McNeese v. Board of Ed. for Community Unit School Dist. 187

PETITIONER:Louis McNeese, Jr., a minor, by Mabel McNeese, his mother and next friend et al.
RESPONDENT:Board of Education for Community Unit School Dist. 187, Cahoka, IL et al.
LOCATION:School District 187

DOCKET NO.: 480
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 373 US 668 (1963)
ARGUED: Apr 23, 1963
DECIDED: Jun 03, 1963

ADVOCATES:
Howard Boman – For the Respondent
Raymond E. Harth – For the Petitioner
Robert H. Reiter – For the Respondent

Facts of the case

African American students in District 187 sued the school under the Civil Rights Act, alleging violations of the Fourteenth Amendment. While the school district contained an almost identical number of Caucasian and African American students, the petitioners alleged that the two races were taught in separate parts of the building and were compelled to use separate entrances and exits. The district court dismissed the complaint for failure exhaust administrative the remedies available under an Illinois law prohibiting segregation public schools. The U.S. Court of Appeals for the Seventh Circuit affirmed.

Question

Did the district court err in dismissing the case because petitioners did not exhaust state remedies before filing suit?

Earl Warren:

Number 480, Louis McNeese, Jr., a Minor by Mabel McNeese, His Mother and Next Friend, et al., Petitioners, versus Board of Education for Community Unit School District 187.

Mr. Harth.

Raymond E. Harth:

Mr. Chief Justice Warren and may it please the Court.

This is a school segregation case brought under the Civil Rights Act Section 1983, pursuant to the judicial code Title 28 Section 1343 subparagraph 3.

The allegation of the complaint in substance is that the plaintiff-children had been compelled to attend racially segregated public schools and that this violates their rights to due process of law and to equal protection of the law as guaranteed by the Fourteenth Amendment.

The plaintiffs are Negro elementary school children who reside in Centreville, Illinois.

Now, Centreville is a city just outside of East St. Louis in Southern Illinois.

And they attend the Chenot Elementary School which is one of several elementary schools operated by the defendants and the Community Unit School District Number 187.

It is at this school that the defendants maintain separate classes for white and Negro students in the same school building, and it is also in this school that Negro children are required to use separate entrances to and exits from the school building from those used by the white children.

Now, the Chenot School is relatively new.

It was opened in the year 1957 at the opening of the school year.

Now, the complaint alleges that this school was planned and built and its attendance area boundaries were intentionally drawn by the defendants so as to make it an all-Negro school in the students enrolled.

Now, the presence of the white children in the school at the present time was something that happened subsequent to that period.

In fact, and as alleged in the complaint, all children of elementary-school-age who reside within the Chenot attendance area are Negroes.

William J. Brennan, Jr.:

Where is Chenot?

Raymond E. Harth:

The Chenot School is in Centreville.

It’s just outside —

William J. Brennan, Jr.:

I mean, where is the community in rel — in the state?

Raymond E. Harth:

It’s in Southern Illinois, just outside this City of East St. Louis.

William J. Brennan, Jr.:

That’s not (Inaudible)

Raymond E. Harth:

Yes.

Potter Stewart:

That’s not what I thought because Illinois goes much further south.

Raymond E. Harth:

It goes much further south.

Potter Stewart:

I thought it was called —

Raymond E. Harth:

— this is not in the very southern part.

Potter Stewart:

Little Egypt or whatever it’s called.

Raymond E. Harth:

That’s correct.

Potter Stewart:

But this is not in that area?

Raymond E. Harth:

No.

Potter Stewart:

It’s in the St. Louis Area.

Raymond E. Harth:

In the St. Louis Area, that’s correct.

The City of Centreville, in fact, is adjacent to the City of East St. Louis.

Now, subsequent to the opening of the Chenot School in 1957, there were white children who were transferred into there from the adjacent Centreville school area but, prior to the opening of the Chenot School, the Negro children who were assigned there all attended the Centreville Elementary School which was also attended by white children.

However, at that time, the defendants achieved the segregation by requiring all Negro children to attend classes in the afternoons exclusively while the white children attended school in the mornings exclusively.

Now, there was one exception in the case of certain slow fifth and sixth grade white students who, because of the academic deficiencies, attended all day.

Except for that, there was a rigid pattern of segregation maintained even prior to the opening of the Chenot School.

Now, since they —

Potter Stewart:

What we have — what you’re telling us, Mr. Harth, is disclosing this case, if it all, only by the pleadings, isn’t it?

Raymond E. Harth:

This is all by the pleadings, that’s correct, and by the motion to dismiss, of course, the defendants admit all facts while pleading.

Potter Stewart:

Yes.

Raymond E. Harth:

Yes.

Now, since 1957 and because of overcrowding at the adjacent Centreville School, certain fifth and sixth grade classes only were transferred to the Chenot School Building.

Now, these classes consisted of approximately 97% white students and 3% Negro students.

Now, upon being transferred to the Chenot school harbor, they became students and were carried on the roles as being students of the Chenot School and their teachers were carried on the role as faculty members of the Chenot Elementary School.

However, the complaint alleges that these classes were maintained intact while at this Chenot School in pursuance of the defendants’ plan to maintain separate classes are racially for white and Negro students.

Now, this complaint was filed a few days after the opening of the 1961-1962 school year, and it refers specifically to certain statistics from the 1960 and 1961 school year.

However, the amended complaint does allege that all or substantially all of these same conditions which we allege existed in 1960 and 1961 were true for the then-current school year, and we submit that this is a sufficient answer to the point which is raised by the respondents in this connection.

Now, as alleged in the complaint, at this particular time, there were 251 Negro students and 254 white students.

All the white students and eight of the Negro students were in the classes which were transferred from the Centreville School.

There were 10 classes with only Negro students and there were 3 classes with only white students.

The other 5 classes of the total of 18 had 8 Negro students who were divided along with about 146 white students.

Now, except for these eight, all the Negro students attended classes in one part of the school building while all the white children attended — Negro children attended classes in the other part of the building and, further, they were compelled to use different entrances to and exits from the same school building.

The complaint further alleges that these facts continue to exist through the then-current school year despite request, demands, and pleas to the defendants to cease and desist from their actions.

It further alleged that the defendants were acting to perpetuate such a racially segregated public school system.

The defendants filed a motion to dismiss the original complaint and leave of court was granted to file an amended complaint.

What verdict did you ask for?

Raymond E. Harth:

The complaint asked for relief of a declaratory judgment declaring the policies of the defendants violated the constitutional rights of the plaintiff-children.

It asked for an injunction to restrain the defendants from further violating the constitutional rights, and it asked that the Court order the defendants to submit a plan for desegregating their district.

The motion to dismiss was extended to attack the amended complaint and, in substance, the motion to dismiss said that the complaint failed to state a claim upon which relief could be granted because the plaintiffs had not exhausted certain procedures under an Illinois law, referring specifically to Section 22-19 of the Illinois School Code.

Now, that Act provides, in substance, that upon the filing with the State Superintendent of Public Instruction of a complaint signed by 50 persons or 10% of the residents of the school district, whichever number happen to be the smaller, alleging that any pupil has been excluded from or segregated in a school because of his race, that the State Superintendent, on receiving such a complaint, was required to set a date for a hearing.

Raymond E. Harth:

It also provided that the State Superintendent may set a date for a hearing whenever he has reason to believe any such discrimination may exist in a school district.

The statute provides for representation of the parties by counsel for cross-examination, subpoenaing witnesses, and for the taking of depositions, as in other civil actions.

Now, following the hearing — and this is a significant part of the statute, following the hearing before the State Superintendent, he must decide whether the allegations of the complaint are substantially correct.

Now, this is all that he can do after such a complaint is filed.

He can only determine whether the allegations are, and I quote from the statute, “substantially correct” and if he does so determine, he shall request, and the statute provides and I’m quoting from the statute, “he shall request the Attorney General to apply to the appropriate Circuit Court for such injunctive or other relief as may be necessary to rectify the practices complained of.”

It gives him no power, no authority to issue any cease and desist orders to the local school board who he might have found has committed acts of racial segregation.

All he can do is ask the Attorney General to institute an action in the Circuit Court revealing in the final analysis, of course, that this is really judicial and not administrative.

The plaintiffs responded to this motion by asserting that the actions being brought under the provisions of the Civil Rights Act need not be preceded by the exhaustion of state remedies, and that the remedies referred to by the defendants were neither administrative, adequate, or available.

Potter Stewart:

Well now, is this an exhaustion case, or is it — well, the claim made simply that you didn’t even — even — to even attempt to invoke the state remedies?

Raymond E. Harth:

The Court did refer to the fact that we did not even attempt to invoke the state remedies.

It wasn’t a matter that we started and we didn’t complete them.

The Court of Appeals said that until, and because the complaint — they say that the complaint did not allege acts which were unconstitutional in themselves, that we must allege in the complaint that we have exhausted state remedies.

Potter Stewart:

Exhausted or invoked?

Raymond E. Harth:

I believe that the opinions said —

Potter Stewart:

Well, the opinion speaks for itself.

I don’t —

Raymond E. Harth:

I believe it did say that, “exhaustion,”

Potter Stewart:

I just want to be — get clear in my own mind what the issue is here.

Raymond E. Harth:

Alright.

Potter Stewart:

Whether it’s an exhaustion issue or a failure to try.

Raymond E. Harth:

Well, I believe the Court said, and it’s on page 29 in the records, “Because the amended complaint does not allege School Board policies which are unconstitutional in themselves, parents are required to resort to the remedy held forth in the Illinois School Code before seeking the aid of a Federal Court.”

So what the Court is saying in substance is that the Court has no jurisdiction in a case of this type, to hear and determine the controversy until such time as we have applied for a remedy under the state statute.

