Goss v. Board of Education of Knoxville, Tennessee

PETITIONER:Goss
RESPONDENT:Board of Education of Knoxville, Tennessee
LOCATION:Bay County Circuit Court

DOCKET NO.: 217
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 373 US 683 (1963)
ARGUED: Mar 20, 1963 / Mar 21, 1963
DECIDED: Jun 03, 1963

Facts of the case

Question

  • Oral Argument – March 21, 1963
  • Audio Transcription for Oral Argument – March 21, 1963 in 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

    Earl Warren:

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

    Mr. Greenberg.

    Jack Greenberg:

    May it please the Court.

    These are two school segregation cases, consolidated for argument before this Court arising in Knoxville and Davidson County, Tennessee.

    Davidson County is the suburban county surrounding the City of Nashville.

    Both of these cases were tried and decided separately in the District Court and in the Court of Appeals, but they both present common questions of law and fact and are consolidated here for argument.

    The Knoxville case was filed on December 1959 and involved at the outset a grade a year, 12-year desegregation plan approved by the District Court.

    The Sixth Circuit Court of Appeals held that a 12-year plan was not fast enough and reversed on this aspect of the case.

    Their characterization of the Board’s plan appears on page 161 of the record in their opinion.

    And I’d like to quote a sentence briefly.

    The evidence does not indicate that the Board is confronted with the type of administrative problems contemplated by the Supreme Court in the Second Brown decision.

    And further down on that page, the position of the Board that it would continue to operate under these unenforceable laws until compelled by law to do otherwise does not commend itself to the court for the acceptance of a plan that provides for a minimum degree of desegregation.

    So I as stated, it disapproved the 12-year aspect of the plan but it — and it also in a separate opinion later decided, disapproved the plan of the Board with regard to vocational school.

    And neither of those two aspects of the case are involved in this petition.

    However, the Court did uphold a racial transfer plan which was part of this desegregation plan and I will describe this plan in a moment because it is identical to the racial transfer plan that appears in the Davidson County case.

    The Davidson County case was filed in September 1960 and it too involved a grade a year plan.

    The District Court held that this was not fast enough under the standards set down by this Court in the Second Brown decision.

    And it required the respondents to desegregate four grades in January of 1961 and file by September of 1961.

    In other words, to catch up with the City of Nashville with which it was contiguous.

    The District Court refused to allow the named individual plaintiffs not covered by the grades of the plan to receive a nonsegregated education.

    Now, the racial transfer aspect and the right of the individual plaintiffs both were taken to the Court of Appeals.

    The Court of Appeals upheld the racial transfer aspect and also upheld the refusal to allow the individual petitioners to obtain a desegregated education and grades other than those covered by the plan.

    John M. Harlan II:

    The (Inaudible) question isn’t here?

    Jack Greenberg:

    No, I was just about to say.

    We brought the racial transfer aspect of both cases and the right of the individual plaintiffs here.

    And this Court granted certiorari only with regard to the common question of both cases and that is the racial transfer aspect of the plan.

    Both cases involved racial transfer provisions which are almost entirely identical in language.

    First — and they both appear on page 4 of our brief.

    First, both school systems adopted a general transfer provision such as you might find in any school system in such as they had previously had.

    That appears on page 4 of the brief in the footnote saying that transfers would be allowed when good cause therefore is shown in Knoxville and Davidson County also using the words when good cause therefore is shown.

    Jack Greenberg:

    In addition to that, both plans provided that under certain circumstances which depended upon race, the right to transfer would be automatic and those circumstances are as follows: a. When a white student would otherwise be required to attend a school previously serving colored students only, b. When a colored student would otherwise be required to attend a school previously serving white students only, c. When a student would otherwise be required to attend to school where the majority of students of that school or in his or her grade are of a different race.

    Potter Stewart:

    You mean that Mr. Greenberg — you’re saying that the transfer will — you mean, was automatically be provided?

    Jack Greenberg:

    Yes, I was just about to come on page 105 in the record.

    That is elucidated by one of the respondent in the Knoxville case.

    The question “Under, your plan, this provision of Paragraph 6 a, b and c will constitute automatic basis for transfer.

    All that a student has to show is that he meets these conditions and then he will be automatically entitled the transfer, administratively more or less?”

    Answer: “If he requests it?”

    Question: “Yes.”

    Answer: “If he requests it.”

    That’s Knoxville.

    Now, in Davidson County on pages 219 and 220 of the record, we have the same thing.

    Question by Mr. Williams.

    John M. Harlan II:

    What page is this?

