Cooper v. Aaron – Oral Argument – September 11, 1958 (Part 1)

Media for Cooper v. Aaron

Audio Transcription for Opinion Announcement – September 12, 1958 in Cooper v. Aaron
Audio Transcription for Oral Argument – August 28, 1958 (Part 1) in Cooper v. Aaron
Audio Transcription for Oral Argument – August 28, 1958 (Part 2) in Cooper v. Aaron
Audio Transcription for Oral Argument – September 11, 1958 (Part 2) in Cooper v. Aaron

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Earl Warren:

The Court has now reconvened in special term to consider an application by the petitioners for a writ of certiorari to the United States Court of Appeals for the Eighth Circuit in the case of William Cooper et al., versus John Aaron et al., Number One Miscellaneous and a motion for vacation of a stay of execution granted by the Court of Appeals for Eighth Circuit in that case.

The petition was filed on September 8, 1958 in accordance with the order of the Court of August 28, 1958.

The briefs of petitioners and respondents were timely filed on September 9th and 10th respectively.

In addition five motions have been received for leave to file briefs as amicus curiae.

Three of these were addressed to the proceeding instituted by the respondents here for the vacation of the order of the United States Court of Appeals for the Eighth Circuit staying the issuance of its mandate, and for a stay of the order of the United States District Court for the Eastern District of Arkansas of June 21, 1958 in Aaron et al., versus Cooper et al.

Two are addressed to the instant proceeding.

Treating them all as addressed to the interest — the instant proceeding, all motions for leave to file amicus curiae briefs and to intervene and argue are denied.

The petition for a writ of certiorari is granted and we will now proceed to the argument of the case on the merits.

The order of augment will be first the petitioners, second the respondents, then the Solicitor General and thereafter either of the parties in rebuttal of the Solicitor General, the petitioners to speak last.

Counsel may wish to obtain the admission of associates for the purposes of this case, if this is desired the Court will entertain such motions now.

Richard C. Butler:

Mr. Chief Justice and I have with me as co-counsel, Mr. A. F. House of the Little Rock Bar.

He has been admitted to practice before this Court for many years.

We also have as co-counsel, Mr. John Haley of Little Rock who has not yet been admitted to practice before this Court, but who we hope will be given permission to appear on the briefs as his name does appear there in this title.

Earl Warren:

And you wish him admitted for the purposes of this case now Mr. Butler?

Richard C. Butler:

If you please sir, but not for the purpose of oral argument.

Earl Warren:

Yes, well he maybe so admitted and —

Richard C. Butler:

Thank you.

Earl Warren:

— for such service he maybe to you.

We will now proceed with the argument of the case Mr. Butler.

And may I say before we start that the Court appreciates the cooperation that we’ve had from counsel on both sides of the case in facilitating the hearing for us today.

Richard C. Butler:

Thank you Your Honor, Mr. Chief Justice and justices of the Supreme Court.

For the record and in view of the Court’s ruling that amicus curiae briefs will not be permitted, we would like for the record to show, however, that it has been the position of these petitioners for this writ, not to withhold their consent for any amicus curiae brief to be filed by any proper person.

We have had them submitted to us.

I’m afraid that all of them have not come to our attention particularly, and we have perhaps not responded to those, but for this record we would like to state that we have no objection to any briefs amicus curiae being filed and being considered by this Court.

We have stated the issues as we see them in our brief.

We see no particular reason at this time to read those.

We’ve tired to state them as succinctly and yet as fully as we believe this Court would have us do.

We believe that the manner and the methods employed by the United States Supreme Court in the two Brown decisions of 1954 and 1955 recognized the complexities of this problem as had previous courts in determining issues of a similar nature.

Both of the Brown decisions in our opinion reflect an understanding by this Court of the history of the Negro race and of the cultural patterns throughout this land.

As Mr. Blossom, the Superintendent of The Little Rock school board stated and we quoted him in the brief and we quoted him at the last hearing, he has set forth we think an accurate outline of the history of this minority group within this country.

Audio Transcription for Oral Argument – August 28, 1958 (Part 1) in Cooper v. Aaron
Audio Transcription for Oral Argument – August 28, 1958 (Part 2) in Cooper v. Aaron
Audio Transcription for Oral Argument – September 11, 1958 (Part 2) in Cooper v. Aaron

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Richard C. Butler:

And briefly it is this that from 1619 to 1865 history shows that there was slavery in this land.

That is a period of two-and-a-half centauries.

From 1865 to 1896, I believe the way he termed it and some historians termed it as enforced citizenship.

That was a period of 31 years, ending as he viewed it and as we view it, and as many historians view it, by the case of Plessy versus Ferguson which announced separate but equal doctrine insofar as educational processes in this country are concerned, public education.

The third period we —

Felix Frankfurter:

That isn’t quite what the case did, did it?

Richard C. Butler:

It announced the doctrine Mr. Justice Frankfurter.

It did not deal with public education of course.

Felix Frankfurter:

All I’m saying is your qualification as applied to education could not be fairly said to be the decision —

Richard C. Butler:

Well of course we all recognize that the case itself dealt with public transportation.

Felix Frankfurter:

I have no doubt you did, I have no doubt you did.

Richard C. Butler:

But the dictum in the case was the first that I’m aware of where the doctrine of separate but equal facilities was held to be constitutional.

Then from 1896 until 1954, of course this country operated under that doctrine.

That was a period of 58 years.

From 1954 until now and into the future, there are question marks of course, as to the period of time that effective education can pass from the transition period, from the separate but equal doctrine into complete desegregation.

We believe that this Court recognized that time was required for certain cultural patterns to change, and that obviously this Court recognized the necessity or at least the desirability of referring those matters to the local district courts for innumerable problems which this Court recognized would arise and some of which were enumerated in the decision.

Deliberate speed as used by this Court is certainly not just a phrase coined on the spur of the moment or developed as a philosophy of opportunism to solve an immediate problem, but instead to us it was a carefully conceived philosophy of deliberation, which along for legal reasons for delay, as outlined by this Court in the second Brown decision, allows for the flexibility and the delay provided in the decision by District Judge Harry J. Lemley.

In effect it provides for a transition from one era to another or from one set of standards to another.

Now I invite the Court’s attention to this quotation “and if you go back to the Brown decision and study its terms, you will see that this Court with due regard for the almost inestimable value of the public schools to the American people, used every care that it could conceive to try to protect that system provided that the people who were trying to work in the public school system and the state officials had a duty also to preserve it in accordance with the Constitution of the United States and set about the task to try to carry out the Brown decision in good faith at every step of the way.

We all know as lawyers and the public knows it from its experience that the courts have had equitable principles that they have worked with over the centuries and the Court in the Brown case in a note refers to that fact, the decision of this Court in which that is set out.

And a court of equity does not ask people any time or any place to do things that are beyond their power, things that they cannot do.”

That ends the quotation and those are not our words, but those are the words of the honorable Solicitor General at the last hearing on this case.

No one has ever questioned the good faith of the Little Rock school board.

It has been admitted from time to time by counsel for NAACP by the honorable Solicitor General by every court before which this board has appeared, and is implicit in some of the comments made by the justices at this last hearing.

Again we find in the words of the honorable Solicitor General and I am sure that this Court in the decision in the Brown case in its implementation did not want in any way to loose the public school system in obtaining and enforcing this principle of constitutional law.

There is ample provision in the Brown case implementing the declaration about constitutional law for time if it is actually needed in good faith to try to carry out this constitutional principle.

It is all there and no court of equity in this country would fail to recognize those needs if they are properly brought to its attention and if the action is in good faith and everybody according to basic principles of equitable law has done everything within his power up to that point to accomplish the court’s decree.

That is when an equity court comes in and acts to help out someone who has tried and done his level best in accordance with all the means at his command and then ask for some help or relief.

Again I state that is a quotation from the honorable Solicitor General made before this Court two weeks ago.

Now as that — with that as a background or as a statement which of course we are willing to accept, Judge Lemley, who heard the decision — who heard the evidence before he rendered his decision after a trial of some three days and after briefs had been submitted, made these statements.

Audio Transcription for Oral Argument – August 28, 1958 (Part 1) in Cooper v. Aaron
Audio Transcription for Oral Argument – August 28, 1958 (Part 2) in Cooper v. Aaron
Audio Transcription for Oral Argument – September 11, 1958 (Part 2) in Cooper v. Aaron

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Richard C. Butler:

Now if Your Honors please, Judge Lemley’s decision in our opinion is so important.

It so well considered.

It’s so effectively gives the background of the trials and tribulations of the school board in operating a public school system.

And the evidence is so clear in that case and he outlines it, although he takes some 19 pages to write his opinion, we feel so strongly that that should be carefully considered by every individual member of this Court that by quoting only short portions of it in our oral argument we trust that the Court will not believe that we slight any particular portion of it.

The full decision of Judge Lemley as well as the full decision of the Circuit Court of Appeals is in the pleadings that have already been filed heretofore before this Court.

