Brown v Board of Education of Topeka Arguments

    In The
SUPREME COURT OF THE UNITED STATES

October Term 195^

OLIVER BROWN, MRS« RICKARD LAWTON, et a l . ,
P etitioners, 

vs 6
BOARD OP EDUCATION, TOPEKA, KANSAS, et a l . ,

Respondents.

FRANCIS B. Q5BHART, et a le ,
Petitioners,

vs.
ETHEL LOUISE BELTON, et a l . ,

Respondents,

SPOTTSWOOD THOMAS BOLLING, et a l . ,
Petitioners,

vs -
Ct MELVIN SHARPE, et a l* ,

Respondents.

HARR/ BRIGGS, OR., et a l» ,
Petitioners,

vs.
Rr W„ ELLIOTT, et a l . ,

Respondents.

DOROTHY E. DilDIS, et a l.'.
Petit toners,

vs *
COUNT* SCHOOL BOARD OP PRINCE EDWARD 

'COUNTY, VIRGINIA, et a l . ,
. • ' - .  .

W A R D  & PAUL
1760 PENNSYLVANIA AVE., N. W. 

WASHINGTON, D. C.

NATIONAL
8-4266
8-4267
8-4268
8-4269

Washington, D. C.

Ac:,'., 13, 19i:



£ . &  22 X  £  B  X  2

£A£E

ARGUMENT ON 3HHAD? OF THE STATE OF NORTH CAROLINA

By Mr. .1 Beverly lake 256

ARGUMENT ON BEHALF OF THE STATE OF ARKANSAS

By Mr. Thoms J. Gentry 2S2

ARGUMENT ON BEHALF OF THE STATE OF OKLAHOMA

By Mr, MacQ, Williamson 316

ARGUMENT ON BEHALF OF THE STATE OF MARYLAND

By Attorney General C. Ferdinand Sybert 330

ARGUMENT ON BEHALF OF THE STATE OF TEXAS 
AS THE FRIEND OF THE COURT

By Attorney General John Ben Sheppard 348

ARGUMENT ON BEHALF OF TEH STATE OF TEXAS 
AS THE FRIEND OF THE COURT

By Mr. Burnell Waldrep 3o2

ARGUMENT ON BEHALF OF THE GOVERNMENT OP THE UNITED STATES 
AS THE FRIEND OF THE COURT

By Simon E. Sobeloff 374



antor
im 1 253

IN THE SUPREME COURT CF TEE UNITED STATES

OCTOBER TERM̂  1954

OLIVER BROWN, MRS. RICHARD LAWTON. BT AL

v s .

BOARD OF EDUCATION, TOPEKA,, KANSAS, ET AL

FRANCIS B. GSEEART, ET AL

vs.

ETHEL LOUISE BELTON, ET AL

SPOTTSWOOD THOMAS BOLLING, ET AL

vs.

C. MELVIN SHARPE, ET AL

HARRY BRIGGS, JR, ■ ET AL

vs.

R. W. ELLIOTT, ET AL

DOROTHY 3, DAVIS, ET AL

vs.

COUNTY SCHOOL BOARD OF PRINCE EDWARD 
COUNT™, VIRGINIA, ET AL

Case No. 1

Case No. 5

Case No. 4

Case No. 2

Case No. 3

Washington, Da C,

April 13, 1955



254

I'as above-entitled matter came on rcr furthex1 oral 

argument at 12 noon.

PRESENT:

The Chief Justice, Earl Warren and Associate 

Justices Black, Reed., Frankfurter, Douglas, Burton,

Clark, Minton and Harlan.

APPEARANCES:

On behalf o f tho Board o f Education o f Topeka,

Kansas:

Harold R. Fatzer, Attorney General o f Kansas.

On behalf o f Oliver Brown, et a l:

Robert L„ Carter.

On behalf o f Francis B Gabbard, ©t a l:

Joseph Donald Craven, Attorney General of Delaware. 

On behalf o f Ethel Louise Belton, et a l :

Louis L. Reading.

On behalf o f  Spotfcswood Thomas B olling, et al ; 

George E. C„ Hayes and James M. Nabrit, Jr.

On behalf o f G. Melvin Sharpe, et a l:

Milton D. Korinan„

On behalf o f  Harry Briggs, et a l:

Thurgood Marshall and Spottswood W. Robinson, I I I .  

On behalf o f  R. W. E llio t t , at a l:

Robert MoC. F igg, J r ., and S„ H. Rogers.



2 55

APPEARANCES (Continued}:

On behalf of Dorothy E, Davis, et als

Thurgood Marshall and Spottswood W. Robinson, I I I .

On behalf o f County School Board of Prince Edward 

County, V irginia, et als

Archibald G. Robertson, aiii Lindsay Almond, dr», 

Attorney General o f Virginia.

Amicus Curiae t

I .  Beverly Lake, North Carolina.

Mac Q. Williamson, Oklahoma.

Tom Gentry, Arkansas 

Richard W. Ervin, Florida.

Edward D. E. R ollins, Maryland.

John Bean Sheppard, Texas.

Ralph E. Odum, Alabama.



2 56

£ R  f i f i i s s i a a s

The Chief Justice: Mr, Lake, you may proceed,

ARGUMENT ON BEHALF OF THE STATE OF NORTH CAROLINA 

AS TEE FRIEND OF THE COURT — Resumed 

3y Mr. I .  Beverly Lake

Mr. Lake: Kay it  please the Court, immediately a fter

the decision o f last May, the late Governor Umstead appointed 

a special committee o f  nineteen distinguished men and women

from a l l  walks o f l i f e  and a l l  parts o f North Carolina and
/

directed them to study the problems which that decision 

placed before the people o f North Carolina, and report baoic 

to him with their recommendation.

On that committee o f nineteen was three Negroes.

Two o f those Negroes were and are presidents o f great colleges 

owned and operated by the State o f North Carolina for  the 

education of young Negro men and women.

There are three other such colleges owned and 

operated by our State, and in those two alone there are today 

4,000 students enrolled.

That committee mad© its  report to the Governor 

a fter  our b rie f was f ile d  to this Court. I t  was a unanimous 

report. The committee said:

"The mining o f the raoe3 forthwith in the 

public schools throughout the State cannot be 

accomplished and should not bo attempted.”



When the Legislature convened in. January fo r  its  

1955 session, His ISxoellonoy, Crovernor Hsdgos, transmit ted that 

report to tho Legislature with his niiq.ualir.ied endorsement

and approval.
\

Last week the Legislature, without a dissenting vote, 

neither the House o f Representatives nor the Senate, adopted 

a resolution approving that report, approving the b rie f which 

we have file d  with this Court. Since that resolution is a 

statement, an authoritative statement o f the position  of 

North Carolina on this matter and was not available when our 

brief was f i le d , Mr. Chief Justice, I request permission to 

f i l e  a copy with the Cleric for the Court5s information.

The Chief Justice: You may have t.

Justice Frankfurter: W ill you f i l e  a copy for

each member o f the Court?

Mr. Lake: We w ill  f i l e  as many copies as you like ,

Justice Reed: Does that resolution embody the

report you Lave made?

Mr. Lake: It does not, s ir .  There are some

quotations but I have the report also and w ill be glad to f i l e  

that, too.

There is nothing, we think , in the decision o f last 

May which requires a decree that Negro children be admitted 

forthwith to the schools o f their choice within the lim it o f

their normal geographic school d is tr ict . On the contrary, such



a decree wouia go far beyond that decision and would* in our 

opinion, we respectfully submit, go beyond the authority o f 

this or any other Federal Court.

This Court has now held that for a State to separate 

children in public schools so le ly  on the basis of race 

roaches an unconstitutional resu lt. So long as that decision 

remains unmodified, a State may no longer travel that road 

toward its  goal o f educated citizenry.

And under existing acts o f Congress, it  would cer~ 

taiu ly  be within the authority o f the Federal Court to enjoin 

a state o f f i c ia l  from attempting to travel that road again.

But that is a far ory from a decree requiring that Negro 

children be admitted forthwith to the schools o f their choice.

The Federal Constitution does not confer upon the 

Federal Government, as a whole, authority to impose upon 

state o f f ic ia ls  affirm ative duties in the administration, o f 

the S ta ted  schools, and it  certainly does not give that 

power to the Federal Courts. Of course, Congress is  authorized 

by the 14tli Amendment to enact leg is la tion  to enforce the 

right3 guaranteed by that amendment. But we submit that 

Congress has no authority to assign children to this or that 

building owned and operated by the State.

I t  must be remembered that in North Carolina this is 

not simply a matter o f allowing Negro children to go where they 

wish. Such s decree would be tantamount to allowing a Negro



259

child to push a  whit© child  cut o f his d © 3 k  so that the Negro 

child may s it  in i t ,  fo r  there ar© in none o f our schools in 

North Carolina any substantial number o f empty desks.

Therefore, i f  such a decree should fee issued end 

next f a l l  a substantial number o f Negro children were to 

apply fo r  admission to and be received in  what is  now a whit© 

school, i t  would necessarily follow  that an equal number o f 

white children could not attend that school even i f  they 

■//anted to do so.

So a decree such as is  contemplated by this Court*s 

Question 4(a) would amount to talcing the assignment o f children 

to the public schools in North Caroline out o f  the hands o f 

the school board and placing it  in the hands o f Negro children. 

And we respectfu lly  submit that that would be as unconstitu­

tional as it  would be impractical.

-Justice Frankfurter: Is x̂ /hat you have just said ju3t

a way o f saying that i t  takes time to make the necessary 

accommodations to carry out that which has been declared 

uncons t i t  ut iona1?

Mr. ke: 1 think it  w ill  take a great deal o f

time, Mr. Justice Frankfurter.

Justice Frankfurter. I am not asking how much. But 

does i t  mean any more than that adjustments must be mad© to 

prevent the continuance eventually of that which has been

declared tc fce unconstitutional?



260

Mr. Lake; I think what I have said gees beyond that, 

but I think that that is also true. What I have said , s ir ,

I think is more fundamental than that, because here I am 

speaking o f the authority o f the Federal Government to impose 

the duties upon the State o f f i c ia ls ,  affirm ative duties.

Justioe Frankfurter; What adjustment do you make 

in your analysis between what you have just 3 a i d  and what this 

Court has done in a number o f oases requiring institutions to 

admit Negro students to law schools and medical schools? The 

University o f  North Carolina has admitted both, ha3 i t  not?

Mr. lake: The University o f North Carolina has

admitted Negroes to its  law ©ehool and to its  medical schools, 

yes* s ir .

Justice Frankfurter: Apart from a decree o f this

Court?

Mr. Lake: Apart from the decree o f  this Court.

There was a decree o f the Circuit Court requiring that to be 

done.

Justice Frankfurter: Is such a decree beyond the

authority o f the Court?

Mr, lake: I am not fam iliar with the exact terras

of those decrees.

Justice Frankfurter: Sweatt v. Painter.

Mr. lake; I think, s i r ,  in Sweatt v. Painter, i f

I am not mistaken, the Court ordered those Negroes admitted to



2 6 1

the schools o f tho University o f Tesas because the Stater did 

not afford them an equal opportunity fo r  a legal education 

in another institu tion .

Justice Frankfurter: Whatever tho reason, the

direction  o f  the Court, tha affirm ative direction , to admit 

a certain studant in a certain institu tion , surely that isn 't  

boyond the powers o f a court, because o f any doctrine o f 

inherent lim itation or separation o f powers or what not.

Mr. Lake: Well, s ir ,  it  is our ~-

Justice Frankfurter: I don’ t got the force o f your

argument that there is  soma suggestion that there is  a lim ita­

tion  o f the powers o f th© Court to direct an institu tion  or 

anybody els© to do something i f  there is  a legal duty to do so.

Mr. Lake: No, s ir ,  1 agree with that, i f  there is a

legal duty to  do i t .  But our position , s i r ,  is that the 

states are free to comply with the decision o f this Court 

in several different ways, and the Question 4(a) —

Justice Frankfurter: A ll the different ways,

excluding on© way, namely, making a d istinction  on the basis 

o f co lor .

Mr. Lake: Oh, yes, s ir ,  that would not be complying

with the Court’ s decision. I say the State is free to select 

its  course among the alternative routes 'which remain, and the 

Court in Question 4 (a ), as I understand i t ,  does not state

that choice . It  says you must, 5? such a decree would se



262

issued, i t  says you must; allow the Negro child to go to the 

school of his ohoicev

Justice Frankfurters Where does 4(a) say that?

Mr. lako; Question 4{a L s ir .

Justice Frankfurter: In the f ir s t  place, these

ar© questions, not answers.,

Mr. Lake: Oh, yes, yes. I am speaking now to the

question that the Court asked us to direct ourselves to . 

Question 4(a) says:

"Would a deoree necessarily follow  provid­

ing that within the lim its set by normal geographic 

school d istrictin g  Negro children should forthwith 

be admitted to schools o f their choice?”

Now, as I understand i t ,  counsel fo r  the petitioners 

yesterday said that they would concede, that they 'would agree 

with the position  which I now take, that this Court has never 

said that a State must operate a public school system.

I t  has never said that I f  a State does operate a 

public school system, i t  cannot separate ohildren on the basis 

of* age, sex, educational attainment, health or any other 

ciroumsrtance having a reasonable relation  to education and 

the general welfare.

The Court has closed the road, as I understand i t ,  

o t  a public school system in which children are separated

so le ly  on the basis o f  rnoo. And certainly this Court can



2o3

issue a decree forbidding a State from attempting to travel 

that road again.

But within those alternatives wMoh remain we submit, 

s i r ,  that a State has the right to choose its  alternative.

For example, in the matter of ju d icia l procedure, 

when a State adopts a court procedure which leads tc an 

unconstitutional resu lt, this Court w ill  throw out that result 

and require the State to adopt a different procedure. But this 

Court does not undertake to t e l l  the State what other 

procedure it  must adopt.

It  said in Honeytnan v. Hannan, 302 U. S. 375* that: 

” The Federal Constitution does not under­

take to control the power o f a State to determine 

by what process legal rights may be asserted.”

And we submit that neither dees the Federal 

Constitution undertake to control the power o f a State to 

prescribe by what process and by what cr iteria  children are to 

be assigned to this or that public school o f the State except 

the State may not use the cr iteria  o f race alone.

Justice Frankfurter: You mean, fo r  instance, i f

North Carolina would choose to abolish the public school 

system in her universities and high schools and follow  on t>ie 

suggestions o f some — to me,cannot properly characterise — 

people who think in those terms whereby a l l  education is to 

be given through a central broadcasting system and every



parent in the State is given a broadcasting set or TV set and 

a l l  education is to be done from the central headquarters 

into the homes fo r  the educating o f the children? you think i f  

the State wants to do that, it  could do that. Is that what 

you mean?

Mr. Lake: I do think that the State would certainly

be free to do two o f those things. It could abolish the 

public school system.

Justice Frankfurter: It could bring up its  children

in ignorance i f  i t  wanted to .

Mr, Lake: It could do that a lso . The State

could abolish the public school system. It could set up such 

a TV system, hut I do not think i t  could require the people 

to allow their children to listen  to that alone.

I donH think that it  could say that that shall be 

the only educational system available for  the people in our 

State, no, s ir .  But with that qualification  I think that a 

State might do so. I am not suggesting that North Carolina 

contemplates that method.

Justice Frankfurter* You mean that i t  eou ldut 

abolish private and parochial schools?

Mr. lakes Oh, no; no, s ir .  Nov;, the decision o f 

last May - -

Justice Franlcfurther: You would agree under your

argument, as you say, that while the Court can merely say

264



2 6 $

this is had, and day a fter day or terns a fter tsrra or whatever 

the period nay be, did say this is  bad, this is bad, and this 

is  tad, every time i t  comes up it  could, do that, you say,

Mr. Lake: Oh, yes, s ir .

Justice Frankfurter: It couldnH fin a lly  say that

there is such a pattern here that the only way to deal with this 

problem and to enforce these rights o f constitutional sanctions 

is that when you have a school system which is fo r  both white 

and colored people, you can 't leave colored people out, the 

Court can?t do that?

Mr. Lake: I would say, s ir ,  that in the silence o f

Congress, the Court could say that you cannot exclude a 

ch ild  from that school so le ly  on the basis o f race, but i f  a 

State were to say, nWe are going to send the g ir ls  to this 

school” —

Justice Frankfurter” That is a very different 

proposition.

Mr. Lake; Yes, s ir ,  but the Court*s Question 4 (a ), 

as I understand i t ,  does not leave room fo r  that. I t  says 

schools o f their choice, Now, that is the only point to which 

I direct that remark.

Now, we do not have hero fo r  discussion the p oss ib ility  

of an action at law against a state o f f i c ia l  to deny these 

petitioners rights which this Court has now said that they have

nor the imposition of criminal sanctions against such a staua



o ffic ia l*  Those are possible methods o f enforcing their 

rights.

I f  they do not apply and i f  they are deemed 

inadequate, Congress has authority under tho 14th Amendment to 

enact leg is la tion  which w ill provide an adequato remedy* so 

this Court’ s withholding from those petitioners the remedy 

which they now seek is not e n u llifica tion  o f their constitutional 

right, It  is  not a retreat from the decision of last Hay.

No counsel here has questioned the fact that this 

Court in the exercise of its  equity powers Yihich these 

petitioners have invoiced has tho authority to allow these 

defendants and others sim ilarly situated ample time to find 

and put into operation an adequate and constitutional substitute 

fo r  their present method o f assigning children to the public 

schools or an adequate and constitutional substitute fo r  their 

public school system as a whole.

In the New York-New Jersey case in 26‘3* this Court 

allowed the City o f New York four* years to  make proper 

position  o f its  garbage* and it  is our position^©  respectfu lly  

submit, that i f  the City o f New York is en titled  to four years 

to decide what to do with its  garbage, the people o f  these 

counties in Virginia and South Carolina are en titled  to a great 

deal o f time in deciding v/hat to do v/ith our most cherished 

treasure.

266

In our b r ie f, since no petitioner has questioned the



267

fact that 'Vais f le x ib i l i t y  o f remedy which ia characteristic of 

courts o f equity is applicable here., w© shall pass over any 

farther authorities on that sub ject, because I think there is 

no debate about that, that this Court does have th© power to 

grant ample time to make the adjustment in the exercise o f its  

equity powers.

But I would like to ca ll the Court*s attention simply 

to this quotation from a la tter o f Lord Hardwick quoted in 

Pomeroy as to the reason why courts of equity may adjust th©ir 

remedies to the circumstances o f cases. Lord Hardwick said:

I?No rule can be equally just; in the applica­

tion to a whole olass o f cases that are far from being 

the same in every circumstance

So in the exercise o f its equity powers this Court 

may certain ly mold its  decree to f i t  the conditions in the 

communities where those decrees are operating. But we respect" 

fu lly  submit that thia Court cannot know and cannot determine 

these conditions so well as can tho D istrict Courts which know 

t hos e 3o ramunlties.

The records now before this Court do not concern 

themselves with th© adequacy or inadequacy o f this or that 

remedy. They were compiled at hearings where the issue was 

the constitutional right o f these petitioners.

Here we are not concerned with that right. We are 

concerned only with the expediency or inexpediency, the



2 6a

adequacy or inadequacy o f this or that remedy, where, whether 

and i f  that right is vlo'lated.

Justioe Harlan: Could I ask you a question about

your committee?

Mr* Lake; Yes, a ir .

Justice Harlan: You said your committee had resolved

that immediate desegregation is impracticable.

Mr, Lake: Yes, s i r .

Justice Harlan: Is the committee now functus

o f f i c io  or is North Carolina going ahead to try to apply the 

Courtis opinion? In other words, are you going to wait until 

a su it has been brought and North Carolina is  under the impact 

o f ju d icia l process, or is i t  your contemplation that you w ill  

go ahead and try to work i t  out?

Mr. Lake: That committee has ceased to function, 

but this resolution which I am going to f i l e  with the Court 

provided for  the creation o f a permanent committee to continue 

the study o f the problems d irectly  and ind irectly  arising out 

o f this decision.

Now, s ir ,  as to the other aspect o f your question,

I cannot say what North Carolina w ill do because we have had 

no pronouncement from the Legislature as to what w ill be done 

in the future.

I would like to ca ll  to the Court's attention this

d if f ic u lty  which a l l  o f the Southern States now have before them.



Under the Question 4(a) we have the p oss ib ility  that there may 

oome from this Court a decree — we do not think such a decree 

w ill be issued, but there may come from this Court such a decree 

as to require forthwith admission o f Negro children to th© 

schools o f their choice.

Kbw, under those circumstances, and i f  I may go back 

just a minute when that decision came cut i t  was the expectation 

that we would be here last November fo r  the argument. It was 

thon postponed from day to day.

So for  nearly a year the defendants and others 

sim ilarly situated have boon in the position  that they did not 

know when a decree might come down requiring a certain action.

Now i f  I may by some analogy say th is . A man who 

knows that there is a p oss ib ility  that he may be exeouted in 

twenty-four hours is not in a good position  to consider plans 

fo r  remodeling his home. So I do not think that the facts 

that North Carolina has not oome up with an a as we r to this 

problem should be regarded as an answer to our suggestions that 

we must have time.

We have not yet had that time. Now, I want to be 

completely frank, Nr. Justice Harlan. I do not know, o f course;, 

what the future w ill bring. But so far as I know now, 2 would 

say that the ehencs o f  North Carolina in the near future w ill

mingle white and Negro children in her public schools throughout

State is exceedingly remote. That is tho reason that I have



270

th© gravost fear that such a deoree would result in the 

abolition  o f cur public school system.

Justice Frankfurter#5 May I ask ycu whether I am right 

in assuming that North Carolina, the school system o f North 

Carolina is not centrally administered?

Mr. Lake: North Carolina, s i r ,  has a State 2fcard

o f Education, and o f course that State Board o f  Education has 

general supervision o f a l l  the schools.

Justice Frankfurter: Meaning by that there are

leg is la tiv e ly  laid down certain standards fo r  educational 

administration?

Mr. Lake: Yes, s ir ,  we have a general school law.

Justice Frankfurter: But the financing, the appropria­

tion , is that state-wide?

Mr. lake: The school system is  a state-wide school

system in that respect. North Carolina operates its  schools 

with state funds.

Justice Frankfurter: Exclusively?

Mr. lake: No. I believe the ratio is  about £5 percent

State and 35 percent loca l.

Justice Frankfurter: That leads me to my next

question.

Mr, Lake: Yes?

Justice Frankfurter: Is there variety among the

different counties. are there disparities and variations in the



271

f a c i l i t i e s ,  educational standards, et cetera, at cetera, et

cetera?

Mr. Lake: Well, o f course, s i r ,  there are varieties

in the size o f the school buildings and so forth and so on.

Our school buildings, i f  I may try to explain our system, It 

is  th is. Our school buildings are the county responsib ility .

The county owns a ll buildings and supplies the school buildings.

Justice Frankfurter. Do they have to act according 

to the requirements o f the State Board? In other words, the 

size  o f the schoolrooms, the number o f pupils in a schoolroom, 

et cetera, et cetera, are important factors in  the quality o f 

education.

