Brown v. Board of Education et al. Arguments

    In The

SUPREME COURT OF THE UNITED STATES
April Term 1955

• ALFRED BROWN, MRS. RICHARD LAWTON, et al„,
Petitioners,

vs.
BOARD OF EDUCATION, TOPEKA, KANSAS, et al..

Respondents.
FRANCIS 3. GEBHART, et al.,

vs.
ETHEL LOUISE BELTON, et al.,

Petitioners,

Respondents.

SPOTTSWOOD THOMAS BOLLING, et al..
Petitioners,

vs.
C. MELVIN SHARPE, et al.,

HARRY BRIGGS, JR., et al.,
vs

II. W. ELLIOTT, et al..

DOROTHY E. DAVIS, et al.,

Respondents. 

Petitioners, 

Respondents. 

Petitioners,
vs.

COUNTY SCHOOL BOARD OF PRINCE EDWARD 
COUNTY, VIRGINIA, et al..

Respondents.

Washington, D. C.

April 11, 1955

1760 PENNSYLVANIA AVB., N. W. 
WASHINGTON, D. C

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



Contents

ARGUMENT ON BEHALF OF BOARD OF EDUCATION P a g e
Topeka, Kansas

By Mr. Harold R. Fatzer 4

ARGUMENT ON BEHALF OF OLIVER BROWN, ET AL
By Mr. Robert L. Carter 26

ARGUMENT ON BEHALF OF FRANCIS B. GEBHART, ET AL
By Mr. J„O. Craven 3S

ARGUMENT ON BEHALF OF ETHEL LOUISE BELTON, ET AL
By Mr. Louis L.Reading 46

ARGUMENT ON BEHALF OF SPOTTSWOOD BOLLING, ET AL
By Mr. George Hayes and Mr. James Nabrit 53

70
ARGUMENT ON BEHALF OF C. MELVIN SHARPE ET AL

By Mr. Milton Korman 83
ARGUMENT ON BEHALF OF HARRY BRIGGS, JR. AND 

DOROTHY DAVIS, ET AL
By Mr. Robinson 102



1

IN THE SUPREME COURT OF THE UNITED STATES 
APRIL TERM, 1955

'stein 
Cantor Fuff

ALFRED BROWN, MRS. RICHARD LAWTON, ET AL 
vs.

BOARD OF EDUCATION, TOPEKA, KANSAS, Et AL

FRANCIS B, GEBHART 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 E, DAVIS, ET AL
V S .

COUNTY SCHOOL BOARD OF PRINCE EDWARD 
COUNTY, VIRGINIA, ET AL.

Washington, B.C.
April 11, 1955



2

The above-entitled matter came on for oral argument 
at 12 noon.

PRESENT:

The Chief Justice, Earl Warren and Associate 
Justices Black, Reed, Frankfurter, Douglas,
Jackson, Burton, Clark and Minton,
APPEARANCES:

On behalf of the Board of Education of
Topeka, Kansas:

Harold R. Fatzer, Attorney General of Kansas, 
On behalf of Oliver Brown, Et Al:
Robert L. Carter.
On behalf of Francis B. Gebhart, Et Al 
Joseph Donald Craven, Attorney General of 

Delaware,
On behalf of Ethel Louise Belton, Et Al 
Louis L. Reading.
On behalf of Spottswood Thomas Bolling Et Al: 
George E.C. Hayes and James M. Nabrit, Jr.
On Behalf of C„ Melvin Sharpe, Et Al:
Milton D, Korman.
On Behalf of Harry Briggs, Et AL
Thurgood Marshall.Spottswood W. Robinson, II;
On Behalf of R. W. Elliott, Et.

Robert LlcC Figg, jr. , and S.E. Rogers.



3

APPEARANCES - continued.
On Behalf of County School Board of 

Prince Edv/ard County, Virginia, Et Al:
Archibald G. Robertson, and
Lindsay Almond, Jr., Attorney General of Virginia.



4

Goldstein
Cantor
Ruff

The Chief Justice, No. 1 on the Calendar, Alfred 
Brown, Mrs. Richard Lawton, et al, vs. Board of Education of 
Topeka, Kansas, et al,

The Clerk, Counsel are present, sir.
The Chief Justice; Attorney General Fatzer.

ARGUMENT ON BEHALF OF BOARD OF EDUCATION 
By Mr. Fatzer.

Mr„ Fatzer; Chief Justice and Members of the Supreme 
Court: I am Harold R, Fatzer, the Attorney General of Kansas
and with me today is Mr, Paul E. Wilson, the First Assistant 
Attorney General who has previously argued the State’s position 
when the question of the answer to Questions 1 , 2 and 3 , 
v/aa argued heretofore.

Today, we appear not as an adversary. We appear 
horeetc be of assistance if we can to the Court in helping 
it see that proper decrees are imposed and made.

Now in answer directly to the questions, your 
Honors, of Nos. 4 and 5 and the subsequent subsections, we 
want to say that traditionally in Kansas, segregation has 
not been a policy of that state, on a 3 tate level. We suspect 
that the Kansas case i^ probably the least complex of any 
that is before it. We v/ish to say that that ha3 never been 
a matter of state policy. We believe that the decision of 
the Court has been received by the students, teachers, school 
administrators and by the parents of both colored and white



5

with approval.
In answering and assisting this Court, I shall be 

very brief in stating our position, what we believe should be 
done with respect to the case that is now before the Court, 
that is, the Topeka Board of Education.

Your Honors, we believe that 4-A should be answered 
in the negative. We do not believe that the Immediate aad 
forthwith admission of the Plaint!ffs--although they may be 
in the school; I am not prepared to tell the Court that they 
are not, I suspect that they are— would, and as the Board of 
Education found, work a hardship, would impair administrative 
procedures, and so we would suggest to the Court that no decree 
be entered which would forthwith admit any student to the 
school of his choice,, Rather, we believe that the Court 
should exercise its equitable jurisdiction at all times in 
these cases because of the public interest involved, notwith­
standing the fact that the Plaintiffs in the case would 
undoubtedly have some present and immediate right and personal 
right of admission to the schools.

We believe, your Honors— and I want to make a brief 
report of a situation that has developed since the brief in 
the Kansas case was filed-— we believe that this case should be 
reversed, that it should be remanded to the Federal District 
Court in Kansas. I should like to tell you and briefly l’eview 
the efforts of the Topeka Foard of Education to terminate



6

segregation in the public schools iu that city.
It was commenced on September 3, 1953. The 

policy announced by the School Board was to terminate maintenance 
of segregation in elementary schools as rapidly as was practica­
ble. Five days following that date,to wit* September 8 , 1953, 
segregation was terminated in two schools in the city. It 
Involved only approximately ten colored children, but they were 
living in the district. They were permitted to attend those 
schools.

Justice Burton. You referred to the termination of 
segregation in the elementary schools?

Mr, Fatzer. That is correct.
Justice Burton: Has it been terminated in

the other schools?
Mr. Fatzer. There is none in Grades 1 to 6, Mr.

Justice.
That was called the first step. The second step was 

made on January 20, 1954. And that was effective for the school 
term, current school terra, 1954-1955.

At that time, and by order of the Board o? Education, 
segregation was terminated in twelve school districts in the 
city and transportation was not provided to the Negro school 
children living in those twelve districts on the basis that 
the child could attend the school of that district but with 
the privilege, if he preferred,to attend the colored school



7

which he had been attending. This affected approximately 113 
children, plus the ten that had been previously affected from 
Step 2— 123 Negro children were placed in the integrated school.

Justice Frankfurter. What is the total of school 
population into which these 123 were merged, roughly?

Mr. Father: I v/ill have to refer—
Justice Frankfurter: What magnitude? Was it 10,000,

or 50,000?
Mr. Fatzer: No, nothing of that kind. I think

perhaps the school population in Topeka is roughly 8200, Mr. 
Justice.

Justice Frankfurter: So there wa3 no problem of 
space and buildings, and none of those problems?

Mr. Fatzsr: In one school there was. One school
in which, in the so-called Polk School there was the space 
problem and I think three children were admitted to that 
school and others were not because of this space problem.

Justice Frankfurter: And there was no re-districting
of the districts you have?

Mr. Fatzer: Not at that time.
Now I spoke to your honors of a subsequent event 

that occurred subsequent to the filing of the State’s brief
here in response to the request of the Court, which occurred 
on February 23, 1955. We have with us today the minutes of 
the Topeka Board of Education adopted February 23, 1955, which



8

we have filed in the Clerk’s office as a supplement to the 
brief filed in this Court in response to questions 4 and 5 
propounded by the Court. We file it simply for informational 
purposes to show the good faith of the members of the Board 
of Education of Topeka in carrying out the previous announced 
policy of terminating segregation as rapidly as practicable.

Now this third step, your Honors, is effective 
September, 1955. It provides, (x) that segregation has been 
terminated in all remaining buildings; (2) That the McKinley 
Elementary School, one of the colored schools, be closed and 
that it be placed on a standby basis for the coming year; (3 ) 
That colored schools, Buchanan School, Monroe and Washington 
Schools be assigned districts within the areas of the city, the 
same as any other school area in the city and that any child 
who is affected by the change in the school district— I will 
go ahead— any child who is affected by the change in school 
district lines as recommended on a map which we did not attach 
hereto, be given the option of finishing the elementary grades 
In the school in which he attended in 1954 and 1955. That is, 
he could attend the school in the district in which he resided 
or, if the new district overlaps now into a district that 
for erly existed before the re-districting, he can attend 
the school that he attended last year. In other words. It is 
equally available to both the white and the colored students.

Justice Frankfurter: Have I missed a statement as



9

to the basis or the reasons for which this re-districting was 
done?

Mr. Fatzer: The basis of it was done, of course, Your
Honor, on the Court's decision of May, 1954, to comply with the 
order of this Court that segregation, per se, was unconstitu­
tional. That is the basis of it.

Justice Frankfurter: You mean there were exclusively
Negro schools?

Mr. Fatzer: Ye3 .
Justice Frankfurter: And those v/ere withdrawn from

use by the City?
Mr, Fatzer: One.was, your Honor.
Justice Frankfurter: One was. And the others are

now available to children, intermixed, is that it?
Mr. Fatzer: Yes.
Justice Frankfurter: Was that districting a geo­

graphic districting?
Mr. Fatzer: Yes.
Justice Frankfurter: Was there any indication in the 

minutes of the Board or in any document you filed as to the 
compact geographic nature of this districting?

Mr. Fatzer: Unfortunately, your Honors, we did not
have attached to this the map of the Board of Education which 
designated the particular districts of the City School System.

Justice Frankfurter: Could you supplement that later?



10

Mr. Fatzer: Yes, v/e would bo glad to.
Justice Reed. Could you also supplement that by showing 

the percentage of actual white children in the districts?
Mr. Fatzer: I think that is set forth here in the

figures of the Superintendent of Public Instruction and 
approved by the Board.

This shows roughly, your Honors, an estimation of—
on the assumption of one-third of the children attending the
strictly colored schools, Washington, Momroe and the Buchanan

%
Schools,who would be given the choice to attend the schools 
which they attended last year, those three schools, or to go 
into the new district in which they might reside and attend 
the formerly all-white schools— one-third of the colored chil­
dren will attend the school ax which they attended last year or 
this present term.

Bear in mind this is effective in September of this 
coming term.

There is another provision in this resolution of 
the Topeka Board of Education and that is with respect to 
kindergarten children, that those children entering kindergarten 
:ln 1955-1956, September of this coming year, this coming 
September, those who are affeetod by the change in the 
school district boundaries as recommended, be given the option 
of attending the same school in 1955-1956 that they would have 
attended in 1954-1955 had they been opened up then.



11

It, has been reported to the Attorney General's 
office that the purpose of this clause is that if a parent
v/ho had a child that v/ould enter kindergarten this year formerly 
lived in a segregated district and as a result of the change 
of school district boundaries, a result of this policy, the 
parent can send his child to the school he v/ould have attended 
last year or this current term if he had been old enough or 
he can always send him to the school in the district in v/hich 
he re3ides0

It has been suggested to us that the purpose of 
that is to permit any parent to move from the area where he lives 
to some other area in the City.

Justice Reed; Have you indicated the number of each 
in each of these districts, the number of v/hite and colored 
children?

Mr. Fatzer: Yes, if you have it, your Honor—
Justice Reed: I have it.
Mr. Fatzer: On page 2 it shows approximately the

number of students changing from the four colored schools 
to the non-segregated schools.

Justice Reed: Those I suppose are the integrated
schools?

Mr. Fatzer: That is correct. I used the term "non- 
integrated schools” as of the date of this order.

Justice Reed: It does not show the schools— under



12

paragraph 4, it does not show the number of white and colored 
in different grades?

Mr. Fatser: Well, if Your Honors will go down to the 
last four schools listed in Paragraph 4-— Buchanan, Monroe, 
McKinley and Washington, you will note the estimated total of 
attendance this year is considerably lower than the actual 
attendance on this present school term. Whereas, the reverse 
is true of the other schools affected.

Justice Clark: What was the attendance this past
session, this present system?

Mr. Fatzer: In the whole school system?
Justice Clark: No, the last three schools?
Mr. Fatser: Buchanan, 110; Monroe, 181. No, I

beg your pardon. Buchan 136; Monroe, 256.
Justice Clark: That is these figures here, I see.

I thought that was the next year.
Mr. Fatzer: No, this is the actual, 10-15-54, Mr.

Justice Clark, turn to the right-hand side of the page.
Justice Clark. Yes, I see. Thank you.
Justice Reed: Are your opponents here? Are they

going to argue?
Mr. Fatzer: Yes, they are.
Justice Harlan: Could I ask you a question?
Mr. Fatzer: Yes, sir.

Justice Harlan: Is the difference between those



13

tv/o columns, for example, the difference between 1 10 and 136 
in the case of Buchanan, is that a result of your redistricting?

Mr. Fatzer: That is the estimated result of 
redistricting.

Justice Harlan: Without regard to the possible
exercise of the option that you referred to?

Mr. Fatzer: Well, that is taken into consideration
on this estimate on the basis that one-third of the children 
attending Washington, Monroe, Buchanan , will remain. Tv/o- 
tbirds of them will go to 3 o m e  other school.

Justice Reed. Are all the schools under 4, are they 
colored, or only the last three?

Mr* Fatzer: The last 4 are, Buchanan, Monroe,
McKinley and Washington.

Justice Reed: That is my understanding, but I
still do not understand how many colored pupils are estimated 
to be in grammar school next year*

Mr* Fatzer: 53, your Honor, at the top of page 2.
Justice Reed: 58. That is the estimate for next year?
Mr. Fatzer: Yes, sir* Now, I am not quite sure

that that takes into consideration, and it probably does not, 
the 123 students that have been integrated on Steps 1 and 2.
This i3 an estimate of Step 3 to complete the program.

We believ?, your Honors, that thU Board has c a l l e d  
with the Court’s decision in good faith. That it has done



14

everything it could aa expediently and aa rapidly aa posalble.
It ha3 taken approximately a year and five months of this 
vj tiling Board to meet it a administrative program and problems* 
to provide for teacher assignments* student assignments.. The 
administrative Intent of compliance has been declared. .And 
vie believe* your Honors* that the rule of Eccles vs. Peoples Bank 
in 333 U.S. 426 Is applicable* that where the administrative 
Intention Is expressed but has not yet come to fruition* vje 
have held that the controversy is not ripe for equitable inter­
vention. We believe that the cause should be remanded but that 
this Board be permitted to carry out its orderly process of 
integration.

Now perhaps the Court might he interested in the 
other cities that are not affected by the decree in this case* 
governing solely the Topeka Board of Education. I shall 
briefly cover them.

In the first place* as I told the Court* this decision 
has received no adverse reaction from the people of 
our state. For instance* the City of Atchison* on the Missouri 
River* approximately 3,0*000 people* with about 10 per cent 
Negro population. On September 1 2 * 1953 the B0ard of Education 
adopted a resolution terminating segregation in Grades 7

/
through 12* and so as to complete the plan* segregation is to 
be terminated In grades 1 through 6 as soon a3 practicable.

In Lawrence* the seat of the University* approximately



15

24,000 population, with about 70 per cent of Negro population, 
they have maintained segregated schools since 1369. That city 
and that Board of Education has terminated segregation in its 
system.

In Leavenworth, a city of approximately 20,000, 
there is a population, Negro population of about 10 per cent. 
The system was established, the segregated system was estab­
lished In 1853 and has been maintained constantly since that 
time. They have adopted resolutions In that Board, In that 
city, and the first positive 3tep was taken in the 
current year in which children of kindergarten and first-grade 
pupils were to be admitted to the schools nearest their 
residence and presumably in the ensuing school term it will 
be extended to Grades 2, 3 and perhaps higher.

I should like just briefly, your Honors, to quote 
from a report from one of the school authorities in Leavenworth 
with respect to the time that, in his Judgment, they require 
to complete their voluntary program, because I think. In the 
first place, this man i3 one of the leading public school 
educators in Kansas, he ha3 started the movement In Leavenworth 
to comply with the Court's decision and I would like,Just 
briefly, to read part of his report to our office:

"In my Judgment, the solution will have to be 
carefully and slowly Introduced. You and I and most Board 
members will readily agree to the righteousness of the complete



16

integration from the standpoint of our established principles 
of decency* Christianity ang democracy. However* there is 
a sufficient number of biased and prejudiced persons who villi 
merce life miserable for those in authority who attempt to 
move in that direction too rapidly. As a consequence* many of 
us will be accused of 'dragging our feet* in the matter* not 
because of our personal feelings or inclinations* but 
because* in dealing with the public, its general approval 
and acceptance is indispensable. One cannot force it. He 
can only coax and nurture it along."

In Kansas City* Kansas* with a population of 
approximately 130*000 persons* about 20 .6 per cent are members 
of the Negro population. I should point out that this city has 
a greater per cent of Negro population than 3ome southern 
cities* such as Dallas* Louisville* SL. Louis* Miami* Oklahoma 
City* and only slightly les3 than in Baltimore.

Up to the px-esent school term* including the present 
school term— excuse me--up to the present school term the 
City has maintained seven elementary schools* one Junior 
high school and one high school *'or its approximately 6,000 

Negro students* while it had 22 schools which were attended 
by more than 23>000 white 3tudent3 .

Ju3t briefly* the Board of Education of that city 
has adopted thi3 resolution which provides substance to begin 
integration in all public schools at ihe opening of school on



17

September 13,. 195*1; second* to complete the Integration as 
rapidly aa claaa apace can bo provided; to accomplish the 
transition from segregation to Integration in a natural 
and orderly manner designed*to protect the interest of all 
the pupils and insure the support of the community* and 
they seek to avoid disruption of professional life of career 
teachers.

So that city* although no limit is set* they 
are proceeding in good faith and with dispatch to end 
segregation.

Parsons* a city of 15-000* located in the southern 
part of the state* has less than 10 per cent of Negro population* 
and they have announced their policy to end segregation* 
effective last term with respect to all schools except one 
school* due to it3 crowded condition and the fact that there was 
a lack of adequate facilities and it required new buildings* 
and when those are completed* there will be complete Integration 
in that system.