Now in the light of the Solicitor General’s remarks, let’s look at some of the things that judge Lemley said in his decision.

As has been said, there can be no question that the board made a prompt and reasonable start toward compliance with the principles laid down in the Brown cases.

Thereafter, it put its plan into operation and has adhered to it in good faith in the face of great difficulties.

Now it has come here seeking relief only after it has been confronted with what is from an educational standpoint an intolerable situation and it does not ask for an abandonment of its plan nor does it attempt to obtain indefinite postponement.

It is simply requesting a practical delay and we are convinced that in seeking this delay the board is still acting in good faith, and upon the showing that has been made, we are satisfied that the board needs more time to carry out its plan in an effective manner, that to grant the instant petition is in the public interest and is consistent with good faith compliance at the earliest practicable day with the principles above mentioned.

In reaching this conclusion, we are not unmindful of the admonition of the Supreme Court that the vitality of those principles cannot be allowed to yield simply because of disagreement with it.

Here, however, as pointed out by the board in its final brief, the opposition to integration in Little Rock is more than a mere mental attitude.

It has manifested itself in overt acts which have actually damaged educational standards and which will continue to do so if relief is not granted.

We have seen that the Supreme Court said in the second Brown decision that the transition from a formerly segregated school to a school free from compulsory segregation should be carried out in an effective manner and that such a transition is in the public interest.

In our estimation a transition which impairs or disrupts educational programs and standards and which will continue to do so is not in the public interest, but on the other hand inflicts irreparable harm upon all of the students concerned regardless of race.

Whereas here such a transition is being undertaken under the compulsive effects of a Federal Court order, a refusal to modify such an order so as to ameliorate the situation would in our opinion under the circumstances here present be inequitable if not arbitrary as well.

Could I ask you a few questions.

Richard C. Butler:

Yes sir, Mr. Justice.

Taking the complete good faith in the school board and I for one certainly accept it without reservation, how can you, from the point of view of judging this case, divorce the action of the state, which you very frankly in your brief say was an action designed to frustrate the good faith of the action of the school board, how can you divorce that in judging the issues in this case from the position of the school board?

Richard C. Butler:

I don’t believe Mr. Justice Harlan that we are attempting to divorce that.

That is the primary problem that this school board has in carrying out its plan of integration or its plan of desegregation which I think is more accurate.

When it as an arm of the state government is ordered to do one thing by one court and by its employer so to speak, the State of Arkansas obviously is ordered to do something else.

We have not in any sense so far as I am aware attempted to divorce that.

We wish we could but we cannot.

It is implicit and inherent and intertwined in this particular problem.

Felix Frankfurter:

Am I right in inferring from the testimony, both of Mr. Upton and Mr. Blossom, that indeed the position of the school board derives from the fact that there was this intervention by state authority or this interruption of what was an incipient peaceful process which gave rise to the difficulties, which you just rehearsed, the state (Inaudible)

Richard C. Butler:

Yes sir, we certainly have been faced with that Mr. Justice Frankfurter and that —

Felix Frankfurter:

Now may I ask you —

Richard C. Butler:

And that in incipiency maybe was not aware to everyone at the time, but it was a latent problem that exploded and which was not anticipated by the school board and I say by the people in Little Rock generally and I dare say by the courts themselves.

Felix Frankfurter:

But the process which was interrupted by the intervention of the militia, of state action was as conceded by the school board and the Superintendent, a peaceful process underway, is that correct?

Audio Transcription for Oral Argument – August 28, 1958 (Part 1) in Cooper v. Aaron
Audio Transcription for Oral Argument – August 28, 1958 (Part 2) in Cooper v. Aaron
Audio Transcription for Oral Argument – September 11, 1958 (Part 2) in Cooper v. Aaron

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Richard C. Butler:

Yes sir they thought it was peaceful up until just a few weeks before the actual opening of schools for the 1957-1958 School Year in Little Rock.

Felix Frankfurter:

Now then, suppose everything you say is so and we’re not suggesting, as I personally do not suggest you believe in the inevitability in human affairs, but suppose the same circumstances are put to the Court of Equity and the District Court at the end of two-and-a-half years, the same exercise of discretion in regard for external fact would justify a similar (Inaudible) or physically (Inaudible), would it not?

Richard C. Butler:

Well Mr. Justice Frankfurter let me state as concisely as I can our position.

I believe I stated when we were here before, that we do not intend to tell this Court that we believe that all of the problems wrapped up in this distressing situation can be solved in two-and-a-half years or six months or ten years or any other particular length of time.

We do earnestly believe this that without a reasonable period of calm, that solutions, proper lasting solutions have no chance of success.

Now whether that period be six months, whether it be two-and-a-half years, whether it be ten years, not being clairvoyant we have no way of knowing, but in the combined judgment of the school board, with the experience that it had, it felt that it did not have a good chance of arriving at solutions in less than that, that approximate period of time.

Felix Frankfurter:

Would you think it was proper, appropriate, relevant for this Court to consider the conditions that followed the formulation, judicial approval, practical implementation of the plan adopted by the board?

Is it relevant for this Court to consider the forces that interferes with the peaceful evolution of the plan which they with great care formulated, for which they received judicial approval, for which at one period the community as I read the evidence was on the whole, if not enthusiastic about, at least acquiescence in accordance with it?

Richard C. Butler:

Well, Your Honor, I believe this that from a practical standpoint as far the problem facing this school board, it makes no difference why this particular plan has failed to be accepted at this time.

As we set out in our brief, we gave the illustration of a trucker or a (Inaudible) being ordered by a court let’s say, going from point A to point B and there is a bridge across a chasm, and he attempts to carry out his assignment, and he gets to the bridge and for reasons completely beyond his control the bridge is no longer there.

We feel that the school board would be in the position if this Court or any other court directed it to cross that chasm without a bridge that it would be saying, you go over the brink to your fate.

Felix Frankfurter:

May I suggest —

Richard C. Butler:

And —

Felix Frankfurter:

I beg your pardon.

Richard C. Butler:

I just was going to conclude Mr. Justice Frankfurter this thought, that to that (Inaudible) it makes no difference why the bridge is not there.

Now, it maybe a proper function of some judicial body or even an executive body to determine whether or not that destruction of the bridge was malicious or whether it was as a result of an act of God or whatnot, but to the man who has the problem right then of getting across the chasm, as this school board has the responsibility, its main responsibility of providing for proper educational system in the City of Little Rock, it makes no difference to it why the bridge was destroyed.

Felix Frankfurter:

May I suggest two things Mr. Butler?

In the first place I think it’s dangerous to argue or fair to analogize, that argued from physical factors of this world to psychological factors, but in the second place a Court of Equity would not be beyond its power to require that the bridge to restored?

Earl Warren:

Mr. Butler, doesn’t this argument that you’re making now, more or less assume that this is a personal issue between the school board and these school children who seek admission whereas as a matter of fact the real issue before this Court is not just whether the school board is frustrating the rights of these children, but whether the acts of any agency of the State of Arkansas are preventing them from exercising their constitutional rights and whether it’s a school broad or whether it’s a governor, whether it’s a legislature, whether it’s the militia, whatever agency of the state government, if it did frustrate the rights of these children is a violation the Constitution, isn’t that the issue that we have before us?

Richard C. Butler:

Well to answer the first part of question Mr. Chief Justice, it has been very heartening to the lawyers in this case, that the school board members have refrained at any time from dealing in personalities whether they be Negro children, whether they be the Governor, whether they be the President of the United States or any other person.

They have looked on their major responsibility as continuing an acceptable educational system within the City of Little Rock and they have refrained, although they have been taunted and prompted at times to deal in personalities, fortunately they have resisted that temptation insofar as I am personally aware.

Earl Warren:

Yes, but conceding absolute good faith to the board, is this Court not concerned with whether the state action of the state of Arkansas, whether that action emanated from the school board or from other authority, has frustrated the constitutional rights of these children

Richard C. Butler:

Well Mr. Chief Justice, this Court maybe concerned with a whole lot of things.

The thing that we are pleading for is and we have tried our best to keep it on this particular basis.

We feel very earnestly that the Little Rock school board is entitled to be heard before this tribunal as well as others, on its own record and for its own purposes.

Now we are not unmindful of course of the problems of a similar nature in other sections of the country and in other states, but we have done the best we could to try to keep out any foreign issues and to request the local court, the Court of Appeals and this Court to look at our problems in Little Rock.

We are not here to plead, because we are not familiar with situations in other states, and their particular problems, and it seems to us that, that is the very basic wisdom when the United States Supreme Court did abandon the doctrine of separate, but equal and change, that when it gave to the local district courts that power to determine the local problems as they might arise, that we are entitled as a school board of Little Rock to have our local judge on the evidence presented, determine that case for that particular case and no other.

Now, the results of that decision may by either side or both sides be pointed out for their own purposes in other areas of the country.

