Goss v. Board of Education of Knoxville, Tennessee – Oral Argument – March 21, 1963

Media for Goss v. Board of Education of Knoxville, Tennessee

Audio Transcription for Oral Argument – March 20, 1963 in Goss v. Board of Education of Knoxville, Tennessee

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Earl Warren:

— 217, Josephine Goss, et al., Petitioners, versus The Board of Education of the City of Knoxville, Tennessee.

Mr. Marshall.

Burke Marshall:

Mr. Chief Justice, may it please the Court.

I should like to start by stating briefly the interest of the United States in these cases.

These are the first school desegregation cases which the Court has taken for argument since Cooper against Aaron.

The United States participated in Cooper against Aaron, and also in the Brown cases both on the merits and on relief.

So our participation in these cases reflects a continuing national policy.

The cases themselves involved an important question of the constitutionality of transfer provisions in Knoxville in Davidson County, Tennessee which operate explicitly on the grounds of race.

Put in their most favorable light, these transfer rules are designed to permit children of both races to avoid the effects of desegregation, although, as I shall develop, in doing so, they also compelled children to go to particular schools because of their race.

The transfer rules reflect to some degree, the deep-seeded fears of some parents in these places and elsewhere in the area of desegregation.

The legal assumption behind the rules is that the school boards may give effect to these fears in the administration of the school districts by permitting transfer of children depending upon their race and depending upon the majority — of the race of the majority of the other children in the school.

In our view, this legal assumption is wrong, and it derives from presumptions about race which undermine the Brown case.

The presumptions being that it is harmful for children of both races to go to school together and it is a proper aim of Government to take steps that design to permit them to go to school separately.

The United States is also interested in these cases because the situations which are presented in them are not unique.

The States of Alabama, Arkansas, North Carolina, Louisiana, and Florida, all have statutes which are — which say in effect that no child of either race may against his wishes be compelled to go to a school where he will be in the minority racially.

In addition, transfer plans of this sort have been introduced in other cities.

They are now in effect in Nashville, in Memphis, and Humphrey County in Tennessee, and were included but turned down by the courts in Chattanooga and Obion County.

In Virginia, they are now a part of the plans in Lynchburg, Arlington, Alexandria, and Warren County.

And in Virginia, they were also included but turned down by the Fourth Circuit in the Charlotte’s Bill Plan.

So there is presented the possibility that if these rules are proved in these cases that they will spread and become a part of the pattern of desegregation throughout the entire area of desegregation under the Brown case.

These rules start with an unquestioned use of racial criteria.

They treat children differently, depending solely upon their race.

White children may transfer when Negroes may not.

And Negroes may transfer when whites may not.

The other side of that coin —

Byron R. White:

Mr. Marshall, can you tell me where that rule, (Inaudible)

Burke Marshall:

That’s correct.

Byron R. White:

(Inaudible)

Burke Marshall:

That’s — that’s correct too, Mr. Justice White.

The other side of that is that the white child may transfer out of the school, but the Negro must stay there.

Burke Marshall:

The school board not only moves the white child out, it makes the Negro child stay in the school and the same way with the — when the Negro child moves out and the whites have come.

Hugo L. Black:

You mean in practice, but not under the — not under the — on the face of the rule?

Burke Marshall:

On the face of the rule, Mr. Justice Black as I understand it, and on the face of the plan, a Negro child and a white child are both assigned to a school in a school district.

The Negro child must go to that district, because he’s assigned there.

The white child may move automatically before he ever attends the school, if he’s in the minority or if the school was previously an all Negro school, either way.

And of course the rule does not depend on how much of a minority he’s in.

It might be 49%, 51% or something like that.

Potter Stewart:

Or would state in the other way — or would state in the other way —

Burke Marshall:

It works —

Potter Stewart:

— the white children have to stay in a school if they’re in a majority —

Burke Marshall:

That’s right.

Potter Stewart:

— even with 51%.

Burke Marshall:

That right, Mr. Justice Stewart.

It treats children differently in all schools.

In schools which were formed —

Potter Stewart:

I mean if it treats them — there’s no discrimination against Negroes as such, is there?

I don’t — this is what I don’t get.

Burke Marshall:

Mr. Justice Stewart, there is a discrimination against the Negroes in a particular school.

Potter Stewart:

Or against, if you call it discrimination, then they’re same discrimination against the white people in a particular school?

Burke Marshall:

In another school.

Potter Stewart:

Yes.

Burke Marshall:

But not in that school.

Byron R. White:

(Inaudible)

Burke Marshall:

That’s right.

Byron R. White:

(Inaudible)

Burke Marshall:

That’s correct.

That’s in Knoxville.

Byron R. White:

(Inaudible)

Burke Marshall:

That’s right, Mr. Justice White.

But it does not treat Negro children and white children alike.

Burke Marshall:

When you look at any particular school district, if you take a school district where the majority is Negro, the Negro children in that school district must go to the school in that district.

The white children do not have to go to the school on that district.

Potter Stewart:

And if you take a school where the majority are white people, well then the same thing is true —

Burke Marshall:

But that does not — that does not in my judgment, Mr. Justice Stewart, cure the discrimination against the Negro children in the school district which I chose.

Those Negro children, each has a constitutional right not to be treated unequally because of his race.

And he’s being made to go to a school because of his race, where white children who are exactly in the same circumstance are not made to go to that school.

That is the discrimination.

It is not an answer to that discrimination.

Under the cases and decisions of this Court to say that in another school district, Negro children may decide not to go to a school that white children have to go to.

Arthur J. Goldberg:

General Marshall, would (Inaudible) to say that a white child who will go to a white majority school (Inaudible)

Burke Marshall:

It runs throughout the entire school district Mr. Justice.

Arthur J. Goldberg:

(Inaudible) with respect to both black and — black and white children, is that correct?

Burke Marshall:

Yes, Mr. Justice Goldberg.

It permeates the entire school system —

William J. Brennan, Jr.:

I’d suppose you’d say, Mr. Marshall, that those white children and their parents could equally maintain an action, if they cared to, challenging these transfer provisions on the same constitutional ground of discrimination.

What happened in the case you have is on behalf of Negro children, who complained of the discrimination as against them, isn’t that it?

Burke Marshall:

That’s correct, Mr. Justice Brennan.

Byron R. White:

And you say, do you say that what’s happened in another school is no answer in the district which you choose to talk about.

Also, I take it that you agree with Mr. Greenberg that there’s no answer that they desired to the parents of the children are to transfer, that the State has — it’s constitutionally prohibited from recognizing the private choices of the parents and the children to transfer.

And it’s just as simple as that.

Burke Marshall:

That’s right, Mr. Justice White.

We have a series of cases — have had a series of some voting cases in Louisiana, one of which came to this Court.

In tho — under Louisiana law, private citizens may go in and purge voters from the record if they haven’t — if they’re not qualified in the judgment of the private citizens.

There was about a — six years ago, a series of purges in the number of parishes in Louisiana, all initiated under Louisiana law by the private citizens.

But the courts have ordered the Negroes that were purged from the roles under those circumstances restored to their roles because the purge was discriminatory in the sense that whites were not purged at the same time as Negroes, even though the impetus came from the decision of a private individual.

I think the Burton case, which this Court decided two years ago is another analogy.

In the Burton case, a private restaurant man was given the use of state property in Wilmington and he discriminated.

It was his private decision but he did it through state property, public property, property that was supposed to be used for the public, and this Court struck that down.

I think another analogy is the Girard College case where the — Mr. Girard wanted to set up a college for whites only but he did it using the machinery of the state and this Court struck that down because the state machinery itself was the instrument of discrimination.

And so here, I do not think that the school board can avoid the fact that it is what is assigning these children to school, not the parents.

Burke Marshall:

The school board is assigning children to school and even it’s assigning children to school differently depending upon their — whether they’re white children or Negro children.

Potter Stewart:

No, depending upon the wishes of the other children and their parents.

Ultimately —

Burke Marshall:

Mr. Justice Stewart, whatever the reason for the school board doing it, whatever its reason, it is the school board that’s doing it, not the parent.

Potter Stewart:

Well not that I understand you in answer to Mr. Justice White to say that if a color — Negro mother and father came to a school and send — call us prejudiced if you will, but we simply don’t like our child to be in school with a — where there’s a — where there are majority of white boys and girls.

We’re old-fashioned, we’re prejudiced, we’re whatever you want to call us, but we don’t want it, we don’t like it, and we think it’s doing our child harm and our child thinks so too.

And we therefore want to transfer her to a school where there are majority of equal of our own race.

You say that the Constitution requires the school board to deny that request?

Burke Marshall:

I say, Mr. Justice Stewart, that the school board cannot, whatever the wishes of the parents, cannot assign children differently to different schools depending on the race.

Potter Stewart:

This is not an assignment, this is a request by the mother and father and the child, a voluntary wish, their affirmative of desire.

Burke Marshall:

Nevertheless, Mr. Justice Stewart, the school board is running the school system.

Potter Stewart:

Of course.

Burke Marshall:

It is deciding, not the parents.

It is deciding whether it’s based on the wish of the parents or not.

It has to decide.

It cannot avoid the authority deciding where — what school —

Potter Stewart:

Whether or not to grant that request —

Burke Marshall:

That’s right.

Potter Stewart:

That’s my question.

Burke Marshall:

And what school the children in the school district must go to.

Now, when it grants that request, it is putting a white children — white child the school because he’s white, and a Negro child and exactly the same circumstances has to go to a different school because he is Negro.

Potter Stewart:

Well, you still — you haven’t answered my question at all, so far as I’m concerned.

We’re not talking about any child having to go anywhere.

We’re talking about the school board’s — what its constitutional duty is when faced with a request such as what was included in my question.

Burke Marshall:

I think, Mr. Justice Stewart, the — that same school board is assigning a number of Negro children.

We will take the school district which is say 40% white and 60% Negro.

Potter Stewart:

Alright.

Burke Marshall:

Now, the school board, under this plan, assigns all those children to the school in the school district without regard to their race.

Potter Stewart:

Yes.

Burke Marshall:

The Negro children in that school district are compelled to go to that school.

Burke Marshall:

Now, that’s a compulsion by the State to make them go to that school.

Potter Stewart:

Well, I suppose all the children in these school districts are compelled to go to school under the truancy laws —

Burke Marshall:

That’s right.

Potter Stewart:

Whether that’s not an issue here, isn’t it?

