Appendix — Runyon v. McCrary

Supreme Court brief1976

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APPENDIX JAN 5 1078

Consolidated Nos. 75-62, 75-66, 75-278, 75-306

RUSSELL L. RUNYON, et ux, Petitioners.

¥.

MICHAEL C. McCRARY, etc... et al.

FAIRFAX-BREWSTER SCHOOL, INC _., Petitioner,

COLIN M. GONZALES. etc., et al.

SOUTHERN INDEPENDENT SCHOOL ASSOCIATION, Petitioner.

MICHAEL C. McCRARY., etc.. et al.

MICHAEL C. McCRARY, etc., et al., Petitioners,

RUSSELL L. RUNYON, et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS POR THE POURTH CIRCUIT

PETITION FOR CERTIORARI CASE NO. 75-62 FILED JULY 10, 1975

PETITION FOR CERTIORARI CASE NO. 75-66 FILED JULY 11, 1975

PETITION FOR CERTIORARI CASE NO. 75-278 FILED AUGUST 22, 1975

PETITION FOR CERTIORARI CASE NO. 75-306 FILED AUGUST 27, 1975

CERTIORARI AS TO ALL CASES GRANTED NOVEMBER 11, 1975

TABLE OF CONTENTS

1 apeed States ( curt of Appeehs for the b ourt®

Ceoet ~ Com Nee Th DER Th DOP TE DOO

7h IeSt TEINS?

Retrwere Dextct t cere '

Ogumeee of the ( curt ‘

bedgeees of the Cour Cae Ne 7) Me ss

pebgeeet of Ge Coat Com Ne 7) ua

hadgeess of Ge Court Ge Ne“) PO ”

badges of Ge Coen Cae Ne 7) PT

padgeeees of Ge Court Com Ne Th ~

ee es

Cede Seepeng Wate Ce See) PY

eee «)

Onder Seepamyg Weenies (Cee Soe)

aa he or

Bote be Apgar com Soe Rowan oF

Rowers fees .

ee ed

Cre tome We OPO) 4

ee ee A

a ae

Dep cen eet aamed Oar aagers -

(a)

Anveet tu ( omplamt

Motwn to Demass

Onder Amending \nveet

Onder Deny ng Motion to Dnsmass

Stipulation of Pacts

Interrogatones (Excerpt)

Anseen to interrogators (E scogpts)

Promefl. t duh So |

Paawttth tet So”

Reonfh tara |

Punt) Extube No = Marked Plamtifty

Extima Ne -

Preeti’ Exe Ne Marked Pismetfy

tate Ne |

Cotemtants FP atemet So |

Cwtembents Fede So

(otemianrs Fatma Se!

(Co tombqets Hetema So 6

(Cw temtames Feder Se”

feectente Fete Se *

ee8eee8es8ce2ze

Unsted States District (owrt for the Eastern

Detret of Virgine Alexandra Dimon

Cr Action No 495-724

ay a rl

Inpurm tan and Demages |

Movion to Dames and Anseer to ( umptamt

lnterragatone to Mantufty Consaie:

lnterrogstores to Plamufty Met rary

Rut mom to reseh

Interrogetones to Untemsant Bobie + Se hemi

Mormon to Amwed amd Add os Defense

Aawoets to lnterrogstor. to Defemdent Botte 1) Stead

Ansoen to Interragstoras to Pamtufh (onsale

Anween © lneermagetoree to Peamtifty Wt rary

Rom wente- pee om & her

ony to eer —traemhy ery

Wotmme to lneerweas on Pert) (mtomdent

Prawe dts Qnewer bo | mater: haem

Rares) of le tereem

(der cemtang leer sents e of tewthors

led peter: es Ramen ete

(iw)

Stipulation |

Onder Competing Product mon of Information

and Amending the ( ourt s Judgment

Suppte ment to Memorandum Opimwon and

Onders Dated July 27. 197)

Memurandum Openeon and Onder

Cid Actions 494.7) .4 and 495.7) 4

Plamtifts tabubet No |

Piatt: Eatuba No }

Intervemo sb abehet So |

intervenor st abubet No |

intervenor's Exhube No }

Caeret

—

Brier

Bay mend Cas

cri rir

ee eT yO

im 22

jen 28

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Regence ee

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i a iit

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Decided April 15, 1975

aegert Agee we

aggre: om Ge Uemed States Dastrict Court for the Eastern

a” Alexandria. Albert V. ye.

Ceeere st of Virgenes of i Bryan.

i i Butzner

Before Haynsworth, Chief Judge, and Winter, Craven,

Russell. Field and Widener, Circuit Judges, sitting en banc.

George S. Leonard and Louis Koutoulakos for Appellants in Nos.

a a 73-2349 and 73-2350; —, - ae R.

Sheehan rt, Lewis and Fitzge on brie

pe whe cy se ne in Nos. 73-2351 and 73-2352; (Thomas

J. Schwab on brief for Amici Curiae in Nos. 73-2348, 73-2349

and 73-2351; Allison W. Brown, Jr., (Robert M. Alexander and

Roderick V. O. Boggs on brief) for Appellees/cross-Appellants in

Nos. 73-2348, 73-2349, 73-2350, 73-2351 and 73-2352.

HAYNSWORTH, Chief Judge:

The issue in this case is whether 42 U.S.C.A. § 1981]!

prohibits private schools from denying admission to

qualified black applicants solely on the basis of their

race.

This appeal is a consolidation of two suits initiated

by parents of black children who claim that they were

denied admission to the appellant schools because of

their race.

The Southern Independent Schoo! Association inter-

vened in these actions, alleging that it is an association

representing over 300 private, non-profit schools in the

South, some of which concededly are racially exclusive

in their admission policies. The position of the inter-

venor is simply that racial discrimination by private

schools is not prohibited by §1981, and, in any event,

cannot be constitutionally prohibited.

As found by the trial judge, in early May 1969, the

parents of Colin Gonzales contacted the Fairfax-Brewster

School, a private school located in Fairfax County, Vir-

ginia, about enrolling their son in the school’s summer

day camp program, and continuing into the first grade

in the fall. The Gonzales’ learned of Fairfax-Brewster

through a mass mailing addressed to “Resident,” an

advertisement in the Yellow Pages in the telephone book,

and from a friend whose son attended the Summer

Camp.

lua persons within the jurisdiction of the United States shall

have the same right in every State and Territory to make and

enforce contracts, to sue, be parties, give evidence, and to the

full and equal bencfit of all laws and proceedings for the security

of persons and property as is enjoyed by white citizens, and shall

be subject to like punishment, pains, penalties, taxes, licenses,

and exactions of every kind, and to no other.”

Thereafter the Caomssies weeted the atest amd teeny

pleased eith ehat fey we competed of appa eters

for thew son They ate ferent’ 2 equ « eee

certificate and appixcetion foc Oe Mine te POR Ge

medscal certificate and appixcsteoe fee eere eetererd

accompanied by 2 form iettcr steteme that th acho!

was “unable to accommodate the appixeten” Neo fer

ther explanation was given.

Mr. Gonzales called the xhool!l aad spoke @h soem

one who identified humeif as Captem Reme te eeepeee

to Mr. Gonzales inquiry as to why bes son's applets

was rejected. he was told that the school eas Sot mite

grated.

Captain Reiss is the Chairman of the Board of Faw

fax-Brewster School. His son. Robert. is the Adaunistre

tive Director, and his daughter-in-law Olga is the Registre

Both Captain Reiss and his son deny any such com

versation. They testified that Colin, age 5-1/2. was re-

jected because they felt that the kindergarten he had

previously attended gave Colin insufficient preparation

for the first grade at Fairfax-Brewster. Because they

found Colin unqualified for the first grade, the Reisses

concluded that “there was no point™ in allowing him

to enter the summer camp only to have to “yank him

out” at the beginning of the academic year.

Subsequent to their son's rejection from Fairfax-

Brewster, the Gonzales telephoned Bobbe’s School, and

were told that only members of the Caucasian race were

accepted.

In August 1972, Mrs. McCrary called Bobbe’s School

about enrolling her two year old son, Michael, in the

nursery school. She asked whether the school was in-

tegrated and accepted blacks, and was told it did not.

She did not file a formal application with Bobbe’s.

Ade Cigten thr eageremtemiret of Botte. treted Sur

be mewet tecemed 6 ca from cutter fe (onesies of Wr

RcCrary Me tevtelerd Cet he a teed Gore et Si reme

nste om the been of race sithough be weal ft mo Mant

chdd had ever sppied

The Gestrat cowrt fowmd the teetemowy of fhe Bene

“snibelicwabte.” sad comcheded that Cole bad been oe

pected from F setax-Beewwter became of be rece Me for

ther fownd that both the Gowmzraies and Mire MC rary hed

called Bobte's and had been todd the! fhe nto! eowat

not accept blacks It held that. “li)t & of so moment

that no formal application ea filed It eowkd \ miaw

lous to require thes of the plasntef's after they bad cffec

tively been told & was usciem ~

Accordingly. the court concluded that the appetiant

schools practiced racial dmcrmmathon m thew adr msome

policies.

On the authority of Jones » Alfred H Mayer Co 99)

U.S. 409 (1968), Sullivan + Little Hunting Port. Inc 9%

U.S. 229 (1969) and Tillman + Wheeton-Haven Recreation

Assn., 410 U.S. 431 (1973), it held that § 1981 prohibits

racial discrimination in private contractual arrangements

even when there is no state involvement. Therefore.

held that the schools were in violation of § 198! protubets

racial discrimination in private contractual arrangements.

even where there is no state involvement. Therefore. it

held that the schools were in violation of § 198! in their

admissions policies, and permanently enjoined defendants

and intervenors from discriminating against blacks in en

roliment in their schools. In addition, it awarded damages

for embarrassment, humiliation and mental! anguish to

Colin, Michael and Michael's parents, and attorney's fees

against Fairfax —Brewster and Bobbe’s Gonzales v

Fairfax-Brewster School, Inc., 363 F. Supp. 1200 (E_D.

Va. 1973).

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Stagetaos coute on the defendant Unlike damages, attorney s

fee hewe teow granted only im narrowly defined circum-

tem ee

Se hewe recognized the propriety of an award of fees

when & party maintained his position in bad faith, dis-

pteying “Obatinate obduracy ~ Brewer ¥ School Board

af Cty of Norfolh, 4 Cir, 456 F. 2d 943, 948-52. The

duttet court, however, made no finding of “obstinate

ohterny.” © and we can see no basis for such a find-

ine Since this sult involves a novel application of a

recently revived ctatute, the litigation of the issues can-

not be equated with the recaicitrance we found in Brewer

Although at trial the parties recounted different versions

of the facts and the court accepted the plaintiffs’ story,

Sin refusing punitive damages, the district court found that the

defendants had not “acted recklessly or wilfully in disregard of

dew existing low.” 363 F. Supp at 1205 0.5.

the finding suggests no bad faith or perjury. Faults in

perception or memory often account for differing trial

testimony. but that has not yet been thought a sufficient

gound to shift the expense of litigation.

Attorney's fees, of course, are available where Congress

Ras CugUEEy eutnerties Gam. A cenngiousus example &

Tithe ll of the 1964 Civil Rights . ' Newman v. Pittie

Park Enterprises, Inc., 390 U.S. 400 (1968). Section 1981

never contained a provision for fees, and although the

Emergency School Aid Act of 1972 expressly allows fees

in suits to desegregate or federally aided secondary

or elementary schools, © plaintiffs have made no showing

of federal aid to, or state action by, the defendants.

In the absence of expressed congressional direction, we

are presented with the question whether to adopt a

“private attorney general” theory. Although application

of that theory may be proper in some actions based on

the 1866 and 1870 Civil Rights Act, it would be in-

appropriate in this case. In considering an award of fees

in an action based on the older civil rights statutes, we

look to more recent congressional determinations that a

policy is so important or public enforcement mechanisms

are so ineffective that attorney’s fees are necessary to

promote private enforcement. Mere provision of a private

cause of action is not sufficient. A statutory grant of

attorney’s fees in suits covering the same subject matter,

however, would be a strong indication of such a con-

gressional determination.

742 US.C. §2000a—3(b)

820 U.S.C. §1617 (allowing fees against a “local educational agency,

a State . . . or the United States” for a violation of that Act, Title

VI of the 1964 Civil Rights Act or the Fourteenth Amendment).

See Bradley v. School Board of the City of Richmond, 416 US.

696 (1974); Northcross v. Board of Education of the Memphis

City Schools, 412 US. 427 (1973).

In Lee v. Southern Home Sites Corp., 5 Cir., 444 F.

2d 143, Judge Wisdom looked to the enactment of the

Fair Housing Law of 1968, which contained a fees sec-

tion, 42 U.S.C. §3612(c), in deciding that fees were

available to a plaintiff seeking to redress racial discrimi-

nation in the sale of houses under §1982. In 1968 Con-

gress had acted, pursuant to its powers under the

Thirteenth Amendment, 9 to prohibit discrimination in

the sale of private housing. 10 In Lees’ §1982 action,

he proceeded against precisely the discrimination that

Congress had sought to curb by providing for an award

of reasonable fees for his attorney to a prevailing plain-

tiff in a private enforcement action.

Employment discrimination suits provide another ex-

ample of judicial allowance of fees under the older, more

general civil rights statutes. We have recognized that a

plaintiff under Title VII might recover attorney fees. !!

Reaching beyond Title VII, courts have allowed fees in

actions brought under the older civil rights sta.utes to

eliminate similar employment discrimination. Fowler v.

Schwarzwalder, 8 Cir., 498 F. 2d 143, (§§1981, 1983);

Harper v. Mayor and City Council of Baltimore, D. Md..,

359 F. Supp. 1187, 1218-19, modified on other grounds

sub nom., Harper v. Kloster, 4 Cir., 486 F. 2d 1134

%United States v. Hunter, 4 Cir., 459 F. 2d 205, 214.

10-fter December 31, 1968 the Act applied to all dwellings, 42

U.S.C. §3603 (a2), except those enumerated in §3603(b). In

Lee it was not clear whether the Act applied since the transactions

occurred before December 3!, 1968, and evidence on the applica-

bility of §3603 (a\(1), which covered that time period, was not

recounted in the opinion.

1142 U.S.C. § 2000e—5(k); Lea v. Cone Mills Corp., 4 Cir., 438

F. 2d 86; Robinson v. Lorillard Corp., 4 Cir., 444 F. 2d 791

(§ §1981, 1983); Cooper v. Allen, 5 Cir., 467 F. 2d 836

(§1981). In Cooper the plaintiff based his suit on racial

discrimination in hiring by a municipal golf course, but

he failed to go through the conciliation procedures of

Title VII and could not proceed under the statute.

Nevertheless, Congress had authorized fees in the similar

Title VII action to encourage private elimination of such

discrimination. Where plaintiffs advance precisely the

same congressional goal by the use of a more general

statute, they may be entitled to attorney’s fees. That is

not to say, however, that once fees are awarded in any

§1981 or §1982 case, they should always be granted in

actions based on those statutes. The focus of the inquiry

should be whether the plaintiffs advanced a goal the

attainment of which Congress sought to further by pro-

viding for the recovery by a prevailing plaintiff of his

attorney’s fees.

In this case the plaintiffs have not acted to foster a

goal that Congress deemed so urgent. The Emergency

School Aid Act spoke only to desegregation actions

against public and federally aided schools. Unlike the

Federal Housing Law or Titles II and VII of the 1964

Civil Rights Act, the statute does not aim to eliminate

discrimination from a facet of private American life. The

limitation in that statute to public schools is not merely

a technical or procedural restriction, but goes rather to

the substance of the congressional goal. Without some

congressional direction, even by analogy, we will not

award attorney’s fees, but will adhere to the usual rule

that prevailing plaintiffs may not recover their attorney's

fees.'2 for we find none of the recognized exceptions

applicable. 13

AFFIRMED IN PART .

REVERSED IN PART.

12 Fleischmann Distilling Corp. v. Maier Brewing Co.. 386 U Ss.

714, 717 (1967).

135e¢ Hall v. Cole, 412 US. 1 (1973); Mills v. Electric Auto-Lite

Co.. 396 US. 375 (1970).

BUTZNER, Circuit Judge, concurring in part and dissent-

ing in part:

I concur in Parts I, Il, III, and IV-A of the opinion.

I dissent from Part IV-B, which reverses the district

court’s allowance of attorney’s fees. I would adhere to

our practice of sustaining a district judge who, for sound

reasons, has allowed attorneys’ fees. His discretion can be

justified in this case on two grounds: the appellees acted

as private attorneys general, and, alternatively, the

appellants’ defense was tainted by obdurate obstinacy.