But we, and although it is not accurate to say we are not concerned about it, because every citizen of the United States is concerned about this problem, but it is not our obligation or duty to be unduly concerned about what precedent maybe set or what effect it may have in other sections of the country.

We have enough problems in Little Rock if we stick to this particular problem there.

Audio Transcription for Oral Argument – August 28, 1958 (Part 1) in Cooper v. Aaron
Audio Transcription for Oral Argument – August 28, 1958 (Part 2) in Cooper v. Aaron
Audio Transcription for Oral Argument – September 11, 1958 (Part 2) in Cooper v. Aaron

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Earl Warren:

But Mr. Butler —

Richard C. Butler:

Without giving undue consideration to what might happen somewhere else.

Earl Warren:

Yes, well just sticking to your own particular case, is it your position that if this Court recognizes that the school board has acted faithfully in this manner that it has no jurisdiction to relieve the distress of these children if other state action has deprived them of their constitutional rights?

Richard C. Butler:

Well Mr. Chief Justice I think that gets at one — at the heart of this issue and I — if I may suggest I get into that a little farther in my argument, if I may?

Earl Warren:

Yes, yes, take your own time, do it in your own way.

Richard C. Butler:

There is one thing that I would like – I’d like to answer a little further the grave question of Mr. Justice Frankfurter about wouldn’t it be proper to construct the bridge and I thoroughly agree with that Your Honor, but I do think that in the construction of a bridge, it does take deliberate speed at least and one very eminent jurist on this Court some twelve years ago made this comment in an opinion.

“In any event mere speed is a test of justice, deliberate speed is.

Deliberate speed takes time but it is time well spent.”

Assuming that, Mr. Butler assuming that the state authorities gave you unequivocal assurance that the school board will be backed up by the state authorities in implementing this plan, would the board still be asking for a go ahead?

Richard C. Butler:

If it were backed up by a state authority?

Yes, state or Federal authority?

Richard C. Butler:

Oh –-

Will you be asking of delay?

Richard C. Butler:

No sir, I think not, if the various laws in the state and the various executives which have supervisory power including the general assembly of State of Arkansas had taken the position that some other states have taken in the north, New York and various other states, this school board wouldn’t have any problem and there it would be no, no purpose or reason for it to ask for a delay.

So the essence —

Richard C. Butler:

But I can’t at this moment as history has unfolded itself in the last months anticipate that any such situation could be reversed and take place in the State of Arkansas at this time or for that matter any other South —

The essence of your position is that the school board finds itself in a position it does because of the break down of the enforcement activity —

Richard C. Butler:

Because —

— in Arkansas.

Richard C. Butler:

Because Mr. Justice Harlan of various factors that are completely beyond its control, including the total opposition of the people and the state government of Arkansas.

Felix Frankfurter:

But the opposition of the people as I read the testimony, which to me is very illuminated, the opposition of the people was engendered by action of officials, isn’t that a fair statement?

I am not suggesting —

Richard C. Butler:

That is —

Felix Frankfurter:

I am not suggesting it wasn’t – it wasn’t an inflammable material there but — but the ignition came not from the people rising up but from their incitement to action by officials, am I overstating the case?

Richard C. Butler:

That is such a matter of personal and individual opinion that I would prefer not to express my own on that point.

Felix Frankfurter:

Well I thought that’s what I read in Mr. Upton’s testimony.

Tom C. Clark:

(Inaudible) trying to affect the program.

Richard C. Butler:

Well Mr. Justice Clark this board has tried to take the problems as they arose one at a time.

It has not made any particular plans for specific action or decisions within the next two-and-a-half years because it has not known whether it was going to have two-and-a-half years or not.

Now if that is determined then it does have tentative plans of things that it feels might help toward an ultimate and sound solution of these problems.

Audio Transcription for Oral Argument – August 28, 1958 (Part 1) in Cooper v. Aaron
Audio Transcription for Oral Argument – August 28, 1958 (Part 2) in Cooper v. Aaron
Audio Transcription for Oral Argument – September 11, 1958 (Part 2) in Cooper v. Aaron

del

Richard C. Butler:

They are tentative and we try to take first things first and we think the first thing is for the Court to draft the time that Judge Lemley gave us feeling that you cannot reach sound conclusions in a state of chaos and hysteria.

And I dare say that if this board is given the two-and-a-half year delay that it would be wise although this is my personal opinion to let things kind of simmer down for at least a few weeks or few months before any further plans were actually promulgated, but that as properly as could be, solutions would be sought and attempts made to reconcile the differences that exist in this conflict.

Felix Frankfurter:

Your position is that the school board promptly proceeded to carry out in good faith, it’s (Inaudible) the decisions of this Court, it not only planned but it took action upon its plan.

Its purposes confirmed by judicial action were crushed in through forces outside of its own making or outside of its own control, and you want maneuvering time, you want time within which the school board independently considered acting on its own, as it were, can have a situation in which the former piece of (Inaudible)

Richard C. Butler:

Yes sir, that I think that states our position very clearly Mr. Justice Frankfurter, I do indeed.

Earl Warren:

But then it’s just watchful waiting?

Richard C. Butler:

No sir, we don’t look at it that way Mr. Chief Justice.

We don’t feel that it is.

We have the hope that solutions can be reached if given an opportunity in an atmosphere that is conducive to reaching solutions.

Now I say again that we do not know that that can be done in any stated length of time.

As a matter of fact, the first petition which was filed before Judge Lemley, requested an indefinite period to be determined by the court on the evidence as to how long.

And Judge Lemley made a statement to all parties concerned directing that the school board members collectively and individually be present in which he said the primary responsibility for the exercise of judgment is on the school board.

You determine and file an amendment to your petition as to whether or not you believe such and such a length of time should prevail or whether you want to change your plan in some manner and I think his reasoning on that was perfectly sound because the court itself has said that the primary responsibility is on the school boards.

Now we agree with that and we feel that the first exercise of judgment should be on the school board itself and then it should be under the supervision of the District Court to determine whether the school board acted in good faith and used good judgment, and if not then based on the evidence he could say so.

And Judge Lemley, using that judicial discretion, directed to him by this Court, did so and found that the school board was justified in asking for that delay.

The point I am making is simply this that the school board admitted from the very beginning that it was — it could not foretell the future well enough to say that any exact period of time was necessary to solve the problem, but judgments had to be made and used and it used its judgment in suggesting to Judge Lemley this period of time which he apparently felt was necessary to carry out or have any possibility of a solution of these problems.

Earl Warren:

Assume the court — assume your school board at the end of the two years and a half felt that the climate of opinion was the same then as it is now, what would it be prepared to do?

Richard C. Butler:

We think Mr. Chief Justice that, that is a matter for the local District Court to determine in his judicial discretion considering all the factors and all the evidence available and presented to him at that particular time.

Earl Warren:

Well I know, but if we may have a hypothetical case, you put some to us and you present this two-and-a-half year extension to us without any representation on the part of the board as to what it proposes to do in the meantime.

Now let us assume the end of the two years and a half, if you prevail, that the climate of opinion is as it is now, would you be in asking for another two years and a half or would you have a program to bring about desegregation?

Richard C. Butler:

Well, again Mr. Chief Justice, I don’t think it’s entirely accurate to say that this school board has not — does not have any plans to do anything.

In the first place one of the things that we have felt most strongly was that a reasonable period of time, whatever that maybe, would be for the purpose of testing certain laws, state laws which have not even been tested by the State Supreme Court.

Now in the opinion of many lawyers, the State Supreme Court of Arkansas will possibly hold unconstitutional many of the acts which the legislature has passed, and perhaps in its judgment fall in line with the United State Supreme Court in varying degrees and recognize the superiority of this Court in determining federal questions.

Now, in such an event, in such an event the people of the State of Arkansas and in the other states if I may suggest, will then have heard from judges that are close to them, that are closer to their own local scenes and have a better understanding of what their responsibilities as citizens may be.

Now that is one of the primary factors that we — that the school board gave consideration to and some of those cases, some of those statutes are right now under consideration and moving toward our State Supreme Court and we think that such a period of time, through the normal processes in our state and I’m sure its true in other states takes about a year, year-and-a-half, two years to get that sort of question decided by the various State Supreme Courts.

Earl Warren:

Well granted that is true, and the legislature in the meantime passes other laws to frustrate the rights of these individuals, would you want to wait for that too?

Richard C. Butler:

Well that’s —

Earl Warren:

Could be determined by the courts?

Richard C. Butler:

We don’t know Mr. Chief Justice. That’s one of the things we would have to determine if and when that time came.

We’re very frank to admit, we don’t have all of the answers, but we hope that whether, and after a decision by this Court in this particular case, that it will give us at least a framework which we earnestly feel could be done within the decision and opinion of the Brown decision to work out some of our problems.