Mr. lake: Yes, s ir .

Justice Frankfurter: Who determines that?

Mr. Lake: X believe, s i r ,  the County Beard o f

Education. I am not positive o f that, but 1 know of no power 

in the State Board to control i t .

Justice Frankfurter: So you nay have varying

conditions in the different counties?

Mr. Lake: We do.

Justice Frankfurter: I notice the gamut o f white

and Negro children from the different counties runs from 1.5 to 

62,57, from one point o f a percent to roughly 64 percent.

Mr. lake: Yes, s ir .



Cantor 
o 1  ( 4 )  
f l s .  im

,K

Justice Frankfurter! Is that reflected  In d i f fe r ­

ences o f educational enjoyments, would you say? Does that 

mean that d ifferent accommodations would have to  bo made in 

d ifferen t counties ?

Mr. Lake: I f  I understand you., s ir , yes, I  think

clearly  that i t  would, We have a very complex system In North 

Carolina* s ir . It grew up over th is hundred years* you see.

Now* we began, o f course* with loca l schools —■* loca l 

school d is tr ic t s . As the years have gone by* we have drawn 

certain powers from-those loca l bodies to  the state.

For example* ce rtifica t ion  o f teachers is  a matter o f 

state authority. The selection  o f the curriculum, Justice 

Frankfurter, is  entirely  state,

Now, every child in North Carolina except insofar as 

loca l tax supplement to  provide additional benefit fo r  every 

ch ild  in their d istrict*  white and Negro a like , every ch ild  in 

North Carolina, regardless o f  race, residence, economic or social 

status, studies the same subjects, he goes to  school the same 

number o f  days as the other children. That has been true fo r  

more than ton years, the length o f the school term.

Justice Frankfurter! Is school attendance equally

enforced?

Mr, Lake: Yes, s ir ; yes* s ir . There is  no d istinction

in that respect. He goes to  school the same number o f days, he

uses the same textbooks, and the state supplies the textbooks.

272



iso every child  in North Carolina, whit® or Negro, has th© books« 

The Negro children, I m y  say , have certain advantages, 

Every teacher in North Carolina, having the same training, the 

same experience, teaching the earn® subjects, receives the same 

pay* Because o f conditions outside the schools,that makes the 

teaching profession more attractive to  Negroes than to v&ite 

people»

Consequently there is  a tendency — of course, there 

are exceptions »« there is  a tendency fo r  the Negro teachers 

to  remain in the profession longer than the white teacherse

The result i s ,  since they get salary increments based 

upon experience, the average Negro teacher in North Carolina 

today receives more salary than the average white teacher, and 

that has been true fo r  a whole school generation, fo r  ten years* 

The same circumstance, I believe, accounts fo r  the 

fa ct that the average Negro teacher in North Carolina has had 

more years o f college and university than the average white 

teacher*

And we have at th is moment 288,000 Negro children 

sittin g  in the schoolrooms o f North Carolina 0 They are study­

ing the same subjects, using the same textbooks, going to  school 

the same number o f days, to teachers better paid, more exper­

ienced, with more time in college and universities than our 

white children have«

These Negro teachers should have a moment o f our son-



2?4

sideration here- I think, North Carolina employs more Negro 

teachers than any other state in the Union* and T am to ld  more 

than a l l  o f  the nonsegregated states combined. Hundreds o f our 

Negro teachers have been trained to colleges and universities 

in the Northern states* They have come to  us because there was 

no room fo r  them in the non segregated school system of the states 

where they were educated*

Now, we respectfu lly  submit that those Negro teachers 

should be given consideration in th is matter,

The comments o f the county and c ity  school superin­

tendents quoted in the appendix to our b r ie f shows that o f 165 

superintendents, only three believe that i t  would be possible 

to  \ise Negro teachers to mixed schools to  North Carolina, Now* 

i f  they are righ t, and as I said yesterday, those are the men 

who know more about th is  North Carolina public schools than 

any other people anywhere, i f  they are right, the jobs o f 8,500 

Negro teachers are hanging to the balance to North Carolina 

alone, awaiting the fin a l decree o f th is Court,

We have ca lled  to  the Court’ s attention to our b rie f 

certain major d ifferences between North Carolina and other states 

to th is respect, to th is matter,

Justice Reeds Kr, Lake, before you proceed, are you 

fam iliar with the parochial school system in North Carolina?

Mr, Lake: I  would say, s ir , we have a very lim ited

parochial school system to. North Carolina, i f  1 understand you,



2?5

1 aB&urae you mean the Catholio school system*

Justice Reed; Yes. sir*

Mr* Lakes We have very few Catholics in Worth 

Carolina* There are seise parochial schools0 I am not fam iliar 

with it*

Justice Reeds Do you know whether they have in te ­

grated the classes in their schools?

Mr* Lake; I do not know., generally, but I ara in ­

clined to think they have* 2 know that there has been some 

such attempt -•*- I won31 say attempt — they have dene so in  the 

schools in and near Raleigh* Whether that is  true a l l  over the 

state 2 just don't know* but I  suspect i t  has been true.

Justice Reeds Do you know hew that was done?

Mr* lake; By decree o f the Bishop* as 2 understand* 

and again I am. speaking —

Justice Reed; Did you discuss that question in. your

b r ie f ?

Mr* Lake; Wo* sir1*

That* Mr* Justice Reed* is* in our opinion — I won’ t  

say in our opinion i t  simply didn’ t occur to  me before* 

because, as 2 say* the parochial schools in North Carol;Lna are 

neglig ible in numbers*

Our state simply does not have many Catholic citizen s 

in i t .  And so we do not have many parochial schools* Most of

the Catholic children we have go* 2 believe* to the public

■V'



276

ao 5 schools., but there again., I  am speaking only on the basis o f

b e lie f .

Justice Reed; Do you have any other church schools?

Mr, Lake; Not many. Bie Baptist Church., and I 

believe i t  is  true o f  the Methodists »« I speak o f the Baptists 

because I happen to  know them — the Eaptirst Church formerly 

operated a number o f academies in North Carolina, Some o f 

these grew into what are now junior colleges,, Other were 

abandoned when the state school system became much more e f ­

fective*

Now, sir., i f  2 may go on to  those d ifferences, because 

my time is  running on. ike problem created by th is decision is  

not the same in c it ie s  as in  rural area©,,. In c it ie s , North 

and South « -  and, Mr, Chief Justice, 2 don 't know Baltimore 

and St. Louis * but I  believe that would be true o f Baltimore 

and St. Louis «~>in c it ie s . North and South, the problem, by 

virtue o f normal geographic school d is tr ict in g , obtains about 

the same proportion that i t  does in those states where a very 

small number o f Negroes are mixed with a large white population. 

But normal geographic school d istr ictin g  is  no help in the 

rural areas, North Carolina has the same differences when one 

part o f the state is  contrasted with another.

For example* Mitchell County in the western part o f 

the state* with 49 Negroes and 15*000 white people, has a fa r  

d ifferen t problem from that which confronts the people o f



277

Northampton County , in the eastern part o f the state * where 

there are 71 Negro school children fo r  every 29 white school 

children, or Anson County, where the population — in the 

central part o f the state — is  almost equally divided between 

white and Negro, where they are 50-50, approximately,

Justice Reeds Bo you have a law in North Carolina 

that forbids whites and blacks to go to  school together?
... , 1

Mr, hakes Yes, s ir .  That is  in our State Consti­

tution, It is  a lso in the statute,

I may say, s ir , that that has been true since 1863- 

The law was enacted by the same legislature about the time o f 

the Fourteenth Amendment,

-Justice Need: It  covers only the grade schools? .

Mr, Lake; It covers a l l  schools,:

Justice Heed; Your un iversities?

Mr, Lakes No, s ir . I did not mean the un iversities, 

I  had reference to high school and elementary. It  covers .a ll. 

Justice Heed; I t  is  worded to  cover only the 

elementary schools?

Mr, Lake,:- A ll public, schools, t  believe, Justice 

Reed, The University o f  North Carolina is  not mentioned in i t ,  

.But, o f  course, until the Negro was admitted to  the law school 

soma four or f iv e  years ago. i t  was entirely  possible.

Just rice Reed; My interest is  whether the law

covered the State Universities



27t

ao 7 Mr, Lakes It  does not; I am sure; I would have to 

look at the Charter.

Justice Leeds You have no permissive authority to 

school boards in counties such a a you speak o f , where there is  

a small percentage o f Negress, to  unify the school system?

Hr, lake t Well, I hardly know how to answer that, 

s ir , fo r  th is reason

Justice Leeds I am asking because in ray own state 

we have that permissive authority above high school,

Mr, Lake: Yes, s ir ,

Not sp e c ifica lly , but th is is  what we have had, and 

I o ffe r  th is to  refute the suggestion that the Southern states 

are doing nothing and would do nothing, with additional time*.

This legislature also passed a b i l l ,  and i t  is  now 

the law, that each county or c ity  administrative board is  the 

sole authority in the assignment o f children to  the schools o f 

that area. Now, because I drafted that b i l l ,  the leg islature, 

when i t  was in session, asked me did that mean that a county, 

i f  i t  saw f i t  to  do so, could admit Negro children to white 

schools, I  told  them that i t  certainly did mean that. The 

legislature passed that b il l*

Justice Reed: So now you do have a law which would

permit the integration o f schools where the loca l board wanted i t ?

Mb?. Lake: They also asked me th is  question, Mr*

Justice Reed:



279

'•Does tha decision o f last May Invalidate our 

constitutional provision?” .

And I told  them that in my opinion the decision o f 

last May did not technically invalidate cm' State Constitution 

because North Carolina was not a party to  those cases, but that 

in by opinion- as a lawyer, that precedent would make it  

obligatory upon a court to hold that those laws no longer had 

application,

I  believe I have just about fiv e  more minutes*

The Chief Ju stice ; You have a l i t t l e  more time than 

that* You have about ten minutes, I  believe,

Mr, lake: Thank you.

North Carolina d iffe rs  from Northern and border 

states in th is important circumstance, In North Carolina we 

have no large metropolitan areas, We have no large sub-racial 

groups* such as is  to  be found* I  believe., in a l l  large metro­

politan areas* Consequently, everybody in North Carolina* 

practica lly  everybody in North Carolina, i s  either Anglo-Saxon 

or Negro, As a result o f that, we have more consciousness o f 

race in North Carolina than is  to  be found in some o f  the 

border and Northern states.

That race consciousness is  not race prejudice, It 

is  not race hatred* It  is  not intolerance, It  is  a deeply 

ingrained awareness o f a birthright held in trust fo r  posterity*

have beei in every group, and are individuals.



280

ao 9 who, despising their b irthright, have 'been fa ith less  to that 

trust. So i t  has been and so i t  i s  in North Carolina„

But the majority o f North Carolinians have been taught 

from infancy, and they understand, how i t  came about that Israel 

became a great nation, while Edcra faded into oblivion , and they 

agree with the great D israeli, who said;

,!Md nan w ill treat with indifference the principle 

o f race, fo r  i t  is  the key to  h is to ry ,”

Ihe Negroes o f North Carolina know the difference 

between race pride and race hatred. Every day there is  in 

North Carolina a demonstration o f 'the truth that two races as 

fundamentally d ifferent as the Anglo-Saxon and the Negro, can 

liv e  side by side in freedom, security, peace, friendship, 

mutual helpfuineas*

I f  our State Department w ill  only use that demonstra­

tion  o f  democracy in action in North Carolina, i t  w ill be a 

more e ffe ctiv e  answer to communism at home and abrcad than would 

a decree o f  th is Court which proclaims equality but destroys the 

public schoolso

I  do not know what decree should fin a lly  be entered 

in Prince Edward County, in Clarendon County, because I don’ t  

know the conditions in those counties. But I  do know th is ;

I  know that i f  a decree should be entered by th is 

Court, or any other Court, requiring the immediate intermixing 

o f  white and Negro children in. the public schools o f North Carolina



281

these schools w ill be in the gravest danger o f abolition  *

And the friendliness and peace which now characterises 

the relations o f white and Negro North Carolinians would be 

supplanted by racia l tensions and bitterness and antipathies 

unparalleled in our state since those terr ib le  days which 

ca lled  forth  the original Ku Klux Klan,

I f  that statement be deemed ar exaggeration* I 

invite the Court’ s attention again to  the comments in our b r ie f 

by county and c ity  school superintendents, sh eriffs  and ch iefs 

o f p o lice , A public school system forced upon a community by

an outside power, which school system dees violence to the
\

earnestly held conviction o f that community* has always been 

and always w ill be a school system o f inadequate equipment, 

shoddy instruction, and irregular attendance*

The people o f North Carolina are convinced that a 

segregated school system is  a just school system, and the only 

practical school system fo r  their state.

That is  not an opinion which originated, on some 

tobacco road. That is  an opinion which is  ju s tifie d  by a 

century o f experience, which has demonstrated the wisdom o f 

th is agreement reached a hundred years ago by the carpetbaggers, 

the scallywags, the Negroes, and the handful o f Confederate 

veterans who comprised the legislature which adopted the 

Fourteenth Amendment in the name o f  North Carolina.

Mr* Chief Justice, the Attorney General o f berth



282

Carolina is  the attorney fo r  a l l  the people o f our states We 

have come here conscious o f the sacred duty which we owe to  the 

Negroes o f North Carolina as well as to  the white people, We 

have discharged that duty,

The people o f North Caroline want to go on educating 

those 238;000 Negro children and their ch ildren 's children, as 

well as the white people o f the state, and we respectfu lly  ask 

th is  Court not to make i t  impossible fo r  them to do so*

The Chief -Justice: Thank you, Mr, Lake* I know

the Court w ill thank you fo r  presenting your views*

Attorney General Thomas J, Gentry o f Arkansas*

ARGUMENT ON BEHALF OF THE STATE OF ARKANSAS,

AS THE FRIEND OF' THE COURT

By Hr, Thomas J, Gentry 

Mr, Gentry: Mr, Chief Justice,

The Chief Justice: Mr, Attorney General,

Mr, Gentry: May i t  please the Court, at the very

outset o f my oral argument; I  should like  to  repeat fo r  the 

purposes o f  emphasis what was said on page 3 o f our written 

amicus curiae b r ie f, f i le d  in behalf o f  the State o f  Arkansas 

in these cases*

We there stated that nothing contained in our b r ie f 

is  intended to bring into question the directness o f the May 

17th ruling o f th is Court or i t s  reasons fo r  reaching that

conclusion



As we now view these cases, i t  is  wholly immaterial 

whether the decision was right or wrong* advised or i l l  advised, 

or timely or untimely, It  is  now accepted as the law in 

Arkansas that in the f ie ld  o f public education the doctrine of 

separate but equal has no place* as was sp ecifica lly  held by 

th is Court in i t s  decision o f May 17th,

As a leader o f th is Court, I fe e l i t  is  appropriate 

fo r  me as the duly elected Attorney General o f Arkansas to  

preface my argument with an explanatory statement as to the 

reasons fo r  ray presence before th is  Court today, and the reasons 

which prompted m  to f i l e  a b rie f in these cases,

I  am not here in obedience to  any sp ecific  mandate 

or command from the General Assembly o f Arkansas or from any 

branch o f  the Executive Department o f my State,. I  am not here 

because o f any p o lit ic a l pressure, or pressure o f any economic 

group or any propaganda o f any kind,

But I  am here because I honestly and sincerely conceive 

i t  to  be my sworn duty to present to th is Court the views o f 

what I believe to  be a majority o f a l l  of the people o f Arkansas 

on the complex problem which a ffe cts  substantially a l l  the 

people o f Arkansas in th eir daily walks o f  l i fe *

Secondly, I  sum here because o f  what I  have construed 

to be tiie sincere and earnest invitation , i f  not actual 

so lic ita tio n , o f  th is Court extended to a l l  the Attorneys 

General of the so-ca lled  segregated states*



ao 13 284

Without Intending any adverse criticism  of the 

Attorneys General o f  several segregated states who have not seen 

f i t  to appear in these cases, yet i t  is  ray personal view that I 

would he dere lict in my obligation as a member o f the bar o f 

th is honorable Court to  completely ignore what 2 choose to con­

sider as an invitation  from th is Court, an invitation th is Court 

was under no obligation  or duty to  extend and one which, as I 

believe, is  very rarely extended«

May i t  please the Court, what is  the up-to-date 

situation upon th is matter in the State o f Arkansas? In our 

written b r ie f, on page 2, we set out fu lly  the policy  statement 

issued by the State Beard o f  Education, which was issued on 

June the l4th , 1554, which was about a month a fter  the decision 

o f May the 17th which was handed down by th is Court,

It  is  not necessary to repeat that statement at th is 

time. Suffice to say that up to the present time the statement 

o f June the l4th, 1554 by our State Board has not been reversed 

or modified in any respect.

It is  a lso pointed out on page 6 o f  our b r ie f that 

two Arkansas school d is tr ic ts  have already integrated tho white 

and Negro children in the public schools, the integration being 

to ta l as to  one o f  these d is tr ic ts  and only partial at the high 

school level in the other d is tr ic t .

We were advised 'by the State Board o f Education just 

before we le f t  L itt le  Hoclc that the:, had been no other inaugura*



fcion o f any form o f desegregation in th is  sta te  by any o f the 

school d is tr ic ts .

Justice Reed! Did you have a lav/ in Arkansas 

forbidding integration?

Mr* Gentry: We have had such a state statute, Mr*

Justice Reed, since 1868, prohibiting integration o f the races 

from the f i r s t  through the twelfth grades*

Justice Reed; And was that repealed?

Mr, Gentry; No, s ir , that has not been repealed* 

Justice Reed; These school d is tr ic ts  acted, then, 

under the b e lie f  that that was no longer a valid  law?

Mr, Gantry: They acted under the b e lie f  that by

the doctrine o f stare decisis  that in the event that the action  

should have been taken against them for  v io la tion  o f the state 

law, that i t  would have been thrown out by our Supreme Court* 

And, as a matter o f fa c t , as the Attorney General o f 

the state, I assume the prosecution in the Supreme Court, not 

in the lower courts, o f a l l  criminal cases, and frankly. Your 

Honor, I would have confessed error before our Supreme Court 

i f  there had been any conviction fo r  v io la tion  o f this statute.

Justice Reed; Does your o f f ic e  give advisory opinion 

to the school boards?

Mr* Gentry; Yes, s ir j we do,

Justice Reed; You did not issue any opinion?

Mr * Gentry; No, e ir 0 These two school boards did



236

i t  on their own v o lit ion  without consulting my o f f ic e , without 

consulting the State Beard, which, o f course, only has advisory 

authority, at any rate.

But as you w ill notice by the policy  statement, that 

was somewhat against the policy  even o f the State Board which 

thought perhaps i t  would be best to  wait and see.

There are some 422 separate autonomous school d is tr ic ts  

in the State o f Arkansas, and the school board, the directors 

o f the school, the school board in each d is tr ic t , is  elected 

by the citizen s o f that d istrict*

By the same token, these school d irectors on the 

school board, they propose what tax they think i t  w ill take 

to operate the schools fo r  the succeeding year, and the miilage 

based upon the property tax, o f course, is  placed upon the 

b a llo t , and the people in each school d is tr ic t  vote upon whether 

or not they want that tax fo r  the succeeding year.

There are actually  .4.22 e lection s , d ifferent miilage s 

in each o f the 422 d is tr ic t s , The taxes which a r e  levied by 

the school d is tr ic ts  are the principal source o f revenue fo r  

the operation o f the school d istricts ,, the 422 school d is tr ic ts  

in the State o f Arkansas.

However, the legislature does appropriate supplemental 

funds to carry on the public school functions o f  the State o f 

Arkansas, and these funds are distributed to the various and 

sundry school d is tr ic ts  on the basis o f  enrollment in each



287

d is tr ic t  9

Justice Fr&nkfurfcer i Mre Attorney General, may I

trouble you, in view o f your reference to  the two d is tr ic ts  in 

which integration has been successfully carried out. in view 

of your statement in your briefs

"From a comparison o f the factual situations o f the 

Charleston and Fayetteville school d is tr ic ts  with, fo r  example, 

d is tr ic ts  in St* Francis and Phillips Counties, i t  would 

certain ly seem to  follow  as a matter o f necessity that the 

process o f Integration must be applied as the circumstances 

in each- d is tr ic t  may require j " —

May I trouble you to  sketch b r ie fly  the difference and make 

a comparison such a3 you indicated, which you know, and 1 do

not,



antor (7 ) 
m 1

Mr. Gentry* Yes, s i r ,  I w i l l  be happy to .

The F a y e ttev ille  School D is t r ic t ,  Mr. Ju stice  

Frankfurter, is  located  in  Washington County, Arkansas, and 

that happens to be where the State U niversity  is  loca ted . In 

that d is t r ic t  there are approxim ately 6$ Negro students from 

the 1st to  the 12th grade. There was no Negro high sch ool in  

that d is t r i c t .

Under the lav; as preva iled  under the separate .but 

equal d octr in e , the eleven or twelve or ten , or whatever the 

number o f  Negro ch ild ren  who graduated in to  the high school 

lo v e l was, they were sent by trucks from F a y e tte v ille  to 

Fort Smith where there was a Negro high sch o o l, in  order that 

they may obtain  an education , some 50 or 60 m iles, and arrange- 

meats were made to  educate these people there.

Now when th is  d ecis ion  was handed down, the eleven  

or  twelve in  the high sch oo l th ere , which was p a r t ia l ly  

in tegrated  in Washington County, they were placed r igh t in  

w ith  tha 500 or so high sch oo l students, the white high sch ool 

students there in F a y e tte v ille .

Now, the other d is t r i c t ,  the Charleston D is tr ic t  is 

in  Franklin County, Arkansas, which is  one o f  the sparsely  

populated cou n ties , and there were only a few Negro pupils 

th ere , and, o f  course, there was no p a rticu la r  problem. I t  was, 

as a matter o f  fa c t ,  less  o f  a problem to in tegrate them than i t  

was to keep them separated , and as a resu lt

288

in that s itu a tio n



289

they were immediately placed. That was the s itu a t io n  in  those 

two instances.

I might say, Mr. Ju stice  Frankfurter, that that 

ha3 had a. very qu ieting  e f fe c t  in  Arkansas. I t  has been watched 

with a great deal o f  pleasure by a lo t  o f  peop le , and the out- 

come o f  i t  is being watched very c lo s e ly  by the other d is t r i c t s ,  

but there hav© been no untoward incidences and i t  has worked 

very w ell so fa r .

Now, the other counties which you re ferred  t o ,

S t. Francis and Williams -*•

Ju stice  Frankfurter: P h il l ip s .

Fir. Gentry: S t. Francis and P h il l ip s .  P h illip s

County is  over in  eastern Arkansas on the M ississipp i R iver.

S t. Francis County is  about half-way between L it t le  Rock and 

Memphis on the S t . Francis R iver.