By prosecuting this single case, the appellees invalidated

the racially exclusive admission practices of over three

hundred schools represented by the Southern Independent

School Association, as well as the practices of Fairfax-

Brewster and Bobbe Schools. In so doing, they vindicated

congressional policy by abolishing an aspect of racial

discrimination prohibited by the Civil Rights Act of 1866

{42 U.S.C. §1981]. This type of suit is encompassed by

the private attorney general doctrine, which is applicable

to suits brought under the Civil Rights Acts of 1866,

1871, and 1964. See, e.g., Newman v. Piggie Park Enter-

prises, Inc., 390 U.S. 400 (1968); Cooper v. Allen, 467 F.

2d 836 (Sth Cir. 1972); Lee v. Southern Home Sites

Corp., 444 F 2d 143 (Sth Cir. 1971); Sims v. Amos, 340

F. Supp. 691 (M.D. Ala., 3-judge court, aff'd mem., 409

U.S. 942 (1972). Under this doctrine, the award is not

dependent on proof of bad faith, for good or bad faith

is irrelevant. Brandenburger v. Thompson, 494 F. 2d 885,

888 (9th Cir. 1974). Nor does the receipt of compensa-

tory damages preclude an award of attorneys’ fees, Knight

v. Auciello, 453 F. 2d 852 (ist Cir. 1972), though, of

course, a court may take damages into account when

awarding a fee. See Lee v. Southern Home Sites Corp.,

444 F. 2d at 147.

“

Alternatrety sttommey: fees ae peated eter defend

ants duplay oMdurste ofetmmay Sew Bererr + & hee

Board of City of Norfolk. 456 F Ja 94) 04m) Cle 1972)

(dictum) The district court's Gadinge empty eapperted

by the record. demonstrate that the officers of the

schools did not truthfully recount under ceth the fate

of the case. Such bad fath mm the comfect of Btigetion

is @ pernicious form of obstinacy thet can se more be

tolerated than outof<ourt bed fath (Cy Mall + Cob

412 US. 1. 15 (1973). This behavior should not be om

cused simply because this case involves « sows! factual

situation. Cf Lea » Cone Milk Corp. 48 F Jad O6.

(4th Cir. 1971), Miller » Amusement Enterpriees. Inc .

426 F. 2d 534, 536 (Sth Cir. 1970)

Finally, | believe that the enactment of 20 U S.C

§1617 directing the allowance of fees in public whoo!

desegregation cases does not create an inference that

Congress intended to withdraw from district courts “the

inherent equitable power™* of a chancellor to allow fees

in actions against private schools when the fects other

wise justify the award because the plaintiffs acted a

private attorneys general or the defendants duplayed ob>-

durate obstinacy. Other courts confronted with analogous

problems have not restricted the allowance of fees in suits

brought under the earlier Civil Rights Acts to instances

where Congress has subsequently authorized fees in re-

lated legislation. See. e.g, Brandenburger vy Thompson,

494 F. 2d 885 (9th Cir. 1974 welfare benefits), Sims

v. Amos, 340 F. Supp. 691 (M.D. Ala. three-judge court),

aff'd mem. 409 U.S. 942 (1972 reapportionment). Indeed,

the drastic limitation on the allowance of fees in civil

rights cases suggested by the majority appears to be with-

out precedent.

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” 31

The other social interest which supports the position

of appeilants is the interest in free association. It is con-

ceded that, as a general matter, enforced association is

foreign to our institutions. Mr. Justice Douglas, in his

dissenting 5 opinion in Moose p. 1,9, the proposition

thus:

“The associational rights which our system

honors permit all white, all black, all brown,

and all yellow clubs to be formed. They also

permit all Catholic, all Jewish, or all agnostic

clubs to be established. Government may not

tell a man or woman who his or her associates

personal association is still important, and the right of

free association certainly should apply, if it does in any

case, to units of such numbers. How great a size, if any,

might destroy the constitutional protection is a question not

now before us.®

It is one of the missions of law to balance conflicting

social interests so as to give the maximum of protection

to each. ? Which interest will prevail will depend therefore

upon special considerations in each context in which the

conflict is presented. A good illustration of this point is

to be found in a comment upon the district court’s de-

cision in the instant cases in Segregation in Private Schools,

must be. The individual can be as selective as

he desires.”

Even were we to assume, for argument, the majority hold-

ing that the persuasiveness of the right of free association

depends, in part at least, upon the size of the unit, both

of the schools here involved are small. They are not liuge

and impersonal. The district court’s opinion, 363 F.Supp.

1200, 1201, 1202, indicates a maximum enrollment at

Fairfax-Brewster School of 236 and at Bobbe’s School

an average of 200. In schools of that size, intimacy of

district court is that all races, so far as §1981 is concerned, may op-

erate racially segregated schools except the white race. Either all may

do so (as we contend), or none may. Such a restrictive construction

of 81981 also goes against the plain language of the statute. The

section provides: “‘All persons . . . shall have the same right . . . to

make and enforce contracts . . . as is enjoyed by white citizens, and

shall be subject to like [disabilities of various kinds] . . .” (emphasis

added). To give non-whites greater rights than whites would run con-

tra to the statute, the same as giving them less rights would violate it.

The force of Mr. Justice Douglas’s statement is not reduced by

the fact that it was part of a dissenting opinion; in fact, it is

accentuated. The issue in the case was whether the fact that a

private club dispensed liquor by virtue of a State license made its

action State action. The majority thought not; Mr. Justice Douglas

thought so. Thus, the quoted ianguage was opposed to the main

thrust of the opinion.

. i

122 U. Penna. L. Rev. 471, at 478, 479 (1973). It is there

stated that ‘“‘a balancing of Constitutional interests is

necessary to produce a proper construction of section

1981.’ The author continves:

“Our discussion to this point suggests where

the balance might be struck without seriously

impairing either right. The right to contract

protected in section 1981 should be limited

to contracts found in secondary, as con-

trasted with primary relationships. The former

[sic, latter] are ‘basically relationships be-

tween friends,’ characterized by ‘intimate

association.’ Secondary relationships, by con-

trast, are ‘impersonal, highly formalized re-

lations between people,’ for example, the

relationship between buyer and seller. . .

seem to indicate that great numbers alone do not necessarily furnish

sufficient cause to lose the constitutional protection of freedom of

asociation.

7 See Julius Stone, Social Dimensions of Law and Justice (Stanford

University Press, 1966), Chapter 4, pages 164, et seq, citing Roscoe

Pound and other legal scholars. Sornewhat this same idea is suggested

in 122 U. Penna. L.Rev. 471 at 478, 479 (1973), and 74 Col. L.Rev.

449, 468, 469 (1974).

under this approach, discrimination would

be allowed in primary relationships for any

reason whatever. including racial bias, .. .”

The article suggests that such a differentiation reconciles

the results in Jones v. Alfred H. Mayer Co., 392 U.S. 409

(1968), and Moose Lodge No. 107 v. Inis, 407 U.S. 163

(1972). If this approach is used, it seems to us that a

secondary school as found here involves a primary rela-

tionship and thus is not within the scope of §1981.

So far as the balancing of conflicting interests is con-

cerned, the difference between the right to own property,

under §1982, and the alleged right to attend an inde-

pendent school under §1981 becomes apparent. The

word “right” is ambiguous. See Private Discrimination,

74 Col. L. Rev. 449, at 468, 469 (1974). It may mean

an immunity from legal disability to own property or

make a contract. In Hohfeldian terms, this would be a

privilege. Or it may mean a power to compel another to

convey property or enter into contractual relations not-

withstanding a refusal to do so solely because of race. It

is not necessary to assume that the word right means

the same in all contexts. If on the one hand we consider

society’s interest in upward mobility and the removal of

invidious discrimination against disadvantaged groups, it

would seem clear, as pointed out in the Columbia Law

Review citation, supra, that a mere freedom from legal

disability to own property would be of little value to

a black person if prospective vendors could refuse to sell

to him because of his race. There might be no other

source from which he could purchase property. Thus,

the Supreme Court’s decision in Jones v. Alfred H. Mayer

Co.. 392 U.S. 409 (1968), can be readily understood and

accepted, even were we not under obligation to accept

and follow it.

The same basis of necessity is not available to support

the desire of blacks to attend an all white independent

school. The overwhelming portion of the burden of

educating our people is borne by public schools, which

by law are non-segregated. If all schools, nursery through

coliege, are considered, in 1972, 86.6% attended public

schools and only 13.4% attended non-public schools. If

only secondary schools, which is what are involved in

this case, be considered, statistics show that in 1972

92.4% of students attended public schools and only 7.6%

attended non-public schools. (American Almanac for

1974, page 108). These statistics are the more significant

when it is considered that more in ’ependent schools, in-

cluding all or practically all church affiliated institutions,

do not use race as a basis for admission. Thus, so far as

acceptance as a first class citizen is dependent upon

educational opportunity, the impact of schools such as

those operated by the ‘two appellants is diminutive. If

it be asserted that the exclusionary policies of schools

such as these appellants have invidious implications, it

must be remembered that most, if not all, of the high

prestige private schools, are not racially segregated. In

fact, many of them make an affirmative effort to obtain

black students. See Segregated Academies and State Action,

82 Yale L. Jour. 1436, at 1444 (1973). Indeed, at the

time of the district court’s decision in this case, appellee

Colin Gonzales had been accepted by and was attending

the Congressional School, a non-public school. 363 F.

Supp. 1202. Insofar as society’s interests in educational

opportunity for all of its citizens and the removal of

invidious discrimination are weighed against society’s

interests in true independence of non-public educational

institutions and freedom of association, especially in

connection with close, intimate relationships, we believe

that, unlike the right to purchase property involved in

Jones v. Alfred H. Mayer Co., the balance is in favor of

construing the right to make and enforce contracts pro-

tected by §1981 as being a freedom from legal dis-

ability and not as being extended to prohibiting a non-

public institution from operating on a racially segregated

basis.

As we have previously indicated, we do not find it

necessary to express an opinion on the constitutional

validity of 42 U.S.C. §1981, but we do feel compelled

to say that the result reached by the majority is an

unconstitutional and invalid application of the statute.

Our conclusion is supported by the opinion of the

court in Gilmore v. City of Montgomery, 417 U.S. 556

(1974), which adupts, in the opinion of the court, the

language we have previously quoted from the dissenting

opinion of Mr. Justice Douglas in Moose Lodge to the

effect that people may band together in their associa-

tion with whomsoever they please. And those cases

specifically refer to the forbidden and highly suspect

classifications of race and religion. Nothing in history

or the precedents contains any suggestion that the same

reasoning applied to a religious school in Pierce, to a

social club in Moose Lodge, and indeed (albeit in

slightly different context) to private schools ir Gilmore,

should not apply here. And we think the majority

takes too little account of Norwood v. Harrison, for

in that case, in a discussion of the precise type of

segregated private school involved here, the court un-

equivocally stated that the very bias here charged is

neither invalid nor subject to sanction of law:

“Such private bias is not barred by the Con-

stitution, nor does it invoke any sanction of

laws, but neither can it call on the Constitu-

tion for material aid from the State.” 413 US

455, 469.

We would reverse the judgment of the district court on

all points.

[Filed April 15, 1975]

JUDGMENT

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 73-2348

Michael C. McCrary, infant by

Curtis L. McCrary and Sandra

McCrary and Colin M. Gonzales,

infant by Raymond Gonzales and

Margaret R. Gonzales

we Ne eee ee”

Appellees,

Russell L. Runyon, Katheryne E.

Runyon,

Defendants,

Southern Independent School :

Association,

—" Se

Appellant.

Appeal from the United States District Court for the

Eastern District of Virginia.

This cause came on to be heard on the record from

the United States District Court for the Eastern District

of Virginia, and was argued by counsel.

On consideration vhereof, it is now here ordered and

adjudged by this Court that the judgment of the said

District Court appealed from, in this cause, be, and the

same is hereby, affirmed in part and reversed in part.

/s/ WILLIAM K. SLATE, II

CLERK

- t mecailll

36 | 37

[Filed April 15, 1975] . ,

JUDGMENT amen [Filed April 15, 1975]

UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS

No. 73-2349 No. 73-2350

Michael C. McCrary, infant by ) Michael C. McCrary, infant by )

Curtis L. McCrary and Sandra McCrary ) Curtis L. McCrary and Sandra McCrary, )

and Colin M. Gonzales, infant by ) pan

Raymond Gonzales and Margaret R. Gonzales ) Colin M. Gonzales. infant by fs,

Appellees, Raymond Gonzales and '

vs. Margaret R. Gonzales, )

Russell L. Runyon, Katheryne E. Runyon, )

- Appellants,

Appellants, .

Southern Independent School Association ea t- Runyon )

5 eryne IE Runyon, )

Defendant. Souther Independent School )

Association, )

Appeal from the United States District Court for the po

Eastern District of Virginia. Appeal apes

from the United States District Court for the

This cause came on to be heard on the record from Eastern District of Virginia

the United States District Court for the Eastern District This cCalyse came on to be heard th d f

o be on the record from

of Virginia, and was argued by counsel. the Uniteq States District Court for the Eastern District

On consideration whereof, It is now here ordered and of Virgini‘s and was argued by counsel -

adjudged by this Court that the judgment of the said

District Court appealed from, in this cause, be and the

same is hereby, affirmed in part and reversed in part.

On CONsideration whereof, It is now here ordered and

adjudged hy this Court that the judgment of the said

District Court appealed from, in this cause, be, and the

same is h@reby, affirmed in part and reversed in part.

/s/ WILLIAM K. SLATE, II

CLERK /s/ WILLIAM K. SLATE‘ II’

CLERK

[Filed April 15, 1975]

JUDGMENT

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 73-2351

Colin M. Gonzales, infant by his

parents, Raymond Gonzales and

Margaret R. Gonzales,

——"

Appellees,

VS.

Fairfax-Brewster School, Inc., )

Appellant.

Appeal from the United States District Court for the

Eastern District of Virginia.

This cause came on to be heard on the record from

the United States District Court for the Eastern District

of Virginia, and was argued by counsel

On consideration whereof, It is now here ordered and

adjudged by this Court that the judgment of the said

District Court appealed from, in this cause, be, and the

same is hereby, affirmed in part and reversed in part.

/s/ WILLIAM K. SLATE, Il

CLERK

- >be —

[Filed April 15, 1975]

JUDGE MENT

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 73-2352

Colin M. Gonzales, infant by )

his parents, )

Raymond Gonzales and )

Margaret R. Gonzales, )

Appellants,

vs.

Fairfax-Brewster School, Inc., )

Appellee.

Appeal from the United States District Court for the

Eastern District of Virginia.

This Cause came on to be heard on the record from

the United States District Court for the Eastern District

of Virginia, and was argued by counsel.

On consideration whereof, It is now here ordered and

adjudged by this Court that the judgment of the said

District Court appealed from, in this cause, be, and the

same is hereby, affirmed in part and reversed in part.

/s/ WILLIAM K. SLATE, II

CLERK

; 41

[Filed May 29, 1975] ORDER

UNITED STATES COURT OF APPEALS ’ Upon consideration of the petitinns for rehearing filed

4 on behalf of the appellants and the appellees,

IT IS ORDERED that Section IV-A of the opinion be

FOR THE FOURTH CIRCUIT

Nos. 73-2348 ' amended, adding at the end thereof a paragraph reading:

73.

pena ’ While allowing damages in favor of the McCrarys

against Bobbe’s School and in favor cf Colin

Michael C. McCrary, infant by ) Gonzales because of his minority, the district

ocean: bg sacl ' court denied an award of damages to Mr. and

infant by Raymond Gonzales and ) ’ Mrs. Gonzales since it concluded that their

Margaret R. Gonzales, ) i claim was foreclosed by the applicable statute

Appellees, of limitations. The statute applied was the

first sentence of Virginia Code §8-24, appli-

—— } cable to actions for personal injuries. it is

tog Runyon, Katheryne E. ‘ contended on appeal that the judge should

Defendants, ‘ have applied Virginia’s five year statute, the

Southern Independent School ) second sentence of §8-24, applicable to ac-

Association, ) tions not otherwise provided for in more

Appellant. ‘ specific statutes of limitations. While the

action is brought under Section 1981, the

Nos. 73-2351 | damage claim is entirely referable to injured

73-2352 feelings and humiliation. We have held such

Colin M. Gonzales, infant by claims asserted under the Reconstruction

his parents, Raymond Gonzales Acts to be governed by Virginia’s two year

and Margaret R. Gonzales, } statute. Allen v. Gifford, 4th Cir. 462 F.