Burke Marshall:

No, but the school board has to decide where the Negro children go to school and where the white children go to school.

It decides the Negro children have to go to that school in that district and that the white children do not have to go to school in that district.

Now, that is a decision made by the State, solely on the basis of race and I do not think the school board can avoid its constitutional responsibility for having made that decision by saying that it derives from the wishes of the parents anymore than the City of Philadelphia could avoid what it did in the Girard College case by saying it all derived from the wishes of Mr. Girard.

Potter Stewart:

Do you think there’s a constitutional rule that requires that there is a — that a pupils in a school be — that a school be biracial?

Burke Marshall:

No.

No, I don’t, Mr. Justice Stewart.

I don’t think that that is involved in this case.

I think there is a constitutional rule that children must be treated equally, under the law, without regard to —

Potter Stewart:

That there will not be any governmental discrimination against them because of their race —

Burke Marshall:

That’s right.

Potter Stewart:

— and the color of their skin.

Tom C. Clark:

But you’re talking about a different case, it appears to me — I can well say your position in your case.

Well, that sounds that rule was, that parent transfer his child, I mean any parent, white or colored, by going to the school board and so requesting it.

Would it then be the constitutional duty of the school board to refuse the transfer?

Burke Marshall:

No, it would not, Mr. Justice Clark.

That is a different case.

Tom C. Clark:

Well, I think that’s what Justice Stewart has in mind.

Burke Marshall:

If Mr. Justice Stewart, everyone in the school district could transfer out, that would be a different case.

But that is not this case under this case.

Tom C. Clark:

Even though they based it on color.

Burke Marshall:

That’s right — well, whatever is — whatever the motivation of the parent in both Moore and Louisville now, whatever the motivation of the parent, any child can transfer to another school.

The limits on that that controls on it and the administration of the school district have to do with how big the school is, how many teachers it has, how big these classrooms are, and the priorities who applied first.

Now, that kind of control has nothing to do with race.

And if that kind of transfer plan we’re working here, there’s no contention that the school board would have the duty to inquire in to the motives of the parents.

Tom C. Clark:

Well, I misunderstood your answer to Justice White, I’m glad you straightened it up.

William J. Brennan, Jr.:

May I follow this, Mr. Marshall.

William J. Brennan, Jr.:

I was discussing this with Mr. Greenberg yesterday as we close last evening.

Do I understand this now at least it’s the Government’s position that in Baltimore, where as I understand it, the transfer provisions have nothing whatever to do with race?

There are other considerations which may prevent the transfer or not.

But assuming that those transfer provisions could be satisfied in the transfer, otherwise we permit it.

Negro parents who come to the school principal and say, “Our child is not happy here.

We don’t think the child is doing well here.

We think the child will do better if he transfers to this other school where the children are largely Negro.

And it’s because of this, because they’re largely Negro, we want to transfer the child.”

I gather your position would be that the principal could not say to the parents, “Well, even though you satisfy all the other requirements of the transfer and the transfer is permissible because you tell me you’re putting on a racial ground, I can’t allow the transfer.”

You would not go to that far?

Burke Marshall:

No, that is not our position.

William J. Brennan, Jr.:

Mr. Greenberg took a different position yesterday.

Burke Marshall:

Well, I did not so understand it, Mr. Justice Brennan, but — but a —

Byron R. White:

Yes, but Mr. Marshall, let’s get it really straight.

You — you would say that the school board could not allow that transfer unless the white child in the school could also be able to get the same transfer.

Burke Marshall:

That’s right.

The school board cannot treat children differently because of their color.

Byron R. White:

If the — if the school board — if where a Negro is in a minority, the Negro parent comes in and says, “I would like my child transferred,” that’s why they stick on purely racial ground.

The school board could allow that transfer if the white person who came in and wanted to transfer out, would allow to transfer on purely racial ground.

Burke Marshall:

Well I think, Mr. Justice White it —

Byron R. White:

A white person comes in and says, “I don’t want to be in this school but any Negro do.”

Burke Marshall:

I think that if the school board has a free transfer system, so that anyone can transfer whatever his reasons then he — then both those transfers would be permitted and that isn’t the school board would not have to inquire behind into the motives and that the parents volunteered the motive I think that would —

William O. Douglas:

But wouldn’t that build a new school house then but that district did.

Burke Marshall:

No, Mr. Justice Douglas.

And of course the — every school system as I was discussing with Mr. Justice Stewart has to have rules, it can’t escape the responsibility for telling where children they should go.

Now, if the rules permit free transfer and the limits of the rules are on how many school they have and how many classrooms, and who applied first and that kind of nonracial criteria then the motives of the parents don’t seem to me enter into it at all.

John M. Harlan II:

I wonder what the discrimination plans as I understand your arrangement, put this issue little differently.

What I understand you’re saying is that this is justice if the State didn’t pass the law in saying that those who believe in segregation can transfer out of deseg — out of integrated schools but those who believe in non-segregated schools cannot transfer.

Burke Marshall:

I think that the — I think that these rules work that way.

Yes, Mr. Justice Harlan.

Burke Marshall:

The rules work.

Beyond that though because a Negro child under these rules who is assigned in a school district, where the school was formerly all Negro has to stay there whether he believes in segregated schools or not, he has no right to transfer no matter how much he believes in integrated school.

Arthur J. Goldberg:

Negro or white?

John M. Harlan II:

Yes, Negro or white.

Burke Marshall:

That’s right, Negro or white.

John M. Harlan II:

The discrimination here is not between the white and the Negro child; it’s between the segregationist and the integrationist?

Burke Marshall:

Well between — in each school though, Mr. Justice Harlan, it is a discrimination and unequal treatment as between whites and Negroes.

Negroes have to go to a school because they are Negro when whites who are otherwise and exactly the same circumstance, except for their race do not have.

Now, in another school district, that happens the other way around.

John M. Harlan II:

Yes, but a white, a white child who wants to go to an integrated school can’t do it?

Burke Marshall:

That’s right, Mr. Justice Harlan.

The racial discrimination —

John M. Harlan II:

It doesn’t have anything to do with the race; it’s the question of whether he believes in segregation or so call it.

Burke Marshall:

No.

No, Mr. Justice Harlan, it’s because of his race.

He can’t go to an integrated school because he’s white.

That’s why, because he’s white and he’s in a school which is — in which he is not a racial minority, it’s because of his color.

Tom C. Clark:

The objection is to freeze, isn’t it?

Burke Marshall:

Well —

Tom C. Clark:

They’re frozen in a school that is a majority of their race, that’s right, isn’t it?

White one — white person —

Burke Marshall:

They are frozen in a school with the majority of the race because of their race, Mr. Justice Clark.

Tom C. Clark:

That’s your objection?

Burke Marshall:

That’s right.

It’s because of their race.

Tom C. Clark:

If the freeze wasn’t there you’d have no objection?

Burke Marshall:

That’s right.

The objection, the objection is to refusing transfer, similar transfer rights to the —

Potter Stewart:

To the majority.

Burke Marshall:

— racial majority —

Hugo L. Black:

That’s right.

Burke Marshall:

And you can’t do that, you can’t do that unless you’re adjudicating the transfers on the basis of race, and our position is that the Fourteenth Amendment forbids that.

Tom C. Clark:

That’s a little lot broader I’d say unjust discrimination against the Negro child, discrimination against the majority race.

Burke Marshall:

That’s correct, because of, because of —

Tom C. Clark:

Of white or black?

Burke Marshall:

That’s right, Mr. Justice Clark.

Potter Stewart:

And not allowing a member of the majority in any particular school house to transfer under these provisions?

He still is free to transfer under the provisions included in the footnote here in the brief.

Burke Marshall:

That’s right, Mr. Justice Stewart but because of his race, he is not allowed to transfer whereas others have a different race are.

Potter Stewart:

Because he happens to — his race happens to be on a majority in any given school, he can’t transfer under the — request to transfer under these provisions but although he can under the other?

Burke Marshall:

That’s right.

Arthur J. Goldberg:

General, under the provisions that are set — set forth, this would mean that the school board adopted this additional rule (Inaudible)

Burke Marshall:

Well, I think it would, Mr. Justice Goldberg.

I wanted to make this caveat when we’re talking about other kinds of plans that the school board might devise.

We — it’s a very difficult to discuss these plans in a vacuum and when the plan of that sort of comes up, it will come up on a record and in a school district which is resisting desegregation it may be that the circumstances would show that the purpose in effect of that, despite its equality of treatment on its face was discriminatory.

After all, this case and all of these cases come up from a court order and the court order requires the school board to give the plaintiffs their right which is a right under the Brown cases and Cooper against Aaron to attend desegregated school system.

And when the school board acts in a way that doesn’t accomplish that which they are ordered to do by the Court, I think it goes beyond the constitutional questions on phases, it’s whether — it’s compliance with the court order.

Because as I understand the Brown case, the second Brown decision, it is — that is what the school boards are ordered to do to create a desegregated school system operated and in accordance with the Constitution.

And the steps that go away from that are not permitted under the Brown decision.

In fact there — I think that if you look at this as a transitional plan, I think that what we have been discussing are terms of its prominent constitutionality but if you look at it there’s a transitional plan, I think that the Brown case absolutely controls it.

Because the Brown case required school boards to move towards a desegregated school system.

It put that as an affirmative duty on them and it listed the kinds of things which would permit delays in that process.

Potter Stewart:

Well, the desegregated school system knows, a system in which the school does not keep anybody out because of his race whether he’d be white or Negro or any other race.

But it doesn’t say anything about compelling any given school to have — to have a biracial student body, doesn’t it?

Burke Marshall:

But that is not what I’m talking about either, Mr. Justice Stewart.

I don’t think there’s any question in this case about compulsory integration.

That’s not involved at all.

Potter Stewart:

But there’s certainly isn’t that — any, any child assigned to a school, can stay in the school as the school isn’t keeping anybody out on account of his race and under the system, is it?

Burke Marshall:

It is keeping people in particular segregated schools because of their race.

Yes, it is.

Potter Stewart:

(Voice Overlap) people out.

That’s what the Brown case had to deal with, didn’t it?

Burke Marshall:

I — as I read the Brown Case, Mr. Justice Stewart, it talked about school systems that are upgraded in a fashion in which children are not treated differently because of their race.

And this plan treats children differently throughout the system because of their race.

