McDaniel v. Barresi

PETITIONER:McDaniel
RESPONDENT:Barresi
LOCATION:Edward Coolidge’s Home

DOCKET NO.: 420
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 402 US 39 (1971)
ARGUED: Oct 13, 1970
DECIDED: Apr 20, 1971

Facts of the case

Question

Audio Transcription for Oral Argument – October 13, 1970 in McDaniel v. Barresi

Warren E. Burger:

We’ll hear argument in number 420, McDaniel against Barresi.

Mr. Epting you may proceed whenever you’re ready.

Eugene A. Epting:

Mr. Chief Justice and may it please the Court.

I think the Court will find that this case is somewhat unique.

I would venture to say that in most, if not all, of the cases before this Court involving Boards of Education, the Board has been here either complaining that it should not be required to do what its been told and asked to do or defending itself, in claiming that it has done all that it’s required to do.

Here you have the Board of Education defending itself against the charge that it’s doing too much.

In other words, Clarke County Board of Education has tried to avoid the entanglement of federal court decisions in regard to the question of desegregation.

So far it has succeeded and when I hear and read the arguments in regard to the tribulations of Charlotte and Mobil and Clarksdale, Bessemer, Jefferson, I think they have acted wisely on that score.

But, we have come to the proposition where having avoided entanglement and federal court authors running our of schools, we find ourselves faced with as a state court injunction that says, we can’t do what we have done, because in undertaking to honor the Fourteenth Amendment Rights of some people, we are thereby violating the Fourteenth Amendment Rights of others.

Now, I would agree with the tenner of the arguments in Charlotte that all of these busing of students from one community to another is not in the best interest of the education is that — if I understand one of their points correctly, but in the Clarke County case, we are not dealing where the Court ordered busing.

We are dealing with what has been called pocket busing to a limited extent.

We are small school district.

We have only 11,000 students.

We have only 15 elementary students.

We call it pocket busing, in Charlotte they called it “Satellite Zoning,” but it means the same thing.

In undertaking to pocket bus and if the Court wishes to look at the record, I think you will see a map on page 174 that shows the geographical locations of these pockets of students who were bused to schools which were formally, predominantly of the other race.

If you will look at page 167, you will see the chart of a neighborhood plan which was best adopted by this Court, and which shows the extent, the chart on the map shows the extent of racial mixing.

When we talk about desegregation and racial balance and integration, when we get it all down to a common denominator, we are talking about mixing the races in the school, that’s what it amounts to in plain simple language.

Byron R. White:

And the Board here decided to do it?

Eugene A. Epting:

The Board here decided to — well, let’s put it this way.

The Board felt that under the judge — the decisions of this Court and particularly the decisions of the Fifth Circuit Court, we were compelled to do it.

Byron R. White:

But you weren’t under an order?

Eugene A. Epting:

We were not under an order and we didn’t want to get under an order.

Byron R. White:

And you [Laughter] — so, does this case pose the question I asked the counsel who just —

Eugene A. Epting:

It’s strikingly similar except they’re talking about a statutory —

Byron R. White:

I mean, in terms of the power of the board on its own to do something?

Eugene A. Epting:

Yes sir, yes sir.

Now, it is our position that when this Court decided Brown II, this Court said that there was a duty on the Boards of Education to do something more than back off from state order of discrimination.

Brown I had already said that and if that was all we required to do is stop segregating by law then we didn’t need Brown II and we didn’t need Copper versus Aaron, and we didn’t need Green versus New Kent County.

Brown I had already said that’s unconstitutional, but when this Court said in Brown II, we’re going to give you some — in effect some guidelines.

Eugene A. Epting:

We’re going to tell you what you’ve got to do to disestablish the existing systems and then it followed with such things as Copper versus Aaron which says you’ve got to take steps to eliminate formally segregated school system, root and branch, and when it comes along with Green versus New Kent County of course number of years later and says, the Boards of Education have the affirmative duty to take whatever action is necessary to disestablish the dual system.

That clearly calls for some affirmative move, not just backing off and leave things as they are.

That’s the way we’ve interpreted the decision and that’s the way the Fifth Circuit interpreted.

Maybe the Fifth Circuit isn’t the final word, but we are in the Fifth Circuit and we have to honor its decision.

We are in the Fifth Circuit.[Laughter]

Eugene A. Epting:

Consequently some plan had to be formed that would eliminate the mix — the separation in the school.

Now, a neighborhood plan and if this Court would say that all that a school board is required to do is zone without discrimination as to race and setup a neighborhood plan, we can do it.

But we’ll have some black schools and we’ll have some white schools with — well, we had one with 525 whites and 20 blacks.

We had another one with approximately 500 whites and 19 blacks because a neighborhoods are made up that way.

So, as I say the result of our efforts is that in — and we had some five to four decisions in that Board or rather six to five and we are not unanimous.