    Jack Greenberg:

    219 and 220.

    “That under this provision in Paragraph 5 of the plan setting for these racial conditions based on a minority race transfer, the effect of it is to permit a child to choose segregation outside of his zone but not to choose integration outside of his zone.

    That is true, isn’t it?”

    Answer: “The child and his parents can choose, yes.”

    Further down on the page, Mr. Williams makes a statement, the accuracy of which is confirmed by the witness.

    “It’s substantially identical to the city provision, if Your Honor please, but it was not brought to this Court’s attention at the time that the city provision was approved, exactly how the city provision operates as Mr. Moss had described.

    It has been operated so that instead of going to the school in his zone and there seeking a transfer, no white child in the city has ever seen one of the allegedly integrated schools to which he was assigned.

    No Negro child who didn’t affirmatively seek a transfer to an integrated school has ever seen the integrated school to which the National Board led this Court to believe he was assigned.”

    So that presents a little different, a little more than was before the Court in that case.

    And then he asked the witness, “And that is true, what I have stated, isn’t it, Mr. Moss?

    That is the way the plan operates in the city and that’s the way you intend to operate it?”

    Answer: “That is correct.”

    Potter Stewart:

    The City of Nashville plan is — it was something as a third plan or at least the third case?

    Jack Greenberg:

    That’s not involved in this case except that both of these respondents adopted that plan.

    Potter Stewart:

    And say that that’s — they’re going to operate it (Voice Overlap).

    Jack Greenberg:

    Right, that’s quite clear.

    And later in the record there is testimony by the Superintendent of Nashville further describing this plan.

    Potter Stewart:

    Davidson County is the area around Nashville, isn’t it?

    Jack Greenberg:

    Yes, the suburban county surrounding Nashville.

    Potter Stewart:

    Suburban area around Nashville.

    Jack Greenberg:

    Yes.

    Potter Stewart:

    And do I understand that the transfer provisions found in the footnotes — well, found in the footnotes, Footnote 2 on page 4 of your brief, are an addition to these — this other — this other (Voice Overlap) —

    Jack Greenberg:

    Yes.

    Yes, they’re the general transfer provision and the specific racial transfer provision.

    Potter Stewart:

    Are you attacking those that appear in — on Footnote 2?

    Jack Greenberg:

    No, we’re not attacking —

    Potter Stewart:

    You’re not.

    Jack Greenberg:

    — the general transfer provision, no.

    Now, the Nashville experience upon which both of these Boards based their plans is described on page 226 of the record by a Professor in Vanderbilt University who made a study of how the plan operated actually and this is without any contradiction.

    And he testifies, the Nashville experience would indicate mass transfer, mass paper transfers of whites back into what is historically the white school, of Negroes remaining in what is historically the Negro school.

    I would say that the transfer provisions tend in my opinion, tend to keep the system oriented toward a segregated system with token desegregation.

    This would be the major thrust.

    Officials of the Knoxville Board testified that in adopting this plan, it was their expectation that it would perpetuate segregation on 104.

    This — in a question: “This inequality of operation that I suggested with respect to the operation of Paragraph 6 a, b, c of this plan does tend to perpetuate segregation, does it not, sir?”

    And this — what the Board member testifies, “Well, I suppose I would have to answer, yes, segregation is perpetuated thereby.”

    And on 108, another Board member testifies to precisely the same effect.

    Now, in the Davidson County case where there is evidence of experience of the operation of the plan, Mr. Garrett, who’s the Director of Child Welfare and Attendance testifies on — I believe it was page 265 of the record.

    And a little earlier, that has to be read in conjunction with something earlier.

    Now, how many children — on 256, the question is put as to how many children were illegible for transfer?

    And the answer is that 693, that is 405 Negro children and 288 white children.

    And the evidence is quite clear that only 51 of the Negro children attended the white schools and none of the white children attended the Negro schools.

    Now, that evidence as to the white children does not appear in the printed record but is on page 52 of the transcript of the record, that particular portion was not printed in this Court.

    John M. Harlan II:

    Do you say that the statute say that (Inaudible)

    Jack Greenberg:

    This transfer provision?

    Yes, we do but we also are aware of the fact that the court might see —

    John M. Harlan II:

    (Inaudible)

    Jack Greenberg:

    The Court of Appeals said it was not bad on its face.

    Jack Greenberg:

    The — that’s the Sixth Circuit, it relied on the Kelley case, the Nashville case which had previously approved this plan.