Both o f  them are a g r icu ltu ra l cotton  communities and 

about the same s itu a tio n  ex is ts  in those two counties in  a l l  

f iv e  d is t r i c t s ,  in  each one o f  the two counties which, as I say, 

has been described by other attorneys who have argued before **~

Ju stice  Frankfurter: You mean lik e  Clarendon County?

Mr. Gentry: Yes, s i r ,  maybe not the same percentage”

w ise , but the percentages, I b e lie v e , are in  the appendix o f  

the b r ie f ,  Your Honor.

Ju stice  Frankfurter: But the c ru c ia l  thing is  the

sa tu ration , the large percentage o f  Negro population  compared



2S0

w ith the w hite. A lo t  o f  consequences fo llo w  from th at, I 

understand.

Mr. Gentry: Yes, s i r  but where they are located  

and the part o f  the county, and the rural counties ge ttin g  the 

ch ild ren  to and fro'n th e ir  homes to  a sch oo l, bus tran sportation  

over roads in  some o f the rura l counties in Arkansas presents 

a problem which ce rta in ly  the School Board d irectors  o f  

Washington, D. C ., couldn ’ t appreciate .

In our* w ritten  b r ie f  which was dated November 15th , 

we stated  on page 3 that the General Assembly o f  Arkansas had 

not been in sess ion  since  the ren d ition  o f  the opin ion  o f  

May the 17th.

We 3a id in  our b r ie f  on page 3 th at:

"Without a n tic ip a tin g  what a c t io n , i f  any, 

the General Assembly o f  Arkansas w i l l  take in  i t s  1955 

session " and the 1955 session  convened on January 10th 

o f  th is  year and adjourned sin e  die on March 10th o f 

th is year - -  " i t  is  probably sa fe  to say at th is time 

that some fu rth er words o f  advice and d ire c t io n  from 

th is Court w i l l  go 0 long way toward chartlog  the 

course o f  future a c tion  or in a ction  by the Arkansas 

General Assembly."

For reasons not m aterial now, those s o l i c i t e d  words 

o f  advice and d ire c t io n  from th is Court were not forthcom ing 

p r io r  to  the adjournment o f  the Legislature on March 10, 1955-



291

So i t  may be sa id  now that the Arkansas General Assembly is  

s t i l l  anxiously awaiting the f in a l  words o f  th is  Court.

Ju stice  Reed; TAhen does i t  meet again?

Mr. Gentry: In 1957 in  January. Every two years,

Your Honor, on the odd number o f  years in  January, I be lieve  

i t  is the second Monday e ft e r  the f i r s t  Tuesday.

I t  may be o f  passing in te re s t , however, to  mention 

that the House o f  Representatives passed a b i l l  or an act to  be 

e n t it le d , "An Act to regu late the assignment and tran sfer  o f  

school ch ild ren  to  and from the various schools  w ith in  the 

separate sch oo l d is t r ic t s  and f o r  other purposes.”

Now, the f i r s t  se c t io n  o f  th is  b i l l  expressly  provides, 

among other thing3 ;

"Nor sh a ll anything in  th is  Act be construed
i ' ; , l ■ /  / / ■ •'

as depriving any ch ild  o f  sch oo l age o f  the r ig h t to  a 

free  public sch oo l education as row provided by the 

C onstitu tion  and laws o f  the United States and the 

C onstitu tion  and laws o f  the State o f  Arkansas

Now, th is b i l l  provided that the e f fe c t iv e  date o f  

th is  Act should be July 15, 1955* But the Senate amended th is 

Act to  make the e f fe c t iv e  date o f  the Act July 15, 1957. And 

the sponsors o f  the A ct, in  th e ir  wisdom, fa i le d ,  a ft e r  th is 

amendment to the Act was adopted, to postpone the e f fe c t iv e  

data o f  i t ,  did not c a l l  the Act up fo r  f in a l  passage in the 

Senate, r e a lis in g , I am 3ure that la  view o f  the amendment, i t



would be advantageous to await fu rth er the f in a l  d ecis ion  o f  

th is Court.

Thus the le g is la t iv e  h istory  o f  the b i l l  in d ica tes  

very stron g ly  that the Arkansas Senate s t i l l  wants the advice 

o f  th is Court before  taking any d e fin ite  a c t io n  on the problem 

o f  in tegra tion  o f the races in  the p u b lic  sch oo ls .

And lo t  me add p a ren th etica lly  that I was not the 

draftsman o f  th is b i l l ,  neither was I ca lle d  upon o f f i c i a l l 3r or 

u n o f f ic ia l ly  to rule upon it s  c o n s t itu t io n a lity . Thus is  the 

s itu a t io n  in  Arkansas upon th is  matter today.

J u stice  Clark: Mr. Gentry, I wonder would you t e l l

me what county L it t le  Rock is in?

Mr. Gentry: Pulaski County. That jo in s  Bowie

County in Texas.

There seems to me to  be somewhat o f  a confusion  in  

the arguments presented to th is  Court as to the r igh ts  o f these 

appellants and the remedies these appellants seek.

Nov/, trie appellants in  th e ir  b r ie f  contended most 

earn estly  th at:

” Where a su bstan tia l co n s t itu t io n a l righ t 

would be impaired by delay, th is  Court has refused 

to postpone the in ju n ctive  r e l i e f  even in  the face 

o f  the gravest o f  pub lic  considerations suggested as 

ju s t i f i c a t io n  th e re fo r .”

Appellants contend th ere fore  that a p p e lle n ts5

292



co n st itu t io n a l righ ts should be e ffe ctu a ted  by decrees o f  th is 

Court forth w ith , forthw ith

segregation  in the public sch oo ls . And as a s ta r te r  f o r  th e ir  

con tention , they c i t e  the Youngstown case and the Endo case.

F irs t  in  the Youngstown case , that was a case where 

the owner o f  a s te e l  m ill sought an in ju n ction  in the lower 

cou rt, in  the D is tr ic t  Court, where the in ju n ction  was sustained 

by the Court o f  Appeals, and th is  Court agreed with the lower 

co u rt .

In the Youngstown case , th is  Court decided two p o in ts . 

F ir s t , that i t  was unnecessary to await the f in a l  order o f  

the D is tr ic t  Court before passing on the v a lid ity  o f  the 

executive order and, secondly , that the seizure order was not 

w ith in  the co n stitu tio n a l power o l  the P resident.

Now i t  is  very s ig n if ic a n t  in  th is  case to note that 

the proceedings in  the Youngstown case were in s t itu te d  by 

the owner o f the m ill3 to preserve the status quo.

T herefore, by the very nature o f  thi3 case , there 

was no need f o r  th is Court, acting under i t s  appellant equity 

powers, to g ive  any consideration  to the n ecessity  fo r  a period 

o f  adjustment by reason o f  a change in  the status quo. The 

in ju n ction  was granted.

On the other hand, let i t  be supposed that the 

presidential order had been authoris

Congress, and that th is Court had held that the order was v a lid .



294

W ell, in  that event there would have been brought 

about a complete change in  the status quo, and th is  Court might 

very w e ll , upon a s u f f ic ie n t  showing by the owners, have 

exercised  i t s  equ itable  d is cre tio n  and granted a reasonable 

time to make the adjustments brought about by the change in the 

possession .

So in  the instant cases th is  Court, by i t s  May 17th 

d e c is io n , has ordered a complete change in the status quo. This 

Court, by its  May 17th d ec is io n , esta b lish ed  the co n stitu tio n a l 

r igh t o f  these appellants to  attend in tegrated  p u b lic  s ch oo ls . 

Therefore there is  not now a question  o f  r igh t o f  these 

appellants before th is  Court.

This Court is  not now concerned about r ig h ts . I ts  

exclu sive  concern at th is time is  about equ itable  remedies.

I Now, Mr. Pomeroy in his equ ity  jurisprudence, poin ts

up th is  d is t in c t io n :

"The primary righ t o f the complaining party" — the 

appellants in  th is  case — "which has been broken nay be purely  

le g a l, that is  that the righ t which the lav/ con fers , w hile 

his remedial righ t and the remedy which he obtains may be 

e n tire ly  equ ita b le , recognized and given  by equ ity  alone"

Mr. Pomeroy continues - -  "the  d istin gu ish in g  ch a ra cte r is t ics  

o f  leg a l remedies are th e ir  uniform ity . . .  th e ir  lack o f  an 

adaptation  to  circumstances and the tech n ica l ru les which

govern th e ir  use.



295

"There is  in fa c t  no lim it to  the va rie ty  and 

a p p lica tio n . The court o f  equity has the power o f  devising 

i t s  remedies and shaping i t  so as to  f i t  the changing circum­

stances o f  every case and the complex re la tion s  o f  a l l  the 

p a r t ie s ."

To the same e f fe c t  are the decision s o f  th is Court 

in Hecht v. Bowles and In tern ation al S alt Company v. the 

United S ta tes , which we c it©  on page 10 o f  our b r ie f .  The 

appellants in  these cases have chosen to  exerc ise  equ itable 

remedy.

Having appealed to  equity jurisprudence, th is  Court 

may, i f  i t  sees proper to do so in  the circum stances, devise 

the r e l i e f  granted to f i t  the complex re la tion sh ip  o f the 

p a rtie s . This Court c le a r ly  recognized in  i t s  May 17th 

opin ion  that the public in te res t  is  involved  in these cases.

In the V irg in ia  Railroad v. E pstein . 300 U. S , , the 

Court s ta ted :

"Courts o f  equ ity  may and frequently  do go much 

fa rth er  both to g ive  and withhold r e l i e f  in  furtherance o f  the 

p u b lic  in terest than they are accustomed to  go when only 

private in terests  are involved ."

Remembering that th is  Court is  now concerned about 

equ itable remedies rather than con stitu tion a l r ig h t , we have 

R3iced th is  Court to bear in mind the language o f  Mr. Ju stice  

Holmes in Katy Railroad 194 U. S. where no s ta ted ;



296

"Great co n s t itu t io n a l prov isions must be adm inistered 

w ith ca u tion .”

This Court has held in  its  May 17th d ecis ion  that the 

complex problem which would be created  by the granting o f 

appellants* prayer fo r  in ju n ction  would play no part in  d eter­

mining the r igh ts  o f  the appellants.

As sta ted  by Mr. Ju stice  Frankfurter, concurring in 

the Youngstown case :

"Balancing; the eq u ities  in  considering whether an 

in ju n ction  should issue is  lawyers5 jargon fo r  choosing between 

c o n f l ic t in g  public in te re s t . When Congress i t s e l f  has struck 

the balance, ha3 defined the weight to be given to competing 

in te re s ts , a court o f  equity is  not ju s t i f ie d  in  ignoring that 

pronouncement under the d isgu ise  o f  exercis in g  equ itable 

d is c r e t io n ."

We in terp ret Mr. Ju stice  Frankfurter’ s language, he 

is  making the very point we in s is t  d istingu ishes the holding 

o f  May 17th from the d ecis ion  in the Youngstown case.

I t  is  stated  that the Court does not balance in terest 

in determining whether the in ju n ction  should issu e . Here the 

Court has already decided that the in ju n ction  sh a ll issu e .

The Court is  now deciding how to adm inister the 

co n st itu t io n a l p rov is ion  in  the lig h t o f  the C ourt's w e ll 

recognized power to make nice adjustments and r e c o n c ilia t io n  

between p u b lic  in terest and private  need to use Mr. Ju stice



297

Douglases language in Hyde v. Bowling, at page 12 o f  th e ir  

b r ie f  appellants say in  reference to  the Youngstown ca3e :

" I f  equ ity  could not appropriately  exercise  i t s  

broad d iscre tion s  to w ithhold the immediate grant o f  r e l i e f  in  

the Youngstown case, such a postponement must ce r ta in ly  be 

inappropriate in  these cases where no comparable overrid ing  

consideration  can be suggested .”

As I have pointed ou t, neither the Court in  the 

Youngstown case nor in  the concurring opin ion  engaged in r.ny 

d iscu ssion  as to the p rop riety  o f  w ithholding immediate 

in junct ix̂ e r e l i e f .  The so le  question  there presented and 

decided was the righ t to  the issuance o f  an in ju n ction .

We subm it, th ere fo re , that the Youngstown case f a l l s  

fa r  short o f  what the appellants claim  that i t  says.

Further, Mr. Ju stice  Frankfurter in h i3 concurring 

opinion  in  the Youngstown case s ta ted :

"A court o f  equ ity  ought not to  issue an in ju n ction  

even though the p la in t i f f  otherwise malce3 out a case fo r  i t ,  i f  

the p l a i n t i f f s  righ t to an in ju n ction  is  overborne by 

commanding pub lic  in terest against i t , ”

Also i t  is  my contention  that in  the Endo case there 

is no support fo r  a p p e lla n ts? contention . The Endo case arose 

under a p e t it io n  fo r  a w rit o f  habeas corpus, and f in a l ly  reached 

th is Court where the w rit was granted, and i t  was assumed by 

th is  Court that the o r ig in a l evacuation o f  a l l  the Japanese



from the Sacramento area was authorized as a matter o f  

m ilita ry  authority  based upon the ex is tin g  war emergency.

But i t  was held that the in ten tion  o f  the p e t it io n e r , 

who was conceded to  be a lo y a l c it iz e n  o f  the United States by 

the War R elocation  A uthority , a c iv i l ia n  agency, on the basis 

o f  race was in  v io la t io n  o f the F ifth  Amendment.

In that case there was no appeal to  the equ itable 

d is c re t io n  o f th is Court in  that proceeding because i t  was 

based upon a p e t it io n  fo r  a w rit o f  habeas corpus. The 

Government there urged that th is  Court su sta in  the au th ority  o f  

the VA»r R elocation  A uthority on the basis o f  the pending war 

emergency.

In other words, th is  Court was asking a balanced 

in te re s t  in  deciding whether the p e t it io n e r  was being unlaw­

fu l ly  deprived o f  her r igh t o f  l ib e r ty  under the C on stitu tion . 

This Court refused to permit the e x is tin g  emergency to carry 

any weight when ap p lied , as Mr. Ju stice  Douglas sa id , to  the 

s e n s it iv e  area o f r igh ts  s p e c i f i c a l ly  guaranteed by the 

C on stitu tion .

The Court in  passing on p e t it io n e r ’ s righ ts under the 

C on stitu tion  decided that she had the r igh t to her lib e r ty .

This Court in  its  May 17th d ecis ion  balanced the in te res t  

and considered the national emergency in  handing down i t s  

May 17th d e c is io n , and having done s o , the Court f in a l ly  and 

com pletely  ad judicated  the r igh t o f  these appe .lants to attend

298



*99

in tegrated  s ch o o ls <

The question  now before the Court in  these cases was 

not and could not have been before the Court in  the Undo case 

because the question  o f  granting habeas corpus, as in  the Endo 

case , was not based upon the equ itable remedy o f  in ju n ction . 

Here the exact reverse is  true.

Nov; the appellants do contend in  th e ir  b r ie f  that 

the a n titru st case3 and the nuisance cases r e lie d  upon by the 

appellees in  th e ir  b r ie fs  are not in  point because they did 

not involve the enforcement o f  co n stitu tio n a l r ig h ts .

We agree that these cases have no bearing upon the 

r igh ts  o f appellants to an in ju n ction .

Even i f  they d id , they would bo out o f  p lace in th is 

hearing because the question  o f r igh ts  was dedided by th is  

Court in i t s  d ecis ion  o f  May 17th,

On the other hand, a l l  o f  those case3 and many others 

o f  s im ila r  import are authority  fo r  our contention  that th is  

Court is  not required to  enter forthw ith  decrees in  these 

cases as the appellants seem to contend.

Majr i t  please the Court, why is  gradual in tegration  

necessary? We do not consider i t  necessary or even appropriate 

in this o ra l argument,

To repeat our severa l contentions as set fo rth  in  

our b r ie f ,  we are content simply to  say that th is Court

should enter such decrees as w i l l  permit these cases and other



300

s im ila r  esses which may h erea fter  a r ise  to he determined on the 

basis o f  the p a rticu la r  fa cts  then shown to  e x is t ,  recogn izin g , 

o f  course, in  a l l  cases that the righ ts as d istingu ished  from 

remedies have been ad judicated .

In determining the extent o f  the exerc ise  o f  i t s  

d is c re t io n , th is  Court w i l l  r e c a l l  that in  d iscussing the 

F irst  Amendment in  Cantwell v . Connecticut 310 U. S '., i t  s a id :

"Thus the amendment embraces two concepts, freedom to 

b e lieve  and freedom to  a c t . The f i r s t  is  ab so lu te , but in the 

nature o f  th ings, the second cannot be. Conduct remains 

su b ject to  regu lation  fo r  the p ro te ct ion  o f  s o c ie t y ."

Chief Ju stice  Marshall in Von Hoffman v. C ity o f  

Quincy, s ta ted :

"Without impairing the o b lig a tio n  o f  con tra ct , the 

remedy may ce r ta in ly  be m odified as the wisdom o f  the Nation 

may d ir e c t ,"

And fu rth er Mr. Chief J u stice  Hughes, spealcing in 

Home Building and Loan A ssocia tion  v. B a sil 280  U. S. s ta ted :

"But i t  does not fo llo w  that cond itions may not a r ise  

in  which a temporary restra in t o f  enforcement o f  a contract 

may be con sisten t with the s p ir i t  and purpose o f  the 

co n st itu t io n  p rov is ion , and thus be found to  be w ith in  the 

reserve power o f  the State to p rotect the v i t a l  in te rests  

o f  the community."

In Interstate Consolidated Railway v. ?%ssachusef,ts,



speaking only fo r  h im self, Mr. Ju stice  Holmes sta ted  that i t  

was his personal opin ion  th at:

"C on stitu tion a l r ig h ts , lik e  a l l  o th ers , are matters 

o f  degree, and that the great co n s t itu t io n a l p rov ision s fo r  

the p ro tection  o f  property are not to  he pushed to  a lo g ic a l  

extreme but must bo taken to permit the in f le c t io n  o f  some 

fra c t io n  and r e la t iv e ly  small losses o f  compensation, fo r  some 

at least are the purposes o f  wholesome le g is la t io n ."

Further, Ju stice  Holmes s ta ted :

" I f  the 14th Amendment is  not to  be a grea ter hamper 

upon the esta b lish ed  p ra ctices  o f  the State in  common with 

other governments, then I think i t  was intended they must be 

allowed a certa in  la titu d e  in  the minor adjustments o f  l i f e ,  

even though by th e ir  a ction  the burdens o f  a part o f  the 

community are somewhat increased. The tra d ition s  and habits 

o f  centuries were not intended to  be overthrown when that 

amendment was passed."

Further, in  Block v. H irsch:

"A lim it in time to tid e  over a passing trouble w ell 

may ju s t i fy  a lav/ that may not be upheld as a permanent change,

So when th is Court comes to decide the terms o f 

the decrees in  those cases, I r e s p e c t fu lly  urge th is Court 

to  remember Mr. Ju stice  HolmesJ admonition that tra d ition s  

and habits o f  centuries were not intended to be overthrown 

when the 14t h ’'Amendment v/as adopted, and that the decrees shoui



m 15 302

11)
o f  I s .

be so framed as to  tid e  over a passing trou b le .

Ju stice  Frankfurters What case is that from?

Mr. Gentry; Block v. H irsch, 256 U. S. 135.

Ju stice  I'rankfurter; Did that case turn on the 

kind o f  decree entered?

Mr, Gentry: Eo, s i r .

Ju stice  Frankfurter: Not as I remember i t .  That was

the c o n s t itu t io n a lity  o f  the Rent Control A ct.

Mr. Gentry: Yes, s i r .



305

Justice Frankfurter: But what you read doe sn ’ t

refex1 to the decree, does i t ?  Would you mind reading that again?

Mr, Gentry: ”A lim it in time to tide over a passing

trouble may well ju s t ify  a law that could not be upheld as a 

permanent change,”

Justice Frankfurter: You said something about a

decree.

Mr, Gentry; I don’ t believe I did, s ir , in the

quotation s

Justice Frankfurter: That was your comment?

Mr. Gentry: Yes, s ir , that was.

In th is lit ig a t io n  one side has said that what we 

need is  an immediate and forthwith decree which w ill taka e ffe c t  

in September, 1955 or not later than 1556, Then other statements 

have been made on the other side that th is matter not be ac­

complished until 2045 <

My guess An these cases is  that the date would be 

somewhere in between, as is  in most cases the position  taken 

by opposing sides and opposing lawyers.

I don!t  know the exact date, I  don’ t  think i t  is  

possible to determine an exact date, I  think that any guess 

or any statement o f an exact date would be purely a guess,

But why guess upon a question which is  as important 

as th is , when i t  is  not necessary.

How, i t  seems to  be log ica l we should charge the court



ao 2

3 (ft

o f f i r s t  instance with the responsib ility  o f carrying out the 

mandate of th is Court and placing the mandate o f th is Court 

into e ffect*  and secondly* to  give the court o f f i r s t  instance* 

along with the responsibility* the authority to  do what is  best 

under the circumstances in carrying out the mandate o f th is 

Court ,

There are *J2$ separate instances in Arkansas, How 

many in other segregated states* 2 have no. idea. But i t  would 

appear that by fa r  the: most log ica l thing to do would be to  

place the responsibility* upon the court', of. .'.first resort and 

Lgiv© tha* court the authority to carry, out 'the duties placed 

placed upon it  by this responsib ility , and not hamper him

or the court* lower court* in any respect,,

It raust always: be remembered- that:- i f  there is  any 

ibuee o f discretion* those people hav o f ».rrsal

to  .this Court* and icei.^pinly  almost every week we Lave 

some allegations o f  abuse o f  discretion  ^y. -dourts ' slow brpt^it 

toLthis Court, I t  is  not a new or a novel .thing. But 2 do 

believe that the redress o f the grievances o f thea people w ill 

be better* more promptly taken care of* b^ fe fe r r I  % th is  matter 

back to the courts o f  f i r s t  instance fo r  solution,

Secondly* th is Court might well leave so .© o f the 

problems of integration to the Congress, After c nsAderabla 

re fle ction  on the subject* since the f i l in g  o f our written 

b rie f. I  am s t i l l  o f the opinion that some o f  the roblems o f



305

integration might well be worked out through aispropriate 

leg is la tion  by Congress, pursuant to Section 5 o f the Fourteenth 

Amendments

Justice Douglas; You re fer  to future lit ig a tion ?

Mr. Gentry: Yes, s ir . Your Honor,

What we who are not parties to  th is  particular case 

ha*?e to  look forward to . I , as the Attorney General o f 

Arkansas, have to look forward to  the p oss ib ility  •— not a 

probability , but a p oss ib ility  - -  o f 422 separate law suits in 

W  state, a multitude o f l it ig a t io n , I  think that the Congress 

slight well a ssist in the problem which confronts the nation.

Justice Black; Pfey I  ask you a question there*

The argument has been made heretofore largely on the 

basis that the Court is  going to draw a decree which w ill 

decide when segregation should end in every state in the Union, 

draw up a broad leg is la tiv e  plan. What we have is  l it ig a tio n  

on the part o f individuals, a very small number, perhaps a lia lf 

dozen, that ask to  be admitted into certain schools,

Does your argument suppose the decree would a ffe ct 

those Individuals? Maybe i t  would have to . This is  a law su it. 