2d 615; see Almond v. Kent, 4th Cir., 459

Agpeien, F. 2d 200. It is also contended that the

ame five year statute for actions on a contract,

Virginia Code §8-13, applies, but it is clear

Fairfax-Brewster School, Inc., ' that no action on a contract is involved.

Appellant. { IT IS FURTHER ORDERED that the petitions for

rehearing be and each of them hereby is denied.

Upon consideration of the motion for allowance of

attorney's fees on appeal filed on behalf of the appellees,

IT IS ORDERED that the motion for allowance of

attorney's fees be and hereby is denied.

In conformity with Alyeska Pipeline Service Company

v. Wilderness Society, 43 U.S.L.W. 4561 (U.S. May 12,

1975), Judge Butzner withdraws that part of his dissent

approving the district court’s allowance of attorneys’

fees on the basis of the private attorneys general theory.

However, he retains the section which would affirm the

allowance of fees because of the defendants’ bad faith.

See Alyeska Pipeline Service Company v. Wilderness

Society, supra 43 U.S.L.W. at 4567, 4570 n. 46. Judge

Winter and Judge Craven concur in this amendment of

Judge Butzner’s dissent.

Except as modified herein, each member of the oourt

adheres to the position he took in the previously re-

leased opinions.

FOR THE COURT

/s/ Clement F. Haynsworth, Jr.

Chiet Judge, Fourth Circuit

May 26, 1975

— .

43 :

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 73-2351

Colin M. Gonzales, infant by his

parents, Raymond Gonzales and

Margaret R. Gonzales,

versus

[Filed June 25,1975]

Fairfax-Brewster School, Inc.,

Appellants,

No. 73-2352

Culin M. Gonzales, Infant by his

parents, Raymond Gonzales and

Margaret R. Gonzales

Appellants,

versus

Fairfax-Brewster School, lac.,

Appellees.

Appeals from the United States District Court for the Eastern

District of Virginia, at Alexandria. Albert B. Bryan, Jr., District

Judge.

Upon the motion of the appellant, by counsel and

for cause shown,

IT IS ORDERED that the judgments in lieu of the

mandates be, and same is hereby, recalled; that the Clerk

of the United States District Court for the Eastern Dis-

trict of Virginia, at Alexandria, is directed to return fo

the Clerk of this Court the certified copy of the judgment

in each case issued in lieu of the mandate and that the

mandates be stayed pending application of the appellant

in the Supreme Court of the United States for a writ

of certiorari to this Court, provided the application ts

filed within the time permitted by law.

For the Court — by Direction.

/s/ WILLIAM K. SLATE, IL

CLERK

o~ ~~ ee

44-A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 73-2348

{Filed June 24, 1975]

Michael C. McCrary, infant by

Curtis L. McCrary and Sandra McCrary

and Colin M. Gonzales, infant by

Raymond Gonzales and Margaret R.

Gonzales,

Appellees,

versus

Russel] L. Runyon,

Katheryne E. Runyon,

Defendants,

Southern Independent School

Association,

Appellant.

No. 73-2349

Michael C. McCrary, infant by

Curtis L. McCrary and Sandra McCrary

and Colun M. Gonzales, infant by

Raymond Gonzales and Margaret R. Gonzales,

Appellees

versus

Russell L. Runyon,

Katheryne E. Runyon,

Appellants,

Southern Independent School

Association,

Defendant.

Appeals from the United States District Court for the Eastem

District of Virginia, at Alexandria. Albert V. Bryan, Jr., District

Judge.

44-B

Upon the motion of the appellant, by counsel and for

good cause shown,

IT IS ORDERED that the judgment in lieu of the man-

date be, and same is hereby, recalled; that the Clerk of

the United States District Court for the Eastern District

of Virginia, at Alexandria, is directed to return to the

Clerk of this Court the certified copy of the judgment

issued in lieu of the mandate and that the mandate be

stayed pending application of the appellant in the Supreme

Court of the United States for a writ of certiorari to this

Court, provided the application is filed within the time per-

mitted by law.

For the Court - by Direction.

/s/ WILLIAM K. SLATE, I

CLERK

ee ronson hs

[Filed May 6, 1975]

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL C. McCRARY., etc., et al

Plaintiff—Appellees

No. 73-2348

v. No. 73-2349

RUSSELL L. RUNYON, et al No. 73-2350

Defendant—Appellants No. 73-2351

No. 73-2352

and

SOUTHERN INDEPENDENT SCHOOL

ASSOCIATION

Intervenor

MOTION IN OPPOSITION FOR

ALLOWANCE OF ATTORNEYS’ FEES

Comes now the defendant-appellant, Russell L. Runyon,

et al, d/b/a Bobbe’s School, and moves this Honorable

Court to deny the motion for allowance of attorneys’

fees, and to further deny the petition for rehearing,

filed on behalf of Gonzales, et al. It is submitted that

as to these issues the trial court and the Court of Appeals

were plainly right. It is further submitted that the petition

for rehearing and for allowance of attorneys’ fees were

received by the undersigned counsel on May 2, 1975,

inasmuch as he was out of his office on May 1, 1975,

and therefore, he has insufficient time to prepare a

brief by May 6, 1975.

Respectfully submitted

/s/

Louis Koutoulakos

2054 14th St. North

Arlington, Va. 22201

Attorney for Russell L. Runyon, et al, d/b/a Bobbe’s School

Defendant—Appellant

CERTIFICATE OF SERVICE

I hereby certify that on this 2nd day of May, 1975,

true copies of the foregoing and attached Motren in

Opposition for Allowance of Attorneys’ Fees were mailed

to the fcllowing:

Allison W. Brown, Jr., Esq.

Suite 437-3000 Connecticut Ave.,N.W.

Washington, D.C. 20008

Robert M. Alexander, Esq.

2011 South Glebe Road

Arlington, Va. 22204

Andrew A. Lipscomb. Esq.

430 Washington Building

Washington, D. C. 20005

George S. Leonard, Esq.

1225 Connecticut Ave., N.W.

Washington, D. C. 20036

/s/

Louis Koutoulakos

a Oe eee waeaee ~

46-A

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

COLIN M. GONZALES, infant,

by Raymond Gonzales and Margaret R. Gonzales )

his parents, )

6030 Vista Drive

Falls Church, Virginia 22041 )

RAYMOND GONZALES and

MARGARET R. GONZALES,

Plaintiffs, )

Vv. ) CIVIL ACTION

NO. 494-72-A

FAIRFAX-BREWSTER SCHOOL, INC. )

c/o Steuart A. Reiss

5860 Glen Forest Drive

Baileys Crossroads, Virginia 22041 )

Defendant. )

RELEVANT DOCKET ENTRIES

1972

Dec. 19 Complaint, filed

1973

Feb. 13 Answer, filed

May 15 Motion to Dismiss, filed by deft.

May 15 Pre-trial. . . Case consolidated with C/A

495-72-A

July 11 Order amending defendant’s Answer, ent. and

filed

July 16, 17 Trial Proceedings: J. Bryan. This cause came

on for trial by the Court. Interrogatories. . .

admitted into evid, in both cases. Pitfs.

adduced rebuttal evidence and rests. Deft’s.

adduced sur rebuttal evidence and rests.

Closing arguments made. The Court took the

) cases under advisement

July 20 Defendant’s Memorandum, filed

July 27 Memorandum Opinion and order granting

judgment in favor of pltfs., entered-filed

July 30 Order, entered 7/16/73 dismissing claims of

Raymond Gonzales & Margaret R. Gonzales

for monetary damages & denying without

prejudice deft’s motion to dismiss, entered-

filed

ee ee ee eee veers

; {Filed December 19, 1972]

| [Title omitted in printing]

COMPLAINT FOR

DECLARATORY JUDGMENT,

| INJUNCTION AND DAMAGES

1. Jurisdiction of this Court is invoked Pursuant to 28

| U.S.C. Section 1337, 1343(4), 2201 and 2202. This ac-

tion is brought pursuant to 42 U.S.C. Section 1981 and

| 42 U.S.C. Sectior 2000a to secure for plaintiffs, who are

Negroes, the same right to make and enforce contracts as

is enjoyed by white citizens, and to enforce the right of

Plaintiffs to the full and equal enjoyment of places of

Public accommodation without discrimination on the

Zround of race or color.

2. This is an action for a declaratory judgment as to

plaintiffs’ rights, an injunction and monetary damages,

based on the maintenance by the defendant of a custom,

policy and practice of discriminating on the basis of race

or color with respect to the admission of children to edu-

cational and recreational facilities and programs operated

by defendant.

3. Plaintiffs bring this action on their own behalf and,

pursuant to Rule 23(b)(2) of the Federal Ruies of Civil

Procedure, on behalf of all similarly situated Negroes.

Negro children as a class are barred or may be barred,

because of their race or color, from admission to educa-

tional and recreational facilities and programs operated

by defendant. The class represented by plaintiffs is so

numerous that joinder of all members is impracticable;

there are questions of law or fact common to the class;

the claims of plaintiffs are typical of the claims of the

class: and plaintiffs will fairly and adequately protect the

interests of the class. Defendant has acted on grounds

generally applicable to the class, thereby making appro-

priate final injunctive relief and corresponding declaratory

relief with respect to the class as a whole.

4. Plaintiff Colin M. Gonzales, infart, brings this action

through his parents, Raymond Gonzales and Margaret R.

Gonzales, who also sue individually. Said plaintiffs are

residents of Fairfax County, Virginia; they are members

of the Negro or non-Caucasian race.

5. a. Defendant Fairfax-Brewster School, Inc. operates

an establishment located in Fairfax County, Virginia, which

provides nursery school, elmentary school, and summer

camp facilities and programs for children.

Oe ee eee eee

b. In the course of operating said programs, de-

fendant furnishes food for those who attend, which is con-

sumed on defendant’s premises. A substantial portion of

said food originates outside of the State of Virginia and

moves in interstate commerce.

c. Supplies and equipment used in the construction

of defendant’s facilities, and used in the course of its op-

erations, have originated outside of Virginia and have

moved in interstate commerce.

6. a. On or about June 15, 1969, plaintiff Colin M.

Gonzales’ parents, Raymond Gonzales and Margaret R.

Gonzales, spoke to an agent or employee of defendant

about enrolling Colin in defendant's elementary school

program, and after learning that he met the qualifications

for admission, Colin’s parents informed said agent or em-

ployee that they would like to enroll him. When said

agent or employee was told that Colin was of the Negro

race, Colin’s parents were informed that Colin was unac-

ceptable for enrollment because of his race.

b. At all times since June i5, 1969, plaintiff Colin

M. Gonzales has been prevented from attending Fairfax-

Brewster School, because of defendant’s custom, policy and

practice of denying admission to children of the Negro or.

non-Caucasian race.

7. Defendant’s failure and refusal to admit Negro or

non-Caucasian children to educational and recreational

facilities and programs operated by it is wilful, intentional,

malicious, and in reckless disregard of the rights of plain-

tiffs guaranteed by the Civil Rights Act of 1866 (42 U.S.C.

Section 1981) and the Civil Rights Act of 1964 (42 U.S.C.

Section 2000a). Defendant’s custom. policy and practice

of discriminating against persons of the Megro or non-

Caucasian race deprives such persons of the same right to

make and enforce contracts as is enjoyed by white citizens,

and violates the right of such persons to the full and equal

enjoyment of places of public ac. »mmodation without dis-

crimination on the ground of race or color.

8. Plaintiffs have no plain, adequate or complete rem-

edy at law to redress the wrongs alleged herein and this

suit for an injunction and a declaratory judgment is their

only means of securing adequate relief. Piaintiffs and the

class they represent are now suffering and will continue to

suffer irreparable injury from defendant's acts and policy

or practice of racial discrimination unless relief is provided

by this Court.

9. Asa direct and proximate result of the wrongful acts

of defendant alleged herein, plaintiffs have suffered, and will

continue to suffer, actual damages from (a) humiliation,

embarrassment and mental and emotional suffering caused

by the defendant’s custom, policy and practice of racial

discrimination; and (b) the deprivation by defendant of the

statutory rights alleged in paragraph 7 above. Therefore,

Plaintiffs Colin M. Gonzales, Raymond Gonzales and

Margaret R. Gonzales each claim actual and punitive or ex-

emplary damages in the amount of $2000, or a total of

$6000.

WHEREFORE, plaintiffs respectfully pray that this Court

enter judgment for plaintiffs as follows:

1. Declaring that defendant’s custom, policy and prac-

tice of discriminating on the basis of race or color with

respect to the admission of children to educational and

ie we oe

SO MON ee

recreational facilities and programs operated by defendant

is violative of rights secured to plaintiffs and the class

they represent under the provisions of 42 U.S.C. Section

1981, and 42 U.S.C. Section 2000a.

2. Granting plaintiffs and the class they represent a

preliminary and permanent injunction enjoining defendant

its agents, employees and those acting in concert with it

from discriminating on the basis of race or color with

respect to the admission of children to educational and

recreational facilities and programs operated by defendant.

3. Granting plaintiffs judgment against defendant,

jointly and severally, for actual and punitive or exemplary

damages in the amounts specified in paragraph 9 above.

4. Awarding plaintiffs their costs herein.

5. Awarding plaintiffs reasonable attorneys’ fees.

6. Granting plaintiffs and the class they represent such

further and additional relief as the Court may deem just

and proper.

/s/ ALLISON W. BROWN, JR.

Allison W. Brown, Jr.

Suite 437

300 Connecticut Avenue, N.W.

Washington, D. C. 20008

202/254-9341

/s) ROBERT M. ALEXANDER

Robert M. Alexander

2011 South Glebe Road

Arlington, Virginia 22204

703/920-7722

Attorney for Plaintiffs

Of Counsel.

Roderick V. O. Boggs

Washington Lawyers Committee for

Civil Rights Under Law

733—15th Street, N.W.

Washington, D. C. 20005

1, Raymond Gonzales, have read the foregoing complaint

and have personal knowledge of the facts referred to there-

in. Said facts are true to the best of my knowledge and

belief.

/s/ R. GONZALES

Subscribed and sworn to this

day Nov. 1972.

/s/

Notary Public

1, Margaret R. Gonzales, have read the foregoing com-

plaint and have personal knowledge of the facts referred

to therein. Said facts are true to the best of my knowl-

edge and belief.

/s) MARGARET R. GONZALES

Subscribed and sworn to this

15 day Dec. 1972.

/s/

Notary Public 5-22-73

SP NIT eed we ne ESO oer

UNITED STATES DiSTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

[Title omitted in printing]

* * * * *

ANSWER TO COMPLAINT

[Filed February 13, 1973]

Comes now the Defendant and by way of Answer to

the Complaint filed herein respectfully represents to this

Court as follows:

!. The Complaint fails to state a cause of action upon

which relief can be granted, and further the Statute of

Limitations bars this action and/or laches bars the equi-

table relief sought herein.

2. The Defendant, through its appropriate agent, denies

the jurisdiction of this Court is invoked under the Statutes

cited under the facts in this case, and further denies the

Defendant operates any place of public accommodation,

but says rather it is a completely private educational in-

stitution.

3. The Defendant, through its appropriate agent, denies

any of Plaintiffs’ rights have been violated and denies they

are entitied to the relief sought in Paragraph 2 of the Com-

plaint, and further deny any custom, policy or practice of

discrimination.

4. The Defendant, through its appropriate agent, denies

the Plaintiffs have a standing to sue under Rule 23(b) (2)

of the Federal Rules of Civil Procedure as alleged in Para-

graph 3 of the Complaint, in view of the facts in this

case. The Defendant also denies the remaining allegations

of Paragraph 3 of the Complaint.

5. The Defendant has no knowledge of the allegations

alleged in Paragraph 4 of the Complaint and neither 2d-

mits nor denies the truth thereof.

6. The Defendant admits the allegations of Paragraph

£(a) of the Complaint and says in addition thereto the

rairfax-Brewster School, Inc. is a completely private school

offering no facilities for public accommodations.

?. The Defendant admits in answer to Paragraph 5 (b)

that it furnishes food to its own students in a private

dining hall for said students; the place or origin of such

food is in many cases unknown to the Defendant and the

Defendant's agents, but no such food is used outside the

scope of its private operation.

8. The Defendant has no knowledge as to the truth of

the allegations in Paragraph 5(c) but denies they have any

application to the matter of this controversy.