Sometimes that operates to keep white children in schools, sometimes it operates —

Potter Stewart:

It only as I — it operates all only upon the affirmative, private wish of personal human beings, not by government actions.

Burke Marshall:

But it is government action, Mr. Justice Stewart, in constitutional terms.

The school board, the school board under these transfer rules, it is the school board that decides what school a child can go to.

Potter Stewart:

Yes, and they assigned the children to schools and then any transfer is triggered and actuated only by the personal and private desire of the student or his parents

Burke Marshall:

But Mr. Justice Stewart, what triggers the action of the school board doesn’t make it — it doesn’t mean that the school board’s action isn’t still stayed action under the Fourteenth Amendment.

As I said, it is like the Burton case and the Girard College case, and these purge cases where the school board is still an instrumentality of the State which is treating children throughout the school —

Potter Stewart:

By granting a transfer, by granting a transfer.

Burke Marshall:

And denying transfer is also though, Mr. Justice Stewart.

Because every time they grant a transfer to a member of the minority race, they are saying at the same time that all the children of the other race in that same school, who are under exactly the same circumstances in every respect except for the race cannot transfer.

They are keeping children in school as well as permitting them to move from school to school.

They are assigning them.

This compulsion of the State is on a Negro to make him stay in a school, when the white does not have to stay in the same school and the only difference is that one is white and one is Negro.

Hugo L. Black:

May I ask you if the Court made any finding with reference to the questions to which Mr. Greenberg called our attention yesterday and answers one on page 104, 105, one on page 219, where the official in answer to a question said, “The plan did tend to perpetuate segregation and that on page 219, under this provision, setting forth these racial conditions based on the minority race transfer, the effect of it is to permit a child, to choose segregation out of his zone, outside of his zone but not to choose integration outside of his zone.

Were any findings made on those?

Burke Marshall:

No, there were not, Mr. Justice Black in —

Hugo L. Black:

Do you refer to them in your brief?

I’m asking you for this reason, I understood you to say and I think that at least some possibility for the statement that what the Brown decision here was that there must be moved much tall integration.

That meaning, I presume, that there would be an end to all deliberate speed, that that wasn’t ad infinitum?

And I — from what I understand you are arguing, you are arguing that where it does not move on in that direction, though sometimes, the reason in that this Court had in the Japanese cases in the west, that they are violating the ground, order and decree.

Burke Marshall:

That’s right, Mr. Justice Black.

I think it is not only a question of the constitutionality of these transfer plans in a vacuum but also a question of compliance with the court order under the Brown cases.

Hugo L. Black:

Do you have any argument to the effect that if this does perpetuate, undoubtedly perpetuate integration and that if it does what it said on page 219, that it shows that the purpose of the Brown case in the decree rendered under it namely not in 2,056 but within some reasonable time, bring an end to this situation which the Court had held was unconstitutional.

Burke Marshall:

Yes, Mr. Justice Black.

That is argued in our brief and that’s our position.

The District Courts — I think that it would be fair to say that there is no evidence that was introduced in either of these cases which supports this transfer provision as a step towards desegregation under the Brown cases.

Burke Marshall:

And as far as the courts are concerned, neither of the District Courts really discussed the transfer provision in those terms at all.

The court in the Knoxville case didn’t discuss it at all.

It — and the Davidson County case thought it was found by the previous decisions of the Sixth Circuit.

Hugo L. Black:

I understand whatever other argument you’re making you’re also making the argument that any plan which inherently and inevitably and inescapable works to perpetuate integration or segregation is in violation of the Court’s decree?

Burke Marshall:

That’s correct, Justice Black.

Earl Warren:

And I suppose also that your position that this system does result in a built-in system of segregation.

Burke Marshall:

That’s right, Mr. Chief Justice.

I think that after the 12 grades are desegregated, the school boards will be faced with almost as difficult the problem as they started with, to comply with the Constitution.

Potter Stewart:

Mr. Marshall, in your brief — your brief refers to this, refers to this as a transitional plan.Is there any evidence if that’s what it is because the NAACP takes issue with that?

Burke Marshall:

I think, Mr. Justice Stewart, it is fair to say that the Sixth Circuit, when it upheld it, that treated it as a transitional plan because it referred to the fact that the District Court can supervise and retain jurisdiction, but there’s nothing in the record to indicate that it’s a transitional plan except that it is part of the plan filed by the —

Potter Stewart:

Including this — the degree of the class by class?

Burke Marshall:

That’s right.

And so on.

Potter Stewart:

Integration and so on.

Earl Warren:

Mr. Dodson.

K. Harlan Dodson, Jr.:

Mr. Chief Justice, may it please the Court.

Nominally, I am appearing here today on behalf of the School Board of Davidson County, Tennessee.

I say nominally because actually today there is no school board at Davidson County, Tennessee.

In the latter part of 1962 and subsequent to the time that this petition was acted upon, we had what is defined in Tennessee as a metropolitan government election.

And we are now operating a unified government between the City of Nashville and Davidson County with the result that as of now, we have a combined school board.

I make that observation because actually some of the figures that would appear in this record would not be exactly applicable today.

We would have to consider this more a combination of the Maxwell case and the Kelley case in order to get it in its proper perspective.

William O. Douglas:

Does this degree entail a substitution of parties?

K. Harlan Dodson, Jr.:

There has been no substitution of parties.

We have made no suggestion about that.

I offer it not with that particular emphasis but rather to show that it’s a combination of those two cases.

Arthur J. Goldberg:

The same system —

K. Harlan Dodson, Jr.:

Same system —

Arthur J. Goldberg:

(Inaudible)

K. Harlan Dodson, Jr.:

Correct.

Arthur J. Goldberg:

(Inaudible) the facts of the case.

K. Harlan Dodson, Jr.:

Yes, and we’re confronted with the larger difficulty than we would have been have we made Davidson County.

Now, may it please the Court, I would like to submit three preliminary propositions before going to the immediate question that we have, I think these bear upon it.

In the first place, when we were instructed by the District Court to formulate zones, school zones, neighborhood zones, whatever they’d be called, without regard to race they were so formulated.

There was no gerrymandering in them.

There has been no charge of any gerrymandering in them.

Those are fair zones we submit, they are zones based upon population and school facility and nothing else.

Secondly, may it please the Court, in these cases, on the question that has been brought up by this Court, I respectfully submit that we are required to discuss it in that.

And I say that because there is no individual before this Court, or no one in a class before this Court as an individual, who has asked other relief is being sought here.

There has been no Negro child who has asked to be transferred out of a school and had been denied.

There has been no white child ask to be transferred out of or into a school and then denied.

And so I submit that we must consider this case in a vacuum because there is no party before the Court.

No justiciable controversy or issue as to any person.

And may it please the Court well —

William J. Brennan, Jr.:

May I ask something.

K. Harlan Dodson, Jr.:

Yes.

William J. Brennan, Jr.:

Does this suggest the fact that a Negro child in a school where Negro children are in the majority, he has requested to transfer to another school have been granted?

K. Harlan Dodson, Jr.:

No, there has been no request.

Upon this, there has been no request and therefore we do not know and we have to discuss it in a vacuum whether under number five as compressed with number six, he might have been so granted.

We have to discuss this case in vacuum and not in fact.

Arthur J. Goldberg:

(Inaudible)

K. Harlan Dodson, Jr.:

I would not say that it is a mandatory transfer plan, may it please the Court and I definitely with the petitioners on there.

I say that those are matters which may be considered as valid calls for transfer going back to number five.

Number five says that upon good cause, now then here are some of the reasons that the school board may consider as good cause.

Now, frankness requires me to admit that administratively up to this point, yes it has been considered by the school board as good cause.

They have granted each one of these requests because it has not created yet an administrative problem to refuse or not refuse.

Potter Stewart:

The testimony that was cited to us yesterday in the record indicates that —

K. Harlan Dodson, Jr.:

That’s correct.

Potter Stewart:

An automatic provision.

K. Harlan Dodson, Jr.:

There’s no question.

K. Harlan Dodson, Jr.:

That was true under the city system and we put that proof into record in our case.

It was what they proposed to do under the Knoxville system.

It was what they proposed to do under the Davidson County system until such time as it did become an administrative problem then it would have you discontented.

Potter Stewart:

How would it become an administrative problem from the school board’s point of view?

K. Harlan Dodson, Jr.:

From the school board’s point of view?

Yes.

You might have overcrowding in one school by transfer — permitting to transfer out of one zone into the next zone.

When the zones have been created based upon two things, the population within the zone and the facility to accommodate it.

Potter Stewart:

I see.

K. Harlan Dodson, Jr.:

So you might end up with a situation where you have vacant school and an overflowing school.

Arthur J. Goldberg:

Are you saying that the school board can take a Negro child or a white child (Inaudible)

K. Harlan Dodson, Jr.:

I would say it would be good cause if they decide to go to an integrated school and not to remain in a school which was in fact all of one race was affecting the educational opportunity of that child.

Arthur J. Goldberg:

You qualify it though —

K. Harlan Dodson, Jr.:

Yes, sir.

I do qualify —

Arthur J. Goldberg:

(Inaudible)

K. Harlan Dodson, Jr.:

The school board has not adopted it.

We have never been asked to adopt it.

We have never been asked to rule upon it and we’ve never been presented with a child asking that particular relief or a parent.

So that in fact, may it please the Court, in addition to representing the school board, I am representing here today 354 Negro students and 288 white students in the Davidson County system.

The 354 being out of a total of 405, who were affected when the zoning plan was placed in it, all of whom desired for reasons that was satisfactory to themselves feeling that the effect of being any racial minority might have upon the education of their children, were permitted to move to another school.

I’m representing their rights just as well as I’m representing a school board here, may it please the Court.

Because I submit that the basic —

Hugo L. Black:

Well, you officially represent the school board, don’t you?

K. Harlan Dodson, Jr.:

Officially represent — that’s my paying client, may it please the Court.

Hugo L. Black:

I do not understand any of these others that argue.

K. Harlan Dodson, Jr.:

No, if the Court please, I’m representing their interest however —

Hugo L. Black:

What you mean is that they asked to be transferred —

K. Harlan Dodson, Jr.:

Yes, sir.

Hugo L. Black:

— on appeal that you have a right to.

K. Harlan Dodson, Jr.:

Yes sir.

Hugo L. Black:

That’s what they wanted to do.

K. Harlan Dodson, Jr.:

Because unless the position that we take is sustained they would not have had —

Hugo L. Black:

I was just wondering if you ever did that.