Would your argument, which you are making, apply then?

In other words, i f  the decree o f the Court :1s to treat 

th is as a lit ig a tio n  between the parties, which w ill involve 

only the person named in the proceeding o f today, would the 

argument you have made he applicable?



306

ao 4 Mr* Gentrys I think i t  d e fin ite ly  would, Mr, Justice 

Black, because i f  that is  the decision o f th is Court, 1 have 

no doubt but what there w ill probably be a case f i le d  in 

practica lly  every Jurisdiction in the state where there is  

segregation, and although 1 am trying to  ta lk  about the broad

aspect o f th is , i f  that bo the law, insofar as these fiv e  or 

sia or ten individuals are concerned, then under the doctrine 

o f stare decisis  i t  would be the law when the 2,000 or 3,000

or 10,000 came before th is  Court and asked fo r  the same right 

and the same remedy. £

Justice Black: But assuming that, is  true, as you

have assumed *■»- properly, 1 suppose «?-*.. ..that- the Court has 

already passed on the basic question to  that, end, assuming that 

is  true, we s t i l l  have before us a law .suit 'between individuals, 

certain individuals, perhaps a h a lf a dozen which are admitted 

to certain schools,:

I f  others wish to be admitted, i t  would require law 

suits, i t  is  true. It is  true there might; be. many* But would 

that not be the appropriate time to pass on whether, in that 

individual case, .the number o f  individuals; who apply could be 

admitted into the particular schools into which they sought 

entrance, and are the circumstances which th is Court has 

declared on individual law suits not lim ited to circumstances 

o f the individual ease?

Is i t  your idea that the Court should attempt to dra



307

some kind o f a broad plan which would be in the nature o f 

leg is la tion  to  determine when and how, and so forth , the 

schools shall proceed a l l  over the nation, or should the Court 

lim it i t s e l f  to  the particular law suit before i t ?

Mr. Gentry: I think that the Court in these par­

ticu lar cases — far be i t  from me as a country boy from Arkansas 

to t e l l  the Supreme Court —-

Justice Black: I am asking you* I appreciate the

argument you have made*

Mr* Gentry: I believe that under the circumstances

o f taking the broad picture, that th is argument would be feasib le , 

i t  would be appropriate. Merely the ten or fifte e n  that are a l l  

we are talking about, they could be integrated, lik e  the eleven 

were in Fort Smith*

Justice Black: That is  what I had in mind in connec­

tion  with your Arkansas argument.

Mr* Gentry: I f  that is  the problem, and that is  a l l

there is  to  i t ,  then we have no problem.

Justice Frankfurter: You yourself suggested in the

exchange that you and 1 had that the situation in the Charleston 

school d is tr ic t  is  one thing, and the case in Clarendon is  an­

other.

V
—Mr. Gentry: Yes, s ir ; that is  true.

Justice Frankfurter: In other words, stare decisis

applies to the legal principle announced, but does stare decisis



308

apply to the terms o f a particular decree? They are very 

d ifferent things, aren’ t  they?

Mr* Gentry: Yes, s ir ; they are very different

things, tout the ultimate result is  what I am looking to* The 

ultimate e ffe c t  o f th is Opinion which is  already the law in

a l l  o f our country, that is  what 

Justice Frankfurter: 

th is Court enters a decree that

2 am looking to ultimately. 

What you are saying is  that i f  

requires implementation o f the

May 17th decision forthwith, you say you would, naturally, toe

troubled toy the fa ct  that you would have law suits a l l  over 

the State o f Arkansas asking for  the same kind o f a forthwith 

decree. Isn ’ t  that what you are troubled toy?

Mr, Gentry: That iB one o f the problems which we

must face* But the point that I am undertaking to  make to the 

Court, that i t  would not be without precedent i f  th is Court 

would supplement i t s  Opinion and ca ll  the attention o f Congress 

to the particular problem that we have as a result o f this

decree or Opinion o f May 17th, and that the solution to  the 

situation could be helped toy the Congress,

For example, in the case o f  Board o f Education v» 

Wynetti, that was the fla g  salute case in which Mr* Justice 

Frankfurter, in a concurring opinion, stated that the Opinion 

o f the Court meant th is, and in fa c t , as 2 read the Opinion, 

to ld  them how to require a salute o f the fla g  within the meaning 

o f the Court, and toy the same means that the attention o f the



309

Congress may be ca lled  to soma o f the problems that we have 

her©«

For ©sample, as the Court stated In Its  Opinion, the 

public school education is  one o f  the most, or the most. Important 

functions o f  the loca l and stats governments. At the present 

time, in the Opinion o f th is Court, the Supreme Court, on the 

part o f the Federal Government, is  now advising the loca l and 

state government how i t  must administer th is function o f the 

lo ca l and state governments.

How, i f  the Fourteenth Amendment —» and the Court has 

alread y  said that the Fourteenth Amendment includes that, then 

i t  is  also a Federal problem as well as the state and loca l 

problem.

And by enactment o f the Congress outlawing, fo r  ex­

ample, the deprivation o f the constitutional rights under the 

Fourteenth Amendment by refusing to  allow someone to go to an 

integrated school would be punishable by a fin e , I  think i t  

would have a deterring e f fe c t  upon any v io la tion , and i t  might 

be well that that is  the solution rather than the decrees o f  

th is Court and the loiter court in sp ecific  instances*

Justice Black: May 1 ask you th is question* 1 am

asking your view, I  want your view on whether i t  would apply 

only in a defin ite  and sp ecific  instance,

Mr, Gentry: 1 don31 believe that i t  could, Mr*

Justice Black, because the decree would be there, and any



310

violation of that decree would have to be enforced by contempt 
proceedings.

Justice Black: With reference to the particular

instance?

Mr. Gentry; With reference to  the p articu lar  instan ce, 

'there would have to  be a decree in every instance where litiga** 

tion  was brought.«• *

Justice Black: Do you suppose there: might be many

places in which no lit ig a t io n  would be necessary?

Mr, Gantry: ©iat is  correct.

Justice Black: And they might hot be faced with

that litigation*? •;

Mr, Gentry; But these ca ses / understand i t ;
#

and the persons nSay be ordered to  do southing by th is decree, 

are only lit ig a n t3yin the particular case*

Justice Douglas: I f  Congress did not act — you said

"•̂ shere was a prospect o f  leaving some o f  th is to Congress <— I 

am not quite sure that I  understand what you mean.

Mr, Gentry: Well; under the present circumstances,

the responsib ility  o f seeing that the constitutional rights o f 

the appellants and a l l  others sim ilarly situated a l l  over the 

segregated areas fa l ls  squarely within the Court because there 

is  no law the Congress passed pursuant to  Section 5 o f the

Fourteenth Amendment which would protect the rights which this

Court has given these appellants and others sim ilarly situated



311

in  i t s  d ec is ion  o f  May-the 17 th ,

Now, i t  has been held  by the Court that there has 

been a v io la t io n  o f  the Fourteenth Amendment, then the Congress 

can pass an Act saying that the v io la t io n  o f  the Fourteenth 

Amendment in  th is  p a rticu la r  respect i s  unlawful, p lace what 

p en a lties  i t  w ishes, and i f  somebody w il fu l ly  v io la te s  the law, 

then you not only have the courts to  a s s is t  in  the enforcement 

o f  th is , but the crim inal cou rts , the courts o f  equ ity , and 

the f u l l  power o f  the lav; enforcement o f  the United States 

Government, a 3 w ell as the Ju d iciary , That is  the point that 

1 was making*

J u stice  Harlan: W ell, wouldnJt you suppose that i f

the impact o f  the decree in  these p a rticu la r  cases, which can 

a f fe c t  only the in d iv id u a ls , i s  rem itted to  the D is tr ic t  

Court, and then you have a f lo c k  o f  law su its  by others who 

have not been en jo in ed , wouldn’ t  i t  be w ithin  the d is c re t io n  

o f  the D is t r ic t  Court to  stay those lav; su its , pending some 

proposal by the lo ca l school a u th o r it ie s  to  promulgate a plan 

to  take care o f  the wider s itu a tion  than that which a ffe c te d  

the p a rticu la r  in d iv id u a l?

I  thought tha^ was inherent in  your whole idea , that 

th is  should be rem itted to  the D is t r ic t  Court,

Mr. Gentry: I  hope that that w i l l  be the case .

But 1 am try in g  to  submit a lte rn a tiv e  so lu tion s , Mr. J u stice

Harlan„



ao 10
3X2

i%y i t  please the Court, I am, o f course, primarily 

interested in what is  going to happen in Arkansas, and I  am

concerned about the attitude which w ill be talcen by both the

white and Negro people in some sections o f Artenas where many

Negroes l iv e ,

fihere are many sections o f Arkansas where integration 

in the schools v jill be worked out promptly and without the 

necessity o f the supervision by any court, and regardless of

what is  contained in the fin a l decree o f th is Court

On the other hand, there are many sections of 

Arkansas where the Negro population is  re la tive ly  heavy, and 

i t  is  in these sections where there w ill have to be close

supervision o f some sort, I t  is  in these sections, in my opinion, 

i t  w ill be extremely inadvisable fo r  th is  Court to f  is  any 

defin ite  deadlino fo r  the completion o f  integration,

During the transition  period i t  w ill be my purpose, 

both o f f i c ia l ly  and u n o ffic ia lly , to assist in every possible 

manner in bringing about complete transition  without any 

unpleasant Anc idents*

Justice Heeds What do you mean when you 3ay « -  the 

words you just used — time, defin ite  time, fo r  the completion 

o f integration?

You said a few moments ago, before, that th is  judgment

can only act on these few individuals, so i f  we admit, leaving 

the South Carolina cases fo r  the moment, i f  these people were



• ? . o  U 323

(13)

admitted immediately, would there be any particular difference?

Mr. Gentry2 1 fear that i t  might be an instruction

to the lower court, and any further lit ig a t io n  which might come 

before the lower court, that i t  was the duty o f the lower court 

to so order immediatelya That is  the fear „

Justice Reeds It depends on the circumstances, 

doesn3t i t ?

Mr. Gentrys I f  the lower court was free and told 

toy th is Court that i t  was free to  adjudicate the matter, depend­

ing upon hie sound d iscretion , so long as the right were pro­

tected and the circumstances considered.

Justice Reeds Well, that means to talk  generally 

in an Opinion, but to act sp ecifica lly  in a case,

Mr. Gentry; That is  i t ,  in e f fe c t .

Justice Reed; That is  what you are suggesting?

Mr. Gentry: Yes, s ir .

During the transition  period which we have already 

started in Arkansas and, as a matter o f  fa c t , on last April 

the 3rd, in an interview  with the representative o f 

the Rational Association fo r  the Advancement o f Colored People 

in the Arkansas Gazette, he stated that he had been in Arkansas 

since October measuring community reaction to  the ideas of 

racia l integration in the public schools, and he  stated that 

hie experience, he had experienced no unpleasant incidents, 

and In th is interview he is  reported to  have stated;



luor “ 1/ i, 
lstn -  8 I,
to 12 314

nvant or

idstein
o l  ( l )

’'Arkansas represents porhapB the brightest among the 

Southern states, and i t  is  expected to follow  it s  previous 

pattern o f pioneering,"

S t i l l  quoting:

"Arkansas represents a variable p icture. There are 

extremes in terms o f  resistance and in favorable reaction,

There are variations in how long i t  w ill take fo r  in tegration ,51 

I am in complete accord with the statements that 

Arkansas represents a variable picture, and I a lso  agree with 

the statement o f th is educational sp ecia list that there are 

variations in how long i t  w ill take fo r  integration in the 

State o f Arkansas,

And i t  is  because o f these fa cts  that I  am opposed 

to any decree o f th is Court which would f ix  a defin ite  deadline 

fo r  the completion o f  integration in these cases, because that 

might indicate to  the other courts in Arkansas that immediate

integration was the command o f th is Court,

Justice Harlan: I f  i t  wore generally agreed among

a l l  you gentlemen representing the d ifferent states, as fa r  as 

the administrative problems were concerned, as to  these par­

ticu la r individuals, there wasnst  any administrative problem, 

because there are only a h a lf dozen or so, then th is Court would 

never reach the question o f  time, would i t ?  I t  would go back
i

to  the D istrict Court, and then i t  would be up to  the D istrict

Court, as an o rig in a l m atter. i f  other su its  were f i l e d ,  to grant



oidstain 
ao l~a

time in ie la tion  to the handling o f  a number o f law suits

that are going to p ile  up?

Mr. Centals Not only the handling o f a large number 

o f ..aw su its. Your Honor, but the handling o f these administrative 

matters which the appellants just choose to  pass o f with a brush. 

Some o f the counties in Arkansas are going to  have to  have 

buildings b u ilt , and other things taken into consideration.

Justice Harlan: You misunderstood me*

In answer to Justice Black’ s question, you said there 

were no administrative problems. and in the nature o f things X 

wouldn’ t  suppose there would be in the case o f only a h a lf 

dozen individuals, cr so,

Mr, Gentry: No, s ir , net in the case o f a half

dozen individuals,

Justice Harlan: You could absorb those without

administrative problems* Your administrative problems arise 

when there is  a flood  o f  applications, and they would result 

from new law suits being f i le d , and at that stage i t  would be 

the function o f  the D istrict Court to  pass on the time elements* 

Mr* Gentry: That ie  my contention, exactly,

I believe, i f  the Court please, with the questions, 

my argument as contained here is  complete.

Think you fo r  the opportunity.

The Chief Justice: Thank you fo r  the cooperation

315

;f  your state and the presentation of your views*



316

Mr, Gentry: Thank you®

The Chief Justice: Attorney General Williamson o f

Oklahoma*

ARGUMENT ON BEHALF OF THE STATE OF OKLAHOMA*

AS THE FRIEND OF THE COURT

By Mr, MaoQ.Williamson,

Mr* Williamson: Mr, Chief Justice; Your Honors:

Although Oklahoma is  not a party contestant in any o f 

the lit ig a tion s  currently being considered by the Court, I would 

lik e  to say that Oklahoma is  keenly interested in  the principles 

heretofore enunciated by the Court o f May 17, 1954, and we are 

further interested in the principles which w ill follow  in due 

course th is year.

We f i le d  a very short b r ie f herein upon invitation 

o f the Court, fo r  which invitation we are gratefu l, Our b r ie f 

pointed out principally , Your Honors, the fact that Oklahoma 

has a unique, d ifferent system o f raising funds fo r  the support 

o f our separate schools, and I may say at this point that 

Oklahoma, having been admitted into the Union in 1907 as the 

46th state o f th is Union, had in it s  Constitution, imbedded in 

the Constitution, the principle o f compulsory segregation in 

the common public schools o f Oklahoma. That has been the rule, 

the constitutional ru le, in our state since 1907, and i t  is  

compulsory.

So when the occasion came fo r  th is Court to  promulgate



317

the Opinion o f May 17, 1954, that Opinion posed at once a 

question involving the f is c a l  arrangement o f our funds for  

public schools, and we met that question in due course, at! 1 

shall explain.

In our b r ie f f i le d  in November o f 1954, I said to 

the Court that our State Legislative Council* which is  an 

organization consisting of the entire current membership o f 

both the Senate and the House o f Representatives o f the Sate 

Legislature, was giving careful and studious consideration to 

the impact o f the May 17th decision upon f is c a l  arrangements 

o f the State o f Oklahoma and drafted* as they are, into the 

Constitution, providing fo r  funds to run separate schools.

So upon the convening of the regular 1555 session of the 

Oklahoma Legislature, which did convene on January 10, 1955, 

and which is  currently in session and about to wind up it s  

duties, that Legislature, among other things, passed a resolu­

tion  submitting to the people o f Oklahoma at a state-wide 

election  the question o f whether the people o f Oklahoma wished 

to and would amend their own Constitution, taking; out o f our 

Constitution the segregation provisions fo r  the raising o f taxes 

on a basis o f four m ills to the dollar upon a l l  the taxable 

property o f the state, to be devoted to  separate schools.

That question was submitted to the people o f the 

state, and on April. 5, 1955, that being the date called by the 

present Governor for  the submission o f the question, the state­



318

wide election  was held,

I may say to  the Court that the people o f Oklahoma 

responded with more than 300,000 votes cast, perhaps nearly 

350, 000, and the question o f removing the segregation feature 

as a constitutional feature and substituting therefor an amended 

constitutional section providing that the money sc levied would

go into what 1 may c a ll  a common jackpot fo r  the distribution

county-wide fo r  the benefit o f a l l  children, based on an average 

daily attendance o f the f is c a l  year preceding*

So th is  e lection , having been held, showed that the 

people o f Oklahoma, by a majority o f 3 to  1 , adopted and

ra tified  that change, the sp ir it  and significance o f which was 

to take segregation out o f the Oklahoma State Constitution,

So I point out that Oklahoma has already made sub­

stantial progress along the lines o f putting oik? house in order, 

f is c a lly  speaking, and I may say further that the f is ca l ques­

tion  was the principal question which stood as an obstacle in 

the way o f th is plan fo r  proposed gradual changeover.

Justice Heed: Is that Section 9 of A rticle  10?

Mr, Williamson: Yes, sir*

I f  Your Honor please, that w ill be found on page 8, 

and the following pages o f our b r ie f.

Justice Reed: As I understand i t ,  the segregation

clause was repealed from the Constitution,

Mr, Williamson: That is  quite correct.



319

I f  Your Honor w ill notice the text — and we have It 

ill our b r ie f on page 9 t rather clone to the top tliere — you 

w ill see there is  quite an extended provision there, and i t  

writes segregation into Section 9 o f our Constitution, That 

Section 9 o f A rticle  10 o f our Constitution is  what we r e f e r  

to as the f is c a l  section. It provides the f is c a l  framework 

fo r  raising money, assessing taxes, and ad valorem taxes, state­

wide »

‘Fills f is c a l  problem being the big problem, our 

present Section 9 as amended by th is 3 to  1 vote o f the people, 

provides, as I said, f i r s t ,  that the same four-m ill levy on 

a l l  taxable property, real and personal- which was therefor 

levied fo r  separate schools, is  s t i l l  to be levied against 

the property o f the state, but when th is four m ills is  co llected  

by the various county treasurers, and there are 77 o f them —• 

th is millags is  then distributed without regard to  co lor , but 

based upon the average daily attendance o f the school children 

o f each county.

So there has been a transition o f the four m ills out 

o f the segregation group.

Now, i f  Your Honors please, th is amendment does an­

other thing. It  provides that whereas Section 26 of A rticle 10 

has provided a lim it with regard to  the issuing o f bonds by 

school d is tr ic ts , that 1 limit being 5 per cent o f the net valua­

tion , real and personal, o f  the school d is tr ic t , th is const itu~



320

tional amendment raises that lim itation fo r  the purpose of 

assisting impoverished and rural d is tr ic t s , i t  raises that 

lim itation from 5 to 10 per cent* thereby allowing d is tr ic ts  

with modest cr impoverished assessed valuations, the right, 

should they see f i t ,  to go 5 per cent stronger for  the purpose 

o f erecting public improvements in the various school d istricts«  

It  w ill be understood; I am sure, that our method of 

financing contemplated county-wide assessment for  separate

school s, whereas the method o f raising money fo r  d is tr ic t  or 

majority schools in Oklahoma has been a d is tr ic t  basis, with 

geographical lim itations, each d is tr ic t  to i t s e l f  *

So we have a rather incongruous situation in Oklahoma

where the four m ills fo r  separate school purposes has been 

invested in buildings»

In the capital c ity , fo r  instance, in Oklahoma City, 

which is  the largest c ity  o f the state, some 350,000 people, 

that c ity  has received the impact o f most o f the money collected  

throughout the length and breadth o f Oklahoma County fo r  public

schools,

Farmers 45 miles southwest and southeast pay their 

two m ills , but the money is  gathered at the county treasu rers 

o f f ic e , and then is  administered as a separate school fund on 

a county unit basis and is  administered by the Board o f County

Commissioners o f the county, and in case there happens to  be

an independent school d is tr ic t , that is , the wider majority



321

d is tr ic t , which needs the separate schools also in the d is tr ic t , 

they go to the County Commissioners and from the county 

treasurer they receive money which is  allocated to the inde­

pendent d is tr ic t  fo r  the purpose o f separate schools,

fc  we have the county unit system on separate schools, 

In Oklahoma City alone, we have th is sort o f a situations This 

separate school money,collected county-wide, doeon' t belong 

to the Clclahoma City school d is tr ic t . That is  the majority 

d is tr ic t . Yet we find erected in the Oklahoma City school 

d is tr ic t , out of th is county-wide school fund, what is  known 

as the Douglass High School, which is  a high school fo r  colored 

children.

That high school, as I have the figures, cost in 

excess o f $2,100,000, That high school stands within the 

geographical lim its o f Oklahoma City, the majority school 

d is tr ic t , hut that building doesn’ t belong to the taxpayers 

o f the Oklahoma City majority school d is tr ic t , It belongs to  

the taxpayers in the county.

That is  true in a greater or lesser degree, We have, 

fox' instance, in Oklahoma, 1,795 school d is tr ic ts . Out o f those 

1 ; ?95j we have 313 school d is tr ic ts  which have within them 

separate schools. In each o f those 313 instances the buildings 

and permanent improvements have been bought and paid for by 

people, many o f them do not even liv e  in the school d is tr ic ts  

which contain the situs c f  the building.



322

So we have the problem there o f the permanent improve­

ments in 313 school d is tr ic ts  of that state which rea lly  do not 

belong to the people o f the d is tr ic t  where the buildings in 

each instance sit*

That is  a problem which must be wrestled with * There 

are probably in the entire operation o f 313 separate school ■ 

d is tr ic ts  500 school buses* That is  an item. They don’ t  belong 

to the school d is tr ic t  whore that school i s 5 They belong to  

the people o f the county*

x point out to the Court there are property situations 

there with which our Legislature must concern i t s e l f ,  and which 

i t  w ill concern itse lf*

In addition to the fact that th is amendment adopted

by the people has not only taken away the separate school label 

on that four m ills which was given generally to the schools, in

addition to the fa ct that i t  has al3o given the impoverished 

school d is tr ic ts  5 per cent higher lim itation on the right to 

vote bonds, since they raised the lim it to  10 per cent o f the 

taxable valuation, they have also set up and created by th is

new constitutional amendment a fund which is  supplied from the 

various items o f the state income, which are a l l  provided by 

the statute*

This amendment creates the state public common school

building equalization fund; and into that fund w ill flow moneys

from various state sources.



3h3

That its the third benefit which the new constixiufcional

amendment gives to the school sit- vat ion ,

That common school equalization fund w ill receive 

various public moneys from time to  time,, and the purpose and 

intent o f that third item in th is amendment to the Constitution 

is  to  give to impoverished d is tr ic ts  loans which w ill make up 

fo r  their needs fo r  buildings where they haven’ t  got the money 

"sjo pay fo r  them.

In other words3 we are trying to f i s  the f is c a l

picture.