But, our decision was that the most feasible way or most reasonable way as those who preceded me have discussed Mr. Griswold I believe, was to zone and pick up an area that is not contiguous to the zone and take the children from that area to the zone schools, frankly in order to accomplish what we understand is our affirmative duty.

Now, you — it might be said well you could zone in such a way as to bring in substantial numbers of both races.

The pattern in our — this is a County wide system, it involves not only the City of Athens, but the entire County.

The pattern of housing, the racial distribution is such that when you step out to pick in, pick up another alien.

You pick up more of what we might call the wrong race then you do of the race that you’re trying to get in, so that won’t wait.

We were told too that it might be possible to break the school system down into a different plan.

Have the first three grades or the first four grades certain schools, have the fifth and sixth or the fourth, fifth, and sixth in other schools.

When you do that, you’re going to bus over the entire County because you’ve got to have a bus route that covers the entire County for each of two separate sets of school and you’re going to pick up the young children, the first graders from an area adjacent to what is now a school that accommodates them and take them off to some other school.

And you are going to have to go over to the other school and bring back some fourth, fifth, and sixth graders, or fifth and sixth whatever it is.

Bring them from next door to a school over to one that accommodates that grades.

So we decided, the board decided, that this pocket busing was the most feasible way of working out the problem within the means that this board has.

Now, it happens that no plaintiff in the lower court and by the way I assume this Court has the information as to how this thing proceeded, that an injunction suit or two injunction suits were filed in the Superior Court of Clarke County, injunctions were denied.

The people, the plaintiffs then appeal to Supreme Court of Georgia and the Supreme Court of Georgia says, that in taking students of one race into a school that is predominately of the other race is that, that’s discrimination for the purpose that is of achieving racial balance, that is discrimination and taking then people out of that school in order to make room for those you brought in as a violation of the Fourteenth Amendment Rights of those taken out.

Now, it happens that nobody included in any of these four of the five pockets, four pockets, that are being bused to a more distant school, not one of those passengers of party to these law suits.

The people who are being pocket bused are not complaining, not one of them.

When you pocket bus Ohio where you arrange to take students to a school that’s already filled to capacity, you have to take somebody out of that school in order to make room for those who are brought in, it’s that simple.

The result was that we had — the Board had to rezone the area set by that particular school or those particular schools, not on a basis of excluding whites but realigning the zones so that the students in those areas went to a different school.

We had to make room for those are brought in.

If the Georgia Court is right in saying that by rezoning in order to accommodate those brought in.

Then there are no courses left open to a Board of Education except the freedom of choice or a strict neighborhood zone, living the racial composition to stand or fall on zone lines.

Eugene A. Epting:

I do not understand that this Court has given us that right.

I do understand that the Fifth Circuit Courts have said we can’t do that in Jefferson.

I think that was the effect of one of the decisions in Mobil.

I think that was the certainly effect of the decision in the Indianola case which obviously was is an extreme case.

I think that was the effect in Clarke State.

So, this Board has done what its ordered it had to do under the decisions of this Court and the Courts of the Fifth Circuit.

Brown II and the decisions following it require affirmative action by the school boards.

New Kent County and that was followed in Rene and Monroe called for the same affirmative duty and in Monroe whereas the board had a zone plan with a free transport provision, the Court plainly held that the affirmative duty was not satisfied by a neighborhood zone plan unless it resulted in the substantial mixing of races in all of the schools.

Now, we in Clarke County have frankly, we have gerrymandered zone not to achieve, not to retain segregation, but to try to do just the opposite, to try to make some in the schools, to avoid the entanglements that were consequent upon maintaining a segregated system.

We obviously had dual system prior to 1954.

We begin the process of eliminating that in 1959 with one of the transfer plans which were sort of the vogue in South then.

In 1963, prior to the Civil Rights Act of 1964, we had our first integration in Clarke County.

Subsequent to that, we have followed various methods in trying to get our system — keep our system in line with the law as we understood it, but we can’t compete with the decisions of one Court saying go one way and the decisions of another Court saying, go another.

We have to know where to go and this decision and this question in this Court is a simple question but its answer involves tremendous problems.

If this Court should say, you have complied with the law when you create neighborhood schools that’s alright.

But, if this Court meant what it said when it said, you have an affirmative duty to take whatever action is necessary to disestablish the dual system then, we think this Court would have to uphold the action which is taken by Clarke County Board of Education.

Potter Stewart:

Of course, in this case it’s not whether not you complied with the law, this is not quiet the question you put.

This — the precise issue in this question — in this case as I get it is whether you violated the law by going further than a simple neighborhood zoning, is that right?

Eugene A. Epting:

Well, yes whether we violated the construction of the law placed on it by the Georgia Supreme Court —

Potter Stewart:

But that’s what the Georgia Supreme Court held, that since you violated law by [Voice Overlap] neighborhood zone?