Earl Warren:

Mr. Harth, in the event the Superintendent has a hearing on one of these complaints under these administrative procedures and he finds that the complaint is not supported, is there any judicial review of that action on his part?

Raymond E. Harth:

Under the Administrative Review Act of the State of Illinois, an appeal could be taken to the appropriate Circuit Court.

However, the Court in that case could not substitute its findings for that of the administrative — Administrative State Superintendent could merely determine whether or not the finding was contrary to the manifest weight of the evidence.

Now, of course, the District Court sustained the motion to dismiss because of the failure to exhaust and the Court of Appeals pro —

William J. Brennan, Jr.:

Well, let me see if I understand your position, Mr. Harth.

Is it that this is an action under the Civil Rights Act?

Raymond E. Harth:

That’s correct.

William J. Brennan, Jr.:

It alleges a violation of constitutional rights primarily separation by races requiring individual en — or separate entrances and exits.

Raymond E. Harth:

Also —

William J. Brennan, Jr.:

And, therefore —

Raymond E. Harth:

It also alleges there was a manipulation of the school boundary lines by the defendants to create an all-Negro school.

William J. Brennan, Jr.:

Yes, and therefore that you’re not required, in the context of those allegations, to invoke any state remedies of Court.

Raymond E. Harth:

That is correct.

We think that the holdings of this Court have so-indicated as well.

Hugo L. Black:

The Fourth Circuit is contrary.

Raymond E. Harth:

The Fourth Circuit, in its cases, is dealing with a remedy which is called a Pupil Placement Act.

Now, it seems to me that what those cases are saying is that these Acts, having been passed after the decision of this Court in Brown versus Board of Education, appear to be constitutional on their faces but — and appear to provide a method whereby students could be assigned to schools on a non-discriminatory basis.

And so, they say in those cases, it seems to me, that before you can show that the state officials have discriminated against you, you must apply for admission to school in accordance with those statutes.

Now, I might point out some of the later cases involving Pupil Placement Acts in the Fourth Circuit have found that the application of those statutes has been unconstitutional and has — these cases upheld that they need not be complied with it but this is because the Acts have been unconstitutionally applied.

The principal issue therefore presented by this case is one which this Court has not previously decided and the various Circuits are in conflict on this particular point and litigation proliferates and, probably, substantive rights of the plaintiffs in these cases go without adjudication.

For example, in the southern and border states alone, more than 293 court cases had been filed in state and federal courts on school segregation as of November 1962.

Earl Warren:

We’ll recess now, Mr. Harth.

Raymond E. Harth:

Mr. Chief Justice Warren.

At the time that we recessed for lunch, I just referred to the fact that there had been 293 court cases filed in state and federal courts on the issue of school segregation up to 1962.

Now, a number of these cases have been going back and forth in the lower federal courts because of a good deal of confusion in this very area that is presented by this case as to whether or not, in a civil rights action against school segregation, that it’s necessary to exhaust state remedies.

Now, this action is based on the Civil Rights Act Section 1983 which provides for a civil action for deprivation of constitutional rights under the color of law.

Now, the jurisdiction in this case is asserted under Section 13-43 subparagraph (3) which provides that the District Court shall have original jurisdiction of any civil action which is brought to redress the deprivation of civil rights guaranteed by the Constitution.

William O. Douglas:

Is that the same one that was involved in Monroe?

Raymond E. Harth:

Monroe versus Pape, exactly.

The same statutes were involved in both cases and, I might point out to the Court, their rule that the fact that there is an existence of state remedy, there’s no bar to a federal remedy, although, there, they are considering the damage claim.

Here, we’re seeking an injunction.

And, the other part of that one was that there was a state judicial remedy, but the Court said, in referring to Monroe versus Pape, in referring to that fact, that the fact that there is such a remedy is no bar to relief because the federal remedy is supplementary to the state remedy and need not be first sought and reviewed before the federal right is invoked.

William O. Douglas:

That’s what we said in that case, but what did the Court of Appeals say about that?

Raymond E. Harth:

The Court of Appeals, as I recall, did not say anything about that.

I don’t recall that they refer to the case Monroe versus Pape at all, although it was in our brief there.

The complaint here charges that the plaintiff-children had been deprived of due process of law and equal protection of the law by the defendants.

And, the principal issue then, it seems, is whether any suit under the Civil Rights Act seeking declaratory and injunctive relief against the maintenance of a racially segregated school system or whether the plaintiffs must, first, seek a remedy provided by the state before suing in the federal court.

Now, we submit that the answer to this is and must necessarily be in the negative because the complaint here alleges, among other things, maintaining separated classes and facilities for white and Negro pupils in the same school.

Raymond E. Harth:

Now, that such allegation is sufficient to show a deprivation of equal protection of the law is clear from this Court’s decision many years ago in the McLaurin versus Oklahoma State Regents and, further, the complaint alleges that the defendants have manipulated the attendance area lines in order to make the Chenot School an all-Negro school.

And, again, these allegations are sufficient, as shown by the decision of Taylor versus Board of Education of New Rochelle which this Court denied certiorari and, I might also point out by comparison, the case of Chameleon versus Lightwood recently decided by this Court.

But the Court of Appeals has held that the allegations are not sufficient to allege School Board Acts which are unconstitutional in themselves.

As to this, we submit that the lower Court is clearly in error.

The Court went on to say that, since the allegations were insufficient to allege cons — Acts which are unconstitutional in themselves, we must, therefore, allege the exhaustion of the state remedy.

Now, there is no doctrine of invoking state administrative remedies or any administrative remedies.

If it is required at all, it is req — they are required to be exhausted, not merely invoked.

Now, it’s true in this case, we did not — not only did not exhaust, but we did not even invoke them because of our position that it was not necessary and, further, because of the inadequacy of the remedy.

A —

Potter Stewart:

Excuse me.

You go.

Tom C. Clark:

Did you, in fact — perhaps it’s shown in the record, if not, I don’t know.

Did you, in fact, make any effort to proceed to the state?

Potter Stewart:

No, we did not.

As a matter of fact, the complaint specifically alleges that the plaintiffs have not exhausted it because the administrative remedy is inadequate.

When was the state procedure enacted?

Raymond E. Harth:

It was enacted in 1961.

It became effective July 1, 1961.

This complaint was filed September 1961.

Potter Stewart:

The Illinois, as a matter of state law, has prohibited racial segregation in its school systems since, what, 1901, hasn’t it?

Raymond E. Harth:

That’s correct.

For many, many years, this has been the case.

Potter Stewart:

But this procedure is relatively new.

Raymond E. Harth:

This is a relatively new procedure, that’s correct.

Potter Stewart:

Was there anything — did it have a predecessor?

Raymond E. Harth:

None at all.

Arthur J. Goldberg:

(Inaudible)

Raymond E. Harth:

That is correct, and this is one of the points that we make.

It’s in — covered in our brief in the third part.

That this remedy, if it can be called a remedy at all, is unavailable because of the requirement of 50 signatures and the nature of a constitutional right is one which is an individual right and cannot be made to defend upon the consent or concurrence of any number of other persons.

Potter Stewart:

There is a provision, isn’t there, that the Superintendent can proceed on his own motion?

Raymond E. Harth:

It says that he may, yes.

Potter Stewart:

Where does that appear in the brief or isn’t it —

Raymond E. Harth:

It appears in the — in Section 22-19, in the second paragraph, referring to our brief on page 3 under statutes involved, in the second paragraph which starts “the Superintendent shall fix a date not less than 20.”

The second sentence he may also —

Potter Stewart:

Yes.

Raymond E. Harth:

— fix a date for hearing whenever he has reason to believe.”

Now, I might point out that there is nothing in the statute that says that an individual may request the State Superintendent to initiate such a hearing and there’ll be any compulsion by him to do this, except —

Potter Stewart:

Well, wouldn’t it at least be presumed that if any one individual wrote to him and set out the — told him about a pattern of racial segregation in a particular school district, that that would give him a sufficient basis to have reason to believe, as the statute says, that such discrimination may exist.

Raymond E. Harth:

That is correct, this might —

Potter Stewart:

And then authorize him in his discretion, as it says “may,” to proceed.

Raymond E. Harth:

That’s correct.

This might very well happen.

We don’t deny this at all, but our point is, though, even if he were to do so and even if he were to go through all these proceedings of conducting a hearing, he can still grant no relief.

His action is limited at the conclusion of the hearing to requesting the Attorney General —

Potter Stewart:

To proceed.

Raymond E. Harth:

To proceed in the state court.

Potter Stewart:

And, again, this is just a request.

He can’t–

Raymond E. Harth:

That’s a request and, as a matter of fact, there isn’t anything in the statute which provides or which tells the Attorney General that he must exceed to such a request and, as also pointed out in our brief, there’s some question as to whether or not under Illinois law the Attorney General has the right to file such an action because the — that authority is not granted by Section 22-19, except possibly by implication.

Potter Stewart:

I see.

My question as to this part of the statute was really directed to your point that it requires 50 people to initiate one of these proceedings.

Raymond E. Harth:

Right, what —

Potter Stewart:

And I thought that maybe one person writing to the Superintendent and setting out a situation in a particular school district would then permit the Superintendent to proceed.

Raymond E. Harth:

That is correct, it might.

But, you see, if this statute is going to be interposed between these plaintiffs and their federal remedy, it would seem to us that there should be some more compulsion on the State Superintendent to conduct such a hearing rather than just a request.

Arthur J. Goldberg:

(Inaudible)

Raymond E. Harth:

That’s a separate point, yes.

Potter Stewart:

And, that would be — even, even though 50 people get together and make a complaint, still, they’d abs — the element of compulsion is absent, isn’t it?

Raymond E. Harth:

That’s correct.

Raymond E. Harth:

Now, the 50 people, if there is a signature by — petition by 50 people, he must conduct such a hearing.

He must conduct it.

William O. Douglas:

The language there is “shall.”