    On the other hand, as I was about to argue, the Fifth and the Fourth Circuits have held that it is bad on its face and the Sixth Circuit as I’ve stated relied on the Kelley case.

    Now, the Fifth Circuit —

    John M. Harlan II:

    (Inaudible)

    Jack Greenberg:

    That’s correct.

    You can have two children similarly situated, they might be neighbors, they both be attending the same school.

    John M. Harlan II:

    (Inaudible)

    Jack Greenberg:

    Well, that’s one.

    We attack this on three separate grounds.

    On that ground — on the ground that this is state enforcement, school board enforcement of the private prejudice of an individual person, and on the ground that it tend to perpetuate segregation within the system but we attacked it in three different way.

    Potter Stewart:

    I suppose — maybe you’ve pointed this out in your errata that the last word under Subsection c on page 4 of your brief should be race in —

    Jack Greenberg:

    Yes, (Voice Overlap) instead of rate, that was a misprint.

    Potter Stewart:

    When you talk about the white schools and Negro schools, this is shorthand for talking about schools which should be — which formally were all white or formally were all Negro, is that it?

    Jack Greenberg:

    Well, school — you see, both of these school systems had had two sets of school zones, school zones for Negro schools and school zones for white schools.

    Potter Stewart:

    Yes.

    Jack Greenberg:

    And I’m referring to it in that way.

    Now, when the zones are coalesced as they are in a stair-step basis.

    The transfer plan contemplates — refers to schools previously for whites only and previously for Negros only.

    And that is just the way of saying Negro and white schools.

    Potter Stewart:

    And that’s what you mean when you say Negro school or white school as you said in your argument?

    Jack Greenberg:

    Yes.

    Yes, Your Honor.

    Potter Stewart:

    I don’t quite understand the two sets of school zones.

    Does this mean they were overlapping?

    Jack Greenberg:

    Yes.

    Well, that’s quite commonly–

    Potter Stewart:

    In the same block?

    Jack Greenberg:

    Oh, yes.

    You could have schools —

    Potter Stewart:

    Assuming a mixed neighborhood on the same block, you — you probably had one white (Voice Overlap) —

    Jack Greenberg:

    This is typically (Voice Overlap) —

    Potter Stewart:

    (Voice Overlap) next to each other, one — or one zone — school zone or one on the other depending upon the race of the family living in the house?

    Jack Greenberg:

    This is typically the way that school segregation is made.

    Taking either two sets of school zones, or two sets of bus routes, or sometimes two sets of just verbal descriptions but somehow rather the Negro children have to be told which Negro schools they go to and the white children have to be told which white schools they go to.

    And those are the separate zones and they inevitably overlap.

    Potter Stewart:

    And at least in certain cases on — I supposed there are —

    Jack Greenberg:

    Well, unless —

    Potter Stewart:

    — cases where — entirely a white neighborhood where they don’t know it overlaps, or an entirely Negro neighborhood with a school in the neighborhood.

    Jack Greenberg:

    Well, but a Negro child in that white neighborhood, if he live there (Voice Overlap) —

    Potter Stewart:

    Well, I’m assuming —

    Jack Greenberg:

    — it occurs —

    Potter Stewart:

    I’m assuming that there is no Negro child there.

    In other words, that it’s completely a white neighborhood.

    Jack Greenberg:

    Well, this — nevertheless the school zones necessarily as a matter of just drafting must coincide with the entire boundaries of the city.

    Potter Stewart:

    Yes.

    Jack Greenberg:

    I imagine — well, they always do.

    You have a city and what is — what usually happens in most of these cases if you look at the records, are they’re just two maps.

    Well, one map with red lines and green lines.

    That’s invariably —

    Potter Stewart:

    Is that the record in this case?

    Jack Greenberg:

    Well, that issue was not — is not here but there were two sets of school zones.

    In fact, the plan them — the plan itself almost, I think, refers to that.

    Potter Stewart:

    Well, the issue — I mean this had — it does have to do with the issue which is here, which is the request for transfer from — why a white student to go to what was formally an all white school and by —

    Jack Greenberg:

    Yes.

    Potter Stewart:

    — colored student to go to what was formally an all Negro school.

    Jack Greenberg:

    Well —

    Potter Stewart:

    That’s what this plan — come in.

    Jack Greenberg:

    Yes.

    Well, the contemplation, these old zones would have to be in a sense maintained because no one would know what school they formally would have attended except under the obsolete map —

    Potter Stewart:

    Yes.

    Jack Greenberg:

    — which is being employed for the purpose of the transcript.