K. Harlan Dodson, Jr.:

No, sir.

Hugo L. Black:

Have any (Voice Overlap).

K. Harlan Dodson, Jr.:

I have not been employed by any of that.

I would not —

Earl Warren:

As long as you’re representing the different interest, are you representing the interest of the children in the school where the majority is — are Negroes and who might want to transfer to another school?

K. Harlan Dodson, Jr.:

I haven’t had any of those yet, if the Court please.

We haven’t had that situation —

Earl Warren:

(Voice Overlap) you haven’t considered that at all.

K. Harlan Dodson, Jr.:

No sir, I have not because we have, Mr. Chief Justice, we have not had the request yet.

Earl Warren:

But your ordinance — your ordinance says that they cannot, does it not?

K. Harlan Dodson, Jr.:

No, may it please the Court, Mr. Chief Justice.

It says that under number five, other things may be considered as good cause.

But under number six, that these things which are defined may be considered as valid reasons by the board and they are about a board and they are spelled out but it does not say that there are not others which may be considered.

And we have not had the application or the request yet.

And I do not know what the school board would do with such an application or request.

And the superintendent in the Davidson system so stated that he didn’t know what would happen.

We were not dealing with that.

We have had no request.

If the Court please, I think these all points to what I submit is a basic fallacy in the position taken by the petitioners and by the mixture of the Government and that is this.

An assignment is made by the school board.

A child is assigned to a school by the school board with total disregard to race, it’s based strictly upon zones which have not been challenged and which are not based upon race.

There is a difference between an assignment by a school board of a child to a particular school and the permission by the school board of that child to transfer upon the request of the parent who is first charged with the educational welfare of that child.

Now, may it please the Court, we submit that the decisions of this Court go to the proposition of the assignment of children and not to the proposition of what parents may request in the school board on me.

Arthur J. Goldberg:

(Inaudible)

K. Harlan Dodson, Jr.:

That the parent may rely upon or use, may it please the Court.

Arthur J. Goldberg:

(Inaudible)

K. Harlan Dodson, Jr.:

If and I have to qualify, if you must, the parent want to rely upon.

Arthur J. Goldberg:

(Inaudible)

K. Harlan Dodson, Jr.:

Yes, that’s right.

Arthur J. Goldberg:

(Inaudible)

K. Harlan Dodson, Jr.:

That is — that is correct.

Now, may it please the Court, I believe that we are all in agreement that the operation of the law, segregation by operation of law is no longer a part and can no longer be a part of the public educational system since the Brown decisions.

Give some thought to many lawyers and I believe some of the courts, prior to that that converse was true but all of us recognize that now to be the law.

Byron R. White:

Mr. Dodson, if this is so why did the school board find it necessary to set aside particularly in the state, after having — stated a general transfer school if he required which we cited that’s either the cause, why did it feel required to go on and invite parents’ contention in the (Inaudible)

K. Harlan Dodson, Jr.:

May it please the Court, I’ll have to answer that question with two answers.

First, a practical answer and the other one a theoretical answer, as a practical answer and insofar as Davidson County is concerned we did it because that was the rule that have been charted out through us by the District Court, have been approved by the Circuit Court of the Sixth Circuit which is our Circuit and certiorari have been denied by this Court and we felt that here in this same community —

Byron R. White:

Would it require — would it require in those decisions?

K. Harlan Dodson, Jr.:

I do not know.

Byron R. White:

What would require in those decisions?

K. Harlan Dodson, Jr.:

We were not required to follow those decisions, no.

Byron R. White:

That’s right.

You weren’t required to put this in by those —

K. Harlan Dodson, Jr.:

No, no, we were not required to.

Byron R. White:

Why were you — why did — why were you —

K. Harlan Dodson, Jr.:

As the second and the theoretical reason, and this is the theoretical reason that was originally included was because we felt that no parent should be required to wait, to see whether there was an emotional or psychological impact which was affecting adversely the educational advancement of the child before being permitted to remove it from one school to another school, we felt that it was the sort of thing that we should permit in advance as a preventative if the parent was concerned about it.

Byron R. White:

Well, the parent — the parent had asked that the way it actually operates was nobody had to transfer.

They just came in and got different assignments, isn’t it?

K. Harlan Dodson, Jr.:

Now, if the Court please, now here, I wanted to comment on that, here’s exactly what happened about that.

The notice was sent out and I’m looking at page 249 and 250 of the record.

The notice was actually set out to every county by their child where they were in a situation that the new zoning required them to transfer, required them be assigned on another school.

And it starts off in the notice, in the transfer request and it says school zone in which you lived, in other words this is where you are now zoned, in accordance with the notice which is on 249.

This is the one in which you are now zoned.

Here is the school which you are now attending.

Now unless that child brought this notice back saying, I do not want to be moved over and then moved back, I do not want to be moved over then you would stay in that location.

Now the practical, the administrative reason for that that is that you didn’t actually physically take the child from the school that he was now attending, to the school to which it was assigned and then let the child transfer back into school to which he was assigned, to the school that he had formally been attending if that’s the school he wanted to go to, was that you would have the paperwork of: number one, the child turning in the books; Number two, the child’s transfer papers with the State going over to the assigned school then the transfer papers again being made out about what the state rules and all of these appears in the record to bring that child back to the other school and books reassigned.

It just created administrative problems there that accomplished the same result.

Byron R. White:

In your position that if a parent comes in and take advantage of the rules and says, I want to transfer and this factually gives satisfy these rules at the end of the inquiry.

That’s —

K. Harlan Dodson, Jr.:

So far it has been, may it please the Court.

Byron R. White:

So far it has been.

There’s no inquiry about being nervous or having a shock or —

K. Harlan Dodson, Jr.:

Up until now there has not been —

Byron R. White:

— anything of that kind?

K. Harlan Dodson, Jr.:

We have had no administrative problems to arise from the transfers after we have permitted.

Now if it would create adminis —

Byron R. White:

No inquiry to the educational advantage for disciplining the children?

K. Harlan Dodson, Jr.:

None, not until now.

May it please the Court, we have felt that the — the reasoning that was adopted by Mr. Justice McAllister in the Kelley case was clear reasoning and cautious reasoning.

Now, I must confess that I think most members of the bar would admit that when they agree with reasoning they then think it’s very clear and very cautious.

But we do submit that the grounds upon which he based the decision of the Sixth Circuit as respects this plan which was adopted, which was our guidepost that we have followed, that they are basic reasons and they are sound reasons.

First, that this Court had not decided and has not yet decided that the states must deprive persons of the right to choose what schools they attend but rather all they have decided is that a state may not deny to a person on account of race, the right to attend any school it maintains.

And that two, if those schools which it maintains are open to the children of all races, with the zone limitation of course which is a practical limitation that was recognized in the Brown cases, that if the schools which it maintains are open to the children of all races then there’s no violation of the Constitution.

Although the children of different races may in fact attend different schools.

And finally, that there was no evidence there in the Sixth Circuit as there is no evidence in this record in either the Maxwell or Goss cases that the transfer plan is any evasive scheme concocted in order to bring about or continue segregation.

If the child was free to attend an integrated school which by integrated, I mean integrated in fact and if the parents voluntarily chose to move that child from that school to another school, that then the child was not being deprived of its constitutional rights or to put it in another way.

And I’m now leaving the reasoning of Mr. Justice McAllister.

If this plan excluding the transfer provision, excluding number six, if this plan is signed then we submit that number six takes nothing from it because it is the individual acting either as an individual or through its parents, and not the State which makes the election.

And insofar as the State or the school board here is concerned, no child is prevented from attending a particular school because of his or her race.

Potter Stewart:

Now, if a child is of a race either white or Negro, which happens to be in the majority in a particular school and if he affirmatively desires to attend an integrated school, and if all the minority under this plan number six, transfer out then he’s frustrated in that desire, isn’t that true?

K. Harlan Dodson, Jr.:

I think that is true, if the Court please.

Potter Stewart:

He — he cannot — if he and his parents want him to have the experience, affirmatively want him to have the experience of attending a school where there are children of both races, if he happens to be in a majority in that school then he’s not allowed to transfer under this?

K. Harlan Dodson, Jr.:

But he’s prevented because he is moving out of a zone which was determined without regard to race and he is not granted a transfer request.

But no school is denied to him because of his race, because he was put here, he was placed in this school because of the zone.

Byron R. White:

But other people are allowed to transfer out of that school —

K. Harlan Dodson, Jr.:

If the are —

Byron R. White:

— for practical reasons because of race —

K. Harlan Dodson, Jr.:

Yes, because of a racial note.

That is correct.

Now —

Earl Warren:

If the rule takes cognizance and the emotional strain on the pupil before the parent say anything about it and the one situation why doesn’t it take consideration of it in the other situation?

K. Harlan Dodson, Jr.:

Because we had not anticipated and we do not anticipate that in an area, where you have this deep-seated custom that has been there for so many years, that you are going to have the emotional impact which would affect the educational opportunities of the child or the educational advancement of the child, because of a desire to go to a school, where the races are mixed.

Now, if you do have it then the school board may consider it.

Earl Warren:

Then you are writing into your — into your rules the segregation policies of the people, are you not?

K. Harlan Dodson, Jr.:

Mr. Chief Justice, I do not feel that we are, I feel rather —

Earl Warren:

Well, you say that you are satisfied that they will never do that, therefore you didn’t put it in your rules but then you do that because you know that the people and you are the white people and your community are segregation-minded and you don’t make any provision for those who might not be segregation-minded.

K. Harlan Dodson, Jr.:

I think there is a difference between segregation-minded and what is the — what has been the custom that would have an effect upon children, Mr. Chief Justice.

Earl Warren:

Well, you just told me a moment ago though that the reason that more didn’t pay any attention to that was because they felt it just never would happen in that community that a person would want to do that thing.

K. Harlan Dodson, Jr.:

Well, we’ve — it’s been indicated that they don’t because so far we have had no request and this record would indicate no such request.

Earl Warren:

And you’re building that right into your — into your system, aren’t you?

K. Harlan Dodson, Jr.:

We are recognizing it.

Earl Warren:

So that if it does happen, is if someone does want to take that action some parent does, he’s prevented from doing it.

K. Harlan Dodson, Jr.:

But we say that under the plan he is not prevented from doing it but he must come in without — and not just have that and nothing more, he must then show to us.

