Application to Vacate Suspension of Order

    SUPREME COURT OF THE UNITED STATES 

October Term, 1969. 

  

  

Beatrice Alexander, et al. 

Applicants, 

v. 

Holmes County Board of 

Education, et al. ) 

[September 5, 1969.] 

Application to Vacate 

Suspension of Order. 

  

MR. Justice Brack, Circuit Justice. 

For a great many years Mississippi has had in effect 

what is called a dual system of public schools, one system 

for white students only and one system for Negro 

students only. On July 3, 1969, the Fifth Circuit Court 

of Appeals entered an order requiring the submission 

of new plans to be put into effect this fall to accellerate 

desegregation in 33 Mississippi school districts. On: 

August 28, upon the motion of the Department of 

Justice and the recommendation of the Secretary of 
Health, Education & Welfare, the Court of Appeals 
suspended the July 3 order and postponed the date for 
submission of the new plans until December 1, 1969. 
I have been asked by Negro plaintiffs in 14 of these 
school districts to vacate the suspension of the July 
order. Largely for the reasons set forth below, I feel 
constrained to deny that relief. 

In Brown v. Board of Education, 347 U. S. 483 (1954), 
and Brown v. Board of Education, 349 U. S. 294 (1955), 
we held that state-imposed segregation of students 
according to race denied Negro students the equal pro- 
tection of the law guaranteed by the Fourteenth Amend- 
ment. Brown I was decided 15 years ago, but in 
Mississippi as well as in some other States the decision 
has not been completely enforced, and there are many  



ed on pe 

schools in those States which are still either “white” 

or “Negro” schools and many that are still all-white or 

all-Negro. This has resulted in large part from the 

fact that in Brown II the Court declared this unconsti- 

tutional denial of equal protection should be remedied 

not immediately, but only “with all deliberate speed.” 

Federal courts have ever since struggled with the phrase 

“all deliberate speed.” Unfortunately this struggle has 

not eliminated dual school systems, and I am of the 

opinion that so long as that phrase is a relevant factor 

they will never be eliminated. “All deliberate speed’ 

has turned out to be only a soft euphemism for delay. 

In 1964 we had before us the case of Griffin v. School 

Board, 377 U. S. 218, and we said the following: 

“The time for mere ‘deliberate speed’ has run out 

and that phrase can no longer justify denying these 

Prince Edward County School children their consti- 

tutional right to an education equal to that afforded 

by the public schools in the other parts of Virginia.” 

Id., at 234. 

That sentence means to me that there is no longer any 

excuse for permitting the “all deliberate speed” phrase 

to delay the time when Negro children and white children 

will sit together and learn together in the same public 

schools. Four years later—14 years after Brown [—this 

Court decided the case of Green v. County School Board 

of New Kent County, 391 U. S. 430 (1968). In that 

case MR. Justice BRENNAN, speaking for a unaminous 

Court said: : 

“‘The time for mere “deliberate speed” has run 

out. . . .” The burden on a school today is to come 

forward with a plan that promises realistically to 

work, and promises realistically to work now.” Id., 

at 438-439. 

“The Board must be required to formulate a new 

plan . . . which promise[s] realistically to convert  



ag Ll 

promptly to a system without a ‘white’ school and 

a ‘Negro’ school, but just schools.” Id. at 442. 

These cases, along with others, are the foundation of 

my belief that there is no longer the slightest excuse, 

reason, or justification for further postponement of the 

time when every public school system in the United 

States will be a unitary one, receiving and teaching 

students without discrimination on the basis of their 

race or color. In my opinion the phrase “with all 

deliberate speed” should no longer have any relevancy 

whatsoever in enforcing the constitutional rights of Negro 

students. The Fifth Circuit found that the Negro 

students in these school districts are being denied equal 

protection of the law, and in my view they are entitled 

to have their constitutional rights vindicated now with- 

out postponement for any reason. 

Although the foregoing indicates my belief as to what 
should ultimately be done in this case, when an indi- 
vidual Justice is asked to grant special relief, such as 
a stay, he must consider in light of past decisions and 
other factors what action the entire Court might possibly 
take. I recognize that, in certain respects, my views 
as stated above go beyond anything this Court has 
expressly held to date. Although Green reiterated 
that the time for all deliberate speed had passed, there 
is language in that opinion which might be interpreted 
as approving a “transition period” during which federal 
courts would continue to supervise the passage of the 
Southern schools from dual to unitary systems.* Al- 

*“The obligation of the district courts, as it always has been, is to 
assess the effectiveness of a proposed plan in achieving desegregation. 
There is no universal answer to complex problems of desegregation; 
there 1s obviously no one plan that will do the job in every case. 
The matter must be assessed in light of the circumstances present 
and the options available in each instance. It is incumbent upon 
the school board to establish that its proposed plan promises mean- 
ingful and immediate progress toward dis-establishing state-imposed 
segregation. Green v. County School Board, supra, at 439. 

“Where [freedom-of-choice] offers real promise of aiding a  



on ee 

though I feel there is a strong possibility that the full 

Court would agree with my views, I cannot say definitely 

that they would, and therefore I am compelled to con- 

sider the factors relied upon in the courts below for 

postponing the effective date of the original desegregation 

order. 

On August 21 the Department of Justice requested 

the Court of Appeals to delay its original desegrega- 

tion timeable, and the case was sent to the district court 

for hearings on the Government's motion. At those 

hearings both the Department of Justice and the Depart- 

ment of Health, Education & Welfare took the position 

that time was too short and the administrative problems 

too difficult to accomplish a complete and orderly imple- 

mentation of the desegregation plans before the beginning 

of the 1969-1970 school year. The district court found 

as a matter of fact that the time was too short, and 

the Court of Appeals found that these findings were 

supported by the evidence. I am unable to say that 

these findings are not supported. Therefore, deplorable 

as 1t is to me, I must uphold the court’s order which 

both sides indicate could have the effect of delaying total 

desegregation of these schools for as long as a year. 

This conclusion does not comport with my ideas of 

what ought to be done in this case when it comes 

before the entire Court. I hope these applicants will 

present the issue to the full Court at the earliest possible 

opportunity. I would then hold that there are no 

longer any justiciable issues in the question of making 

effective not only promptly but at once—now—orders 

sufficient to vindicate the rights of any pupil in the 

desegregation program to effectuate conversion of a state-imposed 
dual system to a unitary, non-racial system there might be no 

objection to allowing such a device to prove itself in operation. . . . 

“The New Kent School Board's ‘freedom-of-choice’ plan cannot 

be accepted as a sufficient step to ‘effectuate the transition’ to a 

unitary system. . . .” Id. at 440-441.  



ed 

United States who is effectively excluded from a public: 
school on account of his race or color. 

It has been 15 years since we declared in the two 
Brown cases that a law which prevents a child from 
going to a public school because of his color violates 
the Equal Protection Clause. As this record conclusively 
shows, there are many places still in this country where 
the schools are either “white” or “Negro” and not just 
schools for all children as the Constitution requires. In 
my opinion there is no reason why such a wholesale 
deprivation of constitutional rights should be tolerated 
another minute. I fear that this long denial of consti- 
tutional rights is due in large part to the phrase “with 
all deliberate speed.” I would do away with that phrase 
completely. 

Application to vacate suspension of order denied.