In Coffeyville* a city on the State Line* the 
Southern State Line* approximately 60*000 to 70-000 people* 
approximately ip per cent colored population* they adopted 
resolutions terminating segregation at the end of the school 
year.

Only one city that we have not heard from* Fort
Scott. We have reports that in that city the only protest



13

against the proposed segregation was from Negro citizens.
I am sure that we shall have no difficulty with that city. We, 
therefore, suggest to this Court that the case he reversed, 
that it he remanded to the District Court and that the Board 
of Education be permitted and allowed, without the interference 
of any dec**ee, to carry out the program in good faith, subject 
to any objections that any person might have with respect to its 
completeness or with respect to its application, and that, at 
that time, notice be given by the Court to Counsel,at which 
time those matters may be dealt with by the lower court.

Justice Frankfurter: May I ask whether, in
Kansas, you have a cent'oallzed authority over the local school 
boards or are they autonomous?

Mr. Fatzer: They are autonomous. They are
elected by the people. They are .financed by the people locally, 
except with respect to state aid, but it is not conditioned 
upon local action. It is conditioned upon daily, average daily 
attendance.

/
Justice Frankfurter: And on the law enforcement side,

doe3 the Attorney General of Kansas,assuming that there is 
a statewide law or an order of thi3 court, is the authority of 
enforcement vested over localities in the Attorney General?

Mr, Fatzer: With respect to state law3, I think 
that i3 correct, sir. I am doubtful if we would have any 
dut;y ico enforce the decrees of this Court.



19

Justice Frankfurter: Who would? In a particular
case you have Topeka, Suppose this Court enters a decree* 
assume we follow your suggestion of remanding the particularities 
to the appropriate district court of the United States and 
a decree Is then entered* binding against the School Board of 
Topeka--! think it would be* would it not?

Mr. Fatzer: That i3 correct* the timbers of the
Board.

Justice Frankfurter: --what would the enforcing 
authority* the Federal authority--has the Attorney General 
of Kansas any responsibility In that regard?

Mr, Fatzer: In this case* when the three-Judge
court was convened* the statute was complied with wSth respect 
to notice to the Governor and the Attorney General of the State.

It would be my Judgment* Mr. Justice* that the great 
inherent power of the Federal District Court* that 
It can enforce its own decrees.

Justice Reed: Mr. Attorney General*do you have
in Kanasa at present a law which permits segregation?

Mr. Fatzer: We do not now* no* sir. We have con­
sidered it to be declared invalid by decision of this Court.

Justice Reed. That Is you have Interpreted the 
decision as invalidating your law?

Mr. Fatzer: Yes* sir* we have.
Justice Reed: Therefore* you feel no obligation to



20

enforce the State law?
Mr. Fatzer: We feel any statute
Justice Reed. You have no obligation to enforce 

that state law ?
Justice Frankfurter: What were the sanctions of 

that state law., Mr. Attorney General, in connection with Mr. 
Justice Reed’s question— what wa3 the nature of that law?

Mr. Fatzer: Purely permissive.
Justice Frankfurter: Just authorizes local school

boards to introduce it?
Mr. Fatzer: They could introduce it or reject it, 

which some of them did. One city in the state never even used 
it. Two cities in the state previously, which had segregation 
previously terminated on their own volition. It is a purely 
permissive. It was a purely permissive statute. We consider it 
without force and effect at this time.

Justice Frankfurter: And you are in this litigation
by virtue of the requirement of notice to the Governor and the 
Attorney General under the three-Judge court statute?

Mr. Fatzer: That 13 correct, your Honor. We felt that 
this system was apparently being maintained under authority of 
thi3 Court, under authority of our Supreme Court, and other 
appellate courts. We felt that we owed a duty to uphold the 
decisions of our 3tate courts with respect to this state 
statute and that is why we were here originally. And we are



21

here novj not as an adversary hut to assist the Court in 
any way we can in helping it arrive at a correct decree if 
any need be entered locally.

Justice Douglas: How many students are involved
here in the Tope lea case?

Mr, Fatzer: 32 00., I think, your Honor, was
the figure.

Justice Douglas: I moan in this litigation.
Mr. Fatzer: The whole school system was involved.
Justice Douglas. In Topeka?
Mr. Fatzer: My recollection i3 that there were

336 Negroes, 7,4l3 white children for a total of 8,254 
children altogether, 336 colored children 7,4lS white children, 
or a total of 3,254.

Justice Douglas: These appellants in No. 1 you
say, you do not know whether they have all been taken into the 
schools that they sought to enter?

Mr. Fatzer: I can not tell you that, sir, I assume
they have. I do not know.I am sure that counsel for the 
Appellant can advise the Court on that, I do not know.

Justice Douglas: I suppose, if they were just
an application by one Negro student to enter the school that 
was closest to hi3 home which happened to be a white school, 
and he was admitted, that that case would hecome moot then?



22

Mr. Fatzer: I assume* sir* that there are more
children involved* all the children of the City School 
system are Involved* in my judgment.

Justice Clark: Under the plan in Topeka* there
will be no segregation* enforced segregation after when?

Mr. Fatzer: Commencing September* 1955* 3ir.
Justice Clark: That is this next September?
Mr. Fatzer: That is this next school term.
Justice Clark: There will be no enforced segregation?
Mr. Fatzer: No enforced segregation.
Justice Clark: Now skipping over to the City of

.Kansas City* what is the schedule there? I understood you to say 
they did riot; have a definite schedule* is that correct?

MR. Fatzer: Well* if I said that* I did not want
to leave that Impression* Mr.Justice Clark.

Justice Clark: I may have misunderstood you.
Mr. Fatzer: I shall read with some care here the

resolution of this Board adopted August 2.
Justice Clark: Where is it? I can read that if you 

want to go ahead.
Mr. Fatzer: It is on page 20 of the

Supplemental brief of the State of Kansas as to questions 4 and 5 
propounded by the Court.

Justice Reed. Going back to page 2 of what you 
filed here on April 11 on the schools* I may be stupid about it*



Contents

ARGUMENT ON BEHALF OF BOARD OF EDUCATION P a g e
Topeka, Kansas

By Mr. Harold R. Fatzer 4

ARGUMENT ON BEHALF OF OLIVER BROWN, ET AL
By Mr. Robert L. Carter 26

ARGUMENT ON BEHALF OF FRANCIS B. GE ESI ART, ET AL
By Mr. J.D. Craven 3S

ARGUMENT ON BEHALF OF ETHEL LOUISE BELTON, ET AL
By Mr. Louis L.Reading 46

ARGUMENT ON BEHALF OF SPOTTSWOOD BOLLING, ET AL
By Mr. George Hayes and Mr. James Nabrit 53

70
ARGUMENT ON BEHALF OF C. MELVIN SHARPE ET AL

By Mr. Milton Korman 83
ARGUMENT ON BEHALF OF HARRY BRIGGS, JR. AND 

DOROTHY DAVIS, ET AL
By Mr. Robinson 102



1

IN THE SUPREME COURT OF THE UNITED STATES 
APRIL TERM, IS55

G(dstein 
Cantor Fuff

ALFRED BROWN, MRS. RICHARD LAWTON, ET AL 
vs.

BOARD OF EDUCATION, TOPEKA, KANSAS, Et AL

FRANCIS B, GERHART ET AL, 
vs.

ETHEL LOUISE BELTON, ET AL,

SPOTTSWOOD THOMAS BOLLING, ET AL,
vs.

Co MELVIN SHARPE, ET AL,

HARRY BRIGGS, JR., ET AL 
vs.

R. W. ELLIOTT, ET AL

DOROTHY E, DAVIS, ET AL
VS.

COUNTY SCHOOL BOARD OF PRINCE EDWARD 
COUNTY, VIRGINIA, ET AL.

Washington, D.C,
April 11, 1955



2

The above-entitled matter came on for oral argument 
at 12 noon.

PRESENT:
The Chief Justice, Earl Warren and Associate 

Justices Black, Reed, Frankfurter, Douglas,
Jackson, Burton, Clark and Minton,
APPEARANCES:

On behalf of the Board of Education of
Topeka, Kansas:

Harold R. Fatzer, Attorney General of Kansas. 
On behalf of Oliver Brown, Et Al:
Robert L. Carter.
On behalf of Francis B. Gebhart, Et Al 
Joseph Donald Craven, Attorney General of 

Delaware.
On behalf of Ethel Louise Belton, Et Al 
Louis L. Reading.
On behalf of Spott3wood Thomas Bolling Et Al: 
George E.C. Hayes and James M. Nabrit, Jr.
On Behalf of C. Melvin Sharpe, Et Al:
Milton D, Korman.
On Behalf of Harry Briggs, Et AL
Thurgood Marshall,Spottswood W. Robinson, II;
On Behalf of R. W. Elliott, Et.

Robert LlcC Figg> jr. , and S.E. Rogers.



3

APPEARANCES - continued.
On Behalf of County School Board of 

Prince Edward County, Virginia, Et Al:
Archibald G. Robertson, and
Lindsay Almond, Jr., Attorney General of Virginia.



4

Goldstein
Cantor
Ruff

The Chief Justice* No. 1 on the Calendar, Alfred 
Brown, Mrs. Richard Lawton, et al, vs. Board of Education of 
Topeka, Kansas, et al.

The Clerk, Counsel are present, sir.
The Chief Justice; Attorney General Fatzer.

ARGUMENT ON BEHALF OF BOARD OF EDUCATION 
By Mr. Fatzer.

Mr, Fatzer; Chief Justice and Members of the Supreme 
Court: I am Harold R, Fatzer, the Attorney General of Kansas
and with me today is Mr. Paul E. Wilson, the First Assistant 
Attorney General who has previously argued the State’s position 
when the question of the answer to Questions 1 , 2 and 3 . 
v;aa argued heretofore.

Today, we appear not as an adversary. We appear 
hereeto be of assistance if we can to the Court in helping 
it see that proper decrees are imposed and made.

Now in answer directly to the questions, your 
Honors, of Nos. 4 and 5 and the subsequent subsections, we 
want to say that traditionally in Kansas, segregation has 
not been a policy of that state, on a 3 tate level. We suspect 
that the Kansas case io probably the least complex of any 
that is before it. We wish to say that that ha3 never been 
a matter of state policy. We believe that the decision of 
the Court has been received by the students, teachers, school 
administrators and by the parents of both colored and white



5

with approval.
In answering and assisting this Court, I shall be 

very brief in stating our position, what we believe should be 
done with respect to the case that is now before the Court, 
that is, the Topeka Board of Education.

Your Honors, we believe that 4-A should be answered 
in the negative. We do not believe that the immediate aud 
forthwith admission of the Plaintiffs— although they may be 
in the school; I am not prepared to tell the Court that they 
are not, I suspect that they are— would, and as the Board of 
Education found, work a hardship, would impair administrative 
procedures, and so we would suggest to the Court that no decree 
be entered which would forthwith admit any student to the 
school of his choice. Rather, v/e believe that the Court 
should exercise its equitable jurisdiction at all times in 
these cases because of the public interest involved, notwith­
standing the fact that the Plaintiffs in the case would 
undoubtedly have some present and immediate right and personal 
right of admission to the schools.

We believe, your Honors— 'and I want to make a brief 
report of a situation that has developed since the brief in 
the Kansas case v/a3 filed— we believe that this case should be 
reversed, that it should be remanded to the Federal District 
Court in Kansas. I should like to tell you and briefly review 
the efforts of the Topeka Foard of Education to terminate



6

segregation in the public schools in that city.
It was commenced on September 3, 1953. The 

policy announced by the School Board was to terminate maintenance 
of segregation in elementary schools as rapidly as was practica­
ble. Five days following that date,to wit* September 8 , 1953, 
segregation wa3 terminated in two schools in the city. It 
Involved only approximately ten colored children, but they were 
living in the district. They were permitted to attend those 
schools.

Justice Burton. You referred to the termination of 
segregation in the elementary schools?

Mr, Fatzer, That is correct.
Justice Burtont Has it been terminated in 

the other schools?
Mr. Fatzer. There i3 none in Grades 1 to 6, Mr.

Justice.
That was called the first step. The second step was 

made on January 20, 1954. And that was effective for the school 
term, current school term, 1954-1955.

At that time, and by order of the Board o? Education, 
segregation was terminated in twelve school districts in the 
city and transportation was not provided to the Negro school 
children living in those twelve districts on the basis that 
the child could attend the school of that district but with 
the privilege, if he preferrsd,to attend the colored school



7

which he had been attending. This affected appro2:iaately 113 
children, plus the ten that had been previously affected from 
Step 2— 123 Negro children were placed in the integrated school.

Justice Frankfurter. What is the total of school 
population into which these 123 wore merged, roughly?

Mr. Father: I will have to refer —
Justice Frankfurter: What magnitude? Was it 10,000,

or 50,000?
Mr. Father: No, nothing of that kind. I think

perhaps the school population in Topeka is roughly 8200, Mr. 
Justice.

Justice Frankfurter: So there v/as no problem of 
space and buildings, and none of those problems?

Mr. Father: In one school there was. One school
in which, in the so-called Polk School there was the space 
problem and I think three children were admitted to that 
school and others were not because of this space problem.

Justice Frankfurter: And there v/as no re-districting
of the districts you have?

Mr. Fatzer: Not at that time.
Now I spoke to your Honors of a subsequent event 

that occurred subsequent to the filing of the State’s brief
here in response to the request of the Court, which occurred 
on February 23, 1055, We have with us today the minutes of 
the Topeka Board of Education adopted February 23, 1955, which



8

we have filed in the Clerk’s office as a supplement to the 
brief filed in this Court in response to questions 4 and 5 
propounded by the Court. We file it simply for informational
purposes to show the good faith of the members of the Board 
of Education of Topeka in carrying out the previous announced 
policy of terminating segregation as rapidly as practicable.

Now this third step, your Honors, is effective 
September, 1955. It provides, (1) that segregation has been 
terminated in all remaining buildings; (2) That the McKinley 
Elementary School, one of the colored schools, be closed and 
that it be placed on a standby basis for the coming year; (3 ) 
That colored schools, Buchanan School, Monroe and Washington 
Schools be assigned districts within the areas of the city, the 
same as any other school area in the city and that any child 
who is affected by the change in the school district— I will 
go ahead— any child who is affected by the change in school 
district lines as recommended on a map which we did not attach 
hereto, be given the option of finishing the elementary grades 
in the school in which he attended in 1954 and 1955.. That is, 
he could attend the school in the district in which he resided 
or, if the new district overlaps now into a district that 
for erly existed before the re-districting, he can attend 
the school that he attended last year. In other words, it is 
equally available to both the white and the colored students.

Justice Frankfurter: Have I missed a statement as



9

to the basis or the reasons for which this re-districting was
I

done?
Mr. Fatzer: The basis of it was done, of course, Your

Honor, on the Court’s decision of May, 1954, to comply with the 
order of this Court that segregation, per se, was unconstitu­
tional. That is the basis of it.

Justice Frankfurter: You mean there were exclusively
Negro schools?

Mr. Fatzer: Yes.
Justice Frankfurter: And those were withdrav/n from

use by the City?
Mr. Fatzer: One was, your Honor.
Justice Frankfurter: One was. And the others are

now available to children, intermixed, is that it?
Mr. Fatzer: Yes.
Justice Frankfurter: Was that districting a geo­

graphic districting?
Mr. Fatzer: Yes.
Justice Frankfurter: Was there any indication in the 

minutes of the Board or in any document you filed as to the 
compact geographic nature of this districting?

Mr. Fatzer: Unfortunately, your Honors, we did not
have attached to this the map of the Board of Education which 
designated the particular districts of the City School System.

Justice Frankfurter: Could you supplement that later?



10

Mr. Fatzer: Yes, v/e would be glad to.
Justice Reed. Could you also supplement that by showing 

the percentage of actual white children in the districts?
Mr. Fatzer: I think that is set forth here in the

figures of the Superintendent, of Public Instruction and 
approved by the Board.

This shows roughly, your Honors, an estimation of—  

on the assumption of one-third of the children attending the 
strictly colored schools, Washington, Monr*oe and the Buchanan 
Schools,who would be given the choice to attend the schools 
which they attended last year, those three schools, or to go 
into the new district in which they might reside and attend 
the formerly all-white schools— one-third of the colored chil­
dren will attend the school ax which they attended last year or 
this present term.

Bear in mind this is effective in September of this 
coming term.

There is another provision in this resolution of 
the Topeka Board of Education and that is with respect to 
kindergarten children, that those children entering kindergarten 
in 1955-1956, September of this coming year, this coming 
September, those who are affeetod by the change in the 
school district boundaries as recommended, be given the option 
of attending the same school in 1955-1956 that they would have 
attended in 1954-1955 had they been opened up then,



11

It, has been reported to the Attorney General’s 
office that the purpose of this clause is that if a parent 
who had a child that v/ould enter kindergarten this year formerly 
lived in a segregated district and as a result of the change 
of school district boundaries, a result of this policy, the 
parent can send his child to the school he would have attended 
last year or this current terra if he had been old enough or 
he can always send him to the school in the district in which 
he resides.

It has been suggested to us that the purpose of 
that is to permit any parent to move from the area where he lives 
to some other area in the City.

Justice Reed; Have you indicated the number of each 
in each of these districts, the number of white and colored 
children?

Mr. Fatzer: Yes, if you have it, your Honor—
Justice Reed: I have it.
Mr. Fatzer: On page 2 it shows approximately the

number of students changing from the four colored schools 
to the non-segregated schools.

Justice Reed: Those 1 sixppose are the integrated
schools?

Mr. Fatzer: That is correct. I used the term "noa- 
integrated schools” as of the date of this order.

Justice Reed: It does not show the schools— under



12

paragraph 4, it does not show the number of white and colored 
in different grades?

Mr. Fatzer: Well, if Your Honors will go down to the 
last four schools listed in Paragraph 4— Buchanan, Monroe, 
McKinley and Washington, you will note the estimated total of 
attendance this year is considerably lower than the actual 
attendance on thi3 present school term. Whereas, the reverse 
is true of the other schools affected.

Justice Clark: What was the attendance thi3 past
session, this present system?

Mr. Fatzer: In the whole school system?
Justice Clark: No, the last three schools?
Mr. Fatzer: Buchanan, 110; Monroe, 181. No, I

beg your pardon. Buchan 136; Monroe, 256.
Justice Clark: That is these figures here, I see.

I thought that was the next year.
Mr. Fatzer: No, this is the actual, 10-15-54, Mr.

Justice Clark, turn to the right-hand side of the page.
Justice Clark. Yes, I see. Thank you.
Justice Reed: Are your opponents here? Are they

going to argue?
Mr. Fatzer: Yes, they are.
Justice Harlan: Could 1 ask you a question?
Mr. Fatzer: Yes, sir.

Justice Harlan: Is the difference between those



13

tv/o columns, for example, the difference between 1 10 and 136 
in the case of Buchanan, is that a result of your redistricting?

Mr. Fatzer: That is the estimated result of 
redistricting.