    The Fifth Circuit in the Boson case, Boson against Rippy, a Dallas school case, in referring to the racial transfer plan and referring to the Kelley case, said nevertheless with deference to the views of the Sixth Circuit, it seems to us the classification according to race for purposes of transfer is hardly less unconstitutional than such classification for purposes of original assignment to a public school.

    And then it quotes from the language in Yick Wo against Hopkins and rather in Hirabayashi against the United States, they quote — that cites they quote.

    Now, the Fourth Circuit —

    Hugo L. Black:

    What’s the Fifth Circuit case?

    Jack Greenberg:

    Boson versus Rippy.

    That it — a Dallas school case and that is at 285 F.2d and I’m quoting from page 48.

    Potter Stewart:

    Judge McAllister’s opinion in the Kelley case involved the Nashville plan.

    Jack Greenberg:

    That’s correct.

    Yes.

    Potter Stewart:

    And this virtually identical of these two.

    Jack Greenberg:

    Yes.

    Well, the — it was —

    Potter Stewart:

    That these two are copies.

    Jack Greenberg:

    Yes.

    And the Fifth Circuit addresses itself to the Kelley case and the Nashville plan saying that it disagrees.

    The Fourth Circuit in an en banc opinion by Judge Sofaer in the Charlottesville’s case, Dillard versus School Board of the City of Charlottesville at the 308 F.2d at 923 of that opinion states, “It is of no significance that all three of them regardless of race are first assigned to the schools in the residential zone and all are permitted to transfer, if the assignment requires the child to attend the school where his race is in the minority, if the purpose and effect of the arrangement is to retard integration and retain the segregation of the races, that this purpose in this effect are inherent in the plan can hardly be denied.”

    The school board is well aware that most of the Negro pupils in Charlottesville reside in the Jefferson zone and that under the operation of the plan, white children residents therein will be transferred as a matter of course to the schools in the other zones while the colored children in the Jefferson zone will be denied of this privilege.

    The seeming equality of the language is delusive.

    The actual effect of the rule is unequal and discriminatory.

    Now, in two cases in the Sixth Circuit, District Court cases, the District Judges both have disagreed with the Sixth Circuit.

    One at the Chattanooga case and the other is the Obion County case.

    Both District Courts have — notwithstanding the ruling of the Sixth Circuit in the Kelley case, they agreed with the Fifth Circuit in the Boson case.

    One of those cases is now on appeal before the Sixth Circuit, and it has not yet decided it and the other case has not been appealed.

    Potter Stewart:

    Those are both cited in your brief Mr. Greenberg?

    Jack Greenberg:

    Yes, sir.

    Yes, they are.

    At least, I think they both are.

    Now —

    Arthur J. Goldberg:

    (Inaudible)

    Jack Greenberg:

    Yes, we have a three-fold argument, as I say.

    Arthur J. Goldberg:

    (Inaudible)

    Jack Greenberg:

    Well, one of the things that just happened in connection with this plan is that there hadn’t been any experience with attending the school from which he transfers out.

    The transfer is all paper work while the child continues to reside exactly in the school which he had previously been attending.

    Our position is that if this general transfer plan, general transfer that go into the footnote were in fact operated in a way to achieve the same result, they would be equally bad.

    And in fact, that brings us to the brief with the City of Knoxville to which we’ve referred in our reply brief.

    Knoxville says, “Well, we don’t have to use the racial transfer plan.

    We can use the general transfer plan and we’ll come up the same way.”

    And —

    Arthur J. Goldberg:

    (Inaudible)

    Jack Greenberg:

    Yes, well they said, “We’ll use the general transfer plan.

    We’ll use the general transfer plan, we’ll come out the same way.”

    They said of course other school boards may not be staffed and equipped to do it.

    And if they don’t have to do it, then we shouldn’t have to either.

    That’s the — as I understand their argument.

    Our feeling is that —

    Potter Stewart:

    So you don’t attack these general provisions here.

    Jack Greenberg:

    Well, we don’t attack them in general.

    We would attack them if they were used in fact as a matter (Voice Overlap) —

    Potter Stewart:

    Well, that would be another case, —

    Jack Greenberg:

    Yes.

    Potter Stewart:

    — some future case there.

    Jack Greenberg:

    Yes.

    Well, every school system has to have some general transfer provisions but we argue on our reply brief that it would be most dangerous if a rule were approved to allow general transfer to actually be employed when race is the real reason because the deliberate speed formula necessarily is a formula that requires some generality and most of the segregation that is being maintained in the face of the Brown decision is being maintained under other labels under purporting to comply with the deliberate speed formula.

