RESPONDENT: Board of School Commissioners Of Mobile County et al.
LOCATION: Edward Coolidge's Home
DOCKET NO.: 436
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Fifth Circuit
CITATION: 402 US 33 (1971)
ARGUED: Oct 13, 1970 / Oct 14, 1970
DECIDED: Apr 20, 1971
Facts of the case
Media for Davis v. Board of School Commissioners of Mobile CountyAudio Transcription for Oral Argument - October 14, 1970 in Davis v. Board of School Commissioners of Mobile County
Audio Transcription for Oral Argument - October 13, 1970 in Davis v. Board of School Commissioners of Mobile County
Warren E. Burger:
Next case on for argument is number 436, Davis against Mobile County Commissioners.
Mr. Greenberg you may proceed whenever you’re ready.
Mr. Chief Justice, may it please the Court.
This case is here on writ of certiorari to the United States Court of Appeals for the Fifth Circuit.
The area under consideration is Metropolitan Mobile which is portrayed on this map behind me with a school population in excess of 50,000 students.
This 50,000 is out of a total Mobile County school population of approximately 70,000 students. The black-white ratio in metropolitan Mobile is almost exactly 50-50.
In the system as a whole, city and rural, the black-white ratio is about 60% white, 40,000 students, 40% black, 30,000 students.
85% of the black students were about 26,000 in the system reside in metropolitan Mobile.
At all stages of the litigation, the Courts and the parties including the school board have treated metropolitan Mobile as a separate matter.
The proceedings which have resulted in this writ of certiorari focus on integration of the elementary schools in metropolitan Mobile although facts just furnished to us by respondents and set forth in a supplemental brief filed Saturday indicates the junior high schools and the high schools there in which a substantial degree of integration was supposed to have been accomplished are in very substantial measure identifiably black.
The question presented to this Court is whether in this school system, where the entire spectrum of school assignment techniques have been used in the past to maintain racial segregation, noncontiguous zoning, satellite zoning, pairing, busing, a bewildering array of deviations in grade, structure, portable classrooms, school closings, school construction.
Whether those techniques, which have been employed in the service of segregation now ought to be used in the service of integration or is the sole standard to be an innovation.
That is the exclusive employment of the neighborhood school, whatever that means, now suggested by the United State’s and the respondents as a method of school assignment even though it results in an exceedingly high degree of racial concentration.
Some children have, in the past in Mobile sometimes been assigned on the basis of some concept of neighborhood among a number of other assignment factors, but as the sole means of assignment, it is an innovation.
It might be added at this point, at least I would like to add at this point parenthetically an answer to the argument which emerges from this sharp departure in administration which was anticipated yesterday by counsel for the Charlotte School Board who stated and by Mr. Blake who stated today two wrongs do not make a right.
That seems to be the only answer to this series of facts which exists here in Mobile and in the other case, the other case argued earlier.
He conceded two wrongs do not make a right was the only answer and however satisfying that aphorism might be, a brief analysis of it, we submit, illuminates the issues in this case.
Busing to segregate was indeed wrong so was noncontiguous zoning, portable classrooms and so forth but the wrong was not the busing or the zoning, it was the racial segregation.
These assignment techniques were normal, neutral, administrative means of implementing a governmental policy, in this case an unconstitutional governmental policy.
Similarly, transportation and the various other aids of school assignment in the service of integration are neither good nor bad, it considered abstract.
They are similarly instruments in the service of disestablishing an unconstitutional system.
The question under review is this Court’s judgment of June -- is the Fifth Circuit’s judgment of June 8, 1970 as modified by judgments of August 4 and August 28, 1970.
These were the ninth, tenth and eleventh appeals to the Fifth Circuit since 1963.
The case is now pending there on further appeal, having to do with enforcement of the transportation and faculty portions of the earlier decree.
It has been before the District Court and the Court of Appeals a sufficient number of times so that the docket entries alone occupy half of the first volume of this record and throughout these proceedings, a vast quantity of materials have accumulated.
Nevertheless, the salient facts are clear and they are not complex and the issues confronting the Court are clear.
The essence of the problem is revealed in statistics filed by the respondent in the District Court on October 2nd, a week ago, last Friday and not I may add served on us.
Respondent’s document has been reproduced in our supplemental brief, filed with the Court on October 10th and analyzing the brief.
It is a photocopy of their document in our own brief.
And what I am about to describe is the board’s own statistics although we submit that upon an evidentiary hearing we could demonstrate to the facts are far worse.