9. The Defendant, through its appropriate agent, denies

the allegations of Paragraphs 6 (a), 6(b), 7, 8 and 9 of the

Complaint.

WHEREFORE, the premises considered, the Defendant

prays the Complaint be dismissed with costs and reason-

attorneys fees to the defendant.

Robert S. Reiss, President

Fairfax Brewster School, Inc.

Defendant

—— es

Lacininaty edittds Cts aabewies L,

Wesley E. McDonald, Sr.

Attorney for Defendant

3675 Military Road

Arlington, Virginia

B. Austin Newton, Jr.

Attorney for Defendant

440 Maple Avenue East

Vienna, Viiginia

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

[Title omitted in printing]

. * * o* *

MOTION TO DISMISS

[Filed May 15, 1973]

Comes now the Defendant, Fairfax-Brewster School,

Inc., through counsel, and moves this Honorable Court

to dismiss this action for the following reasons:

1. The Court is without jurisdiction to hear this

matter.

2. The allegations set out in the complaint are not

actionable.

3. The Statute of Limitations has expired.

Wesley E. McDonald, Sr.

Attorney tor Defendant

3675 Military Road

Arlington, Virginia

B. Austin Newton, Jr.

Attorney for Defendant

440 Maple Avenue East

Vienna, Virginia

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

[Title omitted in printing]

ORDER

[Filed July 11, 1973]

This cause came on to be heard on Defendant’s motion

at the time of the pre-trial herein for leave to amend its

Answer, and it appearing that such leave should be grant-

ed, it is by the Court, this 11 day of July, 1973,

ORDERED that the Defendant’s Answer be and the

same hereby is amended to add the following paragraphs

of defense:

“10. Defendant denies that admission to its private

school for children, or to its summer camp for children,

constitutes a contract within the meaning of 42 U.S.C.

1981.

(eA vet

11. Defendant says that if admission to its private

school for children, or to its private summer camp for

children, constitutes a contract within the meaning of

42 U.S.C. 1981, so as to give the infant plaintiff, or any

other children, whether white, negro or of any other race,

the right of compulsory admission thereto, then to such

extent the statute is unconstitutional and (1) denies the

rights of free speech and association guaranteed to the

defendant, to the children attending defendant’s private

school, or private summer camp, and to their parents,

under the First Amendment to the Constitution of the

United States, (2) denies them the right of equal protec-

tion of the laws under the Fourteenth Amendment to the

Constitution of the United States, and (3) imposes invol-

untary servitude upon them in violation of the Thirteenth

Amendment to the Constitution of the United States.

12. Defendant denies that it is engaged in or affects

interstate commerce in the operation of either its private

school for children or its private summer camp for chil-

dren, or that defendant, by definition or policy intend-

ment, comes within the terms of 42 U.S.C. 2000a.

/s)/ ALBERT V. BRYAN, JR.

Judge

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

[Title omitted in printing}

ORDER

{Filed July 16, 1973]

THIS CAUSE came on to be heard upon the defend-

ant’s Motion to Dismiss this action, and it appearing to

the Court that the claims of plaintiffs Raymond Gonzales

and Margaret Gonzales for monetary damages are barred

by Virginia’s two-year statute of limitations applicable to

personal injury actions, and that the requests for declara-

tory and injunctive relief, being based on alleged continu-

ing wrongs, are not barred by said statute, it is by the

Court this 16 day July, 1973,

ORDERED, ADJUDGED AND DECREED that the

claims of Raymond Gonzales for monetary damages are

dismissed: and it is further

ORDERED that defendant’s Motion to Dismiss in all

other respects is denied without prejudice.

/s/ ALBERT V. BRYAN, JR.

United States District Judge

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

[Title omitted in printing]

* * * * *

STIPULATION OF FACTS

[Filed July 16, 1973]

1. Raymond and Margaret R. Gonzales are members

of the Negro or non-Caucasian race.

2. Colin M. Gonzales is the son of Raymond and

Margaret R. Gonzales.

| 3. Defendant, Fairfax-Brewster School, Inc. is located

in Fairfax County, Virginia, where it operates a school

comprised of pre-primary through sixth grade, as well as

a summer camp.

* * » * *

7. Defendant’s summer camp, which has operated since

1962, has never had a Negro child enrolled, to defendant’s

knowledge.

* * * * *

19. Ail of the students enrolled in the defendant’s

school are residents of Virginia.

11. The average total enrollment at defendant’s school

for the academic years 1955-1956 through 1972-1973 are

as follows:

1955-56 21 | Attorney for Plaintiffs

1956-57 89

1957-58 94 |

1958-59 91 Attorney for Defendant

1959-60 118

1960-61 118

1961-62 138

1962-63 140

1963-64 141 UNITED STATES DISTRICT COURT

1964-65 178 FOR THE EASTERN DISTRICT OF VIRGINIA

1956-66 194 ALEXANDRIA DIVISION

1966-67 222

1967-68 231 [Title omitted in printing]

1968-69 208 : . F 7 .

1969-70 177 i

1970-71 207 INTERROGATORIES

1971-72 193

1972-73 223 ° ° ° * *

12. The average total enrollment at the summer camp | [Filed July 16, 1973]

for the years 1962 through 1972 are as follows:

The defendant is hereby requested to answer the follow-

1962 21 ing interrogatories, propounded bt» plaintiffs pursuant to

1963 31 Rule 33 of the Federal Rules of Civil Procedure, and to

1964 70 furnish plaintiffs with a copy of such answer within 30

1965 79 days of the date of service hereof.

1966 105

1967 125 * * * * *

on a 10. State the number of Negroes enrolled in Fairfax-

1970 138 Brewster School for each academic year from the time the

1971 165 school commenced operations through 1972-1973.

1972 236 ° * * * * *

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[Title omitted in printing]

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Plaintiffs’ Exhibit No.

(Marked Plaintiffs’ Exhibit No. 3 by reporter)

YELLOW PAGES INDEX ON PAGE 5 SCHOOLS +809

FAIRFAX-BREWSTER

PRIVATE SCHOOL

NURSERY e KINDERGARTEN e GRADES 1 THROUGH 6

Ann inveslment in your childs future .. °

STAFF *& CURRICULUM * FACILITIES *& SERVICES

CLOSE SUPERVISION @ THOROUGH TESTING & REPORTING @ PHONETIC

READING METHOD @ FOREIGN LANGUAGE @ ART. MUSIC @ SPORTS

PARK-LIKE GROUNDS @ BEAUTIFUL WILLIAMSBURG BUILDINGS @ DOOR.

TO-DOOR BUS SERVICE @ HOT LUNCHES @ DRAMATICS @ FIELD TRIPS

Comprehensive Pictorial Catalog Sent Upon Request

YEAR AROUND SERVICE

Open 7 AM to 6 PM

Safari he Totem ——

Summer Day (amp

820.2680

Defendants’ Exhibit No. 1

[Filed July 16, 1973]

THE FAIRFAX-BREWSTER SCHOOL

The Fairfax-Brewster School was founded in 1954 as a

private educational institution of exacting standards for

the early education and social development of young boys

and girls. The school offers instruction for children from

grade one through grade six and maintains a separate

school department for pre-primary instruction and special-

ized activities.

The school is situated on park-like grounds near the

Bailey’s Crossroads of Civil War historical note. On what

is now the school site, Julia Ward Howe was inspired to

write the immortal words to the Battle Hymn of the

Republic as she watched the Army of the Potomac pass

in review before Lincoln on November 20, 1861.

The school buildings are characterized by their graceful

contemporary Williamsburg lines and general character.

The classrooms are attractively decorated, furnished, and

well lighted. Westcott Hall, the first annex to be con-

structe.|, provides additional classrooms and auditorium

facilities for school plays, parents’ meetings, and other

uses.

The school campus is divided into several recreational

areas to accommodate the various age and activity groups

for both individual and organized sports.

The woodland groves, numerous evergreens, and flower-

ing shrubs provide an interesting and beautiful setting for

all school activities.

Educational Objectives

The major objectives of The Fairfax-Brewster School

are to provide the child with a sound basic education, to

develop in him desirable social attitudes, to encourage his

natural curiosity, to stimulate his quest for knowledge,

and to develop within him an understanding and apprecia-

tion of his American heritage.

The challenges of our era demand that we develop in

our youth receptive and disciplined minds by establishing

and maintaining worthy goals and by seeing to it that the

child realizes their value and exerts uncommon effort to

achieve them. Such effort can and should begin with the

child’s first school experiences.

The Fairfax-Brewster School seeks to fulfill its objectives

by providing a school environment highly conducive to the

mental growth of the child, and by affording him every

opportunity to develop his talents and capabilities to the

fullest.

Under the guidance of dedicated teachers and a school

philosophy which encourages the pursuit of excellence and

high ideals, the young student can acquire the essentials

and take pride in his achievements.

The Elementary School

The elementary school, consisting of grades one through

six, offers a combination of small classes, competent teach-

ing, and individual attention vhich enables the child of

normal or above ability to master the prescribed work of

his grade by the end of the school year.

Proper work habits are established from the very begin-

ning. The child is encouraged to do his best in all things,

to accept responsibility for his work, and to profit from

his mistakes as well as his successes.

Curriculum

The curriculum utilizes textbooks of leading educational

publishers which are nationally accepted and which meet

the school’s particular requirements. Selected supplemen-

tary materials, the school library reference books, educa-

tional movies and film strips, and related field trips en-

hance the courses of study.

Language Arts:

Reading — As reading is the most important element in

the curriculum, careful attention is given to all the factors

which bear on the child’s ability to successfully cope with

the emotional and physical experience of learning to read.

Phonetic and sight methods are used to teach the funda-

mentals. As skill and independence develop, the second

grade child becomes capable of absorbing library books in

addition to his regular texts, and in the third grade he is

taught to consult the dictionary and other reference

materials. Throughout the grades the continuous reading

program enables the child to build a substantial vocabu-

lary, to read orally with clarity and expression, and to

read silently with speed and comprehension. While teach-

ing the child to become a proficient reader, the staff en-

deavors to cultivate in him an appreciation of the English

language and a taste for good literature.

Writing — In first grade the child is taught manuscript

printing. In the latter part of second grade printing is

converted to cursive writing. Spelling, grammar, and

punctuation, integral parts of the language program, are

emphasized at all levels. Training in creative expression

through regular wntten compositions begins in second

grade.

Speech — Oral recitation is an important phase of the

language arts and is emphasized throughout the grades,

with training in clarity, poise, and expression so that the

child learns to communicate effectively.

Arithmetic

The study of numbers is a functional and rational en-

deavor which begins with the use of concrete materials,

pictures, objects, etc., and systematically progresses to in-

clude abstract symbols and meanings. One concept leads

to, builds upon, or enlarges another, and the processes are

interrelated. The end objectives for all grades are: the

understanding of numbers; the development of reasoning

ability; the ability to solve problems relaied to everyday

situations; and an understanding of the essential value of

mathematical knowledge.

Geography and History

These very important subjects are introduced as formal-

ized subjects in the third grade and increase in importance

with each successive grade. Although taught as separate

subjects their close relationship makes each more under-

standable and enjoyable. Preliminary to the introduction

of geography and history is the teaching of social studies

in first and second grades, covering units on the home,

school, and community. An American Heritage Program,

which compliments the study of American History, is de-

signed to give the child an understanding and deep appre-

ciation of his heritage—those great ideals and institutions

upon which the American way of life is based—so that he

can become orierted to it, protect it, and contribute to it.

Science

Science education is concerned with helping the grow-

ing child to understand his environment and to relate him-

self to it. The course of study is designed to provide a

framework of concepts, built up through experiences, on

which to base future learning. Science is given meaning

and made practical through classroom projects, experi-

ments, discussions, and nature study as adjuncts to the

regular textbook subject matter.

Foreign Language

Conversational French is introduced in the first grade

and is taught throughout the grades to those students who

show an aptitude for it. Emphasis is placed mainly upon

the oral aspect of the language. Through studies of French

customs and life as compared with our own, students ac-

quire a significant vocabulary and understanding of the

language, as well as an enthusiasm which should continue

in later school years.

Other Subjects

Physical education and health, music, drama, and arts

and crafts complete the curriculum.

Testing and Evaluation

Each grade school student is given a mental! maturity

test to help indicate his intellectual potential and to as-

certain his proper grade placement. Standardized achieve-

ment tests are administered at the end of each semester

to measure the child’s academic achievement in relation

to national norms and school established standards. These

tests aid in evaluating and re-orienting teaching in the

light of the particular abilities and needs of the student.

Readiness tests are given to all senior kindergarten chil-

dren at the end of the school year and to newly enrolled

first grade pupils to help determine their readiness for

first grade work.

Comprehensive report cards inform parents of their

child’s academic, emotional, social, and physical develop-

ment in terms that are sensible and as complete as pos-

sible. There are four reporting periods during the school

year.

A pupil will be promoted only if he has satisfactorily

completed the required curriculum of his grade. Upon

promotion he will be eligible for acceptance into any oth-

er schoo! system.

The Pre-School

The pre-school period is one of adjustment from the

sheltered home environment to the stimulus of daily con-

tact with the outside world on equal childhood terms.

The young child gains his independence and self-confidence

through group and individual experiences in a friendly and

stable atmosphere.

Fairfax-Brewster offers a carefully planned program de-

signed to meet the needs and interests of the pre-school

child and to prepare him for a successful beginning in the

first grade—mentally, emotionally, socially, and physically.

Pre-school children of ages three and above are placed

in appropriate classes according to age and maturity. All

activities are geared to the needs and abilities of these

children.

The Readiness Program — During the senior kindergarten

year a formal readiness program is introduced. The read-

ing readiness phase utilizes workbooks which help the

child to acquire skills necessary for learning to read in

first grade. The child is taught: left to right eye move-

ments; the difference between left and right hand; co-

ordination of eye and hand; how to develop visual and

auditory discrimination, problematic thinking and memory;

color perception; fundamental phonetics; and other impor-

tant learning experiences. The numbers phase teaches the

child to recognize the numbers from one to ten, to make

them correctly, and to understand what each number

means. At the end of the school year each child is given

a standardized readiness test to ascertain his potential for

first grade work.

Report cards are sent to parents for each of the four

reporting periods. Parent-teacher conferences are encour-

aged when necessary and are arranged through the office.

Morning or full day classes are offered to all pre-school

children. Afternoon classes are offered to senior kinder-

garten children.

Pre-school children who attend full day are provided

cots for their afternoon rest periods. Additional super-

vised activities are offered in the afternoon.

Each pre-school child is requested to keep at school a

painting smock, a small rest blanket, and a pair of over-

shoes. This equipment, as well as all other outer clothing

and accessories, must be marked with the child’s name.

- Enrollment Procedures

Parents are invited to visit Fairfax-Brewster School and

inspect its facilities. Appointments may be arranged by

calling the office, HU 1-2680, Mondays through Fridays

during school hours.

Prior to the acceptance of an enrollment a personal

interview between the administrative office, the child, and

his parent is necessary. New grade students will be ac-

cepted upon their qualifications as based upon previous

records and the results of an entrance examination. )

Parents will fill out an enrollment form and sign the

contract. A iormal acceptance will be forwarded to the

parents.

A physical examination form, signed by the family

physician, is required for each child.

The program includes:

Free play period

Social adjustment through playing and experimenting with

specially selected equipment and materials.

Listening and learning period

Cpening exercises, health inspection, pledge of allegiance,

share and tell, discussions

Aesthetic activities

Songs, finger games, dramatizations, records, rhythm band,

stories and poems

Snack time

Grace, then milk or juice and cookies, followed by a short

rest

Work period

Cutting, pasting, painting, finger painting, paste! and crayon

art, clay modeling, numbers games, reading and numbers

readiness

Defendants’ Exhibit No. 2

[Filed July 16, 1973]

THE FAIRFAX-BREWSTER SCHOOL

PARENTS’ HANDBOOK

1969-1970 Year

ENROLLMENT PROCEDURES

Registration: Before an enrollment can be completed a

personal interview between the administrative office, the

parent, and the child is necessary. The parent must com-

plete the enrollment form and sign the contract on the

reverse side. A registration fee of $20.00 (not refundable)

is required for new students which must accompany the

enrollment form. Old students must pay a $20.00 deposit

(not refundable) which is deducted from the first tuition

payment. If an application is rejected the school will re-

tund the registration fee.

* * * * *

Previous Records: Grade school applicants must submit

report cards and all other pertinent records from the school

previously attended.

Entrance Examinations: If previous scholastic records

are inadequate or questionable entrance examinations will

be given. The fees are $10.00 for a single session and

$7.00 for each additional session, payable in advance.