    Now, if any type of a racial factor at all were permitted to creep into that and I think the Court has been very careful in the Little Rock opinion and in the Brown — second Brown decisions to exclude any racial consideration.

    If any type of racial consideration were permitted to creep into it the possibilities for evasion would just be multiplied almost infinitely and we would submit that though of course the school system should and has to be permitted to allow transfer in general grounds, it ought not to under any circumstances be permitted actually to take race into account.

    Potter Stewart:

    But do you suggest Mr. Greenberg that this case is controlled by Brown versus Board of Education?

    Jack Greenberg:

    I think to some extent, it certainly is.

    I mean, as to when if you can’t assign children on the basis of race, they certainly ought not to be able to transfer on the basis of race.

    This is a racial distinction in a sort of secondary school assignment.

    Potter Stewart:

    Would it be fair or would it be correct or not in your opinion to say that the — what was fundamentally decided in Brown against Board of Education was that a public school or school system could not keep children out be — based upon the color of their skins?

    Jack Greenberg:

    Right.

    That’s correct.

    Potter Stewart:

    That’s the basic decision in this.

    Jack Greenberg:

    Yes, that’s correct.

    Potter Stewart:

    Now, this has to do with space at least with what individual, private individuals affirmatively want to do.

    Jack Greenberg:

    Well, I in a preliminary way indicated earlier I think the three different responses we would have to that suggestion.

    And that is that first of all, this is a racial rule which has been set down by the State and by virtue of this racial rule, a white child was permitted to transfer out of a particular situation where a Negro child identically situated except for race is not permitted to transfer out.

    So this is the State itself imposing a racial standard.

    Byron R. White:

    But if he hadn’t — if they hadn’t impose the rule in the first place and some Negro children and some white children came and requested a transfer, you would make the same — have the same objection, wouldn’t you?

    Jack Greenberg:

    If they were this — in general, if they — under a general type of transfer provision.

    Byron R. White:

    Yes.

    Jack Greenberg:

    Well, I think the school board is obligated to (Voice Overlap) —

    Byron R. White:

    And it was admittedly and they — and when they made the request of the general transfer, it was admittedly administered strictly on a racial basis.

    I mean, (Voice Overlap) —

    Jack Greenberg:

    We would have the same object —

    Byron R. White:

    Just that the — the white child didn’t want to go to the Negro school.

    The Negro child didn’t want to go to the white school.

    That’s all there was to it.

    Jack Greenberg:

    We would have the same objection if this child when to the school board and said, “Look, I don’t want to go to this school because these children are of the other race”, (Voice Overlap) —

    Byron R. White:

    So aren’t you really relying — have to rely on Shelley and Kraemer right on it’s — that no matter how private the discrimination that the State uses any means to —

    Jack Greenberg:

    Certainly.

    Byron R. White:

    — to enforce it, that it’s bad.

    Jack Greenberg:

    Was certainly that and —

    Byron R. White:

    And isn’t that — aren’t you driven to that, to the — just to (Inaudible) —

    Jack Greenberg:

    Well, no, I don’t feel driven to it.

    But I certainly rely in it and I feel that — I feel this — this is unconstitutional when looked at from a variety of different angles.

    That certainly is one of them.

    Another way of looking at it is the concept in NAACP v. Alabama.

    It’s a combination of private and state action which achieves a discriminatory result.

    Jack Greenberg:

    But I think that perhaps the —

    Potter Stewart:

    Well, there’s nothing in Brown against Board of Education that said that any given public school had to have a integrated student body, was there?

    Jack Greenberg:

    No.

    Potter Stewart:

    Nothing at all.

    It simply said that a public school could not keep out a student who is otherwise qualified merely because of the color of his skin.

    Jack Greenberg:

    That’s correct.

    Potter Stewart:

    But it didn’t say that a — any school system had to integrate this —

    Jack Greenberg:

    That’s correct.

    I would —

    Potter Stewart:

    — isn’t it?

    Jack Greenberg:

    And perhaps the only system —

    Potter Stewart:

    Or to have a mix of the student body from the point of your race.

    Jack Greenberg:

    That’s correct.

    The — perhaps the only school system that I know of that permits completely voluntary transfers in enrollment is in Baltimore where I understand that traditionally before the Brown decision, there were two separate school systems, Negro and white.

    And anyone could attend any school that he wanted and it worked very well.

    It’s an administrative matter.

    Now, after the Brown decision, they merely took race out of it and anyone is — been permitted to attend any school he desires.