Raymond E. Harth:

“He shall,” that’s correct.

William O. Douglas:

In person.

Raymond E. Harth:

But, in the other part, it said “he may.”

Potter Stewart:

Well, but you still have the lack of compulsion after he’s comple — finished on the Attorney General?

Raymond E. Harth:

That’s correct.

Arthur J. Goldberg:

(Inaudible)

Raymond E. Harth:

He has not.

Arthur J. Goldberg:

(Inaudible)

Raymond E. Harth:

He has not.

Might I point out that he was originally named as a defendant but his name was stricken as a party-defendant after they filed the amended complaint.

Now, the defendants, in moving to dismiss, of course admit all facts of the complaint which are well pleaded and what they are saying, therefore, is that we admit that we planned and built the Chenot School to make it an all-Negro school and that we did this by drawing its attendance area boundaries so as to make it conform to the Negro residential area.

We admit further that prior to 1957 that Negro children were made to attend classes in the afternoons while the white children attended schools in the morning.

And we further admit that we are maintaining separate classes for white and Negro children in the same school and make them use different entrances and exits, but what the defendants further say is that there is nothing that a federal court can do about this until the plaintiffs have asked the State Superintendent of Public Instruction to correct what we have done.

But, the defendants’ position ignores the clear and explicit language of the statutes which give the federal court jurisdiction of this case and which give rise to this action, Section 1983 of the Civil Rights Act and Section 1343 of the Judicial Code.

Now, the effect of the decision below is that a state may encumber or limit this federal jurisdiction which is granted by passing a statute which appears to grant a remedy because the opinions assume that the exhaustion of state administrative remedies or state remedies is jurisdictional and an absolute prerequisite to the exercise of federal judicial powers.

Now, if such a view is upheld, I submit that there would be a complete abdication of federal judicial responsibility which would deprive the petitioners of a federal forum completely and remitting them to the remedies made available by the State with the implied invitation, of course, to return if relief is not secured from the State.

Now, indeed, if such is to be the rule, then access to federal courts, to a remedy to school segregation could be effectively blocked particularly in those states where, as a matter of common knowledge, there is a strong desire to maintain the status quo.

Now, this Court recently had occasion to consider the legislative history of Section 1983 which gives rise to this action and consider the issue on existence of a state remedy, and that was the case of Monroe versus Pape.

I might point out further that the concurring opinion of Mr. Justice Harlan in the case of Monroe versus Pape, considering this very same question in the extent to which the Congress intended to give a federal remedy, stated as follows: “the statute becomes more than a jurisdictional provision only if one attributes to the enacting legislature a view that a deprivation of a constitutional right is significantly different from and more serious than a violation of a state right and, therefore, deserves a different remedy, even though the same Act may constitute of a state tort in the deprivation of a constitutional right.

Now, while the Court there was talking about a tort action brought by an individual, the same basic reasoning, I would think, would hold true here.

The existence of a state remedy is no bar to the federal remedy which is provided by a federal law.

The Court considered the debates in the legislative history of Section 1983 and of Section 1343, and it found that the spirits of tho — the spirit of those Acts was the access to the federal courts for redress of civil rights was not to be delayed by the availability or non-availability of state remedies.

Arthur J. Goldberg:

(Inaudible)

Raymond E. Harth:

The decision in Harrison versus NAACP?

Arthur J. Goldberg:

Yes.

Raymond E. Harth:

As I recall, this involved a question of the constitutionality of certain statutes and I would say, no.

This —

Arthur J. Goldberg:

(Inaudible)

Raymond E. Harth:

That is correct, but the case of Harrison versus NAACP involved a question of interpretation of the state law which we do not have, at this point, in this case and, indeed, the dissent did say that since this was a Civil Right — Rights Act that it would not be necessary that the Doctrine of Abstention was inappropriate.

This point has been urged with great force, as I recall, on many occasions, that Congress intended to treat civil rights violation different from other violations and this is, of course, as indicated by the fact that in a damage action, for instance, it’s not necessary to have the jurisdictional amount in controversy.

Indeed, one could be filed if the amount were $10, $15, or $100 involved.

Now —

William J. Brennan, Jr.:

(Inaudible) even though the action was a civil rights action and (Inaudible) nevertheless, it’s much (Inaudible) even though the action was a civil rights action.

Maybe it was the (Inaudible)

Raymond E. Harth:

That is correct but this would involve the question, and this would have been true not only in a civil rights case but in any other one where there’s a question of interpretation of state law.

Here, the — there, the plaintiffs were asking for there to be a declaration of unconstitutionality of a state statute and there, of course, you were very — had the problem of a federal court declaring unconstitutional state action, which of course the courts have a reluctance to do.

If they can reasonably avoid it without unduly limiting the person’s rights which may have been granted under federal law.

And the Court, as I recall, held there that, until such time that the state court held that the statute was applicable, that federal court —

William J. Brennan, Jr.:

Your point here is you don’t have to get administrative state remedy, no matter what it could be.

You’re just seeking a remedy, that’s all, under civil rights.

Raymond E. Harth:

That’s correct.

Now, these cases which have involved the exhaustion of administrative remedies, I might point out, have been where the administrative remedies sought has been the agency itself which has caused the violation of rights.

To my knowledge, this is the first case that’s been presented to this Court where it has been contended that you must go to a state agency for review of another state agency before you can come into a federal court, and this is significantly different.

There had been those cases which have held that the administrative remedies would have to be exhausted before granting judicial relief in many other areas, not just limited to civil rights.

But, that doctrine is based upon the existence and ability of an administrative body to hear and adequately dispose of the entire controversy in a reasonably expeditious manner.

Otherwise, there would be no reason for requiring a person to resort to any such remedies.

Supposing there had been a built-in into this statute does not complain in a mandatory hearing or discretionary hearing without a finding that there had been violation of these constitutional rights for the Superintendent to do something about it.

What would you say then?

Raymond E. Harth:

Our position would still be the same on the first point that we would not be required to submit to those procedures before we would be entitled to come into a federal court.

Whatever remedy that he would give or could give, assuming that he had this built-in provisions, would certainly be a significantly different remedy from that which would be provided by a court and a judgment — a declaratory judgment.

So that, we’d be — in that case, we would say that this would not be an absolute bar to a proceeding under the Federal Act as the Court below has held in this case.

However, the statute involved here does not provide such a remedy and I would point out that it is quite similar to the statute which was before this Court in the case of U.S. Alkali Association versus U.S.

And, in that case, there was one which was brought under the Sherman Act.

The Section 5 of the Webb-Pomerene Act provided that, before an action — an antitrust action should be instituted against the trade association, that the Federal Trade Commission should conduct a hearing into the alleged violations, and at the conclusion of the hearing, it would make a recommendation to the association that it rectify its practices, and if it did not do so, then it would request the Attorney General to take such action as he might deem proper.

And, the Court, in that case, rejected an argument that equity should not appear and advance such a process by pointing out that, under the Section 5 of the Webb-Pomerene Act, the only function of the Federal Trade Commission was to investigate, recommend, and report.

It pointed out that it could make no controlling finding of law or fact and its recommendation need not to be followed by any court or administrative officer, or executive officer.

And the Court there held that such are– such a statute, since it did not provide a remedy, need not be exhausted before this action could be instituted.

Was there any suggestion in this case that you don’t argue with the interest that this statute is just amended on the part of Illinois to beat Negro right?

Raymond E. Harth:

No, it does not — we do not contend this.

There is no contention of that kind?

Raymond E. Harth:

No, absolutely not.

It appears, from all that we can see as to be simply a method whereby it gives the State Superintendent power to investigate charges of racial discrimination which the school code doesn’t otherwise give him, but it will noted in the view of the fact that it’s limited to investigating.

It does not give a remedy.

It was not intended, it seems to us, to give any remedy and, certainly, it was — I would not ascribe to the legislature any intention to try to block parties from going into federal court by passing such a statute.

We certainly do not contend that.

Arthur J. Goldberg:

What do you say about the intention made by Congress that (Inaudible)

Raymond E. Harth:

Well, it is our position that this does not give him any specific authority, in that, unless there is a specific grant of authority to an official, I guess he doesn’t have it.

There’s nothing specific —

Arthur J. Goldberg:

(Inaudible)

Raymond E. Harth:

The st —

Arthur J. Goldberg:

(Inaudible)

Raymond E. Harth:

We know of no such order by the State Superintendent at all.

Arthur J. Goldberg:

(Inaudible)

Raymond E. Harth:

I beli —

Arthur J. Goldberg:

(Inaudible)

Raymond E. Harth:

I don’t recall that that was in there but, I do recall, I believe it was 1870 that the Constitution was —

Arthur J. Goldberg:

(Inaudible)

Raymond E. Harth:

I would say so.

I might point out, in regard to this question, if the legislature had intended to give the State Superintendent authority to correct discrimination that it had found to exist, it would have been very simple for it to have done so right in Section 22-19 by saying, in addition to it — or instead of requesting the Attorney General to institute an action to say that he may then issue cease and desist orders and so forth, but the statute manifestly does not do that.

Now, the Court, we might further point out, in connection to this, the 50-signature requirement of the statute is again a reason why we should not be required to comply with that.

And even considering the fact that the State Superintendent may institute such a hearing on his own motion, there is nothing in there to say that he must do so.

So that, in substance, we say that this being an action under Civil Rights Act and since Section 13-43 gives the S — District Courts original jurisdiction, it was the intention of Congress to provide a federal remedy for civil rights and constitutional violations without the parties having first to exhaust any state remedies before coming into federal court, thank you.

Byron R. White:

Mr. Harth, do this actual presents the intention perhaps you will take the school district is (Inaudible) Civil Rights Act was not available to (Inaudible)

Raymond E. Harth:

In Monroe versus Pape, it was a damage action and the Court, in ruling that the City of Chicago was not liable under 1983 for damages, recall that the Court went into the legislative history again of 13 — of 1983 and of attempts to make cities pecuniarily reliable for civil rights violation and concluded that it was not definitely not intended that they do so.