Audio Transcription for Oral Argument – August 28, 1958 (Part 1) in Cooper v. Aaron
Audio Transcription for Oral Argument – August 28, 1958 (Part 2) in Cooper v. Aaron
Audio Transcription for Oral Argument – September 11, 1958 (Part 2) in Cooper v. Aaron

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Tom C. Clark:

You asked (Inaudible) you mentioned the fact that you have laws, new laws aren’t — the fact they are not laws you know —

Richard C. Butler:

Now, one of the laws that I referred to is an establishment of a so called sovereignty commission which — that law was passed in 1957.

Tom C. Clark:

I mean this package that you mention in your brief?

Richard C. Butler:

The package of laws that we mentioned in our brief was a result of a special session of our General Assembly this past month.

Tom C. Clark:

That was after the (Inaudible)

Richard C. Butler:

Yes sir.

Tom C. Clark:

Do you intend to set those —

Richard C. Butler:

It was about coincident with the time we were appearing here before.

As matter of a fact I believe the legislature was in session two weeks ago to the best of my recollection.

Tom C. Clark:

And that was after Judge Lemley’s orders.

Richard C. Butler:

Yes sir that was after Judge Lemley’s orders, yes.

Tom C. Clark:

But the time that you were considering the two-and-a-half years, you were thinking of laws then presently on the books.

Richard C. Butler:

Mainly, yes.

Hugo L. Black:

What is the Sovereignty Law and it’s (Inaudible)

Richard C. Butler:

Briefly Mr. Justice Black the Sovereignty Law established a Sovereignty Commission to pass on certain things among which are problems involving this issue of desegregation of schools, as well as other types of conflicts that may arise between the races, the white and the Negro races.

That law incidentally was — a three-judge federal court was called to pass upon the constitutionality of it.

That Court deferred its action until it was passed upon by the State Supreme Court.

It has now been held constitutional by the local Chancery Court, which is not an unusual situation.

I mean out lower courts in our state ordinarily uphold the constitutionality of acts passed by the General Assembly and leave that function to be — to the State Supreme Court, the appellate court where they think it belongs, and it is now in the process of being appealed to the Supreme Court.

Now that is only one example of the type of law that we have in mind.

Hugo L. Black:

Does that law setup a plan to abide by the — this Court’s decree?

Richard C. Butler:

I don’t recall the specific wording of it.

I don’t think there is any particular reference, and I don’t think the specific purpose was that limited Mr. Justice Black.

It’s —

Hugo L. Black:

Did it have that purpose?

Richard C. Butler:

It’s a commission that is setup to deal with and at least make recommendations and determinations on various problems which have been engendered by this particular conflict.

Hugo L. Black:

Does it setup a plan at all at any time?

Richard C. Butler:

Not for schools as such.

Hugo L. Black:

By this Court’s decree.

Richard C. Butler:

Not for schools as such as I recall, no sir.

Audio Transcription for Oral Argument – August 28, 1958 (Part 1) in Cooper v. Aaron
Audio Transcription for Oral Argument – August 28, 1958 (Part 2) in Cooper v. Aaron
Audio Transcription for Oral Argument – September 11, 1958 (Part 2) in Cooper v. Aaron

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Tom C. Clark:

What is that with effect to statute laws have, this package you spoke of, on the action of the Board, would they have power under the state law to do anything?

Richard C. Butler:

Well I have those acts.

They have been passed.

There were six acts that were sponsored by the present state administration.

Those were all passed.

There were some other suggested, some of which as I recall were defeated, others were passed primarily at the instance of the State Attorney General.

The statutes passed by the General Assembly sponsored by the government deal exclusively with educational problems, some of the others deal with other phases of the larger problem.

Now the present situation if I’m correctly informed as of this moment is that those laws have been passed by the General Assembly, but have not been signed by the government, and whether they will be or not, we have no way of knowing.

Hugo L. Black:

Does any one of them provide for obedience to the Court’s decree?

Richard C. Butler:

Not in that language.

[Laughter]

Hugo L. Black:

Does it provide it in substance?

Richard C. Butler:

No sir, not one of those laws.

We made mention I believe of the pupil assignment law of Arkansas and that statute specifically provides that in the determination of various factors, some ten or a dozen factors that school boards may properly consider in admitting particular students to school.

The provision in that statute obviously took into consideration the decisions of this Court and stated that race would not be a factor in determining the admission or non-admission of any student in any school in Arkansas.

Now that particular statute passed some two years ago, a year-and-a-half ago, did very definitely take into consideration the Brown decisions.

Felix Frankfurter:

Since we’re taking with actuality, is it not fair to state, or rather I got the impression from your argument last time and partly today, that there is a body of enactment in Arkansas, which helped to create a state of public opinion that is hostile to carrying out the purpose of your original plan of the school board by way of implementing this Court’s decision in desegregation — for desegregation, and that your argument was that you do not know whether or not when those laws came under challenge before your local court, your state courts, they maybe declared unconstitutional and thereby affect public opinion in support of the board’s plan rather in opposition to it, isn’t that, wasn’t part of your argument?

Richard C. Butler:

Well it was certainly an accurate statement that I intended to make that we have no way of knowing what our Supreme Court is going to say in any particular situation, but we have a good deal of confidence in the ability and integrity of our state Supreme Court and it will be surprising to many lawyers in Arkansas if all of those acts of the legislature are held to be constitutional by our Supreme Court.

Felix Frankfurter:

And by that very invalidation by your Supreme Court public opinion which is a fact to which you constantly appeal maybe seriously affected in favor of the original plan of the board or at least in favor of —

Richard C. Butler:

It could —

Felix Frankfurter:

— obedience to this Court’s decree.

Richard C. Butler:

Yes sir, we do think so.

We do indeed.

Earl Warren:

I was just going to say Mr. Butler to put this thing in the, in perspective, isn’t it a fact that the State of Arkansas passed a constitutional amendment in defiance of the particular decision that that this Court granted, Brown versus Board of Education and that it dedicated the state to opposition by every available method the “unconstitutional decision of Brown versus Board of Education.”

That’s from your Constitution now, isn’t it?

Richard C. Butler:

It is certainly true Mr. Chief Justice that the State of Arkansas, the electors of that state by an overwhelming majority voted such a constitutional amendment to which you have referred in which they stated that every constitutional method should be examined and pursued and put into effect to avoid the mixing of the races in the public school systems in Arkansas, that is correct.

Earl Warren:

Well as I understood your brief here it commands the general assembly to oppose by every constitutional method the “unconstitutional decision of Brown versus Board of Education” that’s in your Constitution, isn’t it?

Richard C. Butler:

That is in that amendment yes sir.

Earl Warren:

In that language?

Richard C. Butler:

In that language.

Audio Transcription for Oral Argument – August 28, 1958 (Part 1) in Cooper v. Aaron
Audio Transcription for Oral Argument – August 28, 1958 (Part 2) in Cooper v. Aaron
Audio Transcription for Oral Argument – September 11, 1958 (Part 2) in Cooper v. Aaron

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William J. Brennan, Jr.:

Well, Mr. Butler as I recall your argument last time, it’s not the position of the board that the decisions in the Brown cases were unconstitutional.

Richard C. Butler:

No sir, Mr. Justice Brennan that has never been our position.

We — the school board from the very beginning and its attorneys have gone on the presumption, on the conclusion not just a presumption that the decision in the Brown cases was the law that must be followed and it was because of that or because of those decisions that the school board formulated this plan of desegregation and I think it is fair —

William J. Brennan, Jr.:

That’s what as I understood it and that is —

Richard C. Butler:

And that is and that if you please sir is still the position of this school board.

Now I think it’s fair to that point however to state that the school board and a vast majority of the people in the immediate locality of Little Rock are fundamentally, socially opposed to segregation of the races in the public schools.

William J. Brennan, Jr.:

Well I agree —

Richard C. Butler:

But in spite of that feeling, the school board formulated this plan in trying to carry on a school system and at the same time following the law, abiding by the law.

William J. Brennan, Jr.:

That leads me to my second question.

I know that you are familiar with Clause 3 of Article 6 of the Federal Constitution which requires every state legislator and every state official executive or judicial to take an oath when he enters upon his service to support the Federal Constitution, I think the actual language is to support this Constitution, you are familiar with that?

Richard C. Butler:

Yes sir, I am familiar with that.

William J. Brennan, Jr.:

Well that then brings me to this question since as I understand your answers and your colloquy particularly with Mr. Justice Harlan and Mr. Justice Frankfurter, that in large part the situation which prompted your petition to the District Court was a situation brought on by the active or by actions, affirmative actions of state legislature and its governor, I think, I think your brief also suggest something, actions on the part of your state judiciary, not on the side of enforcement of the constitution but opposed indeed in every way that the state can try to that enforcement.

Just how was this Court in a position to allow, or sanction, or approve a delay sought on the ground that the responsible state officials rather than be on the side of enforcement of these constitutional rights, have taken actions to frustrate their enforcement?

