City Board of Education, decided May 15, 1963. 1.

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

3. To put a plan as approved, into effect at the beginning of the 1963-64 school year. Now, therefore, in compliance with said directives, the Board of Education of the City of Englewood, Bergen County, New Jersey, submits the following plan, to take effect as of the opening of school in September, 1963, or as soon thereafter as building renovations can be effected. 1. To establish at the former Junior High School building at 11 Engle Street, a city-wide sixth grade school to which the Board assigns all sixth grade pupils of the Englewood Public Schools. 2. To assign all pupils of grades one through five residing in the Lincoln School attendance district to the Cleveland, Quarles and Roosevelt Schools, such 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 provided that it is administrationally and educationally practicable to do so. 3. As a prerequisite to the establishment of the city-wide sixth grade school referred to in Paragraph (1) above, either of the following two conditions must occur; A. 125 or more present students of Lincoln school must not elect to remain for the

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

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

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

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

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his decision. (Appendix C). The contents of this affidavit were objected to as being hearsay, and it is significant that Commissioner Raubinger relied upon ihis committee findings but none of the litigants were I aware of^this evidence which Commissioner Raubinger X- I considered. Furthermore, the Court below considered this evidence even though it was hearsay. (AppendixD). ,V The court below found the vote of the effectiveness of the plan was given to the children whom the Board proposed to move out of their neighborhood school, and therefore, they were the most logical ones to be removed. However, the plan also called for the removal of sixth grade students from Liberty, Cleveland, Quarles and Roosevelt Schools, am1 they did not have a vote. (Appendix D). The court below also found that any discrimination that may exist was not of constitutional dimensions. This will be considered in the argument under the Statement of Law.

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

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STATEMENT OF LAW POINT I The Decision and Directive of Commissioner Raubinger Violates Constitutional Rights of Plaintiffs-Appellants. Commissioner Raubinger found that there was no intentional segregation by race by the Englewood Board of Education in the public schools. He did find that Lincoln School was 98.0 per cent negro. He also found that it is apparent that "this concentration of pupils of one race results from patterns of housing and the operation of other socio-economic forces . . .". The Commissioner also conceded that such "housing and non-school problems are not the responsibility of the Board, nor does it have any cratrol over these housing and non-school problems." Tne Commissioner also found that the Englewood school assignment was based on neighborhood schools, the boundaries governing which were previously approved by him. Nevertheless, he directed the Englewood Board of Education "To formulate a plan or plans to reduce the extreme concentration of pupils of the negro race in the Lincoln School." (Appendix C). The school segregation cases are based on the 1954 Supreme Court Decision of Brown v. Board of Education. 347 U.S. 483, 74 S. Ct. 686, 98L. Ed 873. The Brown case came up to the Supreme Court together with numerous other cases involving the same issues. These cases were all grouped together and decided under the title of Brown v. Board of Education supra. These cases dealt with negroes seeking admission to public schools on a non-segregated basis. The negroes had been denied admission to white schools due to segregation laws, most of which were based on the "separate but equal" doctrine. It was charged that this denied these negroes equal protection under the Four1

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

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

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

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

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

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

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

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21 ing law, but making new lawwhich is what he did in the instant case, thus exceeding his authority. So too in Brlggs v. Elliott. D. CC. D. S. C. 132 F. Supp 776 in construing the 1954 Brown decision at page 777 the court said: " . . . it is important that we point out exactly what the Supreme Court has decided and what it has not decided in this case. It has not decided that Federal Courts are to take over or regulate the public schools of the States. It has not decided that the States must mix persons of different races in the schools or must deprive them of the right of choosing the schools they attend. What it has decided and all that it has decided, is that a State may not deny to any person on account of race the right to attend any school that it maintains . . . The Constitution does not require integration, it merely forbids discrimination. It does not forbid such segregation as occurs as a result of voluntary action. It merely forbids Cie use of governmental power to enforce segregation. The Fourteenth Amendment is a limitation upon the exercise of power by the State or state agencies, not a limitation upon the freedom of individuals." "But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them." id p. 778 Merely because Commissioner Raubinger may disagree with these constitutional principles does not give him the right to exclude children from their neighborhood schools due to consideration of racial factors, which is what he directed the Englewood Board of Education to do. In the case of Holland v. Board of Public Instructions (Fla) 258 F 2d 730 (5th Cir. 1958) U. S. Ct. of Appeals,