The Chief Justice ; We w ill recess now*

(A recess was taken*)



A F T E R  R E C E S S 2 : 3 0  p „ m

The Chief Justice: Attorney General Williamsons

you may proceed*

ARGUMENT ON BEHALF OF THE STATE OF OKLAHOMA 

AS THE FRIEND OF THE COURT

BY MR. MAC Q. WILLIAMSON (Resumed)

Mr. Williamson: Mr. Chief Justice, Your Honors,

when the Court arose, I was speaking amorg other things about 

the features of the amendment which was adopted by the people.

I think I finished my explanation of the third feature which is  

a state fund for  assistance of impoverished d is tr ic ts .

There w ill be a burden thrown on some small rural 

d is tr ic ts  in this state because of the fact that colored c h i l ­

dren are in some cases transported by the buses manv miles and 

there may be the disposition of the rural school boards to cut 

out that charge and le t  these children go at home.

There w ill be a national sh ifting of the personnel of 

the minor population, school children population here and there 

and the basis on which that w ill be taken care of is  by upping of 

five  m ills of the debt lim it on bonds voted by the d is tr ic t .

That is  planned to take care of the need of some school 

d is tr ic ts  fo r  great public improvements, greater than they could 

pay for  under the old system.

Now actually there Is one d is tr ic t  for Instance in 

Oklahoma, that is  in Garter County.; that has 45 white children and



•spooqos

uxtrSe sappAOud. m x  epoxquv jo £ uoxqoas q^qq uspun qsnf

eqeuedes jo  aoueuoqupeui pus quomqspxqeqso aqq a o j jSxieuopq 

-nqxqsuoo sappAOud tuoqqoq eqq qe ©SenSuep pszpoppeqp sqq pue 

spooqos oppqnd jo  uiaqs/Is e jo  ooueusqupeu pus quowqspx 

-qeqss eqq a o j JCxreuopqnqpqsuoo suopspAOUd ssqeui e i  opopqav 

cc, uopqoeg f doq aqq qe qqSpa punoj sp qp l  ©3ed qv 

’ jopuq j?w up l  e3ed uo punoj oq XTPM qsqi,

'punoj oae spooqos oqeuedos oq sous 

-aojoa sqq pue oa3ou tuaoq eqq ?uopqnqpqsuoo ©qq up oaoqq sooepd 

aoqqo oMq uodn qeqq Moqs XIT-M J©puq -̂ ul oq oouojojsh

•spdood oqq oq poqqpuiqns sbm qopqw 

quourpuouie Apuo oqq sp uopqnqpqsuoo eutoqexqo ©qq J° 01 ©Iopqav jo  

6 uopqoos 'oanqounf spqq qe Supuq ouo Aes Rvm i  jp ‘‘ mom

°sspA©x uopqBSouSos

peuoxqnqpqsuoy ouojoqouoqq ano Rq poqeoao uooq peq qeqq uioxqoad 

peops/Cqd ©qq jo  oueo soqeq JCpxnj aoqqea uopqnqpqsuoo ©qq jo 

OP opopquv jo  6 uopqoog oq quowpuoiue mou sqq qupqq om

* BOJB

upoqq up srooqos oq o3 XITM 'soppui Rueiu poquodsueuq oae uoapxjqo 

osoqq jo oiuog *ouoqq uoxqexndad jo  qjpqs b ©q oq SupoS sp ©asqq 

pue .£qpxxqexeq sqp up psqpmpp pue esae sqp up psqpuipr Rj.sa sx qeqq 

qopuqspp ©qpqm e sp ousqj * sssnq anoj ©uios ©AEq Vvsqj,

•sapqunoo Supupofpe jo  spaed Rwsw tuoaj 

usapppqo psaopoo ©soqq Supuq vtoqq pue usapppqo pauopoo X05



b d3 and in other places in the Constitution that these separate 

schools shall be provided by legislature and impartially maintained 

and defines the terms of the children and then Section 11 of Ar­

t ic le  23 of the Oklahoma Constitution defines the words 

wherever used in the Constitution and statutes "colored" or "co lo r ­

ed ra ce .”

1 point out to the Court, lest there might be some con­

fusion that none of these sections were amended but that only 

the section with the big obstacle, the f is c a l  section 

without which we could not run schools.

It was thought proper at that time not to load the 

special election  ballot with four or fiv e  questions but to present 

to them the single sole question.

Will you be in favor of amending the Constitution of 

Oklahoma to provide for the untying of the separate school 

levy and for the elimination of the separate school levy 

from the state constitution?

That question was put d irectly  to the voters. Ko 

other questions. As I said to the Court a while ago 

it  was approved by a vote of three to one.

The legislature now, as I said is  in session.

The legislature proposes to implement this newly adopted 

Section 9 of A rticle 10.

It w ill implement i t ,  no doubt, in the next two or three

weeks.



107 ./ *• <

standing implement that i f  we had the decision of this Court in 

the meantime.

But i f  we have that so well and good. I f  we do not

have it

Justice Burton: Mr. Attorney General, have you

rendered any advice or opinion as to the status of these other 

three provisions?

Mr. Williamson: Mo, s ir . I f  your Honor please,

this matter has been pending continuously in lit iga tion  here. I 

w ill say to the Court that we have had a rule of long standing 

policy  in the Office of the Attorney General of Oklahoma 

where I have had the honor personally to preside for several 

years, we have a rule in that o ff ic e  to the e ffe c t  that we 

w ill not arrogate to ourselves the right to publish or 

prejudge a pending legal question and write an opinion of 

the Attorney General; s O ffice when ic  is  before some court.

We discuss informally with our state o ffice rs  and 

with those who are entitled to inquire, we discuss legal 

questions but we do not formalize opinions on them.

Justice Burton: Are there any proposals pending in the

Legislature for  the amendment of these provisions?

Mr. Williamson: Not at this time. The three I have

just mentioned.

bd.4 Of course, the legislature could with better under­

Ju stice  Burton: Yes



328

bd5 Mr. Williamson: Not at this time.

Justice Reed: No provision for  advisory opinions of the

Attorney General?

Mr. Williamson: Mo, there are not, Mr. Justice Reed.

No provisions. However, we freely  discuss the matters in for­

mally with anyone who cares to ask and is  entitled to ask.

Now, that brings me to the last and fina l remarks I should 

like to make to the Court. In Question No. 4, as propounded 

by this Court some several months ago, providing as i t  did 

for  (A) and (3 ), which have been alluded to by some, both 

lawyers and laymen, and without lev ity , is  the $64 question, 

while the immediate Impact of that question, as answered here in 

this lit iga tion  by this Court w ill not reach Oklahoma 

and many of the other so-called  segregation-practicing states, yet 

we fee l that i t  would be perhaps unfortunate and we fe e l that 

perhaps we should speak out against any proposed deadline now 

forthwith.

We fee l that we should speak out because of the 

impact potentially  which i t  may have on some of these 

segregation states in the future.

We fee l that we should speak out at this time upon the 

question of an e ffective  gradual adjustment, because we 

see in this h istoric  occasion before this Court, we see 

balanced here the rights of young colored minors who wisq to go 

to the school of their choice, and we see over as against that



329

bd6 a tremendous public interest where men and women, the

fathers of children, boys and g ir ls  are disturbed and are vexed 

and are apprehensive and we see them having the tremendous 

public interest themselves in this situation.

And in view of that, we believe earnestly that there 

might be a situation, perhaps not in these casespending now, but 

there might be a situation in the future sometime where something 

that the Court might say by way of laying down a deadline in 

these cases might be inferred to mean that there w ill be 

a deadline laid in a ll  cases, a prejudgment i f  you please 

that it  may amount to.

It might be twisted into that by somebody out 

.'yonder trying to interpret i t .

It i 3 our considered and earnest view that public 

o f f ic ia ls  as we are in Oklahoma trying to do our duty  ̂

trying to go along with a Governor who staked his personal 

and professional reputation with the people of our state 

on adopting this b i l l  - -  and that is  Answer 3 - -  school 

o f f ic e r s , state o ff ic e r s , a l l  over the segregating practicing 

states honestly and earnestly endeavoring to try to f i t  this 

thing together - -  we fe e l there might be a b it of a potential 

stigma on any disposition to give a man a deadline or especially  

where the courts are open and active and vigorous and no 

suspicion is cast on the tr ia l  courts as to their a b ility  to

take care of situations.



330

bd? It  seems to us of Oklahoma that nothing even in the 

remotest instance constituting any driving or lashing some 

public o f f ic ia l  toward a deadline should ever appear until 

and unless i t  appears in the record such o f f ic ia ls  are n eg li­

gent or malingering or not promptly attending to their duty.

Thank you.

The Chief Justice: Attorney General Williamson, we

thank you and your state for this expression of your* views.

Mr. Williamson: Thank you, Mr. Chief Justice.

The Chief Justice: Attorney General Ferdinand Sybert

of Maryland.

ARGUMENT ON BEHALF OF THE STATE OF MARYLAND

AS THE FRIEND OF THE COURT

BY ATTORNEY GENERAL C. FERDINAND SYBERT

Mr. Sybert: With your Honor’ s permission, on behalf

of the State of Maryland I desire to express to the Court my thanks 

for this opportunity to appear and assist in the resolution 

of these momentous questions. I ca ll  the Court's attention 

to the e ffe c t  that the Amicus Curiae b rie f f i le d  herein on 

behalf of Maryland was prepared and f i le d  by my predecessor in 

o f f ic e  Attorney General Edward Rollins whom I succeeded last 

December.

I adopt and subscribe to that brie f in its  entirety.

While Maryland was a slave state, they have always been

considerate of its  colored population. It  is  highly



331
bd8 sign ificant that at the beginning of the war between the 

states only cne-half of the negroes in Maryland were slaves 

and the rest were freedmen.

In its  Constitution of 186? Maryland provided for  the 

free education of both the white and colored races.

While It is true that i t  did provide by statute for 

separate schools, this was the accepted pattern of the day.

Our b rie f delineates and documents the progress that

has been made in the education of our colored population in

Maryland from 1867 to the present day.

That progress has rea lly  been remarkable. It  is  com­

pletely  true that at the time the Court’ s opinion was handed down 

in these cases last year Maryland’ s educational fa c i l i t ie s  were 

already equal though separate.

Equal in physical fact ancl not in theory only. I 

c ite  this situation to indicate the bona Tides of the sta te 's  

goodwill toward a l l  its  citizen s.

Maryland has of course for many years proceeded, 

like most of the nations, on the supposition that segregation in 

public education was not in violation  of the provisions of the 

14th Amendment so long as the fa c i l i t ie s  provided for  the 

races were substantially equal.

I do not intend to over-emphasize the d if f ic u lt ie s  

occasioned by the impact of this Honorable Court’ s opinion 

upon standard and established practices and traditions in



332

bd9 Maryland.

But I fe e l i t  would be a disservice to the Court to 

say that no d ifficu lties have been encountered or w ill a rise .

To be at a ll  helpful we must examine the situation 

factually  and re a lis t ic a lly . Shortly a fter the Court5s 

opinion in these cases last year., several parent-teacher 

association groups in a Southern Maryland county adopted what 

they identified  as the V/est River proclamation, a copy of which 

appears in the appendix to our b rie f at pages 62 and 63.

This manifesto in essence would prohibit any change 

in the existing educational pattern in Maryland, except by 

state law sanctioned by the people through referendum.

Another plan to circumvent this Court's decision 

was a petition  circulated by a group known as the Maryland 

Petition Committee and signed, I have been informed, by 

approximately 36,000 c itizen s.

The petition  called upon the Governor of the 

State to make provision for the establishment of a system of 

private schools for any groups which do not believe in 

integration* with freedom from school taxes for such citizens 

as might support those free schools.

The petition also affirmed the b e lie f of its  signers 

that the Constitution grants them the right to withdraw their 

children from the public schools i f  denied the above-mentioned 

privileges; for the Court's information, the Maryland Petition



333

bdlO Committee a fter a protracted d if f ic u lty  in attempting to find 

a sponsor fin a lly  obtained the introduction late in the 

recent session of the Maryland Legislature o f two b il ls  

designed to implement its  petition,,

When the legislature adjourned sine die last week the 

two b i l ls  died in the committee of the House in which they 

were introduced.

Maryland was one of the three states which refused 

to ra tify  the 14th Amendment in the l840s and which have not 

ra tified  it  since.

A b i l l  for  such ra tifica tion  was introduced in the 

recent session but died in committee.

Also the legislature made no changes in Maryland's 

segregation statutes although no b i l ls  were introduced toward 

that end.

The O ffice of the Attorney General of Maryland has 

received hundreds of le tters  since the opinion in these cases 

containing almost every conceivable suggestion as to methods 

of circumvention or implementation of the decision.

Many meetings of citizens have been held to the same

ends.

I w ill now relate an incident which occurred in 

Frederick County, Maryland. Frederick is  one of our 

northernmost com ities, bordering on the Mason-Dixon lin e .

It is  a highly conservative county and is  one of



334

b d li the richest farming counties in the nation. Its  colored 

population is  not quite 7 percent of the to ta l. Last fa l l  after 

the schools were opened, the county Board of Education gave or­

ders for three colored children to be placed on a white school 

bus in order to be saved, those three children would be 

saved a mile and a half longer r id e .

They would be le ft  o ff  at their own colored school.

The next morning a fter this ban was put into e ffe ct irate 

parents descended upon the County Eoard of Education and 

persuaded i t  to reverse i t s e l f  and put the colored children 

back on the colored bus.

Now i f  Your Honors please, le t us inspect some other 

things which have been happening in Maryland, both before and 

a fter the May 17 opinion.

The University of Maryland has been operating its  

graduate schools on a non-segregated basis for  a number of 

years. Very soon a fter the opinion was handed down in these 

cases last year, it s  Board o f Regents announced the ending of 

segregation in a l l  undergraduate departments as w ell, of course, 

as graduate departments and negroes were free ly  admitted last 

September.

The state has been spending approximately a quarter 

of a m illion dollars on ou t-of-state  scholarships annually 

for negroes who could not obtain in Maryland courses being 

taught at the University of Maryland but not theretofore



335

bdl2

Due to the complete desegregation of the University, 

the granting of any further scholarships of this nature have now 

been eliminated.

The state for many years has operated Morgan 

College, Morgan State College as an institu tion  of higher 

learning for negroes with a regular and summer enrollment of 

about 2300.

In recent years Morgan has admitted white students 

who desire to attend that institu tion . The number has been very 

small.

So much for the situation in Maryland with 

respect to higher education. In the City o f Baltimore, which 

contains almost one-half of Maryland's population, the public 

school authorities began the process of desegregation in 

September 1954, with elementary and high school students 

attending the schools of their choice, regardless of race*

Some early d if f ic u lt ie s  were encountered, such as picketing 

by some parents and absenteeism or, as sometimes termed, 

a strike of pupils.

Pupils marched in columns from one school to 

another, from two schools in the northern section of 

Baltimore they formed columns and marched possibly two miles 

down to the central part of the c ity  and marched on City

H all.

available to them.



bdl 3 The police struggled to maintain order. That 

situation existed, began on a Thursday, continued on Friday, 

over the week endu Colonel Ober, the Commissioner of Folice 

of Baltimore issued a statement that picketing of the 

schools was a violation  of the school4s laws and could not 

be tolerated.

The school authorities ir. Baltimore City also made 

public announcement that absenteeism was of course a violation  

of the compulsory attendance laws and would not be tolerated.

As a result of those statements, the children came 

back to school on Monday and I am informed by the Superintendent 

o f Schools of Baltimore City that no untoward incidents 

have taken place since,

I have been informed by a good many citizens that 

possible further trouble is  feared this coming September.

I might say that the process of integration in Baltimore has taken 

this shape: In Baltimore the students have been allowed to

go to the school of their choice, except I might say there are 

175 schools in the City of Baltimore - -  only 35 of those 

schools are d istricted  because of crowded conditions.

Other than in those 35 schools — some of those 

are colored, seme are white, any student is allowed to attend any 

school of his or her choice.

Justice Reed: How many schools do you have in

336

Baltimore?



337

bdl4

Justice Reed; He can go to any school he wants to?

Mr. Sybert; Any school except in 35 d istricted  

schools which are d istricted  simply because of overcrowded 

conditions, some white and some colored.

I might add that any pupil in the d is tr ic t  of a 

d istricted  school may go to any other undistricted school but no 

person, no child from outside the d is tr ic t  of a d istricted  

school might go to that school because it  is already overcrowded.

About 24 or 2500 negro pupils availed themselves of the 

right to go from former colored schools in Baltimore City to 

theretofore white schools.

Justice Burton; Has that optional e ffe c t  been 

in e ffect for  a long time?

Mr1, Sybert; Traditionally, right along. That 

optional situation has been in e f fe c t .

Justice Burton: I t  mean in substance you can choose

any school you want to provided that school is not already 

crowded?

Mr. Sybert: Yes, s ir . 24 or 2500 colox’ ed students

last September entered in schools theretofore white and a hand­

fu l of white students I believe I was told three or four, 

availed themselves of the right to go to colored schools 

which happened to be nearer than the schools they previously

Mr. Sybert; 175 schools in Baltimore.

a ttended.



338

bdl5

City - -

Justice Reed: I don't know i f  I fu lly  understand that.

The right to choice has existed for many years?

Mr. Sybert: The right to choice o f white students as

to white schools and colored students as to colored schools 

before September 1954 -~

Justice Reed: Then the statute forbidding

segregation was changed to allow them to go to any school?

Mr. Sybert. There wasn't any change in statute or 

ordinance. The school authorities in Baltimore City decided to 

desegregate and announced that policy  in the summer and in 

September - -

Justice Reed: It was carried out?

Mr. Sybert: - -  without regard to race from

September on.

Justice Clark: How many colored students are there in

Baltimore City?

Mr. Sybert: There are 57*000 colored students in Bal­

timore City and 87*000 white.

Justice Clark: And you say 2500 chose to go to another

school?

Mr. Sybert: 24 or 2500, approximately fiv e  percent.

A tota l school population of 144,000 in Baltimore City.

In the 23 counties of Maryland outside of Baltimore

There has been no integration or desegregation in the



bdl6 counties of Maryland up to the present time. In the -3 

counties of Maryland the situation is  extremely varied. Mary­

339

land has often been referred to as America in miniature„

We have the wooded mountainous Western section, three or 

four counties, the rich  grain area, upland central d istrict-, tnu 

alluvian plains of Southern Mary .Land and the Bustern shore ox

Maryland bisected by the Chesapeake Bay with its  seafood

industry.

state,

Baltimore City 

a great seaport„

I am bound to

in approximately

inform the Court

the center of the

4- V » i - the existing ways of

l i f e  and established patterns c f  thinking vary between the 

Inhabitants of those dieslmilar regions as much as does their 

habitat.

It  is  also true that great differences as to popula­

tion of schools and school attendance by races exists among the 

counties.

I d irect the Court*3 attention to Table B on page

of our b r ie f, 36 of the appendix which re fle cts  the numoer 

and percentage of white and. negro school population in the

counties.

That shows there are actually no negro children of 

school age in Garrett County. I might say the negro population

of Garrett County, the mountainous most westerly county is

nine, but none o f them are of school age.



340

bdl7 In Southern Maryland Calvert County has a colored 

school population of sligh tly  over 50 percent.

The other counties range in between. A few^five, s ix , 

seven percent and from there 16, 20, 30» 40 and so on, 

up to  50 percent in Calvert County In Southern Maryland.

Yet In every county except Garrett, of course, where 

the occasional colored child went to the white schools because 

there are seldom more than one or two colored children of school 

age, there being only one or two colored fam ilies that ordinarily 

liv e  in that county; a l l  the other counties have established 

and maintained since 1870 separate fa c i l i t ie s .

In the last 30 years Maryland lias undertaken a program 

of bringing the colored fa c i l i t ie s  equal with the white.

And for some years the fa c i l i t ie s  in the separated 

colored schools have actually physically and in a ll  other 

respects been equal with those of the white schools.

Within a few days a fter this Court9s opinion of May 

17 the Maryland State Board of Education issued a statement 

appearing at Appendix Page 17, pointing out that the problems 

involved in any program of integration would vary among the 

d ifferent school systems of the state but expressing confidence 

that they w ill be solved in fa ir , decent and legal manner and 

with good common sense.

The Board also stated that until the decree of this 

Court should be handed down any detailed plan of action for
.  . • -  * . . . . . .  -  v  f • .. 13. Vu fc>-- >• •• ~ L • ». *• " 1 ■



341

odl8 the State Board and the loca l school authorities should not 

delay in analyzing the situation and making plans for imple­

menting the decision of the Court.

Thereupon the Superintendents o f a ll  the school 

systems of the county, some 23 county schccL systems, 

appointed a committee to determine just what were the facts 

of the whole situation , the loca l situations, also to make 

recommendations as to p o lic ies  to be adopted by the loca l 

systems and to suggest answers to the two questions propounded 

by this honorable Court.

The report of th i3 committee o f superintendents 

begins at page 1 of our appendix. It  is  exhaustive and 

illuminating. Its  conclusions may fa ir ly  be said to represent 

the consensus of mature opinion of the counties of Maryland,

Its suggestions as to the answers to the questions here 

being discussed have been adopted by the Maryland Board 

of Education and by the Attorney General of Maryland.

The committee summarized its  recommendations in part as 

follow s — and this is  found on page 16 of the appendix.

In summary the committee advocates a policy  o f gradual 

adjustment and remanding of responsib ility  fo r  implementing the 

decree to the loca l school authorities.

Legal opinion would seem to indicate that the issues 

to be treated in moving from segregation to desegregation are 

not within the venal experience of the judiciary.



342

bdl9 The state and loca l agencies which have been 

established to cope with such problems should be afforded the 

f ir s t  opportunity to work out on a b iracia l basis the pro­

cedures for meeting the new principles of law as contained in 

the Courtcs decision of May 17*

Our adherence to this position  is  based on our desire 

to build at the loca l level in our respective counties a climate 

o f goodwill between a l l  parties concerned.

This climate is  necessary to undergird the program 

of action which is  necessary to carry out the program of the 

Court.

We recommend to the several counties formation of

c it iz e n cs committees appointed by the loca l board and consisting 

of representatives of both races who w ill consult with the local 

educational authorities on the steps to be taken in each county, 

the program of desegregation and the setting up of safeguards for 

the protection of the rights of a ll  children, and so on.

I respectfu lly  commend to the Court's attention the whole 

report of the committee of superintendents which as I have just 

said represents the mature thinking of the school authorities on 

that and most of the other thoughtful c itizen s .

Justice Reed. Did they make any recommendations as to 

the steps to be taken?

Mr. Sybert: No, their report indicates that a

process of education, getting together of the races through their



343

bd20 parent-teachers5 associations, by racia l meetings, being

f ir s t  set up to discuss ways and means.

They have not gotten as far as discussing sp ecific

plans.

Therefore Maryland8s position —

Justice Frankfurter: Their theory is  that the

sp ecific  plan w ill derive out of an active and aggressive a t t i ­

tude of the state in carrying out this decree; is that a fa ir  

statement?