    And no one has made any claim that particular racial proportions in particular schools may or may not be unconstitutional.

    That issue has not arisen.

    But here is a place where you have maintained segregation, where children are assigned in the desegregated grades to particular schools because of their zone.

    And then on the basis of race are permitted to transfer or refuse permission to transfer and all this results in a further segregation of — in a system, in other words, a regression to the prior segregated system.

    Potter Stewart:

    But it happens only upon the voluntary affirmative wish of private individuals, doesn’t it?

    Jack Greenberg:

    Well, this not an entirely voluntary school system.

    This is — if this were Baltimore, anyone went in a voluntary basis.

    But this is a place where a Negro child cannot transfer out and white child can transfer out.

    So, it’s not voluntary.

    It’s voluntary in a sense but it’s state-enforced in the sense that the State recognizes this and implements it.

    And this tends to as — has been — as appears in the record, to further segregate the system.

    In fact, what happens is, that as white children transfer out of a particular school, the school zone necessarily must be expanded to complete the capacity of the building to the extent that Negro and white children are school scooped up by this expansion of the zone.

    The white children then transfer out and so you get segregated schools with greater — covering greater and greater areas.

    Jack Greenberg:

    And indeed that’s precisely what the Court of Appeals —

    Potter Stewart:

    I’m not sure that I fully — I’m unable to I guess, that a white child can transfer out and a Negro child cannot, out of what, referring to the (Voice Overlap) —

    Jack Greenberg:

    Well, a school zone is set up of so many square —

    Potter Stewart:

    On page 4, just referring to the provisions, I’d — I want to be sure I understand you.

    A says that a white student can transfer out of — otherwise be required to attend a school which was formerly serving colored students only.

    And b says that a colored student can transfer out if he is otherwise be required to attend a school formerly serving white students only.

    And c is — as to the — with the majority school and —

    Jack Greenberg:

    All grades.

    Potter Stewart:

    And he — and a student of either race (Voice Overlap) —

    Jack Greenberg:

    Right.

    Potter Stewart:

    — could buy the advantage of that.

    Jack Greenberg:

    That’s correct.

    Potter Stewart:

    Now, where is the racial discrimination there?

    Jack Greenberg:

    Well, let’s assume a school in which Negroes are in the majority, 60% Negro and 40% white.

    All those white children can and in fact under the experience of this plan have transferred out to other white schools.

    Potter Stewart:

    Both — all the Negro children could do the same thing if it (Inaudible) —

    Jack Greenberg:

    No.

    The Negro children cannot follow those white children because they are in a school in which their race is in the majority.

    (Inaudible)

    Jack Greenberg:

    Yes.

    (Inaudible)

    Jack Greenberg:

    Now, the Negro child in some other school across town where he is in a racial minority, he may transfer back to some colored school.

    This gets back to the Shelley v. Kraemer language of indiscriminate imposition of inequalities.

    Potter Stewart:

    Well, that’s where it does, gets you as my Brother White suggested, doesn’t it?

    Jack Greenberg:

    Well, I was referring to Shelley in a — from (Voice Overlap) —

    Potter Stewart:

    A more different (Voice Overlap) —

    Jack Greenberg:

    — in a different kind and a different context.

    But the Negro child cannot transfer out of school that a white child can transfer from.

    Now, some other Negro child and some other school might be able to transfer out but this individual can’t.

    Potter Stewart:

    But a white child cannot transfer to a school that a Negro child could trans — could transfer from —

    Jack Greenberg:

    That’s correct.

    Potter Stewart:

    — equally, isn’t that true?

    Jack Greenberg:

    That doesn’t help —

    Potter Stewart:

    The thing — the system is a —

    Jack Greenberg:

    Yes.

    Well, and this tends to perpetuate segregation in the system and we submit that the Brown decision equivocally erred when we’re talking about school system.

    Potter Stewart:

    Yes.

    Jack Greenberg:

    That your right is the right to go to school in a desegregated school system, not the right of a particular child to attend a particular structure.

    To the extent that these plans perpetuate segregation in this system, we feel that is even more vicious than the particular denial of a right to transfer a particular child.

    Arthur J. Goldberg:

    Do you say that the — a system that any child could go or transfer to a school (Inaudible)

    Jack Greenberg:

    We — no.

    It would not be subject to this criticism.

    It might be that such a system based upon a prior history of segregation might be subject to criticism that this has not necessarily expunged segregation from the school system but that’s not involved in this case at all.

