Raney v. Board of Education of Gould School District

PETITIONER:Raney
RESPONDENT:Board of Education of Gould School District
LOCATION:United States District Court of Maryland

DOCKET NO.: 805
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 391 US 443 (1968)
ARGUED: Apr 03, 1968
DECIDED: May 27, 1968

Facts of the case

Question

Audio Transcription for Oral Argument – April 03, 1968 in Raney v. Board of Education of Gould School District

Earl Warren:

Number 805, Arthur Lee Raney et al., petitioner versus Board of Education of the Gould School District, et al.

Mr. Greenberg.

Jack Greenberg:

Mr. Chief Justice and may it please the Court.

This case like the two cases preceding it involves an issue of remedy, and that is the question of what a school district must do to come into conformity with the requirements of this Court in the case of Brown v. Board of Education are not merely to come into conformity with the requirements of this Court in the case of Brown as to having maintained generations of segregation but after having maintained segregation for a decade, following this Court’s decision in Brown.

The Gould —

William J. Brennan, Jr.:

I gather, Mr. Greenberg, when your emphasis is on remedy —

Jack Greenberg:

Yes.

William J. Brennan, Jr.:

— you’re suggesting we don’t have to decide that this is constitutionally required.

Jack Greenberg:

Well, it was — it is perhaps difficult to disentangle the procedure that is required —

William J. Brennan, Jr.:

Well, the principle of desegregation.

Jack Greenberg:

Yes.

William J. Brennan, Jr.:

But whether or not the Constitution compels a certain way of accomplishing.

It’s not so much the problem as how to accomplish desegregation as a remedy.

Jack Greenberg:

I — I might put it that way, yeah.

William J. Brennan, Jr.:

Is that it?

Jack Greenberg:

Yes, I might put it that way.

The Gould Special School District is a small district of approximately 3,000 population.

In the 1965-66 school year, when this litigation began, the total school enrolment was 879.

As of December 1965, the District had taken no steps whatsoever to comply with this Court’s decision, Brown against Board of Education.

It maintained at that time and indeed continues to maintain at this time two complexes of buildings about 10 blocks from each other, each one having an elementary and a secondary school.

The Gould School, named after the community, is the White school complex; the Field School is all Negro.

After passage of Title VI of the Civil Rights Act of 1964, Gould instituted freedom of choice.

It covered all 12 grades and it’s interesting to note that a hundred students applied.

There was not adequate — a hundred Negro students applied to go to the White school; no White students applied to go to the Negro school.

There was not adequate room for all the Negro students who applied to go to the White school, and 28 were sent back.

I might note that since then, freedom of choice has continued to operate and never again has the level attained anywhere close to a hundred.

It is covered around 70 and this school year’s gone up to 80.

But when it started, there was sufficient eagerness for a hundred to apply, which we haven’t reached again.

And these were children the 5th, 10th, and 11th grades and they were the plaintiffs in this lawsuit.

Potter Stewart:

How many — how many students in each one of the schools?

Jack Greenberg:

The Field complex says the Negro school complex has approximately 500 students.

The — the Gould school complex has approximately 370 students, 70 of whom were non-Negro —

Potter Stewart:

Probably around 370?

Jack Greenberg:

It’s plus 80 Negro this year, 80 —

Potter Stewart:

About 80 by?

Jack Greenberg:

In fact, those facts are in our brief and not in the record.

Potter Stewart:

In the other school, there are no White children —

Jack Greenberg:

No White children whatsoever.

William J. Brennan, Jr.:

Are there any problems in this case, Mr. Greenberg, of quality of facilities?

Jack Greenberg:

Oh, yes.

The — there’s no question about it.

The Negro schools are very decidedly inferior and unaccredited, and the White schools are accredited as A.

William J. Brennan, Jr.:

This is the phase with the difference in salary?

Jack Greenberg:

There’s also the difference in teachers’ salary, which is explained as they put it on the base of supply and demand.

They felt they could give the Negro teachers cheaper and they didn’t see any reason why they shouldn’t.

Now, the — the first year the freedom of choice actually went into operation, there were 70 Negroes who transferred to Gould and the second year, there were 71 and this year, there are approximately 80.

In the previous cases, there was considerable questioning from the bench concerning what was the motivation behind the institution with the freedom of choice plan.

But in this case, it’s not necessary to guess that.

It set forth rather explicitly in the respondent’s brief at page 18, I may read a sentence or two, “Since there are about” — last paragraph on page 18 — “Since there are about two Negro students for each White student in this school district, the procedure suggested by petitioners as a feasible alternative to freedom of choice would result in both schools being predominantly Negro if the White students continue to attend them.

