1963, which plan is outlined below: 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 assignment 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 the Lincoln School to remain there provided that it is administratively and educationally practicable to do so.

Mrs. Winifred R. Schambera

- 2-

August 1, 1963

3. As a prerequisite to the establishment of the city-wide sixthgrade school referred to in Paragraph (1), either of the following two conditions must occur: 1) 125 or more present students of Lincoln School must NOT elect to remain for the 1963-64 term at Lincoln School or 2) The number of transfers from Lincoln School will result in class loads in Quarles, Cleveland, or Roosevelt Schools which, in the opinion of the Board of Education, are 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. The Commissioner will retain jurisdiction in this matter until the plan is in effect. Sincerely yours, taf F. M. RAUBINGER Commissioner of Education

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

STATE OF NEW JERSEY

DEPARTMENT OF EDUCATION ' DIVISION OF ADMINISTRATION

OFFICIAL NEWS RELEASE

August 1, 1963
Phone: Trenlon EXport 2-2131 Extension 8421

FOR

RELEASE

Immediately
-

RAD SINGER APPROVES ENGLEtfOQD PLAN

TRENTON - Commissioner of Education Frederick M. Raubinger today mailed the attached letter ' > the Englewood Board of Education in reference to the plan submitted by t 'ard in order to comply with the Commissioner's order of

July 1, 1963. liiv. letter is self-explanatory.

BB

BERGEN COUNTY CHAPTER

221 PHEiPS AVENUE, CRESSKILL, N. J.

LO 8-8630

August 1, 1963
i discrimination ty fliryct. nonviolent methods

|The Honorable Richard J. Hughes l&overnor of New Jersey |The State House JTrenton, N,J. Dear Sir: Thank you for the time you graciously took from your crowded [schedule to share with us your interest and determination to see a [resolution of Englewood's controversial educational problems. I assume you are now familiar with the details of the plan voted by the Englewood Board of Education, The Board of Education has obviously devoted great care,-time and thought to the plan.. It is recognized that the present adopted plan reduces the number of Negro children at Lincoln faced with the handicaps of defacto segregation. It is recognized that he present plan shows the good faith and determination of the Board to act. It is recognized that the present plan represents first steps voted by the Board which is also considering other long range steps. But two factors cause considerable concern over the Board's plan now before Commissioner Raubinger for approval. We believe both Rhese factors need further attention in the interest of good educational Jolicy and to insure any lasting end to the bitterness, disharmony,, and trife in Englewood over the school problem. These concerns can be elimLnated without any conflict with the present plan or delay, and without Any embarrassment to the Board of Education. Bl,) The first concern is based on the continuation of Lincoln as a early all Negro school for an indefinite period,, with no finalized or oted long range plans by the Board. For this reason we believe the oEmissioner should retain Jurisdiction and not consider the Board Rorcpletely discharged of its responsibility under the Commissioner's rder. To amplify: A. After the optional transfers are completed, Lincoln school will still continue with a 9Q% concentration of Negro students.. (There is even a strong possibility that this will become concentrated to 100$ as the few white children now in Lincoln transfer out..) B~. All the inequality of educational opportunity and emotional harm resultant from a defacto segregated school will still be present for those in Lincoln.. .All theyfeense of stigma, inferiority, and feeling I of rejection.*.All the loss of incentive, all the handicaps that result, when with the best of efforts,.teachers become used to and

BOARD OF EDUCATION Englenood, Man Jersey August 1, 1963 PUBLIC MEETING AGENDA 1o 20 Call to order0 Resolution requesting 166^500=00 to implement plan approved by Dfo Frederick Rsubingsrr Csmmiagionsr of Education0 Action of tha Boards 30 Raaolution rsauasting |69p4G03OC for Action of ths Boards 4=, Ad jaurnmanto Action of ";hs Board?

WRS 8=1=63

, be

and

>ach member the County .fied by the / a statement of j-sary for the school

BOARD OF EDUCATION Englewood, New Jersey August 1, 1963 RESOLUTION WHEREAS, the Board of Education of the City of Englewood,

Bergen County, New Jersey, has received from the Commissioner of Education, State of New Jersey, the approval of a plan, which was submitted to him pursuant to the Commissioner's Directive of July 1st, 1963; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF EDUCATION OF THE CITY OF ENGLEWOOD, IN THE COUNTY OF BERGEN, NEW JERSEY, that in order to carry out the Capital expenditure portion of said plan that has been approved by the Commissioner, the amount of money estimated to be necessary for repairing, furnishing and enlarging existing buildings, under Revised Statutes of New Jersey R.S. 18:6-59, is 366,500,00, made up as follows: Building Renovation (former Junior High School, 11 Engle Street, Englewood, New Jersey) Equipment Moving of Board Offices (from 11 Engle Street to Lincoln School) Cleveland School Temporary Classrooms Total 3 50,600.00

10,000.00 700.00

5,200.00

3 66,500.00

and
BE IT FURTHER RESOLVED that the Secretary of this Board be and is hereby instructed and authorized to prepare and deliver to each member of the Board of School Estimate of the City of Englewood, in the County of Bergen, New Jersey, a copy of this resolution duly certified by the President and the said Secretary of this Board as and for a statement of the amount of money estimated by this Board to be necessary for the school purposes hereinabove set forth.

BOARD OF EDUCATION Englewood, New Jersey August 1, 1963 RESOLUTION WHEREAS, the Board of Education of the City of Englewood, Bergen County, New Jersey has under-estimated in its annual estimate under Revised Statutes of New Jersey R.S. 18:6-49, the amount of monies necessary for the current expenses for the school year 1953-1964, and for making emergency repairs, and to defray the expenses of certain emergencies which have arisen since the making of the annual budget, NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF EDUCATION OF THE CITY OF ENGLEWOOD, IN THE COUNTY OF BERGEN, NEW JERSEY, that in compliance with Revised Statutes of New Jersey R.S. 13:6-55, the amount of money estimated to be necessary for these emergencies is the sum of 369,400.00, made up as follows: Faculty Preparation Pupil Transportation Pre-Kindergarten Program Higher Horizons Adult Education Consultants' fees Stephen Jaworski, custodian (Retention beyond age 65) Repair of Roof at Roosevelt School Gymnasium wing due to wind damage Total and BE IT FURTHER RESOLVED that the Secretary of this Board be and is hereby instructed and authorized to prepare and deliver to each member of the Board of School Estimate of the City of Englewood, in the County of Bergen, New Jersey, a copy of this resolution duly certified by the President and the said Secretary of this Board as and for a statement of the amount of money estimated by this Board to be necessary for the school purposes hereinabove set forth. 3 3 3,500.00 15,000.00 6,000.00 U 7, - Jo 25,000.00
.' i
Q

J-G

2,000.00 5,000.00 4,900.00 T o<

6,000.00

69,400.00

hoards J ' u l l Proposal Goes To Dr. Rauhingcr i\l Trenton

i"

i"1

ii r

r*

&( < f(i^\r

KNfif.KVTOODThe full lexl of the Lincoln School consistent with f (he with Ihc proposal hy the Kn^lewood'' the principles a no! findings en tinHoard of L'ducation nf a plan In cialed in this decision: comply w i i h t h t - derision of |)j-.! ii. To suhmft such plan or plans I'Ycdenrk .M. Itaiihin^er. S t a l e t 'tun- In Ihe Commissioner of Kdncalion i mission^!' n! Kducaiion, din-d iri^ for approval on or he fore A u^usl Ihe KnKlrwood Kuan! lo reduce the,' I. inn:); roncenlration nf Xe^ro pupils in [ !). To pu! a plan. H.S approved, Lincoln Schncil. j.- prrsrnfd here-; into effect al the heuinninfl of the i lD(i.*Ui4 school year. irii h: He. it ro.ilvrd !y Ih.. ll.iard nf .\n\v, I In-re fore, in compliance Education of ( h e rn\f Kn-leuond. u i! It -aid direct ive. I ho Board." of Hcrpen County. ,\Vv.- .Jer.-ry. ilial Kdiiralion of t h e City of K.nqlein order tu rnmply u-i! It i he dj wood. Mermen County, .\e\ Jersey. reel ive (if <'unnm.--ioriei Frederick suhnni- the following plan, to take M. K.-iulim^er, .New Jersey SC'le ef'fec-i as of [ho opening of school] Department of Kdneat ion, dated: in .September. 1%".f, or as soon j July I, Iflfi.T, uhich directive directs I hereafter as buildint,' renovations j he KnL'Inu'ood Hoard of rMuraiion can he effected. I. Tn <"-lalilKh al ihe former .Iun-j Ili-h Sclmol Imiltliny al I 1 Ui reduce i he e>;i ,-i'tiie coticeni r a - ' ^le Strcc 1 !, a cit.v-\vidc sixlhtion of pupils ol the Xe^ro race in j du school lo which (ho Board

flMMB*^^"

! Proposed hv Englewood Board V

i_

School Program

assigns all sixth radc pupils of i.hf! RnfflewDOfl Public schools, To assign all pupils of grades one through fivr: rcsitlinfi in the. Lincoln School attendance district lo the Cleveland, Quarter and Roosevelt Schools, such assignment, to he determined hy the Superintendent on Ihc basis of the following criteria: a) define attendance districts | so thai, children of the Lincoln School district will be assigned as nearly as- .possible, to the school n'care I heir homes, h) provide for an oven distr hulinn of class loads, c) To permit the childrc whose parcnis wish them t 4 remain al. the Lincol School to remain there pr( vided that it is admini.strn t i ve 1 y a n rI cd u'ca tio nail praclicahle lo do >o. As a prerc(piisil(! to flu: oslab lishment of th city-wide fit! firacfr. school referred to in Par aur.inh (M above, cither of the following Uvo conditions musi occur: I) I i!fi or more present s t u dents of Lincoln School must NOT elect to remain for the TOfKMi4 term at Lincoln School

or
U) The number of transfers from Lincoln School will result in class load*; in Quarles, Cleveland, or h'oosovolt Schools which, in the opinion nf Hip Hoard of Kduealiori, are educationally undesirable. -I. To assign lo Lincoln School nl chiRlron of Kindergarten * residing in Ihe present Lincoln School district. 5. To transfer the erntr.il adminis trativc offices of the. Honrd o Kducalion lo the Lincoln School fi. To instruct Lite SuperintLMiduni in proceed immediately with al noct-ssary arrangements, notice," and procedures con.si.stenL with I he iiiw.s of tltir Stale of Now .Jersey lo execute these directives. Provided That: The plan meets the requirements of (he law and Hint Ihe Hoard's A l lorney gives assurance of immunity of Hoard members and Ihe Superintendent front taxpayers' suits rc.uardtnj; the expenditure of pu hi Simonies lo implement any aspect nf those plans. And Provided That: The Board of School Estimate and the governing Body of the Cilyj nl Englewood approves funds nc- 1 cessary lo put thono plann intn effect according lo the estimates attached hereto. And Further Provided Thai: The Commissioner approves (he above plan.

E.VCI.KU'OOD Th<> lnnR-raii5c| Prosra.n includin-J t!ie follnwin-j: enlarged and remodeled lacilinirrii'iilum anil huildini.' improve-j mont pni.^r.'tn). a-- |>!'rscn!nfl a thrl lies for iri| nf Kduciili'iii j science. n'l'tv 1 ni^lu by Ur. i .ndustria! and vocational. home economics. Mipcrinlcmlcnt o f ' library and instructional materials Phase I (1963-68) academic classroom?. A. Renovate- and extend facilities at Dwrjht Mnn">w liish School Englewood Junior High School C.rades (i-3 lu s e r v e - a comprehensive f o u r ' A .Mmior ili.^h School Prosram year seei.ndary school program I! Add I^-|J !n>srnf!!is In C'evc-! vear old children fealurins, speland, (Juarles and Koosevclt C. Adopt School organization K-5; broader curriculum offerings li-P,; n-12 more specialized instruction D. Abandon Lincoln School for regRrcaier flexibility in pro^rnm ular instructional pui~pr>scs and scheduling titHi/e as SysteivvWide 'renter wider varie'y of instructional IVr adiuini^.trali\'e and sup'-'rvima Lena IK s'lry .services curriculum a,id| m.u-e ''pecializi-fi facilities in instruction, maintenance and science, mathematics, imiusoper:.l ion. aduit sehun! extenirial sion, eerlain munici|ial func-l a r t s and hmiic pconnmics ! ions richer library resources. : !:. Ab.nid'in and dispose of Liberty: Elc'mcntnry Schools School Kindergarten through drade n i-1. C'llll inue UM- of I' Three school units: , Ili^h School u n t i l Cleveland: Primary School -150 of I'liasi- II. pupils Phaso II (1969.73) Intermediate. School -150 p u - J | A. rmislruc! in-'J() classrooms al pils Cleveland. Qu.-.rh's and Koose;JO-:i.1 C!as5rnom.s. veil. II. Abandon and dispose nf prop- Quarles: K 5 4.TO pupiL K; 17 classrooms. ' erhes at It Kn^le Slrrcl ; ('. Complelion of ('urriciilum ,ind Roosevelt: Primary School 'M' pitnils I'utldinM Improvement. Program. Intermcdial' 1 School .17.1 pu DwiglU Morrow High School ("ompn i hen>i\e Seenridary Schno! I

l!fi-2ft Classroom.s.

JEnglewood School I/ Adopts Formula to Complv With State Rule on Race8///<,3

.a, /
E.\GLK\VOODImme.li.-.ie steps Subject to the approval of Dr. j Roosevelt School.--, so lnat enough to comply w i l h Dr. Frederick M. Kaubinger. thc Hoard plans to set ,i t-iiihsruonis win be a v a i l a b l e tot,,.., ...v .....)i*i 1'i.ui.-. m M.-U classrooms will nc available for Ranhinger's directive request ing -j up sixth grade school for all j all. All pupils first to fifth grades plan for reduction < > ( conccnlration pupils of the Sixth Grades level, i at Lincoln School will be reof Negro p u p i l s in ihe Lincoln lo be hold at t h e Kngle Street! assigned lo Ihe three schools schools, and long range plans lo j School b u i l d i n g , lisfpfl above, hut these who prefer meet (lie needs of (he city's edu-/ FL^iabl/.shmeMl of (Fit1 Sixih Grade! lo remain at Lincoln School will iionl cational program for Ihe next | school c o n t i n g e n t upon I h c ' h e given l h a t option i f they apply decade were announced by the En* j lrfinr<T nf ;ii s t u d e n t s ; for i!. and e n o u g h - make t h i s Iewood Bnard of Education on : f r n - t i t h e L i n c o l n School In class- request .-< t h a t it is educationally Monday night. i rooms jn Cleveland, Qtiarlos and :md practically feasible. I Lincoln School attendance di.sI trier, kindergarteners will remain j at Lincoln School, and t h i s school j will also house special classes and | the Hoard of Education offices, o / i /G3i now housed at 11 Knglc slrcct. Attendance districts will be assigned to Lincoln School pupils by Dr. Mark Shcdd, Superintendent of E.VCLEWOOD - The v o l u n t a r y be provided w i l h transporl.-ilion | ' Sclmols - *> "ml as nearly as transfer of students from Lincoln from central points within thc Lin-! b l t } dWren will attend school School to Quarlcs. Cleveland, and coin School area to the new scnool j "Mr<'*t t h e i r homes. Roosevelt Schools and the cslab- t h r v \vonk! n Ft|H Text of PlansBoth imme" liihmc::!. of 5 4-yisir h i g h school j transportation would tola! npp-oxi- diafe and ^ng range on p age 2 and. 3-year j u n i o r high school h a v c j m a t e l y Slfi.OOO, whicli t h e commit-1 been recommended by thc Com-i toe feels is a s m a l l cost in compa-l 'J'ht- p l a n is contingent not only numity Relations Committee lo a l - 1 rison to t h e over-all m u n i c i p a l j on approval of Dr. Frederick M. leviate thc problem of racial im- budget of more t h a n $} m i l l i o n . j R a u b i n g e r . the Stale Commissioner balance in the City scfwols. 5. H i g h hon/cms prrtyr;inis. n n - f nf Ivfuealion. bul from Ihe finanworked Mayor A u s t i n N. Volk t h i s week j I'." ,workc;1 m ' L h-v t l u ' ""'' " f j e i 'trwpninl hv the Hoard of made public t h e seven-poim set ,j _\c implcmcnlcd jSchnol Kstim.ile and the I^nglcpublic [Me seven-po,..,. .T,. L , i as soon as possible, nod Mayor and Council. of recommendations that he had i received from the committee I 6. Rehabilitation (1 c area m | Not included in the proposal now Commissioner, bin through its chairman, Ned K c l d - j l l l c immediate v i c i n i t y of Lincoln before I be m a n , on July 8. School should he u n d e r t a k e n w i t h - o u t l i n e d in detail by Dr. Mark Shedd, superintendent, of schools, 1. The committee recommended i '' <ll 'I.ij. 7. Cunsideral iun should he given was a long-range p r o g r a m ot that Dwight Morrow High School be changed from a 3-ycar lo ;t 4- lo the e s t a b l i s h m e n t nf 3 pre-kin- curriculum and hutiding improveyKir high school, encompassing the dcrgnrLcn program lo assist in tlie ment, the net result of which would n i n t h through ihc t w e l f t h grade. educational development of chil- be to take care educationally of -all 2. Thc junior high school would] tll ' c n w ho may bo undcruchicvcrs. the pupils of Ihe school, over- a

Mayor's Committee Endorses Proposal

Full details of changes, assignment of p u p i l s and other information concerned with implementing the program w i l l be announced as soon as possible. Board members . stated. First action is thc approval [ o f thc plan by Dr. Jlaubinger, and that is to bo followed by presentat i o n to the Lioard of School Estimate and the Mayor and Council. i Basic costs for i m p l e m e n t i n g thc j immediate program were placed at i SoO.fjOO. for b u i l d i n g renovation at i the former Junior High School; IStO.OOO. for equipment; $700. for i removal of t h e Board offices to ,' Lincoln School; 33.500. lor faculty : preparation: and 55,200. for sell i n g Lip ol temporary classrooms u( Cleveland School. Supplementary costs were cited as SI5:000 for pupil transportation ilhe city being required lo provide transportation for children of primary school age living more th;m ;i mi If.1 from assigned school. and \'>r upper e l e m e n t a r y grades J i v i n g more Mian two miles from their assigned school; Sfi.C'OO. for the prc-kindcrgartcn p r o g r a m ; St.^.000. f'ir ;i higher horizons pro gram, aimed at enriching anc r!evc-l(jpiMg t h e educational back ground of slow learners and othei special classifications of pupils: S2.00(J. tor an a d u l t education program to a if I tin- parents of slou learnt-rs; a'ul S3.000. in consuilam.s fee> for t h e overall pro | sram.

the eighth grades, t h u s still remain-.'the com mi lint;' stateJ to Die. Mayor:*! lJ1^ *ir** sl-=I i^vnr 1*0=, 7 / inn ing a 3-year school. | "So long as Lincoln School remains j WOI J ] ^ oe ^tho extension and renova (inn predominant.lv uwignt iow BitcndinR Lin- j school, seeds of discord will con- Morrow High School to house a coin School_would be permitted t o | t i n u c lo cxist i n thc c o m m u n i ( _ y i f u l l four year secondary school transfer to Cleveland, Quarlcs, and j Evcry c f f o r t s h o u l d ,,e m a f ) c (grades 9 lo 12, instead ol the Roosevelt Schools, subject to the eliminate this discord. present grades 10-12.) Reorganizaavailability of space in these three "Thc Committee recognizes th:it tion of thc Englcwood Junior High schools. Assignment of all sixth- it has only begun its e v a l u a t i o n of Schoo! upon it.s completion to take grade classes into the new junior thc many areas nf concern which cnrc of grades 6-8, with three h i g h .school configuration would cxist in Englcwood and will con- educational centers established 3t provide approximately 250 spaces tinue to meet to explore all the Cleveland, (Juarles and ftooscvelL in these three grammar schools, areas of potential discontent and to i Schools set up w i t h Primary and thus giving openings for thc trans- attempt to make recommendations | Junior School divisions at each. fer of students from Lincoln School. for their solution." Thi.s p l a n also calls for utili/.a4. Children Irrmsrorring volThc Community Relations Com- Lion of Lincoln School for adult untarily from Lincoln School to thc mittee was appointed by Mayor school extension, .special cducatiothree other grammar schools would Volk to s t u d y thc immediate school j nal services and classes, and Board problem and to come up w i t h a s e t ' o f f i c e s , a b a n d o n m e n t of Liberty of recommendation? that would be School, Franklin School and evene q u i t a b l e to all the p a r t i e s in-1 t u a l l y ihe f o r m e r J u n i o r High vnlvcd. Serving on Ihc cnnimilU-v j School b u i l d i n g . Construction ol I with '-'dr. Fold man. are W i l l i a m C.i a d d i t i o n a l classrooms at the three Rlind, of 224 Cedar street, the llcv.j elementary school centers would George bonier, Pastor of St. John's be required both on short range ! ENGLEWOOD George Ilatab. L... uthcran Church; George Ii;itab, and long range liases. ' I chairman of the Human Relations Chairman of Ihe Knglcwood Human One oC Ihe features of thc : j Council of Englewood, ar.nounced ' t Relations Council, and John T. j Hoard's l;ill program as outlined, . yesterday that the Council i s ' i S p r u i i l . member of ihe Board nt\ d e v e l o p m e n t of a prc-kindcr planning a special public meeting! j l l e a U h and one of the petitioning j f i a r i c n program for children of 1 in thc near f u t u r e , following the J | parents. It beg^n its meetings i n ; w o r k i n f i parents, which will be set. ' | Board of Education's publication j ^a>"i up four vounysters 4 years of age i i of its plan drafted for the p u r p o s e ; ; According lo Mayor Volk, H i . . ' . | I ) ( l ovei . ( at l h c Englc Street' . of c o m p l y i n g with the State Com-; c o m m i l t c o considers i t s report a i i j u i u i i n ^ . It was slated this proi missioncr of Kdxicntutri's nrrl'-r I n r j .short-range program to meet t h e ' ,,,.]m , n;iy n o l bc rcady b c f o r c . j reduction nf r u c i a l imbalance in . ! requirements imposed by Stale j XoVL , inber L Lincoln Schc.nL ' C o m m i s s i o n e r of K d u c a l i ' u i K.'ede-' The H u m a n Itp'uilions | rick M". Raubingcr t h a t a p l a n lie I is now m a k i n g plans fur UK,* dis! developed for implementation by J ; cuss inn meeting, and is l i n i n g up j September, The committee's plan I 1 speakers for thc occasion. The aim:) | is also 'o be used as a point nf de| of thc meeting will be lo c l a r i f y ' ' ; p a r t u r c for the development of a ' i-1 and interpret the concepts a n d ; I long-range plan to solve ihc City's i-j details of thc Board of Education'; i needs in this area for the future. Xj plan and lo a r r i v e rt an objective*! } Thc proposed plan gives an opII | vicv/ of Us i m m e d i a t e , ami l o n g ; i porlunity to Lincoln School sluit-|rngp goals. Sp'.'akcrs and dat<- o f ; ! dents to attend other schools in y- the rriC'.'ti.'ig v/ill be annnimccfl in thc City, yel retains thc noighbor1 ihc near f u l u r c . i hood-school concept.

i Relations Council i P l a n s Discussion

En^lewood'.s Pnlleni $/
Patient spelling out in other places of ideas about how Englcwood should or should not act in connection with "desegregation" are highly beside the point. Trying to present such a program to a community in which integration has been a way of normal life for yearsand where operations under integration have been a skilled and smooth-running science for yearsonly demonstrate the fact that those writers remain so largely unaware of the basic facts of Englcwood. There are plenty of problems in connection with any school system's operations, and its enrollmentthe home factors, intelligence factors, race factors, and so fortharc only some of them. Integration has been a fact of n o r m a l every-day life here for decades, and people who know Englcwood are aware o that as a fact. The Enfflowoorl Hoard of E d u c a t i o n and the school administration have been a t t e n d i n g to such problems in connection w i t h the school system for years before there wa.s any national, or even county seat discussion on such matters. Englewood's teachers, are well trained to handle students of all kinds and backgrounds. None of these need any patient review of matters "on educational levels and lesser cultural stimuli" from either reporters or editorialists.

Such writers have missed from the start the entire point in the Englewood discussions, that even the normal terms involved in speaking 1 of school problems had to be revised and re-defined in order to present any kind of a case or problem here. Englewood's school policy has been color blind for years, and debates which have grown up in recent years on Lincoln School, the neighborhood school policy and student assignments have been largely on issues attendant on integration in its various aspects, not on whether or not there should be integration. The factor of motivation in school work was first raised within the community, and by local groupsnot outsiders or those who challenged the school situation. The rapidly changing picture on the national scene, as far as integration is concerned, is only beginning to be felt in Bergen County. Englcwood has been, by far, the most advanced in the county in its racial relations, and in the n u m ber and involvement of people of all backgrounds in the advance of human relationship factors. Englcwood. through its Community Chest, its Hospital, its churches, its civic, social and fraternal organizations has been working for years to develop a community of which all can be proud. With more attention of other communities to their own backyards and their own racial integration considerations, Englewood is well able to c o n t i n u e its d e v e l o p m e n t along patterned lines, even in a chaniiinii- world.

ENGLEWOOD PUBLIC SCHOOLS ENGLEWOOD, NEW JERSEY Dear Parent or'Guardian, In compliance uiith the Englewoad Board of Education plan for assignment of the Lincoln School children, grades one through five, approved by Frederick M. Raubinger, Commissioner of Education, State of New Jsrssy, and subject to the provisions listed below, your child will be assigned to Cleveland, Quarlos or Roosevelt School in September or as soon thereafter as possible. Enclosed ara two forms (Use ONLY ONE FORM FOR EACH CHILD IN'GRADES ONE THROUGH FIVE) FORM ' 1 - FOR CHILDREN DESIRING ASSIGNMENT OUT OF LINCOLN SCHOOL. # . FORM" # 2 - FOR CHILDREN DESIRING TO RE-WAIN AT LINCOLN 'SCHOOL No parent will be required to remove his child from Lincoln School who does not desire to do.so, except as indicated in Item 2-c below. Select ONE FORM, fill out and mail it.immediately in the-salf-addressed, stamped envelope provided for your convsnience. August 21, 1963 is the last day on which returns will be accepted. APPLICABLE PROVISIONS OF THE BOARD OF'EDUCATION PL&N2. To assign all pupils of grades one through five residing in the Lincoln School attendance district to Cleveland, Cuarles and Roosevelt Schools, such assignment to be determined by the Superintendent on the basis of the fallowing criteria; (a) Dafine attendance!- districts so that children of the Lincoln School District will be assigned ss nearly as possible, to the school nearest their home. (b) Provide for an even distribution of class .loads. (c) To permit the children whose parents wish them to remain -in the ____ _;l_yi\.c_0l!L_Schop3L to remain there provided .that it is administratively and educationally practicable to""do' so."" 4. To-assi-gn to-Lincoln School all children of Kindergarten age residing in the present Lincoln School District. PROVIDED THAT: The plan meets the requirements of the law and that the Board's Attorneygives assurance of immunity of Board Members and the Superintendent from taxpayers.' suits regarding the expenditures'of public monies to implement any aspect of these-plans. .--- AND PROVIDED THAT: ... .-;: The Board of School Estimate and the governing body of the City of :Englewood approve funds .necessary to put these plans into effect . accor.ding to the estimates attached hereto. ;:-."

NRSsLB 8/2/63

Mark ft. Shsdd Superintendent of Schools

IMPORTANT: USE.ONLY ONE OF THESE FORMS," select the ONE you want, SIGN YOUR NAME, write or print your ADDRESS, end mail it ir>lMEDIATELY in the salf-addrosssd, stamped envelope enclosed for your convenience/

FORM # 1 FOR CHILDREN DESIRING ASSIGNMENT TO OTHER ELEMENTARY SCHOOLS . Dr. Mark R. Shedd, Superintendent Englewood Public Schools 11 Engla Street Englewood, New Jersey Dear Dr. Shedd: I accept the assignment of my child to Cleveland, Quarles or Roosevelt School in accordance uiith the Board of Education plan, beginning September 1963 or as soon thereaftar as possible.

Signature of parent or guardian

Street Address

TEAR OFF HERE

_FJJRM _ #. 2 FOR CHILDREN DESIRING TO REMAIN AT LINCOLN SCHOOL Dr. Mark R. Shedd, Superintendent Englawood Public .Schools-11 Engle Street Englewood, New Jersey Dear Dr. Shedd: I wish to have my child remain at Lincoln School-during the 1963-64 school year.