    But certainly, insofar as completely free transfers were permitted, that was — that’s not this case.These are racial transfers.

    There is some effort to justify this plan as merely temporary and transitional.

    We submit, first of all, the record does not support that at all.

    And secondly, even if it were temporary and transitional, it would be more valid.

    There is no termination date for this type of plan, there is no standard by which it should come to an end.

    There is no statement that it ends at the end of 12 years and in fact in the 12-year plan, there are a variety of provisions which obviously on their very face are not meant to come to an end — termination of 12 years.

    These various factors are first of all, the coalescence of the zones, that’s obviously not coming to an end at the end of 12 years.

    This provision as to bus transportation, that’s obviously going to continue and provision as to registration in the spring time.

    Now, why this racial transfer thing is supposed to come to an end at the end of 12 years does nowhere appear in the record.

    But transitional or permanent, we submit that its equally bad, that even if — even if transitional, it would have to be supported by evidence concerning which the burden would be on the respondent and they presented evidence in an effort to support the 12-year aspect to the plan in both cases.

    In one case of the Court of Appeals and another case in the District Court held the evidence was not sufficient if they had made an effort to present evidence.

    If they had evidence here, I assume they would have presented it.

    Byron R. White:

    What the — excuse me, Mr. Greenberger.

    What play would you give to the wishes of the children and their parents, the 354 Negroes who transferred out of schools in which they were in the minority and the 300 or so whites who transferred, would the — would their desires or wishes be irrelevant to the transfer question?

    Jack Greenberg:

    Well, to the extent that they were asking the school board to enforce a racial decision of their own.

    Byron R. White:

    If they come in and they come in and I assume that all of these were because they, let’s say the Negro child didn’t want to be in the white school and —

    Jack Greenberg:

    What I’m saying —

    Byron R. White:

    — a white child didn’t want to be in the Negro school, what play would you give this at all?

    Jack Greenberg:

    Well, the —

    Byron R. White:

    Say, these are stricken down, these standards are stricken down and the general transfer —

    Jack Greenberg:

    Well, the —

    Byron R. White:

    These same people make the same request and —

    Jack Greenberg:

    It was.

    Byron R. White:

    — give the same reason?

    Jack Greenberg:

    Well, first of all, as a preliminary matter, there were no actual transfer there, but he actually stated that there were.

    There was just a lot of paperwork.

    But I would assume, if they came in, the Superintendent or some administrative official say, “Why do you want to transfer?”

    And they would say, “Well, for this racial reason.”

    You have — they weren’t terribly sorry, we’re not permitted to enforce racial choices here in the City of Knoxville.

    Someone came in, he wants to transfer because there’s too long a trip or because of some other reason he might acquiesce on that under nonracial standard.

    But he just had to say segregation is no longer permitted here and — in any particular form.

    Potter Stewart:

    Is your point then that a government, state or city government, not only is permitted from carrying out a choice of a private individual based on race but also is affirmatively compelled to deny that choice?

    Jack Greenberg:

    Well, to the extent that it means the use of the Government system and exempts that the Government is invoked.

    Well, I wouldn’t say the Government is affirmed to — be required to deny it in a transaction which the Government is not involve.

    But, in a school system of course, I don’t see how you could escape from the —

    Potter Stewart:

    As I said, assuming a private home, not a — let’s get away from any public business, assume a private home, a private lot, an empty lot in a neighborhood which is a owned by John Smith, a white man who’s a very prejudiced man on racial grounds, and he doesn’t want colored children playing baseball there then the — and he says that all white kids can come and play there but I don’t want any colored children playing softball in my vacant lot.

    Here, in this neighborhood and a couple come and he calls the police and said, “Please arrest these people for trespass, they — the police are affirmatively required not to arrest them for trespass, is that your —

    Jack Greenberg:

    Well, I would say — I would have to note that.

    I assume that there’d be certain considerations of privacy involved there which I think would have countervailing constitutional weight and might be taken into account in arriving —

    Potter Stewart:

    Certainly, we’re talking about that very private thing, when we’re talking about where parents desire their children to be educated, aren’t we?

    Jack Greenberg:

    Well —

    Potter Stewart:

    I think personal private child have a choice.

    Jack Greenberg:

    Well, under the decisions of this Court, of course they can send their children to private schools and they can’t be compelled to attend the public schools but to the extent they do attend the public schools (Voice Overlap) —

    Potter Stewart:

    Well, if they can’t do, but we’re talking about that public school system.

