Norwood v. Harrison

LOCATION: Board of Education, School District No. 1

DOCKET NO.: 72-77
DECIDED BY: Burger Court (1972-1975)

CITATION: 413 US 455 (1973)
ARGUED: Feb 20, 1973 / Feb 21, 1973
DECIDED: Jun 25, 1973

Melvyn R. Leventhal - for appellants
William A. Allain - for appellees

Facts of the case


Media for Norwood v. Harrison

Audio Transcription for Oral Argument - February 20, 1973 in Norwood v. Harrison

Audio Transcription for Oral Argument - February 21, 1973 in Norwood v. Harrison

Warren E. Burger:

-- arguments in Number 72-77, Norwood against Harrison.

Mr. Allain.

William A. Allain:

Mr. Chief Justice may it please the Court.

I think we should first realize what we do have in this lawsuit and what we do not have in the lawsuit.

I direct the Court's or invite the Court's attention to the appendix at page 19 which contains the complaint of a lawsuit.

The second paragraph thereof the plaintiff seek a temporary restraining order and preliminary and permanent injunction, enjoining the defendants from providing or permitting the distribution or sale of state purchased or owned textbooks to private, racially segregated schools or academies.

This case is a fine drawn legal question.

It is not a question of whether or not the 170 challenged academies have a racially motivated admission policy.

It is one which deals basically with whether or not the State of Mississippi can lend text books to the pupils attending racially segregated private academies regardless, regardless of how they got that way.

Now if the Court will look at the appendix, at page 22 in which the relief requested is that before textbooks can be allowed to, here they say, “Private schools and all students,” there must first be a showing to the District Court that the private school is racially integrated both as to students and faculty and in a conjunctive, has not have the effect of frustrating or impeding the establishment of racially integrated public schools.

Now that, Your Honors is a burden that no private school in the United States that I believe, I know of could carry which shows a fine line which this particular case takes.

They are saying they won’t relieve to this extent, unless the private schools now can show that they have an open enrollment admission policy, but that they must be racially integrated both in faculty and in students.

Byron R. White:

Let me make sure of what your position is.

Let's assume that you do have some schools where -- that do not have an open admission policy, what about that?

William A. Allain:

If the Court please, I do not think that is a question in this lawsuit but if we did have that --

Byron R. White:

Why is it not the question in this lawsuit?

William A. Allain:

Because the lawsuit was drafted and framed by the plaintiffs and is shown by the appellants brief, the question before this Court does not deal, does not deal, does not deal with what the race -- what the admission policy of the school is, it is on the theory --

Byron R. White:

Well, don’t you think that question fairly subsumes the idea that the -- at the very least the Equal Protection Clause is violated in connection with those schools, if any which do have a closed admission policy?

William A. Allain:

No Your Honor I don’t, except the reason that in the --

Byron R. White:

Well let’s assume that we didn’t agree with you and that it does subsume that question?

William A. Allain:

If it will subsume that question I think we would still be on solid ground with the teachings of these Court cases in Allen and the Cochran case.

Byron R. White:

So even with respect to schools if any that has a closed admission policy?

William A. Allain:

That is right Your Honor because it is aid to the pupil and not to the school the same rationale of the Allen case, the Cochran case out of Louisiana, 1930 dealing with textbook.

The Allen case by Your Honor you wrote that of -- of that opinion in 1960.

Byron R. White:

Do you find anything in the Allen case that indicated the schools there had a closed admission policy?

William A. Allain:

No, we did not Your Honor.

But the rationale there did not deal with the -- whether or not the admission policy was closed or open, the rationale as I understand Allen and I hate to debate with the author of the opinion but that the mere fact that it went to the pupil and not to the student.

Byron R. White:

Now, if you read -- if you read the argument further advanced in Lemon against Kurtzman.

William A. Allain:

Yes Your Honor you did.

Byron R. White:

About closed admission policy?