Justice Harlan: Without regard to the possible
exercise of the option that you referred to?

Mr, ratzer. Well, that is falcon into consideration 
on thi3 estimate on the basis that one-third of the children 
attending Washington, Monroe, Buchanan , will remain. Tv/o- 
thirds of them will go to 3ome other school.

Justice Reed. Are all the schools under 4, are they 
colored, or only the last three?

Mr* Fatzer: The last 4 are, Buchanan, Monroe,
McKinley and Washington*

Justice Reed: That is my understanding, but I
still do not understand how many colored pupils are estimated 
to be in grammar school next year*

Mr, Fatzer: 53, your Honor, at the top of page 2.
Justice Reed: 58. That is the estimate for next year?
Mr. Fatzer: Yes, 3 ir. Now, I am not Quite sure

that that takes into consideration, and it probably does not, 
the 123 students that have been integrated on Steps 1 and 2.
This is an estimate of Step 3 to complete the program.

We believ?, your Honors, that this: Board has complied 
with the Court's decision in good faith* That it has done



14

everything it could aa expediently and aa rapidly aa poaaible.
It ha3 taken approximately a year and five months of this 
willing Board to meet ita adminiatrative program and problems, 
to provide for teacher aasignmenta, 3tudent assignments., The 
administrative intent of compliance has been declared. .And 
we believe, your Honors, that the rule of Ecclea va. Peoples Bank 
in 333 U.S. 426 is applicable, that where the administrative 
Intention ia expressed but haa not yet come to fruition, we 
have held that the controversy is not ripe for equitable inter­
vention. We believe that the cause should be remanded but that 
this Board be permitted to carry out its orderly process of 
integration.

Now perhaps the Court might he interested in the 
other cities that are not affected by the decree in this case, 
governing solely the Topeka Board of Education. I shall 
briefly cover them.

In the first place, as I told the Court, this decision 
has received no adverse reaction from the people of 
our state. For instance, the City of Atchison, on the Missouri 
River, approximately 3,0,000 people, with about 10 per cent 
Negro population. On September 1 2 , 1953 the B0ard of Education 
adopted a resolution terminating segregation in Grades 7

/
through 12, and so as to complete the plan, segregation Is to 
be terminated in grades 1 through 6 as soon as practicable.

In Lawrence, the seat of the University, approximately



15

24,000 population, with about 70 per cent of Negro population, 
they have maintained segregated schools since 1369, That city 
and that Board of Education has terminated segregation In its 
system.

In Leavenworth, a city of approximately 20,000, 
there 13 a population, Negro population of about 10 per cent. 
The system was established, the segregated system was estab­
lished in 1353 and has been maintained constantly since that 
time. They have adopted resolutions In that Board, in that 
city, and the first positive 3tep was taken in the 
current year in which children of kindergarten and first-grade 
pupils were to be admitted to the schools nearest their 
residence and presumably in the ensuing school term it will 
be extended to Grades 2, 3 and perhaps higher,

I should like just briefly, your Honors, to quote 
from a report from one of the school authorities in Leavenworth 
with respect to the time that. In hi3 Judgment, they require 
to complete their voluntary program, because I think. In the 
first place, this man is one of the leading public school 
educators in Kansas, he ha3 started the movement in Leavenworth 
to comply with the Court’s decision and I would like,ju3t 
briefly, to read part of his report to our office:

"In my Judgment, the solution will have to be 
carefully and slowly introduced. You and I and most Board 
members will readily agree to the righteousness of the complete



16

integration from the standpoint of our established principles 
of decency,. Christianity an£ democracy. However, there is 
a sufficient number of biased and prejudiced persons who will 
matce life miserable for those in authority who attempt to 
move in that direction too rapidly. As a consequence, many of 
us will be accused of 'dragging our feet' in the matter, not 
because of our personal feelings or inclinations, but 
because, in dealing with the public, its general approval 
and acceptance is indispensable. One cannot force it. He 
can only coax and nurture it along."

in Kansas City, Kansas, with a population of 
approximately 130,000 persons, about 2 0 .6 per cent are members 
of the Negro population, I should point out that this city has 
a greater per cent of Negro population than 3ome southern 
cities, such as Dallas, Louisville, St. Loui3, Miami, Oklahoma 
City, and only slightly less than in Baltimore.

Up to the px-esent school term, including the present 
school term-excuse me--up to the present school term the 
City has maintained seven elementary schools, one Junior 
high school aud one high school *or its approximately 6,000 

Negro students, while it had 22 schools which were attended 
by more than 23.. 000 white 3tudent3 .

Ju3t briefly, the Board of Education of that city 
has adopted thi3 resolution which provides substance to begin 
integration in all public schools at the opening of school on



17

September 13., 195*1; seconds to complete the integration as 
rapidly aa claa3 apace can he provided; to accomplish the 
transition from segregation to integration in a natural 
and orderly manner designed.,to protect the interest of all 
the pupils and insure the support of the community* and 
they seek to avoid disruption of professional life of career 
teachers.

So that city* although no limit i3 set* they 
are proceeding in good faith and with dispatch to end 
segregation.

Parsons* a city of 15.*000* located in the southern 
part of the state* has less than 10 per cent of Negro population* 
and they have announced their policy to end segregation* 
effective last term with respect to all schools except one 
school* due to its crowded condition and the fact that there was 
a lack of adequate facilities and it required new buildings* 
and when those ax’© completed* there will be complete integration 
in that system.

In Coffeyville* a city on the State Line* the 
Southern State Line* approximately 60*000 to 70*000 people* 
approximately ip pen* cent colored population* they adopted 
resolutions terminating segregation at the end of the school 
year.

Only one city that we have not heard from* Fort
Scott. We have reports that in that city the only protest



13
against the proposed segregation was from Negro citizens«
I am sure that vje shall have no difficulty with that city. We, 
therefore, suggest to this Court that the case he reversed, 
that it he remanded to the District Court and that the Board 
of Education be permitted and allowed, without the Interference 
of any decree, to carry out the program in good faith, subject 
to any objections that any person might have with respect to its 
completeness or with respect to its application, and that, at 
that time, notice be given by the Court to Counsel,at which 
time those matters may be dealt with by the lower court.

Justice Frankfurter: May I ask whether, in
Kansas, you have a cent-eallzed authority over the local school 
boards or are they autonomous?

Mr, Fatzer: They are autonomous. They are
elected by the people. They are financed by the people locally, 
except with respect to state aid, but it is not conditioned 
upon local action. It is conditioned upon daily, average daily 
attendance.

Justice Frankfurter: And on the law enforcement side,
doe3 the Attorney General of Kansas,assuming that there Is 
a statewide law or an order of this court, is the authority of 
enforcement vested over localities In the Attorney General?

Mr. Fatzer: With respect to state law3, I think 
that is correct, sir, X am doubtful If we would have any 
duty to enforce the decrees ox" tnis Court.



19

Justice Frankfurter: Who would? In a particular
case you have Topeka. Suppose this Court enters a decree* 
assume we follow your suggestion of remanding the particularities 
to the appropriate district court of the United States and 
a decree is then entered,, binding against the School Board of 
Topeka--I think it would be., would it not?

Mr. Fatzer: That 13 correct, the iPmbera of the
Board.

Justice Frankfurter: — what would the enforcing 
authority, the Federal authority--ha3 the Attorney General 
of Kansas any responsibility in that regard?

Mr. Fatzer: In this case, when the three-Judge
court was convened, the statute was complied witn with respect 
to notice to the Governor and the Attorney General of the State.

It would be my Judgment, Mr. Justice, that the groat 
Inherent power of the Federal District Court, that 
it can enforce Its own decrees.

Justice Reed: Mr. Attorney General,do you have
in Kanasa at present a law which permits segregation?

Mr. Fatzer: We do not new, no, sir. We have con­
sidered it to be declared invalid by decision of this Court.

Justice Reed. That Is you have Interpreted the 
decision as invalidating your law?

Mr. Fatzer: Yes, air, we have.
Justice Reed: Therefore, you feel no obligation to



20

enforce the State lavj?

Justice Reed. You have no obligation to enforce 
that state law?

Justice Frankfurter: What were the sanctions of 
that state law., Mr, Attorney General, in connection with Mr. 
Justice Reed's question— what was the nature of that law?

Mr. Fatzer: Purely permissive.
Justice Frankfurter: Just authorizes local school

boards to introduce it?
Mr. Fatzer: They could introduce it or reject it, 

which some of them did. One city in the 3tate never even used 
it. Two cities in the state previously, which had segregation 
previously terminated on their own volition. It is a purely 
permissive. It was a purely permissive statute. We consider it 
without force and effect at this time.

Justice Frankfurter: And you are in this litigation
by virtue of the requirement of notice to the Governor and the 
Attorney General under the three-Judge court statute?

Mr. Fatzer: That 13 correct, your Honor. We felt that 
this system was apparently being maintained under authority of 
thi3 Court, under authority of our Supreme Court, and other 
appellate courts. We felt that we owed a duty to uphold the 
decisions of our state courts with respect to this state 
statute and that is why we were here originally. And we are

Mr. Fatzer: We feel any statute —



21

here now not ag an adversary but to asslot the Court in 
any way we can in helping it arrive at a correct decree if 
any need be entered locally.

Justice Douglas: How many students are involved
here in the Topeka case?

Mr. Fatzer: 8200., I think., your Honor., was
the figure.

Justice Douglas: I mean in this litigation,
Mr. Fatzer: The whole school system was involved.
Justice Douglas. In Topeka?
Mr. Fatzer: My recollection is that there were

836 Negroes., 7,4l3 white children for a total of 3^254 
children altogether* 836 colored children 7,4l3 white children., 
or a total of 3*254.

Justice Douglas: These appellants in No. 1 you
say., you do not know whether they have all been taken Into the 
schools that they sought to enter?

Mr. Fatzer: I can not tel*, you that., 3ir, I assume
they have. I do not know.I am sure that counsel for the 
Appellant can advise the Court on that, I do not know.

Justice Douglas: I suppose.. If they were just
an application by one Negro student to enter the school that 
was closest to his home which happened to he a white school., 
and he was admitted., that that case would hecome moot then?



22

children involved* all the children of the City School 
system are involved* in my judgment.

Justice Clark: Under the plan in Topeka* there
will be no segregation* enforced segregation after when?

Mr. Fatzer: Commencing September* 1955* 3ir.
Justice Clark: That is this next September?
Mr. Fatzer: That is this next school term.
Justice Clark: There will be no enforced segregation?
Mr. Fatzer: No enforced segregation.
Justice Clark: Now skipping over to the City of

Kansas City* what is the schedule there? I understood you to say 
they did not have a definite schedule* is that correct?

MR. Fatzer: Well* if I said that* I did not want
to leave that impression* Mr.Justice Clark.

Justice Clark: I may have misunderstood you.
Mr. Fatzer: I shall read with some care here the

resolution of this Board adopted August 2.
Justice Clark: Where i3 it? I can read that if you 

want to go ahead.
Mr. Fatzer: It is on page 20 of the

Supplemental brief of the State of Kansas as to questions 4 and 5 
propounded by the Court.

Justice Reed. Going back to page 2 of what you 
filed here on April 11 on the schools* I may be stupid about it*

Mr. Fatzer: I assume* sir* that there are more



23

but in the fourth section., that refers only to Negroes.
Mr/Fatzer: That is Item No. 4.,"The following is

the estimate of the number of students in 19 5 5 -19 5 6 that 
would be in the affected schools."

Justice Reed: Does that mean Negroes* too?
Mr. Fatzer: Yes.

' Justice Reed: You don't know the percentage of
Negro students in each school?

Mr. Fatzer: No* I am in error* your Honor. That i3

total enrollment.
Justice Reed: I understood you had a total

enrollment of 3oroe 3*000?
Mr. Fatzer: Yes* that is correct.
Justice Reed: Then there is only 2750 accounted

for here.
Mr. Fatzer: We would be glad* your Honor* to provide

this breakdown with respect to these schools* with respect to 
whether they are white or colox^ed in each grade.

Justice Reed: It would help me.
Mr. Fatzer: All right. In other words —
Justice Reed: You have rediotricted and what I was

interested in is to know whether the redistricting has 
resulted in essential--whether all the school population will be 
unsegregated* or whether you will have all of the schools in one 
section all colored population.



2H

the areas that are predominantly through history., geographic 
residential colored areas.

Justice Reed: Very normal that there Is a separation
of population.

Mr. Fatzer: Mow on the fringe, some of the colored
students under thi3 plan would go to the white schools, the 
white children that are in the new areas, new districts, could 
likewise complete their course. They can attend either school.
It is a privilege that is given to either child.

Justice Reed: And we do not know how long that
will continue, strictly speaking?

Mr. Fatzer: Well, from now on. I mean, segregation.
Justice Reed: The plan oould result in not a

segregated school, hut an all-white school and an all-Negro 
school?

Mr. Fatzer: It Is my understanding, sir, that
that would not be the case. Now for the children, if you will 
note under No. 2-D, any child who i3 affected by the change In 
district lines a3 herein recommended, be given the option of 
finishing elementary grades. That would be, if he was in the 
first grade, he could finish the elementary grades 1 to 6 in 
the school which he attended this current year. Now that 
Is equally available to both the colored and the white students.

Justice Reed: I understand that, but It is also

Mr. Fatzer: The colored schools are In the



25

equally available that all the Negroes could go to one 
□chool and all the whites to another.

Mr. Patzer: I am not prepared to say on that, sir,
but my understanding is that that would not be the case.
Ue will be glad to furnish the Court maps showing this area 
and we would be glad to show a breakdown under No. 4, Mr. 
Justice Reed, of the per cent and the number of the 
different white and colored students.

Justice Frankfurter: I would be grateful to you
if you would add to that what is not fully clear in my mind and 
I do not want to take the Court's and your time— if you would 
he good enough to state why there had to be, in the judgment 
of the School Board, redistricting and the basis on 
which the redlstrlctlng was done.

Is my question clear?
Mr. Fatzer: Why redlstrlctlng—
Justice Frankfurter: Why was it necessary, in 

order to carry out the desegregation, the abolition of 
segregation, why wa3 it necessary to have new cr changed 
school districts and what were the considerations which led 
to the kind of districts that they carried out?

Mr. Fatzer: It Is rry understanding, Mr. Justice,
that the reasons they required the rodiatricting of the 
schools, as this proposal would establish, is that 
colored schools did not have a district previously, chan xu,



26

in a general large way., that children living in thia particular 
part of the city would attend thia particular achool.

Juatice Frankfurter: They Just took them by bua to
achoola aet aside for colored children?

Mr, Fatzer: That ia right.
Juatice Frankfurter: I see.
Mr, Fatzer: They gathered them up. So that now

they have definite proposed diatricte for each of the3e 
achool3 with definite geographic lines.

Juatice Frankfurter: And your map3 will show the
nature of the districts., the contours of the districts., will 
they not?

Mr, Fatzer: That ia correct.
Thank you, your Honors, very much.
The Chief Justice: Mr. Carter?

ORAL ARGUMENT ON BEHALF OF BROWN, ET AL 
By Mr, Robert L. Carter

Mr. Carter: We are in accord with Mr. Fatzer that 
the case should be reversed and remanded to the District 
Court, We feel that the decree should be entered by this 
court declaring the Kansas statute by which power the 
Topeka Board proceeded to organize and have segregated schools, 
that that statute be declared unconstitutional and void.

Justice Frankfurter: I understood that the
Attorney General had already expressed an opinion to that



27

effect.
Mr. Carter: He had expressed an opinion.
Justice Frankfurter: I am not saying what you said

should not be done* but he has already announced that this 
Court’s decision on May 17 of last year invalidated 
that statute. Is that a correct understanding?

Mr. Carter: Yea, sir. That is invalidated, that
invalidated the statute but, as far as Topea is concerned, 
any power to organize and segregate a school must emanate 
from a specific statute or else,under the state law,there is 
no power to maintain segregation. Therefore, the Invalidation 
of this statute means there is no power at all in Kansas to 
maintain and operate segregated schools as the law has been 
Interpreted by the State Courts of Kansas.

Justice Reed: That was involved in the suit
you brought here?

Mr. Carter: Yea, sir.
Justice Reed: What do you mean, you want a specific

Invalidation of this specific statute?
Mr. Carter: We think, your Honors, that such

a decree ought to be entered, declaring the statute unconstitu­
tional because as of now the implications are that the statute 
is unconstitutional by the May 17th decision, but the May 17th 
decision has no specific declaration or Judgment or decree.
And In the reversal, we think this should be set forth In



28

your reversal and remanding to the lower court.

Justice Feed: If we had aald that in the opinion,

then it would not bo necessary in the decree, or would it?

Mr. Carter: I think It would in terms of the

decree. It scem3 to me that 13 the thing that the lower 

court gets and acts upon rather than the opinion of the court,

Justice Reed: If a decree Is reversing the decision

of the court below to allow all children, a complete Integratlon- 
I do not just understand, yourpoint.

Mr. Carter: We think that‘the May 17th decision

In effect means that the Kansas statute which was here in this 
case is void. What we are asking for Is specifically a 

decree, reversing and specifically saying the statute is uncon­

stitutional and has no force and effect.

Justice Frankfurter: You would rather go to the
decree, rather than the opinion?

Mr. Carter: Yes.

Justice Frankfurter: Because the decree Is the
thing that counts:

Mr. Carter: Y es. Secondly, we would like a

decree that would indicate that an order to the Topela 

Board to cease and desist at once from basing school attendance 

and admission on the basis of race so that as of September,

1955 no child in Topeka would be going to school on the basis 

of race or color. We would think that an instruction should lie



29

issued to the District Court to hold Jurisdiction and hold 
proceedings to satisfy itself that the school board of Topeka 
as of September, 1955, has a plan which satisfies these 
requirements in that the school system has been reorganized 
to the extent that there is no question of race or color 
involved in the school attendance in its rules.

We also think that the School should hold Jurisdic­
tion, the District Court should hold Jurisdiction to issue 
whatever other orders the Court desires.

We feel that everything that Mr. Fatzer has said 
augurs for a forthwith decree in this case .

The plan which has been issued as che third step, 
is not one that indicates that there are any reasons why 
desegregation should not be obtained as of September, 1955.
The plan says that desegregation will obtain as of September, 
1955. We take objection to the plan. We think there are a 
number of Governors in the plan which will mean there will be 
a modified form of segregation being maintained for many /ears 
as the plan now operates, but we do not think that this is 
the place for U3 to argue about the question of the plan.

We think that this court issues a decree as we have 
suggested to the lower court with the school board and the 
attorneys for the appellants can argue as to whether or not 
a specific plan which is being adopted by the Board



30

conforms with the requirements of thi3 court's opinion and 
Its decree, that segregation bo ended as of September, 1955, 
'which we think should be done.

Justice Frankfurter. As of September. Can you 
tell specifically when the classes are formed In the Topeka 
schools? Wien is the makeup of the classes affected in 
thia litigation? When, in September, the first of September, 
or— do you happen to know about that? The point of my question 
is as to the time rhen this must be determined if it is 
to affect the entering classes in September, when it is 
that the district court will have to hear these things?