Signature of-paren-t--or-guardi-arr

. Ertre~et"'A'~d dress"

PUBLIC SCHOOLS Enqleu/ood, Naw Jarsay

August 2, 1963

pasr feilou; Sixtr

Parent;,

scantiy the ETnglauiaod Scar:: of ducatian y o c s d '3 establish at tha former Junior Bigii School at 1- ngi.a Straac, a '--ity-u/ide s^nooi for all. public scnool sixth grade pupils in nglsu;aad. --tnaugh tha decision to creata this school was rade lin rosponsa to tha S t a t e d-_cation Commissionac'3 airactivss regarding tna _incoln ISchDcl, tria Board is of tha opinion that a cicy-^ida sixer; grade scnooi. can na an [flxciting sducatianal advant-jrs for all <jnildran vaith 2 graat many positive and onstructiva features. Wnil.-3 va racc:g:-.j.za that in .nany casas this will ra a less jco'ivanisn: arrangamant, *a ii-gnd tc cap:.^aiizs in aver;-1 possiDia a/ay Jpor tna advantages of a cit-/-id8 transolidacici of sixth ^rade ocudenta and taacnars to ImakB this a bat tar program t;,ian is posyib^j in aacn j.acai scnooi. I'Jiihila it is a bit sarly cc -za^l. ^uc jj.7 ,;j.2;TE in f'_!i_ ^c-ri^i-i. - evan > ~ C J C T y/a >nve tha Cammissioner ; s ;ocrcv.;". - tha t*;.nds ;" arocaad must ^3 assursa -afcra uia Icnn commit ourselves to t.hs arcgrarn complateiy - wa car! ancicipata a fa1.-, quastians now and reassure you ragarni.~g soino iasuas that :nay ba ^aissd. 1} Th3 :iuildi".q Is safa - An e x c a r t from tna S t a t s Scnoo- Building InsDaction Divisicn has rade a .c-.piscs survey of tr.a r'ormar J^piiar High 5cncol and hi.s raccjimancations xiLl hav bsan rnat bsfc-re ths building is occupied. rraval can ba -nads safa - Sixth gradars c*ra I , -2 ; . uiid 13 yaars old I children on wnam you, js parents, and -'8. as acr.--ji ;jaopia, rely to assist in G e t t i n g yai.-ngstsrs tc scnooi ?nd home, >Jitn xr.craasad police arotaction, crsatsr s e f a t y as = .-asLilt of ths nau/ ens-way c.'ir'f'.c jn tngla Streat-Grand Avanus, arc -.ith n.'ccar yards of instructicn c-s:d vjur.ion. travel to Engla Strsijt C3" ba -,i '

/".;

Trrinspcrcati.::'-. - \ .:nangs in transfertaG-.on oa-icv :""cr six' gradara is roi*/ plannsd. -Graver *'a snail cooperats in avgry -rrfv with parents and puo.LLc bus -c-io^.nias "ivmg local ruutas co assura cjnvaniant, safe and sconomicdl service. N_on_ri_'uiur cn_d luncn - jJj dafinitaiy intand tc Kdap tha cniidren at scnooi dt,ri;'itj tns neon liou.-, Tners will oa no ia^ks throur].n tha business districts asrrritted, -Ian? c-rs in process to prcvida cnildrsn with a ^noiasome lunch
3 soon as tha daci = i:;-: on -.nj sixth graos ^cr.oc,-. ^3 n-iaLJK J<af '.nica ^a sr.all communiHta ufith you and arrfige ~ 37 3 meating prior u jcnaul : a :.;p.^ni,ig to give vou tha ipnrti./;/. ty to vie* t~i<j r^rilitias .=<nc tu ^.leac -ha MiaritjaL'3 -^'"' tna faculty. iaasa accbpt my oars^nal n^^t ^ishaa for 3 pldaaauc G

summer.

Sinceruly

:"0ar)< R. .s 5upsr liir.onc'ant of Schools and faliu* S!;:th i]rada Parent

T
DEPARTMENT OF EDUCATION
175 WEST STATE STREET TRENTON 25. N. J.

AUG SJ

Auscust 6,

1963

Dr. Mark R. Shedd Superintendent of Schools Englewood Public Schools Englewood, New Jersey Dear D r . Shedd: i'his will acknowledge receipt of your l a t t e r ^ertainin:T to the proposed repair work to the cuildins: at 11 Ensile Street, Snglewood, ~:-.:ew Jersey. As indicated in a telephone r.essa^e to ;;r. ^arrity from Assistant Commissioner Kilpatrick. it is ir,y opinion that a r 5oard of Education in a Chanter VI school district ?:iay employ its own maintenance r!erso_nnel. to r.iake the necessary repairs to a school huildin.1. ~t is u n d e r s t o o d , of course, that the materials and supplias required for such repair will be purchased under contract t h r o u g h competitive biddinrr in accordance with the provisions of t h e School law. '.er --ours,

'orunssone

:.

Englewood Parents i k Obtain Court Ordeii

:

Central-School Planning Halted Pending Court .Hearing August 15

8/G/G3

.]

Englewood Eighteen Engle- and holds the central-school : wood parents yesterday obtained sixth-grade plan to be unconstia court order bringing to a halt tutional. . i the Board of Education's pro- City Administrator Rex Little! ceedings in plans to end de-facto said today that he had been adsegregation in the City's schools. vised by John Breslin, City AtJudge Arthur J. O'Dea in Su- torney that all action pertain-' ;perior Court, Hackensack, ing to the financial implements- 1 'signed a cause order filed by tion of the Board's plans must parents of sixth-grade students be stopped until August 16. as complainants, pending a hear- ,Mayor Austin ,N. Volk, chair-' i ing set for August 15. man of the Board of School Es> The order was filed in the timate, announced today that he' Chancery Division of the Court would not call the meeting of by the group's attorney James that board at which a decision A. Major. was to be reached on providing Signers of the complaint were monies for the establishment of Mr. and Mrs. Jerry Volte, Mr. the central sixth gra'de in the and Mrs. Louis Pugach, Mr.-and Engle Street school. Mrs. Allan Lasser, Mr. and Mrs. CITES INJUSTICE Bernard Wallach, Mr. and Mrs. Ottilio D'Alessio, Mr. and Mrs. Board Of Education President Saul Handler, Mr. and Mrs. Eu- John H. Perry announced today gene Clements, Mr. and Mrs. :hat the .school board will conEdward Bobbins, and Mr. and ;inue . organizing the adminisrative details involved in the Mrs. Lloyd Pollard. The complaint asks the Board banning until notified otherwise of Education to show why the >y its attorney. (Board should not be prevented The Board's desegregation ifrom initiating its desegregation plan, approved Thursday by ders.. Continued PageJlOColumn [plan as it affects sixth "

(Continued from Page 1) State Education Commissioner Frederick M. Raubinger, calls for establishing a citywide sixthgrade school at the now inactive Engle Street Junior High School. The plan also calls for reassignment of Lincoln School pupils in grades 1 through 5 to the City's three other predominantly white elementary schools. The complainants argue that their children who'' are to enter the sixth grade this fall have been qualifying themselves for study at that grade level in a neighborhood school. The Board's plan, it is argued, denies the students this right, and at the same time gives the complainants no voice in determining the course of their children's education. It is alleged that Lincoln School parents have been given a voice, since the latter are allowed to accept or reject the central sixth-grade plan.

STATE OF NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY DIVISION OF LAW

MEMORANDUM

TO:

Governor Richard J. Hughes

DATE:

August 7,

1963

FROM: First Assistant Attorney GeneralBotter

SUBJECT:

Enclosed is a news story in yesterday's Record. The Order to Show Cause issued by Judge O'Dea did not contain a restraining order. However, as we surmised, this order would be used as an excuse to delay all action until August 16, or until a decision is rendered on the Order to Show Cause. We note that the news story quotes John Breslin, who is now City Attorney for Englewood, as saying that all action pertaining to the financial implementation of the School Board's plans must be stopped until August 16 and Mayor Volk said he would not call a meeting of the Board of School Estimate to consider furnishing funds to implement the School Board's plans. Judge Collester signed an order for us yesterday allowing us to move on one day's notice to join Commissioner Raubinger as a party to this action and to move to dismiss the action for lack of jurisdiction of the court. It is noted that the appeal in the Englewood case to the State Board of Education urges the same grounds for reversing Commissioner Raubinger's decision as the complaint in this Chancery Division action. The plaintiffs in this action are the same persons who have filed an appeal from Commissioner Raubiner's decision. R. S. 18:3-14 clearly states that Commissioner Raubinger's "decision shall be binding until a decision thereon is given by the state board on appeal. " We contend that a collateral attack on Commissioner Raubinger's decision cannot be entertained by the Chancery Division nor can an injunction be given to restrain public officials from acting in accordance with that decision, so long as it stands and remains presumptively valid. Our motions are scheduled to be heard tomorrow before Judge Collester.

I}

-- '1

T. Botter cc - Attorney General Sills Deputy Attorney General Hoffman

CITY OF ENGINEwoou
EHOLB WOOD. N. J.
AUSTIN N . V O L K MAYOR

August 7, 1963
Mr. John H. Perry, President Board of Education 11 Engle Street Englewood, New Jereey

Dear John: iedged of a Proposal of a Plan to Receipt is hereby Comply with the Decision of the State Commissioner ol EducatiU of New Jersey, Directing the Enaiewood Board of Education to Reduce the Extreme Concentration of Negro Pupils in the Lincoln School, dated JulyZ9, 1963.
_ _ . . . . ! ia^-T-TTH nu , . j , jlM^ll"^JtL, l "" ll1 '*" 11 "'^ B - ' ^ * " ' ' * i ^ ^^ * * " *1 ^ " " * ' *^A ' ' '

'

As Mayor and Chairman of the Board of School Estimate, in my opinion which is verified by the opinion of our attorney, no meeting of the Board of School Estimate can be properly held until the pre-requisites in Paragraph (3) of the proposed plan are complied with. Furthermore, our attorney advises us that he has conferred with your attorney, Mr. Dine in, who concurs with this opinion. I wish to assure you that we have no desire to delay this matter unduly, but in view of the opinion of our attorney we proceed at this time.
Sine*rely.

Austin N. VoUc ANV/te

r ^ '

~~^

Forgotten Children -^/to-;

The children are becoming the forgotten people of Englewood. We are sure that if the racial issues and pressure gT'nip demands were removed from this matter the Board of Education would throw its hands up in holy horror at the makeshift proposals it has made. And so would the Commissioner of Education rind the Governor too, both of whom seem interested primarily in gratifying the pressure groups. The Board of Education, which is supposed to consider the welfare of the children above all, is actually attempting to push the children from pillar to post in a blind effort to meet the demands of a small pressure group. And if the school board's makeshift proposals arc permitted to stand (the State, in its great desire to appease the j pressure groups condones the local board's action) the children arc going to bo the losers. The Board of Education has proposed that a central sixth grade for all sixth graders in the city be set up at the condemned Engle Street Junior High School Building, which means that sixth graders at all the elementary schools would be rmpcd out of their neighborhood schools and forced onto Engle Street Further the board ft proposing that all children at Lincoln School who so desire may transfer to Cleveland, QuarJcs, or Roosevelt schools, thus also ripping thesa youngsters out of their neighborhood school, sending them to strange schools, upsetting the classroom balance, disrupting the entire system.
tw,

Destiny^
Declares
To the Editor, August 8, 1363 It is setting more t h a n tiresome to hear the Endowood White Supremacists repeat iheir claim that any change in school enrollment based on race is not only obnoxious to them, but also illegal. Interpretation of law is usually bused on an understanding of the intent of the law. Civil rights leg| islntion has always intended to protect minority rights, not obstruct them. When the law grants! equal rights, regardless of race.! creed, or color, it mc.tns ( h a t all persons .shall have an equal opport u n i t y to strive for (heir share o (he iKilional wealth. We deny that "I Opportunity when wo deny Negro children the same chance to levin as white children, Tlie recent order of State Commi.ssioner of Educnl/on Kaubinger,' ... , ,,i L u - . n i o n K a u b i n g and (he .s and the .subsequent plan proposed : by (he Hoard of Education, .ire in- [cndi'd to rectify Injustices which): nobody planned, hut which we all have- an obligation to help stop. ! I)t?snitij Ihe claims of many self- j styN-d experts on education, there ; n much nerd for improvement in ; ? Kfig[f i wrtt)d system of rducaion. Kxpert professional judge- ' ent h.'i.s attested In this at every ipm-iuniiy. The court* arc apt lo ileu to the profe.-wional.s and sup>rt Ihefr judgement
Only A F-i.r

LWV Likes Plan Board Proposes

To the Editor: Tlie following is a copy of a letter to the Board of Education' of Englcwood which we hope you i will print in your "Letters to the I , Editor" column. To the members of the Englewood Board of Education: We wish to commend the Board I of Education for h a v i n g worked ,out a serviceable plan of iniegra-t i tion for Englewood's elementary schools, The short range phase to start this September sen ins to us a good beginning toward the goals; of providing equal educational opportunity for nil our children; of acceding to the requirements of; Ihe State Department of Education; f and" of advancing the educational' quality for all the pupils in thn Englewood school system. The League of Women Voters of Englcwood is happy to support your plan and looks forward to its speedy implementation. Sincerely, (,M. N a f h a n ) TJLY TAMARIN 1st. vice-president League of Women Voters of '

v,ov,0

[Ji "Mi

A h.'i If-dozen acitJtor.s, claiming ID speak for tho overwhelming majority of voters and citizens, tmvc ucd every opportunity to obstruct change. This .i.ime handful appears at every public meeting, but has never offered any proof that all of iheir views are I supported by any large numbers' of people. 1 Knfilcwond is a fair-minded com-, m u n i l y composed of people of very diverse backgrounds. H is difficult lo net common agreement! on almost any subject. It would be! indeed surprising if everyone i n : Englewood could ever agree on: any plan which would stop (he, two-year too-long .struggle to e n d j racial-tension. It would be equally surprising to hear that & majority of citizens do not want tension stopped immediately, ft is time we return to normalcy. It ;s time we concentrate merely on giving on kids the best education we car Our n a t i o n in in (he midst of a ' great social revolution. Com muni-; ties which were swept up by this revolution long after it his Knglewood have already moved forward and are bettor for it. Let us ignore the insignificant pressure group which clings to the reactionary hope of m a i n t a i n i n g status quo. Let us accept our destiny, HERBERT M. KONICl 127 Lake Street Englewcori, N. J.

The next step in the board's proposals is for the gradual elimination of not only Lincoln School as a classroom school but also of Liberty! (Thus far the board has not indicated what it would do when Cleveland School becomes' the next predominantly Negro school, which it eventually will as outmigration of whites in the neighborhood accelerates!) These makeshift proposals by the Board of Education, even if they got past the Board of School Estimate; and even if the Common Council then were to appropriate the monies necessary (which would be merely a drop in tho bucket compared to the hundreds of thousands that would then be required to build big: additions to Cleveland, Quarles, Roosevelt and Dwight Morrow) will solve nothing. Some changes are necessary; on that there is general agreement. But there is no kind of public acceptance for these makeshift proposals which will not only cost large sums of money but will not achieve the objectives of good education-much less of better education. If the Commissioner of Education, yes, and the Governor of the State who has been interfering not only in Englewood but throughout the state, were more interested in sound education than they are in gratifying the pressure groups, they would insist first on a sound educational system.

COMMISSIONER'S OFFICE

INTER-COMMUNICATION

DEPARTMENT OF EDUCATION

I From: Commissioner of Education

TO:

iiG-V.ernor..JHuheJs.
Division

Date:

_Augyst._8J..1261_

ANALYSIS OF LETTER FROM BYRON M. BAER.

The date, August 1, of Mr. Baer's letter, indicates that at the time he wrote he did not know the contents of ray letter of the same date to the Englewood Board of Education (copy attached), approving the plan submitted. Mr. Baer is concerned that the Board's plan, which he regards as sincere, will nonetheless leave Lincoln School an all-Negro school for such pupils as are not transferred to other schools or to the newly-created sixth grade school on Engle Street. He makes some assumptions which are not necessarily valid; for example, that those pupils who do not seek transfers from Lincoln School will be "the least motivated children," and that the few white pupils in Lincoln School will seek transfers, leaving Lincoln School 100 per cent Negro. He feels that the Board weighed "both educational and political factors" and avoided closing Lincoln as a nearly allSchool, He asks, therefore, that the Commissioner retain jurisdiction "pending formal adoption by the Board and action on long-range plans which eliminate de facto segregation from Lincoln School entirely. " Finally, he feels that the plan should provide the same opportunity of transfer for kindergarten pupils as is provided for pupils in grades one through five.

SXA.XE or N E W J E R S E Y OFFICE OF THE

TRENXON

RICHARD J. HUGHES GOVERNOR

Dear Mr. Baer: This will acknowledge your letter of August 1, in which you express your concerns arising from the plan adopted by the Englewood Board of Education pursuant to the order of the Commissioner of Education. I have consulted with the Commissioner about your proposal. He has supplied a copy of his letter to the Englewood Board of Education, written on the same day that you wrote to me, and I am enclosing it for your information. You will note that the Commissioner, in approving the Board's plan, retains jurisdiction until the plan is in effect. As to the long-range plans, the present Board is without legal power to bind its successors. Although it may adopt a long-range program extending beyond its own life, the implementation of such a program must rest with succeeding Boards. In his decision, the Commissioner recognized that because of the possibility of need for capital expenditures to effectuate a long-range plan, the immediate issue before him was a plan that could become effective in September, 1963 Finally, as to your suggestion that kindergarten pupils be also included in the plan, I must assume that this was considered by the Board and found undesirable for educational or administrative reasons, or both. I would certainly concur with your expression that the present plan evidences good faith and determination on the Board's part to provide at once the means of complying with the Commissioner's order. Sincerely yours,

GOVERNOR

Mr. Byron M. Baer Chairman, Education Committee Bergen County Chapter Congress of Racial Equality 135 Belmont Street Englewood, New Jersey
NEW AugUSt 8, 1963 JERSEY /^_ _J/\Y 1664-1964

2.

TH S A V E OUR NEIGH-

8ORHOOD Schools Committee issued a statement condemning the Board of Education for making proposals which ir cl-iims Ar* UleS-'-l ^nd in wiolnfion of the rights of (he m a j o r i t y of parent* and children, plus being educational unsound and sotting up safety hazards ;n compelling sixth grtdcrs to attend the Engle street school. 3. M A Y O R VOLK AND MR. TICKNOR declared that John J. Breslin Jr. i v ^-./ counsel in this matter, advises that- the taxpayers' suit a u t o m a t i c a l l y halts all action on the Board of Education proposals nnd that the Mayor will not call a meeting of tho Board of School Estimate pending litigation. The Board of education is without power tc implement its proposals unless the Estimate Boarc! approves and the Common Council necessary funds. 4. appropriates

r* Suit hisi Plan* v

(Conf'rnucd From Page 1)

. \) T I C 10
The St-ite Attorney General, old Ki ,11 the; junction the plnns t>{ the Board nl il Hie request of the Stale i^'le Street Junior High! Kducatlon \vm> suspended. Slayni School, VIM Commission of Education, this IransfeiTini,' out of Lincoln) .Au$fin Nf. Voile ami Couneilmnn-al' v-wm.tumnn-atSchool into Cleveland, Quarles, and i-i--.-.. "-" nto (Juarles. nn/tl morning (Thursday) will ask William 1). Ticknor .Jr. who Kmisevclt Schools, abandoning LinSuperior Court Judge Donald eoln So has been 'opposed to I ho school Collestcr to dismiss the Engle- and m l iol as ." classroom school, board's proposals on ffrounds that rjjinfi Cleveland. QnaHes, wood taxpayers suit to block the Itoust'Ve- . and Dwifiht Mti-rtiw Ili^h the, public is opposed in tl'ein, Board of Education's plan to issued a statement indicntinjr Ihen: Schools. change Its methods of assigning obtained .in miicr would bo no niotMint; of; the Roard *,,! pupils to the various schools. Ff of .Sclioul KslinKitc. to consider tho the State succeed-, the suit may from Superior Court of New JerHoard of Kdticalion plans. They .... .,., ... r,niU<" go directly to the federal courts. sey mulor u'liich ( h e City r,f Knptedeclared that the taxpayers suit. There ij no clear indication yet wood must show cause 0:1 An,;, 15 prevented any .idion whatsoever j as fo whether or not this would why il should not be prevent i pending iitij.'ation. have the same e f f e c t of auto i from putting Ilin Hoard of Kd However, at tho request of t h e cation proposals into operation < ' bloclcing ...v uuuro, Stale Commissioner of Kihicatinn 3 the Board. ground's (.hat they arc uneonstit ENGLE WOODA A'roup of Kn- Lionel, cdmMtionalfy unsound, an KIT de rick \V, Ha ti binder, Ific j\r\ ?ivo(i taxpayers this week look would require substantial expend Jersey Attorney General's Offie ',;\l .notion to try prevent the [tire of public Ainds. I'niorveiH'd by obtaining an aijrec. Indication from puilin;; The hearing on flic orde/ :o slicm nenl from (he Superior Court tc alions its proposals for cause was to have been held TImrs- ondnct. a special he.iriMj; tod.'.y. T" a compulsory central day, An;:. J5, and under the Autf. 8. At. this hearing today Mir Stale \vill ask Ihn Superior Cmin set aside the order to shou 'iiso. '/'hi1 S f a / e is .ipparvilfy dninj: is in of fort to offset I he tax >[: s' xt'"i:p a'tff to ;::nti lini'* I Thn Slate \vant.s (In* Itnard of Hdu' t'.-'f'-in Jo pui i(> plan (Iirou;;h In .Sept. J. The A Homey (.Vnrral'.s Of fir/ w i l l rlaini lhai lh<- ijrnup did not I'li'sl eyliausi all .idmiMi.strafiv'c rr.medics by which il means that it must f'ir>l appeal In Mr. Raubinfier. Other DovafoptnwiM nthe-r dcveNipi'ienls this wmfc included:
1. THE DOARD of Education, which last Saturday sent out notices to Lincoln School parents id v i s i n g I horn tluif f hay could j lr*.nf*r pu.ii- in 15. >l Ciro^s" f - f t f i grades to Cleveland, Queries, or Kooacvolf Schools, has received 733 appficiitions for transfer so far. (The bo/ird hai Indicated tbnf in order to put this phase of its ptjn into effect at least 125 transfers must be volunteers but that those who went to remain at Lincoln may do so. It also indicated that if too many transfers were requested ther wouldn't be sufficient the other schools.) On Tuesday (Inroom in

JOHN H. PERRY, president

and Carman Hirttz, vice-president, of the Board of Education issued joint statements praising the school proposals as a "first step in a long range pl^n. The Urban League and the League of Women V o t e r s issued public sta tern en fs endorsing the Board of Education proposals.

c;m Iw aiMx-Dpnnlcfl nnly -j[ Hoard of Srhonl Ksli.nalr rcquc such funil.s which iTf|inst niii.^l I1j.'o to the Ci-mmnn Council xvli has UIP only JMIIVIT of rppropr lion. The v.iit fiirtlirr omlftu-s tl philosophy of Hie lUMCltlljnrSnt school as tlu- only iir::'-liri| systc anil rbims that Knglt'ivnn.! cliiU-'rt should have I he i'i^!i' nn<t siim not hi; deprived t.f Iho ri^.'il allrnd their m'icliHurhnml schot and Unit such Huhi* would t vilatcd w-rro I hoy nimprtlod lo .1 tend a central school Mich .is di loc.il Iw.i-tl prnposcs, Tlie idr.i lh:it pupil ;,v;i^i:mc! slioitld IK- h.-isi-if uti :-; rr- is I it i I In- suil. tin- pctilionors rnntrndin thnt sued .1 jmlicy tf. unrrtttsliti tionnl. It KOO.I on to 5*.He ll-.-t Hi (,'onirnir^KHicr of K.h;cation hinisc h.ts snirl i . ' < r - is no dcli!)i>r:it scRn-jjaiion in Kn;;|pnMo<i ar.d Hi; r.ici.nl imlK'Nir.cp is dm* lo rur/m.-i livrnj; p;illctns over whirh rn-illic the Ittnnl mr llu- rify li:,s t-nnirnl fri i-M-r-f-c. Mu- pHrti.m H. ihf pl.in i.'. ill<T"l cim5ltlulion,ill.v uuiny -if Mii'ir n^lils. p.-in-'-j.: n rhi'divn in ollior V'-'I.IMK- aflV-.-f,-! riot lid;',' i;:\ ;iriy Mni'i- in I In lH.lll.'f. Tin- s;.i.l |i|:.u finilirr .i-Mh-m .He-* tin- i^pi-iidn ... ,,| liiri:<
MI1I1'' df Ill'-dl-y . " : , - ; thn (.'nMhliluiion <>r ,\<-\ .: tllf! Utiitfil Miih-s," (Inphnrci-n.

The issued

ordor to show cause w?; by the Superior Court at

Human Relations Panel to Discuss School Proposal

E.VGLEWOOD George Natal), j chairman of the ITuinan Relations j Council of Enqlcwond, announced! that on Thursday evening. August! 8 at 8:J5 the Council will hold a i puhlic discussion meeting on the Board of Education Plan for elim-t inatins racial imbalance in Enzlc- f, wood public schools. The meeting [ will be held ar the West Side |i Presbyterian Church on Knicker- bockcr road and Drmercst avenue. ' The Hoard of Kducalton Plan, ac- ' cepted by Stalo Commissioner o f f Education Dr. Frederick M. Rau-j binger. will be discussed in all j ; its phases, ramifications and im-1 plications by both a panel o f ' speakers and the attending public. Mr. Hafab also announced that Ivvo members of the Board of Kduca-j [ion, Warren ],. Lewis and Carmen I Hint/, vice-president of the Board,I will from the pane!. The member* 1 of the Bo.ird of Education will explore the plan in relation to the immediate and Jong-ramie growth of Ensle.wood's educational facilities and methods. Questions and round table discussion will follow I he panel speakers. Clarification and a depth ur.derstandiir,' of t h e 1 Cuard of KducaN'on IMan aiv the objcclii'es of the Co'incil mceliny. j

the petition of a rup of citizens iiiehiflm,'! Mr. ;uid ,M;-s. .ferry Volpc. Mi: and Mrs. Oniis PiK;-ch, M-. .inn Mrs. All;ti l-'iys-f-r. Mr. n-u.1 MrS. li*rti;rrrl VV;.ll:i-h. M:. ;,ml Mrv Ollihn D'AN'-si'i, .Mr. an'l Airs. Sol llnnrtl'.-r. Mr. and Afrs. Ku-enc Ckinenl.i'. .Ur. nnf( Mr.s. Kd\va.".' (fobbin^, and Air. and Mrs. J.I .yd Pol I?rd. 'f'hey are mtvubrrs of ihi CoiTimilieu to Save Our .\eiTii'iorhiiod JScnonls aHhou;,'h Hie petition was not fiiefi ir. the niim^s of SONS. Tiie .suit p'inii.s oui Ui.^f the Board of Kducaticn Ju-i' n. p-iurr h ,appr'ipfia(f funds :n:d { f i a t fi.nd* (Continued On Page 4}

Lincoln

TTA

membership endorsed ihe Hoard <">/" Kducalinn plan and iiryed parents to rt'f|iies( schools. transfer In fhc othi-r

Perry. Hintz

SavPlanIs 8/a/45 j
Sound 1st Step
ENGLEWOODJohn H. Perry, president of the Board of Education, and Carman Hintz. vice-president, today characterized (he board's proposals for changing pupil asignmcnt practices an educationally sound and progressive Mr. Hint?, added that the proposal to send all sixth graders to the Engle street building in a special sixth grade presented no safety hazards, cither. : "The Board has always held that I the school's first, responsibility is to prepare all the children as citizens and c o n t r i b u t i n g members of society,'1 declared Mr. Perry. 'The question now is, 'What will the society in which these children live be like'? A new order of living is emerging daily. The society of the 1950's was entirely d i f f e r e n t from that which we will find in the 1970's." Because these changes are made so rapidly and because no one can \t (Continued On Paae 4)

Perry, llintz Scry Plan Sound^

(Continued From P*g 1) changes will he. Mr. Perry says | that the first duty of the schools is lo help children develop skills, attitude*, understandings, and appreciations for living and working together. "The Board's plan of establishing 3 sixth grade school at 11 Englc Street and transferring students to 'classroom in Cleveland, Liberty, and Roosevelt will he an excellent lesson in h u m a n relations for the vomit; children of all schools," said Mr. I'erry. "Ry Ihe lime they arc adults-, they will he able to participate in community life with an opiium of understanding." The program lo be foliowod this year will not only help children lo learn lo live cooperatively with each other, hut It will also offer ihem the advantages of a heller academic education, in Mr. Perry's opinion. One of the best features of the plan is the fact t h a t the Board ! plans lo establish a class for prc! kindergarten children of working mothers at 11 Kngle Street. "This will bridge a gap for children who come from homes where they receive little formal training. visualize Such children, these { what all educators have found, may easily fall behind in (ho kindergarten becauso Ihey are not ready for the disciplines of schools life. Experiments in other l e i lie* have shown that such children profit greatly from attending a prr-kindergarlen sell mil." Mr. I'erry addfd that thi- Honrd uf Kdiicalinn w i l l press i t s H i g h e r Horizons program. "We shall use local resources, provide trips, and ulili/.f many vicarious experiences; wt? shall also try In gri closer to the homes through a u x i l i a r y services." The fart t h a i all s i x t h grade pupils will be in the same b u i l d i n g will nuke it possible for the teachers lo po| their talents and: skills for H richor, more interestinc. and more p r o f i t a b l e academic experience. With so mnny teachers in nm- schools, vnricil fields uf j inlorvst mny !. tapped." Although the plnn hns been! improved in ils entirely by Krc-j dcrick M, Haiihinger, New .Icrscy'i Commissioner <if Kducation, im-j plcmenlation requires the author-j i/alion of funds by the Hoard of-r Scltool Kslimatr and the Common Council of the Cily nf Knglcwood. It is anticipated that this authorisation,/ will be forthcoming l>r<.inpuy it *nd when It IK i l n m n n siralcd that more pupils desire Lo leave Lincoln School than tho 125 open places currently available to them in Cleveland, Quarlcs, and Roosevelt schools. Mr. Hint/, subscrives lo Mr. Perry's statements and calls the hoard's plan a soundstcp in the right direction. j '"["be immediate proposal calls I for the establishment of ;i cityj wide sixth grade school at 11 Englc ; Street, t h e retention of kindergarI ten pupils in that area in the Lincoln School, and the option offered Lincoln School parents ol pupils in grades one through five I to attend Cleveland. Quarlcs, j House veil, as assigned. ' "The Ion-range proposal calls for the elimination of the Libcrt> i and Lincoln schools by the addi I lion of new classrooms in the other i three school*. There would bt | renovation and extension of facili i lies at Dwight Morrow to provide : for a comprehensive program fo ; grades nine through twelve, ant , a broad program developed fo children in grades six througl eight, at the Knglcwood Junio High School."

irking mothers, as envisioned by the Community Nursery School group. The city should support the voluntary after-hours tutorial pro-: gram as conducted during the pasti school year and summer at the j r'lrst Bnplist Church, Lincoln j School and Memorial House. Final-i ly, the city should recognize t h a i ' the estimated co.st of S'iS.OOO f o r j the Higher Horizons program ap-t pears to be an absolute minimum. [ "Concerning Super! nt c n d c n 11, Shcdd's long-range goal of replacing fCnglewood's five neighborhood elementary schools with three, our concern is Unit racial imbalance may he allowed lo develop among Ihc Ihrce. CmiManl vigilance will be needed to avoir) drifting inlo such a situation."