However, most, if not all, would be withdrawn, although desegregation is an accomplished fact in this district and every White child is attending school where Negro students exceed 20% of the student body, the White parents in Gould would be no more willing than those in Chicago, Washington or New York to send their children to predominantly Negro schools,” so that’s why the plan was adopted here.

There’s — this is offered as a justification on basis of the respondent’s case.

During the case, a school construction program began and a motion was made at trial that the new construction, which was going to be a replacement for the Negro high school building that was built in 1924, be put on the White campus or the White school complex.

That was denied.

Then, in the Court of Appeals, a motion was made that since the school already had been completed that there be some reallocation of the function of facilities, that is that the Gould complex be used as a high school facility completely for all the high school students and that the Field school complex be used as an elementary school complex.

It turned out the numbers are just about right.

Indeed, the Court of Appeals noted that that might be done but as it said, this was not the time.

And the trial court and the Court of Appeals approved what was done by the respondent’s school district citing with approval and — and as partial justification that the plan and its operation had been approved by the Department of Health, Education and Welfare.

Therefore, we have a situation which a procedure has been adopted by respondent after more than ten years of violating the requirements of Brown which has the purpose that’s stated in the brief and has had the result of continuing the existence of an all Negro school complex and the admission of small and stable proportion of Negro children to a formerly all White school.

Supposing the freedom of choice plan would infuse today and require petition, would you now describe the position of Court of Appeals?

Jack Greenberg:

Well, I think my position would be the same but it’s entirely possible that condition might not have persisted because I think if it — it may be.

Jack Greenberg:

I — this has never happened as far as — it may be that if it were introduced today after Brown.

It would have expressed their willingness and acceptance on the part of the community to do something about this rather than a decade of hostility and tipathy to the decision which discourages freedom of choice.

But that to me is so hypothetical.

I don’t know that I can answer any more adequately than that.

That construed throughout the require with the hypothetical circumstances, possibly aggression?

Jack Greenberg:

I read Brown to report disestablishment of the dual school system.

Now, there has been in some of the Court of Appeals’ decisions some debate over integration or desegregation or compulsory integration.

I think that becomes after a while a semantic morass.

I think the issue is what are the available alternatives?

What are the options a school district may exercise to end up with a school system which is as far as possible different in terms of racial composition or racial allocation than the school system they had before 1954.

It may be that some of those options are a lot feasible or not attainable in terms of other educational considerations or expense.

That may or may not be.

But in this case, indeed in most instances, there are available options and we think those options should be — the option which produces the greatest departure from the preexisting situation should be used rather than the option which produces the least, especially where the option was produces the least was adopted with that expectation in mind.

Abe Fortas:

Well, what’s a reason?

Hugo L. Black:

Why would it not violate a man’s right to enjoy equal protection to those rights or may enjoy the equal protection of the law contrary to the Fourteenth Amendment to compel, to go to a school that he was against on to and leave others free?

Jack Greenberg:

Mr. Justice Black, the typical method of assigning students to school before the Brown decision as this Civil Rights Commission report here shows, and the typical method of assigning students to school all over the country generally has been just to assign students to school and no one has ever questioned that being assigned to a school, even though one might object to go to that school is denied of a constitutional right.

Now, we face the question of disestablishing a system which has been run in violation of the Constitution.

I don’t think it’s the denial of anyone’s right to set up zones or allocation of school facilities.

Or indeed in some circumstances as our brief points out, perhaps even freedom of choice.

As the best of available options —

Hugo L. Black:

— denied the First Amendment that he was given the freedom of choice, does it?

Jack Greenberg:

No.

I — I would think ordinarily not, no, but as — as the best of existing ways to get as far away as possible through the preexisting unconstitutional system.

Byron R. White:

And to do that, it’s — your position is that it’s perfectly permissible to draw a school zone line based on racial consideration.

Jack Greenberg:

Oh, yes.

I don’t think since the case is all about race, I don’t think you can put race out of your head.

Byron R. White:

It was bad to draw school zone lines based on race to segregate but it’s perfectly — it is alright to eliminate that to draw a school zone line based on race to indicate in order to do —

Jack Greenberg:

Well, I would —

Byron R. White:

— to desegregate.

Jack Greenberg:

I would — I would say as a — as a matter of remedy, yes, though I would assume that that would not be the inexorable and overriding fact in all circumstances.

Jack Greenberg:

I think you’ll have to look at what the available options are.