Eugene A. Epting:

The Georgia Supreme Court in using the Green case as its basis says that no person shall be excluded from a school because of its race.

The students, the white students, who are zoned into another school area were not zoned there because of race, but obviously they were zoned there because black students were being brought in.

Now, we concede that, that’s the only way we sort to worked it out.

Warren E. Burger:

Do you agree with the Solicitor General’s view if I understand his view correctly, the school board has broader powers in working out this remedies than a District Court?

Eugene A. Epting:

The school boards in Georgia and I’m sure this is true more or less nationwide, have a broad discretion in such matters and only the school board can solve these problems, the courts can’t do it, I mean, the mechanics of it.

The school board has to solve the problems facing such things as transportation, availability of funds, availability of school facilities, location of buildings.

The Board has a discretion under number of decisions of the Georgia courts and the Board will have to be permitted to exercise that discretion if it continues to operate schools.

Warren E. Burger:

Then your answer would be, generally you join in that view?

Eugene A. Epting:

Yes, sir.

Warren E. Burger:

— expressed by the Solicitor?

Eugene A. Epting:

Yes.

Yes, sir I do.

Now, the next point that I would like to mention on the — regard to the decision of the Georgia Supreme Court is after saying that the action of Clarke County Board of Education in the adoption of its plan violated to Fourteenth Amendment Rights of those students who were required to go to a different zone.

It says also that its action violates those provisions of the Civil Rights Act dealing with the definition of desegregation 407, and 2000 (c) and 2000 (d) (6), I believe, which says, that desegregation shall not mean on as used in this chapter.

Desegregation shall not mean busing to achieve a racial balance and in the second Section the 2000 (c) (6), the code antedated, that no Court or public by or public body — federal body, I believe I forget the exact language, shall be authorized by this Act to require busing to achieve racial balance in that sense.

Now, as used in that Act and I think it was best stated in the Olsen case in the District Court of New York, that pertains to the use of funds under that Section — of that title of that Act.

Whatever Congress may have meant to say, it isn’t — didn’t put a restriction on the discretionary action of Board of Education.

The Georgia Court says, that the action of this Board violates the provisions of that Section of the Civil Rights Act and I don’t think it does.

I think that part of a decision is also in error.

The problem that we have is the basic problem which faces this Court.

What exactly is a School board required to do and what can the School board do in order to meet its obligation?

Obviously, when you honor the rights of some if they have rights in regard to where they attend the school, you are going to change the exercise of the rights of others where your school system is filled to capacity.

I would like to call this point to the attention of the — it’s in the record, but the attention of Court in this particular instance.

The people except for three who have children who walk from one zone to a school in another, both within a mile and hour — within the mile-and-half both schools, except for those three, the other plaintiffs in the trial Court and the appellants in the Supreme Court of Georgia, those people were sent to a school that had been used the previous year to house a particular — the student from a particular neighborhood, who had to be bused to that school because the school in their neighborhood was under construction.

Consequently, when we added the school, 69 school year and the school in that particular neighborhood, the new school had been completed, we had a substantially empty school building.

We had to use it.

We used it by zoning the contagious area that involves these plaintiffs here, these respondents here, but plaintiffs in the court below by bringing them to that school with the exception of two or three, they had to be bused somewhere and it was logical to bus in to the school where the space was available, and that was what this Board did.

That’s one of the little details that only a Board can solve.

We ask this Court therefore to uphold this board in the exercise of its discretion and reverse the judgment of the Supreme Court of Georgia which seems to curtail our exercise of that discretion.

Thank you very much.

Warren E. Burger:

Thank you Mr. Epting.

Mr. Leverett.

E. Freeman Leverett:

Mr. Chief Justice and if it please the Court.

I’d like to direct some remarks at the outset to some tests that have been proposed here and then deal specifically with the contentions of the petition.

Four different tests as I understand it, have been proposed by the counsel in the cases that have been argued here yesterday and today.

The Fifth Circuit itself has postulated a rule which declares that the duty of each system to prevent the existence of an old black school, it quote reasonable alternatives exist.

When all black schools do exist, the Fifth Circuit has said that the State of a system must specify valid reasons for those schools.

Further, the Fifth Circuit draws a distinction between not only between the jury and de facto systems, but in addition, it draws a distinction between urban systems on the one hand and rural systems on the other.

This is indicated from its decisions in the Orange County in Hillsboro cases on the one hand, involving urban systems and its decision in the Monroe Louisiana case, involving a rule system.

Now, the Fourth Circuit has postulated a rule in the Charlotte case in terms of whether the all black schools are capable of abolition by reasonable means.

E. Freeman Leverett:

The Justice Department in its brief refers to a rule of feasibility which seems to be taken from the Green case.