Richard C. Butler:

Well Mr. Justice Brennan I have that later on in my argument, but since you have brought it up now, let’s see if we can dispose of it which in effect I was going to conclude with, but in view of your question I think we might as well answer it right now and that’s simply this as we see it.

We have described here a situation where the school board which is a creature of the state, it’s an arm of the state government, is placed between the millstones as Justice Sanborn of the Eighth Circuit said “between the upper and the nether millstone,” in a conflict between the state and federal government and the – and all of the agencies of each.

And it seems to us that we have pointed out the absurdity of the premise that a school district should keep the peace.

Now I have something to say about that when I get back on the principle argument, but here is what we are suggesting and which will be borne out by the balance of our argument, that the problem is not yet been grasped by Attorney General’s office or the Solicitor General, and by the Eighth Circuit of appeals in a situation of this kind.

And we think that a plan of desegregation which has the planning along with it for the support of that plan in an effective manner is something that can be done by the agencies which are setup for those purposes by the federal and state the governments but certainly not by there school board.

Now some plan it seems to us adequate enforcement must come forward if you are going to have a conflict that runs head-on so to speak between your federal and your state governments.

Now, at that point, that is again the reason that we are asking for additional time for those conflicts which are completely beyond the realm of this school board to solve and be given an opportunity to be solved by the two sovereignties involved.

Now we think —

Tom C. Clark:

(Inaudible) federal government have federal legislation or —

Richard C. Butler:

That’s one answer yes, and that has been seriously propounded by students of this problem that that the Congress should act in this field and that perhaps sometime it will.

It has struggled with the problem but to my knowledge it has not passed any legislation involving it.

William J. Brennan, Jr.:

Well of course the very section that I have referenced, referred to before, Section 3 of Article 6 puts the same obligation upon federal officers and Congressmen and is put upon state legislators and state officials, the obligation by oath to support this Constitution.

And what you’re talking about I gather is that it is a default on the part of state officials and we ought to expect, or you ought to be able to except is that an assistance of the federal government?

Richard C. Butler:

Well, Mr. Justice Brennan there may have been times, and I’m no student of the history of the Supreme Court in its relationship with the legislative branch of this government, but at least to my limited knowledge, I don’t recall anytime when the Congress even after a determination of the law by this Court has ever really felt compelled to pass any particular legislation because of a particular decision.

Now, there have been many instances I believe both in the federal government and in that state, where a certain Court decisions have prompted the legislative bodies of the national government or the state government to pass laws which would circumvent that particular court decision.

At least that has happened in our state many times, where the court did not express the will of the people as determined by the legislative body and I think that probably history will bear that out insofar as the National Congress is concerned.

Tom C. Clark:

Did the board ask the Congress to take any action?

Audio Transcription for Oral Argument – August 28, 1958 (Part 1) in Cooper v. Aaron
Audio Transcription for Oral Argument – August 28, 1958 (Part 2) in Cooper v. Aaron
Audio Transcription for Oral Argument – September 11, 1958 (Part 2) in Cooper v. Aaron

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Richard C. Butler:

Sir?

Tom C. Clark:

Did the board ask the Congress to take any action?

Richard C. Butler:

The Little Rock school board, no sir it has not.

Tom C. Clark:

Another opinion, amicus brief which your Attorney General filed in 1955 and he suggested that, and I thought perhaps the board might have taken it up —

Richard C. Butler:

No sir it — to the best of my knowledge at least there has never been any suggestion formally made certainly on the part of this school board to request Congress to pass any law one way or the other.

William O. Douglas:

Suppose that we don’t follow and disagree with your argument in the affirmative Court of Appeals, what is the — what action does the school board take then?

Richard C. Butler:

I think the action of the school board at that point, if we may project our thinking for a few moments to that period of time, would simply be to sit back and wait, for this reason.

There are some of the laws that have been passed by this General Assembly of the State of Arkansas recently, and which if signed by the Governor for all practical purposes insofar as desegregated schools are concerned within the district have been taken away from the authority of the school board and put under the direct control of the Governor.

So, the school board would have to wait to see what the Governor did because certainly the legislative assembly in the State of Arkansas has the ultimate control of the operation of the school system, that has been held by our Court many times, and this school board would be in a further untenable position of not having the power as we see it, even to proceed to the extent that it has it the past.

It would then if Your Honor please —

William J. Brennan, Jr.:

Had that statute become law, the one that —

Richard C. Butler:

No sir, it has not, it’s been passed by the General Assembly and may and will become law, all of those whichever ones are signed by the Chief Executive.

Earl Warren:

Mr. Butler before you get to another point there, did I understand you are correctly to say a few moments ago that the majority of the people of Little Rock were opposed to segregation of the races in the schools?

Richard C. Butler:

If we can use a little hindsight I certainly think that’s true, yes sir.

Earl Warren:

Yes well I just wanted to —

Richard C. Butler:

Yes sir, I don’t think there is any question about there in looking back on it.

Now this school board said at the very beginning when it formulated this plan and did its best over a period of at least a year to explain to all responsible groups within that area, its plan it felt that it had let’s say public sufferance at least if not active support.

The board never did feel that it had the active support or integration from any majority of the people of the community.

It felt and it did — felt it was its duty and it did try to lead the thinking along that line, so that it could both carry out its function in operating an educational system and abide by the law, the federal law of this government.

Earl Warren:

Well Mr. Butler I think you — we still misunderstand each other.

My question to you was did I understand you correctly to say a few moments ago that a majority of the people of Little Rock are opposed to segregation of the races in the schools?

Richard C. Butler:

No sir, they are opposed to desegregation, there are opposed to integration.

Earl Warren:

I asked you that, you said yes that’s correct but I wanted to be sure —

Richard C. Butler:

Well, I’m sorry sir —

Earl Warren:

— and I think your self segregation opposed to segregation about —

Richard C. Butler:

There are opposed to integration.

Earl Warren:

Integration yes.

Richard C. Butler:

Yes sir.

They are opposed to —

Earl Warren:

I just wanted you to tell you.

Audio Transcription for Oral Argument – August 28, 1958 (Part 1) in Cooper v. Aaron
Audio Transcription for Oral Argument – August 28, 1958 (Part 2) in Cooper v. Aaron
Audio Transcription for Oral Argument – September 11, 1958 (Part 2) in Cooper v. Aaron

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Richard C. Butler:

I think I used the term desegregation.

Felix Frankfurter:

Mr. Butler when you said the —

Earl Warren:

I just wanted to clear it up.

Richard C. Butler:

Yes sir.

Earl Warren:

It’s perfectly all right.

Felix Frankfurter:

When you said the people of Little Rock were, what was your word, quiescent or acquiescent in what the school board did in the beginning?

Richard C. Butler:

At sufferance —

Felix Frankfurter:

At sufferance, they were not active supporters of the law you said, that was the phrase you used.

Richard C. Butler:

They were not active supporters Mr. Justice Frankfurter in anything that would lead to integration of the public school systems.

Felix Frankfurter:

But there was a what —

Richard C. Butler:

There was a conclusion back in 1956 by the Little Rock school board, that this plan of desegregation was acceptable because it was the only plan that could be acceptable to that community.

It was not supportive by the people there.

It was more in our opinion as simply for the time being accepted as a possible solution and an adequate solution of a very serious problem.

Felix Frankfurter:

May I suggest that on the whole realty of any law actively supported by the mass appeal, and the situation that is described in the evidence both by Mr. Upton and Superintendent Blossom, I think it’s a fair description of what takes place when any new law is changed to which there is opposition, namely that the mass of people on the whole reflect or at least go along with what their leaders propose and urge, and that was as I read the testimony, you can correct me if I’m wrong, that the way I read the testimony of Mr. Upton and then of Blossom, as between the times that the board planned, it was confirmed by the Court and the later changes in September, what 1957?

Richard C. Butler:

Yes sir.

I’m afraid, in all candor, Mr. Justice Frankfurter I will have to unqualifiedly agree with you, when you say that you feel that laws are not ordinarily acceptable to the people when they came —

Felix Frankfurter:

I didn’t say that, I said actively supporting —

Richard C. Butler:

Actively supporting —

Felix Frankfurter:

That’s a very different thing.

Richard C. Butler:

Well, it comes to my mind an illustration such as this, when the Eighteen Amendment was passed and Volstead Act followed, it had in my opinion the active support of a majority of the people of the United States.

That change and they voted it out a constitutional amendment to that and repel of that Act.

Now to me that is a good example of the Congress following the majority of the thinking of the people in the United States and it seems to me that, that is generally the way most laws are passed if they are to be supported or even tolerated by a majority — by the populace in general.

Now that’s just a passing observation that I have but I —

You lived through —

Richard C. Butler:

Yes sir I’m 48 years old and I have lived through most of that.

Tom C. Clark:

Mr. Butler —

Felix Frankfurter:

Has it made the difference as it does here?

Richard C. Butler:

It did, I’m sure it did.