SONS Declares Board's Pl Capitulates v

KXGI.KWOOn"Tho C o m m i t t e e to Save Our Neighhorhofd Schools considers the rncnnlly adopted proposal of tho Hnard nf Kducal i n n to ho :in extreme and unnorrssarily radical solution. H roprcsrtit.s a com plot r capitulalion by i he Hoard nC Kt In cation to the l-',iu'.U'\voofl Movement., Taul /uher. Omnrilmim Tibhn, C.O.U.K. the I - -yfrtjl i^'Vlt's ..ifl'l r.!li''ti f f ^ n i i n n . 1 ' Tnix is a .lUiLtjinont utiUuil by the ^]-nnp this \vock. "\Vc urge Hie Board of School K.stimate Lo deny public funds for the creation of n m a k e s h i f t .sixth ! grade at the old Kngle street school. "The overwhelming majority of the cili/.cns of Hnplowoori have made it abundantly clear that the use of the Englc street b u i l d i n g is ohnoxintts and complclcly unacceptublo lo them. It is 'ncomprchonsible that the Board ol! Education should persist in its singleminded obsession with the use of this abandoned school building One must ask what is the basis of the Board's u n r e l e n t i n g pursuit of the present sixth graders (who were last year's fifth graders) and their determination lo put them in thus particular building' 1 "An examination of the plan and j the resolution under which it ;\;; p r o m u l g a t e d , reveals t h a t race i T11R factor in school assignment in Englcwood. We believe that tho assignment of children to classes on this basis is In violation o[ the jj Constitution and the laws of the State of New Jersey and must be sistcd."

Dear Mr, and Mrs* Deans you tot your telegram o July . know, Coonis sterner Baubinger has approved Che plan of the Englewood Board oftfducatii segregation In the Lincoln i She State aid fat aefeeoj distributed only under procedures specified fcy lav sets out exact formulas on which thaaid coamunity is calculated. There is eo ptwi additional fends and any sums rarest school board's proposal would haw to iJLJhink tbft school board aw provision*

IM? any > local

X Join with you In the sioeere bope feat a nave arrived at the loog-ought solution ta your eotnoMc Sincerely yours, -

Kr. and Mrs Herbert Derr 166 Crescent Court Englewood, Hew Jersey August 9, 1963 JWK/cal

30TBS

de American Jewish Oounittee 165 East 56th Street Sew Sbrk 22, -N. *. 5?Tburg
:

The Anti-Defsffistl
;

515 Madison Avenue -

of B'nai B'rith

H. T.

AUG 1119631

SUBJECT: Fisher et all v. Board of Education of the City of Orange, Essex County, ;.Hew. Jersey; ;.,.,-;. FHCM: Baul Eartman and.Theodore Leskes . DIGEST: Hew Jersey' CcBBtlBsioner, of Education holds that "extreme racial isibalanee" exioting -in an. Orang* Public School Constitutes, under Heir. Jersey law, a deprivation of educational opportunity for the "papila. coj^elled to attend the school. He'directs the local Board of Education to formulate a plan to reduce such imbalance-..." -' --' ..f--' ' ."; <; v" On ifey 15, ^963-tljje Hew Jersey Coamissioner of Education, Dr. Frcde*iolt K^Bauhinger, handeft dowa.a de-qiBlon on whether a. local .TJoard -of education'-vas .reqj4Ted.to".talse stejpB to reduce de facto racial^segregation existing In :tt racaiool; uader its Jurisdiction^. . : ..:.-_;. ' - -r i-^V;.-. THE FACTS AKD COtfOEHTTOHS OF ^ . PARTIES

The city of Orange has eight pifljlie elementary schools. Hegro^children constitute exactly 5Q# of the total elementary school population at; the eight schools. Howe-ver, the percentage of Hegro attendance In the ;lndiVidual;schools varies, from '19$ to 9956. la the school, year 1961-.1962 there were two schools with a 99> Hegro student body. The Board of Education reduced the range1 c* grades" fron 5-8 to T-8 at one of these schools, and the consequent reassignment of 'pupils resulted in a decrease of the Hegro percentage' in "that. 8Chool.-.from^S&9$-to-669t*tow>vwp,with- - - -respect "t6-'the~ather school, Oakwood School, no measures were taken to reduce the Hegro percentage, with the result 'that Hegro pupil attendance In'l??2-l9o3"atr-aiis school remained at 99$. .. ;;.. \ Several Hegrp children^attending: the public schools to Opange and their par' ents petitioned ifce Board of.Education- of the .city;of Orange- to formulate and (" cute plans and procedure's designed to eliminate "toe"existing' pattern of'racial segregation. When the Board of Education refused the request, 'the petitioners appealed to'-the State Commissioner of- Education, Charging that de facto racial segregation, by design or not, violated their legal and constitutional rights. They referred to court decisions holding that segregated education-Is unequal, cation. 'They asserted, that, it was innaterial shether-such segregation existed a reault of deliberate .efforts -or. .-ot.socio-epononic' or adventitioua^forces 'and 'tibat'the reB\J.<s were: one,.and the ssme and placed the Negro child^at. The reapondent Board of Education denied that there hai lieen eu^ a**mpt ' ' its part to segregate pupils by race and asserted that it had at all.times administered its schools upon sound-educational: and legal principles'. -It- further con-, tended that ttie use of race as a factor in ttie deterBdnation of scfiocl policies v; would he an improper and discriminatory practice, baaed as it^wov04;be on Tacljal; considerations. ... .; / . . -.-.^-J-. :-, ; .:5vrf-'-- <:": '' ,'""- " .'"..,'.'"^x.'V.,..'.'..-.; THE CCtMISSIOHBR OF EDaOATICW'S'OPmtOH . , . . : - . - - .>.".;';. In his opinion, the Comnissioner took issue with the respondent's claim that tills matter presented nev questions of constitutional lav idjlch vere beyond the ~; '" scope of ba guasi-Judicial fooctioa. la rejecting tttii br&uent, tte Cotadastcoiir referred to a decision ly a federal district court in" Sev Jersey refusing to decide a prohlen of de tacto school segregation so long aa nrfurfnf strative remedies had not been exha\isted. In that decision the court said that the Connlssioner of Education, by reason of his knowledge and experience, was especially well qualified to make the necessary determinations and that it must be assumed that in the- performance of his duty he would be guided by the applicable legal principles. . -Turning to substance, the Commissioner first found that no evidence had been . presented to establish that the Orange school authorities by Intent, or design had segregated or attempted to segregate the Hegro pupils. The CcmnisBioner then formulated the principal, issue in this case as follows:
:,-'.:

:'; .

; (over)-.

. ' ";

Does the existence of the Oakwood School as virtually an all Negro school, constitute such an educational handicap to tbe . pupils assigned to it, that tbe beard of education is duty bound to eliminate its racial imbalance or reduce it within the limits of reasonableness and practicability consistent with sound educational practice? V-v. '.' .-.. ., ,,-v

. .r.-v-ii^y;-

Describing the "Bituation at'Oakwood School, the ComiBsioner found that the 99# Negro enrollaent "results obviously from the housing pattern." . .-/-... The Ccoaissioner conceded that the ultimate solution of the problem lay in the free-choice .of residence and the eliaona'kion of segregated housing, problems which are beyond the control of the school'authorities.Nonetheless, the Conmissioner cratiuued, the school authorities could'not igabre.tie problem since "In the TdTian of Negro pupils and parents a stigma is attached to attending a, school whose enrollment ie. cos^letely or almost exclusively Kegro^ and slnc'e "this sense of stigma and resulting.feeling of inferiority have an undesirable effect upon attitudes related to successful learning." .*'. - . ; : ; ! % ' " . - - ' PV The Comnissioner pointed out that the respondent school board had taken effective steps to reduce the' concentration of Hegro -pupils In one -school, which convinced him that tie same could be done with respect' to Oatorood School "without doing violence to logical attenoince aj^as: or at tte .sacrifice of scnmd educational considerations." He agreed that the policy of the neighborhood school was well established and . . . . . . , '...v,.., ,;(v -':-.-. attended by educational values that are widely accepted, not . -. ''j-.i :'-'J-xx8y by educators, but by the public generally. Consideration . '".,->" -... .f such factors as distance to be traveled, safety, econcov . ;",,. . -...;. ;,of time, establishment of rapport between school and hcoe, and' .' '.'" ;,'..',
.1 . *. r' Tcmn*}pdgp .frfi.-4a^a y}yv^r fl-feyfy- r^f '^hf*' 'ff^^rt'.'rt' unvly'riMiiainii >mv* -_.-''

,}.': , ; operated to establish convenience of access as the controlling ' '.,' ".',.-" , ,.tcrlberl.<a.:9f pupil assignment, and the l*$ortance of these ,.: ^values cannot be denied. , : : - ; / . : ^ v l - - ' . - . - '' ":-'? '"' '<-j"I;;/; The Cvnieaiooer expressed hie conviction that despite these advantages of the neighborhood school concept .'" ''-' ' . - ' ' - - ' " - ' .... ',: one. or more solutions to the present problem cea Ws'develpiped?-:-.'^' ..... _- "'. _".. ',>4tl.ch will, mitieate the existing undesirable concentration of '' '" "';' . Negro enrollment in -tJie Oakwood School and which can at the ' .,~^.',": : \. ...... ^..:Bette:'iiae preserve and .protect in great part the values of, :;')"J '-'. T.:''.'V. '. '-. . rrtbe time-tested pattern of pupil:aBBlgOBnt4.^VK'-:.' =""'; ''-f ",J;r';' ;_:*. The,Caamissioner conceded that the solution of the problem was not necessarily .__Sfj Among possible solutions, 'he mentioned the proposal'that- Oakwood School and another school with a 50$ Kagrc- attendance should be combined 'into one attendance. area in such a. way that all pupils in tha combined district would attend one school for grades 1-3 add the other school for grades l*-6. The result would be, an overa^-7?^:He,8ro.,peicenitiag..i;;- j- }' jaiii-.-ii iiytSwjr:1.!_'i' !'x?>-::^'cr.vt:-.;-^-i u. <^ _ .^.'.'^e^Cp^sBionerLs concluaion was that the extreme racial imbalance obtaining in the Oakwood:School I'constitutea .under Hew Jersey law a dep'rivatlbn of educa-. tional opportunity for.:the pupils.coopelled to.attend the school" and that "reasonable'means consistent with sound educational and administrative practice do exist to avoid the extreme concentration of Begro pupils In the Oakwood School.'.'. _ ti ..;.;, Consequently, CoaniBBioner Baublnger directed the Orange Board .of Education to forroiUte and aubBiit ,on or before July 1, 1963 a plan consistent with the .. principles s^et for^h.,ij3. the CoB4sBlonier.'fl deciaion and-tO^limvlnTOmrt'such plan ~ as approved'wUih ttie' 'bagf rm-ing of,-,tjiie^19&&iik .school^^.year'.-:":'-'.--' -"'"'?

18,'
-.iniliuffj-'t>& .-.K.:i';t.-:.?:' i- to.n:ttyc*i !:.* !---

" ^ %^ t! V ^

H^fc
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ipn^+M rftt M^^j *** L '& &K'd J %J^ 6*ttM 7f/ I I \(/ A *

STATE BOARD Of EDUCATION DEBORAH SPRUILL, |a minor, by ITir. and Tflrs. ) John T. Spruill, her parents and next friends, )
"<

Petitioners, | vs.
THE BOARD OF EQUCATION OF THE CITY OF ENGLEIUOOD, BERGEN COUNTY,

) )
) )

Respondent. KENNETH ANCRUffi and LESLIE ANCRUW, minors, by Mortimer UJ. Ancrum, their parent, et al.,

Petitioners,

vs.
THE. BOARD OF EDUCATION OF THE/CITY OF ENGLE'JJOOD, BERGEN COUNTY, Respondent. LAURA, ROBERT ant) JAY VOLPE, minors, by ' Mr. -and -Mrs. Jerry Uolpe, their parents, et al., Petitioners, vs.
THE BOARD OF EDUCATION OF JHE CITY OF ENGLEilfOOD, BERGEN COUNTY,

On Appeal from the decision of the Commissioner of Education.

Respondent.

BRIEF FOR RESPONDENT, THE BOARD OF EDUCATION OF THE CITY OF ENGLEUJOOD, BERGEN COUNTY
Sidney Dincan 7ftftorney~Tor Respondent, The Board of Education of the City of Ertgleu/ood, Bergen County 16 West Palisade Avenue Engleiuood, Nam-Jersey

Counter-Statement' of the Case

The respondents Vdlpe, et al. appeal from-a decision of the Commissioner of Education macIS on July 1963. 1st,

The Commissioner in -his determination .found and

determined: "1. that there is no evidence in this case/of any deliberate intent by the Engleuood Board of Education to segregate its pupils by race in the public schools; "2. that the pupil .assignment policies eurrently.Vin force in the Engleiuood School District result in an. extreme concentration of pupils of the Negro race in the Lincoln School;

- "3. that attendance'at the almost exclusively Negro Lincoln School engenders 'feelings and attitudes in pupils ujhich tend to interfere uiith learning; "4. that, ujhere means exist to prevent it, such a concentration of Negro'pupils as exists in the Lincoln School constitutes a deprivation of educational opportunity under Neui Jersey lavu for the pupils compelled to~a'ttend. the school; "5, that reasonable and practicable means consistent ujith accepted educational and.administrative practice can be devised to reduce the present racial concentration in the Lincoln School." In said .decision, the Commissioner of Education issued the following directive to the Eng'leuiood Board of Education to ait: "1.. to formulate a plan or plans to reduce the extreme concentration of pupils of the Negro race in the Lincoln School consistent uiith 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; iv '" -

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"3.1 to put a plan, as approved, into effect at the beginning .of .the 1953-54 school year. "The Commissioner reserves the right to make such futther order or orders in this matter as shall be necessary to effectuate a suitable pupil assignment plan., approved by him, for .the 1963-64 school year."
A R G U M E N T POINT ONE

The decision below does ,not seek to base admission to the public school based ,on-color or race, and the decision below is constitutional-', legal and valid in its entirety. '-.,;' _..'"' . j Dn page 2 of their brief., the Intervenors contend j /:'-. . the decision bslow is supported by no statute and contravenes both the Federal and State Constitutions. / // /. The Respondent herein respectfully submits that that statement is absolutely erroneous and the Respondent con.tends that the decision is supported by Article I, section 5 of the Mem Jersey State Constitution which states as follows: "No person shall be denied the enjoyment of any civil or military right, nor be discriminated against'in the exercise of any civil or military right, nor be segregated j.n_the^jnilj.tia or in tbB_publia_schools-.-because or religious principles, race, color, ancestry or national origin^" and by R.S. 18:11 which provides as follows: "Each school district shall provide suitable school facilities and accommodations for all children who reside in the district and desire to attend the public schools therein. Such facilities and accommo- t . ' dations shall include proper school buildings^,

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together with furniture and equipment, convenience of access thereto, and courses of study suited to the ages and attainments of all pupils between the ages of five and tuionty years." and by R. S. 18:3-14 luhich empowers the Commissioner to decide disputes under the school lam. This Respondent denies emphatically that the Commissioner in his decision sought to establish a color line in education and it is submitted that a careful reading of the decision will show that there is no color line established in any shape, manner or form. This Respondent
' *!K:

submits that the argument set forth by the Intervenors on page 3 is answered by the case of Jeffers v. Uhitley, 309F.2 621 (1962) (United States Court of Appeals, Fourth Circuit).

In that case the Fourth Circuit Court states as follows: "This is another school case. It comes here on the appeal of Negro plaintiffs, two of whom the District Court ordered admitted to the school of their choice. They complain, with justification, that there was no defensible basis for withholding judicial enforcement of the established rights of other individual plaintiffs or for the denial of general declarative and injunctive relief. "The action was originally instituted in Decejnber, 1956 by forty-three Negro children, attending. -' schools in Caswell County, North Carolina, and their parents^ Th~ey sought^a~general order" re-- -. quiring the School Board to reorganize the schools of Caswell County -and to operate them on a nonsegregated basis. By supplemental pleadings filed in I960,,it was alleged that certain of the individual plaintiffs had applied for. transfers,, ,_tbat the applications had been denied and that administra-

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\1

tive remedies had been exhausted. They asked for an ordsr requiring the.School Soard to submit' a* ~:J^&' plan for dasegragating he schools and for an injunction which mould prohibit the -Board, after submission of a desegregation plan, from requiring any Negro pupil to attend school on a segregated basis."
'' Sfr"" . ^__

The Court further stated: "As to all of these applications, Board members found further reason for their denial in the =.. applicant's motivation by racial considerations. ". In the Brown applications, for instance, the reason for the requested transfers was stated to be, "Request for transfer to an integrated school "-.system regardless of race, cread or color." This led a member of the Board to the novel contention, 1 * * * the reason they gave for wanting to transfer was race and we cannot assign them on account of race.' Counsel for the Board makus the same contention here. "A requirement of the School Cases that transfer applications be not denied^ on grounds that are racially discriminatory, but a victim of racial discrimination does not disqualify himself for. all relief when he complains of it. ." "Thesa applicants had been complaining, as plaintiffs in this action and as transfer.applicants, that they were victims of racial discrimination." The Court further stated: ~ ""Therneur Brown-and Saunders transfer applications were promptly denied by the School Board. As to the Brown children, the Board was of the opinion that the applications were base.d solely upon: the race of the applicants, a notion we have already held to be without legal significance." In points-(5)" and (6) of its decision, the Court stated as follows: -"(5)-Through a voluntary separation of the races

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- -

in schools is uncondemnec by any provision of the Constitution, its legality is dependent: upon the volition of each of the pupils. If'a reasonable} attempt to exorcise a pupil's individual volition is thwarted by official coercion or compulsion, the organization of the schools, to that axtant, comes into plain conflict with the constitutional requirement. A voluntary system is no longer voluntary when it becomes compulsive. "(6) This is not to say that whan a pupil is assigned to a school in accordance with his wish, ha must be transferred immediatuly if his wishes change in the middle of a school/year. lt~does not mean that alternatives may not be 'limited if one school is overcrowded while others are not, . or that special public transportation must be ' provided to accommodate every pupil's wish. It does mean that- if a voluntary system is to justify its name, it must, at reasonable intervals, offer to tho pupils reasonable alternatives, so that, generally, those who wish to .do so, may attend a school with members of the other- race-." ' , Also on Page 3 of thoir brief, the,Intarvenors cite the editorial of tha' Now Jersey Law Journal of July 11, 1963. This Respondent submits that the-Now Jersey Law Journal editorial does not aid the intarvanors, but in fact is substantial corroboration that the Commissioner's decision was correct and logal. In that editorial of July 11, 1963, the following language was set forth: "In the famous 1954 Brown case, the United States Supreme Court determined only that purposeful segregation of public education, that, is, segregation resulting from governmental policy, influence or cbnhivahce7~Tras"aTlc7nial of Federal constitutional : rights under the Fourteenth Amendment. Wore recently, several cases originating in lower-Federal courts have held explicitly or by implication that de facto segregation doas not constitute a denial of federally-protected-rights.Nevertheless, ther-eujould be no general dispute with the conclusion of the Commissioner that, with respect to :de-facto segregation, 'in the minds of Negro pupils and parents a stigma is attached to attending a school.whoso en-rollment is completely or almost- exclusively.. Negro,__. and that this scnsci of stigma and resulting feeling __"

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of inferiority have an undesirable offoct upon-attitudes related to successful learning1. ' "What thon is the nature, and extent of tho logal right to equal education first.recognized in the Orange case? There ars throe critical, .elements in this determination. First,.the racial imbalance must be "extreme 1 ; second, such extreme racial imbalance may violate legaT~rights; at least where reasonable means exist to mitigate it; and, 'third, the legal rights involved are basad upon Mew Jersey Lam rather than Federal , Laui. "How extreme must racial imbalance become before legal rights are invaded? Certainly there can be no question that the racial imbalance which existed in the Orange, Plainfield and Engleuiood School districts was extreme. Future cases will continue to decide on an ad hoc basis at-what point and. under what circumstances racial imbalance is tolerable. "Assuming extreme racial imbalance, a legHT wrong is committed only or 'at least1 where there arc reasonable means available to"rectify the situation.. Consequently in every case the inquiry as to what may bo considered reasonable and available to eliminate or correct extreme segregation becomes a critical one sinca such 'means' are apparently a sine qua non to the claim of legal injury. Moreover, the actual means adopted for correcting racial imbalance must be satisfactory not only to the State Commissioner but presumably to the Federal courts with respect to any Federal rights which they might resoqnizg in __a. particularcase. In McNcescv Board of Education, decided by the United States Supreme Court on June 3, 1963, it was specifically held that Negro petitioners in a Federal District Court neod not exhaust State remedies which did not provide clear assurance that petitioners would have effective and adequate redress. "It becomes important, therefore, that the Orange decision, as followed in Plainfield and Englewood, purports only to hold that .such-extreme racial-imf balance where means exist to correct it contravenes rights '-under New Jersey Law'. This may compart with tha current Fadaral decision that de facto .

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

segregation does not necessarily offend federal rights. It may also serve to ksep State administrative remedies viable notiuithstanding the We- . Neese case. ^ "That the Orange decision raises almost as many questions as it answers does not. detract from its fundemental significance. At _the very least, it. is a bold and conscientious start. .It charts a broad course and lends real direction to the ul^ timate solution of the vexious problems arising out of segregated public education. The methods of solving adequately and satisfactorily particular . situations mill vary and uiill undoubtedly be f-raught with complexity.- Any solution mill require utmost good faith on the part of all. In'this, the public at large has its responsibility, the basic responsibility ~iflhich all of us assume -by living in a democratic society-- to make our government uiork."
I 7

J J

In ansuier to the argument of the Intervenors set forth on the bottom of pago 3 and top of page 4 in their brief, Respondent submits that the plan that iuas submitted to the Commissioner by the Respondent, pursuant to the Commissioner's direction on or about July 30, 1963, and which plan was approved by the Commissioner on or about August 2, 1963, does not encompass any of the fears held by the Intervenors, and this Respondent submits that the plan as approved by the Commissioner is.valid and legal in every facet, and the Respondent does not set --forth in this brief the wording of the plan since the uiording q_f x the_plan is well-knoum to the Intervenors since the Intervenors attacked .-the-plan in the Chancery'Division of" . the Superior Court and this complaint that attacked the plan mas dismissed by Judge Collester on the ground that

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

these intervonors ha,d to seek their relief, if any, under Title 13 of the Revised Statutes. The cases presented by the.Intervenors on page 4, of their brief are not applicable to the instant case in any manner whatsoever. These cases involve colored

children who were denied rights because they mere negroes, and, if anything, these cases support the Commissioner's decision because in the instant case negroes alleged that thay mere being denied the right to equal educational opportunities because they were being sent for their : education to the Lincoln School, which was comprised of a school populated entirely or nearly so by negro.pupils, and the Commissioner's decision held that compulsory attendance at an all Negro .school, such as the Lincoln School, at least where appropriate means can be found to avoid it, constitutes a denial of educational opportunity under New Jersey law which the school district'is required to correct. On page 5 of their brief, Intervenors cite the case of Brown v. Board of Education,.347 U.S. 483 ( 9 4 . 15) In

Headnote 5 of that case the Supreme Court stated as follows: "\i)e obme then to the question presented: Does seg-^ regation of children in public schools solely on the basis of race, even-thought the physical facilities and other "tangible1 factors may be 1 equal, deprive the children of the minority "group of equal educational- opportunities? ..._'ule_ __1.

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

believe that it does." * * * -..---. Hsadnote 6 states in part:

* * * Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these casespresents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary questionthe constitutionality of segregation in public education. We have noui announced that such segregation is a denial of the equal protection of the laws." This Respondent concedes in the Brown case that the Supreme Court was confronted with segregation with the sanction of law. However, the language cited above from the case shows the brtfad area that the court was taking in its decision. On page 5 of thsir brief, the Intervenors" cite Goss v. Board of Education, 10 L. Ed. 2nd 632, decided June 3rd, 1963. The Respondent

submits that the Goss case does not aid the Intervenors because the facts in the Goss case have nothing to do with the situation in tne _instant_cas_e_.__IiL^ih3_j;gs_s_._c.as.e th_e_courjt__dealt _on.ly..with a.situation where by the terms 'of the transfer provisions, a student, upon request, would be permitted, solely on the basis of his own race and the racial composition-of the school-to* which" he has been assighed~15y~ virTfue~of rezoning, to transfer from such school," uiherVTie would be in the

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

racial minority, back to his former segregated school where his race would-be in the majority, and the court said that the transfer plans being based solely on racial factors which under their terms inevitably lead toward segregation of the student by :racB ran counter to the admonition of the court in the first Brown case. In other

words, in the Goss case, if a negro having transferred out of a segregated school wished to transfer again, he would only be allowed to transfer back to a' segregated school consisting of negroes only, and the Supreme Court held that plan was,unconstitutional. This Respondent states that the arguments set forth by the", intervenors on pages 7 and 8 are absolutely without foundation either in fact or in law. Neither the Commissioner's directive nor the Respondent's plan, that has been approved by the Commissioner, envisa.ges anything like the ".Alice In Wonderland" arguments set forth by the Intervenors on pago 3. The Intervenors must bear in mind that

long before t h Commissioner rendered his decision on July 1, '1963, 'e the Respondents had tried to put a plan into effect whereby they would put a central"fTfth'and sixth grade cityuide setup in the former junior high school. This plan was blocked by virtue of the fact.that, the

Board of School Estimate of tns.City.pf Englewaod .failed to approvs . . the necessary funds. Certainly this central fifth "and sixth grade

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

plan, which would be in affect at this vary moment but for the failure of funds was valid, legal and constitutional In'.every shape, manner and form and this respondent submits that the Commissioner's decision and the Respondent's plan submitted, and approved by the Commissioner, _i.s free from any attack whatsoever . J J As. an additional answer to the arguments raised by the Inter- . venors on page 8 of their brief, this Responaent reiterates its previous arguments as answers thereto and further points out that the situation in Manhattan and the situation in''the City of Washington are not comparable in any degree to the situation in Englewood -''. II. because as to the situation in Encjlauood reasonable means, exist to '/> ' mitigate tha situation, and these reasonable mctinc have been taken to mitigate the situation in the plan submitted to the Commissioner by this Respondent and approved by tha Commissioner on August 1 2, 1953. This Respondent respectfully submits that it has answered the arguments sat forth on pages 9, 10, and 11 of the.Intorvenors brief by the law hereinbefore set forth in its brief. CONCLUSION - This Respondent respectfully submits that for the reasons out .

: ;

. :jtj

.ji. -

J"*-'/:,

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

lined in this brief that thu judgment of the Commissioner of. Education should ba affirmed.