Earl Warren:

In other words, the others can put it on the basis of race but he cannot?

K. Harlan Dodson, Jr.:

No, I’d say he can put it on the basis of race and the desire —

Arthur J. Goldberg:

(Inaudible)

K. Harlan Dodson, Jr.:

I will.

Arthur J. Goldberg:

(Inaudible)

K. Harlan Dodson, Jr.:

We are referring now to the Knoxville School Board and Mr. Fowler — that’s Mr. Fowler’s school board and I would asked that he’d be permitted to respond to that rather than me if it’s satisfactory with the justice because it does exempt the Goss case and not in the actual case, although they have been consolidated.

Potter Stewart:

The percentage of Negro and white population in your school board in Davidson County?

K. Harlan Dodson, Jr.:

In Davidson County, at the time this went into effect in 1960 (Voice Overlap) —

Potter Stewart:

This was a non-city part of the county, is it not?

K. Harlan Dodson, Jr.:

That’s what I’m talking about, non-city part of the county.

The county system had 44,415 white students, 2348 Negro students or a total of 46,763.

Potter Stewart:

44 to 2?

K. Harlan Dodson, Jr.:

44,000 to 2,000.

Now, the city system as of that time, with which we’ve been now of course consolidated had 17,372 white and 12,850 or 17 to 12.

K. Harlan Dodson, Jr.:

Now, as evidence we submit that this plan has not had the effect of continuing segregation is the fact that when the city plan went into effect, approximately 10% of those affected state in mix schools and 90% moved out.

The Government has cited in its brief the fact that in a five-year period that percentage has gone from 10% to 20% or has doubled in this five-year period.

Potter Stewart:

The people who did not move out?

K. Harlan Dodson, Jr.:

Who did not move out, that’s right.

Earl Warren:

In Davidson County, how many Negroes are in public schools, in the integrated schools now?

K. Harlan Dodson, Jr.:

As of now —

Earl Warren:

In — just Davidson County.

K. Harlan Dodson, Jr.:

Just Davidson County?

Earl Warren:

Where you have the 42.

K. Harlan Dodson, Jr.:

As of this school year, there are 115 — 185.

I’m sorry 110 last year, 185 started out with 51 now 185 in a two-year span or it’s molded correctly.

Earl Warren:

Now, that is Negroes in integrated schools?

K. Harlan Dodson, Jr.:

That’s Negroes in schools where there are students of both races, yes.

Byron R. White:

But no — I take it that some of them — is this choice is made every year or once you make your transfer —

K. Harlan Dodson, Jr.:

Choice maybe made each year.

Byron R. White:

And there are some of these 185 people and children who previously have chosen to go to other schools?

K. Harlan Dodson, Jr.:

That is correct, may it please the Court and if it there is a reason for that, you see there’s a reason for the fact that it was so small those remaining the first year in my opinion and that’s because we did this as of January 1 rather than at the beginning of the school year.

And I personally would not have permitted any child of mine to transfer and so many parents feel that way during a school year and it’s something that the schools have recognized because if you move out the zone during the school year they do not require you to move to another school.

Byron R. White:

(Voice Overlap) that if the people moved state in an integrated school doubled 10% to 20% but that entirely increase has made of Negroes, I suppose who chose to stay in integrated schools (Voice Overlap).

K. Harlan Dodson, Jr.:

Well, I think that would be an accurate statement but of course when there — when you have Negroes in a mixed —

Byron R. White:

What is the fact — are the white, are the whites who the 288 who transferred out are some of that — have some of those transferred back?

K. Harlan Dodson, Jr.:

No, may it please, but they haven’t.

Tom C. Clark:

Are those the test is actual or just booked —

K. Harlan Dodson, Jr.:

Are just —

Tom C. Clark:

Just paper?

Mr. Greenberg said something yesterday but it didn’t just paper transferred.

I didn’t understand just what it was.

K. Harlan Dodson, Jr.:

I think he’s talking about the actual means that we’re using, that were used originally for signing a pupil and then permitting the pupil to transfer.

We did do it by paper, that’s all a transfer ever is in the school system plus the physical fact of making you turn in your books here and go for this and take a seat and then being transferred back and coming back over here and getting the new set of school books.

Tom C. Clark:

The child is really transferred, actually transferred.

K. Harlan Dodson, Jr.:

Actually transferred only by paper, not actually physically transferred as I say we did not go through the useless task of those who were in school A and by virtue of the zoning were required to go school B.

But through their parents requested that they’d be permitted to stay in school A or transfer from B to A.

We did not require them to physically go from A to B and then back to A.

That is not here.

(Voice Overlap) That’s what he has referred to as a paper transfer.

Tom C. Clark:

Thank you, I didn’t understand.

K. Harlan Dodson, Jr.:

But the figures that I’m giving are people who actively, physically moved.

Tom C. Clark:

Yes.

K. Harlan Dodson, Jr.:

Now, I have not had the opportunity to, may it please the Court, to discuss the transitional phase of this plan.

We do feel on behalf of our school board that it’s transitional, we think that’s what the District Court found when he added to the decree that it was retained in Court.

We think it’s what the Circuit Court found because they rebut that but I am sure that that will be discussed by Mr. Fowler, representing the Knoxville School Board since it pertains to both.

Hugo L. Black:

Is there any difference between your plans?

K. Harlan Dodson, Jr.:

No def — no material deference.

I think their two words deference but they have material words.

Hugo L. Black:

Are we entitled to assume I believe in what you were saying that whatever that plan does — your plan does?

K. Harlan Dodson, Jr.:

That is correct.

Earl Warren:

Mr. Fowler.

S. Frank Fowler:

May it please the Court.

I’m not sure that the latter statute was correct, Mr. Justice Black.

The Knoxville plan has been interpreted by those who administered in Knoxville as according to members of the Negro majority.

Free transfers wherever they want to go or call.

I do not know whether Knoxville has indulged that liberality of treatment or not.

If that is clearly established by the Knoxville record on page 94, where Mr. — Doctor Burkhart has testified and also by the man who was actually in-charge of transfers, Mr. (Inaudible) at pages 117 and 118.

That does not go to the question which Mr. Justice Goldberg asked.

Namely, whether a member of the Negro majority could transfer in order to get into a desegregated school to which Dr. Burkhart replied that he didn’t think so that it had not been the administrative practice.

One must recall that these items of testimony appearing in this record were taken in 1960, which was early in the testing of the ability of the Knoxville system to receive this disregard of the color line which it is now become accustomed to.

I think that in the light of Mr. (Inaudible) testimony that it can be safely said that if no particular disturbance in the school to which such a Negro would be transferred is to be anticipated by reason of that, there is no reason why his request should not be granted, particularly if there is any metal — mental stress or unhappiness on the part of the child’s parents as being denied, desegregation in the school of his own.

Arthur J. Goldberg:

(Inaudible)

S. Frank Fowler:

Your Honor, if there has been one quietly conductive process of desegregation it has been Knoxville.

And we are rather proud of the fact that we have achieved very considerable progress without publicity.

S. Frank Fowler:

I will say this that wherever that there was any necessity of communicating particular notices to the public, the newspaper has been freely used and I don’t think there’s ever been any announcement of that but there have been tests of all kinds, attempt to probe into the system to see whether this could be done and that could be done.

But I know — don’t know yet of any attempt along that line.

Perhaps we’ll have one but as soon as we get home and I take that the test will be.

I mean on the question that the Court do not suggest that’s actual.

But I think the actual be as I’ve indicated that if there — upon a balancing of the desire or the need of these students for that transfer, I guess it had may affect the school to which he’s transferred.

The decision of the Board will be made.

It maybe already a desegregated school and no question at all.

The transfer grounds are granted and have been for years and years and years as a matter of convenience for reasons which perhaps comparatively trivial.

Employment of a parent closed by and I see no reason if there’s room in the transferee school, and if there are going to be no disturbance there why the request should not be granted.

Byron R. White:

Now we — have you had some instance as this?

S. Frank Fowler:

No.

Not to that I know of.

Byron R. White:

Well, what was the reason for the transfer of policy there?

S. Frank Fowler:

There has been no change of policy at all, so far as the officer is concerned who was conducting it.

Dr. Burkhart, Chairman of the Board, who has a (Inaudible) position and really he is not intimately familiar with what goes on in the office of the man charged with the transfer responsibility, was probably right when he testified in 1960.

That after that time the administrative policy had been to deny or would be to deny such request.

Byron R. White:

There weren’t any request then and there hasn’t been a suit.

S. Frank Fowler:

Right.

Byron R. White:

I take it that it is your opinion that now there were such a request and a disturbance was not anticipated —

S. Frank Fowler:

That’s right.

Byron R. White:

— that this would be a good cause under Rule 5 to a —

S. Frank Fowler:

It would be —

Byron R. White:

I don’t want to go to an integrated school that’s —

S. Frank Fowler:

I don’t think it need even be good cause, may it please the Court.

If there’s no particular reason for denying it, we’ll grant it.

Now, we’re not committed to a free system of transfer.

We do have the zones and we have to have zones because we have to limit the number of available — the number of potential pupils to the capacity of the school that serves that zone.

Byron R. White:

But I — the rules says that cause?

S. Frank Fowler:

That’s right.

Earl Warren:

Do you always have zones, Mr. Fowler?

S. Frank Fowler:

We have zones.

Earl Warren:

Before this problem became a problem?

S. Frank Fowler:

We had zones under the old two systems; a segregate system and of course they we’re overlapping and I think there was some confusion about that yesterday.

But under the system we’re talking about, of desegregation, we only have one system of zones.

And they’re contiguous and they cover the whole city and there may be a great area than a particular zone where there are no Negroes.

But nevertheless, it is zoned that way.

I mean his zone, regardless of race.

I don’t think there’s any occasion for harking back to the double zone system that existed under segregation.

We’re talking now about how we conduct ourselves under a desegregated —

Potter Stewart:

Your school board, Mr. Fowler, is coterminous with the City of Knoxville, the school district?

S. Frank Fowler:

That’s right.

Potter Stewart:

And that’s in East Tennessee?

Your state constitution, you have three ground divisions of the state?

S. Frank Fowler:

That’s right.

Potter Stewart:

You’re in East Tennessee, there are comparative West Tennessee there is much smaller proportion of the Negro race in your area, are there not?

S. Frank Fowler:

There are portions in the school that’s about 20% Negro to 80% white.