William J. Brennan, Jr.:

Your answer is that you have the contention of declaratory relief —

Raymond E. Harth:

And not —

William J. Brennan, Jr.:

And not damages and —

Raymond E. Harth:

Not damages.

William J. Brennan, Jr.:

Therefore, you (Inaudible) Monroe versus Pape apply.

Raymond E. Harth:

That’s right.

That is correct because the reasons — the basic reasons for holding a city to be not liable for civil damages, of course, do not apply to prospective relief.

Indeed, there are cases in which this Court previously has indicated sanction provision of injunction against municipalities, thank you.

Earl Warren:

Mr. Boman.

Howard Boman:

Mr. Chief Justice and may it please the Court.

There isn’t any evidence before the Court, and for that reason, one may draw conclusions, some of which had been hinted at by this time as to what the situation really is in this school district and, if I may go off the record just a minute or outside of the record, I would say this, that the — well, we haven’t got to this point, but every charge of discrimination made by Mr. Harth here, orally or in the complaint, will at that time ever comes be denied and proof will be rendered against that.

And it’s a highly fictional thing, I think the Court recognizes, for Mr. Harth to get up and say that we admit that children have to use separate doors, or separate toilets, or separate drinking fountains, or they’re put in a separate part of the building.

That is not true and that is denied.

That will be denied when the proper time comes, but we would very vigorously try to have Your Honors understand that what you’re dealing with here is not a school district which is in some backwater at Illinois which sends 1,872 as resist to these things.

This is a part of the metropolitan area of St. Louis on the east side.

There are about 5,500 students in the school district.

I think there are 11 elementary schools.

There’s a junior high school.

There’s a senior high school.

There are colored children in all of the schools, in my understanding.

Now, what we have here is the Chenot School which is located up to the north of the district which touches the City of East St. Louis.

And the City of East St. Louis has a large colored population.

Much of the population over the last few years has moved gradually south entering into this district.

By “last few years,” I mean since the war.

Hugo L. Black:

(Inaudible)

Howard Boman:

As such, it was created in 1949.

Hugo L. Black:

(Inaudible)

Howard Boman:

In 1949 and 1951, there was annexation of the period, the territory that these — that we’re interested in here now.

Hugo L. Black:

That’s the territory now that’s been pointed out.

Howard Boman:

The particular area that’s involved in this case was annexed in 1951 or 1953.

I’m not quite sure.

Now — so, those matters, I want to make clear, are resisted.

And, what ha —

William O. Douglas:

That doesn’t make — that doesn’t bear upon the — whether or not cause of action?

Howard Boman:

I hope not, sir, but the impression, even as I sit here and hear it, is — makes me cringe a little bit and I would not want that impression to be accepted at face value.

What you really have, as you see in the complaint here, is an attack upon the neighborhood school policy which has been made in many cases and I think that this is probably the first case to come before this Court where the Court allowed certiorari where that was the attack.

And that’s made clear in the complaint and these other things given by Mr. Harth today or cited as an example of, and then they delineate those various charges.

But the complaint, if one reads the complaint, we’ll see it is an attack upon the neighborhood school of policy as such and since the Chenot School District is in the area where there is a predominance or where I think it’s all coming from probably, and it’s colored board of the south, and the Centreville School that they speak of then there is a mixture in residential housing of the two races.

The problem comes, although it’s here and there all over.

Earl Warren:

How many whites and how many blacks are there in the city in that school district?

Howard Boman:

I frankly don’t know.

The complaint or one of the briefs here says how many there are in the Chenot School and I think some 275 children or so.

I don’t think records are maintained on that basis, although I suppose you could count heads.

But it would be a perhaps less than 10% of the 5,500, would be my guess.

Arthur J. Goldberg:

(Inaudible)

Howard Boman:

Yes, but that’s just in the elementary school.

Arthur J. Goldberg:

In Chenot?

Howard Boman:

Yes, sir, and then there are good many colored children in the Centreville School system — Centreville School District which adjoins the Chenot School and there’s a sprinkling — predominantly white schools but a sprinkling where there are Negro families in, as I understand, all of the other grade schools.

Arthur J. Goldberg:

(Inaudible)

Howard Boman:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Howard Boman:

Yes sir, yes.

Arthur J. Goldberg:

They had assumed the (Inaudible)

Howard Boman:

Yes sir, I suppose, for that limited purpose.

Now, we raise it here that the defense that there is and can be no suit against the school district as such under Monroe versus Pape.

We equate the school district with the City of Chicago in Monroe versus Pape which directly held that.

We see nothing to distinguish the two situations whatsoever, either in the philosophy of the Act or in the language of the Act.

So, we think that although the ground was not urged below by anybody, it was not contended that they were support by Monroe versus Pape.

The fact of the matter is, when this case was filed, Monroe versus Pape was still in the advance sheets.

As far as I was concerned, I didn’t see it.

But it also went to the Court of Appeals for the Seven Circuit which had decided Monroe versus Pape and was reversed and nobody raised it there.

But, in all candor, we think that that is a complete lore to this action as against the school district.

Now, we have pointed that the Superintendent of the schools is a party that’s, Mr. Catley.

Howard Boman:

Although, in the complaint he is just lumped with the school district, they’ll just say, “defendants, defendants, defendants,” and no separate attention was paid to any responsibilities that he might have under the Civil Rights Act as a Superintendent from the school district.

So, we say that that matter has not been litigated and it has not been briefed up to this point.

William J. Brennan, Jr.:

What are the distinctions, Mr. Harth?

Howard Boman:

Sir?

William J. Brennan, Jr.:

One distinction, Mr. Harth, is that the damages under (Inaudible)

Howard Boman:

I don’t see any distinction between the two.

It’s a question — I believe, the Act says “every person,” and the court held that a municipality is not a person and the —

Byron R. White:

(Inaudible)

Howard Boman:

The same section.

Byron R. White:

(Inaudible)

Howard Boman:

Yes, sir.

The same section, yes.

And, the Court was unanimous there.

Justice Frankfurter who had dissented, of course, did not dissent as to that aspect of Monroe versus Pape.

So, that was a unanimous holding.

Hugo L. Black:

What remedy do they have if they can’t go this way?

Howard Boman:

The petitioners?

Hugo L. Black:

Yes.

Howard Boman:

Of course, there is remedies galore in the State of Illinois.

We say there is no remedy here or in the federal court system as against the school district under the Civil Rights Act.

Now, I think there’s the general equity power of the federal courts.

I think your southern cases would be an antecedent for this case based upon equity.

However, they hinge their entire case on the Civil Rights Act as against the school district as well as against the individual.

Hugo L. Black:

You mean they could go into the federal court and ask for equitable relief?

Howard Boman:

I should think so, sir.

Hugo L. Black:

Under which section of the code, which jurisdictional statute?

Howard Boman:

I’m not able to say that right off, but I should think under the same ways that they went into the southern states for equitable relief in many, many instances claiming a denial of rights of children secured to them by the Fourteenth Amendment.

Hugo L. Black:

Then you — so far as you are concerned, there’s a forum in which they file the preceding which denies them the right to proceed in this case.

Howard Boman:

Yes sir, that’s true.

William J. Brennan, Jr.:

Did we prove it then as a (Inaudible)

Howard Boman:

I think so, and that’s why we’ve continued to argue this saying that, there, clearly, the administrative remedy as an alternative would be a defense.

And, the brief goes on and does say, in effect, that if one considers either the point have been waived or, if the Court would consider this without regard to form that there, the Court should take cognizance of the Illinois statute, which we claim to be adequate, and require that petitioners to use that in those means.

Now, the Courts of Appeals in the Fourth Circuit and in the Eighth Circuit have required that.

And the Court of Appeals (Inaudible) in a series of cases, has frequently not required that and we have pointed out, and I think it’s obvious there that the administrative remedy being considered was usually something that was far from adequate.

It would be a vain and a useless thing to require them to go through that sort of useless procedure.

Now, in Illinois, the segregation in the public schools has been unconstitutional since the adoption of the Constitution, which I believe was in 1872, and the Court in 1901 especially — specifically rejected a separate but equal interpretation of our Constitution.

And the School Code of Illinois has, for a long time, prohibited a school district from being excluded or segregated according to color.

Furthermore, the School Code for many years, what is now the School Code, has made it a criminal offense for any school officer or other person to exclude from the public schools on account of color any child and — or anybody who threatens or intimidates or menaces that child in pursuing that.

Now, those statutes have preceded your Brown versus the Board of Education by a good number of years.

The legislature has attempted to put more teeth in those things in the postwar years.

And, in one of those, they provided, first, by a writer to an Appropriation Bill and, later, in substantive law that no school could participate in state funds as long as there was a practice of discrimination in the schools.

And, in Illinois, at least the school district of this type, the lands on state funds is vital.

About 25% of the budget comes from the State of Illinois.

And it is required that a school official verify annually with a claim for state money that there has not in fact been a violation of the segregation provisions of the School Code.

Now, the State Superintendent of Public Instruction, as the state official, he has the duty of transmitting to the state dispersing official these claims for the several school districts.

In fact the law says that he shall certify those and the auditor of public accounts would not pay out any money without that certification.

That’s an important point in our argument.

The same official, the State Superintendent of Public Instruction, is the party who is required to hold the hearings under Section 22-19, upon the receipt of a petition signed by 50 voters or more, or who may initiate the proceeding on his own motion.

And the proceeding that’s outlined in the statute which maybe begun like that is fairly simple.

He may appoint a hearing officer, take evidence, and make a finding as to whether or not the complaint was justified.