tegrated education. The pertinent portion of the Fourteenth Amendment of the United States Constitution reads, 'nor (shall any State) deny any person within its jurisdiction the equal protection of the laws.' This clause does not contemplate compelling action; rather, it is a prohibition preventing the States from applying their laws unequally.' 'When interpreting the equal protection clause in the Brown case, the Supreme Court held only that a State may not deny any person on account of race the right to attend a public school. Chief Justice Warren, speaking for the court said, 'To separate them (negroes) from others . . . solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.1 (Emphasis supplied.) The clear implication of this statement isfehat if races are separated because c' geographic or transportation considerations or other similar criteria, it is no concern of the Federal Constitution. Thus, discrimination is forbidden but integration is not compelled.' "The court finds no support for the plaintiffs position that the defendant has an affirmative duty to balance the races in the various schools under its jurisdiction, regardless of the residence of students involved." As expressed in the Bell decision, there was at that time (Jan. 29, 1963) no decision on the precise issue now before the court. Therefore, when this matter was heard by Commissioner Raubinger the only decision precisely on the question (as to affirmative duty to strike a racial balance regardless of the School districts or residence of the Students) was the Bell_decision. The Bell decision was then the law and Commissioner Raubinger was obliged to follow it. Otherwise Commissioner Raubinger would not be following exist -

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a negro parent charged that her child had been segregated with regard to school attendance. He applied for admission to school outside his district and was denied on the basis that "The Fourteenth Amendment does not speak in positive terms to command integration, but negatively, to prohibit governmental enforced segregation." The court held that the infant plaintiff was entitled to be treated simply as another school child, without regard to his race or color, and the fact that he was a negro did not vest him with a right to attend a school located in a district in which he did not reside when that geographical rule was being applied to all children alike. Neither segregation nor discrimination are shown merely because therf are more negro students in one section then another. Sealy v. Department of Public Instruction. 252 F 2d 898 (3rd Cir. 1358) Cert. Den. 365 U.S. 975 (1958). "Our constitution is color blind, and neither knows nor tolerates classes among citizens. Dissenting opinion of Mr. Justice." Harlan in Plessy v. Ferguson. 163 U.S. 537. In the instant case, Commissioner Raubinger has held that the mere fact that these students in Lincoln School are negro has vested them with the right to attend schools outside the Lincoln School district, even though the neighborhood school geographical rule was being applied to all children alike. In short, merely because of their color, the colored students of Lincoln School have been given preferential treatment, causing a change in the approved Englewood School attendance system. Because of this preferential treatment, other students are excluded from attending the sixth grade they would normally attend, purely because of race. This not only violates the Fourteenth Amendment of the Federal Constitution, but also the 1946 New Jersey Constitution, Art. 1 paragraph 5 which provides that

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

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

Quarles, Cleveland or Roosevelt school do not get their choice ? Is this not a denial of equality of choice and therefore a denial of equal protection. Are not the students from Lincoln school being granted certain advantages that other students similarly situated do not have ? Is not the basis of the distinction color ? Where children were once treated alike by going to school in their neighborhood, the proposal is now to treat them differently; and why? Purely because of color. This fact is inescapable. But this inescapable fact is adversely affecting other children. Children throughout the city of Englewood who normally attend the sixth grade at the school nearest their residence must now travel a further distance to the Engle Street School. They must now go to school in the heart of the businesi district causing greater risk and danger to their person. Because of this preference being given for color, because of this exclusion from normally attended sixth grades, added expenditures of public funds will be imposed upon the taxpayers at a minimum cost of $123,000.00 merely to implement the change. In Evans v. Buchanan, supra. 207 F. Supp 820 (D. Del. 1962) (U. S. District Court) where the court was confronted with a situation involving an all negro school in a negro residential area with a charge that this violated the Equal Protection Clause of the Fourteenth Amendment of the Federal Constitution, it was argued that the State is compelled by Equal Protection clause to provide affirmatively an integrated education. The court held that the States are not required to provide an integrated education, setting forth the Fourteenth Amendment at page 823 as follows: "nor (shall any State) deny any person within its jurisdiction the equal protection of the laws." This clause does not contemplate compelling action, rather it is a prohibition preventing states from applying their laws unequally.