Mr. Sybert; I think so.

Maryland therefore sp e c ifica lly  recommends to this 

Court that the questions propounded should be resolved in 

favor of an affirm ative answer to Question 4(b) and an affirmative 

answer to Question 5 (d ), that is  f i r s t  that this Court may and 

should in the exercise of i t s  equity powers so frame it s  decree 

as to e ffe c t  an e ffective  gradual adjustment be brought about 

from existing segregated systems in public education 

to systemsnot based on color d istinction .

On that point that :1s the position taken in the hr i f  

of my predecessor. To my mind the same end would be attained 

i f  th is Court, in considering these cases involving sp ecific  

persons who have sued, would simply remand the cases to the lower 

courts fo r  such further action in the light of the opinion in 

this case as should appear to be necessary.

Second that the cases be remanded without sp ecific



344

bd21 should be determined by the courts of f i r s t  Instance 

In the light of local conditions as they may be found to 

e x is t ,

We respectfu lly  submit that the 90-ciay period 

suggested by the Government wlhin the lower courts should order 

loca l authorities to present their plans for ending segregation 

as soon as feasib le  would make fo r  makeshift and abortive planning.

The Baltimore Evening Sun gave it s  answer to this 

question in an ed itoria l on November 26, 1954,

I quote, "From the evidence presented so far by 

the individual states, the plan is  going to take time 

i f  done on a community by community basis. School authorities 

have expressed a need for fu l l  talks with a ll  interested parties 

so that each commun% w ill know exactly what the plans are. I f  

th is attempt to get community understanding and cooperation is  made, 

more than 90 days w ill be required for  the planning stage.”

The Chief Justice: Do you fe e l ,  General, that the

D istrict Court is  entitled  to any guidance as a matter o f help 

to them in supervising these cases?

Mr. Sybert: I f  your Honors please, I rea lly  don't 

think that is  necessary. I think the fact that this decision 

has been handed down in most instances is  going to lead to 

the gradual and ultimate adoption of the principles there 

la id  down.

In my state we are fortunate enough not to have any



345

pending lit ig a tion  w38i respect to schools.

The general consensus is  that as this plan can be 

worked out, gradually,ultimately non-segregation w ill be 

achieved.

We fee l that the 90-day period ~~

Justice Frankfurter: Do I in fer from what you just

said that you think no lit ig a tion  w ill arise at a l l .  There is  

no problem so far as Maryland is  concerned about any action 

by a D istrict Court?

Mr. sybert: That depends upon the degree of fo r ­

bearance, the degree o f in telligence with which both races 

approach this problem.

There is no question about i t ,  we have a severe 

problem in some counties in Maryland.

I f  the members of the colored race find that honest, 

in te lligen t steps to work out a desegregated school system are bein 

pursued, I think the great majority of them w ill bear the 

immediate f i l in g  o f su its.

Justice Frankfurter: None has been f i le d , I suppose?

Mr. Sybert: Not in recent years.

Justice Frankfurter: I mean since last May, for

instance?

Mr. Sybert: I did not understand.

Justice Frankfurter: Since these litiga tion s?

Mr. Sybert: None has been f i le d .

fO



346

DCi23 Justice Frankfurter: On this school board were there

members o f the colored race, were there colored members on this 

school board?

Mr. Sybert: The State Board of Education has one

colored member.

Justice Frankfurter: The State Beard?

Mr. Sybert: The Baltimore City Board of Education has

one. Three or four counties In the State have colored members on 

the school beard.

Justice Frankfurter: I notice you pointwith pride

with ju stifia b le  pride, as I understand, as to the number of 

colored teachers in Maryland schools compaiei with — I think i t  is  

always invidious to make comparisons with other places —

Mr. Sybert: Page 10.

Justice Frankfurter: Are there any colored teachers in

non-segregated colored schools?

Mr. Sybert: No, your Honor.

Justice Frankfurter: Do the colored teachers absorb

the personnel requirement of teaching in the colored schools?

Mr. Sybert: Yes, Our' qualifications have been

exactly the same for  years - -

Justice Frankfurter: No, I mean are there exclusively

colored teachers in the colored schools?

Mr. Sybert: Exclusively colored teachers and in

the white schools exclusively white teachers



34?

bd24 Ju stice  Frankfurter: Is  that a re q u is ite  o f law or

p ra ct ice ?

Mr. Sybert: Our C onstitu tion  provides fo r  a

fre e  system o f education; our sta tu tes requ ire segregated 

s ch o o ls .

Ju stice  Frankfurter: Does i t  requ ire  segregation  of

teachers or has i t  ju s t  vjorked out that way?

Mr. Sybert: That has worked out that way. Our s ta ­

tu te  simply requ ires the se tt in g  up and maintenance o f  separate 

sch oo ls , The law does provide fo r  co lored  normal schools  and 

white normal s ch o o ls .

Ju stice  Reed: I understand that on the State Board

o f Education there is  one member who is  a negro?

Mr. Sybert: One member o f  the State Board o f Educa­

t io n , that is  true, s i r .  As I sa id , not only th at, but a 

co lored  member o f  the Baltimore C ity School Board o f Education, 

we have had them in three or four cou n ties . We have had 

co lored  policemen in  Baltim ore C ity  fo r  years; co lored  firemen 

fo r  the la s t  three or four years.

Ju stice  Reed: Did that member p a rtic ip a te  in  that

report?

Mr. Sybert: There wash it a co lored  member on the

Committee o f Superintendents because we d o n 't  have a co lored  

Superintendent in  the s ta te . We have 24; one in  Baltimore C ity  and 

one in  each cf the 23 cou n ties .



348

I might say that I am convinced that I am 

co rre ct  when I say that thoughtful leaders o f  both 

races in Maryland b e lie v e  that we should make haste s lo w ly . 

They fe e l  that coercion  and fo rce  can only load to  trouble  in 

Maryland.

They b e liev e  that they themselves and lo ca l au th ori­

t ie s  can work the s itu a tion  out now that the Court has 

enunciated the p r in c ip le  in  a calm law ful manner and within a 

reasonable time.

Unless there are fu rth er quest_ons that concludes my

q v s f  r$rr\ ■5-

Thank you very much.

The Chief J u stice : Thank you very much. General,

fo r  your cooperation .

Attorney General Shepperd o f Texas.

ARGUMENT ON BEHALF OF THE STATE OF TEXAS 

AS THE FRIEND OF THE COURT

BY ATTORNEY GENERAL JOHN BEN SHEPPERD

Mr. Shepperd: May i t  p lease the Court, the purpose

o f  the State o f  Texas in appearing as an amicus curiae in these 

cases i s  to  bring more fu l ly  to  the a tten tion  o f the Court 

the problems with which we w il l  u ltim ately  be faced  as a 

re su lt  o f  the d ec is ion  o f la s t  May l '7. I sh a ll d iscuss the 

background o f the segregated system in  Texas together with the 

fa c tu a l information as to  the varying, degrees in  which d iffe re n t



349

bd26 areas o f  the sta te  sh a ll be a ffe c te d .

My a s s is ta n t, Mr. Waldrep w il l  continue our d iscu s ­

sion  with observations r e la t iv e  to  the question propounded by 

the Court.

In order to  determine the problems with which the 

Texas Public School System is  con fronted , our o f f i c e  has ma.de 

a s in cere  e f f o r t  to  obtain  a co rre ct  c ro ss -se c t io n  o f  views o f  

the people o f  our s ta te .

Surveys were ma.de o f  e d ito rs , le g is la to r s  and others 

with a knowledge o f  the su b ject matter under con sid era tion .

Public opin ion  was sampled and composite views o f  groups 

o f negro and white e d ito rs , c iv ic  lead ers, school adm in istrators, 

parents and many others were obtained.

We sh a ll attempt to  present the Texas p ictu re  as 

r e fle c te d  from th is  research .

Expressive o f the general a ttitu d e  o f  our people is  

a statew ide survey conducted by the Texas people on September 

12 l a s t . I t  was ind icated  in that p o ll  that 71 percent o f  

our people are d e f in it e ly  opposed to  the d e c is io n .

Seven percent are in  favor o f  putting the Court4s ru lin g  

in to  e f f e c t  immediately. 23 percent b e liev e  plans should be 

made to  bring the races together in  the schools w ithin the next 

few years, and 65 percent p re fer  continued segregation .

A l i t t l e  p o ll  made pub lic  on A pril 6 o f  th is  year 

revealed that 45 percent o f the c ro ss -se c t io n  interviewed



350

bd27 expressed determ ination to circumvent desegregation e ith er  by

disobeying the law or by evading the law through lega l channels.

35 percent favored gradual mixing o f the races and only 

14 percent wanted to  obey the law to the le t t e r .

The p o ll  ind icated  that there would be le ss  res istan ce  to  

a plan o f  gradual in tegra tion .

Ju stice  Frankfurter: Am I r ig h t?  Am I r ig h t in

understanding that 35 were fo r  gradual in tegra tion  and 14 fo r  

immediate compliance?

Mr. Shepperd:. Yes, s i r .

Ju stice  Frankfurter: That means about 50 percent

or 49 percent c lo se  to  50 percent - -

Mr. Shepperd: T think there were four d iffe r e n t  ques­

tion s  asked, Mr. Ju stice  Frankfurter.

Ju stice  Frankfurter: On th is  la s t  fig u re  you gave I

gathered from the figu res  in  the State o f  Texas 50 percent have 

in d ica ted  th e ir  readiness to  carry out sooner or la te r  the 

d ec is ion  o f th is  Court, i s  that r igh t?

Mr. Shepperd: 35 percent.

Ju stice  Frankfurter: Gradually and 14 percent

immediately?

Mr. Shepperd: 35 percent answered the question  as to

whether o r  not there should be immediate in tegration  as opposed to 

gradual mixing o f the races.

Ju stice  Frankfurter: 35 percent said  they would oe fo r



351
bd28

Mr. Shepperd: Yes.

J u stice  Frankfurter: 14 fo r  immediate?

Mr. Shepperd: Yes.

Ju stice  Frankfurter: Sc h a lf in  your sta te  - -  any

v a lid ity  that p o ll  may have about which I am very sk ep tica l —

Mr. Shepperd: I might poin t out that th is  p o ll  

p red icted  the r e -e le c t io n  o f Mr. Truman in J 4-8. That has been 

p retty  accurate as fa r  as the sta te  - -  I would be ashamed i f  

i t  were not more gen era lly  rated .

Ju stice  Frankfurter: That makes i t  s c ie n t i f i c ?

Mr. Shepperd: The four questions propounded by the

Court dea lt with immediate in tegra tion  and gradual in tegration  

and some o f the same people answered a l l  four questions.

Of the Texas Negroes interview ed only 32 percent 

favored immediate desegregation . 30 percent approved 

gradual mixing o f the races and 26 percent wanted to 

continue separate school f a c i l i t i e s  fo r  negroes and w hites.

The Chief J u stice : What does that represent, General^

these la s t  fig u re s  you ju st gave us?

Mr. Shepperd: I t  represents the Texas Negroes in te r ­

viewed, Mr. Chief J u stice .

The Chief J u stice : Those fig u res  are d iffe r e n t  from

the f i r s t  ones you gave us?

Mr. Shepperd: Yes, s i r .

gradual?



bd29 I t  is  in  the same p o l l ,  but th is  i s  the negroes 

that were interview ed in th is  p o l l .

The Chief J u stice : I see . I did not understand th at.

Mr. Shepperd: Of th is  la t t e r  number about h a lf or 12

percent o f the to ta l  number o f negroes p o lled  were determined 

to  prevent in tegra tion  even i f  that meant disobeying the law.

67 percent o f  the negroes, 70 percent o f  the Latin American 

whites and 85 percent o f  other whites interview ed pred icted  trcu b le  

between White and Negro parents in  the event o f  desegregation .

Three out o f 10 expected seriou s trou b le . Seven 

out o f  ten pred icted  more than a l i t t l e  trou ble  and only 15 percent 

o f  a l l  races were op tim istic  enough to  expect a minimum.

Prom i t s  Inception  the Texas Public School System has 

been operated and maintained on a segregated b a s is .

That has ex is ted  fo r  more than 80 years under the authority  

o f  Section  7 o f  A r t ic le  7 o f  our Texas C onstitu tion  o f

1876.

This p rov ision  requires that the State maintain 

separate schools fo r  white and co lored  ch ildren  with im partial 

p rov ision s f o r  both.

This con stitu tion a l au th ority  was a d ire c t  and 

continuing re su lt  o f  the expressed w il l  o f  the people o f  

our s ta te .

This d octrin e  o f separate and equal schools was

not the resu lt  o f  o f f i c i a l  or governmental p re ju d ice  or a d es ire

352



353

bd30 to  d iscrim inate against e ith er  race nor caused by any hatred 

or fe e l in g  o f  su p e r io r ity .

The truth  is  that the purpose o f  the system is  to  

fu rn ish  equal op p ortu n ities , p r iv ile g e s  and serv ices  fo r  

the ch ildren  o f the two races and at the same time to preserve 

the peace and harmony and pub lic  support o f  the public 

school system.

In certa in  l o c a l i t i e s  i t  would have been im possible 

to  maintain peace . order and harmony among the people and 

to  have the taxpayers' support fo r  the p u b lic  school system i f  

those people were forced  to  mingle together against the w il l  

o f  the m a jority .

This was a v a lid  ex erc ise  o f  the p o lic e  power o f 

the s ta te . The argument that the sta tes  have been v io la t in g  

the C onstitu tion  by maintaining separate and equal school 

systems is  without foundation .

On the contrary they have been a ctin g  in accordance 

with numerous precedents o f  h is and other c o u r ts .

With th is  background we now consider the geographical 

p ictu re  in  Texas which poin ts up the need fo r  a decree which 

w il l  preserve the adm inistration  o f  our educational system in 

lo c a l  school boards.

According to  the Federal census o f  19305 the State 

o f  Texas has a to t a l  population o f 7^701.19^} o f which 

977j^58 or 12.7 percent is  co lored .



bd31 Of the 1,736,918 persons o f school age enumerated 

in  our school s ch o la s t ic  census o f la s t  year, 13 percent or a 

to ta l  o f  230,546 are co lored .

Texas has 254 cou n ties , But on e-h a lf the co lored  

school ch ildren  o f  the sta te  l iv e  in on ly 4n counties o f  the 

eastern section  o f  the s ta te . About 90 percent o f  a l l  the 

co lored  s ch o la s t ic s  o f  Texas reside  in the 83 counties comprising 

the eastern th ird  o f the s ta te . The remaining ten percent o f  our 

co lored  school ch ildren  are scattered  throughout 125 cen tra l and 

western cou n ties , thus the proportionate co lored  population o f 

Texas counties vary 3harply with f iv e  eastern  counties having 

co lored  school ch ildren  in the m ajority  and 41 western counties 

having not a s in g le  co lored  school c h ild .

R eferring b r ie f ly  to  our appendix No. 1 , i t  w il l  be 

seen that the co lored  population drops sharply as we move from the 

eastern  boundary o f our s ta te  to the western boundary.

In those counties designated In red , 50 percent or 

more are co lo re d . In those In blue 40 percent or more. Those 

designated by the dashed mark, many along the Louisiana lin e  and 

in the cen tra l eastern part o f  the s ta te , 30 percent or more 

are co lo red .

Those In green, 20 percent or more. Those in  pink,

10 percent or more. Pur p le , f iv e  percent or more.

The diagonal green, one percent or more and those ir.

354

white le ss  than on e-h a lf o f  one percent or no co lored  population



355

bd32

Talcing our next e x h ib it , which covers the s ch o la s t ic  

population  o f  Texas, you w il l  n o tice  dep icted  in brown in the eas­

tern  4-5 counties o f  our s ta te  50 percent o f  the negro s ch o la s t ic  

popu lation .

In the next 43 cou n ties , an a d d ition a l 40 percent o f  our 

negro s ch o la s t ic  population  or a l in e  drawn on the eastern 

th ird  o f our sta te  roughly from Sherman, Texas to  include Dallas 

and Fort Worth, Waco, Austin and San Antonio and back to  the 

Gulf o f  Mexico to  Jackson County or Edna, Texas, we fin d  the 

to ta l  o f  90 percent o f our negro co lored  population .

The re s t  o f  the sta te  com prising the vast area o f western 

and southern Texas and the Panhandle o f Texas has a ctu a lly  le ss  

negro s ch o la s t ic s  in  that than does Harris County in  which 

Houston is  located  and when we look at Harris County we fin d  

that a c tu a lly  only 17 percent o f  the s ch o la s t ic s  in  that 

county are co lo red .

Thus i t  i s  obvious that the question  o f separate and 

integrated  schools is  as vast and as varied  as Texas terra in  and 

population and the varied s itu a tion  that e x is ts  in  these 

communities cannot be treated  under a s in g le  blanket p o lic y .

They must be considered as they e x is t  in  lo c a l  school d is t r i c t s .

Thi3 idea has been manifested in  p r io r  consideration  

o f  the su b ject matter made by our e d ito rs  and our Texas Commis­

sion er o f  Higher Education, Dr. Edgar who stated  in  June o f

at all.



356

bd33 la s t  year, "Texas has 2,000 problems as a resu lt  o f  the Supreme 

Court6s d e c is io n . We have 2,000 school d is t r i c t s  and they 

vary from t o t a l ly  white to t o t a l ly  negro. The f in a l  

decree o f  the Court ought to  be to  permit continued management 

o f  lo ca l d is t r i c t s  by lo c a l  boards. Schools must be run on a 

community b a s is . They cannot be run su cce ss fu lly  from Washington 

or even from Austin, Experience in  separating ch ildren  on a 

language basis  has proved to  us that where the r e s p o n s ib il ity  is  put 

on the lo c a l  community, they work honestly  to reso lve  

d if fe r e n c e s .

"Anything which schools  do e f f e c t iv e ly  must be 

done with pub lic  support. We don; t  care to  t e l l  others how to  

run th e ir  sch oo ls . But we ce r ta in ly  b e liev e  that our 2,000 

problems can be resolved  best i f  the Supreme Court leaves 

con tro l in lo c a l  d i s t r i c t s , "

That is  a quote from Dr. Edgar, the Commissioner c f  

Education o f Texas,

Of the 213 counties l is t in g  negro s ch o la s t ic s  lf-6 

counties o f fe r  a complete negro high sch oo l. 21 counties o f fe r  

some negro high school but not 12 grades. 36 counties o f fe r  only

negro elementary school and 10 counties operate no schools fo r  

co lored  ch ild ren . However, these counties have ten or fewer 

negro s ch o la s t ic s  and the Texas school laws requires that a d is t r i c t  

must have an average d a ily  attendance o f a t lea st 15 pupils 

authorized to  maintain any type o f  school financed by sta te



357
bd34

This lav/ applies whether the pupils are white or c o l ­

ored. Negro scholastics in those counties not having a 

complete 12 grades are transported at state expense to other 

schools.

Texas provides public education for every colored pupil 

on an equal basis with the white people.

Texas in 1953-5^ had 1953 active school d is tr ic ts ; 

o f these d is tr ic ts  292 offered a fu l l  12-grade school for both 

white and negro.

125 d is tr ic ts  maintained a negro school but did not have 

a white school. A to ta l of 956 districts provide some colored 

schools. The d is tr ic ts  that did not maintain a white or 

colored school were in areas that did rot contain the requisite 

number of white or colored scholastics. So we see that the 

Texas educational system is  predicated upon loca l s e l f -  

governing school d is tr ic ts . They have fu l l  authority to adminis­

ter the school system. Basic and h istoric  concept of the public 

free  schools is  based upon the Democratic and salutory privilege 

o f loca l self-government.

The schools of Texas are operated-, maintained and 

controlled by loca l school boards ma.de up of men and women 

elected by their neighbors.

There are 911 of these school trustees in the state.

Each one fe llo w  c it iz e n s .  Each one fa m ilia r  with

laws.



358

bd35 th e ir  problems, temperament and economic cond itions o f  h is 

l o c a l i t y .  C itizen s may reso lv e  th e ir  com plaints or e f f e c t  

s ch o la s t ic  d is t r i c t  p o l ic ie s  qu ick ly , fa ce  to  face  

with the men and women who are respon sib le  fo r  then.

Ju stice  fo r  parent, c h ild , teacher and adm inistrator 

a lik e  is  o f the grea test importance , on ly  a short d istance 

across a town or down a farm to  market road - -  i t  is  lo c a l .

Expenses o f these school d is t r i c t s  are paid 

through lo c a l  taxation  voted by the taxpayer o f  the D is tr ic t  and 

complemented by the le g is la tu re  under an automatic system o f 

finance ca lle d  the minimum foundation program.

C apital expenditures are made through bond issues 

voted by the taxpayers o f  the d i s t r i c t .

A ll personnel o f  the schools with the exception  o f  the 

e le cted  o f f i c i a l s  are employed by lo c a l  o f f i c e r s  and work under* 

th e ir  su perv ision .

Considering the a ttitu d es  o f  the Texas c it iz e n s ,  

the structure o f  the Texas school system, the v a rie ty  o f lo c a l  

situations, the urgency o f  saving and increasin g  f a c i l i t i e s ,  

and the n ecess ity  o f maintaining peace and order, i t  is  c lea r  

that any attempt to  e f f e c t  immediate or too  sudden mixture of 

white and co lored  p u p ils ,e s p e c ia lly  i f  made by an authority  

ou tside  the ind iv idua l school d is t r ic t ,  would be rash, 

imprudent and u n r e a lis t ic .

Texas w il lTexas loves i t s  negro people and



359

bd36 so lv e  th e ir  problems in  i t s  own way. During the past decade 

in  p a rticu la r  g iga n tic  s tr id es  have been made in human 

understanding* in ra is in g  the standards o f education and in 

e levatin g  the le v e l o f education among our c it iz e n s .  We 

are proud o f our school system and we make no apolog ies fo r  i t .

We have worked exhaustively  to  make i t  a good one.

We are proud o f the $*000 men and women who serve on our- school 

boards without pay.

We are proud o f the management and the fa c t  that they 

have been ab le  to  ra ise  the standards o f  our s c h o o ls . We see 

no reason to su b ject our economy* our tra d ition s*  our sta te  o f  

s o c ia l  harmony or our ch ildren  to the shock o f fo rced  or too  rapid 

in tegra tion  be fore  the pu b lic  conscience is  prepared to accept 

i t .

We see no reason to  pluck lo ca l a f fa ir s  out o f  lo ca l

hands.

The question i s  more basic than laws and system s„ This 

touches the deepest roo ts  o f  human emotion. I t  touches mothers 

and fa th ers and ch ildren  in an area o f  deep s e n s it iv ity .

I t  comes dangerously c lo se  to  in terferen ce  in the 

sacred in v io la b le  re la tion sh ip  between parent and ch ild  and

the r ig h t o f  parents to  bring up tjrieir ch ildren  in  th e ir  own 

customs and b e l i e f s ,

Texas does not come here today to  argue the cause o f

other sta tes  because i t s  s itu a tion  is  unique.