* * * *x *

Age Requirements: A senior kindergarten child should

become five years old before January 1. A student is ac-

ceptable in first grade if his sixth birthday occurs by the

end of the year. Mental, emotional and physical maturity,

however, must be considered in proper grade placement.

If a child cannot adjust to the work of his grade within

six weeks the parent will be notified.

Defendant's Exhibit No. 3

[Filed July 16, 1973]

FIRST GRADE CLASS: 1969-70

STUDENT

Baier, Scott

Bell, Theresa

Brouillette, Kevin

Chance, Courtney

Cooper, Callie

Duncan, Billy

Ehrie, Richard

Hyndman, Mark

Johnson, Tim

Kildoo, Mike

Lowenbach, Marc

Madron, Lisa

Martin, Mildred

Medell, George

Morgan, Dorenda

Morrissey, John

Murphy, Scott

O’Bannon, Ricky

Porter, Tommy

Singleton, Wendy

Sitter, Debbie

Shay, John

Smith, Cherie

Shafer, Charles

Yocum, Charles

Based on Metropolitan Readiness Test, Form B, given Sept. 1969.

PREVIOUS SCHOOLING

(FB—Fairfax-Br. Senior Kind.)

United Church School, Canada

Falls Church Episcopal

Day School

Bobbye’s Private School

Three Bears Kindergarten

Merrilinga Kindergarten,

Australia

Teacher: Mrs. Williams

%ile Rank

as of

9/69

This class orened in September, 1969, with 25 students. It cloved in

June with 21. The average for the year was 22 1/7? students.

Only five children in the class were new students, and a." five had re-

ceived kindergarten training the previous year.

READINESS STATUS OF CLASS IN

TERMS OF PERCENTILE RANK

(as of 9/69)

Oldstudents ....... . .90%ile

New students... ... . . .841/2 %ile

Entireclass. ...... . . .89 %ile

Defendant’s Exhibit No. 4

[Filed July 16, 1973]

FAIRFAX-BREWSTER SCHOOL

Early-Late Care

This service is available to children of working parents who

provide their own transportation to and/or from school. It is

offered before and after regular school hours between 7 A.M.

and 6 P.M.

Home-School Relations

An open house is held each year to acquaint parents with

their child’s teacher and the school. Newsletters and bulletins

keep parents informed of important and interesting school

issues and events. Programs and other special events are of-

fered from time to time to stimulate home-school relations.

Report Cards

Report cards are issued four times during the school year.

These cards indicate to parents as objectively as possible the

intellectual, social and physical development of the child.

Close supervision and evaluation of the daily progress of each

child is maintained, and any difficulties experienced are

promptly brought to the attention of the parents. No child

will be promoted to the next grade without having satisfacto-

rily fulfilled the requirements of his grade.

Year Around Service

By providing early-late services, a summer camp program, and

vacation day care (by special arrangement) Fairfax-Brewster

School endeavors to meet the needs of parents the year

around.

Admissions Policy

The admittance of any child to Fairfax-Brewster School is

based on the following:

The child must be of average or above intelligence and

have an achievement potential in keeping with the class

he seeks to enter. He must be emotionally, socially,

and physically acceptable.

As the one abiding objective of the school is to educate

young children, the Admittance Committee will not pass

favorably upon any applicant unless assured that his presence

in Fairtax-Brewster will be in the best interests of himself,

his respective classmates, and the school in general.

Specific enrollment procedures and detailed information

on all aspects of the school are found in the Parents’ Hand-

book.

Robert S. Reiss, Director

SAFARI SUMMER DAY CAMP

Fairfax-Brewster is the originator of Safari Summer Day

Camp. Safari excites and holds the interest of children be-

cause it combines the best elements of the typical day camp

with the adventurous concept of the safari.

Safari campers are transported in colorful “‘safari-kars”

which are painted to resemble the skins of various African

animals. Safaris are taken to places up tv fifty miles from

school headquarters. While our purpose is to give each young

explorer a “shot at big game fun” it is not all traveling and

exploring. Woven into the program throughout the summer

are top rated camp activities; swimming with instruction;

selected sports; arts and crafts; overnight camp-outs; and

much more.

Safari is the culmination of the school’s desire to create

a recreational program in which children have more fun

and learn more during their summer vacation.

The Junior “edition” of the summer camp program pro-

vides the pre-school child with a safe, happy and con-

structive summer. Activities are designed to appeal specif-

ically to the interests of the young child vacationer and

include: aquatic play, games, arts and crafts, nature study,

care of the school pets, pony rides, picnics, and occasional

“junior safaris” to nearby places. Activities are conducted

primarily in our pre-school building and adjacent play-

grounds, and they are under the direction of members of

our Pre-Primary Department. The Junior Program is an

ideal way to introduce the very young child to a school

environment.

Safari Program: for children Junior Program: for pre-school

to enter Grades 1-6 (ages children, ages 2 1/2—5 1/2

5 3/4—11)

Defendant’s Exhibit No. 5

[Filed July 16, 1973]

NON CAUCASIANS IN ATTENDANCE

David, Pacita

Tran, Phuong Lan

Khan, Hakin

Kundu, Marina

Kundu, Apurba

Kundu, Marina

Bennett, Dawn

Kawakami, Wataru

Kim, Chris

Surti, Devesh

Torii, Hiromi

Bennett, Dawn

Bennett, April

Estberg, May Lee

Estberg, Timothy

Kim, Kathy

Tabuko, Sonoka

Torii, Hiromi

Wong, Douglas

Nakhleh, William

9/67—6/73

Philippines

Siamese

Indian

1968-69

Indian

Oriental

Asian

Japanese

Oriental

Japanese

Chinese

Asiatic

" ee ee ee

Amirshahi, Arya

Diab, Nirvana

Lee, Sang Yong

Massoud, Sayed

Naito, Mikio

Rizvi, Kamal

Rizvi, Mariam

Shoji, Hiroyuki

Wong, Douglas

Choi, Hee Suk

Murakami, Yuki

Singh, Alka

Torii, Hiromi

Nakhleh, William

Amirshahi, Arya

Kikura, Seri

Massoud, Sayed

1971-72

1972-73

Murakami, Shinichiro

Naito, Mikio

Naito, Ryoji

Rizvi, Kamal

Rizvi, Mariam

Shoji, Hiroyuki

Singh, Alka

Enrollments:

1967-68 —231

1968-69 —208

1969-70 -—177

1970-71 —207

1971-72 —193

1972-73

—223

n.c

OFFI waAMN

Persian

Oriental

Chinese

Arabic

Japanese

Asian

Japanese

Chinese

Japanese

Indian

Japanese

Asiatic

Persian

Japanese

Arabic

Japanese

Asian.

Asian

Japanese

Indian

% of total

Defendant’s Exhibit No. 6

[Filed July 16, 1973]

COURSES OF STUDY

Senior Kindergarten

* Weather: precipitation, evaporation, condensation, wind,

clouds, temperature, seasons, day and night

Measurement: clocks, calendars, yardsticks, scales,

thermometer

Our Country, Our Flag, Our State; animals and plants

in our State

Seeds: how they grow, their needs, how they travel

Money

Magnetism

Color: light and shadow

Holiday Celebrations: study of Christmas in Spain or

other country compared to U.S. Christmas

Reading and Phonics Readiness (with workbook and

worksheets)

Numbers Readiness (with workbook and worksheets)

Current Events (with Weekly Reader Surprise Newspapers)

. Emphasized

First Grade

* Reading: 3 pre-primers and workbook

Primer and workbook

A ne eee

Ist reader and workbook

2 or more supplementary readers (at least

one at second grade level)

Phonics: 3 phonetic reading-workbooks

Language: written language workbook

spelling workbook

Penmanship: workbook

Mathematics: Grade 1 workbook

Science: textbook

Social Studies: textbook and Weekly Reader Newspaper

French: conversational

*Emphasized

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

MICHAEL C. McCRARY, infant,

by Curtis L. McCrary and Sandra McCrary)

his parents,

6062 Belleview Drive

Falls Church, Virginia 22041

COLIN M. GONZALES, infant,

by Raymond Gonzales and Margaret R.

Gonzales,

his parents,

6030 Vista Drive

Falls Church, Virginia 22041

CURTIS L. McCRARY, SANDRA McCRARY)

RAYMOND GONZALES and MARGARET )

R. GONZALES, )-

Plaintiffs,

Civil Action

No. 495-72-A

vs.

)

RUSSELL L. RUNYON and KATHERYNE )

E. RUNYON )

D/B/A BOBBE’S PRIVATE SCHOOL )

820 S. Carlin Spring Road )

Arlington, Virginia 22204 )

)

Defendants.

RELEVANT DOCKET ENTRIES

Dec. 19 Complaint, filed

Feb. 15 Motion to dismiss and answer

Mar. 15 Amended answer

92-A

Apr. 16 Memorandum Opinion and Order by Judge

Albert V. Bryan, Jr. dismissing claims for dam-

ages of Raymond and Margaret R. Gonzales

June 15 Motion to intervene, answer to complaint and

counterclaim, filed

July 9 Motion to intervene, granted

June 19 Answer to coonterclaim

June 21 Answer and counterclaim of Intervenor filed

July 13 Stipulation filed

July 16 & Trial proceedings before Judge Bryan

July 17

Jaly 27 Memorandum Opinion and Order by Judge Bryan

granting relief io plaintiffs and enjoining defend-

ants and intervenors

Sep. 14 Amendment entered to Court’s order of July

27, 1973

Sep. 24 Amendment entered to Court’s order of July

27, 1973

[Filed Dec. 19, 1972]

[Title omitted in printing]

COMPLAINT

FOR DECLARATORY JUDGMENT,

INJUNCTION AND DAMAGES

1. Jurisdiction of this Court is invoked Pursuant to

28 U.S.C. Section 1337, 1343(4), 2201 and 2202. This

action is brought pursuant to 42 U.S.C. Section 1981

and 42 U.S.C. Section 2000a to secure for plaintiffs,

who are Negroes, the same right to make and enforce

contracts as is enjoyed by white citizens, and to enforce

the right of plaintiffs to the full and equal enjoyment of

places of public accommodation without discrimination on

the ground of race or color.

2. This is an action for a declaratory judgment as to

plaintiffs’ rights, an injunction and monetary damages,

based on the maintenance by the defendants of a custom,

policy and practice of discriminating on the basis of race

or color with respect to the admission of children to edu-

cational and recreational facilities and programs operated

by defendants. ;

3. Plaintiffs bring this action on their own behalf

and, pursuant to Rule 23(b)(2) of the Federal Rules of

Civil Procedure, on behalf of all similarly situated Negro

citizens. Negro children as a class are barred or may be

barred, because of their race or color, from admission to

educational and recreational facilities and programs oper-

ated by defendants. The class represented by plaintiffs

is sO numerous that joinder of all members is impracti-

cz ple; there are questions of law or fact common to the

¢’ -ss; the claims of plaintiffs are typical of the claims of

the class; and plaintiffs will fairly and adequately protect

the interests of the class. Defendants have acted on

grounds generally applicable to the class, thereby making

appropriate final injunctive relief and corresponding de-

claratory relief with respect to the class as a whole.

4. a. Plaintiff Michael C. McCrary, infant, bring this ac-

tion through his parents, Curtis L. McCrary and Sandra

McCrary, who also sue individually. Said plaintiffs are

residents of Fairfax County, Virginia; they are members

of the Negro or non-Caucasian race.

b. Plaintiff Colin M. Gonzales, infant, brings this

action through his parents, Raymond Gonzales and Mar-

garet R. Gonzales, who also sue individually. Said plain-

tiffs are residents of Fairfax County. Virginia; they are

members of the Negro or non-Caucasian race.

5. a. Defendants Russel! L. Runyon and Katheryne E.

Runyon operate Bobbe’s Private School, an establishment

located in Arlington County, Virginia, which provides

nursery school, elementary school, and summer camp

facilities and programs for children.

b. In the course of operating said programs, defend-

ants furnish food for those who atterd, which is con-

sumed on defendants’ premises. A substantial portion

of said food originates cutside of the State of Virginia

and moves in interstate commerce.

c. Supplies and equipment used in the construction

of Bobbe’s Private School facilities, and used in the

course of its operations, have originated outside of Vir-

ginia and have moved in interstate commerce.

6. a. On or about August 7, 1972, Plaintiff Michael C.

McCrary’s mother, plaintiff Sandra McCrary, spoke to an

agent or employee of Bobbe’s Private School about en-

rolling Michael in its nursery school program and after

learning that he met the qualifications for admission,

she informed said agent or employee that she would

like to enroll him. When Sandra McCrary informed said

agent or employee that Michael was of the Negro race,

she was informed that he was unacceptable for enroll-

ment because of his race.

b. At all times since August 7, 1972, plaintiff

Michael C. McCrary has been prevented from attending

Bobbe’s Private School, because of defendants’ custom,

policy and practice of denying admission to children of

the Negro or non-Caucasian race.

7. a. On or about June 15, 1969, plaintiff Colin M.

Gonzales’ parents, spoke to an agent or employee of

Bobbe’s Private School about enrolling Colin in its ele-

mentary school program, and after learning that he met

the qualifications for admission, Colin’s parents informed

said agent or employee that they would like to enroll

him. When said agent or employee was told that Colin

was of the Negro race, Colin’s parents were informed

that Colin was unacceptable for enrollment because of

his race.

b. At all times since June 15, 1969, plaintiff Colin

M. Gonzales has been prevented from attending Bobbe’s

Private School, because of defendants’ custom, policy and

practice of denying admission of children of the Negro

or non-Caucasian race.

8. Defendants’ failure and refusal to admit Negro or

non-Caucasian children to educational and recreational

facilities and programs operated by them is wilful, inten-

tional, malicious, and in reckless disregard of the rights

of plaintiffs guaranteed b, the Civil Rights Act of 1866

(42 U.S.C. Section 1981) and the Civil Rights Act of

1964 (42 U.S.C. Section 2000a). Defendants’ custom,

policy and practice of discriminating against persons of

the Negro or non-Caucasian race deprives such persons of

the same right to make and enforce contracts as is en-

joyed by white citizens, and violates the right of such

persons to the full and equal enjoyment of places of pub-

lic accommodation without discrimination on the ground

of race or color.

9. Plaintiffs have no plain, adequate or complete

remedy at law to redress the wrongs alleged herein and

this suit for an injunction and a deciaratory judgment is

their only means of securing adequate relief. Plaintiffs

and the class they represent are now suffering and will

continue to suffer irreparable injury from defendants’

acts and policy or practice of racial discrimination unless

relief is provided by this Court.

10. As a direct and proximate result of the wrongful

acts of defendants alleged herein, plaintiffs have suffered,

and will continue to suffer, actual damages from (a) hu-

miliation, embarrassment and mental and emotional suf-

fering caused by the defendants’ custom, policy and prac-

tice of racial discrimination; and (b) the deprivation by

defendants of the statutory rights alleged in paragraph 8

above. Therefore,

Plaintiffs Michael C. McCrary, Curtis L. McCrary and

Sandra McCrary each claim actual and punitive or exem-

plary damages in the amount of $2000, or a total of

$6000. °

Plaintiffs Colin M. Gonzales, Raymond Gonzales and

Margaret Gonzales each claim actual and punitive or ex-

emplary damages in the amount of $2000, or a total of

$6000.

WHEREFORE, plaintiffs respectfully pray that this

Court enter judgment for plaintiffs as follows:

1. Declaring that defendants’ custom, policy and prac-

tice of discriminating on the basis of race or color with

respect to the admission of children to educational and

recreational facilities and programs operated by defend-

ants is violative of rights secured to plaintiffs and the

class they represent under the provisions of 42 U.S.C. Sec-

tion 1981, and 42 U.S.C. Section 2000a.

2. Granting plaintiffs and the class they represent a

preliminary and permanent injunction enjoining defendants,

their agents, employees and those acting in concert with

them from discriminating on the basis of race or color

with respect to the admission of children to educational

and recreational facilities and programs operated by de-

fendants.

. 3. Granting plaintiffs judgment against defendants,

jointly and severally, for actual and punitive or exemplary

damages in the amounts specified in paragraph 10.

4. Awarding plaintiffs their costs herein.

5. Awarding plaintiffs reasonable attorneys’ fees.

6. Granting plaintiffs and the class they represent

such further and additional relief as the Court may deem

just and proper.

/s/ ALLISON W. BROWN, JR.

Allison W. Brown, Jr.