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27

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

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

^P'
IPA O. CRESKOFF
CLXXK

OFFICE OF THE Cl-ERK

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

2046 U. S. COURTHOUSE PHILADELPHIA 19KJ7

November 2, 1962;
Arthur J. Sills, Esquire Attorney General State House Annex Trenton, N. J. 08625 Re: Puller, et al., appellants, vs. Volk, et al., Nos. 15.0^3-15,0^^ Dear Sir: The Court has today approved the stipulation to extend the time for filing the brief of Intervening Defendant, Frederick M. Baubinger, to November^30, in the above case.

bw enc

Jar.vfr. 7. Murphy, Esq. XiBapbara A. Morris, Ebo. .:> A. Major, Es,q. John J. Ereslin, Jr., L.SC S^-i-'ey Dincin, Est Norton Stavis. E:

. I S ) STATES COURT OF APPEALS WT' FG.; TriE THIRD CIRCUIT 'Docket No. 15043-15044 GERTRUDE P. FULLER, et al., Plaintiffsj

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

Civil Action STIPULATION

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

? KENNETH ANCRUM, et al., and 1 DEBORAH SPRUILL, Intervening Defendants. )

It is hereby stipulated r.nd agreed by the undersigned

' that the'brief of intervening defer,d.-,nt, Frederick M. Raub_.-^r, originally due to be filed .u-Vci^is Court on October 29, 1964, ;> raay be filed with the Court no later than November 30, 1964 due
1

to a representation by the attorney for sa.c i.-.cervening defer.aant, Arthur J. Sills, Attorney General of New Jersey, by

Howard H. Kestin, Deputy Attorney General, that the press of other urgent duties, including <: r,u;.;ber of appearances before the courts of the State of New Jersey, prevents the filing of said brief on the date originally dua.

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

(I
SRESLIN AND BRESLIN, ESQS. Attorneys for Defendants,

Austin A. Volk, et al, constituting

the Board of School Estimate ir. the! City of Englewood; ^and the City of Englewood

John J.1 Breslin, Jr., Esq.

A
S I&SEY DINCIN, JESQ. Attorney for Defendants, John A. PerrM, et al, constituting the Board or Education of the City of Englewood

MAJOR AND MAJOR, ESQS. Attorneys for Intervening Plaintiffs, Jerry Volpe, et al

A. Major, Esq.

^1

V
j-.y-.r: .('.;:!. .1. SILLS'
Ai.:.;G]:v,oy General of New Jersey Attorney for Intervening Defendant, Frederick M. Raubinger

Howard H. Kestin i^_ Deputy Attorney General

HE113ERT H. TATE, ESQ. and BARBARA A. MORRIS, ESQ. Attorneys for Intervening Defendants Kenneth Ancrun, et al

3y:

Barbara A. Morris

KClcTGN STAVIS, ESQ. snci WILLIAM K. KUKSTL2R, ESQ. for Intervening Cafcndant, Deborah Soraill

on Stav-5

APPROVED: KALODNER

J.

Movwtor a, 1964

.inc. -mmr . -LIANJ uc inr. j>jriua_r<j.-t-i LU.V-U31LN, 1 . 1 HHAKV op QCNGRESS

UNITED STATES COURT OF APPEALS FOR THE -THIRD CIRCUIT Dockec No. 15043-1.3044

ij:-; P. FULLER, et ai.,

Plaintiffs,
vs. AUSTIN A. VOLK, et al., constituting the BOARD OF SCHOOL ESTIMATE CF THE CITY OF EKGLEWOOD; the CITY OF EF.GLEWOOD; and JOHN H. ?Hr:rJ. cj: . ; . "!, constituting the BCARD Or F: . AVi-. OF THE CITY OF ENGLEHOOD,

Defendants
etc .

Civil Action STIPULATION ARTHUR J. SILLS Attorney Ganeral of New Jai'sey Attorney for Intervening "Cafendant, Frederick H. Raublnger State House Annex Trenton, New Jersey By: Howard H. Kestin Deputy Attorney General

ornci OF THB CLERK

IDA O. CftCSKOFF FOfl THI TH1HO CIRCUIT 2048 U . 9. C O U R T H O U S E

~^yO

UNITED STATES COURT OF APPEALS /

H
PHILADELPHIA I9K37

I'Gti

November 2, 1 6 94 Barbara A. Morris, Esquire 20 West 40th Street New York, N. Y. 1 0 8 01 Re: Nos. 15,043-15,044 Puller, et al., appellants, vs. Volk, et al,, Dear Miss Morris: The Court has today approved the stipulation to extend the time for filing the brief and appendix of Intervening-Defendants-Respondents, Kenneth Ancrum. et al. and Deborah in the above case. Sprulll, et al. to November 23, 1964 Receipt is acknowledged from you on October 31, 1964 of appearance ing-Defendants, Ancrum, et al. of counsel for IntervinEnclosed is appearance form for Robert L. Carter, Esquire. /
/</

Very truly yours, r\ - '- -

bw enc. cc: James T. Murphy, Esq. James A. Major, Esq. Sidney Dincin, Esq. Morton Stavis, Esq. Barbara A. Morris, Esq. John J. Breslin, Jr. , Esq.