The petitioners in Charlotte and in Mobil cases on the other hand, had stated a point blank requirement that, “Every black child is to be free from assignment to a black school, an identifiable racial minority school at every grade, subject only to this qualification” in the case of “absolute on work ability.”

Now, apparently this exception is aimed that such places as Washington and New York where it would be physically impossible to bring about a realization of what they seek.

We submit in this case that all of these tests miss the point.

They involve standards which differ only and only in degree.

Under them, the sufficiency of a plan is made to depend upon a statistical appraisal.

They involve Court formulated test which we submit if any state legislature had attempted to enact would have immediately been declared unconstitutional by this Court as being void for vagueness.

We submit that they invite another generation of litigation.

They either avoid or assume without acknowledging it, a determination of the basic question which lurks in all of these cases that have been argued thus far and that is what does the Constitution require.

What did you mean in Brown?

Does the Constitution simply prohibit state enforced discrimination or does it require an actual integration of the races in the school.

Now, the problem it seems to me, with the position of the Government and the position that the petitioners in this case have to take is that they seem to assume that the Constitution does require integration except where it’s not reasonable, where it’s not feasible or whether it’s absolutely unworkable.

Now, this we submit is inconsistent because it makes the scope of a constitutional right depend upon the readily availability of a remedy.

And it would make the rights of a minority child differ in places such as New York and Atlanta or in Charlotte, North Carolina.

The position of respondents and they are both black and white respondents, I think the Court probably is aware then in this case.

They were both black and white parents that were objecting to being assigned on the basis of race in order to bring about this 20% to 40% ratio on each school that the petitioners were seeking implement.

Our position is simply that the constitution does not require affirmative state enforced integration, but that it only prohibits state enforced segregation.

So being we say that the assignment of children to achieve racial balancing is not required, but is unconstitutional.

Consequently, the majority to minority transfer option has been discussed, we submit that also is not valid anymore and the minority to majority transfer option struck down in (Inaudible) is valid.

And secondly, Mr. Justice White, I don’t think it’s involved in this case for reasons that I will get to, and we — but we submit that a state or a Board of Education cannot own its own policy determination in an effort to alleviate de facto or whatever you call it, racial balance, undertake to affirmatively assigned students on the basis of race in order to bring about a racial balance.

Now, I will attempt to show later on that that is not involved in this case because the Clarke County Board of Education was not acting voluntarily, but according to the testimony of it superintendent at page 97 of the record, he said, we are acting because we are under compulsion of HEW, they are about to cut off the money.

Byron R. White:

Yes, but the HEW makes it pursuant to its statutory authority and that statute have to be valid, and you just — you really changed the question whether the school boards can do it, as to whether Congress can do it?

E. Freeman Leverett:

If HEW’s action is valid, of course that would be true, but we deny that HEW’s action is valid.

Byron R. White:

Yes, and you say that no governmental authority may decide that for educational reasons, we want educate blacks and whites together and therefore we will not send them to the same neighborhood schools that we used to?

E. Freeman Leverett:

Before Brown, yes.

After Brown I say no.

But I qualify that by saying that the Court does not have to make that holding in this case in order to affirm the judgment of the Supreme Court of Georgia.

Byron R. White:

Oh, yes I think it is.

We do, if you say that the Board acted, your answer is that the Board acted in — under compulsion of HEW?

E. Freeman Leverett:

I thought I understood the Justice to propose a question whereby the Board voluntarily and without compulsion elected to —

Byron R. White:

But let’s concede for the moment that your board did act under compulsion of HEW. Let’s assume that an HEW action is valid, action under the statute that was operating in.

E. Freeman Leverett:

You assume my case then.

Byron R. White:

Well, no because that you would say the statute is unconstitutional?

E. Freeman Leverett:

I beg your pardon.

Byron R. White:

You would say that statute is unconstitutional.

E. Freeman Leverett:

Correct.

If they are acting pursuant to a statute, but I understood the question to pre-suppose that the statute was constitutional.

Byron R. White:

Oh, no.

No, I think we just — we have just — so I think the constitutional question is posed about — by this case whether or not a legislative by the may on its own decide that education of the races together is better than apart?

E. Freeman Leverett:

I would answer your question this way Mr. Justice White.

I think that is perhaps a difference between what the Constitution requires on the one hand and what it permits on the other.

I will attempt to develop that momentarily because I think it involves some prior decisions of this Court.

Now we say that this position that we maintain follows from — for several reasons.

First, the language of Brown itself and the overwhelming judicial interpretation placed upon it within the first decade after 1954, we have collected those cases in our brief.

This Court’s decision in the (Inaudible) case itself states the rule in terms of a classification based on race for the purpose of transfer between public schools as here.

The wording of the Fourteenth Amendment, we rely upon that.

The Fourteenth Amendment is negative, it is not affirmative.