Suite 437

300 Connecticut Avenue, NW

Washington, D.C. 20008

202/254-9341

/s;SROBERT M. ALEXANDER

Robert M. Alexander

2011 South Glebe Road

Arlington, Virginia 22204

703/920-7722

Attorney for Plaintiffs

Of Counsel:

Roderick V.O. Boggs

Washington Lawyers Committee for

Civil Rights Under Law

733 15th Street, N.W.

Washington, D.C. 20005

I, Curtis L. McCrary, have read the foregoing com-

plaint and have personal knowledge of the facts referred

to therein. Said facts are true to the best of my know-

ledge and belief.

/s/Curtis L. McCrary

S.S. in County of Arlington

State of Virginia

Subscribed and sworn to this

8 day of November 1972.

‘s/Dorothy V. Bogusky

Notary Public

I, Sandra McCrary, have read the foregoing complaint

and have personal knowledge of the facts referred to

therein. Said facts are true to the best of my knowledge

and belief.

/s/Sandra McCrary

Subscribed and sworn to this

9th day of November 1972.

/s/Paul J. Bates

Notary Public

My Commission Expires April 28, 1973

I, Raymond Gonzales, have read the foregoing com-

plaint and have personal knowledge of the facts referred

to the

to therein. Said facts are true to the best of my know-

ledge and belief.

/s/Raymond Gonzales

Subscribed and sworn this 16

day of November 1972.

/s/John P. Young, Jr.

Notary Public

I, Margaret R. Gonzales, have read the foregoing com-

plaint and have personal knowledge of the facts referred

to therein. Said facts are true to the best of my know-

ledge and belief.

/s/Margaret R. Gonzales

Subscribed and sworn to this

15 day December 1972

/s/Stanley Ryan

Notary Public

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

* « * * x

[Filed 2/15/73]

Come now the defendants, Russell L. Runyon and

Katheryne E. Runyon, d/b/a Bobbe’s Private School, and

respond to the complaint filed against them as follows:

MOTION TO DISMISS

100

This Court has no jurisdiction in this cause.

ANSWER

FIRST DEFENSE

No cause of action stated upon which any relief may

be granted.

SECOND DEFENSE

Defendants do not operate a place of public accommo

dation. This is a private institution. There is no infringe

ment upon any civil or constitutional rights.

THIRD DEFENSE

This is not a proper class action, as alleged in paragraph

3. Not all are similarly situated and may have adverse

interests.

FOURTH DEFENSE

Defendants are without sufficient knowledge as to the

allegations in paragraphs 4.a. and 4.b., and demand strict

proof thereof.

Defendants are without sufficient knowledge as to the

allegations in paragraphs 6.a. and 6.b., and demand strict

proof thereof.

Defendants are without sufficient knowledge as to the

allegations in paragraph 7.a. and 7.b., and demand strict

proof thercof.

FIFTH DEFENSE

Defendants admit operating a private institution.

Defendants deny that interstate commerce is involved.

101

Deny that plaintiffs are entitled to any relief asked for,

deny the allegations in paragraphs 8, 9 and 10.

WHEREFORE, defendants pray that this matter be dis

missed with costs to defendants.

Respectfully submitted,

RUSSELL L. RUNYON

KATHERYNE E. RUNYON

D/B/A BOBBE’S PRIVATE

SCHOOL

Defendants

By /s/

Counsel for Defendants

VAROUTSOS, KOUTOULAKOS,

ARTHUR AND HILTON

By /s/LOUIS KOUTOULAKOS

Counsel for Defendants

2054 14th Street North

Arlington, Va. 22201

527-0124

CERTIFICATE OF SERVICE

I hereby certify that on this 18 day of February, 1973

true copies hereof were mailed, postage prepaid, to Allison

W. Brown, Jr., Esq., Suite 437, 300 Connecticut Avenue,

N.W., Washington, D.C. 20008, and Robert M. Alexander

Esq., 2011 South Glebe Road, Arlington, Va. 22204, At

torneys for plaintiffs.

/s/LOUIS KOUTOULAKOS

Louis Koutoulakos

Attorney for Defendants

102

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

* %. * * x

[Filed 3/12/73]

INTERROGATORIES

TO: Robert M. Alexander, Esq.

2011 South Glebe Road

Arlington, Va. 22204, and

Allison W. Brown, Jr., Esq.

Suite. 437, 3000 Connecticut Ave., N.W.

Washington, D.C.

Attorneys for Plaintiffs

The plaintiffs, Raymond Gonzales and Margaret R. Gon-

zales, are requested to answer the following interrogatories

propounded by defendants pursuant to Rule 33 of the

Federal Rules of Civil Procedure, and to furnish defend-

ants with a copy of such answer within 30 days from

date of service hereof:

1. Please state which of the parents of Colin Gonzales

it was who allegedly spoke to an agent or employee of

Bobbe’s Private School.

2. State whether or not one or both parents of Colin

Gonzales participated in speaking allegedly to an agent or

employee of Bobbe’s Private School.

3. State the approximate time on June 15, 1969.

4. State the name or names of the employee or em-

ployees or agent or agents who were spoken to.

5. State whether or not any application for admission

103

was filed.

6. | State whether or not an application for admission

was given to either or both of the parents of Colin Gon-

zales.

| 7. State whether or not Colin Gonzales was enrolled

*n any school, and if so, when and what school, together

with the address of same.

8. State whether or not Colin Gonzales is of the Negro

race; if not, of what race.

RUSSELL L. RUNYON and

KATHERYNE E. RUNYON,

d/b/a BOBBE’S PRIVATE SCHOOL

Defendants

Louis Koutoulakos

Counsel for Defendants

VAROUTSOS, KOUTOULAKOS,

ARTHUR AND HILTON

Counsei for Defendants

2054 14th Street North

Arlington, Va. 22201

CERTIFICATE OF SERVICE

I hereby certify that on this day of March, 1973, a

true copy hereof was mailed to each attorney for the plain-

tiffs, Robert M. Alexander, Esq., 2011 South Glebe Road,

Arlington, Va. 22204, and Allison W. Brown, Jr., Esq.,

Suite 437, 3000 Connecticut Avenue, N.W., Washington

D.C. 20008. )

Louis Koutoulakos

104

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Al>xandria Division

* - * * * - *

[Filed 3/12/73]

INTERROGATORIES

TO: Robert M. Alexander, Esq.

2011 South Glebe Road

Arlington, Va. 22204, and

Allison W. Brown, Jr., Esq.

Suite 437, 3000 Connecticut Ave., N.W.

Washington, D.C. 20008

Attorneys for Plaintiffs

The plaintiffs, Curtis L. McCrary and Sandra McCrary,

are requested to answer the following interrogatories pro-

pounded by defendants pursuant to Rule 33 of the Feder-

al Rules of Civil Procedure, and to furnish defendants with

a copy of such answer within 30 days from date of serv-

ice hereof:

1. Please state the name of the agent or employee of

Bobbe’s Private School who allegedly was talked to about

enrolling Michael McCrary.

2. Please state the time of day this was, morning,

afternoon or evening.

3. State what the specific conversation was.

4. State what steps were taken, other than alleged in

paragraph 6.a. of the complaint, regarding any enrollment.

5. State whether or not there were any attempts to en-

roll in any other school in the Metropolitan Area.

105

6. State whether or not Michael McCrary is enrolled

in any other school, and if so, name and address of

school, and date of enrollment.

7. State whether or not Curtis McCrary and/or Sandra

McCrary did anything at all with reference to attempting

to enroll Michael McCrary. If so, please enumerate the

steps that were taken; whether or not any enrollment ap-

plication was actually filled out and submitted; and if so,

when.

8. Give the names and addresses of all similarly situ-

ated Negro citizens in whose behalf this action is being

brought, and state the date or dates that this class as set

out retained the attorneys for this suit.

RUSSELL L. RUNYON and

KATHERYNE E. RUNYON,

d/b/a BOBBE’S PRIVATE

SCHOOL,

Defendants

Louis Koutoulakos

Counsel for Defendants

VAROUTSOS, KOUTOULAKOS,

ARTHUR AND HILTON

Counsel for Defendants

2054 14th Street North

Arlington, Virginia 22201

527-0124

CERTIFICATE OF SERVICE

I hereby certify that on this day of March, 1973, a true

copy hereof was mailed to each attorney for the plaintiffs,

106

Robert M. Alexander, Esq., 2011 South Glebe Road, Ar-

lington, Va. 22204, and Allison W. Brown, Jr., Esq., Suite

437. 3000 Connecticut Avenue, N.W., Washington, D.C.

20008.

Louis Koutoulakos

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

[Title omitted in printing]

* - * | * * *.

MOTION TO QUASH

Come now the defendants, by counsel, and move this

Honorable Court to quash the interrogatories herein filed,

and also the request to produce, on the following grounds:

1. That this Court does not have jurisdiction in case.

2. That this matter involves a private institution, and

there is no legitimate civil rights issue.

/s/Louis Koutoulakos

Louis Koutoulakos

Counsel for Defendants

2054 14th Street North

Arlington, Va. 22201

527-0124

eee

107

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

[Title omitted in printing]

« * * * e

INTERROGATORIES

= * * * e

Counsel for Defendants

The defendants are herby requested to answer the

following interrogatories, propounded by plaintiffs pur-

suant to Rule 33 of the Federal Rules of Civil Procedure

and to furnish plaintiffs with a copy of such answer with-

in 30 days of the date of service hereof.

* = * * e

a. State all changes in this data which occurred

through calendar 1972.

3. Describe with particularity the summer camp pro-

gram operated by Bobbe’s Private School.

4. Describe with particularity the physical facilities

occupied by Bobbe’s Private School and its summer camp,

stating, among other things, the amounts of land, and size

of buildings, including the number of rooms.

5. State the number and kind of motor vehicles owned

or operated by Bobbe’s Private School in connection with

its school and summer camp program.

108

6. State when Bobbe’s Private School commenced oper-

ations.

7. State when the Bobbe’s Private School summer camp

commenced operations.

8. State the average total enrollment of Bobbe’s Private

School for each academic year from the time the schoo!

commenced operations through 1972-1973.

9. State the average total enrollment of the summer

camp operated by Bobbe’s Private School for each year

from the time the camp commenced operations through

1972.

10. State the number of Negroes enrolled in Bobbe’s

Private School for each academic year from the time the

schoo! commenced operations through 1972-1973.

11. State the name and last known address of each

individual counted in the answer to Interrogatory 10.

12. State the number of Negroes enrolled in the sum-

mer camp operated by Bobbe’s Private School for each year

from the time the camp commenced operations through

1972.

13. State the name and last known address of each

individual counted in the answer to Interrogatory 12.

14. State the current tuition charges for Bobbe’s

Private School.

15. State the current charges for attendance at the

summer camp operated by Bobbe’s Private School.

* > * * *

109

/s) ROBERT M. ALEXANDER

Robert M. Alexander

2011 South Glebe Road

Arlington, Virginia 22204

Allison W. Brown, Jr.

Suite 437

3000 Connecticut Avenue, N.W.

Washington, D. C 20008

Attorneys for Plaintiffs

Of Counsel

Roderick V. O. Boggs

Washington Lawyers Committee for

Civil Rights Under Law

733—15th Street, N.W.

Washington, D. C. 20005

CERTIFICATE OF SERVICE

I hereby certify that on this 8th day of March, 1973,

copies of the foregoing Interrogatories were mailed, first

class, postage prepaid to Louis Koutoulakos, Esq., 2054

14th Street North, Arlington, Virginia 22201, attorney

for defendants.

/s/ ALLISON W. BROWN, JR.

Attorney for Plaintiffs

110

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

[Title omitted in printing]

. * + * *

MOTION TO AMEND AND ADD AS A DEFENSE

[Filed March 15, 1973]

Come now the defendants and move this Honorable

Court to amend and add as a defense to their grounds of

defense, with reference to plaintiffs Colin M. Gonzales,

Raymond Gonzales and Margaret R. Gonzales, as follows:

1. That their action is barred by the statute of limita-

tions and/or laches.

RUSSELL L. RUNYON and

KATHERYNE E. RUNYON, d/b/a

BOBBE’S PRIVATE SCHOOL

By /s/ LOUIS KOUTOULAKOS

Counsel for Defendants

VAROUTSOS, KOUTOULAKOS,

ARTHUR AND HILTON

By /s/

Counsel for Defendants

2054-14th Street North

Arlington, Va. 22201

5270124

11]

CERTIFICATE OF SERVICE

I hereby certify that on this day of March, 1973,

true copies hereof were mailed to Robert M. Alexander,

Esq., 2011 South Glebe Road, Arlington, Va. 22204,

and Allison W. Brown, Jr., Esq., Suite 437, 3000 Con-

necticut Ave., N.W., Washington, D. C. 20008.

/s/ LOUIS KOUTOULAKOS

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

[Title omitted in printing]

ANSWERS TO INTERROGATORIES

[Filed April 11, 1973]

The defendants, Russell L. Runyon and Katheryn E.

Runyon, d/b/a Bobbe’s Private School, submit the follow-

ing answers under oath to interrogatories propounded by

plaintiffs:

> * * * *

3. A summer day camp operated during July and

August for four year olds through ten year olds, offering

horseback riding, archery, swimming, fishing, boating,

hiking, ccok-outs, and arts and crafts.

112

4. School land size: 31,000 square feet.

School building: 9,698 square feet (1 building

with 15 rooms).

Camp land: 84 acres.

Cainp buildings: 2,061 square feet (2 buildings

with 7 rooms).

5. One 60 passenger school bus; one 2 ton truck; and

2 1/2 ton trucks.

6. 1958.

7. 1967.

8. 1958 - 5

1959 - 40

1960 through 1965 - 85

1966 through 1972 - 200

9. 1967 through 1972 - 100

10. None.

11. Not applicable.

12. None.

13. Not applicable.

14. From $27.00 weekly to $35.00 weekly.

15. $90.00 additional for summer to regular tuition.

113

/s/ RUSSELL L. RUNYON

Russell L. Runyon

/s) KATHERYNE E. RUNYON

Katheryne E. Runyon

D/B/A Bobbe’s Private School

Defendants —

STATE OF VIRGINIA

COUNTY OF ARLINGTON, to-wit:

Subscribed and sworn to before me, the undersigned

Notary Public in and for the County and State aforesaid,

this 10th day of April, 1973. My commission expires

April 5, 1976.

/s/ MARY F. HARDING

Notary Public

VAROUTSOS, KOUTOULAKOS,

ARTHUR AND HILTON

By /s/ LOUIS KOUTOULAKOS

Counsel for Defendants

2054-14th Street North

Arlington, Va. 22201

CERTIFICATE OF SERVICE

I hereby certify that on this 10 day of April, 1973,

true copies hereof were mailed, postage prepaid, to at-

torneys for plaintiffs, Robert M. Alexander, Esq., 2011

S. Glebe Rd., Arlington, Va. 22204, and Allison W.

Brown, Jr., Esq., Suite 437, 3000 Connecticut Ave., N.W.,

Washington, D. C. 206008.

114

/s/ LOUIS KOUTOULAKOS

Louis Koutoulakos

UNITED STATES DISTRICT COURT

FOR THE EASTERN D'STRICT OF VIRGINIA

ALEXA™DRIA DIVISION

[Title omitted in printing]

* * * > *

ANSWERS OF RAYMOND GONZALES AND

MARGARET R. GONZALES TO INTERROGATORIES

COMMONWEALTH OF VIRGINIA, SS:

{Filed April 15, 1975]

Raymond Gonzales and Margaret R Gonzales, plain-

tiffs herein, being first duly sworn according to law, on

oath, give the following answers to the interrogatories

propounded by defendants:

1. Raymond Gonzales.

2. One parent (Raymond Gonzales)

3. It was earlier than June 15. It now appears to have

been in May 1969. The conversation was in the mornins-

4. The name is unknown; it was a male who rep**

sented himself as authorized to speak for Bobbe’s Private

School concerning enrollment matters.

5. No application was filed, since after Raymond

115

Gonza:es was told that his son would not be accepted be-

cause he is Negro, it appeared that it would be futile to

even request an application form.

6. No.

7. He was enrolled in the years 1969-1970 and 1970-

1971 at Congressional School, a private school located at

3229 Sleepy Hollow Road, Falls Church, Virginia. In

1971-1972 and 1972-1973 in St. Anthony’s Catholic

School, 3305 Glen Carlyn Road, Falls Church, Virginia.

8. Colin M. Gonzales is of the Negro race.

/s) RAYMOND GONZALES

Raymond Gonzales

Subscribed and sworn to before me this /0th day of

April 1973.

