334 F2d 239 Blakeney v. Fairfax County School Board

334 F.2d 239

Glenda BLAKENEY, infant, by Evelyn Blakeney, her mother and next friend, Queen Esther Cox, infant, by Mildred Cox, her mother and next friend, Calvin Charles Jackson, by Ada Jackson, his mother and next friend, Roland Wilson Smith, Jr., and Derrick Norman Smith, infants, by Roland W. Smith, their father and next friend, Evelyn Blakeney, Mildred Cox, Ada Jackson, and Roland W. Smith, Appellants,
v.
FAIRFAX COUNTY SCHOOL BOARD et al., Appellees.

No. 9418.

United States Court of Appeals Fourth Circuit.

Argued June 22, 1964.

Decided June 23, 1964.

Allison W. Brown, Jr., Washington, D. C. (James M. Nabrit, III, New York City, S. W. Tucker, Richmond, Va., and Otto L. Tucker, Alexandria, Va., on brief), for appellants.

John S. Stump, Alexandria, Va., and James Keith, Fairfax, Va., for appellees.

Before SOBELOFF, Chief Judge, and HAYNSWORTH and J. SPENCER BELL, Circuit Judges.

PER CURIAM:

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1

Upon consideration of the briefs and arguments of counsel and the history of litigation involving the School Board of Fairfax County, we are of the view that the injunction to prohibit a system of segregated schools, prayed for by the five appellants, should have been granted.

2

Counsel for appellants tendered for the first time in this court a motion for intervention on behalf of 49 additional pupils. Not doubting our authority in appropriate circumstances to grant such a motion under the All Writs Statute, 28 U.S.C.A. § 1651, and Rule 62(g) of the Federal Rules of Civil Procedure, we decline to grant the motion on this appeal. In the circumstances there is no necessity for us to entertain the motion. We are satisfied that if the plaintiffs will at once file their motion in the District Court, the court will grant the same and will cooperate with the parties by holding a hearing within 15 days thereafter, and decide the case within 10 days after the hearing. In such hearing the court will have available and may consider the record in the District Court case of Lawrence Edward Blackwell, et al. v. Fairfax County School Board, et al., Civil No. 1967, E.D.Va., September 22, 1960.

3

If the District Court finds that the facts support the intervenors' allegations, it will grant relief to such intervenors as have been discriminated against. The matter can thus be determined with finality in time for the opening of the school term in September.

4

Vacated and remanded.