It confers an immunity upon people to be free from discriminatory Governmental action.

But it’s affirmative in one respect, that is in respect Section 4?

E. Freeman Leverett:

In 4 or 5 Enforcement Clause?

Yes, Congress will have power to enforce by appropriate legislation provision to this Article?

E. Freeman Leverett:

In that respect, it certainly is, yes sir.

But you have that involved in this case at all?

E. Freeman Leverett:

We do not think so.

You have the HEW provisions of title six that are involved, but I do not interpret those as presenting the issue that you have proposed.

Thurgood Marshall:

Mr. Leverett what do you say what’s the response of the school board?

E. Freeman Leverett:

I interpret the affirmative duty language of this Court’s decision in Green to mean this Mr. Justice Marshall that no school board who had de jure school system in 1954 or at any other time could simply sit back and not do anything.

I think it was a —

Thurgood Marshall:

How much should they do?

E. Freeman Leverett:

I think they were required to reorganize their attendant zones to change their method of assigning students to school.

E. Freeman Leverett:

I think they were required to eliminate faculty desegregation or faculty segregation.

I think I should add, hasten to add that a lot of these things that are clear now were not clear five and even 10 years ago because school boards have labored under a degree of uncertainty.

Thurgood Marshall:

Did you know that as of 1969 which the law appeared, how far could you — what was the one or more things the school board did that you think are wrong?

E. Freeman Leverett:

The school board in Clarke County, Georgia?

Thurgood Marshall:

Yes, sir.

E. Freeman Leverett:

They did two things wrong.

They gerrymandered the attendance lines with — for the express purpose of bringing about a 20:40 ratio mix.

Secondly, being unable —

Thurgood Marshall:

What in the Fourteenth Amendment prohibits that?

E. Freeman Leverett:

How is that so?

Thurgood Marshall:

What is there in the Fourteenth Amendment that prohibits to enjoin gerrymandering the lines?

E. Freeman Leverett:

The Equal Protection Clause as interpreted by this Court in the Brown case and a number of Fifth Circuit decisions —

Thurgood Marshall:

Gerrymandering was in the Brown case?

E. Freeman Leverett:

The Brown case said that any assignment of peoples by race is a denial of Equal Protection of the laws, that is my interpretation.

That is the basic issue that I think you’ve got to decide today.

Thurgood Marshall:

But no zoning there, its just two students, is that so?

E. Freeman Leverett:

That’s right sir, but the fact that you assigned them by zones or by race —

Thurgood Marshall:

Well, even though they have it, all the Court has to do is to say you can no longer have segregated school system?

E. Freeman Leverett:

Certainly not, certainly not.

I’m saying that any board and this is based upon the law as it has been developed in Green, not perhaps as some of us assume back in 1955, because this Court itself upheld a pupil placement plan in the Shuttlesworth case that on its face provided for the racial assignment of pupils.

Now, looking back it’s probably that was an interim remedial device.

Thurgood Marshall:

But in this we’re going to have to look beyond Green case.

I want to find it any further.

Well under Green case you got to do something.

E. Freeman Leverett:

There’s no question about that.

We aren’t disputing that.

The question that we are in disagreement about is what do they have to do.

Thurgood Marshall:

Suppose the only way you can break up the segregating system is to gerrymander, you say you can’t do it?

E. Freeman Leverett:

No, sir.

I don’t accept the premise.

E. Freeman Leverett:

I think you presuppose that you can deny rights to one group in order to call them to another and that would mean that the Constitution then would become a suicide pact.

Thurgood Marshall:

I personally was assuming what we said in Green that you’ve got to break up this system?

E. Freeman Leverett:

Well, the disagreement comes on what you meant when you said that.

Did you mean that you’ve got to affirmatively consider race or did you mean simply that this — the boards of the systems involved in those three cases could not continue to use systems of assignment that were racial?

Thurgood Marshall:

How about considering the race, is there any way under the sun you can breakup a segregated system without considering race?

E. Freeman Leverett:

I think there has to be.

I think there has —

Thurgood Marshall:

So as to the race?

E. Freeman Leverett:

Yes sir, I think that there has to be.

Thurgood Marshall:

So, then you consider race in every play you think of, you still have all black and all white schools, don’t you agree you have to go a little further?

E. Freeman Leverett:

Well, Mr. Justice Marshall, I don’t concede that that would be the result of not giving consideration to race.

And even if you had a situation where you ended up with that result that would to me not necessarily carry with it the proposition that discrimination had been practiced, though that — the formal dual system had not been dismantled.

Thurgood Marshall:

Well, suppose you — the school system has Negro high school or the Frederick Douglas Negro High School, I assume your position is that you just take a word Negro off and that did it?

E. Freeman Leverett:

Certainly not, certainly not.

Thurgood Marshall:

What more do you have to do?