Mr. Carters I do not have that information. I 
know that one of the resolutions, the school opens September 15, 
I think thl3 year. I do not know when they open in 1955.

Justice Frankfurter: The Attoi’ney General will be
able to tell U3 then?

Mr Carter: I would think that we would of course
want to have a hearing before the District Court at as early 
a date as possible so that this matter could be settled and 
there wOild be no question but that the question in Topeka 
would he going to unsegregate schools on a plan which conforms 
to the court's decree in all its requirementr 
as of September, 1955. With that we would be satisfied.

Justice Clark: Are the appellants segregated at
thia time?



31

Mr. Carter: Yea* air. There are five who are in
the junior high school who have moved out of thia claaa 
because they are not in a non-segregated school. About 
six of them are attending Washington, Buchanan, and- Monroe 
schools which are the segregated schools.

Justice Harlan: Is that the result of expulsion,
or their own choice?

Mr. Carter: Well, your Honor, as a result of
expulsion, this plan, what is known as the third step— there 
were IS school districts In Topeka. The first six schools 
listed on page 2 of the Order, the papers which the 
Attorney General gave you, those schools are the remaining 
six schools In which segregation still obtains, the all-white 
schools. The lower four schools are the all-Negro schools.

In all of the other districts, that is approximately 
12, Negro and white children are attending schools together, 
that is the Negro children are able to go to the schools that 
are nearest to their homes.

This third step purports to complete the Integration 
of the system and to bring Into the system the three Negro 
schools and make It a part of the total school system. Now 
instead of 18 schools, you will have 2 1 schools purportedly 
servicing every one. Our objection to thia Is the fact that in 
our opinion these three schools will remain segregated, all 
Negro children will be attending them for many years to come and



32

we think that doe3 not conform to your order.
Justice Douglas: Are those Buchanan, Monroe and

Washington?
Mr. Carter: Ye3, sir.
Justice Cl irk: Will that be on a voluntary basis,

you think?
Mr. Carter: No, that will not be on a voluntary 

basis because the Negro children who now live in the District, 
as this thing i3 reorganised in the district serviced,for 
example, by Buchanan, as you will note, the children in 
this district have an option to go to a school outside of the 
District, but since the Negro children only had the option 
or the right before this thing was put into effect, to go 
to Buchanan, Monroe and Washington,they can not exercise an 
option to go to any other school than the Negro school. That 
means this, that the white children will go out of the district 
and continue to go to the schools they are going to and the 
Negro children will he forced to continue in Buchanan, 
therefore you will have segregated schools.

I think that is a3 much segregation as before the 
May 17th order.

Justice Harlan: Do you attribute that result to the 
way the option system may work rather than the way the 
district is made up?

Hr. Carter: Yes, sir. I know nothing about the



33

district. I cannot say whether the districting is done fairly, 
I do not know anything about the matter. But on the face of 
It, this is nry objection to the plan as it is given to us by 
the Attorney general.

Justice Clark: I thought all the students would
be given a choice as to whether they want to stay there or 
go to another school under Section 3- page 1, the bottom of the 
page. It does not 3ay all, but it says the estimated number of 
students who will transfer is indicated as one-third.

Mr. Carter: I know. Justice Clark, but if you
will look on page 1, Item D on the third step, this is the 
option, that "Any child who is affected by change in the 
district lines as herein recommended, be given the option of 
finishing elementary grades in the school which he attended 
1954-1955 and continue therein."

This is the option to be exercised and this is the 
option where the Negro child has no option and the white 
child in the District that is serviced by one of the former 
Negro schools, has an option to go out of the district and 
the Negro child has not.

The Chief Justice: Thank you, Mr. Carter.
Mr. Attorney General, can you tell us when the 

schools open in Topeka?
Mr. Fatzer; My understanding Is, sir, that it

commences on the second Monday in September and that the



3*

enrollment of students is generally completed during a 
three-day period just about,, just before the second Monday 
In September.

The Chief Justice: The determining as to where
a child shall go Is not made until In September?

Mr. Fatzer: I think that Is true. I assume that
it villi be worked out under this plan. If the lower court 
would approve it or if it were to be modified by that date* 
surely the schools authorities want to know how many children 
are going to be In some school and whether facilities are going 
to be adequate and whether or not, under the program and the 
plan as proposed or as may be modified, that what children 
are going, whether they are eligible under the plan to go to this 
school and whether existing facilities are available to take 
care of them.

The Chief Justice: I think generally what thi3 Court
would be Interested in knowing would be In the event there 13 
a remand to the District Court, if It might be said when 
it get3 there, that It wag too late for next year.

Mr. Fatzer: No.
The Chief Justice: That it should have beer, there

before some date, say. In July or August when those 
things are done.

Mr. Fatzer: I am sure that would not be the case,
your Honors. I can tell this Court that I am pretty certain.



35

Justice Reed: From what you say* I take it that
you consider it proper to allow an option to a child to go to 
another school* that is within the limits of the Constitution?

Mr. Fatzer: Bearing in mind* sir* that our under­
standing at present —

Justice Reed: Before you answer that* may I make
another statement. I understand that normally a child in Topeka 
goes to the school in the school district in which he resides?

Mr. Fatzer: Yes* sir.
Justice Reed: Now* there i3 a variation from

that which allows him to go to another school if he 
has been going there before. That is the 2-E section?

Mr. Fatzer: Yes. He can complete his elementary
course in the other school, if he should be in another 
district.

Justice Reed: A child who goes to school for the
first time* for the first year* in the first grade* may he 
choose a school to which he goes?

Mr. Fatzer: The first year only.
Justice Reed: And after having chosen the first year* 

then he continues there?
Mr. Fatzer: He must attend in the district in 

which he resides under Plan 2~E.
Justice Reed: If he attends in 1955-1956* you

interpret that to mean only for 1 9 5 5-19 5 6* for that year?



30

Mr. Fatzcr: That la the interpretation placed upon 
It by the attorney for the Board of Education to our office* 
yes*sir* that they only attend there one year.

If* in the area of the Monroe school* some 
child by geographic area would be within that boundary and 
within another district prior to this redistricting and 
could have attended last year if they had been old enough* they 
could attend the so-called white school for the one-year 
period on the basis that it would permit time for the parents 
to move if they so desired.

I am told that very frankly that is the purpose of 
the section.

Justice Burton: That applies to the particular 
year. In years to come there will not even he that option.

Mr, Fatzer: Just one year* the next school year*
Mr. Justice.

The Chief Justice: Thank you.
No. 5* Francis B. Gebhart et al* Petitioners* 

vs. Ethel Louise Belton* et al.
The Clerk: Counsel are present.

ARGUMENT ON BEHALF OF GEBHART, ET AL 
By Mr. Joseph Donald Craven

Mr Craven: Mr. Chief Justice and Members of the
Supreme Court: The brief for the State of Delaware was filed
by my predecessor* Mr. Young, I find myself in agreement with



37

that brief except for one modification which I will mention 
to the Court a little later., but we are before the Court 
asking for a firm answer of the Court of Chancery of the 
State of Delaware and the Supreme Court of the State of 
Delaware. That is based on two conaiderations. First., that 
the separate but equal doctrine under which these cases were 
brought here is^of course., no longer in effect in view of the 
Court*s decision of May 17 and secondly* because these 
children have been integrated into the two school districts 
which were involved in those eases* that is., the Hoc Ices sin 
and Yoriclyn school districts.

There have been no untoward events in connection
»

with that integration and the state is as Icing for a firm 
answer.

Justice Frankfurter: You mean each one of these
parties is now in a school or has been in a school in which 
segregation in any aspect has terminated?

Mr. Craven. Ye3 .
Justice Frankfurter: Arc all these children now in

school?
Mr, Craven. Some of them I think have been graduated* 

are through. This was back in 1952. But they are either all in—  

Justice Frankfurter: VJhat schools are we talking
about?

Mr. Craven: Yoriclyn and Hockesain.
What grade are they?Justice Frankfurter-



3S

school.
Mr. Craven: They are both elementary and high

Justice Frankfurter: Some of these children were
in high school and are now out of high school?

Mr. Craven: Yes., some of them are still in high
school.

Justice Frankfurter: Some of them are still in
high school?

Mr. Craven: That is correct.
Justice Frankfurter: You say as to no child is there

any question as to any aspect of segregation affecting that 
child?

Mr. Craven: In those two cases., in the two cases
before the court.

Justice Frankfurter: In your cases:
Mr. Craven: That is right.
Justice Douglas. In No.5?
Mr. Craven: In No.5.
Justice Douglas: So specifically., a decree as

to some of these children is completely moot because the 
children are out of school?

Mr. Craven: Yes.
Justice Douglas: And a3 to some* the children are

in a school as to which no order prohibiting something is
real or practical or alive because the child, is now enjoying



39

what he should?
Mr. Craven: That is correct.
Justice Douglas: That is your understanding?
Mr. Craven: That is my understanding., however, I 

would like—
Justice Reed: What decree do you recommend?
Mr. Craven: A simple, a firm answer of the holding 

of the Supreme Court of Delaware and affirm the Court of 
Chaneery decis ion.

Justice Frankfurter: What did your court decree?
Mr. Craven: Our court decreed, Court of Chancery 

decreed that the children should he entitled to immediate 
admittance into nonsegregated schools on the theory 
that they had this present constitutional personal right and 
having found that the facilities were not equal in those two 
districts and that decision of our Court of Chancery was appealed 
to our State Supreme Court which affirmed and the State again 
appealed on the narrow question that the districts in question 
should have been given time in which to make the facilities 
equal.

Of course, that is no longer a matter for argument 
before this Court.

Justice Reed: The matter of constitutionality 
was not dealt with at all?

Mr, Craven: No, it was not. We did not come up here



40

on the question as to whether segregation per se was unconsti­
tutional*

Justice Frankfurter: At the time the case was
here,, inasmuch as they were admitted by the decree of this 
Courts what was the thing that the parties asked that you 
resisted?

Mr. Craven: We took the appeal on the basis that 
our local court., our Court of Chancery should have afforded the 
defendants, time in which to make the facilities equal and 
that by denying time., they erred.

Justice Frankfurter: I suppose that they would say
the case is still alive inasmuch as their rights rested on 
not being equal rather than on the prohibition upon the 
states,, equal or not equal,, to make segregation?

Mr. Craven: We do not take the position. We
think that is not before the Court. We think that is moot. We 
recognize the binding effect of the Courtrs decision in the 
other cases in which the specific question of segregation 
was raised.

I say to that extent I„ as the present attorney 
general of the state., am in accord with ray predecessor in asking 
that the cases be affirmed. And it would seem to me that that 
is all that there is before the Court a3 far as Delaware is 
concerned, in the nature of the cases that come here.

However., my predecessor did argue at 3ome length—



I villi not argue at length but I feel in ^ty bound to have 
something to say about the situation in Delaware otherwise.
I wish I were in the happy position of my friend Mr.
Fatser from Kansas* and to say that theî e is no problem as 
far as Delaware is concerned* but we are a border state and 
ever since the civil war* it seems to mcj,thc border states have 
had their particular problems. I should be happy to be able 
to tell this Court that all is well and will be well whatever 
the form of the mandate of this court is. That I can not*either 
in justice to this Court* nor in justice to the people of 
Delaware* say* because we are a divided and a troubled people 
in the face of the mandate of the Court.

< That is where I depart from my predecessor who 
a3ked that this court out of the bounty of its wisdom* sot 
an ultimate date beyond which segregation would no longer be 
permitted. With the greatest deference in the world to this 
Court* I do not thinlc that it has such wisdom. I think: it would 
be presumptuous of me to come here and ask this Court to 
name a date which I could not name as a native of Delaware* 
who has lived there all my life and I say that it seems to me 
in order to Implement the .mandate of the Court, it ia 
going to be necessary to remand the cases in question* because 
we feel of course that we are going to be bound by the action 
of the Court as well as where those particular issues have been 
raised* that the cases should be remanded to the Courts of



42

first instance. with a direction that the suitable state 
authority, whether it he the State Board of Education or the 
local hoards, submit plans under the direction of this 
Court, and that the local courts see that those plans are 
carried out. We have many problems in Delaware.

Justice Reed: You mean the specific precincts,
school districts are involved?

Mr. Craven. Well, of course the Court has 
before it certain specific cases and I assume it will not 
reach out but will direct its mandate to those particular 
cases. We. in Delaware, as in all other states where 
segregation has had. we believe up to this time, constitutional 
sanction will naturally be bound by and will be interested 
in the form of that mandate because we assume--and I may 
say that those of us who are the attorney generals of our 
respective states and are conscious of our duty as constitutional 
officers to respect and carry out the mandate of this Court —  

recognize and feel that we have great problems coming before 
us. I can conceive of a plethora of suits in the State of 
Delaware involving a great many of the various school districts 
in which the attorney general or his deputies will have 
to,as wo do represent the State Board of Education, unless 
some orderly process or plan can be worked out to see the 
spirit as well as the letter of the courts mandate is effectively 
implemented.



43

interrupt you to ask whether,, in Delaware., you have a centralized 
educational authority or is it decentralized as it is in 
Kansas?

Mr Craven: I think: it is perhaps a compromise of
the two., your Honor, We have a 3;ate Baard of Education which 
has supervisory power of all the school districts of the 
State, Then we have special school districts which have a 
large amount of autonomy., and which raise their own taxes.
Then we have what we call school districts that are entirely 
supported by the State„ and which are more directly 
responsible to the State Board of Education.

Justice Frankfurter: In relation to a problem like
•chat what is c’ne diffusion or division of authority in your 
state? I ask it in view of the litigation you had in y o u r  state,

Mr. Craven: We have had some litigation. And I think
I might say in passing., that I think the litigation that we 
have had is indicative of intent and desire on the part of 
both the people and the courts of Delaware to comply with 
the decision of May 17th and with the implementation which I 
assume will be forthcoming.

We have had one decision by our Supreme Court which 
has declared the provisions of the Delaware Constitution and 
the statutory provisions thereunder providing for segregated 
educationa to be unconstitutional. That is a late case,, I955>

Justice Frankfurter: Mr, Attorney Generals may I



bb

and is the case of Steiner vs. Simmons* found in m  Atlantic 
2d at 51b, and I road from the Court's opinion. I have a m i m e o ­
graphed opinion so I think the page reference would not he 
very helpful. However,, it is on page 11 of this mimeographed 
opinion and reads:

"We think that the opinion in the segregation 
cases is a final one. .1 Its necessary present effect is 
to nullify the provisions of the Delaware Constitution 
and statutes requiring separate schools for whites and 
Negroes."

And so far as Delaware is concerned., our Constitu­
tional provisions and our statutes have been declared uncon­
stitutional., the ones requiring segregation* in conformance with 
the opinion of this Court.

I will not pass on to some other litigation which 
perhaps is at the Court's notice* some of which is still pending. 
I am not asking the sympathy of the Court* but the Attorney 
General of the State has these problems to face., and I sometimes 
feel that the making of the decision and the implementing*of 
the decision Is not a matter of mandate* it is a matter of 
the local officers* their attitudes and their ability to 
cope with local conditions. And so I strongly urge the Court 
that it not set an ultimate date* that it not attempt to decide 

in 43 states how the thousands of school districts are going 
to conform with its mandate* but that it trust the local



45

judgments., and that under some general directions it refer these 
cases back to the local courts,, assuming that the judges and the 
local officials and the attorney generals will do their duty.

Justice Harlan: There is one thing I do not quite
understand* Mr. Craven. I understood you to say first 
because of the Delaware situation* that all that was required 
was a straight* a firm answer of this Court* no mandate* 
nothing,

Mr. Craven: That is correct.
Justice Harlan: Therefore* what you have been

saying more recently relates to your views as to what 
decrees should be issued in the case of other states?

Mr. Craven. In the other states* others similarly
situated.

The Chief Justice. Mr. Healing?
ORAL ARGUMENT OH BEHALF OF BELTON, ET AL 

By Mr. Louis Reading.
Mr. Reading. May it please the Court* there are 

two important circumstances I believe which distinguish the con­
solidated Delaware cases now before your Honors from all 
the other school segregation cases. The Attorney General 
has alluded to both of those circumstances. He has pointed 
out that the Respondents here* the Negro school children 
who are respondents here* v:erc admitted to the schools previously 
ascribed by the State Constitution exclusively for white



U6

children., by the decree of the Court of Chancery, which was 
affirmed by the Supreme Court of Delaware in August, 1952, 
and except in three instances where those children have 
graduated from high school, they have been or they are now 
.-just about completing their third successive year of attendance 
on a non-segregated basis.

I should like to point out what is in the brief 
of the Attorney General to the effect that this attendance 
has been without incident and without social repercussion.
The other circumstance to which Mr. Craven has alluded 
is the fact that the Delaware Supreme Court has had 
occasion to construe the effect of the decision in the 
school segregation cases on school segregation as it has 
been practiced in Delaware since May 17, 1954, and the 
Attorney General is,of course, correct in pointing out that 
' the Supreme Court of Delaware ha3 said in three places in its 
opinion that the decision of this Court on May 17 renders 
null the Delaware constitutional ar‘ statutory provisions 
providing for public school segregation. But the Supreme 
Court>8 opinion in this case to which Mr. Craven has alluded, 
Steiner vs. Simmons, 111 Atlantic 2nd 574, does create a 
peculiar problem in Delaware. The Respondents here, as we 
have already said, were immediately admitted by the 
Delaware Courts to the schools previously for »hite, and 
they were admitted to those schools because both the Court of



47

Chancery of Delaware and the Delaware Supreme Court 
Interpreting this Court rs opinions in the Gaines., the 
Sipuel and the Sweatt cases decided that this right to the 
equal protection of the laws in so far as that applied to 
public schools,, was a present and personal act., and it 
was for that reason that it admitted Negro school children 
to the schools. However, in this opinion of the State Supreme 
Court, decided on February 8, this year, the Court seems to 
take another position. The Court says that, and I would like 
with the Court*3 indulgence, to read .Iu3t a few lines of the 
opinion which Mr. Craven did not read, and the Court says: "The 
right to unsegregated education has been established. The 
Plaintiffs in the segregation cases and the Plaintiffs in 
the case now have that right. But as to the Plaintiffs in 
the segregation case, the enforcement of that right has 
been deferred.- The Supreme Court of the United States lias 
not entered a decree directing immediate admittance,"

And a little further down, the Court say3 :
"Under such circumstances, can the right of the 

Plaintiff3"who were their respondents --"be 
considered a present and personal right?"

Justice Frankfurter: Those are different children? 
Mr. Reading: Yes,sir, so that now we have the

situation that in Delaware the persons who are now Respondents 
in this case have been recognized by the Court, the



Supreme Court of Delaware., as having a present and personal 
right to equal opportunity to a non-segregated education.

But children who have been segregated since that 
time do not have such a right. It is for that reason that 
I would like to advert., as Mr. Craven did., to the decrees 
which this Court will enter in other cases. lie believe 
that those decrees should require forthwith desegregation. We 
are certain that if they do require immediate desegregation., 
the Delaware Supreme Court will regard the decrees as binding 
and will order immediate desegregation in the schools in 
Delaware., and thus relieve Delaware of this duality which 
now exists with respect to the constitutional rights of 
Negro school children.