/s/ WILLIAM B. PETERS

Notary Public

My Commission expires 10/5/73.

/s/ MARGARET R. GONZALES

Margaret R. Gonzales

Subscribed and sworn to before me this /0th day of

April 1973.

/s/ WILLIAM B. PETERS

Notary Public

My Commission expires 10/5/73.

116

CERTIFICATE OF SERVICE

I hereby certify that on this / 3th day of Apnil 1973,

I mailed a copy of the foregoing answers to interrogatories,

first class, postage prepaid, to Louis Koutoulakos, Esq.

2054 '4th Street North, Arlington, Virginia 22201, at-

torney for defendants.

/s/ ALLISON W. BROWN, JR.

Attorney for Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

[Title omitted in printing]

ANSWERS OF CURTIS L. McCRAR

AND SANDRA McCRARY TO INTERROGATORIES

COMMONWEALTH OF VIRGINIA, SS:

Curtis L. McCrary and Sandra McCrary, plaintiffs here-

in, being first duly sworn according to law, on oath, give

the following answers to the interrogatories propounded

by the defendants:

1. The name is unknown; it was a male who identified

himself as authorized to speak for the schoc! concerning

enrollment matters.

2. Morning.

117

3. Mrs. McCrary stated that she had heard about

Bobbe’s Private School and that she was interested in

enrolling her son. She asked various questions about

the school and how it operated. She inquired about,

and received assurance that her son could attend even

though he was under 3 years of age. She was told that

there was an extra fee for a child who was not toilet

trained. She was told about the school’s Policy of provid

ing hot meals for the children, and of providing transpor-

tation if it was needed. Finally, Mrs. McCrary indicated

that her son is a Negro, and asked whether this would be

an obstacle to his attending the school, in other words,

whether the school was integrated. The person with whom

she spoke said he was sorry but they did not accept

Negro children.

4. In view of the foregoing conversation, Mrs. McCrary

assumed that she could not get an enrollment application

from Bobbe’s Private School and that any further efforts

to enroll Michael would be futile.

5. Yes. inquiries were made to several other schools.

6. Michael is now enrolled in a home nursery operated

by Mrs. Elbert Green, 2217 S. Oakland Drive, Arlington,

Virginia. He has been enrolled there since September

1972.

7. The discussion over the telephone described in the

answer to interrogatory No. 3, above, did not reach the

stage where any mention was made of an enrollment

application. Having been told that her son was unac-

ceptable, Mrs. McCrary did not ask for an application

form.

8. Objection is made to this interrogatory (misnumbered

as No. 7) on the advice of counsel who advise that the

question of the nature of the class represented by the

plaintiffs is a matter of law as discerned from the allega-

tions of the complaint, and the question concerning re-

tention of attorneys relates to privileged matter.

/s/ CURTIS L. McCRARY

Curtis L. McCrary

Subscribed and sworn to before me this ] 1 day of

April 1973.

/s) ARTHUR R. POWELL

Notary Public

State of Virginia

County of Arlington

My Commission expires July 28, 1975.

/s/ SANDRA McCRARY

Sandra McCrary

Subscribed and sworn to before me this /0 day of

April 1973.

/s/ ARTHUR R. POWELL

Notary Public

State of Virginia

County of Arlington

My Commission expires July 28, 1975.

CERTIFICATE OF SERVICE

I hereby certify that on this /3th day of April 1973,

119

I mailed a copy of the foregoing answers to interrogatories,

first class, postage prepaid, to Louis Koutoulakos, Esq.

2054 14th Street North, Arlington, Virginia 22201, at-

torney for defendants.

/s/ ALLISON W. BROWN, JR.

Attorney for Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Civil Action Nos. 494-72-A and 495-72-A

[Title omitted in printing]

MEMORANDUM OPINION AND ORDER

[Filed April 16, 1973}

Defendants have moved to dismiss this action as brought

by three of the named plaintiffs contending that the

statute of limitations has run.! This is a civil rights ac-

tion seeking redress for the violation of the plaintiffs’

rights resulting from racial discrimination practiced by the

defendants in connection with the admission of children

to Bobbe’s Private School. 42 U.S.C. § 1981.

The Motion to Dismiss raised other issues, as to all of which

the motion was denied in an oral ruling from the bench after

argument on April 6, 1973. The issue of the statute of limitations

was taken under advisement.

120

The injuries alleged and the relief sought in this case

sound in tort. Although this is a 42 U.S.C. § 1981 rath-

er than a § 1982 or § 1983 action, the applicable limita-

tion is governed by Almond v. Kent, 459 F.2d 200 (4th

Cir. 1972); Allen v. Gifford 462 F.2d 615 (4th Cir.), cert.

denied, sub nom., Gifford v. Allen, 93 S. Ct. 128 (1972).

In those cases Virginia’s two year statute of limitations

was applied to personal injury suits based on racial dis-

crimination. It is apparent that the damages claimed by

Raymond and Margaret Gonzales, as parents of Colin

Gonzales, are barred since the two year statute of limita-

tions began to run on June 15, 1969, more than two

years before this suit was filed. The limitation period

has not been tolled as to Colin Gonzales since it does

begin to run until he, a minor, attains the age of major-

ity. Davenport v. Deseret Pharmaceutical Company, 321

F. Supp. 659, 660 (E. D. Va. 1971).

Accordingly, the claim of Raymond and Margaret Gon-

zales for damages is dismissed. The requests for declara-

tory and injunctive relief, based as they are on alleged

continuing wrongs, are not dismissed; and it is so ordered.

/s/ A. V. BRYAN, JR.

United States District Judge

Alexandria, Virginia

April 16th, 1973

121

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

[Title omitted in printing]

* * * * *

MOTION TO INTERVENE AS PARTY DEFENDANT

[Filed June 15, 1973]

Upon the annexed affidavit, the prior proceedings had

herein, and the memorandum of law submitted herewith,

the undersigned, a non-profit corporate association

representing six state private school organizations, 395

private schools with an enrollment of 176,000 studens

and their respective parents, for itself, and as class rep-

resentative of all other private schools having admission

requirements limited in terms to a constitutionally signifi-

cant ciass, moves this Court pursuant to Rules 23 and

24 of the Federal Rules of Civil Procedure for an order

permitting its intervention as individual and class party

defendant, and allowing the filing of its annexed answer

to the complaint herein,

. . . AS a matter of right under Rule 24(a) in

that the undersigned and each member of the

class similarly situated has an interest in the

transaction which is the subject of the action,

is so situated that the disposition of the action

may as a practical matter impair or impede their

ability to protect that interest, and their interest

herein is not adequately represented by existing

parties; or

. . In any event, as a matter of sound judi-

cial discretion under Rule 24(b) in that the par-

ticular defenses of this movant and the class of

122

schools and associations similarly situated raise

questions of law and fact in common with the

existing action and such intervention will not un-

duly delay or prejudice the adjudication of the

rights of the original parties.

Respectfully submitted

Southern Independent School Association

P.O. Box 1675

Jackson, Mississippi 39205

Edith D. Hakola, Esq.

1400 N. Uhle Street

Arlington, Virginia 22201

703-522-5634

Of Counsel:

GEO. S. LEONARD, Esq. and

LEONARD, CLAMMER & FLUES

1225 Connecticut Avenue, N.W.

Washington, D. C.

June ,-1973

CERTIFICATE OF SERVICE

Pursuant to Rules 5 and 24 of the Federal Rules of

Civil Procedure, service of the foregoing motion, together

with each of the papers therein referred to, has been duly

made this day by first class mail prepaid upon the parties

hereto, to wit, upon Robert M. Alexander, Esq., 2011

South Glebe Road, Arlington, Virginia 22204, Allison W.

Brown, Jr., Esq. Suite 437, 3000 Connecticut Avenue, N.W.,

123

Washington, D.C. 20008, Louis Koutoulakos, 2054 14th

Street North, Arlington, Virginia 22201.

Edith D. Hakola

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

[Title omitted in printing]

* * * * *

PLAINTIFFS’ ANSWER TO COUNTERCLAIM

[Filed June 19, 1973]

Come now the Plaintiffs by Counsel and answer the Count-

erclaim filed herein by the Intervenor-Defendant as follows:

1. Plaintiffs admit the truth of the allegations contains in

Paragraph 11 of said Counterclaim.

2. Plaintiffs deny the allegations contained in Paragraphs

12, 13, 14, 15, and 16 of said Counterclaim.

WHEREFORE, having fully answered said Counterclaim,

Plaintiffs prays.

1. That said Counterclaim be dismissed.

2. And for such appropriate relief against the Intervenor-

Defendant deemed meet and just.

124

Respectfully submitted,

/s/ ROBERT M. ALEXANDER

Robert M. Alexander

Attorney for Plaintiffs

2011 South Glebe Road

Arlington, Virginia 22204

CERTIFICATE OF SERVICE

Copies of the foregoing Answer were mailed to Louis

Koutoulakos, Esq., Edith D. Hakola, Wesley D. McDonald

and B. Austin Newton, Defense Counsel in consolidated cases

494-72-A & 495-72-A, this 18th day of June, 1973.

/s/ ROBERT M. ALEXANDER

Robert M. Alexander

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

[Title omitted in printing]

* * * * *

. ANSWER OF INTERVENOR

{Filed June 21, 1973)

For its answer to the complaint herein, intervenor-defend-

ant Southern Independent School Association,

125

FIRST, SECOND, THIRD AND

FIFTH DEFENSES

Adopts as if set forth herein in full, the First, Second,

Third and Fifth defenses pleaded in the answer of the indi-

vidual defendants.

FOURTH DEFENSE

1. Denies that the private schools represented by inter-

venor are places of public accomodation, or are engaged in

or affect interstate commerce or, by definition or policy in-

tendment, come within the terms of 42 U.S.C. 2000a or any

other section of the Civil Rights statutes, or that admission

thereto constitutes a contract within ihe meaning of 42

U.S.C. 1981, or that white, black, or any other children

have a right of compulsory admission thereto.

2. Denies knowledge or information sufficient to form a

belief as to the alleged custom, practice or policy of the

defendants and further avers that with respect to private

schools of the class represented by intervenor, the selection

or rejection of applicants constitutes an exercise of the free-

dom of association of the respective parents acting in their

private capacity as citizens and is a protected expression und-

er the First Amendment to the Constitution of the United

States of a reasonable belief that homogeneity in a student

body is educationally advantageous.

3. Denies knowledge or information sufficient to form a

belief as to whether any class of similarly situated Negro

citizens exists, or that the claims of these plaintiffs are

typical of the claims of the class they purport to represent.

4.-7. Denies knowledge or information sufficient to form

126

a belief with respect to the allegations contained in the cor-

responding paragraphs of the complaint.

8.—10. Denies the allegations contained in the correspond-

ing paragraphs of the complaint and specifically repeats the

denials set forth in paragraph | hereof.

COUNTERCLAIM

11. Jurisdiction of this court over the federal question in-

volved is invoked pursuant to 28 U.S.C. §8 1331 and 2201,

and also pursuant to the pendent jurisdiction of the court

arising by virtue of the principal action. The amount in con-

troversy exceeds $10,000 exclusive of interest and costs.

12. Intervenor is an incorporated, nonprofit association

of six state private school associations in Virginia, North

Carolina, South Carolina, Alabama, Mississippi and Louisiana

and of otherwise unaffiliated private schools located in the

State of Georgia. Intervenor represents 395 private schools

having an enrollment of 175,000 students. Such schools are

supported and maintained in principal part by tuition charges

paid by the parents of the said students, no part of which

diminishes the taxes which the same parents are required to

pay for the support of public education. No such school is

created or administered by public authority nor is located in

an area lacking effective public educational facilities. Admis-

sion to all such schools is permitted to applicants only in the

discretion of the school authorities and no individual of any

race, creed or sex has any right to compulsory admission.

13. In organization, financing and legal contemplation,

such schools are believed to be representative of the class of

all private educational organizations which limit instruction

to student groups selected on the basis of locally determined

127

but constitutionally significant classifications.

14. The private schools represented by intervenor have

on the average achieved academic levels of student learning

which, measured on the basis of nationally accepted tests,

are substantially higher than the levels achieved in comparable

open public school classes either in their immediate area or as

measured against national public school averages. Such

scholastic results have been achieved at per pupil capital

and operating costs well below comparable costs in the

public school systems. Such schools provide to their

students patriotic and religious observances which are de-

sired by the parents concerned but are no longer permit-

ted in public schools. Such schools are substantially free

of vandalism, theft and other petty crimes which report-

edly characterize integrated public school systems. The

scholastic and disciplinary results achieved by such private

schools are in major part the scientifically demonstrable

effect of limiting admission to homogeneous student

groups having compatible learning requirements.

15. The parents of the students in the schools repre-

sented by intervenor have reasonable cause to believe that

the enrollment of their children therein will result in an

improved education, and such parents are guaranteed the

freedom to so express themselves by peaceful withdrawal

of their children form public schools, under the Second

and Third Clauses of the First Amendment.

16. Plaintiffs and their class, by paragraph | of the

prayer of their complaint for declarative judgment seek

the aid of this court to deprive such parents and children

in the schools represented by intervenor of the Constitu-

tional rights so referred to, such deprivation would in

turn adversely affect the viability and value of the pri-

vate schools amounting to an unconstitutional deprivation

128

of property. Accordingly, there exists an actual contro-

versy between classes represented by plaintiff and inter-

venor with respect thereto.

WHEREFORE, intervenor prays a judgment of this court,

1. Dismissing the complaint, and

2. Affirmatively declaring the rights of the parents

parents represented by intervenor to support and

maintain at their own cost private schools limiting

admission to a single race or other constitutionally

significant student group.

Respectfully submitted,

Southern Independent School Association

P. O. Box 1675

Jackson, Mississippi 39202

Counsel

Edith D. Hakola

1400 N. Uhle Street

Arlington, Virginia 22201

522-5634

Of Counsel:

Geo. S. Leonard

Leonard, Clammer & Flues

1225 Connecticut Avenue, N.W.

Washington, D. C. 20036

129

CERTIFICATE OF SERVICE

Pursuant to Rules 5 and 24 of the Federal Rules of

Civil Procedure, service of the foregoing Answer has been

duly made this day by first class mail prepaid upon the

parties hereto, to wit, upon Robert M. Alexander, Esq.,

2011 South Glebe Road, Arlington, Virginia 22204,

Allison W. Brown, Jr., Esq., Suite 437, 3000 Connecticut

Avenue, N.W., Washington, D. C. 20008, Louis Koutoulakos,

Esq., 2054 14th Street North, Arlington, Virginia 22201.

Edith D. Hakola

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

[Title omitted in printing]

ORDER

[Filed July 9, 1973]

Upon consideration of the Motion to Intervene of the

Southern Independent School Association and Affidavit of

William J. Simmons, its president, and Memorandum in

Support of Application for Intervention, and there being

no objection by parties plaintiff or defendant to such

intervention, it is,

130

ORDERED that the Southern Independent School

Association be and is permitted to intervene as an individ-

ual and class party defendant in this action; and it is fur-

ther,

ORDERED that the Answer of the Southern Independ-

ent School Association be filed and Answer made there-

to; and it is further,

ORDERED that George Leonard, Esq. is admitted as

counsel pro hac vice for the Southern Independent School

Association in this action.

/s/ A. V. BRYAN, JR.

Albert V. Bryan, Jr.,

Judge

/s/ EDITH D. HAKOLA

Edith D. Hakola, Esq.

1400 N. Uhle Street

Arlington, Virginia 22201

703-522-5634

Counsel for Intervening Party

131

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

[Title omitted in printing]

* * * * *

STIPULATION

[Filed July 13, 1973}

1. A substantial proportion of the schools represented

by intervenor deny admission to applicants of the Negro

race.

2. The schools represednted by intervenor admit ap-

plicants only in the discretion of the school authorities.

3. The schools represented by intervenor are privately

owned, financially supported by tuition paid by the

parents of the students and, in some cases, supplementary

private gifts.

4. The schools represented by intervenors are located

in areas having cost-free, desegregated public education

available to all children, and the parents of the students

in schools represented by intervenor are taxpayers who

pay their proportionate share of federal, state and local

taxes for the maintenance of such public system of

education.

5. The sole basis of jurisdiction asserted by plaintiffs

in this action is 42 U.S.C. 1981.

(July 13, 1973) /s/ ALLISON W. BROWN, JR.