I’m sure that the Eighteen Amendment and the Volstead Act were supported to varying degrees throughout this country, the little history I’ve read on it so indicates.

Tom C. Clark:

Are you familiar with the progress if any of desegregation in other districts of Arkansas, other school districts?

Audio Transcription for Oral Argument – August 28, 1958 (Part 1) in Cooper v. Aaron
Audio Transcription for Oral Argument – August 28, 1958 (Part 2) in Cooper v. Aaron
Audio Transcription for Oral Argument – September 11, 1958 (Part 2) in Cooper v. Aaron

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Richard C. Butler:

Only to this extent Mr. Justice Clark, that here is a desegregation program that has been going on successfully in the North Western part of our state at the site of our state university.

That is Fayetteville, Arkansas, it’s in Washington County.

I say successfully, so far as I am informed there has been no particular problem or strife about it, and the people in that community several years ago accepted desegregation in their public schools.

Now in addition to that for many years there has been opportunity for Negro students on a graduate level at our state university, we’ve had some very fine graduate lawyers come out of our law school there and other graduate schools, not limited to the law school.

So I would say as a conclusion that in several communities in Arkansas, desegregation in the public school system has been effective and without turmoil.

Now if we may get back for a few moments to Judge Lemley?

He found of course that and as far as he could foretell the future, that these problems and obstacles before the school board were of such a nature that it was likely to require again for this school year the use of troops in order to protect life and property.

Now, at our previous hearing one of the justices aptly observed I should say as a consequence of those conditions educational results follows.

You can’t teach if you are going to have troops in the classroom.

If that conclusion is correct, and that is certainly the opinion of the Little Rock school board, then the question which this Court must answer for the Little Rock school board in this particular case is this, is it better to defer certain intangible constitutional rights of a few students constituting less than 1% of the total enrollment of a school or to insist upon the immediate fulfillment of those rights even if it destroys the full educational opportunities of 2,000 students in that particular school to say nothing of some total 21,000 in the entire school system.

Earl Warren:

How many Negro children are there in Little Rock?

Richard C. Butler:

To best of my recollection it’s about — there are 21,000 students white and colored and I believe the ratio is about 60% or 65% white 35% to 40% colored.

Earl Warren:

Then why do you say this only affects less than 1% of the pupils of that district?

Aren’t the rights of all the children in that district involved here?

Richard C. Butler:

I’m saying that the immediate enforcement of the rights at this particular time affects only seven Negro students, that the immediate insistence, the insistence of immediate fulfillment for them, because the plan did not contemplate anymore than that for this particular period.

Now the plan did if things had gone smoothly, they had intended to take in more to that school or possibly to other schools, but the plan itself Mr. Chief Justice was on the basis of starting at the high school level first in the three grades in the high school level.

Earl Warren:

But if we stopped that program we are denying this same right to approximately 40% of the children of your community.

Richard C. Butler:

We take the position that you are not denying the right, you are delaying the fulfillment of a constitutional right which you have said they have, but not the denial of the right as a class action which this is.

Earl Warren:

Well this decision, the Brown decision was in 1954, this is 1958, two years and a half will bring it up almost to 1961.

Now, if all those children are denied the right to go to the elementary schools aren’t they being denied permanently and finally of a right to get equal protection under the laws during their primary grade years.

Richard C. Butler:

They would be deprived of the personal fulfillment of what we consider an intangible right expressed by this Court.

They would not be deprived —

Earl Warren:

Well then by that you don’t accept the decision of the Supreme Court as to whether it’s a violation of the constitution.

Richard C. Butler:

Yes sir, we do except it Mr. Chief Justice.

Earl Warren:

Why do you call it intangible rights?

Richard C. Butler:

Well I was distinguishing that as against —

Earl Warren:

If somebody was to deprive you of life, liberty or property would that be an intangible right?

Richard C. Butler:

I didn’t have in mind that sense.

The point I’m making is simply this, that you have a conflict between two balances of equity so to speak and those balances must be weighed and as counsel for NAACP and others all of us recognize in this case and in all cases of a similar nature, Judge Lemley certainly recognized it, that there must be a balancing of equities.

That you must take into consideration the public interest and the individual and this Court has held in many instances that where public interest is involved as against specific gratification of personal rights, that if it’s of sufficient importance, to the public interest that those gratification — that the gratification of those rights maybe delayed and postponed and we think and that’s what this Court said in the Brown decisions.

Audio Transcription for Oral Argument – August 28, 1958 (Part 1) in Cooper v. Aaron
Audio Transcription for Oral Argument – August 28, 1958 (Part 2) in Cooper v. Aaron
Audio Transcription for Oral Argument – September 11, 1958 (Part 2) in Cooper v. Aaron

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Earl Warren:

Aren’t you being questioned when you say that the denial of these rights to 40% of the children of your community is in the public interest?

Richard C. Butler:

No sir as a matter of fact we have had a very fine educational system in the city of Little Rock.

It has actually been the pride of our community, up until the turmoil of this past year and I think it’s important.

I don’t think it can be overemphasized that these Negro children as well as all others in Little Rock have a new high school building with faculty, all facilities by all acceptable standards, the equal of Central High School.

Now, in assigning and weighing and balancing the equities in this case we feel that, that is important.

I state again that we are not in this lawsuit advocating, going back to the separate but equal doctrine, but we do think that in applying the flexible principles of equity which this Court said should be applied; that, that is a factor to take into consideration and certainly no Negro student will be deprived of an education in qualified schools, that is schools with adequate physical facilities and excellent faculties, if their constitutional rights under the Brown decision are merely postponed for a while.

Harold Burton:

Mr. Butler in some other area if they decide to implement desegregation (Inaudible)

Richard C. Butler:

That has been considered not once but many times, and it’s been the Board’s observation that such a program in some instances has been workable, in others there — I think they tried that in Nashville, Tennessee, the first grade and that resulted in the bombing of the school there.

This board came to the conclusion because of various geographical factors, the housing situation, the physical facilities of all the schools in the system, that it was better to attempt to start at the high school level than at the lower grades.

Now, I think that some of the school board members as well as some of the population of the area in looking back and having the advantage of observing the events which have taken place can argue without fear of serious contradiction that maybe we should have started at the other end.

Now that’s hindsight.

It was there —

Tom C. Clark:

(Inaudible)

Richard C. Butler:

It might work better and it might not.

There is quite a divided opinion on that Mr. Justice Clark, but this Board is — it still feels that it’s plan is given proper time and free of certain obstacles over which it has no control can be successful.

But many people argue and I can’t say that they’re wrong, that it might be better to start at the first grade.

There are some very good reasons why they did not do that.

At beginning as I say the location of the races within the city dictated and appeared at that time, it was better to start at the high school level.

Tom C. Clark:

(Inaudible)

Richard C. Butler:

There is a kindergarten provided as I understand it, but it is not a part of the free public education or system.

It’s operated in a combination and in conjunction with the public school system, but I think operated by private individuals, if they so desire and they feel.

The public school system starts at the age of six for the children.

Tom C. Clark:

Who would ever (Inaudible) study the option plan and (Inaudible)

Richard C. Butler:

Yes sir, I think they’ve studied every possible plan that’s ever been suggested to them.

I’m not sure that I personally know the terms of the plan you have in mind, but I know this school board has studied every possible solution that has been called to its attention.

Tom C. Clark:

(Inaudible) school itself?

Richard C. Butler:

Yes sir, as a matter of fact that has been suggested and one of the statutes passed recently incorporates that general quality into it, and many people in our area feel that, that has possibilities, and should be given an opportunity to be explored in a time free of turmoil.

That is a very definite possibility, and some very able citizens have suggested that approach to it, which maybe the ultimate solution.

Hugo L. Black:

Did Judge Lemley make any finding as to whether it could be anticipated two-and-a-half years of the sentiments which you say is an action of the public petition, which you say frustrated the board, would change?

Richard C. Butler:

No sir, he did not make any such finding of fact as that.

Audio Transcription for Oral Argument – August 28, 1958 (Part 1) in Cooper v. Aaron
Audio Transcription for Oral Argument – August 28, 1958 (Part 2) in Cooper v. Aaron
Audio Transcription for Oral Argument – September 11, 1958 (Part 2) in Cooper v. Aaron

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Richard C. Butler:

The farthest he went was to say this, that insofar as he could determine that if the plan of integration were not postponed, at this semester beginning September 1958, that it would result in troops or I believe as he put it the equivalent of that, to be within the school and on the school grounds in order to maintain order and that it was his belief that if granted some delay such as asked for by the Board for a short period, that it would provide a period of calm relief from the excessive tension and turmoil, so that various other things can be considered and perhaps solutions worked out.

I think that was in effect what he said.

I don’t believe he made any determination of just what might be the result two-and-a-half years from now, but he did recognize that it was essential for some delay or postponement in order to preserve the educational system in Little Rock, and particularly at Central High School.