Justice Frankfurter: Mr. Reading., in this
case do you Join the Attorney General of Delaware in saying that 
mere affirmation is required?

Mr. Reading. I do., sir., but only because the 
Attorney General addressed his remarks to the form of the 
mandates in the other cases,

; Justice Frankfurter: I see. I quite appreciate your
position. But one has to enter a decree in this case.
Since this was not a class suit but appears to bo a personal 
suit, you agree with the Attorney General?

Mr. Reading. Yes.
Justice Reed: By this recent decision in Delaware



they refused to direct the immediate entry of other Negro 
school chi!

Mr, Reading: Yes* sir. If your Honor please* this
is what happened. Ten Negro school children were admitted 
to the Milford High School in September of 1954. They were 
then ejected from the school. They obtained a preliminary 
injunction ordering their readmission., and the Milford Board 
of Education appealed to the State Supreme Court., and the opinion 
in Stanley vs. Simmons eventuated from that appeal. The 
Court reversed and the children are not now in the Milford 
High School.

Justice Reed: They did not direct their integration?
Mr. Reading: They did not* sir.
Justice Douglas: Counsels you answered Justice

Frankfurter — (unintelligble.)
Mr, Reading: If I did say that., I was., of course* mis­

taken. Of course* there was a course of action.
Justice Frankfurter: Did you sue on behalf of others?
Mr. Reading: Yos*sir.
Justice Douglas: The decree that I road that the

Chancellor entered* the relief runs* not only to the infant 
Plaintiff* but others.

Mr. Reading: Yes.
Justice Douglas: That is right.
The Chief Justice: Mr. Attorney General* did you



50

have anything further?
Mr. Craven: No., nothing.
The Chief Justice: You agree it is a class suit?
Mr. Craven: Yes., I do.
Justice Douglas: That all members of the class

have been or should be integrated?
Mr. Craven: If not., they can be within a reasonable

length of time. We do not wish to change our position because 
it is a class suit.

Justice Reed: VJhat was the order in the Steiner
case?

Mr. Craven: The Court of Chancery which had ordered
the children back was reversed. However., I think the Court 
ought to know the reason for that. The State Board of Education
)
had put out directions to the various school boards., saying that 
they should submit plans to the State Board of Education for 
approval., plans for integration., and in the Milford case., they 
did not submit the plan. Our Supreme Court held that the 
Director of the State Board of Education had the force of 
law and because the Milford School Board had not submitted 
a plan for the approval of the State Board of Education., it 
had not complied with the law and the children had not attained 
status.

Justice Reed: And., therefore,, it did not direct
immediate integration ?



51

Mr. Craven; Did not direct the immediate integration.
Justice Frankfurter; Mr. Attorney General*, as 

to Gebhart, tne3e named children,, the decree of your Court 
was immediate admission here which was done*, is that right?

Mr. Craven: Yes.
Justice Frankfurter: Now, as I understand it*, the

latest pronouncement ox'' your court does not call for 
immediate admittance of the children who were before the 
Court in the Steiner case. Therefore*, the decree in the 
Gebhart case for immediate admission of all children similarly 
situated*, the very problem which you ask this Court to consider 
in a different light is presented in a troublesome light, is it 
not?

Mr. Craven: Well, in the first place, there are 
two different questions and two different courts. That may 
offer some explanation. At the time our Court of Chancery 
ordered the children back on the basis of the facilities 
not being equal, we still thought that was good constitutional 
law in Delaware and the children went back. Now the appeal was 
taken by the State to our Supreme Court and we were still 
arguing separate but equal.

Justice Frankfurter: Yes, but the decree was immediate,
was it not?

Mr. Craven: It was.
Justice Frankfurter: Thank you.



52

(At 2 p„m. the Supreme Court recessed for
lunch.)



R1

The Chief Justice: Mo. 4., Spottswcod Thomas
Bolling,, et al^ vs. C. Melvin Sharpe„ et al.

The Cleric: Counsel are present.
The Chief Justice: Mr. Hayes.

ARGUMENT ON BEHAIP OF SPOTTSUOOD THOMAS BOLLING, ET AL 
By Mr* 'George E. C. Hayes.

Mr. Hayes: May it please the Court,, this suit
involves the District of Columbia., and as your Honors well 
know* integration has been started in the District of Columbia. 
With respect to the two questions that are being aslced of 
us* I shall address myself to Question 4 and Mr. Nabrit* with 
whom I am associated., will address himself to Question 5.

By way of specific answer to Question 4-A* we 
answer by saying., yes., the question being., would a decree 
necessarily follow., providing that within the limits set 
by normal geographical school districting Negro children should 
forthwith be admitted to the schools of their choice.

And we take the position that in all of these 
cases since the rights are personal and present., that the 
answer to that question should be yes. With respect to 
the District of Columbia,, there are additional reasons why 
that answer should be yes.

First of all., there are presently* as far as we 
know* no factors which would justify any request for a 
decree that is not forthwith. The President of the United



2

States by his own statement., has indicated that it is hia 
de3ire that the District of Columbia should be a model., as 
far as the integrated school system is concerned. The Corpora­
tion Counsel of this Districts as soon as the mandate came 
down> being called upon by the Board of Education., pronounced 
that in his opinion the decision of May 17 rondex'ed uncon­
stitutional the provisions of the DC Code that pretended to 
have our system a segregated one.

The Board of Education almost immediately after thw 
decision came down came forth with a very forthright statement 
of policy., and because of the fact that I shall attempt to„ 
in some measure., contrast a little further along as to what 
they said by way of policy and what has actually been undertaken 
by the Superintendent of Schools., I call the attention of the 
Court to the language of the Board of Education in its expres­
sion of policy. If your Honors please,, on pages 3 and 9 of 
the brief for the Respondents on the formulation of the 
decree„ they have set forth the expression of the Board of 
Education. I shall not read all of it to you but call your 
attention to the fact that in Section 3 they provide., "Attend­
ance of pupils residing within school boundaries hereafter 
to be established,, shall not be permitted at schools located 
beyond such boundaries except for the most necessitous reasons 
or for the public convenience., and in no event for reasons 
related to the racial character of the school within the

tv!.



boundaries in which the pupil resides.11
2 3 ?5

They end their statement by saying "In support of 
the foregoing principles which are believed to be cardinal., 
the Board will not hesitate to use its full powers. It is 
pledged to a complete and wholehearted pursuance of those 
objectives. We affirm our intention to secure the rights 
of every child within his own capacity to the full., equal 
and impartial use of all school facilities and the right of 
all qualified teachers to teach where needed within the 
school system.

“And finally., we ask the aid., cooperation and good 
will of all citizens and the help of the Almighty in holding 
to our stated purposes.11

We read that to your Honors because we feel 
that is a very fine pronouncement of a policy. Pursuant 
to that, the Board of Education called upon the Superintendent 
of Schools to offer a plan, and in this regard, we addressed 
ourselves to what was done in the hope that the experience of 
the District of Columbia may be helpful to your Honors in arriv­
ing at conclusions as far as all of the cases may be concerned. 
In that situation what was done was for the— will your Honors 
indulge me just a second? After having gotten the pronounce­
ment the Corning plan was asked to be put in operation.
Mr, Corning, at that time, the Superintendent of Schools, 
indicated that he would find it impossible to give a zoning

i



n 56

map prior to September. The Board of Education,, however., called 
upon the Superintendent to have that map by the first of 
July, and in spite of the fact that there had been suggestions 
of administrative reasons that would make that impossible by 
the first of July, this zoning map was produced. We call 
attention to that because, as I have indicated to you, we 
think it will be helpful, that sometimes when the Administrators 
in candor and in honesty think that something can not be 
done, that if there be an affirmative action taken, that 
ways are found to meet that situation, and that was done in 
the instant case.

Mr. Corning did furnish the zoning maps. Now,
I have heard the question asked as I have sat here this morning, 
as to the reason why the zoning maps were necessary. In our 
jurisdiction they would be necessary because, prior to 
the time of the decision of May 17, there were schools desig­
nated for Negroes and schools designated for whites, and 
persons within the respective areas would go to the designated 
schools because of that circumstance. And when this Court, 
by its decision of May 17, struck down the segregated setup, 
it became necessary to have zones having to do simply with the 
geographic situation, rather than being based on the question 
of race or color. And that was undertaken. That is what was 
done by the first of July* And then with those zones set up, Mr. 
Corning, as the Superintendent, presented to the Board a plan



57

which, by various steps, would bo carried forward until, 
according to the plan, in September of 1955.'. the school system 
was to be completely integrated.

I call your Honors1 attention to the fact at 
the outset that there would be no need for anything beyond 
a decree saying what the Board of Education has indicated, 
what the Superintendent has set forth as a plan is to bo 
envisioned for our schools as of September, 1955. That, 
according to the plan, is to be a complete integration. If 
that were all, we would astc nothing other at the hands of this 
Court, than a decree which would set forth that there should 
no longer be an administering of the school system in the 
District of Columbia where the question of race or color was 
in any sense involved, as a part of any administrative action, 
as a part of any attendance as far as school children were 
concerned, as far as teachers were concerned.

And be it said to the credit of the Board of Educa­
tion in this jurisdiction, they have gone forward in the doing 
of all of that. They have gone forward in the matter of 
integration both as to pupils, and as to teachers and as to 
administrative officers.

However, we have concern, because as far as some of the 
Plan, it lends itself as we see it, to the possibility of 
error. Even though, as has been indicated, the provision is 
that students— if I have not indicated to your Honors that this

.5



6
•** **

la fundamental in it* I should perhaps first say that. That 
the suggestion is that students under the new zoning will 
have the right to go to schools of their choice within this 
area.

In other words, if I he in a given area, school 
area, I have the preferential right to go to that school that 
is in that area. But it allows the option of remaining at 
school until graduation is had if the individual desires to 

do so.
In other words, as we conceive it, a geographic 

school district which in, and of itself, would lay the 
proper foundation for the Integrated schools is superimposed on 
a right that may he exercised by a student, the result of 
which is as we see that 'race is still made the issue, and 
the question of the segregation Is carried forward just as 
before, because by the exercise of this option, a child 
may continue to stay in the school until the time of his 

graduation.
Justice Reed: 13 there more than one grade

school in a school district?
Mr.Hayes; Y<?s, your Honor.
Justice Reed: They have several in a single

cistrict?
Mr. Hayes: Yes, your Honor, or there will be a

number of elementary schools within each school.district.



7 59

There would probably be not as many junior high 
schools but I venture to say there are some In which the 
district takes over one junior high school. If I be incorrect 

as to that, as I say that may not be. But the districting 
has to do with the question of the elementary school 
area, the junior high school area, the high school area.

Justice Reed: That is unusual in my thinking.
1 was not aware that there was more than one elementary 

school in a district.

Mr. Hayes: lam certain, if your Honor please,
that that is correct.

Justice Reed: In that district any white child 
or Negro child can select his own school?

Mr. Hayes: He goes to the school nearest to him
in his own area.

Justice Reed: It is measured by feet or something?
Mr. Hayes: I donot think there are instances very

often where there would jo a question —
Justice Reed: It would be easy enough if you have

one school in a discrlct. Ii you had only one school, everybody 
closer to that school tuan any other, he would go then to 
that school?

Mr. Hayes: Yes. it is ray understanding as I say.
that a number of schools may be within a district.

Justice Reed: That was true before with segregation.



Mr. Hayes: I beg your pardon.
Justice Reed: That was true when you had segre­

gation., you had overlapping districts?
Mr. Hayes: Yes., sir. Well., now* with the present

school districting there will be schools still as I 
conceive it in so far as the the elementary schools are 
concerned as your Honor will see— in the junior high schools 
and it may well be that that is not true then* but I am 
relatively certain and as I say* my friends can give you the 
statistics actually with respect to that that there 
will be elementary schools* there may be other elementary 
schools in the same district but he goes to the one 
that is nearest to him.

Justice Reed: Is that in the statement?
Mr. Hayes: Well* there 13 nothing in the statement

if your Honor please* that breaks it down into whether one —
Justice Reed: Do you have a regulation?

How do you know that the child is to go to the nearest school 
in the District?

Mr. Hayes: The only way I can say that to you * sir 
is that that is a part of what I understand the 
Corning plan to be. The Corning plan would provide that 
the child shall go to the school nearest to him in his 
district.

Justice Burton: Mr. Haye3* you referred to the



6 i

right of a child to stay in a given school until his 
graduation from that school. I take it that his merely 
a temporary measure; is it not., that has to do with the 
status at the moment and it will w or k out over a period of 
two or three years? That is not to break up the continuity 
of the course?

Mr. Hayes: It would presumably work out at the
end of the graduation period through the intermediate grade 
from the time the child graduated from that to the Junior 
high schoolJ that would end his right to exercise his option.

Justice Burton: If so., the child last year., if he
was in junior high school., he could complete his junior 
high school course without breaking into it and being forced 
to go somewhere else?

Mr. Hayes: That is what I understand the plan to 
suggest and the plan purports to suggest that immediately you 
go Into the new area., in other words., when you go from the 
Intermediate to the junior., when you go from the junior to 
senior high school., you are right to stay until graduation 
Is over.

Justice Burton: You are talking about matters of
continuity for the child in a given school?

Mr. Iiaye3: That is what i3 urged as being the reason 
for the thing., I suggests that it is the question of

X
continuity within the graduation period of a child in a



62

particular school.
Justice Minton: You do not contend that it is

done for any purposes of discrimination?
Mr. Hayes: NoJ the actual languageif your

Honor please,, would not result in discrimination. We are 
concerned as to whether or not the administering of.it 
might not be distorted* and not in any sense saying that 
the present administration has done any such distorting. I 
am in no position to say that and would not say that. But 
we are concerned that the language of a decree which we are 
asking would be of such character as would render impossible 
the use of that device as a means of discrimination.

Justice Black: How would this be done?
Mr. Hayes: By leaving this option—
Justice Black: I mean how could the plan which you

have just outlined that they are suggesting be used for 
d i s c r iminat ion ?

Mr. Hayes: Well* this type of thing could
occur as we see it. That a child who had a right to go to 
a particular school by reason of the geographic area might 
not be allowed to go to that school because in that school there 
was a child who exorcised the preferential right to stay 
there until graduation.

Justice Black: I thought the plan provided that
they were given a choice* some were given a choice and others had



63

to go to specific schools.
Mr. Hayes: If your Honor pleases. what the option 

is that is allowed is that., if I am in school 11 A”. I can 
remain in school nA" until graduation unless—

Justice Blaclc: You do not object to that., do you?
Mr. Hayes: Well., when your Honor say3 we do not

object, we object to it simply because of the fact that we 
feel that the allowance of that is still the carrying forward of 
the old idea of the segregated setup., because the r^ght to 
remain in that school was basically one of color.

In other words., the person who went into that school 
because of this segregated setup.

Justice Black: You mean you want a decree that wil
prevent an option being given to children where there are 
two or three schools to go to. to permit them to go to that 
one school?

Mr .Hayes tj: No. we do not think that the decree 
from this court should do any forbidding. We think rather, 
that the decree from this court should simply indicate that 
there should be nothing done where color was used as a criteria. 
Now we feel that this is a possibility and is a perpetuating 
of the old idea of color being the criteria.

justice Black: Is it your idea that because
there is a possibility that there should be no option left to 
the children of either race to select their own schools?



64

Mr. Hayes: No., we think rather., if the decree
were to take the shape which I have suggested to your Honor., 
that then in the event that there were showings., flagrant showings 
of a violation of this right of option,, that then there 
would be the right to go to the Courts without the 
establishing of a principle that we feel has already now been 
established.

Justice Black: I have not quite trade try question
clear. Can that come from mere option of the child to choose 
one school rather than another?

Mr. Hayes: Well., we feel-
justice B1 tck: Would you object to that under

any circumstance?
Do you believe the parents of the child or the child 

would be left free to select one of the schools? I ask you that 
because I know that has been the rule all over the country 
where they have two or three schools.

'i • •

Mr. Hayes: Well* if your Honor please*a3

we conceive it* as I have said to your Honor* in fairness 
so far as the District of Columbia is concerned* I do not find 
too much to give me concern. But I would be concerned since 
we have adjusted ourselves to other decrees* about a 
decree that left an option to the individual* himself* because* 
if that option vteve left* it seems to me that the very force 
of the decree might be obviated by that sort of a device.



65

that this Court should provide that the law is compelled to 
deny option of children to go to one school rather than 
another ?

Mr. Hayes: No* I have said*your Honor* there
should not he any such denial. I do not think thi3 

Court should undertake to say that. I think., rather* that a 
decree of the character which we have in mind would not 
require that at all. It would not estop the questions of 
options properly exercised* hut may* as I say., give rise to the 
possibility of overcoming what might then become a flagrant 
violation.

Justice Black: You mean that coercion instead of
option* freedom of choice., you would want that prevented?

Mr. Hayes: A number of things of that character
might come in and might come in under the heading of "Option."
And that is the reason I believe that I should bring these things 
up.

Justice Reed: Let me pursue that point.
Mr. Hayes: Yes* Mr. Justice.
Justice Reed: I am surprised to find there are two

more schools in a district in the District of Columbia., but 
let us assume that there are two schools. One of them used 
to be a Negro school and the other white. Now then you have

j

an objection to allowing the students to choose which one they

Justice Blaclc: Would you go then far enough to say



66

go to?
Mr. Hayes: Mr. Korrnan ha3 stated to me that what

happened was only true in two instances where they were 
30 close together that they could not draw two circles.

That may answer what was in your Honor's mind
/“S

and may correct what is in ray mind except for these two 
exceptions.

Justice Reed: Let us talce those two exceptions.
Do you object to a choice of schools in that one area or two 
areas when there are two in the 3arae district?

Mr. Hayes: Ko. it is not that.
Justice Reed: The ultimate result would be

one of them could be all Negro,, the other could- be all white?
Mr. Hayes: Well,, with a small overlapping to which

Mr. Korrnan makes reference,, in a city such as ours„ I do not 
believe that that would come as a possibility. It might he 
but I do not think by any type of gerrymandering or 
anything else., there could be any such situation that would 
end up with there being simply a white as against a colored 
school. Now there may be areas from a geographic districting 
which might end up in what your Honor says with respect to all 
white and all colored. That might be.

Justice Reed: Concerning Justice Black's questions,,
you have no objection constitutionally to the selection in the
District by children?



that wise., I have a concern that I did not gather just v/hat 
Justice Black's question was.

We do not think that this Court should say by 
its mandate that no one shall have the right to exercise an 
option. We do not think that that would be right.

Justice Reed: We do not say that. We say that
they can exercise an option.