And we have no 60-40 zones for students.

Potter Stewart:

You have —

S. Frank Fowler:

We have no division that close.

Potter Stewart:

I see.

S. Frank Fowler:

The majority is always tremendously greater because apparently, there has been a greater clustering together —

Potter Stewart:

Because of their living on the areas?

S. Frank Fowler:

Are a residential or races put together.

Earl Warren:

How many Negroes are there in non-segregated schools now?

S. Frank Fowler:

There are 84 according to the information that I got before I came up here on this date.

Potter Stewart:

Out of a total of how many?

S. Frank Fowler:

About 42 or 300 somewhere in that.

Well, that sounds insignificantly, may it please the Court, but when you consider the residential concentration, this means that one-third of those who could stay, that is those in the minority groups, the Negroes in predominant white schools.

Those are the only ones who are desegregated at present, could have been only three times greater than that.

That is to say the Negro minorities in white schools, predominant white schools are managed about 250 students, a third haven’t stayed there, two-thirds rejected the opportunity or as it maybe put, waived their constitutional right to desegregation.

S. Frank Fowler:

Now —

William J. Brennan, Jr.:

Mr. Fowler may I ask what you told us about the current approach you think to Rule 5.

What possible service can Rule 6 know?

S. Frank Fowler:

The possible service is this, and this is something that’s a bond petitioner has been or even among counsel.

Rule 6 entitled school board to transfer on the fairer ground of race, regardless of the lack of unhappiness, prejudice, or disadvantage.

Now, the Court of Appeals said that the plan is valid, but may not be used to perpetuate desegregation.

Upon analysis, that might mean that you cannot grant transfers from the fairer ground of race.

Now, Knoxville with considerable additional administrative expense can accommodate itself.

I don’t think Memphis can or Nashville or Chattanooga can accommodate itself to striking out that ground.

And we can proceed on good cause which compels us to investigate each case individually.

I think which seems to be wholly impracticable elsewhere.

And that is the reason for the battle on the constitutionality of this provision in the transfer play.

William J. Brennan, Jr.:

That had been — then I gather no consideration at least to Knoxville with the leading rule?

S. Frank Fowler:

No consideration to what, Your Honor?

William J. Brennan, Jr.:

To the leading Rule 6.

S. Frank Fowler:

Yes.

William J. Brennan, Jr.:

There has been none?

S. Frank Fowler:

There has been consideration.

William J. Brennan, Jr.:

Oh, there has been?

S. Frank Fowler:

Yes.

William J. Brennan, Jr.:

And decided —

S. Frank Fowler:

We find it of — we find it of value as an administrative matter.

We would have to put on additional personnel.

It would complicate the handling of this problem.

And in that connection, I would like to proceed to a point that is relevant here.

And that is what was said in argument yesterday about the position of the Knoxville School Board, our position being represented as that even if this transfer ground is struck out of the plan and we’re going to do it anyhow.

Now, the brief filed on behalf of the school board in the City of Knoxville asserted that if the grounds are knocked out of this plan, that nevertheless Knoxville did not feel that it should blind itself to the educational disadvantages of any pupil in the public school.

And if it should find cases of pupils who are under pressure, under persecution or under handicapped by a reason even if it stems from racial origins or racial facts.

The school board felt that it would be its duty to transfer that child upon appropriate application when it appeared to be in the interest of the child’s education.

Now, this statement which comes from me that we intended to go ahead anyhow as if in violation of the Supreme Court’s holding or treatment of this plan indicates how far their application to the story of this plan goes.

S. Frank Fowler:

It goes to this point of compelling and coercing these minority pupils to stay in schools where they don’t belong, where they’re unhappy.

If they’re Negroes where they may be subjected to the customary epithets and names and if they’re white they may be called poor white trash and all that business, thereby, destroying that opportunity which is the duty of the school board to provide.

Now, we think that in the consideration of the constitutionality of this matter that the fact that you’re building into or engrafting into the school system a core of improperly treated pupils against the wish of the parents and the welfare, the pupils themselves is to create something which may lead to the ultimate collapse of the whole thing.

But one thing, there are economic consequences which may follow as exodus of whites by selling their residences and that has occurred.

And it’s a reasonable thing for a white person to do in our community and particularly in other communities of Tennessee.

The white people can transfer their children to private schools, so that one becomes aware of the fact that there are consequences going beyond the mere distribution of the case of a particular pupil.

And on top of that, the impact of this business is not going to be on the white minorities, because by reason of a little bit better affluence, they can avoid it.

The impact is going to be upon the Negro minorities, who can’t move at and can’t send their children to private schools.

So they will be the ones whose — who are in effect confined to places that they would rather be at out.

So, on that score we feel that such consideration is irrelevant on the part — on the point of consideration of constitutionality which to my mind being almost completely uninformed on the gradations and the new answers of these questions that have been put and pays back and forth largely consists not in determining whether this is a matter of state action entirely.

But whether do you get down to the wis — the point of is it a wise action?

Is it wise to leave an educational system with a sickness?

Is it wise to do these things which may appear to carry harm in the directions in which it’s not intended?

Byron R. White:

Well Mr. Fowler, excuse me please.

Assume for the moment the only thing wrong with Rule 6, the thing that it is wrong or that would be the only thing wrong except for this wrong?

But just assuming the only thing that’s wrong is that the person who wants to go to an integrated school that isn’t permitted to do so if unless he — when he is in his own zone and he’s in the majority.

Now, I take it that you say now that it would be a good enough reason to transfer if some Negro or a white was in the majority and in his own wants to transfer out solely for the reason to go to an integrated school.

I take it that you would now apply a Rule 5 to permit that transfer, if there were room and if there was not going to be a disturbance.

S. Frank Fowler:

That’s right.

Byron R. White:

Now if, if that was all that was wrong with the Rule 5, then what you are saying now is this beside the point, isn’t it?

S. Frank Fowler:

That’s not what was wrong with Rule 5.

Byron R. White:

And then Rule 6, excuse me.

S. Frank Fowler:

Now, we would Rule 6 —

Byron R. White:

So you’re arguing, you’re arguing that you should be able to permit people to the Negroes, for example to transfer out of schools where they don’t want to stay?

S. Frank Fowler:

Well, I don’t think we’ll have any trouble with such applicants in Knoxville if in the judgment of the Board there were going to be no disturbances at classroom atmosphere, no tenseness created —

Byron R. White:

Well —

S. Frank Fowler:

Now that means it is for our disposition in the light of Rule 6 where we can rely too.

Earl Warren:

Excuse me — what do you mean by disturbance?

S. Frank Fowler:

Well, Your Honor, I can picture a Negro child being transferred into a residential section in Knoxville where perhaps his presence would be more unwelcome as being totally unexpected and that being a sought actor presence on his part.

Earl Warren:

Being what?

S. Frank Fowler:

A sought actor.

He’s seeking to put himself into a group where the group really feels he doesn’t belong.

He has no reasons for being there.

He lived way over similar else in town.

Now, I wouldn’t be surprised of what a disturbance there.

It might consist of physical abuse, fights, his presence in the school room would tend to disrupt things because he might be — a paper was thrown at him or being stuck in him or something like that and then the same thing might’ve well occur a white child who seeks out from his permitted attendance to the Negro school.

Arthur J. Goldberg:

(Inaudible)

S. Frank Fowler:

You mean on — sure, surely, surely.

Earl Warren:

Between white boys to each other, Negro boys to each other but it can get infinitely worse if you let a race to a consideration get into it, Your Honor.

To account is certainly if the school board encourages the segregation idea.

S. Frank Fowler:

There has been no segregation — encouragement of the segregation idea by this Board, Your Honor.

This board is exercising all the wisdom it possesses to let this plan progress according to the most reasonable and assured course of retaining these good educational facilities conducted in the right atmosphere in this town of ours.

Now, that can be grievously disturbed by two eager, a breaking down of these things and that’s an aspect of this plan as a transition matter as an expedient during the period of transition and it is a transition matter because it’s set forth in a transition plan maybe — namely the desegregation plan itself, the step plan of 12 grades.

This plan operates as does the step plan to limit the volume of the desegregation each year of the 250 Negro minority pupils who could now be in a desegregated system only about 84 of that.

The same restricting influence on a number of pupils who disintegrate or desegregate is applied by the step plan itself.

Potter Stewart:

What limits the number to 250?

First, if they’re in the first four grades?

S. Frank Fowler:

That — 250 is an approximation.

Potter Stewart:

You all have approxi —

S. Frank Fowler:

These are original set of figures —

Potter Stewart:

Alright.

S. Frank Fowler:

Beginning over 88 Negro pupils in the first grade in minority situations —

Potter Stewart:

Yes.

S. Frank Fowler:

— who could stay in segregation.

Of those 28 or approximately one third stayed there.

Now we have 84 as to progressive four grades damage two grade a year plan now —

Potter Stewart:

Yes, under the action of the Court of Appeals.

S. Frank Fowler:

That’s right.

Now, we have 84 actually there as to applying a ratio of 3:1, I’ve figured that you have 250 or so.

Potter Stewart:

Yes.

Potter Stewart:

But using that as an approximate figure, what limits the potential number to 250?

Children — school children in the first four grades —

S. Frank Fowler:

The thing that limits —

Potter Stewart:

— who are in the zones is that it?

S. Frank Fowler:

The zones?

The Negroes chose their residences.

There is a school house, here a reasonable line drawn around it fitting the capacity of the school.

Potter Stewart:

So the maximum potential 250 is limited by the age of the school children up to the fourth grade only in the zones, is that it?

S. Frank Fowler:

In the part where they live.

Potter Stewart:

What’s the population in Knoxville?

S. Frank Fowler:

Well, the city —

Potter Stewart:

More or less.

S. Frank Fowler:

— that we’ve started with before we are next doing the progress of this child is about a 130,000, I guess.

Potter Stewart:

How far away is Clinton?

S. Frank Fowler:

18 miles.

Arthur J. Goldberg:

Mr. Fowler, am I correct that you agree with page 6 that unfortunately says (Inaudible)?

S. Frank Fowler:

Yes.

Arthur J. Goldberg:

(Inaudible)

S. Frank Fowler:

That’s correct.

Now, may it please the Court, it has given me considerable alarm since I agreed that my brother lawyers from the other cities for that feeling on our part that that might prejudice their situations, and so I must be very careful to point out that in different cities, different results must follow that no general rule can be pronounced here in my mind that can be generally applicable.