    Jack Greenberg:

    Well, to the extent that they are in the public school system, I don’t believe under the decisions of this Court that they can require that school system to enforce their personal prejudice (Voice Overlap) —

    Potter Stewart:

    Well, you’re — but you’re making a — you’re going further as I understand it, you tell me if I’m mistaken, that you say that the state must affirmatively deny that private choice based on race.

    Jack Greenberg:

    Well, they come in and they say, “Look, I’d like to transfer.”

    Jack Greenberg:

    And the Superintendent says, “Why?”

    And they say, “Because I don’t like these Negro children.”

    Potter Stewart:

    Because I don’t want my (Voice Overlap) — my child going to a school with white children.

    Jack Greenberg:

    You just have to say, “Well, I’m terribly sorry.

    We’re not permitted to do that.”

    Potter Stewart:

    And furthermore, all the — I will apply to you my compulsory attendance rule.

    Jack Greenberg:

    Oh, yes, yes.

    I’m terribly sorry, you have to go to a public school and we can enforce racial standards.

    William J. Brennan, Jr.:

    I don’t — you mean that’s this — this can’t be weighed?

    Ordinarily constitutional, you just waive constitutional rights, aren’t you?

    Jack Greenberg:

    Who would waive?

    You mean —

    William J. Brennan, Jr.:

    If a colored parent says, “Our child isn’t doing as well here and the reason he is not doing well here is his unhappy with these white children in the school.

    So we want to transfer.”

    And you’re saying the principal would have to say to him, “This is not — this case — the principal would have to say, “No.”

    If that’s your ground for wanting to make your child more comfortable, namely that he can’t get along with the white children here, I can’t let you do it.

    You’ve got to stay here.

    That’s what he was telling, isn’t it?

    Jack Greenberg:

    Well, I would say — I would say that of course you always could reach a case where the plight of an individual child was such that (Voice Overlap) —

    William J. Brennan, Jr.:

    No, let’s take the — let’s take the case (Voice Overlap) —

    Jack Greenberg:

    I would say that the Superintendent would have to say to him that we can’t recognize —

    Why would he have to say it?

    Jack Greenberg:

    Because he would be — he would be enforcing this private prejudice in addition to which in the context of this plan it would be further segregating the system.

    That is, in fact, I would operate and it was adopted in contemplation of the fact that it would operate that way.

    William J. Brennan, Jr.:

    Why do you say that’s prejudice, Mr. Greenberg?

    Here’s a colored parent whose child isn’t getting along well in this school with white children and the parents’ judgment is that the child will do better if he transfers to another school and he tells the principal that.

    Why — what prejudice is it being for?

    Jack Greenberg:

    Well, it would be the obligation of the school system to attempt some other means to remedy that situation which I would —

    Tom C. Clark:

    Well, wouldn’t it be their obligation to recognize the constitutional right of this person to have this child choose a school if it asks to go to another school.

    The parent asks that he go to another school and if it was permissible, other conditions being permissible, then it’s clear to me that school board would transfer him.

    Jack Greenberg:

    Yes, but this particular plan and that we now have before us does not —

    Tom C. Clark:

    I’m not saying that (Voice Overlap) —

    Jack Greenberg:

    But does not permit a white — a Negro child to attend a white school because he was talking about —

    Tom C. Clark:

    Well, Justice Brennan —

    Jack Greenberg:

    Yes.

    Tom C. Clark:

    — didn’t used that —

    Jack Greenberg:

    Yes.

    Tom C. Clark:

    — but this language.

    William J. Brennan, Jr.:

    Not this case.

    Jack Greenberg:

    Yes.

    Tom C. Clark:

    He was wrong with the evidence.

    Hugo L. Black:

    It seems to be like the best language used there, you don’t want to excuse all of it but the courts really don’t have to argue that in this case.

    Tom C. Clark:

    Yes.

    William J. Brennan, Jr.:

    I think it would be wiser.

    Hugo L. Black:

    What is that?

    Jack Greenberg:

    I’d like to reserve the balance of my —

    Arthur J. Goldberg:

    Mr. Greenberg, (Inaudible)

    Jack Greenberg:

    I assume my argument would be the same, yes.

    Arthur J. Goldberg:

    (Inaudible)

    Jack Greenberg:

    Yes, sir.

    Arthur J. Goldberg:

    (Inaudible)

    Jack Greenberg:

    Oh, yes.

    Arthur J. Goldberg:

    (Inaudible)

    Jack Greenberg:

    Well, I would assume under the Fourteenth Amendment, Equal Protection Clause.

    Earl Warren:

    We’ll recess now.