Mr. Hayes: Wo. If your Honor please. if your
Honors would confine the decree to the language and 
character which we think ought to be. then we feel that abuse 
of the option period would fall within the purview of such 
a decree. And., as Mr. Justice Black has indicated., at some 
time further along the line., somebody says. "Oh., I am going to 
exercise my option."if you could go in and say this wasn't 
an exercise of option., if it was coercion or anything else., 
that is what we would be concerned with. May I call your 
Honor's attention to an example of something which has 
happened in our school system which gives us concern as to the 
actual putting into effect of the regulations as provided?

I just answered a question by saying that when 
you graduate from one level to another., that the person 
who goes into this new level., presumably then comes under this 
geographic condition. He does not have any right now to 
claim promotions or anything of that character. We had the

Mr. Iiaycs: Well., when your Honor says it in



68

situation develop that there were., according to what we are 
advised., a graduation in which there were I.,0l6 junior high 
graduates entering the high schools., according to new non- 
racial boundaries. Of the students promoted., 5 7 1 came from 
schools of the old Negro division and 525 came from formerly 
white schools.

122 of the students from former all Negro schools 
were promoted to 3ix former all-white high schools. One 
Negro boy moved from an integrated former white junior high 
into vocational high which had retained its Negro enrollment.

No white students were promoted to former Negro 
schools. Now, we call attention to that sort of circumstance., 
that it would be a rather unusual thing with the zoning change 
as has been indicated, zoning now without regard to color, 
new zoning with overlapping districts where,in one instance, 
there were certain Negro areas that now the new zone which 
is the unsegregated situation goes deep into that area, it 
3eems to us a rather unusual circumstance that under those 
conditions 120-some Negroes would go, be graduated into a new 
area, to a white high school, and that there would be no 

whites,who* having been promoted, would go to a Negro school.
It is the type of administering of that kind that vigives us 
the concern.

cJustice Frankfurter: May I ask you to what issue

more readily you are addressing yourself? Is it to the kind of

/



69

decree this Court should fashion in directly greater detail 
than fashioned by the District Court or which?

Mr. Hayes: If your Honor please,, Just what I
have in mind is the type of decree that this Court should 
pass in remanding the case to the District Court.

Justice Frankfurter: Do you think this court can
go into particularities?

Mr. Hayes: No., sir.
Justice Frankfurter: As to what would or would not

ope'rate not as a fair opportunity for a fair
choice but some kind of a "huggamugga"* some kind of a manipu­
lation whereby what is deemed to be a fair choice is not 
really a fair choice.

Do you think we could particularize that?
Mr. Hayes: Mo, I do not think you can. If your 

Honors please* we have attempted to draft what we think 
would cover the situation having to do with the question of 
the nonsegregated setup and that the Defendants and agents 
and the like should be stopped from using race as a criteria.

Justice Frankfurter: Have you in your brief set forth
a proposal for the kind of decree that you would like this 
Court to issue?

Mr. Hayes: No* your Honor* we have not.
Justice Frankfurter: Would that appeal to you or would

it be agreeable to you?



70

Mr. Hayes: Yes, your Honor,
Justice Frankfurter: Perhaps I might suggest to

other counsel that they take their hand in drafting the tcind of 
decree they want this Court in terms, not in generalities, 
but in terms the kind of decree that they propose as is so often 
the case in chancery, proposed from the states, specifically 
the kind of decree they submitted for consideration by the 
Court because generality of language easily evaporates in 
memory, let alone in speech,

Mr. Hayes: Yes, your Honor. X am appreciate of
that. May I simply address myself and say in respect 
to 4-B, our answer to that is yes, that the Court does have 
executive power that is referred to in there and to say to 
your Honors that, as I indicated to you, Mr. Nabrit is going 
to talk to the Court about Question 5 and a part of that is the 
type of decree and I think you will have the specific answer 
to what your Honor is asking.

ARGUMENT ON BEHALF OF SBOTTSWOOD BOLLING. ET AL 
By Mr, James M, Nabrit, Jr.

Mr. Nabrit: Mr. Chief Justice, if the Court please,
I should like to add to what Mr, Hayes has said about the 
situation in the District of Columbia. Thee are l6o-scme 
odd schools in the District of Columbia and they were divided into 
two divisions, white and colored prior to the decision of
May 17,



71

Essentially 17 of the schools that were 

formerly white* there are now only 11 elementary schools* 

no junior high schools and i senior high school and 3 

vocational high schools which do not hate Negroes in them.

In other words* Negroes have gone into all of the 
formerly white schools in the District except those indicated* 
a total of 16. In the case of those schools that were formerly 
all Negro schools* there are 15 elementary schools now with 
no whites* 9 junior high schools and 4 high schools. In 
the case of the teachers colleges they have two* Wilson* which 
was formerly all white now has 36 Negroes* and Miner* formerly 
all Negro* still has no white students*

Now we would be remiss in our obligations to the 
court if we did not say and make it clear that the progress in 
integration in the District has been amazing since May 17* 1954.

We* also* feel that we would be remi33 in our 
obligations if we did not point out to the Court some things 
which we think ought to be taken into account in deciding 
what disposition to male© finally of this litigation which 
has now taken the greater part of five years* and also* if 
we did not suggest to the Court something which we think we 
have learned in the District of Columbia which might be of 
some aid in the resolution of the difficult problems inherent 
in questions 4 and 5 in the cases before the Court. We feel 
that we may do that since so many representatives of the various



72

states have been asked to give some aid to the court* and two 
things we think may be helpful to the Court from our own 
experience In the District of Columbia. In the first place., 
Implicit in many of the requests for delay and for a gradual 
effective desegregation process* inherent and implicit in 
these replies is that integration involves manifold adminis­
trative difficult;les and that to do this short of a long 
delayed process may prove educationally unsound.

Now we concede that there is merrit In both of 
those positions., but what we want to give the Court our experience 
about is an aid in the view which the Court gives to those 
representations.

Now the experience which vie have had in the District 
I think ideally illustrates it. When the decision was 
handed down immediately thereafter* thinking of all of the 
things that may stand in the way., the Superintendent announced 
that we could not take any steps toward a desegregation until 
this Court had handed down its decree.

But that was the first flush of an expression without 
having had an opportunity for conference. After a conference 
and study with other officials., the Board of Education of the 
District in cooperation with the Superintendent and the officers 
of the District decided upon instituting thi3 plan for inte­
gration .

At the time that this policy that you have had



73

brought to our attention vjas adopted, the Superintendent- 
presented a plan with certain graduated steps by which we 
would have gradual integration in the District.

And, in presenting hi3 plan, he stated that the 
reasons for the delays involved in the various steps were 
administrative difficulties which stood in the way,and 
because of the rapid acceleration of thi3 program, would 
be educationally unsound.

Now one of the things which was in that was a
4

statement that in order to draw the educational boundaries 
for the new districting of an unsegregated system, the 
difficulties were so involved that it would be impossible 
to draw those boundaries until September, 1954, and that 
hence any steps towards effective Integration other than 
a relieving of overcrowding would be impossible educationally.

The Board of Education did not agree with that. The 
Board voted that these boundaries be drawn by July l, and 
that the program begin on September 1. The Superintendent 
proceeded to draw the boundaries by July 1, and to 
accelerate the program by September 1. Now the only 'reason 
I call that to the Court'3  attention is to say' 
that the Court must he carefully observant of representations 
that long periods of time are needed for these integration 
steps, because we have found in the District that when a 
decision was made, the difficulties vanished, the administrative



7*

difficulties, educationally questionable results did not come 
as a consequence of the action taken* As a matter of fact, 
the Superintendent himself has accelerated the entire program 
in the District of Columbia so that today he will be 
hard pressed to tell the Court what he purports to do in the 
future. So that it would appear to us that of all the 
cases before the Court., 'that is the case in which the Court 
can take the decision of May 17th, which reached such a high 
point in our democracy, and bring a fitting conclusion to this 
case by writing a decree that desegregation or integration 
shall be effective forthwith. Even the Corporation Counsel 
does not disagree with that. He does not agree to a consent 
decree, but that is beside the point.

He says that integration is progressing rapidly 
and will be completely finished by September 1 . Therefore, 
he is in no position to object to a decree which says that 
that be done. Now it would appear to me that in these cases 
in order that there might not be the kind of confusion 
which seems to be inherent in the Delaware situation, ought 
not to be placed in the District of Columbia where 
this Court supervises all of our Courts and where we have 
a school board that we can not elect and where the Judges of 
the Courts below supervised by thi3 court in their judicial 
functioning operate administratively to appoint the School 
Board over which this Court has no jurisdiction, and thus place



75

us in a very uncertain position in the District. For example, 
the distinguished lower court Judge who is now the Chairman 
01 che Committee to select the school board members, announced 
last week that there were three persons who would come 
to the end of their term this year, and that he wanted 
names submitted for people to be on the Board.

In quoting him, I think it would be a good idea 
to have somebody from Southwest Washington or Southeast 
Washington, and we have got a number of lawyers on the 
Board now, too many lawyers. Now we have nothing to do 
with that as citizens of the District of Columbia, so that 
when we deal with the policies which have been adopted by the 
Board, they get tangled in this administrative setup with our 
traditional judicial function, so that in this case, if 
ever the Court should make it clear that integration in education 
in the District of Columbia must talas place immediately, because 
if we go back down into the District Courts with any type of 
uncertainty, we run into that type of situation in our local 
courts, and that is not to question any philosophy, program, or 
integrity of any judge. It is simply to state a fact which 
is a part of our system.

Now, it would seem to me that this also could 
be of assistance to the Court in dealing with the question if, 
in a situation where the Court has as wide a supervisory power 
as in this, the court directed the courts below here to



76

enter a decree which 13 in effect* Mr, Justice Frankfurter* 
this judgment reversed and cause remanded to the District 
Court for proceedings not inconsistent with this Court's opinion,, 
and entry of a decree containing the following provisions:

(1) All provisions of District of Columbia Code
or other legislative enactments* rules or regulations* requiring* 
directing or permitting defendants to administer public 
schools in the District of Columbia on the basis of race or 
color* or denying the admission of petitioners or other Negroes 
similarly situated to the schools of their choice within the 
limits set by normal geographic school districting on the basis 
of race or color are unconstitutional and of no force or 
effect:

(2) Defendants* their agents* employees* servants
and all other persons acting under their direction and supervision* 
are forthwith ordered to cease imposing distinctions baaed on 
race or color in the administration of the public schools of the 
District of Columbia; and are directed that each child eligible 
for public school attendance in the District of Columbia be 
admitted to the school of hi3 choice not later than September*
1955 within the limits 3et by normal geographic school district­
ing;

(3) The District Court is to retain jurisdiction 
to make whatever further orders it deems appropriate to carry
out the foregoing;



\

(4) Defendants are to pay the costs of the pro­
ceedings .

Now we would suggest that as a fitting 
climax to the District case. And we would lilce to say that 
the decision of the Court in the District of Columbia case 
which bore out the hopes and expectations of the citizens 
of the District has carried the hopes of the Negro people 
of the United States to such a high point that it would be 
tragic indeed., in my opinion., if we should recede from that high 
point by not giving a decree and bringing to a decisive and 
final end the litigation in this case.

The Chief Justice: Mr. Nabrit„ would you please
make copies of that for the Court?

Mr. Nabriti I shall be happy to.
Justice Frankfurter: May I ask you whether you have

thought of considerations peculiarly relevant to the District 
of Columbia for what you call amazing progress that do or do not 
obtain in comparable states— by comparable., I mean the 
propprtion of Negro to white population. You spoke with 
special emphasis of the progi',e33 of the District here. With 
your considerable thinking on this subjects have you any 
reasons why you think that is so in the District?

Mr. Nabrit: Well.. I should think so,, Mr. Justice
Frankfurter.

7 7

Justice Frankfurter: So far as these things are



78
relevant ag to what a court in ita discretion may or may 
not do.

Mr. Nabrlt: Precisely. I think there are several
considerations, I think one., the court may well he advised 
that in the District of Columbia there are approximately 
104^000 pupils of whom the majority of these are Negroes., so 
that numerically,, I doubt if there is a place in the South 
where., from that standpoint., this would not be a very 
excellent guid to the large number of children that may be 
integrated in a shorter period of time even when the 
Negroes outnumber the whites. So I think that is a relevant 
consideration. X think., No. 2„ the fact that there wa3 

a firm administrative executive happened in the District of 
Columbia in support of integration even prior to the decision 
of this cornet roust be conceded to be a very effective element.

Justice Frankfurter: You mean the Superintendent?
Mr. Nabrit: No, I mean the Superintendent,. the

Board of Education,, I was speaking about,, the Board., the 
District Commissioners and the law-enforcement officers,, the 
general theory that where that exists you have a much better 
situation in which to do it.

But the primary thing that this aeeni3 to me to show 
its relevance to the whole question before the Court is that 
firm action of of firm decisions., and certainly here where 
both dovetail always improves the desegregation or integration



79

3teps, so that in the District where we have all of these 
together, we have this extraordinary speed. But, even in the 
District we find that the very fact of firm decision in itself 
militated against ordinary objections.

Now, I think one further relevant consideration 
in the District of Columbia was the whole general community 
relationship. We would not be giving the Court all of the picture 
if we did not say that.

Justice Frankfurter: You moan this is the
nationcapital with ail its concentrations and influences 
that that implies?

Mr. Nabrit: Precisely and I think I should say
that. And I also ought to say to the Court that in our opinion 
in thinking about this problem that in the Deep South 
where it would seem to me we have 30 many things that may 
appear to be different, that there have always been in our 
philosophy, in our system, the notion that our law is 
supreme and that we are a ntion which is a nation of law rather 
than of individuals, and that although we may have had 
attitudes which differ and in some instances violently 
with the decisions or with laws, that we are— after all—  

governed by them and ; , two cases illustrate it to me. One 
i3 the case of the National Labor Relations Acts, -.the 
Wagner Act, the Taft-Hartley Act. The other i3 income tax



30

where the attitude of many people is ju3t the same.
They do not want to pay minimum wages., they do 

not want to pay this., they do not want to have this., but 
the law is there., they keep the attitude but they obey the 
law,

The same thing with income tax. Everybody is 
worrying now for a few days that they are going to have 
to pay income tax. Very few people are running around happy 
over it. The attitude is not good but all of them pay it. And 
therefore., I say., it seem3 to me that in this area a firm 
decision calling for forthwith integration will he accepted 
and will be complied with by the South where I have lived all 
of ray life and that thus ..in 3pite of all their protestations and 
the attitude which many of them generally genuinely have., 
they will follow a decision of thi3 Court just as other 
Americans follow the law.

Justice Reed; Mr. Nabrit„ before you sit down 
I do not understand this language of your proposed decree,, 
giving a choice. I have asked questions about it before. Are 
you familiar with the problems of choice that came up?

Mr. Nabrit: Yes, I am and I would like to 
address myself for a moment if I may,, to that. In the District 
of Columbia there is a system of administration and operation 
of the school which is known as the Districting Plan. Now 
there are different plans educationally in the United States



81

that you are familiar with. In some places., there are no 
districts. You Just go to whatever school you want to until 
that school is full., and then you find another, one and go to 
that. Baltimore ha3 a system something like ;hat.

In other schools they have the boundary system* 
the districting* and you go to the school in your district 
except as— and all of them have this which relates to Mr.
Justice Blaclr1 s question— all of them have some ground upon 
which they will excuse you from going to a particular school. 
There are many grounds of hardships., where they will do that., 
in the Sibling case and others. In the District of Company., 
however., we have this system based upon districting. That is 
the basis on which the school board says children shall be 
assigned., and they voted a policy that it would be done,, and 
the only hardship or necessary situation of overriding necessity 
would permit any departure from that.

Now that was the policy.
Justloe Reed: The Board policy?
Mr. Nabrit: Yes. Now when the plan was proposed

which the Board adopted* there was a difference between the 
policies and this plan* and it is that difference to which we 
call the Court's attention., that is* that in this plan which 
provided for thi3 forthright imposition of the boundary or 
district system* there was set inside of the system* a system 
which provided that all of the pupils in all of the schools could



82

stay right where they were until they graduated,, unless —  

and you should know thi3 because this even weakens the position 
still further., we want you to know that--unless your remaining 
there prevented a student who lived in that district from 
getting into it.

So that takes some more of the sting out of it.
But we consider that bad because., looking at the Labor 
Relations cases and others, where this court has said where 
you have a choice regarding a union or not, here is a company 
union, here is another union., that the choice is not a choice.
You do not have freedom of choice. And where you come out of 
a segregated system where everybody in the system is segregated 
and you say to the Negro child, sure, you have a choice and to 
the white child, you have got a choice, I mean that is not 
choice. So that we simply point it out because it goes for 
five years and there is nothing that we have found that indicates 
that at the end of the fourth year the Board would adopt another 
plan with that in there.

Justice Reed: That is in it —
Mr. Nabrit: I think it is on page 10 of our brief,

1
Mr. Justice Reed, It is on page 10, No. 3 in the next to 
the bottom paragraph, ‘'All pupils at present enrolled in 
a given school may remain until graduation provided the school 
is not overcrowded and provided the priority righto of pupils
within the new boundaries of the school are not denied,"



Justice Reed: There is another angle to that
3ame choice. In your own decree., you provided a choice.

Mr. Nabrit: Now in ours.* we said*do not deny
any child the right to go to the school of his choice on the 
grounds of race or color within the normal limits of your 
districting system.

In other words* you have this districting system here. 
Now* we say in that system., let children go to the schools of 
their choice within that system.

Justice Reed: Within that district.
Mr. Nabrit. That is right.
And do not assign them on the basis of race or 

color., and we have no complaint. If you have some other 
basis* all boys* all girls* 16 or l4* any other basis* we 
have no objection. But juvt do not put in race or color as 
a factor. And on that basis* we do not complain. But I 
do not think that it will be found to help the Court very much to 
try to look at a system where nothing existed by choice* and 
contrast it with the districting system in which there is 
this type of choice.

'■ The Chief Justice: Thank you* Mr. Nabrit.
Mr. Korman.
ARGUMENT ON BEHALF OF SHARPE, ET AL 

By Mr. Milton D. Korman.
Mr. Korman: Mr. Chief Justice* may it please the

83



B4

Court* I am in hopes that we could come here today without 
any controversy between the Appellants and the Respondents* 
and indeed* now that almost an hour has been spent by my 
adversary addressing the Court* I still see no reason for 
being here opposing each other. The only reason I can assign 
to it is that apparently my friends on the other side are 
determined that there must ccme from this Court or from 
the District Court some directive by which they can point 
in the future to the proposition that they have forced the 
District of Columbia to do certain things* and that is not 
the fact. These are the facts.

May 17* 1954 tlii3 Court declared ”We hold that racial 
segregation in the public schools of the District of Columbia 
is a denial of the due process of law guaranteed by the 
Fifth Amendment to the Constitution.”

The next day* May IB* the members of the Board of 
Education and the Commissioners of the District of Columbia* 
met with the Corporation Counsel in private session at which 
time the Corporation Counsel of the District advised them 
that that language from thi3 Court had effectively and forever 
struck down the validity of any laws on the books which 
provided for separate schools for whites and Negroes in the 
District of Columbia. And on the following day* May 19* the 
Board of Education met and appointed a committee to draft a
set of principles. On May 22* three days later* that committee



met and drafted a statement of policy.
May 25- three days after that., the Board of 

Education adopted that statement of policy and it appears in 
the Appendix to our brief. And in -chat same statement of 
policy they said that they thereafter proposed to so integrate 
the schools of the District of Columbia as quickly as 
it could be done.