360

bd37 I t  argues only that in  Texas a man-made cataclysm 

must be made slow ly and with wisdom. Our argument may be 

summed up in 8 words, the s im p lic ity  o f  which I b e liev e  

th is  Honorable Court w ill  ap p recia te .

I t  is  our problem, le t  us so lve  i t .  Even as I ta lk  

here th is  afternoon  my fe llo w  Texans are working with d ilig en ce  

and prayer and with consciousness before  God to  bring en ligh ten ­

ment, with understanding and w ellbeing to  a l l  our people.

Were they a liv e  the framers o f  our C onstitution  would 

not ask more.

The Chief J u stice : General, have any steps been taken

at a l l  to  bring about desegregation?

Mr. Shepperd: No, s i r ,  they have n ot. The only

sta te  a c t io n , Mr. Chief J u stice , that was taken is  an action  by 

the State Board o f Education sh ortly  a fte r  the May 17th decree 

s ta tin g  that in  th e ir  opinion i t  did not apply at th is  time to  

Texas and during the present school year that we are 

in  now that segregation  would continue to  be p ra cticed . Our 

le g is la tu re  has been in session  since January 7 and they 

have taken no action  and there are no b i l l s  pending before 

them.

The Chief J u stice : You say you an tic ip a ted  d i f f i c u l ­

t ie s  in  some parts o f your s ta te  but I  n o tice  over in  the West 

and in  the North and even down in the South, that there are a

great many counties that have from two-tenths o f one percent up to



361

bd38 one percent, would you a n tic ip a te  any rea l d i f f i c u l t y  in in te ­

grating  those sch oo ls .

Mr, Shepperdi I d on 't  b e liev e  that there would be any 

seriou s trou ble  in  in tegra tin g  those sch oo ls . I t  would 

depend upon the method in which i t  i s  presented to  them.

Texans are kind o f l ik e  C a lifo rn ia , they are a rugged 

breed o f in d iv id u a lis ts  and without any d isresp ect at a l l  to  the 

Court Intended, I think i f  th is  thing is  approached on 

a partnership basis rather than being to ld  what to  do that 

we are a l l  going to  get along b e tte r  and I b e lieve  that is  

what the Court had in  mind when they propounded these 

q u estion s .

As Mr. J u stice  Black pointed out in h is question 

e a r l ie r ,  in  the cases before  you the questions propounded in 

a l l  p ro b a b ility  would not be necessary.

The Chief J u stice : The only poin t I  make is  th is .

You. an tic ip a ted  there would be some d i f f i c u l t i e s  in  some parts 

o f  the s ta te . What p ro b a b ility  do you b e liev e  there would be o f  

having in tegra tion  very qu ick ly  le t  us say, in these places 

where there are le s s  than one percent or one percent, 

two percent, three percent, something l ik e  th at, what is  your 

prognosis there?

Mr. Shepperd: I think that there are some o f those

p a rticu la r  counties in  some o f those p a rticu la r  d is t r i c t s  that 

would lik e  in teg ra tion . I t  would be more econom ically fe a s ib le



362

bd49 f o r  them to  in tegra te .

The Chief J u stice ; That i s  the on ly reason. I say

that is  the only reason they would do i t ?

Mr. Shepperd; That is  the only reason I have heard 

advanced. As fa r  as d i f f i c u l t i e s  are concerned, I  would 

h es ita te  to  speak fo r  my brethren from West Texas because 

they too get a l i t t l e  rugged in sp ots .

We might fin d  in many o f  those counties ju st as 

much fe e lin g  as we would in  east Texas cou n ties .

The Chief J u stice ; Thank you.

Mr. Shepperd: Thank you, s i r .

The Chief J u stice ; Mr. Waldrep.

ARGUMENT ON BEHALF OF THE STATE OF TEXAS 

AS THE FRIEND OF THE COURT 

BY: MR,. BURNELL WALDREP

Mr. Waldrep: Mr. Chief Ju stice  Warren, may i t  p lease

the Court. With every new change in our school system, 

we have many problems. The Texas Public School System is  no 

exception  to  th is  ru le .

Inasmuch as these are c la ss  action s  before  th is  

honorable Court and because o f the great v a rie ty  o f lo c a l  

con d ition s which e x is t ,  th is  Court has stated  that the 

decrees in these cases w il l  present problems o f considerable 

com plexity.

with regardTherefore the cases tc th is  were restored



363

bd5040 to  the docket and a l l  o f  those sta tes  now requ irin g  segregation  

in  pub lic  education have been perm itted to  appear and present 

argument wfth referen ce  to questions fou r and l i v e .

While we are not before  th is  Court as a party l i t ig a n t ,  

Texas does appreciate th is  opportunity o f  presenting argument 

r e la t iv e  to  these com plexities re ferred  to  by the Court as they 

r e la te  to  the State o f Texas and p a r ticu la r ly  to  our public 

school system.

The educational system in Texas stems from a 

C on stitu tion a l mandate to  the e f fe c t  that i t  sh a ll be the 

duty o f  the le g is la tu re  to  e sta b lish  and make p rov is ion s , 

the support and maintenance o f an e f f i c i e n t  system o f 

p u b lic  fre e  sch oo ls .

In keeping with th is  educational p o licy  there was 

a lso  a co n stitu tio n a l mandate in Section  7 o f  A r t ic le  7 o f  the 

C onstitu tion  o f our sta te  to  the e f fe c t  that the races should be 

separated in the p u b lic  sch oo ls .

This con d ition  has ex is ted  fo r  more than approximately 

60 years and in the remarks o f General Shepperd i t  was shown 

that thes.e problems that are p ecu lia r  to  Texas appear prim arily  

in  the northern quadrant o f  the sta te  o f  Texas.

For that reason we fe e l that no single equitable 

general decree could be formulated for  the entire state of 

Texas because the establishmert of an integrated, system is  not a 

problem which would apply equally  to West or South Texas where



364

bd4l there is only a small percentage of the population and to 

Northeast Texas where the concentration of the negro population 

is  the heaviest.

In keeping with the pronouncement o f tds Court that 

education is  perhaps the most important function  o f our State 

Government Texas has worked d il ig e n t ly to  improve i t s  school 

f a c i l i t i e s .

Not many years ago we estab lish ed  what is  known as 

a Minimum Foundation School Program which provided that 

a l l  p oss ib le  con tro l and r e s p o n s ib ility  be l e f t  to  the school 

adm inistrators and lo c a l  school boards to  meet the needs o f  

the ch ildren  in  the various school d is t r i c t s  within our s ta te .

This program guaranteed to every school age ch ild  

w ithin the borders o f  our sta te  regard less o f  h is or her 

ra ce , creed or c o lo r ,  economic status or h is p lace o f  residence 

at le a s t  a minimum o f  a f u l l  nine months schoolin g  each year,

This program has been in  e f f e c t  fo r  f iv e  years and as a 

re su lt  the average d a ily  attendance o f school-aged  ch ildren  

has r isen  from 77-3 percent in  1900-1949 to  80.5 percent during 

1953“ 1954.

79»3-- percent o f  the negro sch ool-age  ch ildren  were 

in  average d a ily  attendance in  1953-1954.

Now th is  program which is  In operation  in  our sta te  

provides a system o f fin an cin g  which guarantees to  the lo c a l

school d is t r i c t  ‘chat s ta te  funds w il l  be a v a ila b le  to  pay the



365

bd42 co s t  o f  a minimum school program when lo c a l  funds are 

in  s u f f ic ie n t  amount. I f  a school program in the sta te  

superior to  the minimum requirements is  desired  by any p a rticu la r  

d i s t r i c t ,  i t  may be paid fo r  by the taxes voted and lev ied  and c o l ­

le cted  from the taxpayers w ithin that p a rticu la r  d i s t r i c t .

Most o f  our minimum program in  Texas revea ls from the 

p o lls  taken and the re su lts  o f that program that the teachers 

and the school adm inistrators sa la r ie s  have risen  from 

29th in the nation  to  16th .

97,1 percent o f  our teachers within our sta te  now 

have c o lle g e  degrees. And there are approxim ately 8,500 negro 

teachers and school adm inistrators in Texas.

By reason o f th is  emphasis which the sta te  has placed 

upon the Minimum Foundation School Program, we r e s p e c t fu lly  

submit that any decree o f  th is  Court should permit an e f fe c t iv e  

gradual adjustment toward In tegra tion .

And unquestionably the in tegra tion  o f  a p a rticu la r  

program within a d is t r i c t  should be l e f t  to  the lo c a l  school 

d i s t r i c t s .

Inasmuch as our educational program is  predicated  upon 

lo c a l  self -governing d is t r i c t s  and the schools  are operated 

and maintained and co n tro lle d  by lo c a l  school boards, these school 

boards are e le cted  by the people within the p a rticu la r  

d is t r i c t  and the operational and maintenance costs  are provided 

by taxation  o f the d is t r i c t  and supplemented by the Minimum



366

bd43 Foundation Program,

All o f these capital expenditures which are being 

spent and more than half of the operational and maintenance costs 

are provided by loca l taxation, taxation o f themselves d irectly  

a fter election  by the voters of that particular school 

d is t r ic t .

Our citizens within the state have taxed themselves 

heavily with reference to this emphasis on an e ffic ie n t  school 

system within the borders o f our state.

Subsequent to the decision of this honorable Court 

on May 17th of last year, the State Board of Education of our 

state adopted a resolution to the e ffe c t  that the decision 

of the Court not being fin a l, that the Board was obligated 

to adhere to and comply with the present state laws and the 

p o lic ies  providing for segregation within the public school 

system until such time a3 they may be changed by constituted 

authority.

I t  was also stated by this Boad that i f  the Texas laws 

were changed, each loca l d is tr ic t  should have su ffic ien t time 

to work out its  own individual problems.

The school system within the borders of cur state at 

this time is  presently overcrowded and any immediate in te­

gration of course would create many problems and particularly 

additional fa c i l i t ie s  would be needed in many of our d is tr ic ts .

Justice Reed: Why is  that necessary?



M r .  Waldrep: The bu ild ings w ithin the d is t r i c t s .

Ju stice  Reeds A dditional f a c i l i t i e s ?  There would 

be no more ch ild re n .

Mr, V/aldreps In some instan ces, your Honor, where the 

d a ily  average attendance is  not s u f f ic ie n t  to warrant a negro 

sch o o l, these negroes are required to  go to  the ad join ing  

d i s t r i c t s . Under our compulsory attendance law i f  they 

are required to  return to the d is t r i c t  that they are residents 

with our school bu ild ings presently  overcrowded, there are no 

f a c i l i t i e s  a va ila b le  fo r  them u n til such time as add ition a l 

wings or bu ild ings are constructed .

J u stice  Reed: Why would they have to? Why wouldn't

they go to the school they have been going to?

Mr. Waldrep: In some instances they would provide a

method o f voluntary tra n s fe r , I am sure. But in  the meantime 

that would take

Ju stice  Reed: I don; t  grasp the problem o f  space.

Undoubtedly your schools are crowded, most schools are.

Mr. Waldrep: That i s  r ig h t , s i r .

Ju stice  Reed: But there would be the same number- of

ch ild ren . There would be the same number o f sch oo ls .

Mir. Waldrep: There would be the same - -

Ju stice  Reed: There would be the same number o f sea ts .

Mr. Waldrep: There would be the same number o f schools

and the same number o f seats but there would be a s h ift in g  of



368

bd45 the ch ild ren , a s h ift in g  o f  the population  by reason o f the 

compulsory attendance laws*

Ju stice  Reed: Couldn't they go ju s t  where they are going

now?

Mr. Waldrep: They could arrange i t  in those cou n ties ,

p a r ticu la r ly  in West Texas where they are now being transported by 

bus to  the ad jo in in g  d i s t r i c t .

Ju stice  Reed; A s u f f ic ie n t  number could s t i l l  be 

transported?

Mr. Waldrep: Yes, s i r .

J u stice  Reed: I s t i l l  d o n 't  grasp why there would be a

need fo r  a d d ition a l f a c i l i t i e s .

Mr. Waldrep: In some areas in  the p a rticu la r  county o f 

Red River fo r  example, there are negro students transported 

by bus from three communities to  the high school at the county 

s e a t .

These p a rticu la r  ch ildren  would be required to  come back 

to  the d is t r i c t  o f  th e ir  residence and attend that high school 

w ithin that area which is  not equipped under our 

compulsory attendance law. Unless that was changed, we could 

make an a d d ition a l p rov is ion  under our compulsory attendance laws,

I am sure, as pointed out by your Honor.

Ju stice  Reed: There would be no lack  o f  f a c i l i t i e s .

Mr. Waldrep: There would be in  many instances.

Ju stice  Reed: But none on account o f race?



3^9

bd46 Mr, Waldrep: None on account o f  race., Within the

geographic l im its . I f  the d is t r i c t s  wa?e changed, i t  would

create  a problem I am sure.

For that reason with re feren ce  to  the e x is t in g  

boundary lin e s  and a u t i l iz a t io n  o f the present housing 

f a c i l i t i e s ,  i t  i s  our b e l ie f  that no equ itable  general decree 

would be entered.

But i t  would appear that a p a rticu la r  decree, s p e c i f i c  

in  nature would have to  be enia*ed which would be based upon the 

fa c t  and con d ition s e x is t in g  then in  a p a rticu la r  l o c a l i t y .

No s in g le  formula can be app lied  to  a l l  o f  these 

l o c a l i t i e s  as an e f fe c t iv e  and orderly  tra n s itio n  w ill  

depend upon sp e c ia l con d ition s and problems that e x is t  in  

a particu lar area „

And in  Texas there is  a wide variance o f  the lo ca l 

con d ition s and a p ra c t ica l approach in one community may not be a 

p ra c t ica l approach in  another community.

So i t  i s  apparent that there can be no general s ta te ­

wide pattern o f in tegra tion  in our p u b lic  sch oo ls .

V/e say that the school a u th or it ie s  in the lo ca l 

d is t r i c t s  are best acquainted with con d ition s  and are more 

fa m ilia r  with lo c a l  con d ition s and can best evaluate the ex is tin g

problem.



370

^ldstein  em-1 
Lb bd

The Chief J u stice : D oesn 't that assume that they

a l l  want to  conform?

Mr, Waldrep: No, s i r .  That d e c is io n , Mr, Chief

J u stice , would be l e f t  prim arily  to  the governoring body o f  the 

lo ca l school d i s t r i c t .

The Chief J u stice : And you f e e l  that even though

there is  ju st one co lored  ch ild  in  a school d is t r i c t ,  as there 

are in  some o f your d is t r i c t s  that I see here —

Mr„ Waldrep: Yes, s i r .

The Chief J u stice : — and there is  no adm inistrative

problem, no f in a n c ia l problem, no ph ysica l fa c to rs  to  take 

in to  con sid era tion ; you b e liev e  that that should be l e f t  to  the 

school board without any in terferen ce , even though there i s  an 

in ten tion , a d es ire , not to  conform to  the law?

Mr. Waldrep: I t  would be l e f t  to  the —

The Chief J u stice : Is  that what you are asking, I

mean?

Mr. Waldrep: We are asking that i t  be l e f t  to  the

adm inistrative d is c re t io n  w ithin  the lo c a l  governing d is t r ic t s  

o f  Texas, yes, s i r .

The Chief J u stice : Regardless o f  whether there are

any p h ysica l problems or f in a n c ia l or adm inistrative problems?

Mr. Waldrep: Presumably those p a r ticu la r  counties

would in tegrate  where there is  no p hysica l or  p ra c t ic a l  problem

at that p a rticu la r  time based upon the p a r ticu la r  problems pre-



371

em2 sented to  them. That would be my con stru ction , s i r .

The Chief J u s t ice : You would assume, then, that in

p laces where there are no physica l fa c to r s , f in a n c ia l problems 

or adm inistrative problems, that they should and they would 

Integrate ?

Mr. Waldrep: In a l l  p ro b a b ility  they would, s i r ,

in  com pliance.

The Chief J u stice : That is  what I wanted to  ask.

Mr. Waldrep: Yes, s i r ,

Ju stice  Burton: You are not advocating lo ca l option?

Mr. Waldrep: No, s i r j  other than the adm inistrative

d is c re t io n  w ithin  the lo c a l  governing school d i s t r i c t ,  as set 

up by statu te in Texas.

Ju stice  Frankfurter: You are urging recog n ition  o f

lo c a l  d if fe r e n t ia t io n ?

Mr. Waldrep: Yes, s ir .

W ell, in  a sense, that con d ition s in  one p a rticu la r  

d is t r i c t  ifculd be d iffe r e n t  than cond itions in  another d is t r i c t  

w ithin  the State o f  Texas, yes, s i r .

A gradual tra n s it io n  to  an integrated  p u b lic  school 

system is  not a den ia l o f  a co n st itu t io n a l r igh t enunciated by 

the Court. So we f e e l  in  passing s p e c i f i c a l ly  to  Question No. 4 

propounded by the Court that the geographical school d is t r ic t in g  

in  Texas is  such that there should be a gradual adjustment 

from a segregated system to  an integrated  one, and that th is



372

em3 Court should not formulate a detailed decree, but the decree 

should remand the cases to the courts of f i r s t  instance with 

directions to frame decrees in these cases in thi3 manner, 
adjusting the equities between the parties without unduly 

hindering the public school system,

Texas urges that consideration —•

Justice Reed: Which cases are you referring to,

Nos, 2 and 3> South Carolina and Virginia?

Mr, Waldrep: Yes, s ir ,

Texas urges that consideration be given to these 

traditions and usages that have grown up through the years as 

a result of separate but equal fa c i l i t ie s ,  which includes a 

vast amount o f capital expenditures and provision or fa c i l i t ie s  

fo r  the schoolchildren of Texas, A period o f orderly transition 

w ill more certainly insure that the decree w ill meet with favor, 

Texas enjoys harmonious relationships and has made 

excellent progress in economic, educational and socia l advance­

ment. We have striven to create an atmosphere in 'which people

can think clearly  and act in te lligen tly .

We want to respect community attitudes, preserve our 

public school system and solve the many socia l and legal, as well 

as economic, phases of this particular problem.

F ifty  per cent o f our Negro scholastics are located 

in 45 of our northern counties, and ninety per cent of the tota l 

Negro scholastics are located in the 88 counties comprising the



373

em̂ - northern quadrant o f  the s ta te s This area is  predominantly an 

a g r icu ltu ra l area, and in c i t i e s  and towns re s id e n tia l 

c e r t i f i c a t io n  p re v a ils , and there are separate schools  in  these 

areas f o r  white and Negro sch oo lch ild ren .

The Negro school bu ild in g , o f  course, i s  located  

in  the Negro section  o f town, and the white school bu ild in g  

w ithin  the white se c tion  o f  the town.

Each d is t r i c t  should be perm itted to adjust i t s  own 

problems as the cond itions e x is t .

By reason o f  these p a rticu la r  varying degrees w ithin 

the State o f  Texas and w ith the background considered , in  keeping 

w ith the segregated school system and the urgent n ecess ity  o f 

u t i l i z in g  a l l  o f  our school f a c i l i t i e s ,  both Negro and white, 

and the a ttitu d es manifested by the people o f  our s ta te , and 

the n ecess ity  fo r  maintaining a harmonious re la tion sh ip , i t  is  

c le a r ly  ind icated  that there should be a lo ca l se lf-govern in g  

adm inistration  o f  th is  p a rticu la r  problem and a gradual 

tra n s it io n  period  which would b e tte r  insure an orderly  

compliance with the d ec is ion  o f the Court,

Thank you.

The Chief J u st ice : Thank you, General Shepperd and

Mr, Waldrep, f o r  your v iew s,

Mr, S o b e lo ff .



em5

■2

o •jL>

ARGUMENT ON BEHALF OF THE GOVERNMENT OF THE 

UNITED STATES, AS THE FRIEND OF THE COURT 

m SIMON E. SOEELOFF
Mr. S o b e lo ff : May i t  p lease the Court, a r is in g  to

address the Court toward the end o f  the th ird  day o f argument in  

th is  case devoted to a con sidera tion  o f  the Fourteenth 

Amendment, and o cca s ion a lly  the F ifth , alm ost, i t  seems to  me, 

that the Court might invoke fo r  i t s  own p ro te ct ion  the Eighth 

Amendment, which guarantees i t  against cru el and unusual punish­

ment .

I am going to  try  not to  be re p e t it io u s  and yet 

reframe arguments that have been made here, resta te  them in  a 

context that seems to  us coherent from the government *s poin t 

o f  view .

I  am not so presumptions as to  claim  that we have 

complete o b je c t iv it y ,  but I am more than o rd in a r ily  conscious 

.in th is  case that I am p r iv ile g e d  to  speak fo r  the United S tates, 

and our approach to these problems is  perhaps a l i t t l e  d if fe r e n t  

than that o f  the p la in t i f f s  or the defendants, or even o f some 

o f  the States or other governmental a u th orit ies  that might 

appear as p la in t i f f s  or  as defendants in  future cases.

Of course, there are certa in  areas o f  agreement, 

obv iou sly . There is  some true concurrence. Some o f the concur­

rence that has been voiced  is  more apparent than rea l] that i s ,  

i t  i s  verb a l. I am not challenging the good fa ith  or the



375

em6 sincerity  of these declarations, but as often happens, d ifferent 

people say the same thing, but mean d ifferent things by i t .

Everybody here has urged that this Court should not

i t s e l f  frame d eta iled  decrees, but should remand the cases to 

the D is t r ic t  Courts. But the o b je c t iv e s  o f  the d iffe r e n t  

opponents o f  that idea are not always the same, Some would 

ask th is  Court, have asked th is  Court to  remand the cases with 

s p e c i f ic  and r ig id  d ire ct io n s  to  the D is tr ic t  Courts to  sp e c ify  

a f ix e d  date f o r  desegregation  by 1955 in  September or  at the 

la te s t  a year la te r .

Others have gone to  the other extreme, and they have 

urged a remand, but they have s p e c i f i c a l ly  a3ked that th is  

Court sh a ll f i x  no date, and more than th at, i t  sh a ll g ive  no 

c r i t e r ia  in  i t s  decree to  the lower courts f o r  the guidance o f  

those cou rts , leaving open, as i s  p la in , the p o s s ib i l i t y  that 

nothing would eventuate except delay.

The government r e je c t s  both extremes. Our b r ie f ,  

which sets  fo r th  our views at length and more in  d e ta il  than i t  

w i l l  be p oss ib le  f o r  me to  present them, or even necessary to  

present them o r a lly , our b r ie f  o f fe r s  the counsel o f  moderation, 

but w ith a degree o f  firm ness.

This, as everybody recogn izes, i s  not a debate on the 

v a l id ity  o f  the Court: s d e c is io n . This is  not a reargument. 

Segregation has been declared  u n con stitu tion a l. While i t  

continues, as has been sa id , co n st itu t io n a l r ig h ts  are being



376

cm7 denied, and in  some cases the delay is  ir r e t r ie v a b le „

On the other hand, that d oesn 't  mean that in s t itu t io n s  

and p ra ct ice s  that have p ersisted  fo r  generations may be erased 

with a sin g le  stroke o f  the pen„ No p ra c t ic a l  person w il l  over­

look  that s itu a tio n .