Sidney Dincin Attorney for Respondent, The Board .or Education of "The City of Lngleivood, Bergen County

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r
LAW O F F I C E

MAJOR & MAJOR

241 M A I N S T R E E T HACKENSACK, N. J.
DIAMOND a - 0 8 6 O

JAMES A. MAJOR J A M E S A. M A J O R IT

August 14th, 1963.

Hon. Richard J. Hughes State House Trenton, New Jersey Dear Governor Hughes: This firm represents Messrs. Volpe and others who intervened in i^he Englewood School case before the Commissioner of/EducatiorC-1**Prom his decision an appeal has been taken T6 "the' State Board of Education. Briefs have been filed by us on behalf of the appellants, by the Englewood Board of Education, and by counsel for Messrs. Ancrum and others. The matter is ripe for determination. We have also instituted litigation in the Superior Court of this State, Chancery Division, to prevent the plan promulgated by the Board of Education, and approved by the Commissioner, from being carried out until there is an adjudication on its merits. Such an adjudication has not been had save for the decision of Commissioner Raubinger who is in the lower echelon. In the suit which we instituted in the Superior Court, Chancery Division, the Attorney General of this State intervened on behalf of Mr. Raubinger, the Commissioner of Education. On the application of the Attorney General this suit was dismissed on the ground that our clients had an adequate remedy in the State Board of Education followed by an appeal to the courts. An appeal will be taken. At a press conference which you conducted yesterday, you are quoted as saying that there is a possibility that State School Aid might be withheld from Englewood even though the validity of the plan was under attack. As the Chief Executive of this State you are in a position to control policy so far as it effects the Executive Branch. Commissioner Raubinger's decision has

Hon. Richard J. Hughes Page 2. far reaching implications. The decision is either sound or not. The only tribunal capable of making a final determination in that regard is the Supreme Court of this State sofar as it affects State rights. So far as it affects Federal rights, the final tribunal is the Supreme Court of the United States. Before you became Governor you were a Judge of the Superior Court and you were trained in the tradition that the courts are provided by the sovereign to determine controversies. You are Governor of all the citizens of this State, white and black, Democrat or Republican. In the interest of a swift determination of this controversy, may we ask that you direct Mr. Raubinger and the Attorney General to take such steps as will bring the validity of Commissioner Raubinger's decision promptly before the courts of this State for a final determina-, tion. Respectfully yours,

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STATE BOARD OF EDUCATION OF NEW JERSEY

DEBORAH SPRLTLL, a minor, by Mr. and Mrs. John T. SpruilJ. her parents and next friends, Petitioners-Appellees, THE BOARD OF EDUCATION OF THE CITY OF ENGLEWOOD, BERGEN COUNTY, Respondent. KENNETH ANCRUM and LESLIE ANCRUM, minors by Mortimer W. Ancnim, their parent, etal., Petitioners'Appellees, THE BOARD OF EDUCATION OF THE CITY - OF-ENGLEWOODr-BERGEN COUNTY, Respondent. LAURA. ROBERT and JAY VOLPE, minors, by Mr. and Mrs. Jerry Volpe, their parents, et a]., ~X Petitioners-Appellants,
jff_^

On Appeal from me decision of the Education

THE' BOARD OF EDUCATION OF THE CITY ^ L_._/OF>ENGLEWOOD, BERGEN COUNTY, \ Respondent. *

BRIEF OF APPELLEES ANCRUM, et id.

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ARNOLD BROWN, 55 West Palisade Avenue, Englewood, New Jersey. ROBERT G. PLATOFF, 127 Belmont Street, Englewood, New Jersey.

HERBERT H. TATE, 126 Court Street, Newark 2, New Jersey.

_ROBERT-L. CARTER, MARIA L. MARCUS, BARBARA A. MORRIS, 20 West 40th Street. New York 18, New York. Attorneys far Appellees, Ancrum et at.

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STATE BOARD OF EDUCATION DEBORAH SPRUILL, a minor, by Wr. and Mrs. John T. Spruill, her parents and next friends, Petitioners, vs. THE BOARD OF EDUCATION OF THE CITY OF ENGLEU100D, BERGEN COUNTY, Respondent. "KENNETH ANCRUIK! and LESLIE ANCRUITl, minors, by Mortimer il/. Ancrum, their parent, et al., Petitioners,

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Js

On Appeal from the. decision of the Commissioner of Education.

vs.
THE BOARD OF EDUCATION OF THE CITY OF f ENGLEUOOD, BERGEN COUNTY, Respondent. LAURA, ROBERT arui JAY. VOLPE, minors, by IKlr. and Mrs. Jerry Uolpe, their parents, et al., Petitioners, THE BOARD OF EDUCATION OF THE CITY OF ENGLEillOOD, BERGEN COUNTY, Respondent.

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BRIEF FOR RESPONDENT, THE BOARD GF EDUCATION OF THE-CITY OF ENGLEi'OCD, BERG^fJ COUNTY SidnevJ3incin Attorney for Respondent, The Board of Education of the City of Engleuiood, Bergen County 16 UJast Palisade Avenue Engleuiood, New Jersey

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Counter-Statement of the Case

The respondents Volpe, et al. appeal from a decision of the Commissioner of Education made on July 1st, 1963. The Commissioner in his determination found and

determined: ^~ "1.* that there is no evidence in this case of any deliberate intent by the Engleuood Board of Education to segregate its pupils by race in the public schools;
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"2. that the pupil assignment policies currently in force in the Engleiuood School District: result in an extreme concentration of pupils of the Negro race in the Lincoln School; '

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J13-. tha.t_attendance_a.t_the_almostexclusively-NegroLincoln School engenders "feelings and attitudes in pupil's uihich tend to interfere with learning; I I' ' " 4 that, mhere means exist to prevent it, such a con'. centration of Necjro pupils as exists in the Lincoln School . constitutes-a-deprivation of educational .opportunity ..under _ Neu/ Jersey lam for the pupils compelled to attend the school; "5. that reasonable and practicable means consistent uiith accepted educational and administrative practice can be devised to reduce the present racial concentration in the LincolnSchool-.-!! In said decision, the Commissioner of Education issued the following directive to the Tfngleiijood Board of Education to uiit: / "1. to formulate a plan or plans to reduce tha extreme concentration of pupils of the Negro race in the Lincoln School ''consistent luith the principles and findings enunciated in'this decision; / ' ' "2. yto rsubmit such plan or plans to the Commissioner of Educa.tj.on_f-pr-a'ppro-V.al_on.. or-.bef ore-August.L, 19.63.; f.' r .

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"3. to put a plan, as approved, into effect at the beginning of the 1963-54 school year. "The Commissioner reserves the right to make such further order or orders in this natter as shall be necessary to effectuate a suitable pupil assignment plan, approved by him, for the 1963-64 school year."

' A R G U M E N T POINT ONE

The decision below does not seek to base admission to the public school based on color or race, and the decision below is constitutional, legal and valid in its entirety. On page 2 of their brief, the Intervenors contend the decision below is supported by,no statute and contravenes both the Federal and State Constitutions.

The Respondenli-'herein respectfully submits that that statement is absolutely erroneous and the Respondent conX tends that the decision is supported by Article I, section 5 of the New Jersey State Constitution which states as follows:

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"No person shall be denied the enjoyment of any civil or military right, nor be discriminated against in the ._ ______ exercise; of any civil or military right, nor be segregated in the militia or in the public schools, because or religious principles, race', color, ancestry or national origin." \^J~^~ and by R.S. 18:11 luhich provides as follows: "Each school district shall provide suitable school facilities and accommodations for all children mho reside in the district and desire to attend the public schools therein. Such facilities and accommodations shall include proper school buildings,

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together u/ith furniture and equipment, convenience of access thereto, and courses of study suited to the ages and attainments of all pupils between the ages of five and twenty years." and by R. S. 18:3-14 which empowers the Commissioner to decide disputes under the school law. This Respondent denies emphatically" that the Commissioner in his decision sought to establish a color line in education and it is submitted that a careful reading of the decision mill show that there is no color line established in any shape, manner or form. This Respondent

submits that the argument set forth by the Intervenors on page 3 is answered by the case of Jeffers v. UJhitley, 3Q9F.2 621 (1962) (United States Court of Appeals, Fourth-Circuit). In that case the Fourth Circuit Court states as follows: "This is another school case. It comes here on the appeal of Negro plaintiffs, two of ii/hom the District Court ordered admitted to the school of their choice. They complain, with justification, that there was no defensible basis for withholding judicial enforcement of the established rights of other individual plaintiffs or for the denial__of_ general ..declarative and "The action .was originally instituted in December, 1956 by forty-three Negro children, aiiendirig~ schools in Casuiell County, North Carolina, and 'their parents. They sought a general order requiring the School Board to reorganize the schools of Casiuell County and to operate them on a nonsegregated basis. By supplemental pleadings filed in I960, it was alleged that certain of the individual plaintiffs had applied for transfers, that the applications had been denied and that administra-

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tive remedies had been exhausted. They asked for an order requiring the School 9oard to submit a plan for desegregating the schools and for an injunction which would prohibit the Board, after submission of a desegregation plan, from requiring any Negro pupil to attend school on a segregated basis." The Court further statad: "As to all of these applications, Board members . found .further reason f orfehe-H^-den-iaJ 1 n the : applicant's motivation by racial considerations. In the Brown applications, for instance, tha' reason for the requested transfers uias stated to be, ."Request for. transfer to an integrated school system regardless of race, creed or color." .This led.a'member of the Board to the novel contention, i * * the reason they gave for wanting "to transfer was race and we cannot assign them on account -ofrace-r1 E-ounsei-Forths-Board-makusthesame contention here. V . ."A requirement of the School Cases' that transfer applications be not denied on grounds that are racially discriminatory, but a victim of raciaV -discrimination-does not- disqualify-himself "for all rslief when he complains of it. "These applicants had been complaining, as plaintiffs in this action and as transfer applicants, that they were victims of racial discrimination." The Court further statsd: "-The new Brown and Saunders transfer applications were promptly danied by the SchotrtjBo'ar'd. As to the Brown children, the Board was of the opinion that the applications were based solely upon the race of the applicants, a notion we have already held to be without legal significance." In paints (5) and (6) of its decision, the Court stated as follows: " 5 Through a voluntary separation of thei ()

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in schools is uncondemned by any provision of the Constitution, its legality is dependent upon the volition of each of the pupils. If a reasonablo attempt to exercise a pupil's individual volition is thwarted by official coercion or compulsion, the organization of the schools, to that extent, comes into plain conflict with the constitutional requirement. A voluntary system is no longer voluntary when it becomes compulsive. "(6) This is not to say that when a pupil is assigned to a school in accordance with his wish, he must be transferred limmediatoly if his wishes change in the middle of a school year. It does hot mean that alternatives may not be limited if one school is overcrowded while others are not, or that special public transportation must be provided to accommodats every pupil's wish. "It does mean that if a voluntary system is to justify its name, it must, at reasonable intervals, offer to tho pupils reasonable alternatives, so that, generally, those who wih to do scT,may atteTTd~~a school with members ofvthe other race." Also on Page 3 of their brief, the Intarvenors cite the editorial .o.f tho New Jersey Law Journal of July 11, 1963. This Respondent submits that the Now does" not aid the intcrvenors} but in fact is substantial corroboration that the Commissioner's decision was correct and legal. In that editorial of July 11, 1963, the following language was set forth: "In the famous 1954 Brown case, the United States e Court dsturminoSvbnly "that"purposef ul~ 7 segregation of public education, that is, segregation resulting from governmental policy, influence? or connivance, was a donial of Federal ^co_nstiitrtional rights under the Fourteenth Amendment. "-Wore recsntly, several cases originating in lower Federal courts have held explicitly or by implication that de facto segregation docs not constitute a denial of federally protected rights. Nevertheless, there would be no general dispute with the conclusion of the Commissioner that, with respect to de facto segregation, '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 sensetiTlftTgrna-an"d~resuitingfeel-ing -- ;

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of inferiority have an undesirable effect upon attitudes related to successful learning.1 "What"then is the nature and extent of the legal right to equal education first recognized in the Orange case? There are three critical elements in this determination. First, the racial imbalance must be 'extreme'; second, such extreme racial imbalance may violate legal rights;- at loast where reasonable means exist to mitigate it; and, 'third, the legal rights involved aro based upon New Jersey Law rather than Federal Law. "How extreme must racial imbalance become before legal rights are invaded? Certainly there can be no question that the racial imbalance which existed in the Orange, P.lainfield and Engleiuood School districts was extreme. Future cases will continue to decide on an ad hoc basis at what point and under what circumstances racial imbalance is tolerable. "Assuming extreme racial) imbalance, a legal wrong is committed only or 'atljlpast1 where thcrs are reasonable moans available to rectify the situation. Consequently in every case the inquiry as >o what may be considered reasonable and available to "eliminate-oT-correct- extreme segregation becomes- ' a critical one since such 'means' are apparently a sine qua non to ths claim of legal injury. Moreover, the actual means adopted for correcting racial imbalance must b3 satisfactory not only to the State Commissioner but presumably to the Federal courts with respect to any Federal rights which they ~might^"rSaoghiza in a particular case. In"flteNcesH" v Board of Education, decided by the United States Supreme Court on June 3, 1963, it was specifically held that. Negro petitioner-s-TTn 'a Federal District Court need not exhaust Stato remedies which did not provide clear assurance that petitioners would have - effective; and adequate redrass. "It becomes important, therefore, that the Orange decision, as followed in Plainfield and Engleuood, purports only.to hold that such extreme racial imbalance where moans exist to correct it contravenes rights "under New Jersey Law'. This may comport with tho current Fcjdoral decision that da facto

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segregation does not necessarily offend federal rights. It;may also serve to keep State administrative remedies viable notwithstanding the lilcNeese case. "That the Orange docision raises almost aa many questions as it answers does not detract from its fundamental significance. At the very least, it is a bald and conscientious start. It charts a broad course and lends real direction to the ultimate solution of the vexious problems arising out of segregated public education. The methods of solving adequately and satisfactorily particular situations u/ill vary and will undoubtedly be fraught luith complexity. Any solution u/ill require utmost good faith on the part of all. In this, the public at large has its responsibility, the basic responsibility which all of us assume by living in a democratic society-- to make our government work." In answer to the argument of the Intarvenors set forth on the bottom of page 3 and top of page 4 in thoir brief, Respondent submits that theplan that was_s_uj3jiit_te to the Commissioner by the Respondent, pursuant to the Commissioner's direction on or about July 30, 1963, and which plan was approved by -the Commisaoner on or_abo_ujb. August 2, 1963, does not encompass any of the fears held by the Intervenors, and this Respondent submits that the plan as approved by the Commissioner is valid and legal^in -every facet_, and tlie_Respondent does not set forth in this brief the wording of the plan since the ujording of the plan is well-known to the Intervenes since the Intervenors attacked the plan in the Chancery Division of the Superior Court and this complaint that attacked the plan was dismissed by Judge Collester on the ground that

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these intervenors had to seek their relief, if any, under Title 13 of the Revised Statutes. The cases presented by the Intervenors on page 4 of their brief are not applicable to the instant case in any manner whatsoever. These cases involve colored

children mho were denied rights because they were negroes, and, if anything, these cases support ths Commissioner's "i decision because in the instant case negroes alleged that they mere being denied the right to equal educational opportunities because they u/ere being sent for their education to the Lincoln School-, which rnas comprised of a school populated entirely or nearly so by negro pupils, and-the~Commissioner's decision held that compulsory attendance at an all Negro school, such as the Lincoln .

School, at least inhere appropriate means can be f o u n d to -avordnrtv^coTrstitutes a denial of educational opportunity under Neui Jersey law which the school district is required to correct. On page 5 of^their_br_ief_,Intervenors cite the-case of Brown v. Board of Education, 347 U.S. 483 (1954). Headnote 5 of that case the Supreme Court stated~a-s "We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even thought the physical facilities and other 'tangible' factors may be' equal,- deprive the children of the minority group'of equal eoucational opportunities? life In
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believe that it does." * * * ReaBnote 6 states in^part:

Because these are class actions, because of the wide applicability of this decision, and because,of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, tfaeeoRsidsfiation of appropriate relief was necessarily subordinated to the primary questionthe constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws." This Respondent concedes in the Brown case that the Supreme Court was confronted with segregation with that sanction of law. However, the^language cited above from the case shows the broad area that the court was taking in its decision. > On page-5 of their brief, the_Inter_venors cite_Goss_yj_B_oar_d_o. Education, 10 L. Ed. 2nd 632, decided June 3rd, 1963. The Respondent

submits that the Goss "case does not aid the Intervenors because the facts in the Goss case have nothing to do with the situation in the instant casa_.V In the Goss case-the-oourt dealt only with a ^situation" where by the terms of the transfer provisions, a student, upon request, would be permitted, solely on the basis of his own race and the racial composition of the school to which he has been assigned by virtue of rezoning, to transfer from such school, where he would be in the

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racial minority, back to his former segregated school where his race mould be-in the majority, and the court said that the transfer plans being based solely on racial factors which under their terms inevitably lead toward segregation of the student by race ran counter to the admonition of the court in ths first Brown case. .1 ~ In other

words, in the Goss case, if a negro having transferred out of a "V segregated school 'wished to 'transfer again, he would only be allowed

i. V ]\o transfer back to a segregat

and the Supreme Court held that plan was unconstitutional. This Respondent states that the arguments set forth,toy the interuenors on pagejS] 7 land 9 are absolutely without foundation ei in fact or in law.. Neither the Commissioner's direc-tfive nor the

Respondent's plan, that has been .approved by the Commissioner, envisages anything like the ".Alice In Wonderland" arguments set forth by the Intervenors on pago S. Ths Intervenors must bear in mind that

long before the Commissioner rendered his decision_on July l-,--19-63~~ the Respondents had tried to put a plan into effect whereby they would put a central fifth and sixth gTaSe^cityvjide setup in the former junior high school. This plan was blocked by virtue of the fact that the
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Board of School Estimate; of ths City of Englewood failed to /approve the necessary funds. Certainly-this central fifth and, sixth grade

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dan, which would be in effect at this very moment but for the (failure of funds was valid, legal and constitutional in every shape, I . (manner and form and this respondent submits that the Commissioner's lecisian and the Respondent's plan submitted, and approved by the |tantnissioner, is free , from any attack whatsoever. As an additional answer to the arguments raised by the InterJer.ars an page-8 of their brief, this Respondent reiterates its ravious arguments as answers thereto and further points out that |the situation in Manhattan and the situation in the City of Washing-

[ton are not comparable in any degree to the situation in Engleuiood [because as to the situation in Engl_ewood -reasonable means exist to mitigate the situation, and thess reasonable moans have been taken to mitigate the situation in the plan submitted to the Commissioner I~ by this Respondent and approved by the Commissioner on August 2, 1963. - This Respondent respectfully "submits that it has ansujere'd" the arguments sat forth on pages 9, 10, and 11 of the Intervenors brief by the law hereinbefore set forth in its brief. -, CONCLUSION This Respondent respectfully submits that for the reasons out,-

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lined- in this brief that the judgment of the Commissioner of education should bs affirmed. .

Sidney Dincin Attorney for Respondent, The Board of Education of The City of Englewood, Bergen County

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Estimate Board Now Must Act On Matter

HACKKNSACK .lucls-y G-mlnn 11. Krmvn yi-sU-rda disin ssi-d the second l:ix payers' MiiL brought by in'arly HO Kn^l wood UNpaye s in :ui effort to pnnvnt. (.ho Hoard ( Kdiit itinii from csl jli?liiii a ivntral sixth prndi1 at thf o1 , KIIR Slrci'L .limit) High School an.f reassigning Linrnh ,Scht I's first lln-uut, i Til'lli i-radi- pupils tn L'lvvi'land, Quarks ' nml Roosevelt Helm s by Sept. -!. .Judge Brown ; :lotl upon tin- mk'rvi-iiimn nl' Lho SUto I AlUirney Oncval's Ofl'ier.
GOVERNOR INTERVENES 1 ., , ,|,,. ,,, .'.. ,,,, !1H.|, ,1 Karlii'r in II"- 'lay Ciivi'innr Kil'll- : cliiimN nutilil In- :isl.'<l. ,lll .1. llualli's llir,.M..|,...l , ni! c,|, ,;, l '"".....>> ..... An-r,,, N. V.ilk , . <t -ill ..... 3I3J1I II. KllRlllwi.1.1 HIH ,,, ,.,,,,,1 , s<, ........ ..,, ,.,,,. .,,

Courts Dismiss/ o r 0////.S(Continued From Page 1} The Tiist taxpayers suit filed by ID parents of white children who, wotjld be afffclcd by the changes \n pupil assisnnicnt, particularly! lbo>c \viio Ii.ive tr> attend a c e n t r a l ! M\!h sr.tdf in !hc ahandi-ned En-; ^Ie street Junior Migii Sclicol, w a s 1 di.-mi^sed. It wa> ilismi.-.<c:l by .ludyc Doii.ild li. I'ollrste;- of Superior Courl. \ lio rufi-d liiat ,tj>e .-.nil mu>l f.irsl : be heard by the Stale Department t nf K<tiR-?lion in order to exh.iusl all adminislratives remedies. Jud- h i;e Collator said thai to aixtii* a " >uit a^ainvt the Hward of Kducalion in lus court would be coltotcr.ilaction. James A. Major, attorney re-. presenting the parent*, conlt-iled the riht of Krederick M. f^rubinj;cr. Conmiissioner of Kducation. to inlorvt'ne in the K:iyleood suit, i: had been ;,l Mr. Raubifltfrfit reiiiie:-! l!i;.t I be Attnrney fleneral; intervened hy a>kinx' Jud-e Col-

I' ........ I'1"". l1'"'11 *""' '"'""idly ll:ill .11 ll>::m .iVI.ii-k Mnml^ mil,HH.r Kmlrrirk M. ll.iul,im;..|- j .,.. ., ..........lialdv aiil,a iwimiiwiwlril. i pul lnl i-lti-fl I j,,,,,^ ,,. .,,.,.., ,ll|;.11.i. , '" Kniilowniul. . ,.......sl,| ,,, , .,,, |r ,,
Till' Til-si MX|UY,"S <ilil was llis- ; Sliil |1 umilll ! ihii|.rmis hi
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rnlli'sl-r. :,ls,, :!. :i ri-sulc "I Slali' ; ,in|,.r. r,,in,,.||,,,.i,i al l:in:i' Willum mliTVi'tiliiin. Til.- l;iM.:mv Miil;|,. T,,.t.....- .,,.. .,,.. ,.;1||,.,, ,,(t ,,.
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basis ,.f ra,.,. is iincnii-hhil'.i.nal , i],,^,..,!-!,.,. . : ,s|,,n,,i,,,,,. ,,r , r,,r; . ^ ^ ......... ,,rh |,l,l|.,,s,. IS Illwal .111,1 I...... j ..... ....... ,,,.,.,. " '" '
it. .In.Ii'i. HI-MUM r, Mr. llreslin <m I.ehall ol the eily and unit Sid'ii-v i n n e i i i , M'ho.,1 liHiinl atlnrney, and a;:n->l 'o convene tins luoruiii)- (Wednesday) provided lln-y ilil perMiarl" .laoies T. Uin-riby !' Vorsaimer .v Murphy dl l<;n;;lc\\ood, who i-.

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BACK T OSTATE DCPT

liojrd of Kduraiiuniil and ar-iu'd | (hat Tin- |)ai-ritt-' MM! should be , thrown uul uf cntirl. He insisted j nit ('omim.-'-ioitcr Itaubin^er's riyht! !ir order Kn^!coud to fliaiv^e its methods uf ^>*im>iny pupils and tns n^b! to intcrvrnc in any cf':>:-'. by parents or taxpayers ol pre\cn; i lie Hoard of Kducation Mr. MnjiT araiii'il l l i : i l the 1-jeOon i.l funIitntiniK-ili:y of tfie i;ar.l of Kdui'jtinn proposals lia* ii"1 M-eii ;ir^ued ,nr! ib;it the paren!.- who olijci-t to bavin:- their i-bil.-n-ii fJiniK'IIM to u.. <liffer-nt .-eliools aie bein- denied ;l;i-ir nvbts. He dct-iart-d furlhpr ! ha! it i> uncunMilutivful undpr <\3',f and federal ('un>1itut!otis to :i?-ixn piiptl according t' their race .lud^e Cidlon-r ruled lhal in any e \ i;t th** nialtcr wne.ld baM- to ^o !ie!o:e !he Stale Pfpariiiient t Kd:n-.ili'iti [ir-l. Mr. Majnr immediately undertook .-ieps |o ;fppenl tiie :uhii^ nol only bH.,rr Jie Si ale Dfpjrtmftit of K-iucatiun. bul 1:1 :be N-j'v Jersey Appellate Hivi-ii-ii ;md in Ihe United States pi>int-i Cout-i in Newark. He cttn-j lends ih.it 'hi1 cuns'.itutionality of the rntire principle of usina rare :i- j mran< f! a>.ij;inn; pupils 15 lim-onKtirulK-nal and mu-t be toted.

Collesler. held Ibril Ihe Shite l^tsj l.i I lire has provided .idcqu.'Hr rilj pear. Otherwise, -Ind;;r llmwn iTHflir.s tlirnnyh flu- Slnle llrpart 'said. Mir arguments wouiil have, to nienl nf Kdiicatinn. ; iM-er nnlil Thursday (tomorrow) II is rxpeeled thai the Slal'.'11|,,, ,.,,,,.,( ,(. ,,. ,|,,, hP;,rjnCl , nepar!ii'";il will nol lie.ir lln- la\ Stjitc j,,, crwctles : layers' suit nil ennsl il n! ioiudily |i|. A|| ,;,,,,,.., nf|l,,, , unlit aflt'r M-hool i.|.ens. .Irnl-.' Hl ts ,,. il( lhis ,, (h(. lt)v I Hi-nwn .iilinillivl that (In- qiiesliiin tiM,, of h-mN-rH-h M. I.Mnhins.-r, ' nf rnnfilihdion.-ilily is unansv.'ered ' With holh'lnypnyer'suiKdismis.j'"'^111'1;/111-11''^ "|"h h ^ sen1 Ihe i'.oard of Sehnol KMimat ninsl n.-iw nir-i-l and Maw.r A u s t i n 1 N Vnlk. .li.-iirmnn. ha* rallwl Ihe "1" mis Mr. nin,-n, nvpiinc f'"' Mnndny mot i lla" ll1"' '"'"" I'1'1"'" 'I''11 I'"1 H:.in nVIock. j l',,;,r,l ,,f Kiliir.!n,,n ni'ctK Ihr ijin,. BOARD OF SCHOOL ESTIMATE ' n nnli'r In |,nl Ilii- plan, ili-mantli"! Should Ihe Ho;ird "f Seliool ];-: '' l:"'"",,-. i,,,,, ,.||,rl I,,

>

mnle. under Ihe Stale's ilin-al nl' ant the pNin pnl inli, effeeL ill-holding S I :! " erlo.-'.ll.ovl 1 on -rounds that il is nntnds. approve n[ the plan. Ihe IniiMiia!. Dial il is disenmiM in 1110 ! ('mi in-! I innsl then meet V a^aiitii UK- oilier ehildrrn, n consider apprnprialinn <if Hie' "" |:IMI| .i;;ainsl p;irents and laxpiiycrs 12!i.0(in needeil for Ihe fii nn say in Sidney I)in<-in. :Mlnr:icy fur Un> 1 mailers n\l eonc-erii. In thcrr l rtuarH r Kdurul 'an* trying In Ihrnw sand mi I nicks' 1 .ind lli.-i! (liny slumM .Tii.surfd for tiii-ir ol.slnic(nii!ic\e'opnienl> in Ihe making nit oth SMI.-S of lhis issue: 1. There is a growing ientiof white children to boycott the if the Board of Eduterday m a sei-nnd taxjiayers' ivhicli eeks In prevent the U nf KdiRMtion from pullin- into fffee; its propn.saN Tor dum-ini: ihc methods of ii?si = ni.i pupils to When Ihe Slah- intervened last week in the firq taxpayers' .suit seek ins ' block tbe ll'iard id Kducilion Frmr, :;oin- ahead with Ms- plans In set up a central sixth . ., . n the ahamlftrtrrl Kn^bStreet School .-nnj lo di coln School rhilnri-n in llirci; V the foin- -.i!|,-r L'tv.dc -'-hoi-il1-.
:ic!

te o'ders. Thy indica ' e th*ir this "*"* i!- du" * "nviction that it is *n un"nitifwttoitil mav*. dutiont-

*g*m?_ fhcm ' 1. C a n v e r s c i y Councilman V - n -

Cleveland School

has declared ^.^

plan is not put into e f f e c t by fhe ipening of seliool ther wilt he it Cleveland, Ouarles, and Roo-

ln tlii.. set-ond MHI tin- i'inter: linn is thai (In- court.- nio-i di'.-ii!,the coii'.liUittdn.-il i*.tn- of permit

i't

than ever. The hr-i '-ml v.a>- irii!ittilr:rl hy t a x p a y e r - rcpri-sentin^ the

i-liidil

Mrv. \Vi-

fi-di-ral i-i,i!shiiih'.i s liy OVNIV. r:-.. . Ih-oii K l-'nlli-r. Mr. and ,\1rs. Iti:<s ,1 basis for :i;>M;:mni: itii,nls and fli/nd i injhoKiri. :uid Mr. and .Mrs. is iifl(tally rli"<-nniinali.ry :.^ains| Tho-nJK <'w\t>\.\. was >-fparaU* while pupils. Their -nil ;ir\i^ In.tti Sf..\ an dis !I;,M.d purely thai it is illegal :nid unlawful !o mi Hi" Hatin Ilia' it is Mr-mi; 't> spend moriin for such piirpd>.fs !i!ip!eun-m v "-'h ;' I'l-iri a; cost u. heforp the constilutional (|iK-*lirms I IK* t.i.spa>'-r-i h'-lof.- tinr t-miri.s are sttllcti. ndc on its lon.siitmiimalily. They Thc suit, si-ni-d liy .ln'!^.- fl'.r- f'l'i'.'-nd tli:t' M ha.- always hi-i-i; drin II. Hrmiri. nrd/-ri-l lln- Hoard wron;- ! ;,-i^n [nnnN uri I he- basi;, of School K>tinu.lf In -how cao-i- "f <~'"-" '"'^ " " '"" "Toe.;: prior approving the Uoanl of Kdnration (Continued On Pjtrje 12)

r i 8/vf/c s Freedom March

And Rally Draw

KNGI.RWOODAhoul 2Trft persons partjcipntetl in n parade amt rally Sunday afternoon tn create inlm'sl and support for the forth mining Freedom March on Washinnlnn, Illylen .Inhn-nn of Ilie Southern Clidslian Leadership Council Inld Ihc rally at Mnckay Park t h a i "Tn. day the Mack man can he proud n( being bl;rck. but (hat if be iivanls In cnntinue to !"". In s t a l J pitrl .such mass initvemrni' , March im U'asbliu'.t.in " 'he.