On June 2- seven days later- or eight days later-
the Superintendent of Schools- hax'ing working on the matter

%
for a year or more- presented to the Board of Education a 
complete plan for the desegregation of the schools of the 
District of Columbia. That plan is set forth in the Appendix 
to our brief.

Incidentally- that plan which was submitted by the 
Superintendent was approved by the Board of Education. On 
June 23- the Superintendent presented to the Board of Education 
a schedule of dates for putting into effect that plan- and 
the final date for anything to be done was September- 1955. 
Before schools opened on September 13- 19 5 4- an attack was made 
upon that plan sponsored largely by the Federation of Citizens 
Association. The case was Saiborne and others- vs. Sharp 
and others. It was heard by Judge Schweinnaut of the 
United States District Court. We presented to the 
District Court the proposition that the decision of 
this court of May 17 had struck down all requirements for



86

segregated schools and that the Board of Education was 
entirely within its rights in providing for the integration 
of schools to commence at the first opportunity, the 
opening of schools in the fall of that year. Judge Schwein- 

haut sustained the position we had taken and dismissed 
that suit, so that we have a determination by our District 
.Court that our interpretation of this Courts decision was 
correct. The schools opened on September 1 3 , 19 5^ as an 
integrated system., and it is completely integrated today 
and I do not know what my opponents point to in all these 
things that they have talked about here. What are the 
options that they talk about? Let us read them. They 
appear in the Appendix to our Brief., and this is the 
Superintendent’s plan.

Justice Reed: What color brief?
Mr. Korman. This is the one here. Here I 

suppose that would be called— buff and it is entitled., I 
think somewhat differently than the other briefs cf respondents 
on formulation of the decree.

On page 13 the last paragraph we find this from 
the statement of the Superintendent, "in order to 
provide stability, continuity and security in the educational 
experience of pupils during the transition period, it is 
agreed that it will be educationally sound to permit pupils 
at present enrolled in any school to continue in that school



87

even though they are not living in the new boundaries."
If I may interject there* the plan proposes to 

set boundaries for each individual school in the District of 
Columbia* except in one or two instances where there were 
two schools so close together that two circles could not be 
drawn for them and one circle was drawn around the two 
buildings as the district for that school.

Ail others have a single area to be served by a 
3ingle school.

Going on* "By this means immediate displacement of 
unnecessarily large numbers of pupils will be avoided. Progres­
sively with the establishment of new boundaries* all children 
will attend the schools serving the areas in which they 
live."

"The following procedures will be needed to car**y 
out this plan:

"1. Fixed zones are to be established for each 
elementary*.1unior high and senior high school to insure 
balanced use of school facilities.

"2. All pupils new to the school system or to a 
particular school level will be assigned to the schools designated 
to serve the zones in which they live,

"3. All pupils at present enrolled in a given 
school may remain until graduation provided the school is not 
overcrowded and provided the priority rights of pupils within



53

the new boundaries of the school are not denied... If 
they prefer they may transfer to the school serving the zone 
in which they live. Elementary school pupils who change 
residence will be transferred to the school assigned to the 
area of the new residence.

"4. Transfers from one school to another will be 
required when necessary to relieve overcrowded conditions."

/nd then on the following page., I skipped one 
paragraphs there is an example of what takes place:

"These trust attend School that is a
school formerly in Division 1 — ■

"1. All children living within the new boundaries 
who formerly attended School fA.f

"2. All children living within the new boundaries 
who are entering a school of that level for the first tine.

"3. All children who are newly residing in the area 
served by School 'A.} *

"4. Children now attending School JB ’ but living
a

within the boundaries of School IA } if School becomes 
overcrowded."

Now., on that., who may attend School A — not 
who must but who may:

"1 . Children now enrolled in School A whether or 
not their residence is within the boundaries of School A 
may continue to attend until their graduation subject to the



S9
following condition a:

"a. If school A becomes overcrowded, pupils prev­
iously attending School A vaho live in the area now served by 
School B or any other school will be transferred to that 
school.

"b. If further relief from overcrowding is 
necessary after all children not living in the area served by 
School A have been transferred , it will then he necessary to 
provide additional relief by further changing the boundaries 
of School A."

Can anything be clearer?
Wherein, my friends, can you read race into that?

How you *io it i3 beyond me. Yet they say we must have a 
decree which enjoins us from putting race into this arrangement.

This plan, incidentally, has been mentioned by the 
Attorney General in his brief before this Court. May I 
read to you what he has to say of this plan in the District of 
Columbia. I read from a fo _n the brief of the
United States on page 20 of their hrief. In presenting 
his program for integration for the approval of the Board of 
Education, the Superintendent of Schools of the District 
laid emphasis on the consideration of the educational growth and 
welfare of the school child. Thus, in justification of the 
proposal that each presently enrolled pupj.1 be granted a 
limited option to remain in the school he now attends even



90

though he does not reside within its new attendance boundaries 
the Superintendent enumerated the way3 in which this 
would provide stability., continuity and security in the 
educational experiences of pupils during the transition period.

While we do not describe the District of Columbia 
program in detail here since this is undertaken in a brief 
for the respondents in Mo. 4., we think it reflects credit 
upon those ..responsible for its formulation and execution.

"In every significant respect the plan evidences 
painstaking care on the part of school officials to realize 
the expressed objective of a speedy transition calculated to make 
the best use of the total resources of the school system 
in plant and personnel to serve the best interests of 
all the pupils and to promote the general welfare of the 
community."

That is an evaluation which we did not write. The 
only ones,, or largely the only ones in point of fact who 
are taking advantage of the option are children in the 
junior high schools and the high schools where they have 
elective subjects and where those children have mapped out 
a course of education for themselves,, they have made 
selections,, they have adopted certain courses and they want to 
continue and they have the right to remain in those schools 
until they have completed the particular level at which 
they are going to school. If a child is going to a particular



91

junior high school and the boundary of that school leaves 
out his residence as it is finally fixed,, and he wants 
to stay in there, he should have that right., whether he is 
white or colored.

This is not a question cfrace at all. It is a 
question of the continuity of education of that child., the 
security he has., the right to continue to go to school 
with the pupiles that he has come to know., the right to 
continue with the teachers that he has selected to instruct 
him until he graduates from that particular level.

That is all that the plan provides for.
* Actually,, the plan has been stepped up and there 

x^emalns at this time nothing to be done so far as integration 
of the schools of the District with the exception of putting 
into effect finally the boundaries of the senior high schools 
which have not all been fixed,, and not all pupils have been 
required to go to the particular high school in which they 
reside., in the boundar'ies of which they reside.

Except for that one point, the schools of the 
District are completely integrated. Mr. Nabrit gave you the 
figures showing that only a comparatively few schools have 
no pupils of both races on their enrollments, and he points 
to the fact that only 122 or some number like that, out of 
a graduating group of some 500 went into schools formerly 
occupied by other races. He is mentioning the white students--



92

let me see whether I made a note of that when he gave it. Out 
of 525 who came from Division 1 schools., that is the white 
schools* 122 went into Division 1 schools and one went into a 
Division 2— that is* a formerly colored vocational school* but 
no white children went into a formerly colored school.

obviously* the reason is that whether we 
like it or not* we may change— they have been changing from 
white to colored* and not the other way and so that 
when neighborhoods change* there are no longer white children 
going into the neighborhoods where colored now live* but 
colored children are coming into the neighborhoods that 
were formerly occupied by whire.

So* it is only logical that we* when people graduate 
from one level Of a school* we find that colored children may go 
to schools formerly occupied by white but it is not likely 
that the others will occur*that the white children will go 
into schools formerly occupied by colored because the 
neighbors have been changing the other way.

That Is the only answer to that. Vie can not 
read race into that as something that the school system is 
putting on for these children. It is lust not 30*

Justice Reed: What is your explanation for several 
all-white schools?

Mr. Korman. Just that in pertain areas in the 
District* there aî e no Negro residents and in certain areas of



93

the District there are no white residents.
Justice Reed: How big is a school district?

How large: How many districts have they in the District?
Mr. Korman: How many?
Justice Reed: Yes. are they on the hasis of

areas?
Mr. Korman: They are on the basis of the size of

the school building.. Some have very large areas and others 
depending upon how many pupils the school can accommodate.

Elementary schools are organized on the basis of 
36 pupils per clas3 at present. The Board of Education ha3 

recently decreed that that shall be reduced to 30 pupils 
per class as money and teachers and class rooms are available. 
But., up to now the norm ha3 been 36 pupils per class. I have 
forgotten what it is for junior high schools. In the 
senior high schools., it is 2 5 pupils per class.

It depends entirely on the size of the buildingj 
the area which it can servo. There are actually in the 
District 120 elementary schools each with it3 own district 
large enough to accommodate the size of the building. There 
are in the District 21 junior high schools each also with an 
area that it serves just large enough to accommodate the 
size of the building and the teachers and so on., and 30 it is 
with high schools. There are 11 high schools and 
there is one building which is a combination senior and junior



S 4
high schools and wo have two teachers1 colleges. The© 
are now open to pupils of both races.

Justice Reed. Take the elementary schools. They 
go up to the 3th grade?

Mr. Korman, No,, sir., it means up to the 6th 
grade. It used to be up to the 8th grade,, when I went to
school— I suppose when you did., too.

Then we even went from elementary to high school 
but in the interim they have introduced the junior high school 
which takes in the 7th„ 6th and 9th grades,, the last two 
grades of what we used to think of as elementary 
school., and what we used to call the first grade of high school.

Justice Reed. So there would be several first grade 
rooms in each school?

Mr. Korman: Yes., sir., in the particular school where 
my children attend., there are some four first-grade classrooms. 
That is true of many schools.

Justice Reed: The total number is what in an
elementary school building,, is that several hundred?

Mr. Korman: Yes„ sir., it varies. In the particular
school I know about it runs between 800 and 900 children. As

*

I view this case., this proceeding is really moot. There is 
nothing here to enjoin. And if this court found that 
this situation in the District presented a moot proposition„ 
it would be entirely within not only its rights, but within the



95
framework of decisions which that has laid down heretofore.
I refer to the case — the opinion which was written by Mr, 
Justice Clark just two years ago next month., the U.S.
V3 , W. T. Grant., where it was held specifically where there- 
is no reasonable expectation that the wrong will be repeated,, 
the case is moot. Here is that situation.

I hope the Court may not think I am using undue 
levity when I say that if anyone should attempt to disintegrate 
the local schools* if we had*the local school board would 
promptly be disintegrated.

There i3 no chance whatever in this District of 
Company that we sh.oi Id have a return to the segregated 
schools. I say that this proposition is completely a moot 
one. This is not a case where the Respondents have violated 
the law and by reason of a decree of a court* are requ^ed to dc 
something.

I think that the Court must know that long before 
thi3 case came on for hearing there was a pronouncement 
at the suggestion of the President of the United States by 
the Governing Authorities of the District of Colurabls that 
segregation should be cast out in all of the various fields 
that the District had any supervision of* and they have been 
doing that and are practically complete in having eliminated 
any vestige of segregation or discrimination in any of the 
areas of the District Government* that the District has any



96

supervision over and indeed., some of the member3 of the 
school board., I think perhaps it probably engendered 
some of the discussion they had when I rose to address the 
Court last time,, had expressed themselves rather forcefully 
that they wanted to have integration in the schools but they 
were not able to because the law then farbade it.

But within two or three days., as I pointed out 
to the Court., we had thi3— when this Court said those laws 
were unconstitutional, they put into effect a system of 
complete integration of the schools. That system is in effect 
now because they wanted to do so not because they were 
compelled to do 3 0.

I say to you gentlemen of the Court that there is 
no need for any decree in this case, requiring anyone to do 
anything. If the Court sees fit to remand to the lower court 
with the suggestion that the lower court enter a decree for 
a declaratory judgments which i3 the first prayer of ^he 
complaint that was filed., that the laws which required segrega­
tion of schools are unconstitutional, I would have no 
objection. I see no necessity for it. That has been established. 
The matter Is,in fact, moot.

I would like to see this court declare it moot, because
that is the situation.

Unless there are questions from the Court, I have

nothing further.



97
The Chief Justice: Mr. Korman* In the event

the Court does not determine to declar it moot* would you
prepare the form of the decree that you think would be appro­
priate? Would you do that?

Mr. Korman. I would be glad to do that* and 
unless I am directed to do otherwise* I would like to limit it 
to a direction that only a declaratory judgment be entered 
based on the decision of last May. That would be ray preference.

The Chief Justice. Whatever you think might be
reasonable.

If there are two or three alternatives* would 
you suggest them;

Mr. Korman: Yes* sir.
Justice Clark: Mr. Korman* do you know of any

protest with the Board* Superintendent Corning* by parents or 
children* students* as to their assignments to schools in 
the District under this new plan?

Mr. Korman: I now know of none with the exception
that there was a provision approved by the Board of Education 
that so-called hardship cases might be specially dealt with.
0ut of the 105*000 children approximately* there were 377 auch 
so-called hardship cases. Many of them were accompanied by 
Physician*s certificate® that it was needful that a child 
should go to some other school than the one he would normally 
be assigned to. In many of them the change was made as I



98

understand it by the Sibling Rule.
That is, that a family had a child going to one 

school because he was transferred there, he was in the higher 
grade and another child would enter the school system during 
that year and they wanted the older child to take the younger 
one by the hand to that school. But only 377 so-called 
hardship cases out of 105,000 children. Other than that, 
there have been no protests and so far as I know, everyone 
is content here except my friends.

Justice Black: Was there a hardship rule of that 
kind in effect before?

Mr. Korman: I do not know of anj , That was
especially set up for this transition period. If we had the 
hardship transfers, they were only for this particular year 
and would have to be reviewed again and application made 
again next year.

Justice Black: You mean there is a rule In the 
District, come what may, however much that it may be thought 
necessary for one person to go into another district, the 
District has a rigid rule that it 13 never done?

Mr. Korman: That has been the rule In the past
when we had a segregated system and I assume that will be 
the rule In the future with the integrated system.

I do not think it was for economical reasons. It
was not called or thought valid In the Division 1 schools. There



99

was a great deal of laxity in the Division 2 schools. I 
think it wag largely because of instances where parents of 
children were working and wanted to take the children to 
certain schools on the way to work. I know it wa3 not adhered 
to as strictly in the Division 2 schools,, the colored 
schools* but it was in the white schools.

If you lived in a particular district served by 
that school* you had to go there. That was to prevent parents 
selecting certain schools for their children to go to. What 
the reason for selection was* I do not know.

Justice Black:Can you offer any explanation for that?
Mr. Korman: No. Some schools had more of a 

social cast or something of that sort. I do recall I was* 
in one instance in the office of the superintendent discussing 
some business and a rather poor individual called up and 
3aid he wanted his child to go to a particular school 
as we live a half block over the line of the other area*and 
the Superintendent said "That is the rule* we cannot break it* 
even for you."

Justice Frankfurter: To what particular virtues
do you attribute this progress that ha3 taken place in the 
District?

Mr. Korman: Well* I think* for one thing* it is
entirely within the scope of the program of the President of 
the United States. I think for a second thing* It 13 entirely



100

in the program of the thing.
Justice Frankfurter: Doe3 that mean responsiveness

or respect for the great office or because in tho District 
people are without any other political loyalties to 
worry about, they are appointees?

Mr. Korman: No. I do not think so. Because, while
there ha3 been a great deal of criticism of our board of 
education, the Eoard of Education are not appointees of any 
political party.

Justice Frankfurter: I understand that. The Com­
missioners are. The atmosphere is different than we find 
with elected officers.

Mr. Korman: I do not think so.
Justice Frankfurter: You don't?
Mr. Korman: No.
Justice Frankfurter; I thought there was a good 

deal of excitement about no voting in this District?
Mr. Korman: There is. in some quarters.
But I think that possibly there is a general 

awareness that the time has come when 3ome change must take 
place and some thought this would come sometime ago. Others 
thought it was a little too soon. The argument seems to me 
was always just who should make the decision.

Justice Douglas: Of course, you had in the
District.--! do not think you have mentioned it in your brief.



But you had In the district a pretty high standard and 
quality of teaching staff.

Mr. Korman. Ye3 . We have always had a school 
system which largely., though in two halves., were perfectly 
equal side by side.

Justice Frankfurter: Is that an established fact,
that the standards of teaching in the District are higher than 
in some of the other states?

Mr. Korman: I would not say that.
Justice Douglas: I was thinking of the standard

of teaching in Negro schools before the desegregation.
Mr. Korman: All of the courses of Instruction in

our teachers colleges, all of the books that they used, all of 
the criteria that were laid down for instruction on both sides 
of the dual school system were identical.

Justice Douglas: That was part of the case, they
were separate, equal,

Mr. Korman: Yes,
The Chief Justice: Thank you, Mr. Korman, Do you 

have anything further, Mr. Nabrit?
Mr. Nabrit: No, thank you.
The Chief justice. May I revert for a moment to 

No. 1, the Kansas Case. I see General Fatzer is here and 
Mr. Carter i3 here. Gentlemen, would you, if you wish, present the 
form of decree that you think would be appropriate In your

101



102

case? I believe It would be helpful to the Court If you 
did.

Mr. Fatzer: We aha11 be glad to.
The Chief Justice: Thank you. I do not know

whether counsel In the Delaware case are here or not.
Mr. Korman: I think they left.
The Chief Justice: Mr. Reading,, if you would care

to„ I believe It would be helpful for you to propose the 
kind of decree you believe would be appropriate and we will 
have the Attorney General do the same.

No. 2 and No. 3 . Harry Briggs, Jr., et al 
vs. R. W. Elliott, et al, Dorothy E. Davis, et al, vs.
County School Board of Prince Edward County, Et Al.

Mr. Robinson.
AROUMENT OF HARRY BRIGGS, JR., ET AL 

By Mr. Spottswooa Robinson.
Mr. Robinson: May it please the court, as the

Chief Justice has a l r e a d y  indicated, the arguments In 
numbers 2 and 3 are being combined and it Is principally for 
that reason that at the outset I request the indulgence of the 
Court to first outline the argument that will be presented 
in these two cases on questions 4 and 5 and the part of the 
argument that Mr. Marshall will present.

And I think that pcthaps this can be be3t done by 
starting with the specific answers to questions 4 and 5 that



we suggest to the Court,
Ae to question 4, we submit that a decree should 

he entered which would recuire desegregation of the public 
schools involved as soon as the necessary administrative 
end mechanical procedures prerequisite to such desegregation 
can he accomplished,

W© do not feel and therefore we submit that 
the equity powers of this court should not be exercised so 
as to delay relief in these cases beyond the time that is 
essential for the t&tclng of the administrative steps 
essential to desegregation.