ISA. 0. CRESKOFF / Clerk

Puller, et al., appellants vs. Yolk, et al.

UNFTED STATES COURT OF APPEALS THIRD CIRCUIT '

Docket No. .15*

The following bis been received tad filed today:

Appearance of counsel, for Intervening Appellees.

46640NOV-9'6'.J
11-7-64
fcu O. Clerk.

Ioreber IS, 196-* T, Murpfcy, 6 South Depot Square Jiev Jeray Major Attui J&oses A. /uijor, 2V1 Main tr9t Haw Jarse/
16

Esq.

Arthur J. 8111*, Attxu Howard K*tint iuq. Sfcata Houa* ABMJt Jry Stavlt, Broad 8tr*c tar

Breallc 4 Brealin Attw Jo&n 3. *1 Mala Street

aadteci*ck,

Jr.,

Oeatl Coofiricc your gra*ct vitc v orfic* of dat*, it 1* undr*tod tfeat you vlil atLi dlr*otly to Mr*. Ida Cr**kof/, Urk or th Court of Apiwai* for tfo* third Circuit la HiUa4lphla, a Itttar coo Mating to ao artafntm of tla for th rillac oT anv*ria< brief* on bbalf of *prulll aod Aacrua, tt al. t eoaltct vitb ta oelo*d copy of th tipul*tloB. CM pr**ur* of work ta th office ba* cot allowed to cotipleta the brief with cuffieieot tlae to bar* it printed ead filed by Borerter

REPRODUCED FHCM THE COLLECTIONS CF THE MANUSCRLPi' UJ.V.ii>l<J<,

-a-

23.

to

JO. 19**, ttds la

fttloe.

truly Korrl*
BH/w

co tot Hrs. Ida Crwfcoff

Hovanber 18, 19 6t HraV Ida C, Cregkoff, Clerk United States Court or Appeal* for the Third. Circuit United States Courthouse Philadelphiat Pennsylvania Dear- Mrs.- Creskoff i
He: Fuller,'et al. v. Volfr. et al.

In accordance with our conversation of this date, I aa enclosing an original and three copies of-a stipulation extending the tie within which defendants-respondents Sprulll'and Ancrum, et al., nay file their answering brief fro* November 23, 1961*- to November 30, 19&+. Unfortunately, the pressure of litigation in my office has not allowed ae to complete the brief so that it could go to the printer within sufficient tiae. I have ccMBuoicatad with all counsel In accordance with your instruction and have requested that they write directly to you confirming their agreement to this extension of tis. Thank you very uch for your consideration. Very truly yours, Barbara A. Morris BAM/swBnclv CO

r
LAW omen BRESLIN AND BRESLIN
41 MAIN ITHtrr HACKCNBACK, N. u.

19*3.1964

Honorabl* Ida 0. Cr**koff Clark UtitftA Stat Court or Aj?pala 2046 O. S. OourthouM
19107
XtM CFMkOtff I

Bat

yullr, at al., appellants, . Volk^ at al., Hae. 15. 043-15. _

MB hrby oooaant that the Zntarvenlngts-SeapoodAtttj^ XMMth Aoorua, t al. and DsboMih Sprulll, tt al. have an xtnaion of tima until Jtovwbw 30. 1$64 in whioh to file their brier aod appwXUx in th abo* antitlad Mfetcr. Your vry truly, Jota J. BrMlia, Jr. 4i fiidoey Dinola, Z*q. JaaMB A. Major, bq Barbara A. Morris, ABM T. Murpbgr> Norton Staria,
JJBtVH

COPY

KtfWJUAJil rLM iHfc UJI .1 .M.U'

Uf MH MANUi>l_KLf 1' U1V1S1CN, ULBKAKl' CF CCNQSSS

Attorney-at-Lav 6 South Depot Square &glevood, Kew Jtr*y

Janes T. Murphy

20,

Mrs. Ida C. Creskofr, Clerk United States Court of Appeals for the Biird Circuit United States Courthouse Philadelphia, Pennsylvania
Dear Mrs. Creakoff:
Re Fuller, at al. v. golkr. at al