E. Freeman Leverett:

I think that the board would have to revise its assignment policy.

It could do either one of two ways.

It could go to pure freedom of choice plan, not the freedom of choice plan that this Court struck down in the three cases in 1968.

Thurgood Marshall:

But which — what other argument is that?

E. Freeman Leverett:

The other would be to simply draw district lines, it would not base —

Thurgood Marshall:

No, I mean what other premature’s plan is good?

E. Freeman Leverett:

I beg your pardon, sir.

Thurgood Marshall:

Do I simply to say, there is a premature’s plan that’s a good one?

E. Freeman Leverett:

I would certainly hope so.

In fact, I was going to suggest to Mr. Justice Douglas that that would be the answer to his question, about how you could get these people out of the ghettos.

It —

Thurgood Marshall:

Well, how would you have legitimate freedom of choice?

E. Freeman Leverett:

You would have a freedom of choice plan under which the choice was actually free.

The problem in the Green case, the Rene case, and the Monroe case is that the choice was not in fact free, but that the systems in all three cases continued to assign students on the basis of race.

In the Kent case, where the student did not exercise the choice, he was automatically put back in the school to which he had been assigned on the racial basis.

Thurgood Marshall:

Well, how do you conceive that in a school system that has been segregated since its existence, you could have actual freedom of choice.

Do you actually believe that’s possible?

E. Freeman Leverett:

Yes, sir I do.

Warren E. Burger:

You’d help me Mr. Leverett, if you would just list one, two, three that’s how many they are, the things which must be done now complying with the desegregation mandate which were not required to be done prior to series of holdings of this Court?

E. Freeman Leverett:

Mr. Chief Justice, I will express it this way.

Much of the law that has been developed in Green and other cases, perhaps this Court meant in Brown, but I would say this that very few school attorneys or others interpreted many of the things that the Court has since required.

It was assumed, for example after Briggs versus Elliot for a long time and this is going back in ancient history, and perhaps its difficult to visualize that this was once assumed to be possible, but you have the pupil placement plans that said that students remain where they are albeit they were putted there on a racial basis.

But they are permitted to transfer out by meeting a list of 17 criteria that were set out in the Shuttlesworth case and this Court upheld that in the late 50’s or the early 60’s, I’m not sure of which.

Well, the law as evolved and as the Court of Appeals said in the Charlotte case to say that the same law is in effect in 1969 or 1968 that the Courts, including the Courts of Appeals assume was the law in 1955 is simply missing the point because it’s not sold.

The concepts in this area have changed and I’m not saying that they shouldn’t have changed, I’m simply saying that what a system did not do in 1955 should not indict it at this time on the basis of requirements that we feel have been imposed only by decisions starting in about 1967 in the Fifth Circuit in the Jefferson and in the Green case in 1968.

Warren E. Burger:

But what are the specifics now?

E. Freeman Leverett:

I think a school system has to completely change its method of assigning students from the old system.

The old basis in most southern school districts was a neighborhood plan except you had dual zones, you had one for black and one for white.

I think a system in order to carry out its affirmative duty has to erase those dual zones and it has to draw a line.

It wants to go a neighborhood plan and say, students on this side will go to this school, students on that side will go that school.

I think the system as this Court interpreted by saying in Green.

Could on the other hand, go to a pure uninhibited freedom of choice.

Now, the problem in Green and the other cases is that the choice was not free and we have attempted to distinguish those cases in our brief at page 29, I believe.

Now all three of them and show that in each instance, the free choice plans involved in those three systems continued to make initial assignments in one form or another of students on the basis of race and then put the burden on them to get out of it.

Warren E. Burger:

The second one then is a bona fide freedom of choice which would be implemented in good faith, don’t they?

E. Freeman Leverett:

Correct sir.

Warren E. Burger:

Alright.

Now, what’s the third?

E. Freeman Leverett:

Well, those of the two types of plans that immediately come to my mind.

I say now if a system wants to consolidate all of its schools and out them all in one, I think it could do that and that would set to solve the problem.

I think —

Potter Stewart:

Are there other affirmative duties with respect to faculty and —

E. Freeman Leverett:

Yes, sir.

Hugo L. Black:

— and buildings —

E. Freeman Leverett:

We concede those, we concede though.

Hugo L. Black:

— transportation and many other things.

E. Freeman Leverett:

Certainly, faculties, extra curricular activities, athletics, there are other five or six points that are referred to in Green.

Byron R. White:

What insulates in your mind in order of the school board to a faculty member to go to a certain school and teach there because he is a black teacher or he is a white teacher?

E. Freeman Leverett:

What insulates it?

Byron R. White:

Yes, I mean why is that consistent with the Fourteenth Amendment?

E. Freeman Leverett:

I don’t think that it is.