Arthur J. Goldberg:

You said that — you —

S. Frank Fowler:

I said it, yes.

Arthur J. Goldberg:

(Inaudible)

S. Frank Fowler:

That’s right.

Arthur J. Goldberg:

(Inaudible)

S. Frank Fowler:

That’s right, Your Honor.

But let me add this comment upon that statement there, and I have to say that I didn’t stop thinking when I completed the brief is this.

That this is being tried completely and virtually completely without a reference and one reason it is being less tried one reason why he left out of this record here is a considerable portion of the testimony which sustain the adoption of the step of the one grade a year plan.

That is we sustain a reasonableness of slowing down the process of desegregation is that the petition for writ of certiorari in this case raise only the point of constitutionality.

There was no denial of proof of the existence of adequate proof to sustain a reasonable slowing down of the transition to desegregation as had been suggested by the Supreme Court as wise measures in the places where it was violated tradition and so on.

S. Frank Fowler:

And consequently, the Knoxville Board did act as a transition matter in adopting this whole plan which is composed of various consistently fitting together pieces including the step bar — the grade by year plan coupled with the transfer plan all of them operating these limitations, adopted after deliberation as reasonable procedures to assure the undisturbed and efficient and effective success of the compliance to the Supreme Court’s order.

So we’ve ended up here without our own record, the Nashville situation ends up without the record that’s really pertinent in this case because there’s not one syllable here from the record in the Nashville case, the Kelley case, this is all Davidson County case and this apparently population figured, they’re completely different.

Arthur J. Goldberg:

(Inaudible)

S. Frank Fowler:

Well, that’s the opinion, Your Honor.

Arthur J. Goldberg:

(Inaudible)

S. Frank Fowler:

Well, I say this Your Honor that I think the considered conclusion should be that the termination of this plan in Knoxville should await a full detail study and decision by the school board, and a full trial at the local level in the local schools.

Now frankly, I’ve been accused of being too candid here in formulating the answer that was put in and also in writing this little brief.

But when this petition came up and the question was represented, I advice the client at home it would be far wiser for you to make this case moot and add to your payroll and encounter some administrative burdens and so on to then subject yourself to the peril of the Supreme Court specifying local rules of operation.

Though the Supreme Court is somewhat remote from our home and we think that maybe within from local experience might be helpful in determinations of what this — what should be done there.

And as a — rather as a legal matter in response to that suggestion on my part instead of as a conclusion of their own, coming as to a factual in investigation of the facts if this brief was formulated in — at the outset, as a matter of fact, it might be true.

I wasn’t thinking about the constitutional validity of this plan at that State to begin, but it may well be true that the racial ground alone without any particular prejudice but the naked ground of race is an adequate ground for transfer on the theory that it — a good thing to have in the balancing of interest and the encouragement of individual thinking even if it amounts to individual discrimination.

This denial of the right to choose companions may create a handicap to the development of the Negro race itself.

Potter Stewart:

Yes, but are you suggesting that it’s a good thing for the Government to encourage this?

To encourage race prejudice?

I don’t suggest to encourage race prejudice.

S. Frank Fowler:

No, not at all.

What I’m suggesting is it’s the good thing of the Government to encourage individual thinking and individual choices that includes —

Potter Stewart:

Individual choices?

Yes in —

S. Frank Fowler:

That’s right.

But here that isn’t —

Potter Stewart:

We thought but not — individual choice is quite a different thing from race prejudice or any other kind of prejudice against a class or group.

S. Frank Fowler:

What I’m trying to say is out of this case, it shouldn’t arise any rules which penalizes the right of the individual to make his own decision, to do his own choosing of things on some theory that it becomes state action at some point.

Hugo L. Black:

Mr. Fowler, you say some of them could (Inaudible) for your frankness, I think you commended for, I say in advance to the question that we’ll ask you because of your frankness that I want to ask if you don’t object in answering the question.

You referred to the transition theory.

I assume that you mean by that that you recognize that by decisions it means that the normal thing thereafter can be achieved within what you call reasonable deliberate speed.

The normal thing would be to have no, nothing but integration?

S. Frank Fowler:

After a reasonable time.

Hugo L. Black:

Now, you say transition period in your judgment if you have any, I understand that you get, I understand that Knoxville is different from Memphis, Memphis is different from Nashville.

Both of them are different venue, yes, but in your judgment, what is — it appeared within which you may reasonably look forward, if you don’t mind giving it for having the problem settled.

S. Frank Fowler:

Your, Your Honor —

Hugo L. Black:

In your city.

S. Frank Fowler:

Your Honor that’s pure speculation in the world.

Now, the question that we’ve talked about, what is the period of transition?

And for the first time I heard the phrase affirmative mixing or integrations, social acceptance and everything else.

When that comes about, certainly, we are through with the theory of transition.

It may be that the 12-year period or now a seven-year period of the completed of — getting through all the grades in the Knoxville public school will complete the period of transition.

And in one sense it’s an awful long time to await complete integration.

Your Honor, the answer is that you can get us in a plan like this and throw it away when you don’t need it anymore, when you got to — it’s a sense of security that the people are going to be reconciled to each in the classroom.

That you’re going to be a free interplay of whites and blacks without the difference and color making any particular difference.

And I think we’re making great strides towards that.

We’ve shattered a color line that used to be a complete block.

And in other respects transportation and all activities in town, the Negroes are progressing, restaurants are open, the coliseum that’s recently built is open to them, parks, playgrounds and so on.

And considerable progress is being made and we’re trying to do the best we can to help but there is a far underlying that community has proven in the Clinton case which burned out federal district judge down there and he’s on ease as exhibited in his opinion.

Potter Stewart:

Taylor?

S. Frank Fowler:

Judge Taylor.

Potter Stewart:

Judge Taylor.

Did he — was it the same district judge in both this case?

S. Frank Fowler:

Yes.

Potter Stewart:

Before —

S. Frank Fowler:

In Clinton Case and he wasn’t shocked —

Potter Stewart:

I’m talking about the Davidson County case.

S. Frank Fowler:

The Knox County, is it not?

Potter Stewart:

Well who was the district judge in the Davidson case?

S. Frank Fowler:

Mr. —

Potter Stewart:

Miller?

S. Frank Fowler:

Judge Miller, Deputy Miller.

Potter Stewart:

Miller?

William Miller?

S. Frank Fowler:

William Miller, right.

Hugo L. Black:

I have one more question to follow that.

You may have detected from the question I ask about the answers at pages 95 and 219.

I believe that was from your officials.

S. Frank Fowler:

Well, that 95 was — 219 was from Nashville.

Hugo L. Black:

Well, it indicated that answer at least it could be read into it without looking at it that it was setup and certainly as ineher — inherent to retard the ending of the transition period as though it would be permissible to be done.

That question — that answer bothered me a little bit.

S. Frank Fowler:

Well, Dr. Burkhart is the drawn witness and he was in the hands of a very capable attorney.

Now, that’s the reason for whatever cast there is upon those questions and answers because I say the doctor is a doctor and he is not a witness, he’s not a professional school board member.

Hugo L. Black:

Well, he answered that segregation is perpetuated thereby.

Now, as I understand from you, your argument is based on the fact that the Board doesn’t want to perpetuate it; that it is engaging on a program within its judgment if the transition purposes only to recognize that they are required as a — members of an orderly government?

S. Frank Fowler:

I’d say that —

Hugo L. Black:

— that goes on and proceeds?

S. Frank Fowler:

That describes the Board but I’d also say that the board thinks this, that if this plan is constitutional they strongly prefer it, this transfer plan which gives a choice to the parents to withdraw from — to the racial majority.

Earl Warren:

Mr. Petree.

Jack Petree:

Mr. Chief Justice, may it please the Court.

First, I would like to state to the Court my gratitude for the privilege of participating in this argument.

I’m also grateful to my brothers on my right who have yielded to me a few minutes of their precious time.

If the Court please, I would say that there are as many differences in the day-to-day operation of school systems as there are school systems.

A great deal of time and discussion has been devoted yesterday afternoon and this morning to that Negro majority who is denied the right granted to the Negro minority to transfer.

This case is important to Memphis because in our school system, approximately 50% of some 47 different units of our school’s grades one through nine or what we termed open schools and a person can transfer to an open school regardless of reason.

There is no need for reason.

Now, it is true that operating under our plan that transfer will be granted to a Negro student only if he is in one of the grades covered by the plan.

I should hasten to point out, however, that under the Memphis plan, which is an appendix in the brief, the Board will grant a transfer and intends to grant transfers in the future where there is a reasonable educational need to a Negro child even though that child’s grade is not covered by the plan.

Arthur J. Goldberg:

What grade are covered?

Jack Petree:

Well, we will start the fourth grade in September, Your Honor.

William J. Brennan, Jr.:

Did you say that would be with 47 units?

Jack Petree:

47, we have 96 school units one through nine, Justice Brennan, 47 of those units are open schools.

William J. Brennan, Jr.:

A unit —

Jack Petree:

I should —

William J. Brennan, Jr.:

— is a school, I gather?

Jack Petree:

I beg your pardon sir.

William J. Brennan, Jr.:

A unit is a school.

Jack Petree:

School, yes, sir.

William J. Brennan, Jr.:

Okay.

Jack Petree:

Now, of those open schools, they are the schools which have been desegregated because those are the schools that Negro children made application, they were predominantly — they opened schools or either — maybe either white or Negro, they are about evenly divided between white and Negro schools.

But it was these open schools that were desegregated when we were trying to operate under our pupil assignment Law.

We have only filed, this Court denied certiorari in our pupil assignment case in June 28, 1962.

We attempted to file this plan to have it in operation by September of 1962, however, we only got it prepared and filed in August of 31st, so we have not operated really successfully under a plan of desegregation.

We have desegregated by permitting Negro students who wanted to attend a desegregated school to apply and receive transfers to the so-called open schools.

Hugo L. Black:

What has been the result in figures?

Jack Petree:

6 — I believe it’s 63 students approximately, Your Honor.

Hugo L. Black:

Out of what?

Jack Petree:

We have 106,000 students, approximately in grades one through six today 52.25 of those students are Negro students that would mean some 60,000 of them perhaps were Negroes, 55,000.

The remaining 55,000 are white students.

Hugo L. Black:

And how is that number?

Jack Petree:

Some approximately 63, if the Court please.