I nave no objection to an extension of tine for the filing of defendants Spruill and Ancru at al.. briefs fro* Koveaber 23, 196^ to loveaber 30, 196V. Tery truly yours, James T. 'Murphy Attorney for PlaintiffsAppellants

OfrlCK

Of THE CUERK

UNITED STATES COURT OF APPEALS

IDA O. CRMKOFF rod TH TH1KC CIRCUIT a04 U. . COUKTHOUSE PHILADELPHIA

Barbara A. Morris, Esq. 20 West 40th Street New York, N.Y-/ 10018

Re:

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

Dear Sir: The Court has today approved the stipulation to extend time for filing appellees' (Ancrum, et al., and Spruill,.et al.) brief and appendix to November 30, 1 6 in the above entitled case. 94 Very truly yours

'

kb cc:

.IDA 0. CRESKOFF Clerk

James T. Murphy, Esq. Major & Major, Esqs Sidney Dincin, Esq. Arthur J. Sills, Esq. Morton Stavis, 2sq. Breslin & Breslin .Herbert Tate, Esq.'.

REPROXCED FBCM THE COLLECTICNS OF THE MANUSCRIPT DIVISICM7~LIBRARY CF CCNGRESS

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Docket No.

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

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

Intervening Plaintiffs-) Appellants,

vs.
AUSTIN A VOLK, et al.,

Defendants-Respondents , and FREDERICK. H. RAUBINGER, Commissioner of Education of the State of New Jersey, and
KENNETH ANCRUM, et al.,

) )
)

and
DEBORAH SPRUILL, et al.,

)
)

Intervening Defendants-) Respondents This is to certify that on the 30th day of November, 1961*, I served a copy of the foregoing brief and appendix fcr defendants-appellees by first-class aail postage pre-paid upon : James T. Murphy, Esq. 6 South Depot Square Englewood, New Jersey hajor <s Hajor > Attnj James A. Kajor, sq, 2^1 Kain Street Hackensack, Nev Jersey

I i I 1 trv^JVl

L-4

Sidney Dincln, Esq. 16 West Palisade Avenue Englevood, Kew Jersey Breslln & Breslin Attn: JohttJi, Breslln, Jr., Esq. Vl Main Strett Hackensack, -Vev Jersey

Arthur J. Sills, Esq. Attni Howard Kestln, Esq. State House Annex Irenton, New Jersey

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

-2-

CF SHE MANUSCRIPT DIVIS

Koveober 30, 196s*

; ? * ' C r e s k ff, Clerk tea states Court of Apoeals the Third C i r c u i t e aaelphla, Pennsylvania i.rs. C r e s k o f f :
Voli

I am sending you under separate cover, to be filed, 2O copies of the joint brief and a p p e n t i x or. behalf of intervening defendants-appellees, .-.r.cru, et a l . , ;:nd S n r u i l l , et :-.!. Hie f i v e c o p i e s cf the b r i e f have been served on each oppoEii.g counsel in accordance with R u l < 35. Our C e r t i f i c a t e of Service in thj s regard is artt-acheeS hereto. Very tn.-lv yoors ,

orris

end. ( 1 )

t-ru

i-j

i 1

OFFIOE OF THE Cl-ERK

UNITED STATES COURT OF APPEALS

IDA O. CRESKOFF cumc
F0 TH THIKJ CIRCUIT

U. S. COURTHOUSE PHILADELPHIA 191O7

December 1, Barbara A. Morris, Esq. Robert L. Carter, Esq. 2Q West 40 Street New York, New York 10O18 Re: Puller, et al., appellants, vs. Volk, et al., No. 15, 043-15,044 Dear Miss Morris: Receipt is acknowledged from you on November 30, 1964 of 20 copies of joint brief and appendix for intervening defendants-appellees, Kenneth Anorum, et al., and Deborah Spruill in the above entitled case. Very truly yours, IDA 0. CRESKOFF Clerk
bw cc: Morton Stavis, Esq. Herbert H. Tate, Esq.