Hint/ Declares Safety Factoi Al Proposed School Excellent

KNC,U-:\VOOD h'irst among tin1. Hoard of Kducation's proposal for questions any parents may ask | ;i change in pupil assignments, about proposals affect 1115 I heir j Carman II. Mini-/, vice-president. children is. "Does Ihc plan provide , declares !h;il children's safety lias for our suns 'and da'.inhk-'V been a primary coiwii1 ..... i"i: in all safely?" i del ihcral ions. To parents (iiieslioning Hie ehilMr. Mini/ pointed out tlial be i- ihe n..,,nl ol' Kducalion mad. dren's safely under Ihe Kntflcwnni nf. recommend nil uns lo Com mis-1 sioner l-'redcrick M. Il:mbinder as In the best way lo solve the problem of racial imbalance in Ihe city's schools, it had asked Mr. (\\vnn Leach, director of hvallh. pbvMeal education, and safely, in survey all cily schools and make ret-on miendalions iis to any im as ires needed lo insure the sii/cly and >""dlh | of children. The propo.-al to i'.si;ihli>h a c i l y - 1 I wide s i x t h Krade school at II Knuli'j slreel and In penniL optional Irans! fcr of Lincoln School pupils in i trades one to five lo Cleveland. I Quarlo. or Kimwvell as assi^nrd j aclually means t h a t many boys and Hii'ls may I ravel .shorter dis' lanei-N to .school Iha-i they otherw i s e would, in Mr, Hint'/, opinion. (Cnnrinuvrl On P*r, 17)

: i>

Croups Demand/, I Estimate Hoard J ; | Meeting Quickly

| KNtJI.ttVi'Onr' -"Mfn.en Coiml> [NAACP. CnitF,, and the Knj-'lcwood M ovrni c n I, I axl n i yhl p ro-1 lesled the. "vinnecessiiry and wilful delayinu nf urnenl.lv needed action hy Ihe Hoard of School Kslimnlc" and demanded an immetliale meetin. This was expressetl in a joint sljilement by Aumislus Harrison, Shirley Lacy, anri Ilusscll Major. "It should 'he made absolutely clear I hid there has been no injunction or slay of any kind re< rpiirimi the Hoard of School Kxfimade lo i|elay emercency funds J for the [loard of Education plan.ij : they M.iled. "\Ve demand I bat Mayor Volk j convene Hie Hoard of School t''sli-| I male immediately and vote lo I appropriate \\\? nionc-y needril lo ; | carry mil the Hoard of Kdueation's' ] plan. Unless ihe cily ^nvernmcnl. ! provides the money without further phoney delay, racial dftnnnslralioriK or ;dl kinds will resume', in Knle\vood. Such demnnslra-1 linns will be far more virulenl nnd far more intense lh;m they have been in ihe past. "The siluaI ion in Kn^lewrvid is rapidly delerioralinK becnuse the cily Rnveminent's refusal In act . on I be Hoard nf Kducalion plan while last ditch courtroom dodges ' are heins carried out hy die-hard* I (Continued On Page 12}

j.'J Groups A*k I Board

(Continued From Page 1} who will not admit they have losf.i "H is lime to talk of thinfi.s i n j Knplcwood as Ihey are. not as a ! few anii-intesrationists hope theyj are. The fact is thai the Board o f ; Kducalion. acting on an order *oy : the Commissioner uf Kducalion, stands ready to put into effect first steps of an inlcRration plan. The fact is these steps have the support of the Superintendent ol School, the Mayor's Committee, (he Commissioner of Kd neat inn. the Governor, and undoubtedly every right- thinking citizen of this town. Two-Thirds Wjnt IF "The fact is that replic-5 from: two-thirds of Lincoln School parents show that only 10 children chose to remain in Lincoln School. All that is needed to pet the plan: into operation is the appropriate iiciion by city officials who must meet to provide the money. Yet because f phoney court action by disguised seKrej;alionists, t he Board of School Kstimate claims it cannot act. The facts however are very different. "Tlie Hoard of School F^timate i.> not nliliKi'd lo del..\e phonies floj; a d'-ad horse in one court a f t e r another. On the cont r a r y . Ihe Board of School Kslimale and city government i< men I the lioari! of KiSucation pLin hy September. "\\ are shocked thai the city has ragi-rly .teizei) on these desperate moves a* an excuse for delay instead of fulfilling their responsibility to act. They have not even opposed (he-e Mills as the Stale of New Jrr-ey ha^. 11 >'-em- as Hiousrh Mime c i t y officials are determined in provoke racial anaiimsiiy to new heights by wasting the preciuus linie needed lo put llie plan into "fft-ct. "These piioney litigations are desJL'ned lo uirck the Hnan! of Kducjtion plan. Tliry rejire-ent I;ist ditcll atteiupl* of a few In ; oh_-trucl the pain-taking w o r k nf the Mayor's Cornmitter. tin- Supl. . of Schools, ihe Hoard of Education and the Slate Department of KrJitcation. Kvery day that parses without action is .1 day that cannot be reclaimed . , . while the situation deteriorate-. "There is nothing t'-ft to di-cu^. The fact is that ihe racial ficht here has beer, rlecided. 'I'lie city government iiuist recognize Mut fact and ^c! on it 1 "WiIjnvc heanl ruui'ir.- that inemher- nf lb" Hoard of School KM in:ate. including Mayor Voik and i"fntn''ilr.,jfi T.iknor. plan in . mi l-riylliy vscDftn irip ;n a few d;i>>. If tbi- is true, and mern b'-rs |cjve at I hi-, crucial time wilh'nil wi-ann ihe Hoard of Kduratton i'nieri.'1-ncy fund.-, thi-y w i l l
be jliandon;|;)J Kll^li'WOnd in

! fiiiincibnan Vlnenii- K TiMis ,wa!i chairman nf llie r.-dly an.I .tn|M'|ill L, llntjamin AVtt-s m charge H Ihr paraiie. Mr. Tibhs ded.-rrcd Miinl wlicn Ihe Miireh <ui Wiishinw!,in I* over Ni?nies should im. ^tieJJillviy ;;t> lo ;:vm \ U.K'lt i'i their Immc towns flghllng for their rlithls. lie indicated (hat Ihe rigid in Rflgtewnod i.s nnl yd won nnd j thai il is up lo all Negroes t o ! umilc in fighting it. The Rev. .lames Coleman of Mt. Olive Bnplisl Church in llacken-sack siricl that Rnglewood is not ! Ihr only community with n prnh-l lorn, lie calli'tl attenlion to llack-j Ion-sack, Bogota, nnd nlher cnm-. Dtnfttn, i Tim Rev. Rnhrrl 1. Milter of Kn: clrwoofl. who look par I in Ihe [parade, addressed Ihe rally in bis r.'ipacily as Mr. Tihh* -;ts ihe jlroiiMirer fi.r llie March. He .snirl 'lhat while Die white man has heen *l<Hv in showing himself in I lie .Vcsrn fie hi many whiles are he;wining arlivp. "Ihilil now Iherc isr.'iiu-il in have been time eiuitmb ;fnr gradual chains hit! I here no lotvjrr is (imp and in all corners nf llir nation ihe campaicn is un,dcr\vay." i Orsanizins lric;rl a c t i v i t y for (he i March on Washington are .Inhn |\V. Brown nf t h e Urban League. .i chairman Joseph Hen jam in Sr.. of iCOmc, Mrs. Jessie Perm of NAACP, .(Mrs. EujiP.no Woodward, the Rev. 'i Robert I. Miller. Columbus McCoy. JHrs. Hallic Jones. Mrs. Stonewall j Jackson, and Morris Finley.

' / / / n / = Says Plan Safr /''or Pnp

(Continued From Page frr.ni Liru-oir. wil the >ci'.'>ol r."ar
be

not rf.-ult in t"o lar^e cla>>ey." Mr. . Hint/ e\p!nrr.ed j Th-- youri^r.-t children, ihrwe in j I t h e kin>lert!:irtfn. will attend the ! : Lincoln Sch'wd. if they live in that,' i area. Sixth ar;id" b*.y3 and sirl.- '. . v.-ho attend Ihe >chor,l ;C 11 Kn:lc ' Slrc-ct are accustomed lo working . -.vi;!; jru! ir. :h<? .Su;"--:> J\iuo!> -nti can hi1 trusted to r'oliow Iheir p a r - . " ent>" i,'(iod instruction, in tht opi-: nion of suptrintt-mlent Mark H, ' ' Shed<I. .\ir. Mintz added thai the Board'. plans lo furnish free transportation:" ; for tho> ( . in the kindersaricn' ! through uradf 3 u ho live beyond ' \e mile and a half limit. In the i pa>l. Mich transportation was pro! vided only lo Iho.ie living beyorul ' a two-mile limit, i "Police Dircclor Jieph Lawless has assured the Hoard nf Kducation ' i that by September 1 one-way tr?f! fie will be in ..Ifect "n F..-.i;lc i Street." added Mr. I Unix. "Dunns;' . lh'; period nf 'transition he ha.. promised ih^l [here will be many, helpers ;a!ioned in thai area to; : in.-ure Ihc Mifety of the children." Slruclurally sound, the Knale' \t lmildm'4 will offer a safe! ' r place for Ihe s i x t h grade pupil-, i j aocurdinsj lo Assistant Superintendi ent Francis r.arriiy. 1 A n'piT<eri(:ilive from the Divi- . -ion of School lluildina St-rvice5 o f ' ! Ihe Slnle !)epartnirnt of Kdur.ition who jn.-ix-rtr'd the hiiildini; recently reeo mine ruled n feu minor repairs. t winch \vill be nuide before the j I tipcnins nf school under the super-1 i vision of Mr. Fred .Maniscalco, sii-; perintendcnt of hiiilrlinqs an<f ,-r-oimdMr. c J a r i ily added thai <uprr-.. vision will alvt ho provided during the lurieh hour in the Kncle Street School, >o t h a i the children will i . not encounter any duncier from, ' traffic during the noon hour.

chaw. "If i here !> jri> m-e.| for (k-by. it i" UM' vacation- of es-cntial officials that .-hould In- <!e!n>nl. not the urgently needed votes nf ihese officials. A ft IT two year- nf -Iru^sle. v.v wii! brook no phoney delay. There ran be no legitimate excuse fur inaction a! this tot** H,j:e. if ih" city will nnt act. perhap- wr w:i! "

AT FREEDOM R A L L Y Climix of freedom R a f l y and pa. i-.t in Englewood Sunda> was by bout 350 with Councilman

Vinctntc K. Tibbs conducting, Here with Mr. Tibbs is Rev. Roberl I. Miller of Englewood, treasMarch on Washington.

August 19, 1963 ' BOARD OF SCHOOL ESTIMATE CERTIFYING THE SUM NECESSARY' UNDER R. S. 13:6-60 OFFERED BY: - I SECONDED BY:
S/ S/

Carman R. Hintz Warren R. Lewis

*

This is to certify that at the meeting of the Board of School Estimate held in the Municipal Building, Englewood, New Jersey, on th&'.19th day of August 1963, the "following resolution was adopted by a vote of 3 to 2.
J ,J ' J

,:

' :.

^ WHEREAS, in response to a directive of the Commissioner^ of Education, the Board of Education of j^;he City of Englewood has submitted to the Board of School Estimateya resolution calling for the expenditure' of :S66,<500.00 for repairing, /furnishing and enlarging existing buildings under revised statutes/qf New Jersey. R. S. 18:6-59 and, WHEREAS, 'the,Board of School Estimate is aware that the Board of Education has 550,000 of Bond money available for the contemplated uses, arid, WHEREAS, the Board of .School Estimat'e in response to this resolution has determined ythe additional amount necessary for repairing, furnishing and enlarging existing buildings under revised statutes^of New Jersey R. S. 18:5-60 to bV in the sum of SIS,500.00. t.i .,;< NOW, THEREFORE BE IT RESOLVED that the Board of School Estimate does hereby fix and determine the amount of $16,500.00 to be necessary for the aforesaid purposes under revised statutes of New Jersey R.S. 18:6-60. NOW, THEREFORE BE.'IT RESOLVED that the Secretary is hereby instructed to prepare eight certificates of this action, six to be sent to the Common Council of the City of Englewoodj Nsw Jersey and two to the Board of Education of the City of Engloiaood, New Jersey.
S/-,

-Austin N. Volk Mayor Austin N. Volk William D. Ticknor, Jr. William D. Ticknor, Jr. 0. Carlysle Me Candless 0. 'Carlysl'e Me Camiless l 1' Carman-R.- Hintz- :;_--. Carman R. Hintz Warren L. Lewis
Warren L. Lewis . :, : g ' 1
./L

S/ S/

ATTEST: S/ Violet Webb, Acting Secretary, Board of School Estimate. SD:vw ' 'l

s/

s/

I
''-:' 1

.-

':

|"--

r-.August 19, 1963 BOARD OF SCHOOL ESTIMATE CERTIFYING THE SUPf) NECESSARY FOR PROPOSED ENGIOOOD EMERGENCY SCHOOL IMPROWEflENTS % This is to certify that at a meeting of the Board of School Estimate held in the municipal Building, Englewood, Neui Jersey, on the 19th day of August 1963,: the follau/ing resolution was adopted: U1HEREAS, the Board of Education has submitted to the Board of School Estimate a request for funds in the amount of $56,500.00 due to the fact that the Board of ~ Education of the City of Englewood has under-estimated in its annual estimate under Revised Statutes of New Jersey R. 5. 18:6-49, the amount of monies necessary for the current'expenses for the school year 1963-1964, and for making emergency repairs, and to defray the expenses of certain emergencies ujhich have arisen since the making of the annual budget, and consisting of the following items: Faculty Preparation 3 3,500.00 Pupil Transportation 15,000.00 Pre-Kindergarten Program 6,000.00 Higher Horizons . 25,000.00 Adult Education 2,000.00 Consultants' fees 5,000.00

$ 56,500.00

and WHEREAS the Board of School Estimate, by a vote of 3 - 2, has approved the aggregate amount of 036,500 deemed necessary to defray the expenses of certain emergencies which have arisen since the making of the annual budget, covering the following items: Faculty Preparation $ 3,500.00 Pre-Kindsrgarten Program 6,000.00 Higher Horizons 25,000.00 Adult Education 2,000.00 3 36,500.00

NOW, THEREFORE, BE IT RESOLVED THAT THE BOARD OF SCHOOL ESTIMATE does hereby _fix_and determine the amount of money estimated to be necessary for these emergencies is the sume of $36,500.00, made up as follows: Faculty Preparation .$ 3,500^00 Pre-Kindergarten Program 6,000.00 Higher Horizons 25,000.00 Adult Education 2,000.00 -S- -36,500.00 and in compliance with Revised Statutes of Neii Jersey R. S. 18:6-56 Board of School Estimate does hereby fix and determine that amount to be 836,500.00.

NOUI, THEREFORE, 3E IT RESOLVED, that the Secretary is hereby instructed to prepare eight certificates of this action, six to be sent to the Common Council of the City of Englewood, New Jersey and two to the Board of Education of the. City of Englewood, New Jersey.

S/ Austin N. Uolk Mayor Austin N. Uolk

5/ William D. Ticknor, Jr. William D. Ticknor, Jr.

S/ 0. Carlysle McCandless 0. Carlysle McCandless

S/ Carmen R. Hintz Carmen R. Hintz

S/ Warren L. Leuiis Warren L. Lewis

ATTEST:

S/ Violet Webb
Acting Secretary, Board of School Estimate

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

CLASS OF SERVICE
U fut ractugc unUti i deferred chsrteici It Indicated by the propel ITmbcl.
TWi.

WESTERN UNION
TELEGRAM
W. P. MARSHALL, PMMIDKMT SF-1M1 (-60)

SYMBOLS
L-Nishi Una

Unc. TcU*rm J

**

The lioi time ihown to the dtc line oo domestic relegqmi ii LOCAL TIME u point of origin. Time of receipt is LOCAL TIME i point of desumrioo

PF187 N P TNB118 PD TRENTON NJER 19 207P EDT BARBARA A MORRIS, BR 9-1400 20. WEST 40 ST NYK

^ W 2

APPEAL IN CASE OF VOLPE, ET AL. V. ENGLEWOOD BOARD OF EDUCATION MILL BE HEARD BY STATE BOARD EDUCATION FRIDAY, AUGUST 23, 930 HA AT NEWARK STATE COLLEGE, UNION, HEW JERSEY. LETTER WILL FOLLOW FREDERICK M RAUBINGER SECRETARY STATE BOARD OF EDUCATION ET AL V 23 930AM (7. 1)

M'Kiox. FIO-I 'n: rni.i jocrioNS or 'nil: MVJii:k-|.:ii-r oivisi.w.

IK THI

Supreme Court of the United States

OCTOBBB TKBM, 1963
No. 865,

FREDERICK II. HAUBINGER, COMMISSIONER OF EDUCATION OF THE STATE OF NEW JERSEY and THE STATE BOARD OF EDUCATION OF THE STATE OF NEW JERSEY, Petitioners, vs. ANTHONY T. AUGELLI, JUDGE, UNITED STATES DISTRICT COURT, DISTRICT OF NEW JERSEY, Respondent.

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

VoRSANGEB & MuBPHY, ESQS.,

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

MacCrellih & Quigley Co., Primsri, Treotoo, New Jency

u u e

m
TABLE OF CONTENTS

QUESTIONS PRESENTED: Statement Reasons for Denying the "Writ 1. The case below, Fuller v. Volk (Civil No. 847-63) raises a substantial issue of the violation of Federal Constitutional Rights 2. The Federal District Court has jurisdiction to hear this matter 15 3. It has not been demonstrated that the District Court lacks jurisdiction nor that the applicant has no other remedy 17 APPENDIX : A. Complaint la B. Order denying Leave to Appeal 5a C. Decision of Superior Court of New Jersey 7a D. Order Reinstating Appeal and Marking Vacating Order of Dismissal 1-ia

CASES CITED

Abrams v. McGohey, C. A. N. Y., 1958 260 F. 2d 892 . . .

18

Balaton v. Rubin, New York Law Journal, Sept. 11, 1963 12 Bell v. School City of Gary, 213 F. Supp. 819 (N T . D. Indiana, 1963-Jan. 29,1963-U. S. Dist. Ct.) Briggs v. Elliott, D. C. C. D. S. C. 132 F. Supp. 776 9
10

Browder v. Gayle, 142 F. Supp. 707, aff'd 352 U. S. 903, 77 S. Ct. 145,1 L. Ed. 2d 114 17 Brown v. Board of Education, 347 U. S. 483, 74, S. Ct. 686, 98 L. Ed. 873 8,12 7n Re Chicago R. I. it P. Ry. Co., Ohio 1921, 41 S. Ct. 288, 255 U. S. 273, 65 L. Ed. 631 18 County of Allegheny v. Frank Mashttda Co., 360 U. S. 185, 3 L. Ed. 2d 1163, 79 S. Ct. 1060 15 County School Board of Chesterfield County v. Freeman, 171 F. 2d 702 15 Dyer v. Kazukisa, 138 Fed. Supp. 220 Ermentrout v. Commonwealth Oil Co., 220 F. 2d 527 ... Evans v. Buchanan, 207 F. Supp. 820 17 16 9,10,11

Ex Parte Neu- Tork rf Puerto Rico Sliamihip Co.. 155 U. S. 523,15 S. Ct. 1S3, 39 L. Ed. 246. 249 17.15 Oney v. Oklahoma City. 120 F. 2d Sol Romero v. Wealiley, 226 F. 2d 399 15 16.1?

Sealy v. Department oj Public Instriu-tun. 252 F. 2d 595 (3rd Cir. 195S) Cert. Den. 365 U. S. 975 1.195?) . . . . 10 In Re Tiffany. 443, 445 252 T. S. 32. 37. 40 5 Ci. 239. 64 L. Ed.
15

r. S. Ex Rel Denholm d- MtKai/ Co. v. r. S. Botrd oj Tax Appeals, 1942, 125 F. 2d 557. 75 t". S. App. D. C. 195 15 UNITED STATES CONSTITUTION CITED Fourteenth Amendment RULES CITED Rule 30, Eerised Rules of Supreme Court STATUTES CITED
2SI". S. C. 1343 (3)

Ex Parte Fahey, 67 S. Ct. 1558, 332 U. S. 258, 91 L. Ed. 2041 18,19, 20 Greer v. United States, 90 F. Supp. 871 15 Hague v. Committee for Industrial Organization, 307 U. S. 496, 83 L. Ed. 1423, 59 Sup. Ct. 954 15 Ex Parte Hawk, 321 U. S. 114, 88 L. Ed. 572 (1944) . . . 19 Ex Parte Herding, 219 U. S. 363, 31 S. Ct. 324, 55 L. Ed. 252, 37 L. R. A. (N. S.) 392 IS Holland v. Board of Public Instructions F. 2d 730 (5th Cir. 1958) Leimer v. Reeves, 184 F. 2d 441 (1950) Lopez v. Sfccomb, 71 F. Supp. 769 (Fla.), 258
10

1. S. 9,10.11.15

2St~. "S. C!l6oT(a) Section 3201 of the Educalion Law of Xfu- York TEXT CITED 1A Moore's Federal Fracti. p. 2111 3 Nichols Cyclopedia of Fedora! Froc-edure Forms, p. 103
19 1?

19 15

McNeese i. Board of Education, 83 Sup. Ct. 1433 (1963) 16 In Re Mtiir, 254 U. S. 522,41 S. Ct. 185, 65 L. Ed. 383 . . 18 Myerson v. Samuel, 74 F. Supp. 315 15

STATEMENT In October. 1P63, plaintiffs filed a complaint in the United States District Court to enjoin officials of the City of Englewood, Xew Jersey, from expending funds for the purpose of implementing a certain plan which is set forth infra. Said plaintiffs alleged that the plan called for school assignment on the basis of race, excluded children from their regular neighborhood schools on the basis of race, discriminated against certain students by giving a choice to some which was denied to others and called for preferential treatment on the basis of race. Subsequently. Frederick M. Raubinger (the applicant here seeking the TVrit of Prohibition) moved to intervene as a party defendant as did tb<? Englewood Board of Education. At the same time certain individuals, Volpe ei als., moved to intervene a? parties plaintiff. At the same time, Raubinger filed a motion to dismiss. All applicants were permitted to intervene and the motion to dismiss was denied. The complaint of Volpe. et als.. the intervening plaintiffs, alleged that the suit involved rights granted to the intervening plaintifis by :h<? Fourteenth Amendment of the United States Constitution and further alleged that as a result of the plan in issue children of these intervening plaintiffs were no longer permitted to attend" 1 their neighborhood schools and were excluded from said schools because.of .race. Said intervening complaint f u r t h e r alleged that said plan there-fore constituted a violation of the rights of these intervening plaintiffs and their children which are granted to thorn by the Fourteenth Amendment to the United States C o n s t i t u t i o n . A copy of said complaint is attached hereto as Appendix A. Raubinger then filed a morion for leave to appeal the denial of the motion to dismiss which was denied. A copy of said order is attached hereto as Appendix B. The Fuller plaintiffs then filed a motion for Summary Judgment, the bearing of which was adjourned by Rsu1

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

further claiming thai the t*zz'.~::& Board t>i was not discriminating sgainst any children. made to dismiss the Board o: School E;nrj;ai Mayor and Council from the co^piiint. cc :b c the Commissioner of Ed^cati;-!- Jacked jsrisci these parties, was granted, leavinc -he Ende- of Education as sole respoDder::. The Co-Sii?si< that there were five elementary school? bi:h ,c.r by pupils assigned on the basis o: re^ide^ce in . attendance areas. The focus o:' the hev.":!^ Commissioner was CD LiEeoln. School The hne? ; the school attendance district for Lincohr. ?-:bo-oi ously been approved by the Con:ir,:5?i.i:~r. It is most imperial): to E C < < e that the Oon:n:is termined that There was 20 evidence ;o snrir>or: of intentional racial segregation by r; j ;vo::der.!. Tb missioner stated that it is appare:;: :bs: the cor.i of pupils from one race results fro::: p.-."err,s -: The Commissioner did not dispute that ec;i;c:-!:or: tunities were equal regardless of school amended of measurable objective criteria. Hf direcied :i wood Board of Edues'ioa. ho~ever. 1. to formulate a plan TO reduce ibe cojic negro pupils in Lincoln School. '2. to subn-it the plan to bi::: o:; or "reior 1963. 3. to pui the plan, as approved. ir<'o onecginning of the lPnS-04 scbooi y;-ar. On July -9. 1963, the Board o:' du:a:;o:; of Enel^ood. Xew Jersey, adopted s proposal (herein.ifier as the July 2Pih Plan) which would obance t school attendance system in the City of EnckJersey.
A

"Be it resolved b;r the Board of E d u c a t i o n of in- Oiry of Eagjewood. Bereen Co-j:uy. Xew .K-rsry. ihst 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 consistent with the principles and findings enunciated in this decision; 2. To submit such plan or plans to the Commissioner of Education for approval on or before August 1. 1963; 3. To put a plan as approved, into effect at the beginning of the 1963-64 school year. Now, therefore, in compliance with said directives, the Board of Education of the City of Englewood. Bergen County, New Jersey, submits the following plan, to take effect as of the opening of school in September, 1963, or as soon thereafter as building renovations can be effected. 1. To establish at the former Junior High School building at 11 Engle Street, a city-wide sisth 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 School, such assignment 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

3.

4. 5. 6.

ororided that it is administ rationally and educationally practicable to do so. As a prerequisite to the establishment of the citywide sixth grade school referred to in Parfi.crE.r-b (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 a; Lincoln School or B. The number of transfers from Lincoln School will result in class loads in Quarles. CUvel=nd or Roosevelt Schools which, in the opinion of the Board of Education, i; edccstior-aUy undesirable. To assign to Lincoln School all children of Kindergarten age residing in the present Lincoln School district. To transfer the central administrative oce? of tbr Board of Education to the Lincoln School. To instruct the Superintendent to proceed imn:?ciately with all necessary arrangements, notices snc procedures consistent with the laws of the Sta:e of Xew Jersey to execute these directives.