If the assignment of that teacher is motivated by considerations of race whether to achieve a particular racial balance or otherwise, we submit, it is not involved in this case.

Byron R. White:

So, you say the same rule applies to faculties to the students?

E. Freeman Leverett:

Certainly, that’s right.

Now, you have a difference in that —

Byron R. White:

So, you don’t concede anything about the faculty?

E. Freeman Leverett:

No sir, certainly not.

But I’m saying this that the system cannot continue under the old arrangement.

One solution might be to simply to undo the affects, to simply put all the names in a hat, maybe classify some of them that perhaps it would not be qualified to go into a particular school and then draw the names out.

In that way you will have the pure chance say you are coming in.

Warren E. Burger:

And that would mean till you give much help in terms of long distances, would it, if you left it to pure chance?

E. Freeman Leverett:

No, sir.

But it would be one way to avoid containing the affects of past discrimination.

It may not be educationally wise, but I’m trying to postulate something in terms of satisfying cure.

Warren E. Burger:

Perhaps might be worst than the old, don’t you think?

E. Freeman Leverett:

That’s quite possible.

Perhaps the — I think what should have been done and we recognize now and the Court’s decision is that as replacements were made, they should have been made on a nonracial basis.

And perhaps in many instances they were not and practically the way it works is that the principal of each school usually goes out to the teachers and the black principals get the black teachers and the white one gets the white.

This Court has told us that that’s wrong and we recognize that, regard– you can’t delegate it to someone.

The Fifth Circuit has stated what I’m trying to state in these terms or first, let me say this.

In the Houston case, the judge there referred to the fact that the Constitution guarantees the Right to Vote.

It guarantees the Right to ride buses free of discrimination, but the Constitution does not require that person vote and it does not require that he ride the bus in any particular manner.

He can go to the — still go to the back or he can go to the front, anywhere else that he wants to.

The Fifth Circuit said this.

The Constitution affords in these rights not recognized until a recently.

E. Freeman Leverett:

It does not impose an obligation on him to exercise them.

It is for him to decide whether it be to his advantage, individual is still the master of his fate.

And we say thirdly, that all students cannot be assigned to schools on the basis of race without at the same time violating the rights of those students both black and white and there four instead of three here as Mr. Epting said, without at the same time violating the rights of the black and white pupils who object to being assigned on the basis of race.

I think for this purpose we can assume, although, we will certainly not concede the validity of this proposition that says that educational or equal education opportunity cannot be achieve in fact unless there is an actual integration of the races.

But assuming that, it does not follow, we submit, that the rights of the groups seeking compulsory association to achieve this end of equal educational opportunity can be superior to those who seek to avoid it and this Court said this in Shirley versus Kramer.

The Constitution confers upon no individual the right to demand action by the state which results in the denial of equal protection of the laws to other individuals.

It’s never been constitutional doctrine that the rights of one group seeking this can be used as a pretext for denying him to another group.

Hugo L. Black:

Well, do you think of a law could not passed by the Congress to that effect?

E. Freeman Leverett:

Mr. Justice Black, I would —

Hugo L. Black:

That the Courts have power to do it?

E. Freeman Leverett:

Mr. Justice Black there is certainly a difference between the Power of Congress under the Enforcement Clause and the Power of a Court proceeding in the context of these cases.

I would say that Congress could not do it.

I stood here about four years ago and argued a voting rights case and —

Hugo L. Black:

But suppose Congress could, does it necessarily follow that this Court could?

E. Freeman Leverett:

No sir, it’s certainly does not because the difference between — it’s the difference between the Power of Congress which is given the authority to implement the Fourteenth Amendment and the Power of the Courts which are not given that express authority, but necessarily have to enforce part of it.

And another appearance of the Houston case —

Warren E. Burger:

While we’re there, would you say that the Powers of the Court, this Court, and the Powers of Congress under the Fourteenth Amendment are mutually exclusive?

E. Freeman Leverett:

Not mutually exclusive.

I don’t think they are identical.

Warren E. Burger:

Just under the one Section I’m talking about, just under the Enforcement Clause, that is —

E. Freeman Leverett:

I’m not certain I understand what you mean by mutually exclusive under the Enforcement Clause?

Warren E. Burger:

If it falls under the Enforcement Clause that only Congress may implement it with actual and not the Courts, is that your argument?

E. Freeman Leverett:

Well, Congress of course has enacted certain statutes 1983, 1981 on which all suits are brought, but I don’t think that the Court has interpreted the Fourteenth Amendment as being limited to the express provisions spelled out by Congress in statute.

The Court has said that it has certain powers and responsibilities under the Fourteenth Amendment independent of the statute, but it does not follow that its power is the same or can be equated to in the absence of the statute to the power that it would have if Congress had enacted a statute.

Warren E. Burger:

Could the Court have framed the remedies which were articulated in 1983 and the related sections, independent of Congress?

