Attorney Notes from Oral Argument (Transcript)

    Phillips refers to 3 (b); that previous opinion and judgment 
vacated

Witt: default concept; evolving law

Celebrezze: Didn't Swann say you need not resort to busing if
you could find other means of desegregating your system? What other 
means have you found to integrate your school system in the absence 
of busing?

Witt: School closings resulted in some desegregation

(Peck and McCree talking to eachs other)

Celebrezze: Do you use default in the sense that you weren't a
segregated system? And if the district court didn't
find you in default, why in the world xtx did he issue the remedy?

Witt: He found us in default because the results in terms of
desegregation were not adequate.

O'Sullivan: Didn't the Supreme Court in Swann hold that there can
be, without unconstitutional conduct, schools which are all black 
or all white, and that a school board must, however, give a better 
reason for the continuance of that other than the old neighborhood 
concept? Am I right that there is a contention that the court 
erred in ordering the transfer of black students into white schools?
Or am I thinking of another case [where the blacks were complaining?]

Witt: Can't make decisions on race, etc.

Celebrezze: Supreme Court says you need not have a numerical balance
but how can you make the decision without considering race if you want 
to desegregate your school system? Under Brown I there was a law on 
the books requiring separate schools. Supreme Court says, integrate 
your school system with all deliberate speed, whatever that meant —  
it is hard to figure out. That doesn't mean you merely repeal the 
statute and sit still. You can have as much of a constitutional 
wrong by just not doing anything to get rid of your separate but 
equal schools. That's Browni [Witt had said Brown was different 
situation]

Witt: We desegregated our faculties.

Celebrezze: That was under an order of this Court, wasn't it?

Celebrezze: Is it unconstitutional to bus children? [Witt had
said we must use constitutional means to achieve the constitutional 
end] If not, how have you used all means [if you don't bus?]

Witt: We recruited black teachers and sought crossovers.

Celebrezze: That was in 1966. What did you do between 1954 and 1966?

Weick: When did the Supreme Court rule that faculties had to be
desegrgated?



Kent: [to Witt] Wasn't this all set out in your brief? I've read
it.

Edwards: Are you also arguing for the City of Chattanooga?

O'Sullivan: Your position is that Swann did no more than approve
what Judge McMillan ordered in view of the fact that he found gross 
conspiratorial conduct?

Weicki? Hasn't there been a shift in population in some schools, 
some schools going from white to black? What has been the extent 
of the shift?

Edwards: Are we taking testimony?

Phillips: We're getting outside therecord; continuing jurisdiction.

Avon: Default refers to authority of district court to devise
a remedy itself.

Weick: Weren't all plans gradual in the beginning? Avon: Not all.

O'Sullivan: After this court struck down Chattanooga's plea for
more time in order to elucidate the law to its citizenry, didn't 
the district judge find what they were doing was pitoper and approve 
it, that is, until Swann with this busing?

O'Sullivan: After their initial failure, the district judge until
Swann came along found that the board was proceeding in good faith.

Avon: What you are getting at, Judge O'Sullivan, is just what the 
defendants contend. That position doesn't commend itself to logic.

Kent: Is it possibles to have a desegregated school system in
which there are schools which have only or primarily students of 
one race?

Avon: Yes it is possible. But where that exists, there is a
presumption against them which it is the school board's burden to 
overcome by showing impracticability!! of desegregating them.

Kent: Is therex such a finding here?

O'Sullivan: This is a question I would like to have you answer.
Is it your position khxkxExxxy that in every city in the United 
States where the population is so divided that there are black 
and all white schools, there must be busing?

O'Sullivan: In northern cities in whch there was no de jure
segregation prior to Brown, is ultimately the only answer busing?

O'Sullivan: Let us assume a case with no evidence of conspiratorial
conduct; this situation grew up just at by events?

Avon: What were those events? I would want to know if there was
any state action connected with those events.

O'Sullivan: I didn't say xy anything about state actioni; assume
none.

Avon: No state action, no remedy; now may I please go to another
El matter.



3

Weick: Wasnit it a fact that any black student can attend any
white school he wants to?

Avon: Yes but that was also the fact in Mobile.

O'Sullivan: What about Judge Wilson's langauage about substantial
progress being made?

Edwards: W Am I wrong in reading Wilson's basic finding that
Chattanooga system does not comply with the law [bench opinion]

Avon summing up on the relief after getting an extra minute frcm 
Phillips (1 to 2)

Avon: Asking court to remedy the entire effect of Weick1s opinion