PROVIDED THAT : --..The plan meets the requirements of the Isw and tha: the Board's A t t o r n e y gives assurance of immunity of Board members and the Superintendent fro- taxpayers' suits regarding the expenditure of public moneys to implement any aspect of these plans. AND PROVIDED THAT: The Commissioner approves the plan." It is significant that expressly 1. The plan is formulated to deal with racial attendance in order to comply with Commissioner Raubinger'? 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 leax-ing Lincoln Schoolgiving them the choice of whether or not the plan goes into effect, excluding any election by the similarly situated residents of all other districts. Appended to the July 29th Plan was a statement of the minimum estimated cost and expenditure required to; implement the plan, which said estimate amounted to $123,000.00. On August 1, 1963, the Board of Education of Englewood, New Jersey, adopted a resolution that the amount of $66,500.00 would he 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, The Volpe petitioners appealed the decision of the Commissioner Raubinger to the State Board of Education, which Board subsequently affirmed Commissioner Raubinger's decision. Prior to that appeal being beard suit was started in the Superior Court, Chancery Division entitled Volpe v. Perry which was heard on August 8, 1963 by Judge

Donald G. Coilester. In that ca.se pis-ir-tirf fYo;i~) scugbt to enjoin the Board of School Esriciatr s^d tbe Ci~ of Englewood from expending IUDCS TO ixplTi^-ri ibe a:-."~e plan. Said application wa? denied for thf rr35on 'b=i plaintiffs had not- exhausted their sdr^nisir^iTr rrz-dir?. On August 14. 1P63. ihe piaintin; brreir; erz-urd in ih~ Superior Court Law Division. Bereeii COUEI~. be. fore J-jdef Gordon H. Brown, temporarily assigiird, i-reiu piaiiTir taxpayers sought to enjoin the Board of $.;bo-oj E?7:z;*f and the City of Englewood iron: approprisr.Zi ai-c or ripen cling public fnnds to implement the July 2vih P:EL and that such proposed appropriation asd exprrdiT^rf ": aijudged illegaj, unlawful and unconstitutional At that hearing the Attorney General s; permittee "o intervene on behalf of the CcmmissioDrr of Eolation, and the Board of Education was also perujiiied TO inte-venT s parties defendant. As a result of tbe bearing ihr plaiBii^i" action was dismissed trithout a trial on tbr mrnis and "be relief sought wa? denied. Ssid Decision it anacbrc bereto as Appendix C. That disaiissa- bas beeu srr^fi'led to tbe Superior Court of Xew Jersc-y. Apj.v'ilaic' I>ir:sior. ar;d i? still pending there, and has be^n ir.arkfd "HcOu" pfsdinc determination in the Federal Court*. Ssid ordt-r is atiacbed hereto as Appendix D. The plaintiffs were no; in any way erTeorfd prior to :b? drafting: of the July 2Hth Flan 10-. prior 10 iba' tin:f. there was no requirement for the expenditure of r--bi;o lur.-is. Therefore, prior TO the Commissioner reEderi'JC hi? decision and the subsequent adoption of the plsii. ;be plainrins as taxpayers were not sdverse;y c-rrWie;:. The thrust of the instant complain- ;? scain?: ibe appropriation and expenditure of money by the City of Englewood and the Board of School Estinisie which wore dismissed as defendams on motion in tbe bearings before Commissioner Raubiucer by tbe Commissionc-r for lack of Jurisdiction. Thus neither the plsimins nor ihe original d e f e n d a n t s ( t h e City of Enclewood and the Board of School Estimate) were parties to the- bearir.tf beid ny Commissioner Baubinger.

REASONS FOR DENYING THE WRIT 1. The case below raises a substantial issue of the violation of Federal Constitutional Bights. Commissioner Raubinger found that there was no intentional segregation by race by the Englewood Board of Education. He did find that Lincoln School was PS.O percent negro. He also found that "this concentration of pupils of one race results from patterns of housing and the operation of other socio-economic forces. .. " The Commissioner also conceded that such "housing and non-school problems are not the responsibility of the Board, nor does it have any control over these housing and non-school problems." The Commissioner also found that the Englewood school 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." The basis of the present complaint originated when complaints were made before Commissioner Raubinger dealing with the Englewood School System. These complaints were made by parents of negro school children who desired their children to be admitted to schools outside of their area. The complaints could only be classified as school segrega- L tion complaints. The present action pending before the United States District Court will be determined only after a consideration of the line of cases which have been decided since Brown v. Board of Education, 347 TJ. S. 483, 74 S. Ct. 686, 98 L. Ed. 873. The Brown case and cases following it dealt with negroes seeking admission to public schools on a non-segregated basis. It was charged that negroes who had been denied entrance to schools solely on the basis of race bad been denied equal protection under the Fourteenth Amendment to the Federal Constitution. The Brown decision did decide that exclusion from school solely on the basis

of race violates the equal projection clause of tbe r o n r teenth Amendment, Tbe court also beid on sac? 4~;3 &* ^ Brown decision that where a siate has undertakes ~o r.rovide an opportunity for an educti:.r: in its tyjb;i<: seboo>. such an opportunity is a right which must b~ in-ade avai;= ;,u to all on equal terms. The complain:? sled in tbe in?:Dt action charge that children bsve been excluded fro::: their neighborhood sixth grades solely on ibe basis of r?.ce. s.nd that this exclusion violate-? tbe equal protection c;ause of the Fourteenth Amendment of tbe Unite-a 5t27?s Constitution. The case of Bell v. School Cir;j of Gjrv. -ji3 F. S^ro. 51?. (X. D. Indiana. I9tf3-Jan. 2S. iPoo-U. S. Disi. Ctj" deal: with a situation completely parallel to tbe issue wbieb Commissioner Raubinger was called upon to deciee. In ibe BtU case there was no intentional segregation. Tbe evidrGo; in tbe Bell case as well as in tbe insisat case sbo~ed :hst School Board had followed the gentrfi.! policy of requirinp the students to attend the school desieusied to serre tbe district in which they lived regardless of race. Tbe probjen: in the Bell case was not one of segregated schools b1^: r.:.:be' one of seerecated housinc. Tbe Court iben ~eni on TO decide in the Ben case that it found no sury'ori for tbf plaintiffs' position that the defendant, which was tbe Board of Education, had ibe affirmative duty to balance ihe r&:-e5 in various schools under iis jurisdiction regardless of :b;residence of students involved. Tbe Court f u r t h e r bv-c that there could stiii be all colored schools if all the snider-:? living in a properly constituted school district vrere negroes, and that no constitutional rights were viols-ed beir-anststudents were coa:peiled TO snend tbe school in ibe district in which they live. In the ease of Ertnf v. B^u-itjnc.ti. fJ07 F. Sunw f>0, :be Court stated: "When interpreting the equal protection clause in the Brown case, tbe Supreme Court held only that a State may not deny any person on account of rsce tbe right to attend H public school."

10 It was the determination in the case of Evans v. Buchanan that discrimination is forbidden but integration is not compelled. So too in the case of Briggs v. Elliott, D. C. C. D. S. C. 132 F. Supp. 776 in construing the 1954 Broun decision at page 777 the Court held that it has not been decided that the States must mis persons of different races in the schools or must deprive them of the right of choosing the schools they attend. What it has decided and all that it has decided is that a State may not deny to any person on account of race the right to attend any school that it maintains. The Fourteenth Amendment is a limitation upon the exercise of power by the State or State agencies, not a limitation upon the freedom of individuals. In the case of Holland v. Board of Public Instructions (Fla.) 258 F. 2d 730 (5th Cir. 1958) U. S. Ct. of Appeals, the Court held that the infant plaintiff was entitled fo be treated simply as another school child, without regard to his race or color, and the fact that he was a negro did not vest him with a right to attend a school located in a district in which he did not reside when that geographical rule was being applied to all children alike. Neither segregation nor discrimination are shown merely because there are more negro students in one section than another. Sealy v. Department of Public Instruction. 252 F. 3d 898 (3rd Cir. 1958) Cert. Den. 365 U. S. 975 (l&S). In the instant case, Commissioner Raubinger has held that the mere fact that these students in Lincoln School are negro has vested them with the right to attend schools outside the Lincoln School district, even though the neighborhood school geographical rule has been applied to all children alike. In short, merely because of their color, the colored students of Lincoln School hare been giren preferential treatment, causing a change in the approved Englewood School attendance system. Because of this preferential treatment, other students are excluded from attending the sixth grade they would normally attend, purely because of race. Thus the Fourteenth Amendment

of the Federal Constitution has beer: violated by ri^ise preferential treatment to one croup on the basis of race and excluding the plalnrirs from their t^rzrs: sobers OB the basis of race. In the in* tan* cs.se. the st^d^i'; free.: the Lincoln School were civen their choice -jndfr the July 29th Plan of attending Quarks. Rvoseveh or C-f^hnd School. Why is it that the students iron: Queries. Or^nc or Roosevelt School do no: cet their choice' 1? tbi? T.OT a denial of equality of choice arsd t h e r e f o r e a derba] of ec'iai protection? The students from Lincoln School sr? r-ing granted certain advantages that o t h e r sTudrn's sinjijarj;" situated do not have. The basis of this distinction *= color. Where children were once treated alike by coin;: *o ?-;boo"in their neighborhood, the propcsai is -c-~ to ires* tbeni differently: and why* Purely because of coior. Th; = fa-;" is inescapable. But this inescapable fact i; s d v z r s r j y affecting other children. Children throt:rbont thf '~--- of Englewood who normally attended the sixth crsif a: ihf school nearest their residence :ni;?i so~ t r r = ] $. rarihrr distance to the Engle Street School. They n:r;: DO co TO school in the heart of the business d i s t r i c t c^usi-c c r e s i f r risk and danger to their person. Bf c-u?e of this rTe:erer;ce being given for color, because of this esc;ufion iron:normally aitended sixth graces, added expendituref of public funds will be imposed upon the taspsyevs s.~ s minimum cost of 5123.L\X\(.Vi nii-rc-Jy to i-npienier; the change. In Er,uif v. J?i^i'/J'.jHi7n. supra. 207 F. S'jpp. SCO . D. IV:. l?62i i f . S. District C o u r t ' where the oouri ^as coE-'rr.niec \rith a situation invoivinc an all negro sch-ool in a necro ro?idontiai area w i t h a obarce that this vioJs:e3 'he c-ousi proteoiion clause of the FourToeiiib AiVa'-ridn-:-;-!-:; of the Fedoral Constitution, it u-as arcasc-d t h a i the S^a:e i? co::)peJ:ed by the equa-3 proieoiion clause io p r o v i d e ::nirnian-.v:y an integrated education. The court held that the s t a t e s are not required to provide an integrsted education, seninc forth the Fourteenth Ameudn-.f-nt at pacr ^23 ss f o l J o w ? :

12

"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 law.- unequally. The court v.-ent on to state at page S24: "In effect counsel is asking the states to intentionally gerrymander districts which may be rational when viewed by acceptable nondiscriminatory criteria.. In the instant case the equal protection clause has been violated as to all Englewood children from the four districts other than Lincoln School, because the former are completely disregarded. The permissive transfer policy cannot be granted to only one out of five districts. The negro child from the Liberty School District should not be deprived of the privilege granted to the negro child of the Lincoln School District. If concentration of any one group is "segregation" (and hence a violation), then the Jewish, Italian, Polish, Irish or Chinese, etc., child should be given equal privilege to transfer. As a result of Commissioner Raubinger's decision and approval, we now have two standards of school attendance in Englewood. in effect one for negro students and one for white studentsOne for negro students; i.e., since the Lincoln School district is predominantly negro, they have the privilege of choosing any one of three schools, which is a form of open enrollment; one for white students who reside in those other three school districts who must attend the school in their neighborhood. He has set up two different education standards because of color and race, which is precisely wliat Brown v. Board of Education prohibited. * The case of Baiaban v. Rubin, reported in the Xew York Law Journal on September 11, 1363, decided by Mr. Justice Baker sitting in the Supreme Court, Kings County, Special Term, part 1, is quite similar to the facts in the instant case. In the Balaban case a new Junior High School Nro. 275 was constructed in Brooklyn, N. Y. There had been

in existence Junior High ScbooJ X x 25-5. ih-e petiiios-rs were parents of children wlx- --.rcc'd b^r-e ccc? to ib~ir neighborhood Junior High Seisoo) No. 2*5 ^sctpt :c>r ibe zoning scheme which now pj.-.crc iij-j-iv. uDCvr !No. _'~5. During the construction of th:- r:~-v ^-:l:co}. "Xo. 2~c. QE-T 3k-dnick was given the responsibility of dra-a-^c a zone for School Xo. 275. His propo^d zor.f ~ss recoiiiir.ercfc "tithe School Board but later r-:-jf-:-:fd 'py :re AS$I*.B:J* Superintendent of Schools for "vo "Tysons: 1. It was not Htra!iy locstrd. '2. It failed TO consider the ui^^irsD:? "ce :ac:o segregation" of nocro a:i'.~i Fufr;o H::-i^ ciii!'.ir-;-i ibs* would obtain, which wpuid bo -52 y^r cen: sfjro. 34 per cent Puerto Ricsn si;d 14 r-fr ofD' bile, whereas under the scbool pii^. "DaiJy spprorfc ibr percentage? would be ?5.2 vie: cv^: Dfgro. o^.o pvr cent Puerto Rican find 31.2 per C^ET ~bite.

''That racial balance- .-.< s :oi^V'ei::nc rejection of the B;odi:iok proposal snd for bv the board of the zoiv;- r:jj:;J)y ^doprc-d : The court decided the c;i#e ::r;dvr the t.tSec. 3201, of the Xew York 5::Kv Si: : .tute? ~j "N'o person shall bo :vf;:^d adm:*si excluded from any p-,;bJ:o school in ih? York on aoc-o 11 nt of r;:.;-o. ^r;-:-d. color origin," The court held: "Th? inohision of potirionfrs 1 c::ildr?:i zone approved for ,T. H. ?. No. 2T5 upon their raot* .ind their cOi]*r-ot^riT t'-Ncr-i^ion N"o. 2S5. thoir trfldiiionsl iK-icnhorbood frhool asis of . H. S. ]. arid

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

of the equal protection clause of the Fourteenth Azirsc-ment as interpreted by the Brown decision end subsfcu^-: decisions which proscribe esclusion from public sci-ocOs of any child or children by reason of race, creed, color or national origin. 2. The Federal District Court Has Jurisdiction Jo Hear This Matter. The Federal District Courts have jurisdiction ovsr r;~ civil action authorized by law to be comicenc-ec by p-rscc to redress the deprivation, under color of acy S*s:r '?.. statute, ordinance, regulation, cqstom or usage, of any r;ti:T. privilege or immunity secured by the Constitution of :br United States or by any Act of Congress proridisff for rC^s" rights of citizens or of all persons Triihin zhe jurisdiction of the United Stales. 2$ U. S. C. 13:13(31. To snore sucL protection of constitutional rights, privileges or immuninr's. a Federal Court may in a proper case grant injunotire relief. Haaite v. Conuniitee for InduftriaJ Organisation. 307 U. 5, 496. S3 L. Ed, 1423. 59 Sup. Ct. 954. modifying 101 F, _\ "74. County School Board of Chesterfield Cc-unfv ~. jTft-i-n?-.-*!. 171 F. 2d 702, aff'g. $'2 F. Supp. 167, On-:y v. Okith&mt City. 120 F. 2d 561. Mverton r. SjmucL 74 F. Snpp. 315. Lopez v. fcrconb. 71 F. Sunp. 769. A federal suit is not barred merely because a bovine in the case might be res adjudicate OD tbf fanjr nsriie* litigating the same issur- in a Srst? Court anA tbc-rrby moot the State proceeding. Countu of Aricchmu T. frc.uk MasMa Co-. 360 U. S. 1S5. 3 L. Ed. 2d 1163. 7P S. Ct. IC^J, Where the action which is first brought is in pcTsoDsn: and seeks only personal judciiieni. another action for tbe same cause in another jurifciiction or Ffdir-ra! Pitricr Court is not precluded and will nor bi? disiajissod. Grt-tr v. rn^c-J Staief, 90 F. Supp. 571. Pendency of State Court Action in persoaanj does nor preclude jurisdiction and is not a cround for abatement or stay of like action in the Federal Court, evt%ii ihouci;

16 the same issues are being tried and the federal action is subsequent to the action in the State Court. Ermentrout v. Commonwealth Oil Co., 220 F. 2d 527. The recent case of McNeese v. Board of Education, 83 Sup. Ct. 1433 (1963) involved a situation wherein negro children were seeking registration in racially integrated schools. The respondents interposed the defense that petitioners had not exhausted their remedies. The Court on page 1435 stated: "It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy and the latter need not be first sought and refused before the federal one is invoked." On page 1437 of the McNeese case the Court stated: "Petitioners assert that respondents have been and are depriving them of rights protected by the Fourteenth Amendment." The Court went on to say that human rights under the Federal Constitution are always a proper subject for adjudication and that "We have not the right to decline to exercise that jurisdiction simply because the rights asserted may be adjudicated in some other forum." The abstention doctrine does not apply to school segregation^cases. Moore's Federal Practice, Volume 1A, 2d Ed. Section 0203 at page 2111, citing Romero v. Weakley. 216 F. 2d 399, where the Circuit Court held that the District Court dismissal of school segregation suit was error, stating that the: "Federal District Court is as well equipped to consider the evidence on this question as is the Superior Court of the county." See also Dt/er v. Kazukisa. 136 Fed. Sups. 220 inequal protection and civil rights act and holding, th; cases belong in the Federal Court, The case of Broicder v. GaiAt. 142 F. SUDP. 701 352 U. S. 903, 77 S. Ct. 145. 1 L. Ed. 2d 1U expressly r the doctrine of abstention where civil rights sre in The Court at page 713 stated: "The short answer is thai doctrine bss no app where the plaintiffs complain they are br.isg d of constitutional civil rights for the p r o t e c t i o n : the federal courts have a responsibility as hthat which rests on the st;-.;e courts." In the instant ease the plaintiffs and inter-renir-g piaiminTs complain that they have been arid are being deprlred of constitutional civil rights and of the equal projection of the laws. This case is a school segregation c-^se. I: siartrd out as such and has continued as such. It cannot chance ;ts complexion merely on the allegsnons and eC'nuntkn; c: certain parties. This must be a TTro-r.y s:ree:. If tbis is a school segregation case for the parents of the children attending Lincoln School, then it must be a school segregation case for the plaintiffs in this particular actv.-.s and .-therefore the doctrine of abstention i? inapplicable. Mctio" for leave to file Writ of Prohibiuon should be denied here the lower court has jurisdiction. ""3. It Has Not Been Demonstrated Tba: The District Court Lacks Jurisdiction Xor Tha: The Applicant Has No Other Be::

18 If the jurisdiction of the lower court is doubtful (In Re Muir, 254 D. S. 522, 41 S. Ct. 185, 65 L. Ed. 383), or if the complaining party has an adequate remedy by appeal or otherwise (In Re Tiffany, 252 U. S. 32, 37, 4~0 S. Ct. 239, 64 L. Ed. 443, 445; Ex Parte Herding, 219 U. S. 363, 31 S. Ct. 324, 55 L. Ed. 252, 37 L. R, A. (N. S.) 392), the writ will ordinarily be denied. Such a remedy should be resorted to only where appeal is clearly inadequate, and it is reserved for really extraordinary causes. The Supreme Court is normally unwilling to utilize such a remedy as a substitute for appeals. Ei Parte Fahey, 67 S. Ct. 1558, 332 U. S. 258, 91 L. Ed. 2041. This writ is not to be used as a method of appealing from interlocutory orders. Abrams v. McGohey. C. A. X. Y.. 195S 260 F. 2d 892. The applicant for this Writ of Prohibition sets forth in his brief at page 6, paragraph 9, that his motion to dismiss was denied by Judge Augelli and that his motion for leare to appeal was also denied. This application is nothing more than a substitute for an appeal from an interlocutory order and should be denied forthwith. Further, in seeking a Writ of Prohibition the lack of authority of the body against which the writ is sought must be clearly shown. D. S. Ex Rel Denholm McKay Co. v. U. S. Board of Tax Appeals, 1942, 125 F. 2d 557, 75 U. S. App. D. C. 195. Where that jurisdiction is in doubt or dependent on evidence the writ is normally denied. In Re Chicago R. I. P. Ry. Co., Ohio 1921, 41 S. Ct. 288, 255 U. S. 273, 65 L. Ed. 631. There is no basis for the writ where the lower court is acting within its power or jurisdiction. Vol. 3 ^Jichols Cyclopedia of Federal Procedure Forms p. 102 section 101.02. Where the District Court has general jurisdiction over the subject matter and over the parties, it should be allowed to proceed to decision, and if error is committed, it may be corrected on appeal. New York & Puerto Rico Steamship Co., 155 U. S. 523, 531, 39 L. Ed. 246, 249, 15 Sup. Ct. Rep. 183; In Re Muir, 254 U. S. 522, 65 L. Ed. 383, 41 Sup. Ct. 185.

19 It is significant to note that the original parties iefencan' are not petitioning. On the other hand. tbe applicant is one who moved to intervene and vob^ijtsriiy stjbmit-ed himself to the jurisdiction of the Federal -District Court. The first point of this response brief has reei; set o-ji ESI to enter the merits of the case but to demonstrate that tbe Federal District Court does have jurisdiction of :b>? ^ = ::rr The applicant for the writ concedes on page 21 of h.:s brie: that the abstention doctrine has been ruled r<ot to apply iij school segregation cases, chins: K o m f f Y . v. 7TV.:.-.<Yi/. s'or-ra and 1A llooref Federal Praditf. page ill! Tb;cb is precisely the subject of this case. Further Rule 3-1 (3} of Renf.:,l Rwa o: fin-r-:m-: C-:*r-,. effective July 1. 1954, provides that if tbe petition seeii E Writ of Prohibition it shall set forth with parti-rarity why the relief sought is no: available in any other court. This is not done in the petitioner's brief. Ordinarily the writ will not be granted if there is soni? otber re~edy available. Vol. 3 Kiflioli Cyclopedia <./ Ffrfrrri pr:-:-.iur? Forms, page 103. section 101.04. This remedy should be resorted to orjy in extraordinary causes and where appeal is a cieariy inadequate rexeiy. The Court is unwilling to utilize this remedy as a sribstit^te for appeals. As extraordinary remedies they are reserved for really extraordinary causes. E* Parif Fahe'j. S?2 T. S. 25S. 91 L Ed. 2041 (1P47) ; Ei Pc.ric Eatrt. 321 U. S. 114. _SS L. Ed. 57- (1944^. The petitioner in this instance does not claim tbs- be has no right to appeal. If he is unsuccessful fit tbe trial level, he has reserved his right to appeal, and therefore can follow the normal procedure in a case which is not extraordinary. In the case of Lcim,-r v. Rscrrf. 1S4 F. Cd 441 '1P50J involving a petition for a Writ of Prohibition which was denied by the t". S. Court of Appeals, tbe court said: "Prohibition is sought against e. court tribunal or person assuming to exercise judicial or quasi judicial power, commanding the court or person exercising judicial or quasi judicial power to cease from tbe eser-

20
cise of a jurisdiction to whicb it has no legal claim. It is primarily a restraining ratber 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 lav. 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 Bant Commissioner, 332 V. S. 25$, 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 judgo 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. We 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 things contained in the Motion, Respondent prays that the Motion for leave to file Petition of Prohibition be denied.
VORSANGER & M v R F E Y , ESG.S.,

APPENDIX A UNITED STATE? DISTRICT COUBT DISTRICT OF NZVv JERSEY i l l Ecu::" GEETJU-DS P. FVLLIT;. K:..-H.,--: L

JOSEPHIKE CACCIOL.'-. Di; v.-.:>. ii:o others to be named. JERRY YOLFE and KATEEF.INE VOLFI. his wife. Louis Pro-ACE ;".iid BEATRICE PVGACE. hi? rdie. ALIAN LAPSES and JIT.ITH LASSIE, b:$ ~i:~. OTTILIO P'Aixssio ar.d MA-UE P'A;.LESIO. his wife. SOL HA>"-^S ar.r. LILIAN HANDLER, hi? wife-. L V G E N E F. CLEMENTS and MAF--O?.II CLEMENTS, bis wi;V. EP^AF~' Ho5?:x? f.nc. GLOFIA ROEBIXS. hi< "-'i'If. LLov:1' POLLARD find BLAXCEI Poii*RP. hi?

ArsTix A. VOLK. WILUAM p. Tics>-OT;. JK.. 0. CABLYSU: McCAxr-L^s. CAF.MEX R. Hixrz and W\?.F.IN L LEWI?, coii^iiintine ihi- ?C-A^T. c-.SCHOOL ESTIMATE OF EN ,v._?--v ;,..-,:, XEW JERSEY, and THE CITY o- F.NOLEwoon. XEW JKFSZV. ,'C-HN E. PEF.BY. LOUISE GRAFOW. THEOPORE R. VAN ITA.LI.IE.. CAF.MEN R. HINT.T sr-.*. AVAKKEN L. LF,WI>. co!i<tinji:ng iho BOABP. iir Eri'CATi~'N OF THK CITY OF

Attorney? for Respondents, Gertrude P. Fuller, Richard L. Grubman, Thoma? F. Cacciola and Josephine Cacciola. Dated March 9, 1964.

FEEPERICK M. RAVFIXCT?:^. Conr : v.i? <ionc-r of Eciucatioii of ibe State o Xow Jersey. I n i e r r c n t n j Defendant. la

2a 1. The intervening plaintiffs are citizens of the United States and of the State of New Jersey, as well a? taxpayers of the City of Englewood, Bergen County, New Jersey, and are the parents of minor children who attend the public school system of the City of Englewood, Bergen County, New Jersey, and during all the times hereinafter mentioned occupied the said status. 2. This suit involves rights granted to these intervening plaintiffs by the Fourteenth Amendment of the United States Constitution. 3. The City of Englewood maintains an elementary public school system, and at the close of the school season in June of 1963 operated 5 elementary public school building?. 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 the 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 the system as thus operated, the children of these intervening plaintiffs would have attended a neighborhood school in the school year commencing in September of 1963. 7. Prior to July 1st, 1963, certain parents of school childretf attending the Englewood school system filed with the intervening defendant, Frederick M. Raubingcr, petitions alleging that the defendant, Board of Education of the City of Englewood, maintained racially segregated public schools and bad refused to implement plans to eliminatepatterns of racial segregation alleged to exist in the public schools, and requested an order directing the defendant, Board of Education of the City of Englewood, to take immediate steps to eliminate all aspects of racial segregation in the said public school system. The said petitioners f u r -

3a

ther prayed that the defendant. Board of Ecu-:s::on of :b= City of Englewood. be required to pnt in effect a particular proposal known as the "central intermediate school ru::;." 8. The intervening plaintiffs -.rere p-rmitied to intf rvrn? in that action. P. On July 1st. 1963. the defends^. Frederic): M Raubinger. filed his decision in which be held iha: the defendant. Board of Education of the City DI Enzlr^ood. did not maintain a racially segregated school sysiers hy deliberate action and intent. He f u r t h e r held t h a t tbr enrollment in one of the said public- schools, i. e.. Li TOG In School, was comprised almost exclusively of necro vj;.;.!>. and that the defendant. Board of Education of the City of Englowood. should be required to take afr.nr;:::> ac:io~: to improve the racial balance in iha- school. 10. The said Commissioner, Frederick M. Kaubiziirer, b;~ the decision above referred to. directed the defends:?:. Board of Education of the City of Encle~ood. to :cc^-^:.-.:-: a plan, or plans, to roduco the alleged extreme co^;-?n:r?.t;or. of pupils of the negro race in the Lincoln Soboc;. and to submit such plan, or plans, to him on or before August is:. .1963. and to put ibe approved plan into effect at the bee^Ening of the 19S3-1P64 school year. 11. From thi? division these intervonisp p l a m t i n ? ap-ilpnlc-ti to the State Board of Education, in sccordarice ^-iih tb.e s ' a i u l e in such oases made and provided-. 1'2. M'hile the said sptieal w?.= peno'inc. the defc-r.dar;!. Board of Education of the City of Englewood. pro-^il^sied a jilan and snbmirted it to the defendant. Raubisger. \vi-o aiiproved it. 13. The said plan is referred to in the oompla:nt heretofore filed by ihi? plaintins. Fuller et sis., as a reference to the sr=.id eonrolaim will more fully disclose. H. Under the said plan, the children of these intervening plaimins are no longer permitted to attend neighborhood schools, but are rerjuiroci to attend a sixth grade established for the sole purpose of forcibly intermixing while pupils with negro pupils, and which plan deprives the 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 23, 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 that 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 DISTRICT COUBT DISTRICT OF XE~ JERSEY

GERTSVDE P. Fru_zs. e: sis..

t\. L Orcf? -<t--'?.t _

AVSTTN A. YOLK, et si?..

J
APPLICATION bavins: bee a n:.:.oe b~ Art-hur J. Si}!>. Attorney General of the S;?.'f of Xe~ Jersev, os behalf of Frederick M. Raubinger. Con;r.:is.*ioarr of Eduction of ;be State of New Jersey, for iesvf :o a roes! from s.n order entered on November \'2. IPtfS. whic-i: order denied s. motion by the said Attorney Grner^l TO r.i*r.:i$= the eonivis:-: zied herein, and the oour; having besrd Joseph A. Ho*?::nD. Esquire. Deputy Atiorr/oy General of the Staif of N"ew Jersey, in support of the said n;otio-j: Jsn:es 7. Murphy. Esquire, appearing for the p U i n t i f f ? : Jaises A. M.-.;or. Esquire-, appearing for Jerry Volre s:ic Kstheri"-:- Voi"'e. his wife, and others, intervening p'^.ir.'ir's: Siiss-v Diccin. Esquire, appearing for the Board of Ed^osiion of the C'itv 01 Englewood: and John J. Brefiir f , Jr.. Esouir:-. ?.Vi-j-esring for the Board 01 School Esiirr.?.!? of Er.c!c--oc>d. S,->* Jersey, and the City of Eniriewoo-d. Xe^~ Jersev: ar.d the court being of the opinion for "he reasons *ei :or;h ir: it? conclusions stared in open court th;i; the apDiicstion should be denied; It is, on this l'2tii day of December. 1963. Ornsr.in tha; the spplieation for leave to appeal be and the same is hereby denied: and

Ga
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 Xe\ 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 NEW JERSEY BERGEN COUNTYLAW DIVISION

The above order is consented to as to form. ARTHUR J. SILLS, Attorney General of Seic Jersey for intervening defendant, Frederick M. Raubinger. State Commissioner of Education. By: /s/ JOSEPH A. HOFFMAN, Deputy Attorney General. /s/ JAMES T. MURPHY, Attorney for Plaintiffs. MAJOR & MAJOR, Attorneys for Intervening Plaintiffs, Jerry Volpe, et als. By: /s/ JAMES A. MAJOR, Partner. /s/ SIDNEY DINCIX, Attorney for Board of Education of City of F.nglen-ood. /s/ JOHN J. BRESLJN, JR., Attorney of Board of School Estimate of Engleicood. New Jersey, and City oj Englewood, New Jersey.