E. Freeman Leverett:

I would think not sir.

Hugo L. Black:

You would take the position, they couldn’t pass the statute?

E. Freeman Leverett:

That’s right.

It’s expressing it more directly.

I would like to distinguish two doctrines that are relied upon in these cases by the plaintiffs or the petitioners.

E. Freeman Leverett:

It said that there are two doctrines that can be used to support this and one is the remedying the effects of past discrimination and the disestablishment cases.

In the one instance reliance is placed upon the voting cases involving the freezing principle.

All the answer to that simply is this that there you can accomplish your remedial device without denying the rights of the whites and blacks who object.

In the freezing cases you have two classes, one of which was granted certain rights and one of which was denied it and in that context you simply confer the rights on the class that were denied and you don’t take anything away from the other class that was granted the favored treatment.

In the disestablishment cases, the reliance is placed upon the — a lot of cases in any trust fields saying that having found an illegal combination or something in violation of law, that the courts can go further than simply issuing a prohibitory injunction aimed at the future and can require retroactively a divestiture or a dissolution of the illegal combination.

There the Courts are dealing with entirely with wrong doers.

Everybody has had some culpability involved in that situation.

So, there is no problem presented in saying that we can rob you of the fruits of this illegal conspiracy, but here, you have innocent white and black children who are objecting to this treatment and their rights cannot be made, we submit to be sacrificed in order to order to accord the rights to somebody else.

Warren E. Burger:

I see if I follow.

You are suggesting a school board could solve this problem constitutionally.

Satisfy all our demands, if it had zones and paring of schools etcetera, the same types of things that have been done in all of these cases, but provided that any pupil objecting would have the freedom of choice to go where he wanted to go, is that true?

E. Freeman Leverett:

No, sir.

That would still involve an initial assignment by race if the lines were gerrymandered.

Now, I’m not certain that I understood —

Warren E. Burger:

Well —

E. Freeman Leverett:

If the lines were not based on race, I think what the Chief Justice has said would be correct that that plan would be valid in superimposing an absolute, completely freedom of choice option on top of it would not invalidate it.

But, if you presuppose that in drawing these lines or in going to these parings that this was based upon race, I think you’re right back where you started.

Warren E. Burger:

Well, wouldn’t it be permitted, couldn’t they take advantage of an assignment even if it was done on race.

If they liked it and wanted it and didn’t object to it?

E. Freeman Leverett:

No, sir.

The cases in the Fifth Circuit struck down, the old pupil placement statutes on that very reasoning.

That even though they gave the student an unlimited right to transfer out that he was still initially assigned to the old school that he had been assigned to on the basis of race and the burden was putted on him to do that which the Board of Education itself should have carried on.

Warren E. Burger:

I wasn’t proposing that as a remedy.

I was proposing that I understood your proposition to encompass that as a permissible remedy.

But you say that if in the first instance, race was taken in to account in the zoning or the pairing its void right from the beginning?

E. Freeman Leverett:

The proposition that I formulated in response to a question that Mr. Justice Douglas had asked, was that it was not any zoning to begin with but a complete freedom of choice along the lines that Fifth Circuits said out in the Jefferson case in 372 F2nd 836 where they said that, they set out the requirements and said that, if a student does not assign himself, you have to assigned him to the nearest school on the basis of proximity.

Coming back momentarily to this question, I think these — the arguments that have been made here in which is it is said that the remedial aspects of this in order to give the remedy, the Courts can do this.

It comes down to this that can a remedial device be employed which denies a substantive right to another class?

I see that my time is up.

Byron R. White:

May I ask you, you said a while ago that the board has planned this case with the (Inaudible) proffered by HEW?

E. Freeman Leverett:

Yes sir, they had enforcement proceedings pending against them, they had been already threatened with one —

Byron R. White:

Since you got all that all beginning question of HEW’s conduct, was that conduct understandable?

E. Freeman Leverett:

No sir.

We certainly challenge it.

That the board had adopted a bona fide neighborhood plan which eliminated it —

Byron R. White:

Was it — let me rephrase my question.

If you challenge the authority of HEW under statutes that governs this conduct —

E. Freeman Leverett:

Yes, sir, we do.

Byron R. White:

That the — and i suppose you would say that if its conduct was authorized by the statute, is that true?

E. Freeman Leverett:

That’s correct sir.

I would although my time is up, but I would point out that we also contend that this plan is void because it placed unequal burden upon the Negro respondents by requiring them to be assigned out of their zones where it did not impose that upon the whites.

Warren E. Burger:

Thank you Mr. Leverett.

Mr. Epting you have some time for —

Eugene A. Epting:

Excuse me, Mr. Chief Justice I am about used it and I think I have said all I need to say.

Warren E. Burger:

Thank you Mr. Epting.

Thank you Leverett.

The case is submitted.