Attorney for Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

[Title omitted in printing]

* * * * *

ORDER

[Filed September 14, 1973]

Upon consideration of the Motion to Compel Produc-

tion of Information and to Amend the Court’s Judgment

fiied by plaintiffs herein, it is,

ORDERED that the Southern Independent School

Association, intervenor-defendent, shall within 30 days

from the date of this order file with the Court, and serve

upon the parties hereto, a list of the names and addresses

of the 395 schools that are represented by said Associa-

tion in this action; and it is further,

ORDERED that said list shall thereafter be incorporated

in this Court’s judgment dated July 27, 1973, and that the

schools so listed shall be bound by said judgment.

132-A

/s/ A. V. BRYAN, JR.

United States District Judge

Date: September 14, 1973.

/s/ ROBERT M. ALEXANDER

Counsel for Plaintiffs

SEEN AND AGREED:

Counsel for Intervenor

Counsel for Defendant

SUPPLEMENT TO MEMORANDUM OPINION AND ORDERS

DATED JULY 27, 1973

1. The counterclaim of intervenor is dismissed for failure

to state a cause of action.

2. The proffered testimony of intervenor described on

page 8 of said Memorandum Opinion was admitted into evi-

dence subject to the Court’s reserved ruling on relevance.

133

3. Intervenor shall furnish the Clerk with the names of

the schools in the component associations of the Southern

Independent School Association within 30 days.

And it is so ordered.

United States District Judge Ss

Alexandria, Virginia A True Copy, Teste: /

September 24, 1973 W. Farley Powers, Jr., Clerk

ad Deputy Clerk

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Civil Action Nos. 494-72-A and 495-72-A

[Title omitted in printing]

* . 7 * *

MEMORANDUM OPINION AND ORDER

[Filed July 27, 1973]

On May 17, 1954, the Supreme Covrt decided Brown

v. Board of Education, 347 U.S. 483 (1954). The same

year Fairfax-Brewster School was founded. It commenced

™

134

operations in 1955. In 1958 Bobbe’s Private School com-

menced operations. Neither school receives and assistance,

financial or otherwise, from any state, local or federal

agency: and each relies entirely on funds derived from

tuition paid by students to support its operations. In

1956 Fairfax-Brewster commenced operation of a summer

day camp and in 1967 Bobbe’s did the same thing.

The enrollment at Fairfax-Brewster School grew from

an average of 21 in the first year, 1955-56, to 223 in the

year 1972-73. The rise in enrollment has generally been

increasing except for the year 1969-70 when it dropped to

177 from the previous year’s 208. The day camp’s enroll-

ment records are not available prior to 1962, but it shows

a growth from 21 that year to 236 in the summer of

1972. An unusually large increase was shown in 1969

over the previous year, but this dropped back in 1970.

Bobbe’s School grew from 5 in 1958 to an average of

200 in the years 1966-72. The day camp has averaged

100 students per year since its commencement. Neither

school has ever had a black enrolled at either its day

camp or schoo}. Both schools require submission of an

application form, a medical certificate as to the child’s

health, and a personal interview with the parties.

In early May of 1969, in response to an advertisement

appearing in the “yellow pages” of the telephone directory

similar to Pitf's Ex. 3, the parents of Colin M. Gonzales,

both of whom are black, as is Colin, telephoned and then

visited the school where they were shown around. Being

pleased with what they saw, they completed, on forms

then furnished them by the school, an application for the

day camp and later a medical certificate prepared by a

doctor. They subsequently submitted these to the school

135

with a check for either $15 or $20. On May 16, 1969,

Mr. and Mrs. Gonzales received the medical certificate and

check in the mail with a form letter from Fairfax-Brewster

(Pitf's Ex. 2) stating that the school was “unable to

accommodate the application.” No reason was given. Up-

_ on receipt of the letter Mr. Gonzales called the school,

spoke to a person who identified himself as Captain

Reiss,’ and, in response to his inquiry as to why his son’s

application was rejected, was told “we are not integrated.”

Both Robert S. Reiss and Stuart Reiss denied any such

conversation. They then stated that Colin, whom they

believed was primarily interested in entering the first grade,

was rejected, not on the basis of his race, but because his

application lacked supporting data as to his previous school-

ing. Moreover, knowing that Colin had previously attended

Crossroads Day Nursery, they claimed he would not qualify

for the first grade. Consequently, since eligibility for the

day camp was contingent on one’s being qualified for

the first grade, they felt it would be unfair to allow Colin

to enter the day camp and then have to be withdrawn be-

fore the commencement of the academic year. In conclu-

sion, the three Reisses all denied that it was the school

or day camp’s policy to exclude an applicant because of

his race. The Court rejects this testimony as unbelievable

and finds that the reason for the rejection was because

Colin was black.

Subsequent to his son’s rejection by Fairfax-Brewster,

Mr. Gonzales telephoned Bobbe’s School where, in answer

to an inquiry as to whether it was integrated, he was told

lCapt. Stuart A. Reiss is the Chairman of the Board while his

son, Robert S. Reiss, is the Administrative Director, and his

daughter-in-law, Olga M. Reiss, the registrar.

136

that only members of the Caucasian race were accepted.

He filed no formal application with Bobbe’s School.

Application was ultimately made for Colin at Congres-

sional School, a non-public school, where he was accepted

and did well.

In August, 1972, in response to an advertisement in

the “yellow pages” of the telephone directory, Mrs.

Sandra McCrary, who is black, called Bobbe’s Private

School to enroll her 2 year old son, Michael, in nursery

school. After first inquiring as to the price, policies,

meals, transportation and facilities for “toilet training,”

she asked if the school was integrated. Upon received a

negative reply, she asked if the school accepted black

children. The answer to this cuestion was also “no.”

She filed no formal application with Bobbe’s.

Bobbe’s denied receiving telephone calls from either Mr.

Gonzales or Mrs. McCrary; stated thai it was not the

policy of the school to exclude anyone because of race;

denied that the school has ever told anyone that the

school was not integrated; and stated that no one can be

considered without a personal interview with the applicant

and his parents or without a formal application being sub-

mitted with an accompanying medical certificate. Bobbe’s

introduced further testimony that no black child had ever

applied for enrollment.

The Court finds that the calis were made to Bobbe’s

and that both Colin Gonzales and Michael McCrary were

denied admission because they were black. It is of no

moment that no formal application was filed. It would

be ridiculous to require this of the plaintiffs after they

had effectively been told it was useless.

137

The policy of the schools with regard to exclusion of

blacks was corroborated by Mrs. Bryant and Mr. Brooks.

The former testified that in 1972 she telephone Fairfax-

Brewster and Bobbe’s School to inquire about their admis-

sions policies. She testified that both schools told her

they were not integrated and would not accept blacks.

Mr. Brooks, a deputy Equal Employment Opportunity

Commission officer with the Navy and Mrs. McCrary’s

supervisor, testified that after he became aware of the

McCrary’s allegations as raised in this suit against Bobbe’s

he decided to call for himself. He stated that during his

telephone conversation of May 31, 1973, with a Mr.

Gates at Bobbe’s, he asked whether the school was ac-

credited and if it was integrated. Upon receiving a nega-

tive response to the latter question Brooks further asked

if blacks were admitted. Again he was told “no.”

Colin Gonzales has filed an action against Fairfax-

Brewster. Mr. and Mrs. McCrary, Michael McCrary, and

Colin Gonzales have filed an action against Bobbe’s. The

sole basis for the actions is 42 U.S.C. § 1981.2. The

Southern Independent School Association intervened as

a party-defendant in the action against Bobbe’s, asserting

that it represents “‘non-profit, private white schools in

seven states and the class of all similarly situated schools

and their associated students and parents.”

The intervenor takes a different tack from that of the

principal defendants. It concedes that race is a factor

in its policies of exclusiveness, but says that 42 U.S.C.

Originally 42 U.S.C. § 2000a was alleged as a basis for the

actions. This was withdrawn prior to trial.

138

§ 1981 cannot be used to compel admission of a black

child to a white school of the type it represents, and

prays an adjudication to that effect.

The actions were consolidated and tried on July 16

and 17, 1973.

No determination was made prior to trial that the

actions might be maintained as a class action, either as

asserted by the plaintiff or the intervenor; and the Court

does not feel it should be so maintained. Accordingly the

decision is only binding on the named plaintiffs, the name-

ed defendants, and those schools which actually comprise

the intervenor.

42 U.S.C. § 1981 reads as follows:

All persons within the jurisdiction of the

United States shall have the same right in every

State and Territory to make and enforce con-

tracts, to sue, be parties, give evidence, and to

the full and equal benefit of all laws and pro-

ceedings for the security of persons and property

as is enjoyed by white citizens, and shall be sub-

ject to like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and to no

other.

If reac Woerally the act covers these plaintiffs, who

have been denied their right to make a contract with

the defendants because they are not white. That it is

to be read literally is no longer open to question. In

considering 42 U.S.C. § 1982, the Supreme Court has

said that “.. . Congress meant exactly what it said.”

Jones v. Mayer Co., 392 U.S. 409, 422 (1968). Inter-

related as § 1981 and § 1982 are, there is no reason to

139

think Congress meant any less when it enacted § 1981.

Tillman y. Wheaton-Haven Recreation Ass'n, 41 U.S.L.W.

4311 (February 27, 1973). The purpose of both is to

prohibit all racial discrimination against non-whites,?

whether that infringement be “by ‘State or local law,”

or “by ‘custom, or prejudice.” * Jones v. Mayer Co.,

supra, at 423. In other words, no state action is neces-

sary to invoke § 1981.

Although both schools claim to have strictly established

criteria for enrollment, the end result of their admission

policies as applied to both Colin and Michael evidences

no “plan or purpose of exclusiveness” for selection of

students “other than race."’ (Emphasis added.) Sullivan

v. Little Hunting Park, 396 U.S. 229, 236 (1969). This

disposes of the argument that these were “truly private”

schools since the opportunity to attend these schools was

open to every white child. Tillman, at 4313 and 4314.

It is difficult to accept the defendants’ argument that the

plaintiffs may not have been qualified to meet their schools’

high standards. This answer is certainly unavailing with re-

gard to the day camp or nursery and is suspect insofar as the

first grade is concerned since Colin Gonzales, because of his

+The analogy to all black academies, all Chinese schools, and

all rabbinical schools is inapposite. These institutions don’t fall

within the proscription of § 1981. Whatever else may be said of

their policies, those institutions are free to discriminate against

whites, or against other non-whites if whites are similarly discrim-

inated against, without running afoul of § 1981.

140

race, was never given the opportunity to demonstrate that

he was qualified.‘

Intervenor proffered testimony which would establish:

1. That intervenor parents act rationally in holding a

belief that segregation is desirable in education in light of

' the performance record of these schools and current scien-

tific theory; and

2. That the intervenor schools are academically success-

ful beyond the national public school average and have

low disciplinary problems, both of which are causally re-

lated to segregated policies.

The Court finds this testimony to be irrelevant to the

issue in these actions, feeling that such testimony, as a

defense to outlawed policies of segregation, embodies a

concept rejected in Brown vy. Board of Education, supra.

Intervenor has seized on certain dicta of the Supreme

“ourt in Norwood v. Harrison, 41 U.S.L.W. 5094 (June

25, 1973), which states that “private bias” is not proscribed

by the Constitution and that “private discrimination may

be characterized as a form of exercising freedom of assoc-

iation protected by the First Amendment. * Con-

forting as these words may be to the defendants out of

“The defendant Fairfax-Brewster points to page 2 of its hand-

book (Def’s Ex. 2) to indicate that Colin Gonzales should have

submitted a report card and other pertinent records from his pre-

vious school, the omission of which was a ground for his rejection.

The same page of the handbook provides for Entrance Examination

if previous scholastic records are inadequate. Colin was denied the

opportunity to take this examination since he was never told that

his scholastic record inadequacy was the reason for his rejection.

14]

context, it must be pointed out that § 1981 was not there

involved; that Jones v. Mayer Co. was cited to the contrary

as an example of private discrimination made unlawful by

Congress; and that the opinion specifically points out that

“(t] his case does not raise any question as to the right

of citizens to maintain private schools with admission lim-

ited to students of particular national origins, race or

religion. . . .” Norwood vy. Harrison, at 5095. More-

over, although perhaps not legally significant, as a practical

consideration, it is inconceivable that the opinion in the

case would have attained the indicated degree of unanim-

ity if it stood for the proposition urged by the inter-

venor. Accordingly the Court feels Norwood is not au-

thority for that proposition.

While no relief is sought under 42 U.S.C. & 2000a et

seq., it seems appropriate to point out that, in the Court’s

view, this act is not a limitation on § 1981, and conse-

quently the exemption of 42 U.S.C. & 2000a(e) for pri-

vate establishments does not apply in this case. More-

over, as indicated before, Sullivan v. Little Hunting Park

has abolished traditional notions of what is “private” in-

sofar as these types of actions are concerned.

Plaintiffs are accordingly entitled to the relief request-

ed, namely:

A. An adjudication that the policies with respect to

the admission of students to defendants’ day camp and

school, of discriminating on the basis of race or color,

are a violation of 42 U.S.C. § 1981.

B. A permaneni injunction against the defendants and

intervenor, their agents and those acting in concert with

them, prohibiting them from following the policies

described in Paragraph A.

142 143

C. An award of compensatory’ damages for the em- Plaintiffs’ Exhibit No. 1

barrassment, humilation and mental anguish which the

Court finds to have been suffered by the plaintiffs as BOBBE’S PRIVATE SCHOOL

follows: 820 SOUTH CARLYN SPRING ROAD

1. In favor of Colin Gonzales: ARLINGTON, VIRGINIA 22204

(a) Against Fairfax-Brewster 671-6545

School $2,000 I GIVE To

(b) Against Bobbe’s School 500 ° WILLIAM C. GATES OR KATHERYNE B?’

OR RUSSELL L. RUNYON PERMISSION

TO TAKE MY CHILD

TO THE CHILD’S PHYSICIAN OR ANY

HOSPITAL FOR EMERGENCY TREATMENT

IN THE EVENT OF MY ABSENCE

2. In favor of Michael McCrary

against Bobbe’s School 1,000

3. In favor of Sandra McCrary

and Curtis L. McCrary against

Bobbe’s School 2,000

PARE

D. An award of attorney’s fees as follows: NT’S SIGNATURE

1. Against Fairfax-Brewster

School $1,000

2. Against Bobbe’s School 1,000

E. Their costs.

And it is so ordered.

/s/ A. V. BRYAN, JR.

United States District Judge

Alexandria, Virginia

July 27th, 1973

Punitive damages are not awarded. While the defendants’ acts have

here been declared improper, insofar as the Court can determine similar

acts have not heretofore been so declared. Accordingly the defendants

cannot be said to have acted recklessly or willfully in disregard of clear

existing law.

144

Plaintiffs’ Exhibit No. 3

BOBBE'’S

PRIVATE

SCHOOL

820 SOUTH CARLYN SPRING ROAD

ARLINGTON, VIRGINIA 22204

671-6545

Mrs. KATHERINE B. Runyon, Director

Founded 1958

MODERN BRICK FIRE-PROOF BUILDING

OPEN YEAR ‘ROUND

ALL DAY — HALF DAY PROGRAMS

INDIVIDUAL — AGE NURSERY GROUPS

SUMMER CAMP PROGRAM

COMPLETELY AIR CONDITIONED

LICENSED BY

FAIRFAX COUNTY and STATE

TRANSPORTATION OFFERED

»*

145

BOBBE’S PHILOSC AY

Bobbe’s School is more than supervised play.

It provides the guidunce for young children’s need

for the maximum development of their abilities

and to make this for every child a good year of

living and learning.

ENROLLMENT PROCEDURES

REGISTRATION:

Before an enrol!nient can be accepted. a per-

sonal interview between the administrative oftice,

the parents and the child is necessary. Registra-

tion fee must be paid before application can be

processed.

PHYSICAL EXAMINTION:

A physical examination form, signed by the

child’s physician, must be submitted to the office

by the child's first day of school.

BOOKS:

Grade school children purchase or rent their

own textbooks and workbooks. At the time of

registration, the person conducting the interview

will let you know whcther the books will be for

sale or rent.

PROGRAMS OFFERED

NURSERY PROGRAMS — Ages 2 and 3

@ All-day program and day care.

PREP-KINDERGARTEN — Age 4

@ % day cducational program.

@ All-day school includes educational program.

KINDERGARTEN — Age 5

@ % day cducational program.

@ All-day school includes educational program.

146

FIRST GRADE «GE LIMITS:

In general. students will be accepted in first

grade if

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