Now, we stop at that point and say that is sufficient, as far as the use of Section 22-19 goes, to ensure the rights of the petitioners because it is inconceivable that in a state where segregation is unconstitutional, and whether statute after statute in favor of the policy of non-segregation, that a state official who makes a finding that there is segregation in School District Number 187, he could not, the next day, certify the request for funds to that same school district and close his eyes to the fact that there was the thing that prevents them from getting the money.

Now, that is as close, I think, as one will ever find to an adequate remedy and was the purpose of it, of course, to have these rights adjudicated because the State Superintendent can either, he can block the money which will bring the school district to its knees or he can revoke a certificate of recognition to the school district for the same reason, and that’s one of the standards incidentally that he uses, and that would deny the rights of the graduates not to go to university without examinations and rights of the teachers to write some of the Pension Act and host to things of that sort.

Where are the provisions — where are the provisions found in your brief for certification and filing?

Howard Boman:

It’s quoted in full.

It’s on page 4 and on page five.

One, two, three, fourth paragraph, second to the last paragraph.

Thank you very much.

Howard Boman:

And we say then that that is an adequate remedy of law.

In answer to a question put earlier about has the Superintendent ever revoke a certificate, I don’t know of any revocation but I know of where threats was made in the case of school boards that were not managing the money properly and he caused their removal by a threat to withdraw the certification and the Board, of course, then had to resign, which was his purpose.

The point is made that the 50 signatures is a burdensome requirement and I would say this that this is, first of all, a class action, the District Court so-looked at it as a class action, and probably, it would not be a difficult thing to obtain.

Howard Boman:

But, in any event, we would rest our case by saying that if the State Superintendent had presented to him a colorable case of segregation by one person and he did nothing about it, that that petitioner could then go in the federal court and proceed there because I think, in that case, he would not be following the law.

The State Superintendent would not —

Earl Warren:

If just one person abides to the Superintendent —

Howard Boman:

And he turned him down.

Earl Warren:

And he would not have a hearing, that he could then go in without a Court?

Howard Boman:

I think that petitioner would then have done all that he would have to do under the Illinois remedy.

Earl Warren:

I thought your Act said that 50 — he wouldn’t have to do it unless, unless 50 people signed.

Howard Boman:

It says “shall.”

When in connection with 50, it says “may otherwise.”

Earl Warren:

Yes.

Howard Boman:

Yes.

Potter Stewart:

And your point is that for only an individual and the Superintendent declined in his discretion to act after being told about the situation by an individual, that as to that individual, the state remedy would be clearly inadequate and he would then be clear to go into federal court.

Howard Boman:

And when the District Court pursued at that point.

Arthur J. Goldberg:

Did he have to allege that he tried to make a decision but was unable to get one?

Howard Boman:

I should think so, sir.

Now, we’re —

Arthur J. Goldberg:

Does he have to show a reason for not complying with this?

Howard Boman:

I should think so.

We’re now talking not about the Civil Rights Act, as I understand it, but, proceeding under the equitable powers, against the school district, and I would say, yes, he would have to show that attempt to comply and that the Superintendent arbitrarily turned him down.

Arthur J. Goldberg:

What in your opinion would be a good excuse to not comply?

Howard Boman:

I don’t know what the Superintendent might do.

Assuming that he was an honest individual, and I think we have to assume that, and the meant to carry out the law of the State of Illinois, I suppose you could get a crackpot type thing he might turn down.

In which case, I should think then the federal court would have probably to litigate the merits of the turn down.

Arthur J. Goldberg:

May I ask a question?

We all know from the experience that there is, according to decisions of this Court, that it’s not very easy to get parents to litigate to a certain community as in here.

Do you think allegations of that type would be adequate to single out the State’s problems (Inaudible)

Howard Boman:

I would think so.

I would think if they couldn’t raise the 50 signatures they need because they were fearful or indifferent.

Arthur J. Goldberg:

Parents in this —

Howard Boman:

Yes.

Arthur J. Goldberg:

— community who see fit that these claimants (Inaudible)

Howard Boman:

And, I should think, if there were 10, they should go, or if there was one child, he should go to his parents.

Arthur J. Goldberg:

Are you saying, Mr. Boman, I should know the answer, but is my recollection correct that, despite the fact that this constitutional provision of Illinois has been in existence all that period of time, that as a practical matter, there was a very substantial amount of school segregation throughout the state up to the time of the Brown decision, and perhaps if my recollection as a former resident of Chicago law, but I don’t exclude Chicago from it.

Howard Boman:

Of course, I live 300 miles from Chicago and don’t know what the situation up there was.

In certain areas, certainly, and I can think this, close to home there, the city schools in the City of East St. Louis were segregated I don’t think until Brown, but I think until the legislature put its writer on the Appropriation Bill.

I believe that’s what it was.

Now, that is, at certain levels, like the elementary schools, not the separate high schools, in that type of thing.

William J. Brennan, Jr.:

(Inaudible)

Howard Boman:

I suppose he was at liberty.

William J. Brennan, Jr.:

But it’s not about the statute.

He might have taken this in a way of a petition.

Howard Boman:

He might have noticed that, yes, and —

William J. Brennan, Jr.:

(Inaudible)

Howard Boman:

I have no idea.

Hugo L. Black:

He’s not a party, is he?

Howard Boman:

The State Superintendent is not a party, no.

Hugo L. Black:

He wasn’t in the statute.

Howard Boman:

That’s correct.

Hugo L. Black:

He wasn’t in the statute.

Howard Boman:

Correct, he is not a party.

Hugo L. Black:

(Inaudible)

Howard Boman:

And he — there’s no appearance made for the County Superintendent.

William O. Douglas:

Have you any authority of any precedence in the resort to a state remedy before you resort to your federal remedy, or you have two remedies, one under state law and one under federal law?

That seems to be at war with the whole conception of the federal system because, as you know, there was in the very beginning of this country, an effort made to enforce federal rights in state courts, and the First Congress created the federal court system.

Howard Boman:

Yes.

William O. Douglas:

For the enforcement of federal rights, and I just wonder where you get this or where the court below got this idea that a federal right couldn’t be enforced until a state right, if there was one, had first to be enforced or sought to be enforced.

Howard Boman:

Well, I think, sir, the decisions of this Court, in certainly differing circumstances, have held at a number of times.

William O. Douglas:

They must be so differing as to be not recognizable as such.

Howard Boman:

I’m talking about the cases where the court — this Court has held that there should be resort to administrative remedies.

William O. Douglas:

Oh, yes, over and over again, but suppose —

Howard Boman:

Yes.

William O. Douglas:

— but we’re dealing with a dual system —

Howard Boman:

Yes.

William O. Douglas:

— rights under a state system and rights under a federal system.

I never realized that federal rights were dependent on, first, going — exhausting a state remedy unless, of course, that was provided in the creation of a federal right.

Howard Boman:

It must be alluded in a matter of committee between the national and state governments.

That seems to be the ex — those are the expressions one finds in the circuit cases, that it is on deference to that committee.

It is, as a matter of committee, deference to sovereignty of those states, and particularly, when one deals with the educational program which is an operation of the state government itself, as — I think it’s an engrafted type thing on the law.

I don’t know any other source of it.

William O. Douglas:

Well then, what we said Monroe v. Pape is not in line with that.

Howard Boman:

Of course, in Monroe v. Pape, the Court said you can’t proceed at all against the City of Chicago.

William O. Douglas:

Yes, but there were defendants rep — who were performing municipal function.

Howard Boman:

They were individuals, yes, sir.

And, as to them, the Court said, “you can proceed here and you don’t need to use the Illinois Courts.”

Of course, that would be a judicial type remedy.

I would think, sir, that in the case of the Superintendent, the local Superintendent here, you have perhaps a different situation than that, quite a different situation than you have with a municipality.

What were his duties under the Civil Rights Act and isn’t he one of the persons spoken of in 1983?

I say that that matter was — has not been litigated.

There’s nothing at all that comes to this Court to review really, and that aspect has just been ignored.

There are, of course, very strong policy considerations that the Court would desire to weigh, it strikes me, before the Court would not require a resort to state administrative remedies because the practical matter is, and this is I think not merely conjuring up these evils that lawyers can do so readily, but it really opens this type of suit to where the line between this district and that district should be, whether it should be on this side of Elm Street or on the north side, counting heads, looking at complexions, all of those different things are the type of thing that is suggested by the plaintiffs, and they want — the petitioners, and they want the federal judge to do that.

And that strikes me as a very, very great burden and we cite the experience of Judge Kaufman in the New Rochelle case and, after he went through one of those cases said in the opinion that litigation is an unsatisfactory way to resolve questions of this type.

That, in the course of going through it, the attitudes of both sides become hardened and it makes the operation of the schools, apparently his ideas, that much difficult afterwards.

Well, I think there’s no doubt about it.

This first Court has had a lot of experience in enforcing its decrees and it’s been through everything I suppose.

It could come possibly, but when one gets down into the details where the line should be in the Cahokia, Illinois school system, for instance, it strikes me that where the State of Illinois says, “Here is a way, if somebody thinks that these lines are not in the right place, a way to determine whether they’re right or whether they’re wrong that that would be for the best interests of everyone.”

Earl Warren:

Why would it be any easier for your state courts to do that job judicially than for the federal courts?

Howard Boman:

I’m suggesting, sir, that it would be a hearing officer of the Superintendent administratively to do it.

Earl Warren:

No, but if the Superintendent decides that there was a case made in the complaint to him, then he would ask the Attorney General to bring an action in your state courts, and then your state courts would have to do exactly the thing that you’re saying the federal courts cannot do.

Howard Boman:

I don’t think he would, sir.

If he finds that there is a violation of the law, he can act.

Howard Boman:

He can withdraw the certification of the schools or he can stop their money, just like that.