Hugo L. Black:

I gather from your brief and argument, I don’t know whether I’m right or not, and it goes something like this, there is that you call it in your brief, a massive resistance to the constitutional principle that this Court announced, State of Arkansas, has been led by your Governor and other high public officials, that the Board is helpless to do anything, because of state opposition, and meaning by state opposition those who are charged with (Inaudible), you’re asking for time on account of that massive resistance and hostility to the law?

Richard C. Butler:

Yes sir, that’s in our brief and that is our position, yes.

William J. Brennan, Jr.:

May I ask Mr. Butler where did the two-and-a-half year interval derived from, was that Board’s suggestion or was that —

Richard C. Butler:

Yes sir, as I said a few moments ago Mr. Justice Brennan the first petition to Judge Lemley on February 20, 1958 set no specific time limit, except it was on this basis that at the present time and for the next school year, it appears that if this plan of desegregation of integration is carried forward, that we cannot as a board continue our public — a school system in an effective manner at least.

And they suggested that the District Court considered all of the evidence and then determine, in his best judgment, when he felt that such a climate of acceptance might be foretold.

And Judge Lemley declined to assume that first responsibility, and in his statement to all of the parties, told the school board to go back and exercise its judgment, which he felt should be exercised as to what period of time was necessary within which to do that.

And that’s when the school board considering the time required for various state statues and other things to get out of the way and to provide some reasonable period to let things simmer down, concluded that two-and-a-half years was the proper time.

Now the first consideration, that they came to or first conclusion was that it might work better and I believe we touched on that point at the last hearing, that it had a chance of working better at mid semester, that the school was better organized at that time and school officials were you might say in more complete charge of the situation.

It may also have been dictated by a feeling, well it certainly didn’t work in September, maybe it’ll work in some other month better, but they had a good reason for that.

Now that was the reason for the mid term, the two year, additional two years was for the other reasons which we had enumerated which — yes sir.

(Inaudible) on page 29 of your brief you criticize the federal government for not giving — having given the school board adequate protection, and then you go on and say no protection is to be expected, in two-and-a-half years it will be wise to suspend operations for that period.

Do I correctly infer from that, that what you’re saying is that if adequate protection, adequate backing and enforcement is given to the school board, then you see no need for any different —

Richard C. Butler:

No sir, I don’t think that is our conclusion Mr. Justice Harlan.

We don’t feel that immediate forceful enforcement, and by that I mean by troops and things of that nature, is the answer at this time.

Now we do feel that somewhere down the line, there should be adequate enforcement by some power that is certainly in excess of any power that the school board has to maintain peace.

But in our best judgment, and in the judgment of the school board and of Judge Lemley, a necessary postponement was dictated even though you had military force or whatever, that some additional to that was desirable so that a period of calm, free of actual turmoil, a period if you please when people in the community were not forced into doing something immediately and precipitously, but to give them time to feel that they were acquiescing and helping to solve distressing problems which are on the minds and hearts of most of the people there.

The disturbing thing about — one of the disturbing things about it is that throughout our community and this is probably true in many other communities, people are more and more at this point going into the extremes.

The moderate people and their thinking have been brushed aside for the moment.

The school board feels that with a reasonable period of time and postponement that perhaps that — those extremes views on either side can be overcome by the calmer period people within — and between those two extremes.

Felix Frankfurter:

Well such change of public opinion doesn’t spontaneously arise, such is not my experience or reading or reflection on that intangible thing called public opinion, mere passage of time, the mere passage of time wouldn’t by itself change what you indicate is this hostile attitude what was once on sufferance is now hostility, merely letting time pass wouldn’t make another change into the prior direction, would it?

Richard C. Butler:

I agree with that Mr. Justice Frankfurter.

I don’t think the mere passage of time will necessarily do it.

I think that it cannot succeed unless there is some reasonable length of time granted for it to have an opportunity by evolution rather than revolution to come into fulfillment.

That presupposes does it not Mr. Butler that the leadership in your state is going to take some affirmative step to relieve the public opinion in that direction.

You point out in your brief that one of the factors that school board is confronted has been because of the enactment of the state laws opposing integration that that has led people to believe and the support the governor has given to those movements, that all those have combined to lead people to believe that somehow rather despite the Constitution and everything else, there are valid ways the state can delay or defeat this integration.

Now if the federal courts themselves are going to take a step to delay on the premises that you have stated implementation of this decree, why isn’t that delay going to lead and spell for more hope on the part of oppositionists to integration that maybe this thing can be ultimately defeated?

Richard C. Butler:

Well, Mr. Justice Harlan, that’s a matter of opinion and we certainly don’t say that that’s going to solve all of the problems and I thoroughly agree with you, I think you are saying about same thing that mere delay may not be the answer but we cannot see any sound –-

Audio Transcription for Oral Argument – August 28, 1958 (Part 1) in Cooper v. Aaron
Audio Transcription for Oral Argument – August 28, 1958 (Part 2) in Cooper v. Aaron
Audio Transcription for Oral Argument – September 11, 1958 (Part 2) in Cooper v. Aaron

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And all you are suggesting is a delay in your argument?

Richard C. Butler:

We just say this that the first thing that must be done is for the people in that community and I dare say in other communities to have an opportunity free of things such as troops and any kind of military show of force that that is the primary thing that must be done at this time to postpone it, to give those other forces a chance.

Now we don’t say necessarily that all problems are going to be dispelled into thin air two-and-a-half years from now, that has never been our position, but we say that solutions cannot be arrived there, proper solutions that will be acceptable by enough people to make it supportable unless such a delay is granted and we have hope just as everyone has hoped that these distressing problems can at least partially be solved if a reasonable postponement is given.

Felix Frankfurter:

Mr. Butler, would you care to comment on the suggestions conveyed in the letters of the Attorney General and from the City management, the school board which is now before the Court?

Richard C. Butler:

I hadn’t planned to but if Your Honor requests it, I’ll be glad.

I have some comments that I have no hesitancy in making.

Felix Frankfurter:

(Inaudible) Solicitor General thought they are relevant and he submitted it.

Richard C. Butler:

Yes sir, he did and here is his letter, and I think it has been given wide publicity —

Felix Frankfurter:

And before the Court that’s why (Inaudible)

Richard C. Butler:

I might — yes sir and I might suggest reading the answer which so far as I am aware has not been given any publicity by the president of the school board.

Mr. Wayne Upton received the letter from the Attorney General I believe on September the 9th and answered it the same day, and sent me a copy of it in which he says, “Dear Mr. Rogers, this will acknowledge your receipt on September 9 of your airmail letter of September 7th relating to the problem of the Little Rock School Board in the event that immediate integration at Central High School is ordered by the Supreme Court of United States.

We are indeed grateful for the attitude of your office as expressed in your September 7 letter and you maybe assured that the school board will give this matter its careful consideration at the earliest practicable moment.

I cannot speak for the board being only one of six members, but the thinking of board during the school year of 1957-58 was that criminal prosecutions would have been more helpful in solving the board’s problems than injunctive relief.

Since ours is a considerably larger community than either Hoxie or Clinton it occurred to us that in an injunctive order directed to specific individuals would not necessarily have been affective.

There were so many people in this community actively opposed to integration that we had – that had we obtained orders of injunction against the known leaders, others would have been there to take their places.

It seems to us that we could have very well been involved in an almost endless effort to obtain injunction.

Moreover for a great portion of the time there was no federal judge available and such by the way is the situation at the present time.

Nevertheless our board shares with you the interest and desire to arrive at a peaceable solution of the problems facing us.

We will at all times be available for consultation with you or other officers of the Department of Justice.”

Now you have asked for my observation about that and in all candor I will tell is this.

We feel that the offer from the Attorney General comes at least a year late.

Our second observation is what Mr. Upton pointed out that the school board should not be put in the position of seeking injunctions against people when it was not the motivating force which caused the United States Supreme Court to make these decisions in the Brown cases.

In other words it was willing to comply with the law and it did what it could within its limited power to do that, but it has been the feeling of that board that if injunctive relief is the answer, which it questioned, then such injunctive relief should come through the cooperation of the NAACP which is adequately financed and certainly ably styled and the Attorney General’s office and not from injunctive relief at the institution of the school board itself.

Now that is partially my observation but I think it pretty generally expresses the basic feeling of this board.

Felix Frankfurter:

Well may I say this, what you — your answer is it were historical comment on what, on what might happen, but the Attorney General’s letter, in answer to my question and you said military force, the Attorney General’s letter suggest facilities for enforcement other than military forces.

I was wondering if prospectively and not by way of historic comment of what might have been done or should have been done, pursued, do you think — you have any comment to make on that?

Richard C. Butler:

Well I’d like to make this comment if Your Honor please that for at least the last three months this school board has been so involved in litigation it has hardly had time and certainly not sufficient energy to give careful consideration to any of these possible solutions including that just received from the Attorney General’s office.

Again we think that that dictates the necessity of a period within which those things can be explored, that and other problems.