GERTRUDE P. FULLZ?., RICE A?.? L. G R U B M A N , THOMAS F. CACCIOLA and JOSEPHINE CACCIOLA, his w:;>. ana others to be named. Plaintiff. AUSTIN A. YOLK, WILLIAM? P. TI^TKXOR, JK.. 0. OARLYSLE McCAxrcz??. CARMEN R. NINTZ and WA?.?.ZN L. LEWIS, constituting TEE SCHOOL BOARD OF ESTIMATE OF THE Cirv or ESGLEWOOD. NEW JERSEY, and THE CITY or ENGLF.WOOD. NEW JEF..SIY. Dfltndantf.

Be/ore: HON. GcF.ro.v H. B-s,-->-. ,/. C. C., MESSRS. VCISSAX--,ES X Mv?.r=v. By: J A M E S T. Mr-.-~y. Ess.. F,ir (/},- riiinliff. By: JOHN J. BRESLIN. Jr... Es.. For i'Kf fciif.rf Bi-.-.ri-: oi Ef<!mj;t snrf ihf Cil>, f< Etipl-:H-*fi/1.
7a

8a
SIDNEY DINCIN, ESQ., For the Board of Education of the City of Engleicood. ARTHUR J. SILLS, ESQ., Attorney General, By: JOSEPH A. HOFFMAN, ESQ., Deputy Attorney General, For the State Commissioner of Education. ALBERT AGOSTIXE, C. 3. R., Official Stenographic Reporter. THE COURT: The Plaintiffs in this action are Englewood 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. Raubinger, 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 Sth. 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 bad previously been petitioners before the State Commissioner to oppose any action by him

9a

which would alter arrangement. After extended hearings tbe Commissioner rendered decision adverse TO the Volpe DC?::::>::. The decision dated, July 1. 19?.3. direc-ed :be Board :" Education to formulate a plan to eli.-.-Cr the neighborhood system and TO submit The same for spprcvsj OE or before August 1, 1963. for use in the l?63-l?7-4 school year. Such a plan was submitted and approved by ibe Cor^nissioner on the date mentioned. I have read the file in the Voipe case and ibe opinion of Judge Collesier therein. He dismissed the Cc>mp;s.i~: en the ground that the action of tbe Comniisiio-er and the Board of Education should not be renewed i~ the Superior Court because- The Volpe set ion constituted a coils tersi attack upon the Commissioner's decision. He pointed out that the Legislature has spec-ined smother forum- for re~ie-~ of the Commissioner's action, namely, the $;?,<e Bc-sra of Education: and thai the next ?u-p in rene^ sbouM be taken by the Appellate Division pu-susnt to Rule 4:SS. There was a special circumsu=.::c in tbv Vo'ipf pic-tDrf. The plaintiffs ibere riled an sppoal from :br Commissioner's Decision of July Is:. Tb?.t sppesi "o tbv Suie Board was pendinc 3" tbs? tii:>:j Judge Collesier hfsrd tbe Volpe Case. Specifically. *h<= Jiidge framed tbe piroti; issue before him as follows-. "Th~ issue before me is whether or not the Chancery Division of tbe Superior Court can and should T-ske jurisdiction of tho cause ssserivd by the plaintiffs in their complaint, or R-ht-iher -be conipisir:' should be dismissed because tbe issues are now before tbe State Board of Eduction." He held, in efuvi. that because ibr plaintiffs bad put themselves before the State Board their dispute should be heard in that place, because they bad a sufficient administ r a t i v e remedy then?. Judge Collester rejectod s oi>nK-!i:io:i that tbe plaintiffs should have a separate judicial remedy because they sued

U U

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 bare 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 the 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 the issue before me. The question I must decide is whether citizens and taxpayers who assert that the fiscal effect of the 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 that the thrust of the present complaint is against the 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 the statutory framework of a Chapter 6 District; general responsibility for the fiscal business of such a district is in tbe hands of 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 the Board of Education. Thus, if the defendants here do take the action which the plaintiffs apprehend the defendants will be acting in a ministerial capacity only.

lla

If what they do in the way of raising money ha; any :npact upon the rights of the plaintiffs in this case i: wi;] be because the purpose for raising :h? one- i= in SOTS- "27 wrong. Necessarily involved tbec ID 'be ca;? ~hkb olaii!tiffs submit to this Court for judicial rerie U :be merit of the plan and its underlying relicy. These documenis are, as the oo":pl = :~-' ::=elf eiirges. pimply implementing a school policy tbey cic nci m a k e . ELO indeed cannot thwart. The contemplated action by these :wo defender::; can br justiciable only if tbe plan is objectionable. To re~:e~ ihr propriety of the part plsyed by tbesr minisiehi; iztz'* without at the same time rrvit-u-ing the policy :':-rzDujt-c by their principals would be impossible. Public school policy in Enelewood has t-?er ~c courier? to be in the throes of controversy. R. S. 15:3-14 provide? that the S:s:e Commissioner of Education shall decide s!l controversies anc disputes arising under the school laws or sistt rules and rfC-Jatior.? It further provides that bis decision <b.-.":i r~ binding ur:il superseded by action from tbe S'-f.ie Bo=.rd of Ec-jc-aticc. after appeal. He has m;ide a ceoision is :bis sr??.. The City Board of Efesiion. Bosrc of Scboo; Es'i s:?. and tbe governing body ;;!v bound by ib* deois^on. It :s presumptively valid as it .iifocts tbo preset: deft/ndaijTs. Tho Englewood Board of Sc-boo] Estin^ie ^nd ibe cfverning body are so situatt-d in ti:-e contei; thsi they are required by law to nripiemc-n; a plan made valid .-.s of t h i s niomeiii by a presumption of law. Tbe pl?.n ous: t-e regarded as baving contiDiied vaiidiiy unde-r Js. cosstiiutional or otherwise, until upset in :be supellste lasbior: prescribed in Title 1? of the Rerised Statutes. There cannot be a collateral snack on tbe plan even for the reason* urged by tbe present plaintiffs. This is because they present a controversy of a peculiar typ/e. Ir is a public school controversy. As to such an issue the Leci?ifiture

12a

13a I. ALBERT AGOSTIXE, a CeniSed Sbonbscd Reporter o: the State of Xew Jersey, certify iha: the foreroiss is :~ = and accurate cooy of ny sie::oc:rrihic notes Ai3z?.T AGO&TIXZ. A-LsiF.T AGOSTIXE.
Dated: S/20,'63

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. E. 4:8S 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 bis decision does not bar tbe 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.

'=/

Certified $fic>rir,cnc E-r-trttr. Qrncic! $T?nC'Qraz)ii( JT-r-c-r.'fr

:Board Prm'ml^ With Its Plans.

BriGI
MiUHVOOn Or. M a r k F!

Ticknor And McCandJess,/ Claim Slate -Blackmail'

Th| -

Board Proposals Arc Appro red *

(Continued f r o m page 0

sch(.f.l siumion d-.-i-lopnl rapidly

1. The Il,, ; ,r,l ,,l S,-l,,,,,l K-.tii.ial,- bv ;, vcitc uf 3 u, '

Mi.-tld. luncrintenricnl. rciwns approved tin- Board of Education proposals ror chanpns th-lhal i he lionrtl of Education i> method ol' .nssijnm;; pupils to the various schools but refused : lirncivflins w i t h all spu-ci but to WOprirto funds to provide free bus transportation fr.r i l i a t ilicn- u i l l lie ;< delay O r a '-'"TO1" School children to attend other schools. Myor Austin N. Volk. citing pressure from Trenton th.ffvt- ttcoks in romplctim ihf threatened loss of nearly Sl>50.0n() in State aid. and the im\vhtilr program. portance of ending the turmoil in the community and in the Tltf (Ira.in- of i.ians and bid choob themselves, vutt-d for the p l a n . However, the Mayor iii-cificjiitint ..u matt-rial., t.. b>" refused to go a l o n with the proposal to appropriate f u n d s to M-d at I] Kiwlr Mrt-t'i. for nip, W to transport Lincoln School children out of the Fourth cily-widt- filh (Irade School arc \Vard into Clevfland. Quiirle.s. and Roosrvelt Schools; he r^procffdtni! a rapidly as |)().,. fused also to providt- funds to hrinij in outsidp educators r. j >iblc. Meanwhile, Attorney Sid- help implement the board's plans.
j -, I 1 ! npy Dincin is preparing Ihe TICKNOR, MC CANOLESS 'NO' Hoard of F.(!IIC>I::O;I ca.se.- tu l('oimdim.-in-at-bi -.- Wilh:un D. heard iwic<- durinc the ni-\ few Tu-knnr .h . iriul C'Mtncilmiin ' Cardays One before ttii- Siaie !>>lc .Mi-Cii::diev vo:ed "IH." on Hoard of Kdticnlion nn Kriil.iv, thr uilH-r before tin- Appellate nil iii Ihe :ipprnpt-i:iti(in- Tlie\y DuiMon of ihr Now .I..TM'y >up. i> i L..., ,

!i^e Ihr i-iilirp mattrr -hnuld have been ;ippe;i!ed Stale lor iucrirk-i/ed the on it- ion>!t(uiionali:> l.i th.- C,..ard of Kd.icatw.ti m the '"'Hindi rather than put thi> Appellate Division Order a wilhhold Kiilvwon,!'> -h;iif ot Sta- through ;i niakc-liil! ar.d \Vii.-tcJut le aid. They characterized such rtrngr.-mi. Mayor Limiti Vo(* -.::::!;. !;r .-irl.v.v,; .,m,i iiu- uiii- iM.iii. uiu-viuiiiuliuiuii. ;nni not in M:t>i,r Vi.lk >l:.l.-d thn; M-:n:i1.- decision of Ihiil court. 1! "ill nut h,- jM^sihlr lu nautlii- r.irililii-s :.! II Knstr Mrerl r<M,ly Tor il,,.- opening of schm.l

Ihrentciu-ii w i i l i |nv ; ( ,f si:ilc ;iui imloi U aiidpis the p l a n . ) "Thi> i.- action t r u l y .-liotkin^' to a n y o n o v. ho i t i l l bi'lir-vi's l h ; i t ' UK- S l a t e 15- noi omnipoti'iit and i n falliule:" he xiiiL "The Commissioner'; ;rci;on as.-unst Orange was; economic b l a c k m a i l and i n t i m i d a ,!ion of the mo..; t h e most rianr.int sort." It strikes at our basic r i g h ; ! of appeal. "The Kaubinscr decision in the : Englewood case is so patently ! wrong, so devoid of any j u s t i f i c a ' tion in Xa^v or )>r*i*-^0..t umv o^f

Approved But Withou^Tree Transportation;

Expected; Taxpayers Still Trying To Stay It

Tlic

IMII

Bi^n-d

of

r.diH-iiiiim Slatvs threat lo wiihold more th;,n

cofwiilcr am! approve plans and votfd in favor o[ the proposal* and the citizens, lo maintain sound fiscal policies: and to restore norLincoln School students in Grades coin School. posals. I through 5 lo Cleveland. Quarlca 2. In term* of money, the Board and Roojcvclt Schools. In any He refused, however, to fio *lonjr event Sixth Grade pupil* will at- of School Estimate, and subse- with providing free transportation tend the elementary school serv- quently the Common Council which to send Lincoln School cfiiJdrcn (Mslricls during the first weeks of the school year.
Quarle5 . am, noosevP|t few- available the sum of only S66. 500, ];md refusing to appropriate s 13.000 for Sci|0ols and he reftlsed to support transportation nnd S5.000 to brm S | | h e hjf.jn,, Qf outsidc consuitanls Parents of children who will in outside consultants. The Board ! for |h(. bo3rfl pro,,T.am. be four years of aye on or before of Education announced thcit it alDecember 3 1 si of this year and ready has in its capital budget

their children in this pros ram are requested lo communicate (his interest in writing to the Of! ire of the Superintended! of Schools ;it 1 1 Ensile sired. Parents should Hive their name and address, thr child's name and dale of hirlh. As plans for this i program materialize the Superini tendon 1 will communicate dimct'_ ly with parents at a later date. i It is unlikely that the Pre-Kindersartcn program will b^pm be fore November.

Ihe renovation ol the old Enjilc street .Junior Hii-h School. BOARD S T A R T S AT ONCE 3. The Board of Education \veiil into action immediately in preparing for renovations and truinine of teachers. Dr. Mark n. Shi'dd states that the program will not be completed by opening day and thai children will have lo sUrt Klwot at their usual neighborhood .schools The- delay will he rir.lv a matter of u few \\-eeks. hf >;iy.<. Tin- pkin c-nIN lor fxlcn.-iv t-h;in-e>; K-slahlishmenl ol a fentral Sixth Grade tor all Ihe city's aixlh rade pupils in the old Kn^ltstreet Buildin;;: transfer ot Lincoln pupils ol first thrmiGh tilth sradeh to Cleveland. Queries, and

i-iiii'o do nothing but condemn 'lie plan, "it is my opinion that the liaubinucr decision is one of poitical expediency and that it is no' based on existing law . . . 1 believe the Board of Education or- thr Common Council or both should have appealed the Ran binder ruling ... 1 certainty cannot \'0ie for the appropriation o[ any lumU io iniplemeni any of the present proposals without further- expression nt opinion n part ot the citi/-enof Kni;lewood. When I wa*. elected to the Cnmmon Council I assumed the re.-ponsibility of carryins om the it of the majority. If my action.- arc ni 5 3tisfac'ory t!ie pr"ple have a means o setting th': record -traiyht in Hie coming eiettion."'

\y politically motivated as to make it almost u n t h i n k a b l e t h a t i the Board of Education of Englcj wood has d i g n i f i e d it by seeking to i comply with it." Mr. McCandk-ss said t h e Board of E d u c a t i o n may feel free to ignore the o p i n i o n of a m a j o r i t y ot t h e citizens of our c-'jmini'iiity bul I as an elected o f f i c i a l do ;u>t."' An appeal fi',;n tiie Cummissionei'.- dcci-:mi s h o u l d havi? been , t a k e n . .Mr. Mc^.-i'idless s t a i r - bccau^c of t h e q u e - ' i ' : n c-f c o n s t i t u t i o n a l i t y air: t h e d e n i a l v i d u a l r i g h t s . Tiie bnajd'.based on (."n.-i'ic'ration; and tin.- is u n c . i n ^ t i t i i ' i i . p . . a q u r - M i o n !iia ; >ii(". before taxpayrrb' ^ ;'^i c'i.

J J

Mr. Ticknui- ;iid the basic proba prc-klndenjarlen L-!;I-^ ;<t 'ho KnL'lc Street Building a (uah hori- k-m '.[ ihc t:)^lc\\"0(l schon!- n;izons m oar-am tor children and never been completely tieEined: lessen iindcr-achievemcii!. COURT ACTION PENDING :ill thr re>n>ii>ible people in Ku.ulev.d'irl ha* never been brnush! lu^elht-r: and thai until such 01-

1 B/^-^G,^
J

tiiou^h :> .John .!. l'.re*lin. Jr.. in;ikeshi[t> and mo rue.- appro pi'; (.-niin^el tu the Common ruuncil on tin- >c!i!.'ol i--.ite pitinlrd out. nut llr- L-oni-iudi-d hi- *l3Uinir-ni '> of ;i ni.turi- l<> pn-\enl Hie Il-Jiii'l of diic:iMuu (s-'iin C'jrr; inn om sioner. If! me ri'iiiVi* ilia! I believe uti the !:ix|\'-i< yi'oiip ( ahoiil r>(.n !..v. ol ;V l.-.i..! i,ii<l "!:' 1 am pt-r>.tin-> ;ifl:ii'j HIM null Vi'r-;niji .' .ha- hlc-<i :m .i[jpi-;il in AppclUiie - tli:ii it i- itu:t-iii:. imjiliTiHT.'.cc ; Divi.M'ni utiii-ii mil bi> he:ir.! -r LIU : f.irn.'fl ..n: " McCandlei* Shocked I'.n- :.|i|.i-:<l. li!f! in '.hi- naiiii (if Mi> \VMl:;.:n I: Kulk-s :ni.

lu:i!^ ihi- !--r>,pi.-.i;- r lineal ti/n.i 11;-si^iiins childrrn. :ti;-l th;il n-i Ui\- luntU -houtd be (Aper.ded on n m;.ke>ii;i: and :r-lclul pi- .;-!- JVM! uiiiin.un- Ihe ^-h'H.l sv-K-III lie Im-tiii't -i.--l;i!.-f ".t IT^liiin uniil Hi-- !iti-.Lliiin "\<-\itll'irnu-! th.- M;i><.r :.nd Coiinril HI public M.mil..y ni^hi that sh"ii|il h'- St :<' ;:i ; part:riil;irly )he Com ' K'i .!'.-." mn pl:m wintld !" h--!'i up. S !;! ;.i't I" fJr.-iti-."- in .-im-l.-n- >-. ..Mr. Tit-kn'r and .Mr Me' :.i:'!i"-- Jii..::"n <l-:u-_;rv. .-.! :.,- 3 J - - faei-n (Continued On P*ge 5;

/>

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

August 22, 1 6 ' 93 MEMORANDUM TO: Mr. Robert L. Carter FROM RE : Barbara A. Vorris : Englewood School Case

AH of September 19, 1 6 , the Englewood elementary achool 92 system consisted of the following schools and percentage of Negroes: Cleveland . $ 4 Lincoln Liberty 62^ Queries Roosevelt 14.5? 9 ^ 3.2$

The City ie divided into 5 achool districts--Liberty, Lincoln and Cleveland on one aide, railroad tracks bisecting, and Quarles and Roosevelt on the other. The Quarles school is the newest school and encompasses the highest economic life in Englevood. In the course of the hearing, the Stearns Report was introduced which reflects a multidue of facts about the city, but most importantly, 6 jmetheds_by_wh_ich_the racial_imbalance-in-the schools may be reduced. Our complaint sought implementation of the Central Intermediate School which was to take all 6-year students for the first year, and all 5th-year students for the second year6n~tf7ri'ty^wide basis. Additionaly, we asked that the imbalance with reference to:the lower grades be reduced. Apart from the normal organisation of the city schools and the fact that Englewood has one junior high and one 'senior high schools, few facts were elicited during the trial. Both former Superintendent of Schools Steams and present Superintendent of Schoola Mark Shedd testified that in their opinions the predominate Negro achoola had an adverse effect on the

'

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

education of its Negro studentB. The complaint raised only the issue of de facto segregation. The Ancrum complaint, in which we participated, charged both de facto and de jure segregation. No evidence of intentional segregation was found by the Commissioner. The Volpes, vho intervened in both the above actions, seek perpetuation of the "neighborhood plan" and charged that redistribution of Negro children would violate their rights to equal protection of the lavs. Originally, the Mayor, Common Council and Board of Estimates (which group refused to appropriate money requeated^by the School Board before commencement of this litigation and implementation of the Central Intermediate School) were parties in the Ancrum suit. They were dismissed on their ovn motion, charging a lack of jurisdiction by the Cocndssioner of Education. With regard to the"neighborhood school plan," it was established - during." the ^course of the testimony that school children attending the Roosevelt and Quar3.es schools lived closer to the Lincoln School. This was in refutation of the intervenors1 argument that the law of New Jersey required each student to attend the school nearest his home. The intervenors produced an expert who testified that in his opinion racial imbalance did not affect the education accorded Negro students. In my opinion, his credibility and the weight of his testimony

- 2-

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

yere pretty well destroyed In the- course of the hearing, both 'by us and
-by the obvloua fact that he wae a fanatic. In their appeal, the intervenore are limiting this case to questions of law. They do not contest the facts as stated in the opinion of the Comtisaioner, which I suggest that you read.

J J J-J

.1 1

- 3-

PUBLIC SCHOOLS Office of the Superintendent

August 22, 1953 To: From: Subject: Sidney Dincin, Soard of Education Attorney Dr. Shedd Information and Background Data re: Board of Education Plan to Comply with Commissioner's Decision of July 1, 1963

1.

As a prerequisite tc the establishment of tne city-wide 6th grade school the -following condition must occur: a) 125 or more present students of Lincoln School must NOT elect to remain for the 1953-54 term at Lincoln School.

In other words, if 125 or more pupils were to elect to remain at Lincoln School then the city-wide 5th grade school at 11 Engie Street would not be established. 125 was selected as tne numerical cutoff because the balance cf the Lincoln School enrollments in grades one through five could reasonably be accommodated at tne Cleveland, Quarles and Roosevelt Schools without serious ovarcrowcing and without necessitating the establishment of a city-wide 5th grade school at 11 Engie Street. Un the basis of antici oateo enrollments in Cleveland, Quarles and Roosevelt Schools, we estimate that up to 225 transfers from Lincoln School in grades 1-5 c uld be accommodated in tne three schools. Under this plan maxim m class loads would be 25 in the primary grades and 29 in the interrvzc iate grades. Two basement classrooms at Cleveland School presently ucinri u^ad for music and remedial teaching would be utilized for regula iadsrcom purposes. Lincoln School enrollments in grades 1-5 will ba 350. Therefore, if less than 125 students elected to remain at L incoin School then there would not be enough openings at Cleveland, Quarles and Roosevelt Schools to accommodate the transfers. Assume for examoie that only jJ Lincoln School pupils in grades 1-5 elected to remain at ^incoin. 3GO pupils, or the balance of the 350 total enrollment of ^incoin School (grades 1-5) could not be accommodated at Cleveland, Queries and Roosevelt. On the other hand, let us suppose that 200 Lincoln pupils chose to remain at Lincoln. 133 pupils, or the balance of the 350 total enrollment (grades 1-5;, could reasonably ce accommodated by the present openings at Cleveland, Queries and Roosevelt, Ulhat attempt has been ~ade to determine the number of children wishing to remain at Lincoln School during the 1953-64 school year?

A letter and tear-shest return was sent to the parents of each child in grades 1-5 at Lincoln School - in all a total of 325. Returns through August 21 are as follows: Total returns 'Jish to rsmain at Lincoln Accept assignment to Cleveland, Quarles or Roosevelt 263 21 242

(Attached see copy of letter and form sent to parents) 3. Explanation of Supplemental Request Categories a) Pre-Kinderqarten Program - proposed primarily to provide culturally enriching experiences for children whose early development is handicapped by cultural deprivation. However, the program will ba sufficiently flexiDle and individualized to be challenging for onildren of varied backgrounds.

b) Higher Horizons - designed primarily to raise the achievement and aspirations of children in the elementary school years whose full potentialities are not being realized. The proposed means of achieving this is by providing tutors, supervised study during the late afternoon and evening hours, language enrichment and speech instruction. c) Adult Education - this program proposes to provide, in addition to the normal adult scnaol offerings, instruction in basic English, basic Mathematics, and family and home management to enable parents to be of greater assistance to their children in their school work. It is hoped that as a result of increased encouragement and assistance from the home, that children's cjocess in school work will improve. faculty Preparation - Tim;; io required by faculty and administration of ths city-wide sixth grade school to plan and develop the instructional and administrative procedures. These procedures would include determining a unified curriculum, establishing pupil grouping arrangements, allocating texts and other instructional materials, etc.

d)

4.

Breakdown cf Expenditures If ths building and facilities at 11 Ingle Street are to be utilized at any future time for ar.y school, municipal or civic purpose; or if the building is to be ooid at some future time for use substantially in its present interior space arrangements then little, if any, of the monies expended for its renovation will have been spent unwisely. Tho maintenance of school properties, as with any real property, is wise and prudent management unless the

-3property is to be re-zed. Should Commissioner Raubinger's decision be reversed at some future time, and should it bs decided that trie building at 11 Engle Street be abandoned and destroyed then the j5G,62ij would be considered a financial loss. All equipment purchased could and would be utilized in ether school buildings of the system so. that the $13,000 allocated for this purpose cannot be considered expendable under any circumstances. The amount allocated for the remodeling of the t'.uc basement classrooms at Cleveland School should not be considered as entirely expendable. Even should these spaces not be used for regular classroom instruction in the future, they would be availabls for specialized instructional purposes. The 336,530- for Higher Horizons, Adult Education, Faculty Preparation, and the Pre-Kinderqarten Program vjj.ll all accrue to the benefit of children's education in the Englewood schools. The qeneral educational values of these programs are evident from the descriptions given above. Even the Faculty Preparation can be viewed as an in-service program for teachers for the najor purpose of unifying and upgrading the sixth grade curriculum.

f.iRS:L8

ENGLEWOOD PUBLIC 3CHGGL5 ENGLOJOOD, NEW JERSEY Dear Parent or Guardian, In compliance with the Englewood Board of education plan for assignment of the Lincoln School children, grades one through five, approved by Frederick M. Raubinger, Commissioner of Education, State of New Jersey, and subject to the provisions listed below, your child will be assigned to Cleveland, Quaries cr Roosevelt School in September or as socn thereafter as possible. Enclosed are two forms (Use GNuY ONE FORM FCR EACH CHILD IN GRADES ONE THROUGH FIVE) FORM FORM # 1 - FOR CHILDREN DESIRING ASSIGNMENT CUT OF LINCOLN SCHOOL

# 2 - FCR CHILDREN DESIRING TO REMAIN AT LINCOLN SCHOOL

No parent will be required to remove his child from Lincoln School who dees not desire to do so, except as indicated in Item 2-c below. Select ONE FORM, fill out and mail it immediately in the sslf-addressed, stamped envelope provided for your convenience. August 21, 1963 is the last day on which returns will be accepted. APPLICABLE PROVISIONS OF THE BOARD OF EDUCATION PLAN 2. To assign all pupils of grades one tnrough five residing in the Lincoln School attendance district to Cleveland, Carles 3nd Roosevelt Schools, such assignment 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 name. (b) Provide for an even distribution cf class loads. (c) To permit the children whose parents wish them to remain in the Lincoln School tc remain there provided that it is administratively and educationally practicable to dc so. 4. To assign to Lincoln Scnool ail children of Kindergarten age residing in the present i. in coin School District. PROVIDED THAT: The plan meets the requirements cf the law and that th= Board's Attorney gives assurance of immunity of Board Members and the Superintendent from taxpayers' suits regarding the expenditures of public manias to implement any aspect of these plans. AND PROVIDED THAT: The Board of Scnool Estimate and the governing body of the City of Englewood approve funds necessary to put these plans into effect according to the estimates attached Hereto.
truly scours,

MRS:LB i8/2/63

Mark R. Shedd Superintendent of Schools

IMPORTANT.' USE ONLY ONE OF THESE FORMS, select the ONE /cu want, SIGN YOUR NAME, write or print your ADDRESS, and --nail it IMMEDIATELY in the self-addressed, stamped envelope enclosed fcr your convenience.

FORM

-f I

FDR CHILDREN DESIRING ASSIGNMENT 73 CTHER ELEMENTARY SCHOOLS

Dr. Mark R. Shedd, Superintendent Englewood Public Schools II Engle Street Eiglewood, New Jersey Dear Dr. Shedd: I accept the assignment of my child tc Cleveland, Cuarles cr Roosevelt School in accordance .with the Eoarci of Education plan, -aginning September 1963 or as soon thereafter as possible.

Signature of parent or guardian

Street Address

FORM

,f 2

"OR CHILDREN DESIRING TO REMAIN AT _INCCJ; SCHOOL

;r. Mark R. Shedd, Superintendent [ngleiuood Public Schools 11 Engle Street [nalewood, New Jersey Dear Dr. Shedd: I wish to have ~.y child remain, at Lincoln School during the 1953-64 school fear.

Signature of parent or guardian

Street Address

EIIMOODPLM
Appeal to Retain Present School Policy Rejected
By JOHN W. SLOCCM
Special to The Ntw York Ttmn

school. The Ancrum petition sought to force the board to establish the central fifth-grade school that it proposed last year. Elizabeth Mayor Sets Meeting Spedil to The New York Tuna ELIZABETH, If. J., Aug. 23 Mayor Steven J. Bercik has scheduled a meeting at City Hall for next Thursday in another attempt to resolve differences between civil rights leaders and building trades unions here. The Mayor scheduled the meeting today after civil rights leaders last night ordered a resumption of protest demonstrations next Monday. They rejected a proposal by Gov. Richard J. Hughes that picketing of Union County Court House Annex project here be delayed for at least' another week. In the meantime, Governor Hughes appealed to civil rights leaders to exercise caution against violence when the picketing resumes Monday.