Earl Warren:

I know, but your procedure provides that he shall take it to the– he may take it to the Attorney General, and the Attorney General will file a suit in the Circuit Court in Illinois.

And, if he did that, wouldn’t he be in precisely the same situation as the federal court?

Howard Boman:

If he use that means, yes.

But, if he used the means in his own office, he wouldn’t do that.

He —

Earl Warren:

Nothing could compel him to do that in your law.

Howard Boman:

No, except that, of course, there wouldn’t be anything to compel a federal judge to follow the law either.

I think one has to believe that these men, unless there is something to the contrary that appears, will follow their oaths.

And the State Superintendent has sworn to carry out the law and I can’t concede that he would, as I say, make a finding of segregation and okay their money at the same time when the law forbad a school district which practice segregation to have any mo — fed — any state money whatsoever.

I think, at that point, he would deny — if he made that formal finding, he’d deny the money, he’d lift the certificate of that school district, and that’d be the end of that.

Earl Warren:

But, under your Administrative Practice Act, your school district, after he made his ruling, could, itself, take it into the Courts and go through the Courts, could it not?

Howard Boman:

I think they could litigate the correctness of the finding, yes.

Yes, but I don’t think that that would prevent them meanwhile from being denied funds or being denied a certificate.

I think that he would effectively stop the practice right there.

Earl Warren:

Well, that would bring me back to Justice Brennan’s question of view.

I wonder why the Superintendent, instead of going through a long proceeding of this kind through the District Courts, through the Courts of Appeals, and through the Supreme Court of the United States, wouldn’t hold a hearing and determine, if as you say these things are untrue, determine that they are not and get it over with.

Why would he wait years and let this hang fire —

Howard Boman:

I suppose —

Earl Warren:

If there was nothing to it?

Howard Boman:

As I can’t answer for him, I never talked to the man, but he’s not a party here, you understand?

Earl Warren:

No, I understand.

Howard Boman:

And what he knows about this case would be something he’d be told on site.

I wouldn’t assume that he would think that, well, this is a test case by these petitioners that want to point rule on.

I supposed that’s the attitude he’d take.

I don’t know.

I don’t — suppose he’d see any merit in it, on the facts, or he would’ve done so.

The — as I say, if the Court please, the — what the case is really not, as I conceive it here and it’s been argued in the District Court and Appellate Court, not individual pupils complaining that they were denied a transfer to such and such a school.

There never was a transfer request.

In fact, there’s been no negotiation of any kind in this matter.

Howard Boman:

The first thing is the filing of the complaint.

There’s no antecedence to that at all.

It’s alleged, but that isn’t the fact, and immediately taken in the District Court and this litigation started.

That’s all there’s been to it.

Thank you.

Raymond E. Harth:

May it please the Court.

Earl Warren:

There’s one more counsel to argue, Mr. Harth.

Raymond E. Harth:

Oh I’m sorry.

I wasn’t aware of it.

Earl Warren:

Mr. Reiter.

Robert H. Reiter:

Mr. Chief Justice and may it please the Court.

The fact is this is a test case.

The big problem out in Illinois is in Chicago where there are a number of suits pending which have resulted in the same disposition, at least one of them has, as in this case.

So that, I think perhaps it’s fair to say that everybody has been holding up waiting to see what this Court is going to do on this question of the required attempt to resort to the state procedure.

Referring to Mr. Justice Goldberg’s inquiry about Illinois, there is now a very serious problem pending in Chicago where there have been nine applications made to the State Superintendent of Public Instruction.

He, thereupon, appointed a hearing examiner.

The hearing examiner has taken the testimony on both sides, and now, has the matter under submission.

The big problem of course in Chicago, as in New York in most of the — in many of the large areas of population in the east, is what is known as de facto segregation which this Court, at some time or other, is perhaps going to have to consider.

And, namely, he’s a local authority under an affirmative duty to integrate in a community where you have pockets of Negro and white population adjoining one another.

This is going to be a very serious problem.

Arthur J. Goldberg:

(Inaudible)

Robert H. Reiter:

Yes.

Arthur J. Goldberg:

(Inaudible) the school district that was involved.

Robert H. Reiter:

Yes, and we have the same problem in this case, too, and I think, probably, that Judge Juergens had this in mind when he decided and which is all that he decided, as found on page 22 of the record, that “Look, fellows, before you come into the federal court and ask me to go into this whole problem of boundaries, transportation, questions of economics, the question of building new schools, and so forth, at least shouldn’t you give the State a chance?

I’m not saying, in other words, that you have to exhaust any administrative remedy.

All I’m saying is you haven’t shown that you e — you have even tried to ask the State to do anything.

At least give the State which has, in the past, given no indication of either a propensity or of affirmative action on their part to deny the rights of Negroes.

Give them a chance and then come back to me later on.”

I think this is not exactly a Monroe versus Pape situation to revert to the question after my colleague by Mr. Justice Douglas.

Monroe versus Pape considered the issue of whether or not you were required to resort to the state remedy and there was no federal remedy in a situa — under the Civil Rights Act in a situation where what you were complaining about is not a violation of state law.

Robert H. Reiter:

And the Court in that case it held that it was very definitely decided in the — by Congress in enacting the Civil Rights Act that even where the state law would declare the complaint of action to be illegal, still, there was a right to come into federal court under the Civil Rights Act.

Our question here is entirely different.

Our question here basically is this, where a federal judge feels that the State should be given a chance, is he within his proper exercise of judicial discretion in saying, “Gentlemen go to the State and then come back to me”?

I don’t think, frankly, that Judge Juergens in this case really intended to say “you have no cause of action because you didn’t go to the State.”

I think what he really intended to say is, “I’m deferring to the State.

Take a crack at the state remedy and then if you’re turned down, either because of the fact that you — that he requires 50 signatures and doesn’t take to the signature of one person or due to the fact that he drags the page out for years so that your remedy will be ineffectual or that he defers it to a state judicial proceeding, then, please, come back here.”

Arthur J. Goldberg:

(Inaudible)

Robert H. Reiter:

Well, he had a choice.

I suppose, if I had been in his shoes and had decided to do what he thought was proper practice, I think I would probably retain jurisdiction which was what has been done in many of the district cases which we’ve cited in our brief.

He would have said, “I’m n — just not going to proceed in the case.

I’m going to hold it in advance then you go to the State and come back here after that.”

He chose the, let’s say, the more serious and the — what I consider would probably be the less desirable technique of simply dismissing it and say “start your suit over again.”

But, I think in his opinion, and he fortunately wrote quite a nice memorandum opinion, he did indicate why he did it.

He wanted them to just try, and this is in accordance with the longstanding proce — practice.

We have a lot of — a long line of decisional law.

For example, the famous case of Prentis versus the Atlantic Coast Line Railroad at 211 U.S. 210 which says that, ordinarily, where there is a state administrative procedure, the federal courts will give way to the state procedure and require the exhaustion of the remedies.

Now, if this is found to be simply a judicial procedure, Mr. Chief Justice, then I would agree with you, then, it doesn’t apply.

This has been utilized only where it is a state administrative procedure.

And, our answer to that is simply that where you have a state which has been known for years and years to have followed the rule against segregation, against discrimination, where you have no showing whatever that the State Superintendent of Public Education won’t be in — won’t inquire properly and will not administratively grant the relief which he has in his control, namely the power of the purse, where he won’t do it, then you have a state administrative relief possible.

He isn’t required to go into Court.

That, in other words, is the — perhaps the ultimate remedy available to him if the local community says, “Well, we’re going to operate without any state funds,” and it’s rather unlikely that the — that any state locality is going to operate without 25% of its budget being raised in the form of state funds.

This Court, in other words, in Monroe versus Pape had simply the question of jurisdiction before it and it held that there — that they are coequal remedy, the state remedy and the federal remedy under the Civil Rights Act.

But today, we have a different problem.

We’ve got the question of whether or not the federal courts may defer to the state administrative remedy.

And I would not try to reargue Monroe versus Pape.

I’m pleased that we have such a group of opinions in that case which give a pretty good outline of the problems created.

I would simply suggest perhaps that the Court reconsider the points raised by the late Justice Frankfurter in his dissent.

Those points are — may I just take a moment to review.

First of all, shouldn’t there be a proper distinction created or isn’t it possible that a distinction should be created in a mind of a federal judge exercising his discretion as to where in cases that exist, and this Court is fully familiar with them, in the south where it’s perfectly clear that the state authorities and the state legislature certainly does not intend that the — that relief be given and where the state law actually sanctions, in many cases, the discriminatory actions complained of.

And, on the other hand, a state such as Illinois, where this certainly is not the case, where the state authorities are bound by their oaths to uphold not only the federal constitution but the constitution and the laws of the State of Illinois which have, for years, said that discrimination is illegal.

Robert H. Reiter:

Secondly, it has been suggested by Mr. Harth that there are 263 cases pending in the south covering this type of problem.

There are many cases pending in the North.

However, I have been able to calculate the number.

They just aren’t listed anywhere.

It is a principle of judicial administration that the effectiveness, particularly of a judicial remedy in the federal courts, is inversely proportional with the frequency of its exercise.

It seems to me that Justice Frankfurter, in mentioning that, had in mind that, if possible, the federal courts should, particularly in the field of public schools, keep their intervention to a minimum.

This Court recognized in the Brown case, and has recognized in other cases since then, that the problems existing in the public school sys — public school cases are much more difficult probably than any other area under the Fourteenth Amendment because, here, you simply do not have the problem relating, “Yes, admit this man to a college” or the case that came up last week, “Yes, let these people enter the public parks.”

Here, you have a problem of drawing new districts — new school districts, and the problems are fantastic.

And, I believe that not only Justice Frankfurter, but Judge Juergens recognized the seriousness of these problems.

Third, public school education is basically a question for determination by the state authority.