Tom C. Clark:

(Inaudible)

Richard C. Butler:

Well I think Mr. Justice Clark first thing you have to get there would be an injunction that’s the problem.

Audio Transcription for Oral Argument – August 28, 1958 (Part 1) in Cooper v. Aaron
Audio Transcription for Oral Argument – August 28, 1958 (Part 2) in Cooper v. Aaron
Audio Transcription for Oral Argument – September 11, 1958 (Part 2) in Cooper v. Aaron

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Richard C. Butler:

You have an injunction then you have a citation for contempt as a result of that injunction and the point that Mr. Upton was making I believe was that you’d have to either at the same time or at different stages obtain injunctions against a large segment of the community and you don’t know just where that would extend to.

Tom C. Clark:

(Inaudible)

Richard C. Butler:

Yes sir.

Tom C. Clark:

(Inaudible)

Richard C. Butler:

It’s certainly subject to a citation for contempt if you can find the precise persons who are interfering and have evidence to show that they did interfere and of course –-

Tom C. Clark:

That’s (Inaudible) an injunction?

Richard C. Butler:

And of course that is one of the problems of presenting evidence.

And I’d like to say at this point, I believe Mr. Justice Harlan raised the question, we — we have not been critical of the attitude of the Justice Department.

We feel that that everybody connected with this has a problem and I might say that it’s singular to me that there has been as little criticism of the forces involved who are actually concerned with this.

We have no criticism of their position.

We have an understanding of it.

As a matter of fact, one of the problems has been that and I think it’s no secret so expressed by various persons within the Attorney General’s office that members of the staff of the Attorney General feel that there are not adequate federal laws with which they can deal with this problem.

Now we think that that’s what prompted the Attorney General about a year ago after a complete FBI report which we have never seen to say that in print that no person who would interfered with the integration plan in Little Rock would be prosecuted by the Office of the Department of Justice in that community.

Now I hope I am not misunderstood and we don’t want to be appearing in a position of being critical of their attitude.

We are understanding of it.

We are sympathetic and we feel very earnestly that they are sympathetic with our position and our problems, but we still say that for things such as the Attorney General is now suggesting, which we received on the 9th that some delay must be given to implement that suggestion and to get ready for it and to try to prepare for it and solve the problems that are presented there.

Earl Warren:

Mr. Butler in the hearing before Judge Lemley did the school board or anyone else introduce any evidence to show that there were any forces at work or any processes in motion to relieve your community of this feeling and action that is prompting your board to take its present position contrary to what it took before?

Richard C. Butler:

No sir.

Earl Warren:

Why wasn’t that done?

Richard C. Butler:

Not specifically Mr. Chief Justice, we — the board came to this rather simple conclusion that it could not carry on an educational process effectively under those circumstances.

It felt that in order to give any kind of solution a chance that it must have a delay and largely that evidence which was presented to Judge Lemley over a period of some three days was to give him a history so that he could exercise his judicial discretion as to what to do and the evidence that was presented there simply showed the breakdown as a result of obstacles which were completely beyond the control of that school board, that were destroying the educational system.

Now that’s what — and the school board felt and obviously Judge Lemley felt that, that under the Brown decision was within his sphere of exercising his judicial discretion in giving what the Board asked for.

Now we didn’t get into that lawsuit as to all of the possible suggestions as to what might be done.

We felt that the period of time to be granted by the trial judge; that, that was the time after feelings simmered down some, to explore these various things and to get ready, whatever course might take, so that adequate preparation would be forthcoming.

And not have to make decisions —

Hugo L. Black:

Mr. Butler, you said you to refer to the —

Richard C. Butler:

Sir?

Hugo L. Black:

You continue to refer to delays and I’m wondering if your position (Inaudible) I have.

As I understand your basic premise is that in a state where the government — all that — with great majority of public officials charged with enforcement of law, creating and most of the people are told in carrying out the Court’s decree, the matter should be delayed in their state, that it comes down that.

Richard C. Butler:

Let me state it this way Mr. Justice Black, here is the position we take.

Audio Transcription for Oral Argument – August 28, 1958 (Part 1) in Cooper v. Aaron
Audio Transcription for Oral Argument – August 28, 1958 (Part 2) in Cooper v. Aaron
Audio Transcription for Oral Argument – September 11, 1958 (Part 2) in Cooper v. Aaron

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Richard C. Butler:

This conflict has resolved itself as we see it as a school board into a head on collision between the federal and state governments.

Hugo L. Black:

But there is any doubt as to what the Constitution says about that, is it?

Richard C. Butler:

No sir, but that conflict insofar as the executives of those two sovereignties is concerned, must be resolved and this school board can’t resolve it.

Now, the school board feels that until that conflict is resolved that it is helpless to carry on an effective educational system, and they are asking for time for that conflict in all of its ramifications to be resolved so that they can then, whatever the resolutions maybe on what might be termed an upper level, they can be guided by the resolution of those conflicts and formulate plans within the framework of those solutions.

Hugo L. Black:

Could it be — you would (Inaudible) stating whether or not you believe, but you’re not, of the situation in the Senate, at least in the State of Arkansas, that you could predict that with any time in the foreseeable future, this conflict on this issue would be resolved unless a court order was put in effect.

Richard C. Butler:

Yes sir I think it’s possible that this conflict could be resolved without —

Hugo L. Black:

You think they said —

Richard C. Butler:

Without an immediate court order requiring the school board to proceed forthwith, yes sir I think there is hope of that.

Hugo L. Black:

You’re of the opinion, would not continue to be a majority of the people, majority of the officials who opposed hearing out the Court’s decree?

Richard C. Butler:

You’re not going to change the opposition of the majority of the people of Arkansas who are opposed to integration of the races in the public schools in two-and-a-half years in my opinion, but I think it is entirely likely that within such a period of time, the people of the State of Arkansas will no longer, or any large segment of, any uncontrollable segment of them, be put in — justifiably be put in the category of law defiers and mob formers and people of that category.

Hugo L. Black:

In your argument before as I recall it, you stated that one of the forceful arguments that was made before us, that there were statute passed by various states that were intended to nullify, you may not of used the word nullify, to nullify this Court’s order and people were not sure it would remain the law.

As I understood it you urge that the Court’s opinion be made clear now for its position?

Richard C. Butler:

Well the first part of that certainly is accurate and I think it’s implicit in us being here that we feel that this is a problem which this Court must deal with and again I say though that the conclusion of our school board and of our local district judge was that of that the problems in Little Rock Arkansas as distinguished from other related problems or dissimilar problems in other states, that a time for a cooling off period was in order and it was the only hope of arriving at suitable solutions that would be acceptable both to courts and to the majority of the people in that area and in areas similarly situated with similar problems.

Felix Frankfurter:

Mr. Butler, your answer to Justice Black a minute ago to the question preceding which you’ve just answered, your answer is if I may say so is about as important thing as has been said by you in the course of your argument, and therefore I would like to ask you whether I rightly infer the full significance of what you said.

Am I right to infer that you suggest that the mass of people in Arkansas, are law abiding, are not mobsters, they do not like desegregation, but they maybe one, two respect for the Constitution is pronounced by the organ charged with the duty of declaring it and therefore adjusting themselves to it, although they may not like it, is that the significance to what you said?

Richard C. Butler:

Your Honor, you have said it so much better and so much more accurately and so much more concisely that I could adopt it wholeheartedly and that is exactly my personal feeling and I believe it is the feeling of the school board as an organization.

Earl Warren:

Well Mr. Butler do you then believe that if this Court should in deciding this case clarify the things that you think are now obscure in the minds of the involved people in Arkansas; that, that will take the place of the delay or do you seek delay in preference to clarification?

Richard C. Butler:

We seek clarification, but we say to make that clarification effective and to keep our public school system intact, we must also have a delay to do it.

If I may use a homely illustration, it occurs to me that it’s just about like this.

Some man comes up with a gun in your back, and he orders you to do something that maybe you ought to do, but as long as he has that gun in your back, he’s going to try to find someway to turn around quickly and take that gun away and is going to amount in the long run to a particular conflict between those two people.

Whereas if you remove the gun and tempers have a chance to simmer down, the man at whose back the gun is being pointed may see the advisability of following the course which the man behind him had advocated all along, but in a spirit of conciliation, in a spirit of patriotism if you please, he will come nearer doing the thing without injury to either party, if he is given time within which to appraise it in a judicial manner, and in a slow manner, in a manner with deliberate speed if you please Mr. Chief Justice.

Earl Warren:

Well that’s gets a little involved for me, but may I put it this way?

Would you say that no matter how clearly this Court might resolve the issues that are involved in this case, you still insist upon your delay of two-and-a-half years?

Richard C. Butler:

We insist upon any period of time which —

Earl Warren:

Well do you still insist upon delay?

Richard C. Butler:

Yes a postponement of it, yes sir we do.

Earl Warren:

We’ll take recess now.