'

Siting ^talfja Qkrurt of

For the Third Circuit
Docket No. 15043-44 GERTRUDE P. FULLER, RICHARD L. GRUBMAN, THOMAS F. CACCJOLA tnd JOSEPHINE CACCIOLA, ha wife, tad otben to be turned,

mtd
JERRY VOLPE, CT u. AUSTIN A. YOLK. K u^ FREDERICK M. RAUBINGER. Commaaooef at Edaotufi of the Slate ct New Jemy, KENNETH ANCRUM, ET 41-. DEBORAH SPRLTLL,

JOINT BRIEF AND APPENDIX FOR INTERVENING DEFENDANTS-APPELLEES KENNETH ANCRUM, ET AL., AND DEBORAH SPRUILL

MORTON STAVE, 744 Broad Street, Newrt, New Jeney, Attorney far I*teTYtiuHS-Defc4atilAfftUei Dtbcraii Spruitl,

ROBERT L CARTER. BARBARA A. MORRIS, 20 Wen 40 Street. New Yott. New Yort 1001S, HERBERT H. TATE, U6 Coon Street. Newwt, New Jeney. AOoneyi for ticmAetk AHcrtun, a mL, JOAN FRANKLIN, at

REPRODUCED FRCM THE CCCLECTIOE OF THE

OF COCSESS

OFFICE OF THE Cl-ERK FOR THC THIRD CIRCUIT a<M8 U. S. COURTHOUSE PHILADELPHIA 19KI7

\D STATES COURT OF APPEXl-S

IDA O. CRESKOFF
CLIAK

Deceaber 28,

Howard H. Kcstin, Esc. Deputy Attorney General Department of Law i Public Safety State House Annex Trenton, OS625, N. J. Fuller, et al., etc. and Volpe, etal., No. 15O44 appellants vs . Volke, etc., Fuller, etal. appellants in J15O43 Dear Sir: We acknowledge receipt froa you today of three copies of a motion for leave to file your brief on behalf of Rabuinger (intervening defendant) out of tiae. Pleasesend us an additional copy of the action and four copies of a letter indicating a specific date to which yoc wish the extension. If all counsel will notify us in writing that they co not oppose the jsotion we can listit as indicated on January 18, 1965 without hearing.

Very truly yours,

IDA O. CRESSOTF Clerk

sw
cc:

Jaaes T. >>i2rphy, r.-c. Morton Stasis, Esc. John J. B r e s i i n . J r . , Esc. A r t h u r J. Sills, Esq. Sicr.^y Dincirj, ESQ. R o b e r t '-. C a r t e r , Esq. James A. Major, Esq. Barbara A. Wcrns, Esq.

REPRODUCED FROM THE

CF

OFFICE OF THE CLERK UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT IDA O. CRESKOFF CtXMK 2O46 U. S. COURTHOUSE

PHILADELPHIA I91O7

December 28, 1964

Howard H. Kestin, Esq. Deputy Attorney General Department of Law & Public Safety State House Annex Trenton, O862S, N. J.

Fuller, et al., etc. and Volpe, etal. , No. 15CK-3 appellants vs. Volke, etc., Fuller, etal. appellants in Dear Six: We acknowledge receipt froa you today of three copies of a motion for leave to file your brief on behalf of Rabuinger {intervening defendant) out of tie. Please send us an additional copy of the motion and four copies of a letter indicating a specific date to which you wish the extension. If all counsel will notify us in writing that they do not oppose the action we can listit as indicated on January 18, 1965 without hearing.

Very truly yoiirs,

IDA O. CRESKOFF Clerk

sw cc:

Jases T. Murphy, Esq. Morton Staves, sq. John J. Bre-slin, jr., Esq. Arthur J. Sills, Esq. Sioney Dincin, Esq. Robert L. Carter, Esq. Jaacs A. Major. Esc. Barbara A. Horris, Esq.

REPRODUCED FROM THE COLLECTIONS OF THE MAMJSCRIPT DIVISION, LIBRARY Cf CCNGRESS

DEPARTMENT OF LAW AND

ARTHUR J. (ILLS
A T T O N OINCHAL

PUBLIC

SAFETY

OtvtttO** or

ITATt HOVSI A TRCNTOW c*

December 29, 1964

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

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

Dear Madam: Enclosed please find an additional copy of my motion for leave to file the brief of intervening defendant Raubinger in the above mentioned matter out of tiae in accordance with your request dated December 28, 1 6 . 9 4 Please be advised that the specific date to which I wish the extension is January 18, 1965, the date for which the motion is listed. In sending notices of the aforementioned motion to all parties in this matter, I enclosed forms of consent along with stamped envelopes addressed to you. If these other parties do not object to the motion, they will presumably execute such forms and forward them to you. Thank you for your aid and cooperation. Very truly yours,

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