They had — this is clearly a state function and I feel that Justice Frankfurter, in suggesting that, had in mind that if it were at all possible, if there appear to be any likelihood that relief would be obtained in the State, that likelihood should be exhausted.

And here, there’s no indication in the record whatever that it would not be done.

Of course, I would add another point to those mentioned by Justice Frankfurter, namely that as we see it —

Earl Warren:

Well, don’t the allegations of the complaint say that that has not been done, that there is this discrimination in the schools?

Robert H. Reiter:

They assert that discrimination does exist.

Earl Warren:

Yes, well, don’t we have to accept that as being the fact for the purposes of this case?

Robert H. Reiter:

Yes, but someone has to determine whether in fact they do exist.

Earl Warren:

I know, but you say there’s nothing in the record, nothing on the record to show this.

Our record says that those things are true, so far as the case is concerned here.

Robert H. Reiter:

That — Mr. Chief Justice, you misunderstood me.

I intended to say that there is no indication in the record of any inclination on the part of the state authorities against granting relief in a case where a proper case of discrimination is made out.

That is what I intended to say.

Arthur J. Goldberg:

Mr. Reiter, (Inaudible) despite the question in the plea to cease and desist.

Then, it goes on and says that your clients are maintaining they’re creating racially segregated classrooms and separate educational facilities and go on and deal specifically that Negro — no Negro teachers teach any white students in this school, there’s the Negro students with exceptionally in the 10 classrooms located in the other in one part of the school building separate and apart from the white students who are perfectly free to use entrances separate.

Now, counsel says when he got up and made his final argument, “This isn’t true and we could prove that it’s not true,” but again, we have it in the complaint.

And, perhaps what you’re saying would have much greater validity.

If an answer has been filed raising — contesting the allegation, then concluding as one of the defendants that there is no pattern of general segregation, that the school was desegregated.

In fact, in addition to everything that has been done, if there is a specific complaint by this child, that there is an avenue of relief under state law.

But we don’t have such a case, do we?

Robert H. Reiter:

Unfortunately, we have an extremely poor record here, and as a matter, if we had understood conceivably that we’re coming to the Supreme Court, we might have done it differently.

Robert H. Reiter:

On the other hand, we perhaps would never have had a record establishing that there had been any attempt made by the petitioners here to make application to the state authorities.

And, I believe it was, as I understand it, the intention of the School Board here to see that such application was made, so that at least the state authorities had an opportunity to consider whether they were going to go into the case.

That was the — that’s the only way we could get a proper record in this case, if they had actually applied to the Superintendent of Public Instructions.

Tom C. Clark:

We didn’t need that record to contest what we have been told here today that, in fact, in East St. Louis, schools have been desegregated.

The problem that you are now dealing with drawing boundaries and we’re not dealing actually with a question of basic segregation of school structures.

We don’t have that here.

The case that you are stating to us orally, we don’t have before us.

We have a case which deals with a complaint and says that the school authority is deliberately proceeding upon a plan to maintain and create new segregation in the school system and we have, of all the certs here, legal defense that assuming that it’s true, that everything you say is true, separate entrances, all of that, that the remedy for you is to make a complaint before the school Superintendent who has some specific and then some general powers over the school system, isn’t that the structure of the case now before us?

Robert H. Reiter:

Well, the structure in which the case comes before this Court is the complaint.

And the Court has to simply consider it based upon the complaint which says there is discrimination, and as a matter — you’re correct, Your Honor, in indicating that it might have been better if this whole thing had been all the way through the Federal District Court and he had made his findings and so forth but, at that point, unfortunately, the issue of whether they had gone — should have gone to the state authorities would have been aviated because, then, federal judge would’ve gone to all the trouble of going into it and perhaps establishing a decree.

It would then be too late probably for us to go in to raise this issue which is before the Court today.

Tom C. Clark:

Not necessarily because of this, that the question of what relief might be available under the administrative procedure and a necessity to have recourse to it might very well depend upon the given facts, don’t you agree?

Robert H. Reiter:

I agree, absolutely.

Tom C. Clark:

And therefore, how do you, how do you treat it in isolation, as this case has now before us?

Robert H. Reiter:

Well —

Tom C. Clark:

Of course, the parties made their choice, your clients —

Robert H. Reiter:

We then —

Arthur J. Goldberg:

To basically file —

Robert H. Reiter:

He filed the motion, not thinking that it would come up on that basis.

We thought they would try to go to the statement and be turned down if they were going to be turned down.

It is unfortunate that this case comes on this poor record and, actually, it would’ve been much better.

William J. Brennan, Jr.:

Yes, but Mr. Reiter, I must say I have difficulty understanding.

If the School Board was anxious to have this thing resolved in the manner that they feel it might best be resolved administratively when this action was brought against them, why was not the power of the State Superintendent invoked and then, reference or, rather, representation made to the — Judge Juergens that “the State Superintendent has got a hold of this thing and we think that’s where it ought to be handled and hold this thing for awhile,” why wasn’t that done?

Robert H. Reiter:

Mr. Boman has indicated that he has the answer to this and since he was on the spot, may I defer to him on this matter?

Earl Warren:

You may.

Howard Boman:

This is simply, as I understand the law and the pleadings, an admission for the purpose of the motion and one doesn’t swallow these things for any other purpose.

So —

William O. Douglas:

Well, on the basis that this is just legal strategy, we can’t take it at face value to what Mr. Reiter says because, certainly, a Federal District Court is a place where issues can to be tried out.

Howard Boman:

Yes, sir, and the law, as I understood it at that time and as the Seventh Circuit held it to be, was that, as a prerequisite to that type of action in the District Court, there was a resort to the state administrative remedy as a prerequisite.

So, that’s why the point was raised there.

Howard Boman:

That was the holding in the Fourth Circuit.

William J. Brennan, Jr.:

Well, as my Brother —

Howard Boman:

It —

William J. Brennan, Jr.:

— Douglas says, that sounds just like lawyer strategy.

If, actually, you are willing to have this thing explored, as I understand Mr. Reiter is telling us, was the desire of the School Board, it would seem to me that the easiest way in the world for the School Board to have that desire realized would have been to ask the State Superintendent to do something about it.

As I understand it, you’re telling us that the State of Illinois has an ideal system.

You have state laws which ban this kind of thing, state laws which could do the obligation of the Superintendent of the schools to — State Superintendent, rather, to enforce and respect and honor and see to it that the School Board did it.

I don’t follow why lawyers should adopt a kind of strategy which ultimately gets you here.

Howard Boman:

Sir, it’s the law, as I understood it to be, and the fact is, I mean, if somebody want to talk about these things —

William J. Brennan, Jr.:

But sometimes law and action is a lot —

Howard Boman:

The petitioners —

William J. Brennan, Jr.:

— is a lot better than law enforced, isn’t it?

Howard Boman:

The petitioners never even spoke of it or wrote a letter to the Board.

What you’re suggesting is that you’re entitled (Inaudible) situation on the assumption that the sworn officials of the State of Illinois are going to do their duty if they’re given a chance to do it.

Is that what you’re saying?

Robert H. Reiter:

Let me say, in connection with what Mr. Justice Harlan said, that this Court itself in Cooper versus Aaron said this, “Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Article 6 paragraph 3 to support the Constitution.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.”

In other words, the State Superintendent of Public Instruction has a responsibility here, in the same manner as the federal agencies who hand out funds to the States under the National Defense Education Act and the other Acts providing for federal assistance require that there not be discrimination in the areas where they do give such money.

There is no reason why the State Superintendent of education should not follow the same rule and will not follow the same rule in carrying out his duties.

Now, here are the things which I would like to point out in conclusion which we do not want and which we do want.

We would not be pleased with a decision which said that, in all cases, a federal court must defer to a state court.

This could be used, we feel, by jurisdiction which really had in mind delaying, if not completely eliminating, any possibility of segregation being excluded.

Nor, would we be pleased with the decision that the discretion of the federal courts in this matter is absolute.

On the other hand, we do feel that where there is no showing of the predisposition on the part of the state to frustrate adheres to the Fourteenth Amendment, the state authorities who are principally charged with the administration of the educational system of the State should be given an opportunity to work them out.

As pointed out last week in connection with the Memphis case, this is the serious — this is the most serious area of the Fourteenth Amendment.

This is the area where there are a number of fiscal, economic, transportation, and social problems involved in any determination that’s made.

And, in this type of determination, we feel that the state, where the — where, in our view incidentally, the Board of Education not only of the state and the — but the Board of Education of the locality which are not involved in — under the Civil Rights Act, we say, could be brought into this situation where they could sit down and be asked to work these things out, a judicial procedure is simply not the proper kind of a procedure for the determination of such thing.

It can be done, no question about it.

Judge Kaufman did it in New Rochelle.

I guess it could be done again, but it’s a tremendous undertaking to try to do it, and Judge Kaufman indicated he had a terrible time but he tried to be mediator for a while.

Robert H. Reiter:

So, I say, in this kind of a situation —

William J. Brennan, Jr.:

The Federal District Courts have been doing this in many, many situations.

Robert H. Reiter:

Well, not very much, as I understand, in the area of redistricting whole communities.

They’re going to be asked to do it from now on.

There are number of cases pending on Long Island, in New York City, in Chicago.

Potter Stewart:

Your argument is reminiscent of the argument of the losing party in Baker versus Carr.

Robert H. Reiter:

Well, I think, however, voting is a little bit clearer than schools.

Voting, you — I think you can perhaps handle on a somewhat more of a geographical basis than you can children.

Arthur J. Goldberg:

I hope you’re right.

Robert H. Reiter:

That is — that’s a — voting — this is, at least, a serious problem as Baker versus Carr, and I’d say more serious.

And, therefore, I think the Court owes a responsibility, if it feels as though there is a possibility of state relief, to permit the State at least an opportunity to prove that it can do the job.

Thank you.