UNION, N. J., Aug. 23The State Board of Education today approved the Englewood Board of Education's plan to reduce racial imbalance in its elementary schools. The action followed a fourhour hearing at Newark State College here on an appeal bj Mr. and Mrs. Jerry Volpe and others. They had challenged the State Commissioner of Education's decision of July 1 rejecting their petition to retain the neighborhood school policy. The board also affirmed the Commissioner's July 1 order tc the Englewood board to reduce the concentration of Negroes I" the Lincoln School, which is 98 per cent Negro. Seven of the 10 board members took part in the hearing, which was conducted by John F. Lynch of Morristown, chairman of the board's law committee. Mr. Lynch gave the board's decision orally and said the board would write an opinion on the school plan. Followed State Order

A motion by James A. Major of Hackensack, lawyer for the Volpes, for a stay of the plan was denied. Mr. Major said he would appeal immediately to the Appellate Division of Superior Court, the next step in contesting a decision by the Commissioner. * The Englewood board drew up its plan after Commissioner Frederick M. Raubinger ordered it to submit a suitable program to him by Aug. 1. The board adopted its plan on July 29 and Dr. Raubinger approved it on Aug. 1. The plan calls for the establishment of a citywide sixthgrade school and the transfer on a voluntary basis of firstgrade through fifth-grade pupils from the Lincoln School to three predominantly white schools. Mr. Major contended that In making its sixth-grade plan contingent on the willingness of a minimum of 125 pupils to ask for transfer from Lincoln School the board was "illegally delegating its powers. Lawyers for the two respondents in the case rejected the charge of injustice to white pupils by not giving them a choice of schools In which to attend the sixth grade. They argued that only Negro pupils had been denied equal educational opportunity under the de facto segregation at Lincoln School and thus were the only ones entitled to a choice. The lawyers were William M. Kunstle of New York, representing Mr. and Mrs. John T. Spruill, and Robert Carter of New York, representing Mortimer W. Ancrum and others. The Spruills charged.the board with operating a segregated
Reproduced with permission ol the copyright o . Further reproduction prohibited without permission.

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

- C O P-Y-SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION

Chambers of IHORRIS PASHNANJudge

(SEAL)

Court House Jersey City, N.J.

August 26, 1963

Vorsanger 4 Murphy, Esqs., Att: James T. Murphy, Esq., One Engle Street Engleuiood, New Jersey Eraslin 4 Braslin, Esqs., Att: John J. Breslin, Jr., Esq. 41 Main Street Hackensack, New Jersey ' Sidney Dincin, Esq., 16 Ul. Palisade Avenue Engleuiood, New Jersey Arthur J. Sills, Esq., Attorney General of New Jersey Att: Joseph A. Hoffman, Esq., Deputy Attorney General State House Annex Trenton, New Jersey

Re:

Gertrude Fuller. Richard'L. Grubman, Thomas F. Cacciola and Josephine Cacciola and others to be named v. Austin A. Volk, et als.

Gentlemen: The following is the opinion of Judge Leon Leonard and Judge Norris-Pashman-(-temporarily assigned-to the_ Appellate Division) in the above matter. This is a motion by plaintiffs-appellants for an order enjoining the School Board of Estimate of the City of Englewood, New Jersey and the City of Englewood, New Jersey from appropriating, expending or agreeing to expend any public funds to implement the July 29th plan of Board of Education set forth in the affidavits pending final determination. On July 1, 1963, Frederick Raubinger, New Jersey Commissioner of Education rendered a decision whereby respondents Board of Education of the City of Englewood were charged with the maintenance of racially segregated public schools and with refusal to implement plans to eliminate said segregation. The Commissioner decided that the Englewood Board of Education was not deliberately maintaining a racially segregated school system but that compulsory attendance at all negro schools, such as,the Lincoln School, constituted a denial of educational opportunity under New Jersey law which the School Board is required to correct. The Commissioner directed the

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Board of Education to formulate a plan to reduce the extreme concentration of negro pupils in the Lincoln School and to submit such plan to the Com- ...-. missioTier for approval on or before August 1, 1963 and to put such plan, as approved, into effect at the beginning of "the 1963-64 school year. The Board of Education adopted a proposed plan on July 29th to reassign pupils to alleviate the racial imbalance. The estimated cost of the plan was $123,000. Letters mere sent to the parents of children in the predominantly negro Lincoln Schoo-1, giving them the choice of remaining at the school or to adopt the plan. On August 1, 1963, the Board of Education adopted a resolution stating that $66,500 would be required to partially undertake said plan and that the resolution should bs forwarded to the Board of School Estimate. The Commissioner approved the plan on August 1, 1963. On August 8, 1963, the case of Volpe v. Perry (an analogous suit) was heard by Judge Collester (who disqualified himself in this case) in the Chancery Division whereby plaintiffs sought to enjoin defendants from expending funds to implement the plan. The application was denied on the grounds of failure to exhaust administrative remedies. On August 14, 1963, Fuller v. Uolk (the instant case) was heard by Judge Gordon Brown, Judge of Bergen County Court sitting in the Superior Court, Law Division. Plaintiffs sought injunctive relief against defendants and the action was dismissed. The present motion stems from the denial of plaintiffs' application for an injunction against the expenditure by. defendants to implement the plan of July 29th. PlaThfiffs^appsllants argue. inter alia, that: 0 The July 29th plan is unconstitutional and that the decision ) of the Commissioner was ultra vires his statutory authority. __^_(2) Plaintiffsy as taxpayers, will, sustain-irreparable injury if they prevail on the merits for the money expended to implement the plan which could not .be recovered. Plaintiffs-appellants, in a large measure, are arguing the merits of this case. _A precise ^determination ofLthe merits-is not presently before us. .< It is well settled that an injunction will not issue unless (a) there is an urgent necessity, (b) the plaintiffs' rights are, as a matter - of law, settled and (c) the facts which are alleged to create an equity, in favor of the plaintiffs should b'e substantially uncontroverted. N.J. State

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-3Bar Ass'n v. Northern N.J. Mortgage Associates, 22 N.J. 184,_ 194 ( 1 5 ) .96; Light v. National Dyeing afia"Printing Co. 140 N.J. Eg. 506, 510 (Ch. 1 4 4 . 9?, In all cases involving injunctions the court must "balance the conveniences" and consider what injury the defendant mill suffer from an injunction, assuming that he prevails at the final hearing and what injury might be done plaintiffs if the injunction be denied and yet plaintiffs should finally win. Isolantite, Inc. v. United Electrical ate'.-, of American~13D N.J. Eg. 506 (Ch. 1941), modified. 132 N.J. Eg. 613 (E. &. A. 1942). Plaintiffs allege an irreparable loss of the tax moneys if they prevail on the merits. However, defendants-respondents allege a possibility of substantial, irreparable and immediate harm if R.S. 18:10-29.44 'is not complied with. The Statute provides: "In order to participate in any apportionment made according to the provisions of this act, a school district shall comply . with the regulations and standards of the equalization of opportunity which have been or which may hereafter be prescribed by law or formulated by the Commissioner of Education or the State Soard of Education pursuant to law. The Commissioner of Education is hereby authorized to withhold all or part of such apportionment for failure to comply with any regulation or standard*"

,' ,

The Commissioner has ordered that the July 29th plan be put into effect. Actions of municipal governing bodies and boards are presumptively valid, Hill v. City of Summit. 64 N.J. Super. 522 (Law Div. 1960), and the official action of a municipal school board should not be enjoined except upon a clear showing of bad faith, arbitrariness or capriciousness. If the Board of Estimate fails to carry out the plan, there is a 8^origjp_ossibility_tha.t_tha...city_may-bB deprived of almost $300,Q"00 of State aid if the Commissioner determines that the standards prescribed were not fulfilled in Englewood. On balance, the defendants are threatened with greater irreparable injury than the plaintiffs; plaintiffs1 rights aref.--to_say~thBlBast-,r-i-n- ~'dispiite; and plaintiffs have shown no urgent necessity for relief at the present. On general equitable principles alone, plaintiffs-appellants' . motion should be denied. However, there are persuasive legal grounds: upon which we cannot", in good~conscience grant plaintiffs-appellants' request. > 'The United States Supreme Court, in the landmark case of Brown v. Board of Education. 347 U.S. 483 (1954) declared that desegregation , should proceed with all deliberate speed. Cur courts have consistently . " declared it to be unlawful for boards of education to exclude children from any public school solely on the basis of race, or to require them to attend

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segregated schools. See e.g.. Pierce v. Union District School Trustees. 46 N.J.L. 76 (Su. C. 1884), aff'd. 47 N.J.L. 348 (E. 4 A. 1S85); Hadgepeth v. Board of Education of Trenton. 131 N.J.L. 153 (Sup. Ct. 1944). This policy against racial discrimination is enunciated further in Article I, paragraph 5, of the New .Jersey Constitution and the AntiDiscrimination Law (N.J.S. 18:25-1). The facts show-that the Lincoln School, the focal point of this controversy, is composed of a student body which is 93% nsgr.o. This apparently is caused by ,a large concentration of negroes in the neighborhood of the Lincoln School. There is a conflict in the federal courts as to whether a state must take affirmative action to avoid the consequences of de facto segregation. Cf. Bell v. School, City of Gary, Indiana, 213 F_. Supp. 819 ', (N.D. .-Ind. 1963) (answering the question in the negative) with Branche v. Board of Education of Hempstead. 204 . Supp. 150 (E.D. N.Y. 1962) and . ' Jeffers v. Whitley. 309 . 2d_ 621 (4 Cir. 1962) (answering the question in the affirmative). It is our opinion that the decisions of the United States Supreme Court and the courts, constitution and statutes of this state require us to deny appellants' motion. Besides the above authority arid the fact that appellants have shown no right to the relief requested on purely equitable grounds, we subscribe to those federal opinions which require affirmative action on the part of states to avoid the consequences of de facto segregation. - For the above reasons, appellants' motion is denied. Very truly yours, /a/ Leon Leonard Leon Leonard morris Pashman morris Pashman

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ZsZ.

SX-A.XE or NEW J OFFICE OF THE G O V E R N O R TRENTON

August 27, 1963

Mr. Byron M. Baer Chairman, Education Committee Bergen Country Chapter Congress of Racial Equality 135 Belmont Street Englewood, New Jersey
>

Dear Mr. Baer:

\k you for -your letter of August 1 in which you were kind

enough to furnish me with your analysis of the plan voted by the Englewood Board of Education. \ was particularly gratified to note that you share my opinion that the parties in Englewood are proceeding in good faith. I believe that you will agree that it is good faith and mutual respect that must be the keystone in the creation of any solution to those most difficult problems. \n your letter you have strongly recommended that the Co

missioner of Education retain jurisdiction. I find that in his letter to the Englewood Board of Education written,on August 1, the Commissioner did precisely that. I am enclosing a\y of his letter for your information and Sw- your particular attentibsp to the last sentence of the letter. \
\ believe that we all recognize that in this highly mobile

society which is characteristic of present (Jay living in the United States, .thfftTany community may change. Neither the population or the housing patterns remain static. I am confident^ that as changes occur the Board of Englewood Education will meet its responsibilities to continue to provide the equal educational opportunity to all of the

NEW JEHSEY

TERCENTENARY

1664 1964

ENGLEWOOD PUBLIC SCHOOLS Office of the Superintendent

At a meeting of the Board of Education held early last evening August 27, 1963) final plans for school's opening were made. 1. All 6th grade students will report to the elementary school serving the attendance district in which they reside and remain there until completion of work on classrooms at the former Junior High School at 11 Engle Street. 2. Approximately 140 children in grades one through five at Lincoln School will be assigned to classes at Cleveland, Roosevelt, and Queries Schools according to new attendance districts drawn by the Superintendent according to criteria set forth by the Board of Education in the July 29th plan approved by the State Education Commissioner. 3y these new districts Lincoln pupils will be assigned as nearly as possible to the school nearest their homes. Parents of children to be transferred at the opening of school next week will be notified by mail within the next few days. The selection of pupils to be transferred will be based on the order in which forms sant out recently were returned to the Superintendent's office. Assignments will be made on a first come first serve basis. Maximum class loads of 25 in the primary grades and 23 in the intermediate grades will determine the number to be transferred to each school. 3. Bids on materials to be used in the renovation of classrooms and offices at 11 Engle Street are being advertised immediately and are returnable on September 9, 1963. Compistion of the work at the former Junior High School will depend on delivery dates of materials and the chance of unforeseen dslays. No firm target date can be given at this time although it is hoped that complation date will be no later than early November and aarliar if at all possible. 4. Of 325 notices sent to parents of Lincoln School pupils, only 21 have been returned indicating ths dasira to have children remain at Lincoln School. 242 returns show desira to accept assignment to Cleveland, Quarlas and Roosevelt Schools of a total of 253 raturns as of August 21, 1963. From tha small number of children wishing to remain it appears unlikely that it will be possible to operata classes in grades 1-5 at Lincoln School once the citywids 5th grade is in operation.

In another action the Board voted to have the schools conform to the recent Supreme Court decision declaring Biola reading and reciting of the Lord's Prayer. HRS:LB 3/28/63

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Stale Education Department Rejects The Appeal By SONS

U.VIO.VThe New Jersey S l a t e j I n l e g r a i i o n , claiming t h a i the a s ; . D e p a r t m e n t of E d u c a t i o n on Fri. i s i g n m e n l of pupils on Ihc basis of :day t u r n e d down Hie appeals u f j r a c o or color is u n c o n s t i t u t i o n a l the Englewood C'ommitlee lo Save [ a n d a denial of right:; lo ol.'icrs. ,'Our Neighborhood Schools w h i c h ! The Ilicory is l l , : , l if a local a ' a r g u e d Ih" l e g a l Iheory of revoke ' school bnard' :nui color _ _ i as a c r i t e r i a pnpij.s to
racial ini*"*-*-*****-****-*

Letters to the
Iff************ f~ -

itor

Doe ,s n't A c en .s e: A Qnesli(yt.

S/2Z/G3^ &

IR e To Allen On School Plan

I To the Editor: To the Editor: I have one q u e s t i o n lo ask my| Daniel \V. Allen. in last week's fellow citizens who arc resisting Press-Journal, argues t h a t no action the Board of Education's plan for should be t a k e n to end or reduce i n t e g r a t i n g Englewood's p u b l i c ele- racial i m b a l a n c e in the Englewood m e n t a r y schools: where is that ge- e l e m e n t a r y schools u n t i l the Sunerosity of spirit which historians preme Court explicitly declares dc r i g h t l y associate with the J u d a i c - facto segregation to be unconstituC h r i s t i a n e t h i c and the American tional. How about t u r n i n g your a r - j democratic-humanistic t r a d i t i o n ? gumcnt a r o u n d . .Mr. A l l e n ? W h y ! It is an i n e l u c t a b l e fact t h a t for not adopt the Board of Education's! three centuries our Negro brothers p l a n u n t i l ( a n d i f ) t h e S u p r e m e ! and sisters h a v e been denied the Court declares t h a t attempts t o j e q u a l i t y asserted for all men in end or reduce dc facto segregation i i i c f i n s t i t u i i o n a ! ? !f t h e r e is I | the Declaration of Independence.i a We in Englewood in 1963 have: a possibility of being unconstitubeen given nol merely the duty but] t i o n a l c i t h e r way. it svoukl seem the historic privilege to r i g h t t h a t to me lo he better to do what wrong. t h e Knglewood S u p e r i n t e n d e n t o f j Obviously equal o p p o r t u n i t y in | School:, the Englewood Board o f : the pursuit of happiness must be j E d u c a t i o n , the New Jersey Comrcalized in the six areas comprising missio.ncr of Education and the political participation, employment. Governor of New Jersey believe to j housing, public aceomodation. e d u - l b e in the best interests of the educatiO"..-iniiu cv?ryacj H . . M K . rxjuca-] ction p*i u 01 tnc cyiuurcn oil lion happens to be one area where j Englewood. progress toward equal opportunity For quite a while now. Mr. Allen is realizable nor/-. Our Negro citizens t h i n k so: our school a u t h o r - i has been saying "It can't be done" ities and their expert advisers! t o cvcry a t t e m P t to 5olvc this P rob ' t h i n k so. Our children would 1cm. If he keeps on saying "No," t h i i k so il we would lake t h e i he is in danger of becoming known as the "Abominable No-Man." trouble to t e l l t h e m what is ?t Sincerely, stakeand would gladly walk a few extra blocks, if need be. toHAUVEY SHERMAN ward 3 b r i g h t e r world. Strong legal I 399 M u r r a y a v e n u e and c o n s t i t u t i o n a l arguments can Englcwood. N. J. ie advanced against the Englewood j school i n t e g r a t i o n pla-njust a s : such objections have been marie ] against the a b o l i t i o n of slavery, j debt peonage, child labor, sweat-j shops, and the d i s e n f r a n c h i s e m c n t ' of women. But how much w e i g h t ' lave Ihcse legalisms in the scales j j of history? I do not accuse: I o n l y i ask. Sincerely, J O H N M. PICKERING 320 M u r r a y .Tvcnue

i balance, il violalcs slalc ;;nd federal co>'.si j t u l i o n s . This Iheory was argued ill d e p t h ' a! l-'rid.iy's lie.iring bcl'oie Ihc New ,'Jersey Hoard i.f Kdiicalion w h i c h |ilisfOiinl ( il il w h e n il u p h e l d ibc . : v a M i i i l y of Lie Kn-Jowood school i . pla 1 : In end racial i m b a l a n c e in . t h e p r i ' d o i u i n a n l l y \i>..;ro Lincoln ] Klemcnlary School I h i s year. Opponent* In Ihc Knglcwnod i>|; m ' .argue Ilia I. Ihc slalc am! federal; | laws prohibit !>asi;:nnienl of pupils; ;r by race, color or creed: yft Ihc Kit;,'lewuml s o l u t i o n h> r'<-i;>l ini. ; b.llant-u '- l...s-rd on infcMj'''!'^) ,,; ' :-/|,i>p;!.- j , Differ The st^e. board. rCnglcwoml j schools officials, and lawyers for the integration movement, expressed d i f f e r e n t opinions. They state lh.it ccg'-c;',.itio,i of N'egi-'.; pupils has been deci.-red ini'-oiisliliiUon,il, and II.e only vay to correct racial i m h a l a i -e is to assign pupils lo cia.-scs by race ar.d cclor. 7f Ihi.s M e r e mil done, they contend, there would be ho solution. Sid<:y Dincin. attorney for the Ka.'flewood sch.ool boa'-ri. surmncd up the hoard's position, rlcel.iring! it was caught in Ihc middle o f ! llv control c.-:>. He said lo t h e ! sDdo board: : "L..u:uir Sciiool has been a fos- j : tering poini in Ilie com'>iunily[ ' since- Ifl.'M. "Now Ilia!, we ,irr doing [ 'Something -ihoi I il we a-c gr.-ltiMg. hel 1 U'uni all side.-..'' James A. .Major, llackensatk .it-; 1 lorney repre.'fenting Ihc Save Our i Neighborhood Schools (SON'S) or-' 'sanitation which is opposing the j Kiu,'le\vcod plan, o u t l i n e d bis a r g u - j > nie.-ils oj rcseivc i n l c g r a l i e n .
Major Moves

l i e ruled Hi,'I t h e K;igleHooil pI'Mi c a l l s I n i (!ti';'c n i . ; i n r moves: : A c i l y - u i d e . - i x i i i -jivm* school' lo e l h ' i i n a l e ' i ' r r a c i a l nnbalanc.' i., I h c L i n c o l n Scnool. Tiic Pansier 01 aboi:! :J20 p n p i U of t i n Ill's! lhr.Mi;:h l i f l h grades .' i.l ill" L i n c . i l n Se::oii| In Ihc Q u a r - ; !es. Noscievcll and (.'It.-'c.l;;;ir! school.( C o n l i n u e d Oo Page 16}

Court Rejects Taxpayer Suit To Stop Board

NEWARK_TW O j,lds{,s
sil,il|n!

m Appellate Division of Jersey Stale Superior Court week refused to gram an i n j u n c Hon to 455 Englcwnod taxpayers seeking to prevent the Board of Education from pulling mlo oparation its proposals- lo dose grcgate Lincoln School. The two judges went f u r t h e r in declaring that Slate and local officials should take immediate affirmadvc action lo eliminate racial i-'ii.fl^nee. This is the Cirsf Hmc a higher court has spoken 0111 on this question involving the cons t i t u t i o n a l i t y n[ the action. The judges said the 450 white Englcwood taxpayers who had filed suit for the i n j u n c t i o n had not proven t h e y would suffer irreparable h a r m from Ihe expenditure of S12.1.00D to put lhc school board's plan inlo cffccl. Their suit asked the court to enjoin the board from spending the ? 123.000. James A. -Murphy, attorney for the taxpayers' group, had allackcd the Englcwood school plan as un consljtulionil. He snid it would place studcnis i-i schools according to t h e i r race and lhal would | violate ihe pupils' conslilntional rights. A n d . lie added, il lhc plan w e r e decided to he unconstitutional in the f u l u r c . Englewood would have spent "!ol o[ mono' needlessly." Judges Leon Leonard and .Morris Pashman con I erred for about 20 minutes before r u l i n g against the i n j u n c t i o n . The t h i r d judge on the panel, Donald G. Collcslcr. disqualified h i m s e l f because he had heard arguments in Ihe ca-e while sitting in the superior Court chancery division. Rush PUni School oflicials said lhc board would press lo h a v e its p l a n in effect by the m i d d l e of Oclobcr. John It. Perry, board of education president, said i h e board would meet immediately li> advertise for bids for the refurbishing of the Englc st. school. Thai school, now unused, is to be opened as a city-wide, sixlh grade school. The board had hoped to h a \ e ! its plan in effect by the Sept. 4 school opening, but il ha> been stalled by a series of court bailies.! Mr. Perry said thai because of lhc litigation, only a limited iium-. her of Negro students at Lincoln elementary school could t r a n s f e r ' lo other schools on Sept. 4. Lincoln . school, w i t h a flK percent Negro enrollment, was lhc center MI' the two year controvei^ iivcr racial imbalance. Must get bids Or. .Mark K. Shcdd. i'-ndcnl of Knglewood >.nd bids probably w i n 'hnrtiy a f t e r Labor P:'>. and ''* .'..luld slart m'.im-dialch School liuard A l l n r n r v Snln. > Omcin told the judge* t l l a l the aioncy at issue would be uscii l.i ..-condilion IK rooms in the Kirjic .'reel school atri repair several' Kims in C l e v e l a n d elcmcr, ' - ^ -chool. On Mr. Dim-in was aided 11^ - i l u i n in lhc taxpayer.'} fj MI-I. A l l y . C.IMI. .loscpl' / * --.:. v.bo represented. nn i'nn;.nissioner ; J .nubuii;c- ^a'.tbm?

s (Continued From Page 1) have equal opportunities for educawhich now have predominanllv lon' white enrollments. Ho arucd t h a ' if lhc c o u r t s up ' Aai- the prwoginvt srantid to h p k l l h c t h c o r y of rcvcrsc i n l e ~ r a the parents of children ." lhc L,n- t i 0 n ' t h c n ?chools t h r o ^ h o u t t h e coin School to choo,, w h e t h e r their n; " lon w o u l d bc .'" 3 d l l e m m a a n d : w o u l d remain s t a t u s ; c h i l d r e n ho transferred to the w h i t e schools. Robert Carter of Xew York, genMajor asked "Why d i d n ' t the eral counsel for the National Asboard allow the while parents of sociation for the A d v a n c e m e n t of the Qtiarlcs. Roosevelt rr.d CleveColored People, also attacked the land schools the choice of what reverse integration theory. schools they wanted their children lie said in Englcwpod's case the to ittomi?'' hoard "may have been inept" in He contended t h a t the f a i l u r e a l l o w i n g \f>"rn n n r e n K tn r-hnosp the E:i.qlewood board to grant the jf tj-,,.:,- c h i l d r e n r e m a i n in Lincoln w h i t e pan.-nls t h i s choice was School nr be transferred. But he "preferential t r e a t m e n t ' for !nc a;:dcd. the local hoard was giving Negroes and d i s c r i m i n a t e d rrjain>t t h e Xeyro an o p p o r t u n i t y to waive the whites. his c o n s t i t u t i o n a l r i g h t s . Major said that as loiiij as .-.chool The closing a r g u m e n t asainst boards transfer p u p i l s from one the t h e o r y was offered by Joseph school to another "they arc shift- A. H o f f m a n , deputy attorney gening sands in attempting to correct cral representing N. J. Commisracial imbalance.' 1 , sinner of E d u c a t i o n Frederick M. Major ;.-rgued the Knglewood R a u h i n g e r . plan "inconveniences one group in Ordered End order that someone else may p r o f i t . ' R a u b i n g e r had ordered the end and the r i g h t s of the w h i t e s in t h i s ,,f "dc facto segregation" in the order are t a k e n a w a y w i l l y n i l i y . " |j, l c o ln E l e m e n t a r y School, n o t i n g Jlc concluded t h a i the p l a n was the segregation was not i n t e n t i o n a l giving powers lo a m i n o r i t y and but an out.growlh of one area of therefore illegal. lhc city h a v i n g a predominantly \Villiafn~KuH5ller, \cw York at- Negro p o p u l a t i o n . torney represent ing the Xegro p a r - i H o f f m a n said that Raubinger as en's who had s o u g h t lhc o r i g i n a l commissioner hus "the duty to prorlesenralion order, .said Ihe Englc- : v 'idc Negroes t h r o u g h o u t the state wood p l a n was a remedy to a "long-1 with equal o p p o r t u n i t y for cdtica.standing problem." I t i o n . He is a b i d i n g by the laws of Kunstler-said : our land." "Just because there is a s h i f t H o f f m a n said it was impossible of while p u p i l s lo eliminate Negro t- eliminate segregation without .segregation, it is not preferential ' d e t e r m i n i n g how many w h i t e s or treatment for the Negroes. School ! Negroes were in a given school, boards m u s t reassign pupils to cor- ' "The commissioner must be color reel s e g r c g a t i n n . While pupils must ; conscious to work out clcsegrcgabc t r a n s f e r r e d to meet t h e tide : tion plans, and a l t h o u g h whites are of inlegr.'.-tion and althoiiL'h they s h i f t e d lo a central sixth-grade arc tran>ferred it is not n con- i school ;is in this case, they are slitulional. issue because they .still i not being discriminated against."

State DC pi. Dismisses Suit

State Dept. And Courts Tell Board To/Go Ahead With Plan; Parents/Receive Instructions
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ENCLEWOOD PUBLIC SCHOOLS Office of tha Superintendent

. " i * . . i.r~ August 29, 1963

To: Iflr. WcCloud From: Dr. N. Shedd

Subjactt Assignment of a number of Lincoln School Students in grades 1-5 to Cleveland, Queries and Roosevelt Schools Please proceed immediately to determine assignments and notify parents of a number of Lincoln School Students of grades 1-5 to Cleveland, Queries and Roosevelt as follows} 1. Assign children respectively to C. ,Q., and R. according to geographical districts as established by tha Superintendent in conformancs with criteria set by Board of Education, July29,1963 2, Assign numbers of children from Lincoln School to the proper grade and school as specified below:
1 2 22 3 11 4 21 5 13 Totals 33

Cleveland
Quarlas

16

7
11
23 33

12

14

33

Roosevelt

12
13 35 39

Totals

143

3.

Select children for Roosevelt according Desiring Assignment was received by the dates of receipt of

assignment to Cleveland, Quarles and to the order in which Form # 1 "For Children to Other Elementary Schools" ( / / 3 826) Superintendent's office - children earliest Form #1 to be assigned first, ate.

c.c. Mr. fir. Mr. Mr. ITtr. MRStmw

Garrity Trout Trepicchio Henriksen Campbell

ENGLEWOOD'PUBLIC SCHOOLS Office of the Superintendent

August 30, 1963

Dear You are hereby notified that your child(ren) School as of is/are assigned to the the opening of school on September 4, 1963. All records are being forwarded to the new school and the principal will make the assignment to a class of the proper grade upon arrival. Recently the Board of Education decided that it would be wise to transfer as many Lincoln School children as possible to their new school assignments at the opening of school. Unfortunately it is not possible to make all the anticipated transfers of Lincoln School pupils at this time. This is due to a number of unavoidable delays in preparing the city-wide sixth grade school at 11 tngle Street. liJork there is proceeding now as rapidly as possible and we hope that further delay can be avoided. We regret that transportation cannot be orovided to those children who live some distance from school. As you may know tha request for funds was denied. However, Director Lawless and Sergeant Harrington of the Police Department have assured us that all precautions will be taken to give maximum protection to children at busy intersections on pupil walking routes to their respective schools. Everything possible will be done to help your child(ren) make a quick adjustment to the new school and class. Ule invite you to visit school and meet your child(ren)'s teacher soon after the first week or two of school. Sincerely yours,

|V)RS:L9

R. Shedd Superintendent of Schools