D i f f i c u lt ie s  undeniably e x is t  in  some p la ce s . In other 

p la ces , as has been stated  here at th is  ta b le , the d i f f i c u l t i e s  

are p r a c t ic a l ly  n on -existen t or are very s l ig h t .  Obviously, the 

Court ought not to  trea t a l l  these d ecis ion s  as a l o t .  There 

has to  be some d is c re t io n . Of course, i t  should be recognized 

that these cases are not lik e  the Gaines case, or the Sipuel case, 

where a simple order to  admit would s u f f ic e .

A ffected  here are seventeen s ta te s , and m illion s  o f  

pup ils  and school plants costin g  enormous sums, and school 

bu ild ings that are not interchangeable, that a.re not rea d ily  

augmented. That d oesn 't  mean that the problem a r ises  everywhere, 

but where i t  does a r is e , i t  can be severe. There are teaching 

and adm inistrative organ isations that have to  be adjusted , and

such organizations are not rea d ily  a ltered  and in tegra ted . 

There are ph ysica l problems. There are fin a n c ia l problems. 

There are adm inistrative problems. There are indeed emotional 

problem s.

But th is  Court at th is  stage, on th is  record , lacks 

the m aterials f o r  judgment e ith e r  as to  what ought to  be done

or as to  the order or the time schedule w ithin which i t  ought to



377

em8 be attempted in particular cases.

There are certain places where, for  instance Delaware, 

both parties agree there should be a simple affirmance. That 

case practica lly  disposes of i t s e l f ,

Kansas says, "We are going to be integrated in 

September,"

The Court can simply r e fe r  the matter back to  the 

D is t r ic t  Court from which the case emanates, with the simple 

d ir e c t io n  to  pass an order in  accordance with the decree. I f  

the Court fin d s  that there has been substan tia l in tegra tion  by 

September 1955* there i s  no d i f f i c u l t y  about i t .  I t  may decide 

that the case c a l ls  fo r  a simple order. I t  may decide that the 

case c a l ls  f o r  no s p e c i f ic  d ir e c t io n  or in ju n ction .

These cases present no d i f f i c u l t y .  Even in  the D is tr ic t  

o f  Columbia su b sta n tia lly  they say they w il l  have integrated  by 

September. Oh, there is  indeed some question , and i t  may be a 

serious ques-cion, as to  the p rop riety  o f  certa in  op tion s.

I wish ■— and I must say th is  in  a l l  frankness — that 

there had been a more generous recogn ition  and c re d it  given to  

the D is t r ic t  a u th orities  fo r  the readiness with which they 

proceeded tc  respect th is  C ourt's  d ec is ion  and indeed, as has 

been brought out here, they had planned even in  advance o f  the 

Court’ s d e c is io n , in  a n tic ip a tion  o f  i t ,  and had la id  plans fo r  

in tegra tion , which plans have been put in to  e f f e c t ,  and even

though there is  a leg itim ate  basis f o r  disagreement as to  those



378

em9

o

as to  some p rov is ion s , as in  th is  option  plan, I think on the 

whole they are e n t it le d  to  considerable c re d it  f o r  the readiness
Jt

with which they acted*

That d oesn 't  mean that th is  Court should e ith e r  approve 

or disapprove the option  p rov is ion . The Court has not been in ­

formed in  d e ta il  about that p rov is ion  and how i t  i s  operating.

An option  p rov is ion  that is  p e r fe c t ly  a l l  r igh t in  the D is tr ic t  

o f  Columbia might work in  an e n t ire ly  d iffe r e n t  way in  another 

p la ce , or i t  may be a l l  wrong in  the D is tr ic t  o f  Columbia and 

might work b e tter  in  other p la ces .

This Court, I am sure, would be b e tte r  advised and 

would be actin g  more con sisten t w ith i t s  usual p ra ctice  to  say 

that as to  a matter o f  that s o r t , where the record  has not been 

made, the fa c ts  have not been developed, i t  w i l l  not pass on 

th a t. The problem may solve i t s e l f ,  as the more momentous 

problems in  connection  with desegregation  in  the D is t r ic t  o f 

Columbia seem to  have been so lved .

I f  i t  a r ises  and is  presented in  orderly  fash ion , i t  

can be d ea lt w ith.

Of course, i t  is  obvious from what has been said here 

that there is  such a great v a r ie ty  o f cond itions as between the 

sta tes  and w ithin  sta tes  and w ithin  counties and even w ithin  a 

p a r ticu la r  school d is t r i c t ,  that no sin g le  form ula can be 

devised by the ingenuity o f  man that w i l l  f i t  a p tly  a l l  cases, 

and th is  Court could not, in  any event, take unto i t s e l f  the



379

emlO burden of acting as a super school board. It  must necessarily 

repose some measure of discretion elsewhere, and I think, by 

common consent, by common agreement of the parties, and the 

others who have addressed this Court, the D istrict Courts are 

the appropriate agency.

Now, giving a measure of discretion  to the courts, 

however, does not mean that they ought to be given no guide, 

no instruction, no cr ite r ia . This Court ought not to give a 

D istrict judge a blank check and say, "P il l  i t  out any way you 

want," It ought to t e l l  him to consider a ll the fa cts , every­

thing that has been mentioned here. Some of these things are 

very weighty. But the court ought to be told , the D istrict Court 

ought to be told by this Court that that measure of discretion 

is  not to be used fo r  the purpose of frustration . He is net to 

permit delay to be had fo r  the mere sake of delay. Where 

d if f ic u lt ie s  ex ist, the Equity Court, of course, has the right 

to fashion its  remedy according to the needs and time where i t  

is needed and to the extent that i t  is  needed; but only to that 

extent, should be allowed.

The D istrict Courts ought to have i t  made plain that 

in the view of th is Court a time shall be allowed, but not for 

the purpose of paralyzing action or of emasculating the Court's 

decision of last May.

Justice Harlans Mr, Sobeloff, do you think these

decrees, whatever chey are, can a ffect anyone ether chan the



380

emll

Mr- Sobeloffj I would say that these decrees, like 

a ll  decrees, a ffect only the parties, or i f  they are class 

actions, the people who are identifiable as belonging to the 

class.

Justice Karlan: That is  the " i f " ,  though,

Mr, Sobeloff: But regardless of that, I am sure this

Court w ill not overlook the immense importance of its  declara­

tions in a particular case as a guide to a general treatment of 

problems in other cases,

I don't mean to suggest that i f  this Court were to 

say that a. certain time element should be allowed, i f  you decide 

that you ought to put in a time element, that you allowed in 

this particular case, that D istrict judges generally ought to 

adopt that same schedule under entirely  different conditions, 

but I do think i t  is  important fo r  this Court to indicate its  

approach and the approach of the D istrict judges on the matter, 

and in most instances where the Court makes that clear, the 

tendency is  to reduce lit ig a tio n .

It has been pointed out here that in these college 

cases and the professional school cases, the Sipuel case was 

decided, and other states having similar problems didn 't go 

through a process of lit ig a tio n , They foresail the inevitable 

result of a future case that made a future case unnecessary.

I don't mean to say that our position  w ill fo ld  up

litigants who are actually before the court?



381

eml2 automatically. I don't mean to say that there w ill be no 

further lit ig a tio n . But I think that what you do here w ill 

largely Influence the temper, the sp ir it  In which D istrict Courts 

w ill operate, w ill be guided by the way you fashion the decree 

here.

Justice Reed; Take the South Carolina case. What do 

you envisage would be the result o f the judgment in that case?

Mr. Sobeloff: The judgment here?

Justice Reed; Either here or i f  i t  is  sent back to 

the D istrict Court.

Mr. Sobeloff; I think in the South Carolina case — 

l e t ‘ s see. You have the Clarendon County case. You have about 

2500 Negro children and about 300 white children in that case.

Justice Reed; No. You have about seven or eight 

Negro children, and they represent as a class a ll  of the Negro 

children, numbering about 2500.

Mr. Sobeloff. Yes. I would say that ought to be 

referred to the D istrict Court there„

Justice Reed; What is  his problem? To admit ten 

children whose names are on this l is t ?

Mr. Sobeloff; I understand that these are class cases.

Justice Reed: So the problem would be the 2500.

Mr. Sobeloff; Yes.

My own thought is  that i t  would not serve any useful 

purpose to unduly narrow the scope o f the case. I know you don: t



eml3

c4

want to adjudicate questions that are not necessary to be 

adjudicated, but nothing is  going to be gained by admitting ten 

and disregarding the situation of the others, I don't think that 

would be satisfactory, either to the p la in t iffs  or to the 

defendants, I think in that instance you have to look to the 

whole situation. I think you have to t e l l  the D istrict judge 

that he must consider that, but that doesn't mean that the 

D istrict judge ought to be told nothing as to how to proceed. 

Justice Reed: No.

Mr„ Sobeloff; And our b rie f — and I w ill come to i t

382

presently - -

Justice Reed: My question is  directed to whether he

is  dealing with ten people or 2500 people.

Mr. Sobeloff: I think he is  dealing with 2500 people

there. I f  you were simply going to order the admission o f ten 

people, I suppose that that would be of some value as a declara­

tion of this Court, but you would be adjudicating an unreal 

situation. You know that you are not rea lly  dealing with ten 

people, you know you are dealing with 2500 people, and I think 

what you ought to do is  treat that as that kind o f a case, and 

t e l l  the judge below to treat i t  as that kind o f a case, but 

that doesn't mean the judge ought to be le ft  without any support, 

without any guidance. His hands ought to be strengthened.

He ought to be in a position , when the contesting

litigants appear before him and make their contentions, he ought



383

eml^ to be able to say, by reason of the Court's decree, this is  what 

the Constitution directs me to do, 1 can allow time i f  you show 

me the need for  the time, and i f  you show me a plan why the time 

is  necessary and how you are going to employ the time, not 

merely give time and time in d e fin ite ly „

I think i t  would be an unfortunate thing fo r  both sides 

i f  the thing were handled in that way.

Justice Burton: Following Justice Reed’ s question, you

would frame your opinion in the light of the 2500, and you would 

frame your decree in the light of the ten*

Fir* S obelo ff: I would say so* I don 't know technically

whether that is  a class suit or net. I understand from the way 

the thing is  written that i t  is a class su it, the way the briefs 

are treated. The Court's questions are predicated on the 

assumption that these are class suits* The Court says in so 

many words, in addressing the parties and addressing the Attorney 

General of the United States said the Attorneys General of the 

States, this Court says, since these are class actions, and 

the impact w ill f a l l  on a great many, we want further argument 

on these questions.

So this Court has heretofore regarded these cases as 

class cases.

Justice Harlan: You would agree, would you not,

whether they are or not, goes to the very heart of the character 

of the decree we w ill enter, because i f  only five  or six  plain-



384

eml5

Mr* Sobelof’f  s I f  only five  or six  persons were in 

that situation, le t 's  assume, even though they are not class 

su its, l e t 13 assume that five  people came to the court to sue 

fo r  themselves and did not say they were suing fo r  a class, I 

think that the court, to be practica l about i t ,  would have to 

look at those f iv e , not as though they were the only ones on 

the scene, i t  would have to look at those five  in the context 

of the whole population where they are,white and colored.

The f ir s t  thing that this Court should make clear is 

that any state constitutional provision or statute which con­

f l i c t s  with the opinion of the Court, with the decision of the 

Court o f last May, is  void. There has been some confusion about 

that. The Attorney General of Maryland has told  you that in 

Maryland there is  this division  in Baltimore City, because 

although the statutes are the same, they went ahead and desegre­

gated. In the counties, because of some things that were said 

o f f i c ia l ly  and u n o ffic ia lly , there has been some doubt about i t .

Some of the counties who want to desegregate, school 

o f f ic ia ls  who want to desegregate, were led to believe that 

they couldn’ t desegregate until there was a fin a l decree by 

this Court.

Although Maryland was not d irectly  a party, they 

thought these laws did not fa l l  In Maryland from the mere 

rendition of the decision in May, but there would have to be a

tiffs are involved, what is the reason for delay?



385

emlo decree„ I don't think there is  much doubt about it., Some of 

the attorneys here have said frankly that they think any con­

f l ic t in g  statutes or constitutional provisions have fa llen , 

but this Court ought to declare that, so there w ill be no room 

fo r  doubt or hesitation, so that those who want to obey the law 

w ill know what that i s .

Justice Reed: Even though the particular statute

has not been involved in this particular case?

Mr, Sobeloff: I f  this Court has said that under the

Constitution there can no longer be separate but equal; and 

the loca l law says, commands, separate bat equal, I think i t  is 

plain that that loca l law has to g iv e .

Justice Reed: Yes, even though i t  is  not raised here.

Mr, Sobeloff: You don't d irect your decree to those

who haven't appeared in the court, but the impact of that w ill 

be f e l t  i f  this Court says so, in this decree,

I think as a matter of c la r ifica tio n  that ought to be 

in the decree.

Justice Frankfurter: The Delaware Supreme Court made

a d istin ction . It said that the provisions in the Constitution 

and a ll  the laws carrying out the Delaware Constitution allowing 

or commanding segregation are null and void, but unless there is  

a decree entered, there is  no compulsion in the translation of 

that n u llifica tion .

Mr. Sobeloff: This Court can very readily in the next



336

few weeks set at rest any doubts about i t .  I don't think there 

could be any doubts in lawyers' minds as to what w ill happen, buc. 

I think i t  ought not to be le ft  to further speculation.

Justice Frankfurter: That i3 what the Delaware Supreme

Court said, and i t  seems incontestable to me.

Mr. Sobeloff: But others have expressed d ifferent

views.

Justice Frankfurter: The decree, you say, should

formalize what this Court said on May 17th.

Mr. Sobeloff: Exactly, It  ought not to be le f t  to

be gathered from the comments of the Court in the opinion. It 

ought to be in the decree i t s e l f .

The Court ought to also make clear that the remand is 

fo r  the purpose o f effectuating its  decision, not fo r  the purpose 

of frustration . I think i t  would be greatly of help to the 

judges in the performance o f their duties i f  they knew that the 

Court wants or directs them to resume ju risd iction  of the cases 

fo r  the purpose of e ffecting  the decision as soon as feasib le , 

not limiting; them sp ec ifica lly  as to a date, but allowing them 

to f ix  dates with that in mind, not merely to wait until

attitudes change in some remote generation, but consider the 

matter, hear the parties and, a fter debate, discussion and 

consideration, decide i t  with a view to effectuating the Court's 

decision as speedily as feasib le . •

Justice Black: What does ''feasible" mean?



387

Mr, S obeloff: "Feasible” means like any other question

of fa ct , a determination a fter considering a ll  relevant fa cts .

I f  you find that the judge is  not given enough time, or 

i f  he finds he has not given enough time, he can give further 

time, I f  either side fee ls  he has abused his d iscretion , either 

side can, on appeal, have a review. The merit of that is  that 

this Court does not undertake to pass on situations with which 

i t  is  not intimately fam iliar.

The D istrict Court judge can fam iliarize himself with 

i t .  He is  directed to fam iliarize himself with i t ,  and to order 

the effectuation  of the Court's decision as speedily as feasib le , 

bearing in mind these fa cts , these circumstances, that w ill be 

brought out in the hearing before i t .

Justice Black; Does that include circumstances with 

reference to the fe a s ib ility  to do th is, cr would i t  also 

include attitudes of the people?

Mr, Sobeloff Attitudes ought to be considered, but 

attitudes are not to control. Attitudes ought to be considered, 

because there are certain things that cannot be done within a 

certain time, but that doesn't mean that whether or not a 

constitutional right shall be vindicated by a court shall depend 

upon a public opinion p o ll ; these inquiries are interesting, 

but courts do not adjudicate constitutional questions on that 

basis„

Justice Black; Does that not indicate the d if fic u lty



388

eml9

Mr. Sobeloffs I don’ t say the words "as soon as 

feasib le" are self-in terpreting . They cannot be. I f  i t  could 

be, then the government's recommendation to you would be to put 

in that date, and interpret i t .  It is  because we recognize that 

the matter cannot be interpreted ar.d translated into a precise 

date by this Court that you ask the D istrict judge in the f ir s t  

instance to translate that; but you say to the D istrict judge: 

"Give them a ll  the time that is reasonably necessary to e ffectu ­

ate the Court's decision, to put into e ffe c t  that decision, to 

give i t ,  as this Court said, e ffe ctive  gradual adjustment."

The word "e ffective" is  there, as well as the word

"gradual".

Justice Minton: Would you put a deadline in at a ll?

Mr* Sobeloff: I don't think I would put a deadline

in the more complicated situation. I think you could, i f  you 

saw f i t ,  in the D istrict of Columbia, i f  you decided i t  was 

necessary to have any time, you could perhaps put in a deadline. 

Even there 1 would prefer that the D istrict Court do i t  in the 

light of a ll  the circumstances. I think that is  the more orderly 

way. I think i t  is ,  on the whole, a more satisfactory  way.

But in a complicated situation, I don't think this 

Court should put in a deadline. Cur b rie f recommends: Don't

put In a deadline.

of "as soon as feasible"?

That is, you do not recommend anyJustice Burton:



389

em20 deadline for the completion, but you do mean the immediate start 

forthwith, to begin to make i t  e ffe c t iv e ,

Mr. Sobeloff: I think. Your Honor, that this Court

ought to say to every D istrict judge: Call fo r  a plan within

ninety days. Somebody here has said that ninety days is  too 

short a time. I think a plan can be formulated in ninety days, 

especia lly  a fter eleven months have already gone by since the 

decision. But I would say that i f  the plan cannot be formulated 

within ninety.days, then the D istrict judge, as a judge in equity, 

is  applied to fo r  further time, he ought to be permitted to give 

further time; but the burden ought to be on him who wants the 

delay to show that he needs i t ,  that he is  engaged in a good- 

fai'ch e ffo r t  to solve this problem, not that he is  waiting for  

the day a fter tomorrow, the day a fter the expiration of the 

period; but that he is moving, and then when the plan is 

presented, there should be hearings and a ll  these relevant 

considerations are to be addressed to the court, and they ought 

to deal with i t  as the facts would indicate; end he should 

require a bona fide beginning.

I think he ought to be required to require a bona fide 

beginning, whatever he thinks can be done, not to put o f f  every­

thing until some future date, but le t  the f ir s t  step be taken 

as speedily as i t  can be done without disruption.

That w ill be interpreted. Fortunately, i t  w ill be 

interpreted by people who live  in these communities and under­



390

stand them. But they ought not to be given an open-end time,

He ought to be permitted .to channel these efforts., not to impose 

his w ill , not to decide i t  abstractly without hearing, but to 

le t the school o f f ic ia ls  formulate the plan and produce i t ,  

not some time in the remote future, but reasonably promptly,.

I f  more time is  needed, he can give i t  to them.

Justice Reed: While the loca l school board is  before

the D istrict judge,

Mr. Sobeloff: Yes,

Justice Reed: But the state Attorney General and the

state Board of Education have something to do with i t ,  and 

perhaps furnish money or perhaps the statutes provide fo r  the 

building of new schools, yet none o f those parties are before 

the court,

Mr. Sobeloff: That is  a d if f ic u lty . It  may be that

in a particular case, additional parties may be required, either 

at the suggestion of the p la in t iffs , or the court may do that.

That illu stra tes how these complexities that cannot 

be foreseen here w ill arise and can be dealt with in te lligen tly  

in the light of the situation. But the point is  that they be 

dealt with in an orderly fashion.

Local sentiment, loca l conditions are not being over­

ridden, but neither is  action paralysed because of an assertion 

of a loca l fee lin g .

Now, the experience in the D istrict of Columbia since



May 17 is  not going to be exactly paralleled in other places; it  

can 't be. The government recognizes, of course, that because 

of the President's particular relation  to the loca l government 

here, hi3 influence would be exerted and was exerted in a way 

that perhaps he wouldn't wish and couldn’ t properly attempt to 

exert i t  in other situations.

The very character of this community, drawn as i t  is  

from various parts of the country, engaged in government work, 

things that have happened here ea rlier  in recent years, other 

lit ig a tio n  with which this Court is  fam iliar, a ll  those things 

have an impact to d ifferentiate  the D istrict of Columbia situa­

tion  from others, and yet the D istrict of Columbia doe3 teach a 

lesson,

It  shows that despite these differences that very often 

problems that are said to be utterly  insoluble, when approached 

with understanding and sympathy, reasonable good w ill, not 

r ig id ity , yet with a degree of firmness, can be dealt with, 

and sometimes the d if f ic u lt ie s  that are foreseen at the 

beginning do not m aterialize.

The authorities here in the D istrict did not believe 

that they could effectuate as much as they did in the time they 

did.

In another situation, the estimate may prove to be 

in su ffic ien t. More time may be granted.

This Court ought not to make i t  impossible fo r  the



392

em23 loca l judge to do that in a proper case.

The reluctance of the p la in t iffs  in this case to 

tolerate any delay at a ll  is  perfectly  understandable, although 

I don't agree with them on th is , although we recommend against 

setting a fixed date in this Court’ s decree, and we understand 

their skepticism about allowing any delay*

But I think that their fear stems from the fa ct that 

i f  the Court sends i t  back, sends the cases back without any 

d irections, and without a time lim it, the thing w ill be so gradual 

that there wil3. be nothing affected , and the Court would really  

be frustrating its  own decision of last May.

That is  their fear.

The Court can minimize the danger which they apprehend, 

in a reasonable way, i f  these provisions — which I w ill defer 

until morning — that we have set forth  in our proposal, are 

incorporated in a decree of the Court*

You can have that measure of f le x ib i l i t y  which the 

defendants righ tfu lly  ask fo r  and at the same time give the 

p la in t iffs  assurance against abuse*

Of course, there w ill be resistance in some places, 

and the progress w ill not be equal* No important change in 

socia l policy  has been achieved without some resistance, but you 

must not assume ~~ and I am sure the Court w ill not assume ■—

that

more

a ll  men in the South are resisting the Constitution, any 

than i t  would be sale to assume that everybody in  the North



393

give3 enthusiastic support to every provision of the Constitution, 

but this Court should not, and I am sure w ill not, underrate 

the Immense influence of its  authority on men of good w ill and 

intelligence and patriotism in a ll  sections of the country, and 

I am sure that is a factor that w ill not be lost sight of and 

w ill greatly come to the aid of an ultimate solution*

With the Court’ s permission, I w ill resume in the

morning.

Justice Black: Would you mind tomorrow addressing

yourself a l i t t l e  more to the question of class su its, having 

in mind Hansbury versus Lee, and other cases, as to who can 

be covered by a class suit?

Mr, Sobeloff: I w ill do that.

Justice Reed: Also the case of Ben Hur.

Mr. Sobeloff: I am not fam iliar with that. I w ill

get that*

The Chief Justice: We w ill now adjourn*

(Whereupon, at 4:30 p*m„, the Court recessed, to 

reconvene at 12:00 noon, Thursday, April 14, 1955.)