Howard Boman:

Sir —

Earl Warren:

Mr. Harth.

Howard Boman:

— could I make one point?

Earl Warren:

You may.

You may proceed.

Howard Boman:

In the indulgence of the Court, in response to the question over here, it comes back to me.

The first complaint was accompanied by petition for a temporary injunction.

And I filed the motion against the petition for a temporary injunction as well as for the preliminary injunction.

The matter was then continued for hearing on the temporary injunction, and the morning it was to be heard, they brought in an amended complaint, knocking out the petition for temporary injunction.

And, rather than to ask for any time, I extended the motion to dismiss to the amended complaint.

I didn’t recall those things, but that was the setting in which that type of motion was filed and I think there was more urgency and perhaps this motion had more point.

Then, the School Board was faced with a hearing to cut off their funds, and all that sort of thing, that very morning.

So, that was the setting in which that was filed.

Thank you, sir.

Earl Warren:

Mr. Harth.

Raymond E. Harth:

May it please the Court.

The latest point just raised by Mr. Boman, of course, it’s true that the amended complaint was filed on the date this hearing was held.

Now, he seems to be saying that he now has some regrets about having extended his motion to dismiss to our amended complaint in view of our having withdrawn our the motion for temporary injunction.

Raymond E. Harth:

However, he has never withdrawn it up to this point.

I might point out too, that the counsel, and both of them, had gone substantially outside of the record and I think that we must confine ourselves to the record here.

And just as Mr. Justice Goldberg had pointed out that we must take it on the facts as alleged in the record, as alleged and we must take them as being true.

Now, first of all, this is not a suit against the State.

This is a suit against a state agency.

It is against the local Board of Education whom we claim has discriminated against these defendants, the plaintiffs here.

The defendants say that we must, before we can come into a federal court, exhaust state remedies.

Now, there are a couple of lower court decisions on this very specific point.

In the Fifth Circuit which have to meet with the same problem about a contention that where there was a claim of discrimination, that you would first have to appeal to the State Board — Superintendent of Education, and that was in the case of Borders v. Rippy where the Court said, that’s reported incidentally at 247 F.2d 268, Texas State law gave the Board and the local Superintendent the power to act, and that is of course true here.

As pointed out in the briefs, the state statutes give the local of Board of Education the power to assign children to school and to draw attendance area lines.

The Court went further to say, that in the exercise of such power, they have denied the plaintiffs the right to attend public schools of their choice solely on account of their race or color.

By such action, the plaintiffs have been denied their constitutional right and they are not required to seek redress from any administrative body before applying to the Courts, and it cited some other cases in support of that proposition.

Now, I might point out also that, at this point at least, the neighborhood school policy is not before this Court.

It may become before the Court or the lower court at some time in the future, but it’s not before the Court at this point.

What is before the Court at this point is the claim in the complaint that the defendants have intentionally drawn the attendance area lack of boundaries of the Chenot School, this is the only one that is made specific at this point, to make it an all-Negro school in its student enroll.

Now, the — Mr. Boman so — seemed to me that he conceded that under these facts that we alleged, that we are entitled to some type of equitable action.

Well, actually, this is all that we are seeking in this complaint, is equitable relief.

We are asking for declaratory judgment and for an injunction.

Now, the — this Act is based on 1983 and on Section 13-43 subparagraph (3) of the Judicial Code which provides a right for violation of Fourteenth Amendment guarantees and which is exactly what we have in this case, claim of the denial of due process of law and of equal protection of the law.

He referred also to decisions in the Eighth Circuit referring, I assume, specifically to the case of Parham versus Dove, being one in support of their proposition that administrative remedies would have to be exhausted.

But even in Parham versus Dove, the Court of Appeals in reversing the case directed the lower Court to issue an injunction to restrain the defendants for maintaining a racially segregated school system, but what it said was that the individual plaintiffs in that case, because of the dual nature of a class action, that is for the protection of the individual rights of the individual plaintiffs and for the protection of the rights of the class as a whole, it directed that there’d be an issuance of an injunction to protect the rights of the class as a whole but said that, before the Court can determine whether the individual plaintiffs are entitled to relief, they must apply under the Pupil Placement Act of the State of Arkansas to determine whether they are entitled to admission to particular schools.

But, we don’t have that in this case.

We don’t have a case here where the plaintiffs are seeking admission to any particular school.

Now, again, there’s a good deal of time spent on referring to the other sanctions that the State Superintendent might impose, and they refer to the withholding of funds.

Well, now, the statutory reference to that says that before a state — before a local school board is entitled to get funds from the State, there must be an affidavit filed stating that no discrimination exists in the school district.

Now, there is nothing in the statute that says that if the State Superintendent receives such an affidavit, even though he may know it to be false, that he can withhold funds.

He has no discretion.

He is given no discretion.

Once he gets the affidavit, he must dispense the funds.

And to say that it can be assumed that he will withhold these funds is certainly — was not certain enough in terms of giving the plaintiffs in this case a remedy.

Arthur J. Goldberg:

How can we assume that the affidavit isn’t false?

Raymond E. Harth:

I would have to assume that, since this district, District 187, has gotten state funds and since, in the allegations of our complainant, it shows that there has been discrimination in the school district, that there must be either a false affidavit or an affidavit by a person who does not know the facts.

We cannot assume, in all cases, that there will be a false affidavit, but I’m saying that under these circumstances, so far as the law reads, all that the State Superintendent can do is to refuse to pay out funds if he gets — unless he receives an affidavit.

Arthur J. Goldberg:

(Inaudible)

Raymond E. Harth:

To a certain extent, yes.

But, on the other hand, in view of the allegations of the complaint which we have here which shows a history of segregation within this school district, dating back prior to 1957 when they had children attending school at different times, and that this has been con — permitted to continue to exist, then we do not have a different situation here than you would have there.

I think we have perhaps a more subtle attempt to maintain segregation because certainly, in the other states, they make no bones about just what they’re attempting to do.

Arthur J. Goldberg:

(Inaudible) they are not bearing proof in here particularly?

Raymond E. Harth:

They are not.

And, certainly, as they point out, certainly a single individual might have requested the State Superintendent to initiate a procedure by the same token, so could the School Board.

Once this complaint had been filed, the School Board could have said to the State Superintendent, “Look, we find ourselves involved in a federal court suit claiming discrimination.

Will you please make an investigation so that we can clear this thing up?”

But certainly, this has not been done.

And, certainly, I would think that the State Superintendent would exceed more to request a School Board who is involved in a federal litigation than he would a single individual who might say, “They’re discriminating against me in this school.”

Arthur J. Goldberg:

Of course, that cuts both ways.

Raymond E. Harth:

It does.

Arthur J. Goldberg:

You could’ve walked over there and filed your complaint, and it might have been tossed out but you could’ve done it.

Raymond E. Harth:

Yes, we might have.

That’s true.

But, our positi — our basic position is that, since our action is based on the Civil Rights Act, that no state statute maybe interposed between these plaintiffs, who had been discriminated against, and we have to take it on the basis of the facts alleged in the complaint and their federal remedy.

Arthur J. Goldberg:

So, both parties here are relying from the law on whether they are of more than expensed.

Is that about it?

Raymond E. Harth:

I would say that this is true, yes.

Again, the — all these points that the defendants make concerning possible sanctions, possible criminal sanctions against those who discriminate, possible withdrawal of certification and all are so uncertain that they should not be held to be a requirement to these plaintiffs before they come into a federal court.

I referred to the case of Hillsborough Township versus Cromwell in which there was a consideration given to whether a state remedy would have to be exhausted involving taxation.

And the Court held that the state remedy involved was not a matter of right but was discretionary and was a part of the basis for holding that the remedy was too uncertain and speculative to be as plain, speedy, and efficient remedy which would preclude a court of equity — a federal court of equity from granting relief.

Thank you.

Earl Warren:

Gentlemen, there’s one matter that I’d like to get cleared up.

As I understood Mr. Boman, the Superintendent of Public Instruction was required to withhold funds if there was any discretion — I mean, any discrimination in these local schools and that he had the power to do just that.

I understood you to say the opposite now.

Earl Warren:

Am I right that those two statements were made?

Raymond E. Harth:

That is correct.

Under the School Code, it provides that before a — before a local board is entitled to receive state funds, it must file an affidavit stating that there’s no discrimination, and it provides that upon — that the State Superintendent, upon receipt of such affidavit, shall certify to the State Auditor that this local board may receive whatever the funds that’s based on the attendance of the school district.

Earl Warren:

And it’s your position there’s nothing in the law that gives him the right to withhold funds.

Raymond E. Harth:

That is correct.

Earl Warren:

Now, Mr. Boman, is there any difference of opinion on that, I –because I got the impression that there was direct conflict between the two of you?

Howard Boman:

I don’t quite follow Mr. Harth.

My position is that the Superintendent, of course, is required to certify claims for state aid to the dispersing officer.

Now, the same Superintendent is the man who may make a finding that there was discrimination here.

Now, I’m saying that it passes understanding that, one day, he will find that there is discrimination in the Cahokia School District, and the second day, he will sign his name to a certification — as a certification to a claim where the school district was not segregating.

Earl Warren:

Well, as I understood Mr. Harth, it isn’t put within his power to determine the validity of those affidavits, that if the affidavit is filed, he shall certify.

Isn’t —

Howard Boman:

Well,

Earl Warren:

— that correct?

Howard Boman:

I don’t think it says either way.

It does not literally say that he may review or not review the affidavits.

Earl Warren:

But, is it your contention, under Illinois law, that he can do that?

Howard Boman:

Yes, sir.

I think he’d fly in the face of state policy if he wore two hats in the same matter.

Earl Warren:

Perhaps, both of you could give us a short memorandum on that as to the —

Howard Boman:

Yes, sir.

Earl Warren:

— your understanding of the law.

Howard Boman:

Thank you.