In Answer to No. 5* on the assumptions on which, 
that question is predicated,, we would submit in answer to 
part A thereof that this court should not formulate 
detailed decrees in these cases which in our opinion mahes 
it unnecessary for us to submit an answer to Part B ox’ that 
question.

In answer to Part C , as to whether or not this 
Court should appoint a special master to hear evidence 

with a view to recommending specific terms for such decrees* 
we would suggest ?n answer in the negative. And in 
answer to Part B„ we submit that this court should remand 
these cases to the courts of first instances with 
directions to frame decrees in these cases* the mandate of 
this Court., however* the decree entered by this Court ..however



to contain certain provisions that Mr. Marshall will 
outline in his portion of the argument.

We think that beyond those considerations* the 
lower courts may* by the exercise of ordinary procedural 
devices reach such further provisions in the decrees as 
might be necessary.

I will undertake to present our argument on 
question 4 and Mr. Marshall will undertake to present our 
argument on 5.

In the normal course of judicial procedure* the 
decision of this court that was entered on May 17, declaring 
that racial segregation in public, educational 
facilities afforded by a state is a violation of equal protec­
tion of the laws secured by the 14th Amendment, would have been 
followed by decrees which would have forthwith enjoined the 
continuation of the practice that this courj; at that time found 
to be unlawful.

As a matter of fact, in a somewhat analogous 
situation that this court found itself preserved with 
in Sipuel vs. Board of Regents,v where an effort was there 
made to secure a postponement of the rights that were involved, 
this court not only refused to delay the relief sought but 
accelerated the granting of the relief by directing that its 
mandate issue forthwith.

104

If that course of procedure had been followed. If



that couv3e of procedure la now followed., it would mean a 
disposition In these cases which would require w© think* 
two principal things* first* tho Initiation Immediately of 
the administrative procedures and steps that are necessary 
In older to desegreate the public schools In question and 
secondly* the admission at tho commencement of the school 
term of the Appellants and others who are similarly situated. 

Justice Black: May I ask you who would that
include*those similarly situated?
. ‘ ■ ■ ■■, ; ,' : . - lr ■■■,Mr. Robinson: Mr. Justice Black* I would answer

! • ‘ * V *  : % V ' •• • • " 5 * '

that queation by suggesting that it would include all 
Negroes who are residents in the Virginia case of the County 
of Prince Edwards and In the South Carolina Case of District 
No. 1.

Justice Black. Mr, Robinson* it is relevant to point
out in view of your remarks that in the Delaware* »
case in order to avoid loose talk about class suits* 
the decree merely related to the specifically named pupils 
and others seeking admission In that school.

Mr. Robinson. In the Virginia case there are 
actually three schools involved.

Justice Black: In the Delaware decree— I do not
know whether you have seen it —

Mr. Robinson: I have not.

105

Justice Black: Tho schools are mentioned by name



106

One is a high school and the other an elementary school-“by
0

name,
Mr, Robinson; I do not know whether, in the Delaware 

case, the prayer for relief in the complaint was the 
admission of the named plaintiffs to a particular school.

Justice Frankfurter: That was the complaint and all 
others similarly situated seeking admission as pupils m
the Claymont High School and in the other case in the 
Hocke3sin school No, 29. The class suit wa3 not class-at- 
large. but class defined with refei'ence to that particular 
school.

Mr, Robinson; In both the Virginia and South 
Carolina cases, however, the suits were brought as 
Class actions under Rule 23 of the Federal Rules of Civil 
Procedure and in these cases there was a prayer for 
admission to a specific school as distinguished from a 
prayer for declaratory relief and also for an injunction 
which would prevent the use of race in the asslgnmenfc of 
pupil3 to schools.

Justice Frankfurter; Why restrict it to*a countu, why
not to the whole state?

Mr Robinson; I answered Mr. Justice Blackcs 
question in the fashion I did, that in Virginia we have
a situation in \ihich our local school communities possess
such a degree of autonomy that I do not believe that a decree



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108

Justice Black, In other states the entire county is one small 
unit. In other words, in school terminology, one school 
district or one school division, there are no subdivisions 
of a county geographically or otherwise for school purposes.

Justice Black: You moan they can be sent to any 
school in any county?

Mr. Robinson: In terms of this situation under 
a segregated system there would be no choice with respect

* ' ■ • . i>.. i . ■ • •to Negro 3tudent3 because there is only one Negro high school 
and with respect to white students there would be very little 
choice while there were two white high schools, one was really 
a small high school department of essentially an elementary 
school accommodating something like 75 students and as the 
testimony in the record of the case indicates, was being 
maintained primarily for reaaons of convenience of some of 
the people living in that neighborhood and, as a matter of 
fact, was a school that vie understood at that time probably 
was slated for abolition at sometime in the near future.

Justice Black: Did the petitioners ask that
these students be sent to a particular school?

Mr. Robinsons No. In our complaint we did not.
Justice Frankfurter: Did the state or county give

bus service to all the high school students In the county?
Mr. Robinson: Yes, all those who required It, both

white and Negro



109

Justice •Reed. (Unintelligible.)
Mr. Robinson: Very definitely.
Justice Reed: That la not involved?
Mr. Robinson: 'Yes., I think that it is.
Justice Reed: I do not recall the specific

situation.
Mr. Robinson: I cannot say that it has been.

I will dix-ect your Honors to the fact that within the 
District Court’s decree which was an equalization decree, the 
Court continued the provisions with respecto school bus 
transportation.

Justice Black: If there is a decree such a3 you 
suggest with reference to all the people in the County, what 
statutory sanctions could be invoiced for enforcement of a 
decree of that nature if it were violated?

Suppose we entered a decree requiring that all 
the colored children in the whole county must be admitted into 
the county schools of a certain type and suppose someone 
violated that, what sanction can be imposed under the statute?

Mr. Robinson: I am still not sure that I am clear.
Justice Black: How would you enforce the order?
Mr. Robinson: Through the normal contempt procedures.
Justice Black: Anything el3e?
Mr. Robinson: Very definitely involved.
Justice Black: In other uord3, you would have to



110

try contempt procedures for everybody In the county that 
violated the order?

Mr. Robln3on: I would eay that would be available,
yes.

Justice Black: Any others?
Mr. Robinson: I cannot recall that there i3 .
Justice Frankfurter: You mean contempt in the District

Court in the Federal Court for violating the decree?
Mr. Robinson. Yea, in whatever court it emanates.
Justice Frankfurter: In this case. This is in the

District Court. Assuming such a decree a3 you would like 
to have were entered, then obedience to it would be by 
the contempt process for disobedience?

Mr. Robinson: . Yes.
*

Justice Reed: And contempt would be the process against 
the parties in this ca.ee?

Mr. Robinson: In the Prince Edward County case, yes.
Justice Reed; The school board?
Mr. Robinson: In this situation it would be the

school board which is a corporation under Virginia law and 
the Division-Superintendent of Schools.

We have a situation in which about,back 
in 19^3 there wa3 an instance of a violation by school 
authorities of a federal court decree. It was the 3ame court 
in which we took thi3 appeal except that it wa3 a single.



Ill
rather than a three-Judge district court* that is a
case which was referred to in the first brief we filed
for Virginia on the first appeal. The case is Ashley vs.
the School Board of Gloucester County ..that wa3 a situation
in which the district court ente-red a decree* an equalization
decree and after the expiration of a certain period of time
contempt proceedings were initiated predicated upon
the basis that the decree provisions had not been complied with.
The district court found that the school authorities were in
contempt* it imposed a fine upon the members of the Board
and the Division Superintendent as well as I can recall. There
were no subsequent contempt; proceedings because shortly after
that at least a measure of equalization was forthcoming
in that county. That is the only instance to which I might
direct your attention.

Justice Black: With reference to the scope of your 
decree* the number of people involved* it would be important 
to state* would it not* as to what sanctions the law 
provided* or whether we would be entirely dependent upon 
contempt proceedings* and so forth* statutory or common law?

Mr. Robinson: I would volunteer this but readily
confessing* I would not be in a position to argue that point. 
Whether or not now that the law has been made plain as to what 
the rights of these people are* a school official who declines co 
afford constitutional rights of this character at the time



112

tney are applied for does not violate one of the federal 
statutes having go do with activities under authority of the 
State law which are In deprivation of rights secured by the 
Constitution,

Justice Biacic: X was thinking that there was a 
federal statute which made it criminal contempt--that 
general safeguard. X had an idea.without looking at it., that 
there was some kind of a provision made for civil action
for damages. ' '' ' *• ' - • ̂ .

Mr. Robinson: Well* yea. there is a section to
which your Honor refers. Section 1 9S3 of Title 42, it is the
old Section 43 of if.

Justice Black: Bills of Rights Act.
Mr, Robinson: Yes. Vie had some amount of discussion 

about that the last time we were here.
In this situation we submit if there is any — If 

there is going to be any postponement of relief beyond the 
date we suggest the burden is on these Defendants to state 
what they propose to do and establish, as a matter of fact, 
that the postponement they seek ha3 advantages which are 
judicial, cognizable and outweigh those which are 
inherent in the prompt vindication of the appellants5 constitu­

tional right.
.Justice Frankfurter: You suggested a te'rminal date hot 

did not give a date, in your sketch of proposed decree, but you



113

alao gave a consideration, namely, administrative requirements.
Mr. Robinson: Yes, that is right.
Justice Frankfurter: Since that is a criteria, that is 

a condition which you take into account, had this Court 
take Judicial notice that that which you yourself deem 
relevant to the enforcement of the decision we made last 
May, can this court take into account that that 
would be satisfied, that requirement, that would be fulfilled 
by September, 1955, if not this *"ourt, could the District 
court take notice or if it is not one of those things that 
either court can take into account, doesn’t that re 
determination with evidence and testimony and so ot

Mr. Robinson: I think that speaking as of w. « 
moment, it is a matter of which this court could take Judicial 
notice.

Justice Frankfurter: This.court could take Judicial 
notice of the conditions in Prince Edward County with regard 
to relevant administrative considerations in the disposition 
of plant, personnel, and so forth?

Mr. Robinson: Not quite in that fashion, sir, 
this court has before it the case in which argument was 
Just completed, involving a much larger and a much 
more complicated school system than exists in Prince Edward 
County. The Court has had before the School systems in two 
other states— now absent any showing of Judicial -



114

relevant considerations that would administratively delay 
the accomplishment of desegregation beyond September of 1955,, 
we feel that thla court, on the basis of the experience 
had in those instances which we think has now been had 
by the Court and certainly,* is a matter of which the Court 
could take Judicial notice,would fully Justify thla Court 
in fixing as the terminal date of the desegregation 
process September 1955.

Justice Frankfurter; We have heard from both
> < -  - , - v  ,rr  p  «r ; 1. ■' •> ©rjtt

- j  ■- V £• *• - ■ k- if ■' t- - . „•counsel that the DlatrJet represented some vary
special considerations. . i 1

Mr. Robinson: I think Mr. Justice Frankfurter,
that the considerations which are really important to the ques­
tion which is now before the Court and that is ways and means 
and particular time of accomplishing desegregation, •' 
are considerations which obtain in Prince Edward county as well 
as in the District of Columbia and in these other areas.

Justice Frankfurter; Maybe so, but my attitude 
and mind do not lecessarily lead to that conclusion.

Mr. Robinson: I am sure our opponents will urge 
considerations to the contrary. Mr. Marshall proposes in his 
presentation to go fully into those. If your Honors want me
to—

Justice Frankfurter: No, no, divide your time as you

please



115

Justice Reeds The only problem that we suggest 
that is the burden -of your opponents is to show that here

win court.
Mr. Robinson: I think so.
Justice Reed: Just tell us what they think about it.
Mr. Robinson: No- I think they should come forward 

in this court and demonstrate —
Justice Reed: Demonstrate how- by evidence?
Mr. Robinson: Yes. by evidence. I suppose that is 

the only way we can formulate-- .....
Justice Reed: Or their statement that it would be 

difficult as part of the school situation, because of the 
attitude of the people- because of lack of bus transportation.

Mr. Robinson: I do not think that- sir.
Justice Reed: Because of lack of schools of 

adequate size.
Mr. Robinson: If there were a fact.that were 

brought to the attention of the court. I should think that would 
be one way of doing it.

Justice Reed: Perhaps that would be better to take 
up in the District Courtt

Mr. Robinson: We feel when that comes to the 
question of fixing the terminal date, that here we have 
a consideration that is so all important in so far as the 
realization and satisfaction of constitutional rights may be



1 16

concerned., it la a matter that occupies just that degree of 
Importance that the thing la a matter which should be fixed 
by this court* assuming that there 13 no lack of basis 
upo which this court can proceed to that conclusion.

Justice Reed: How would you find that* according 
to the percentage of the minority race there maybe in a particu­
lar oounty?

Mr, Robinson: No* without undertaking how much time thi 
particular activity would take or thi3 would take*thl3 
court would be justified in concluding that if a school system 
lilce the District desegreatod in the space of time it did* that 
a school system far less complicated and far smaller in size 
than the District could desegregate in an equal space of time 
absence any showing by our opponents that an additional period 
of time would he needed.

Justice Reed. Before you mate that* that carries the 
connotation to re that every place in the country i3 Ju3t 
alike. There would he no difference in the time that would 
he required in the District if they may do it that quick* in 
a certain time* ©very other place should do it.-

Mr. Robinson: As I say* that is a consideration
that Mr. Marshall is directing hi3 argument to. We think the

thurden on our opponents is increased by reason of the fact 
that the rights that these appellants seek to postpone are 
rights which have been characterized in a number of cases by this



117
Court as personal ana present. We think that that consideration 
is a measure — a consideration of the appellees and makes 
it even more difficult.

Then there are two additional considerations that 
we submit hero. In the first place* as this court ha3 pointed 
out* the continuance of racial 3-ltuatlons In public education 
is a matte'c that causes irreparable harm and damage to the 
students. Every day that thi3 illegal system of racial 
segregation continues* we would mean that we have not one 
child but a multitude of children who are really being 
seriously injured. Additionally* the rights asserted by 
the appellants in these casee are the rights of the 
children and if they are ever going to be satisfied they 
roust be satisifed while they are still children and the period 
for attendance in public schools is a short period.

We think they are important .considerations that must 
be weighed in making any determination as to whether the 
burden upon our opponent of• demonstrating a Justification for 
the delay has been met.

I would like to look first at the precedents because 
we have some and they have some* that are specifically 
urged upon the court as decisive of this question. I would 
like to call attention first to the Youngstown case* a 
decision by this court in which the court even in the face



llB
of the gravest of public emergencies., declined to delay 
the satisfaction of the rights involved.

The case of course is familiar to the court. Pre­
liminary injunctions had been entered by the 
District Court.against the enforcement of a Presidential order 
involving a seizure of steel mills. The appeal was taken 
here and among the arguments to this court was the argument 
that the public interest in the uninterrupted production of 
steel which was so closely and so necessarily connected with 
the production of sensitive and essential war materials was 
superior to the constitutional rights of the owners 
of the properties that had been seized to the immediate return 
of their properties* and out of the seven opinions that were 
filed by this court* no one apparently 3aw any merit in that 
argument.

We submit that* if in a situation of that kind* 
equity could not appropriately exercise its broad discretion 
to withhold an immediate right of relief*then such a post­
ponement would be completely inappropriate in these cases where 
no consideration that even touches the magnitude of the one 
there involved is present here,

I would like to make reference to the ex parte 
Endo* that I think is much more closely related to these 
ca3e3 than the cases upon which our opponents rest. That was the 
case in which the government argued that disorder and hardship



119

and community hostility and prejudice that tiaa supposed to 
flow from the unsupervised release of a loyal American 
citizen of Japanese tno -vrry., -'r. -c words, the argument 
there was mac'.e that even though the detention of the 
party in that habeas corpus proceeding was illegal, that there 
was such a hostility, there was such a prejudice in some 
areas, that ltwa3 necessary for the detention to be 
continued at least temporarily in order that the relocation 
program of our government could be successfully continued but 
this court, in a unanimous opinion, there being in addition 
to concurring opinions,heId that notwithstanding this, the 
party must be given her unconditional release. The court 
said that here the petitioner had one of these rights in that 
sensitive area of rights specifically guaranteed by the 
constitution. And notwithstanding the weight in. a time like 
that, that the Government's contention was bound to carry, 
nevertheless concluded that she must be immediately released.

Justice Reed: That follows the Hirabayashi cases
which said that they could be and only after Miss Endo had 
demonstrated her loyalty.

Mr. Rohlnson. But her loyalty when we got to that 
point and her loyalty had been demonstrated to us, her ,
right to constitutional freedom was clear.

Justice Reed. Yes.
Mr. Robinson: I think the significance of the



120

Enclo holding is that once we get to that point* she could not 
be illegally detained. In other words* the postponement 
there could be no postponement. There was nc 'Justification 
for postponing or delaying her constitutional right to freedom 
Just like that of any other American.

Justice Feed: In the Hirabayshi case vie did not
have that.

Mv. Robinson: In the Hirabe.yahi case we had 
3 -situation until there had been an opportunity 
to make a determination as to who was loyal and who was dis­
loyal* we would not be in a position to know who had 
the right and who did not have it. I think that is the 
difficulty.

In answer to the Court7a question for in our 
efforts to get the thing answered* we have made a very extensive 
study of the cases and we have come up with no case.we 
have come across no case wherein this situation* this case 
that is found that there is a violation of a constitutional 
right but nevertheless* has postponed relief or satisfaction 
of that right on the ground that because of some local community 
hostility or prejudice or customs* delay in effectuating 
that right is justified.

A 3 a matter of fact* we think that it viould be 
strangf in tljese ca3e3 for this court to conclude that here 
we have a situation where for the first time it may now be



121

decided that the enjoyment of such fundamental and basic 
human rights may be justifiably delayed. These are righta 
asserted in these two cases that are secured by the l4th 
amendment and as a matter of history, that amendment was designed to 
protect these rights against the same type of local 
hostilities and prejudices and customs and all that our 
opponents rely on.

N0t only do we have the amendment itself but we have 
Congressional legislation that was designed for the very 
purpose of affording protection to the enjoyment of 
rights of this kind when their infringement., predicated 
upon local customs, wa3 forthcoming. We can not find any 
siguation anywhere in the cases nor do we think that the 
principle should be established here that rights of that character 
should be enforced at a pace that is geared down to the very 
customs and practices and usages that the constitution and that 
federal legislation were designed to protect against.

I would like to get into the cases which \ 
are relied upon by our opponents and I would like to have the 
opportunity to distinguish them. They rely upon a number of 
decisions of thl3 court and other courts as well as in which 
there has been some measure of delay in the absence of 
rights but are cases that involve totally different considerations.

V'e find upon our examination of these cases that 
they fall principally into two groups: First, they malce 
reference to the nuisance cases, the situations in which delay



122

and enforcement of a right, usually ‘ a property right 
against conduct that is essentially commission of a tort, 
has been forthcoming. They also rely upon a number of decisions 
of this court and a trust litigation in vihlch, because of 
some phase of the activity which was to follow this 
Court's decision, some measure of time was afforded.

The Chief Justice: We will recess now.
(At 4:30 p.ro. the hearing was recessed.)