Now, may —

Hugo L. Black:

That’s for six grades, wasn’t it?

Jack Petree:

I beg your pardon, sir?

Hugo L. Black:

That’s for the six grades?

Jack Petree:

That’s correct, sir.

Hugo L. Black:

There are open schools on the three grades, aren’t there?

Jack Petree:

That’s correct, sir.

Hugo L. Black:

(Inaudible)

Jack Petree:

Yes, sir.

Now let me —

Earl Warren:

How many schools are not open?

Jack Petree:

40 — roughly 49 schools are not open school.

Earl Warren:

And how many of those are Negroes and how many are white schools?

Jack Petree:

I would say that the — again they are approximately evenly balanced.

Jack Petree:

It depends — a closed school is closed, if the Court please, based upon facilities that can take care of the needs of a neighborhood.

They are not closed for any other reason, that’s the only reason that we would close a school.

So that if the school has more than ample facilities can take care of more students, it is declared to be an open school and other children may transfer into it without reason.

Earl Warren:

The school is a closed school and the Negro child lived across the street from it, he couldn’t go to that school?

Jack Petree:

If you were in the plan, he would have to go to that school, may it please the Court.

Earl Warren:

I beg your pardon.

No, if he was beyond the third grade now, he could not go to that school?

Jack Petree:

That’s likely, I will say generally speaking, no.

But again, that’s a matter of logic, if the Court please.

If a Negro child petitioned to go to the school that he lives directly across the street from.

I doubt seriously that my board, even though he was not in the plan would deny that application.

Earl Warren:

But the plan provides — I mean with the rules provide for it, do they not?

That he shall not go there?

Jack Petree:

The plan of desegregation of that child it is true, if the Court please.

That child is not covered by the plan of desegregation and he would have no — it would be a matter of discretion with the Board whether he would let — whether he would let that child go to that school.

Hugo L. Black:

You mean you’re trying it on a grade by grade basis?

Jack Petree:

Yes, Your Honor, we are.

Hugo L. Black:

And you left with the third.

Jack Petree:

Yes, sir.

Hugo L. Black:

One every year?

Jack Petree:

That’s correct, Your Honor.

Now, we took in two grades this, this year, the first year of operation of our plan tentative.

William O. Douglas:

He started at the first grade (Inaudible)

Jack Petree:

First grade, sir.

Yes, sir.

If the Court please, I would like to take the time that remains to me to try to put this case on a little different perspective from that which we have been devoting most of the discussion.

Mr. Fowler touched on it very briefly.

The state action has created a problem.

It has assigned a child, who is in the minority to a given school.

Now, there’s no question that the problem exist with respect to that minority child.

Jack Petree:

The petitioners acknowledged the existence of the problem in some instances.

In some instances there is no problem but we are only concerned with those problem cases.

The Solicitor General recognizes that a problem exists and they offer a certain solutions for the problem.

I there — I suggest that the solutions which they offer do not meet the problem.

They would have you believe that this is a plan which is solely designed to retard the desegregation of the school system.

That it will retard it by permitting the white minority child to escape from the Negro school.

I respectfully suggest, if the Court please, that the direct converse is true.

Let us assume the situation where we have no provision such as this.

And let us assume that a white parent is assigned or a white student is assigned as a minority in a predominantly Negro school.

The parent goes to the school board and asked for a transfer, and now he is not sophisticated enough to give us the magic word, he says, “I want to transfer because of race.”

We say, “No, you’ve given us that reason, we can’t grant the transfer.”

It then becomes a race between the truant officer and the real estate agent.

I suggest to the Court that the most casual glimpse of most urban communities reflects that those white parents, who are economically affluent, will simply move to the suburban areas.

So the Board of Education has no real problem with a white parent, with a white minority.

They simply flee to suburbia and there we are.

The Board is not going to be bothered with this white minority child.

Where the difficulty is going to come is in this less economically affluent group.

In most instances, the Negro child, who is caught in an educational environment that his parents recognize was — is not best suited for him.

So this parent comes to the school board and says, “I want to transfer,” and that parent is not sophisticated either.

It doesn’t know the magic words, it says race.

And we are caught, we can’t do it.

I suggest to the Court that it’s this group; it’s the economic unaffluent group who are going to be punished by the absence of this provision.

It’s this group that perhaps the people on this side of the table should represent more than I.

But it’s this group who are going to be hurt by a provision or the absence of such a provision.

I suggest to the Court that these minorities, the Negro or the poor white minority are going to be made to swallow their constitutional right.

That’s — it’s going to be pushed down their throat by state action.

State action first created this problem — excuse me, if the Court please, it seems my time is up.

I’m grateful —

Earl Warren:

Finish your statement that you’re —

Jack Petree:

Alright.

Earl Warren:

What you were just saying now Mr. —

Jack Petree:

I say that, if the Court please, the removal of this provision is going to compel this economically less fortunate neighborhood — children to swallow their constitutional rights.

The economically affluent, they’re not going to be concerned, they simply move to a neighborhood where the school is predominantly white.So they have no problem.

It’s these children, the less economically affluent which will be compelled to accept their constitutional rights.

Potter Stewart:

This is solely — It’s based on the assumption that there’s something inherently wrong and evil about the– about the integrated schools.

Jack Petree:

There is nothing wrong — no, sir, Your Honor.

Potter Stewart:

Are they very bad for children?

Jack Petree:

No, sir.

There is nothing whatsoever wrong with an integrated school.

Let me say this, if the Court please.

There are children who may be emotionally involved as a result of being in the minority.

There may be children who will have an educational problem by being cast as a minority.

Now, shall we create this problem?

Shall we have this emotional attack?

And then after the harm has been done then grant the transfer?

Shall we create the educational problem?

Now, education in a parent-child relationship is an intimate one.

I think a Negro parent has the same ability to say before this harm comes that I don’t want my child there yet.

That a Board of Education has to say after the harm comes, you may avoid the situation.

I think that you are trying to balance two substantial constitutional problems.

Is this state action?

Is this state action that discriminates against one because of race or is this state action which is in aid of minority races?

I suggest that even if it be the — if it’s discrimination which is unconstitutional, this Court should balance that discrimination against, against the freedom of a parent.

And these parents that I’ve talked about to choose in the first place, the school which they want their child to go to.

Much of this choice is not going to be based on discriminatory reasons.

It’s going to be based on pure educational reasons that that parent feels.

Thank you, if the Court please.

Earl Warren:

Mr. Goldberg — Mr. Greenberg rather.

Jack Greenberg:

May it please the Court.

In these few minutes, I would like to address myself to a question by Mr. Justice Stewart concerning our view of the scope of the Brown decision.

Jack Greenberg:

In our view, the Brown decision means that there shall be no racial distinctions whatsoever in a school system.

The right of the child is the right to attend a system without race in assignment, transfer, employment of personnel and so forth, a system free of race.

Now, this is an issue —

Potter Stewart:

What if this is based on the voluntary wishes of the students.

Let’s say at the lunch room at lunch time that there might be some level of students of the — who are Negroes there, who don’t want to eat lunch with the white students who — is the school compelled by the Constitution to make them, to make them intermixed?

Jack Greenberg:

No, no, Mr. Justice Stewart.

The — the school is — the school system is merely compelled not to impose any racial distinction.

Now, if in the unique case of Baltimore for example, which other systems for obvious reasons find difficult to adopt, where people go to school completely as a matter of their own choice, that’s one thing but everywhere else where there are standards for attending school and assigning the teachers and so forth, this must be done without regard to race.

Now, this has been a subject of a great deal of litigation in the Courts of Appeals in pupil assignment cases.

Pupil assignment cases arise out of children being assigned to school on the basis of race and then given an opportunity to transfer presumably without regard to race.

After a great deal of litigation, the Courts of Appeals are all in unanimous agreement, the Fourth, Fifth, Sixth, and Eighth Circuits, appear to agree that the right of the child is the right to attend a system without regard to race and therefore as in the Holland Case in Florida in the Fifth Circuit, a Negro child who lives close to a Negro school which if it were to be desegregated, the system were to be desegregated would still be a school entirely composed of Negro students.

And would be the school he would attend because it’s near him, has a right to bring a suit to desegregate the system because his right is not to attend a particular structure or to be in company with any particular students but to go to school in a system that has no racial considerations or distinctions attached to any of the various phases of its operation.

And I could cite the cases in our — in our brief but —

Potter Stewart:

But your board isn’t or is it in your view constitutionally compelled to gerrymander its — its — its school system in order to assure integrated school?

Jack Greenberg:

No, that is not what we’re urging and that is not our view.

Our view is that in no racial distinctions in the system and as I say it has come up in pupil assignment cases which you are sort of the adverse of this, but all of the Circuits in the cases of the Wheeler and Jeffer’s case in the Fourth Circuit, most recently an unreported case in the Fifth, Potts versus Flax.

In the Sixth Circuit, the North Worth’s case and in the Eighth Circuit the Little Rock in Delaware School cases, all unanimously agree with this view.

And consequently a transfer system which had a racial standard as a part of it is a violation of that teaching of Brown.

Now, there was — I perhaps didn’t make myself clear yesterday, though I think our view on the right of the individual child who may be disturbed but whose education may be affected by attending a particular school.

The question that Mr. Justice Brennan among others ask, I believe, our view on that is clearly expressed in our reply brief, where we discussed that situation.

And our view on that is that no child should be permitted to transfer because of a racial desire, because of a desire not to go to school with members of another race.

The school board cannot recognize that under a matter of practice or under explicit terms of the plan.

And — but however, if a child had clinical problems or educational problems because of such a situation we would be punitive about it and insist that that particular disturbed child must stay in that situation, whether it’s good for him or not, that of course is not this case.

We don’t face that problem here at this time but in recognizing that such exceptional circumstances might be proper grounds for a transfer, we respectfully submit that such a rule if it were to be discussed in opinion, should not open the door to evasion with such a rule possibly might do.

Because as — as the Knoxville — Knoxville brief has indicated and his argument here today has indicated, it is quite easy as a matter of course to merely assume that this situation exists.

And to freely allow transfers on what purports to be an individual clinical evaluation than what is merely a racial standard.

And we would submit that all other reasonable avenues of exhausting the situation of solving the problem, first, should be exhausted.

And that the burden of proof in such a case should be a heavy one, but nevertheless, certainly in the last analysis no one would insist that a child be compelled to attend the school if it were to be quite clear detriment of his education.