In this situation for example —

Byron R. White:

But in some circumstances, it is permissible to have a — to have state action based on racial consideration.

Jack Greenberg:

I would think so, yes.

I don’t see how you can unscramble — I don’t see you can unscramble a racial desegregated situation without taking race about how you doing it.

Byron R. White:

Yes, that’s right.

Of course you could say that to desegregate, you should draw school zone lines on neutral factors, not in regard to race at all.

But you say no, you may draw this zone line based on race.

Jack Greenberg:

Well, I think you would only — just to take a simple hypothetical case, to desegregate a school — in desegregating a school system, you could draw a north to south line or east to west line.

You will see one would keep you as segregated as before and the other would establish substantial integration.

Given those two options, you have to make a choice and I would assume you’d take the one that give —

Byron R. White:

There are a lot of — certainly, there are a lot of school districts where there are no racial problems at all one way or another, and there’s a problem with drawing with zone lines, and the zone lines are drawn without regard to the race.

They’re base on all sorts of other things, I suppose, opacity, geographical factors, and I suppose that even in a city where there are racial problems, where there has been segregation, you could draw school zone lines based on those so-called neutral factors.

Jack Greenberg:

Yes.

Byron R. White:

But you think that that would not be permissible against a background like this but the school zone line must be drawn on a racial — with a racial consideration in it.

Jack Greenberg:

I think you cannot ignore the racial consideration.

I — I just don’t — and I don’t think that anyone doing it actually does ignore it.

To me, it’s inconceivable with someone facing a situation in which he’s trying to draw a school — redraw school zone lines somehow that puts the consideration of race out of his head.

I’ve heard children play a game and would — with — which one tell another don’t think of an elephant, and that’s of course all they do is think of an elephant.

Well, you can’t say integrate the school system but don’t think about race.

You have to think about it.

Byron R. White:

Well, I know, but that’s — that assumes that you’re going to integrate the school system.

Jack Greenberg:

Yes.

Well, we say this is in many respects like Anderson against Martin when race was put up there in the ballot and you can’t go into the ballot box and then vote and keep that out of your mind once the state has done it.

But I might say that in this case, there’s more than that involved.

In this particular case, there’s more than that involved because we don’t have what I might call antiseptic free choice here.

There’s a great deal more going on, quite apart from the fact that —

Byron R. White:

Well, that argument leads to the fact that they are not given volunteer choices.

This is what you have now.

Jack Greenberg:

Well, it’s not involuntary, Mr. Justice Black, in a sense that there has been any great showing of intimidation or coercion.

Jack Greenberg:

There perhaps maybe some slightly — some slight showing of it, but it’s based upon what you might extract from circumstances that one reasonably might expect to have deterring influence on the Negro children and families.

I mean for example, the fact of maintenance of segregation for ten years after Brown, I think, shows what the attitude of the school district is.

I think the sending of the 28 children back after they showed up one day and said, “Okay, we’ve got free choice.

Can we come?”

And then they said, “No, there’s no room for you” instead of using some neutral — some neutral factor.

The segregation of faculty, the faculties here are segregated and the Negro —

Was there a room for them?

Jack Greenberg:

No, there wasn’t room — there — there wasn’t room for them, but rather than use some neutral standard whereby White and Negro children would be judged equally as being qualified to fill the space in the school, the Negro children were just sent back because they were the applicants coming from the Negro school.

There could have been some objective standard rather than the fact that you were the Negro who came —

William J. Brennan, Jr.:

Namely with that proximity to the two schools.

Jack Greenberg:

They were just —

William J. Brennan, Jr.:

And if there were enough White children who live nearby in the Negro school —

Jack Greenberg:

That was never considered.

They just sent them back.

William J. Brennan, Jr.:

But that’s what you’re talking about.

Jack Greenberg:

Yes, and they just sent them back.

It is in interesting to note on page 51 of the record, and I’ve read this record many times but this just dawned upon me, the superintendent refers White schools our school but the Negro school as a Negro school.

School construction was undertaken during the course of this case, which tended to perpetuate a dual school complex.

The — the — the worth that the school district places upon the Negro children is evidenced by the fact that they have gone to unaccredited schools whereas the White children have gone to accredited schools.

Now, it might be argued that notwithstanding all this, all these circumstances, freedom of choice was perhaps justified as the best available of all alternatives to reach desegregation where it might be argued the freedom of choice was like more economical or simpler to administer.

But the record indicates quite the contrary.

They’re running two sets of science rooms.

They’re running two auditoriums and gymnasiums, two sets of cafeterias under the new system.

It would be far more economical to divide up the — allocate the school facilities as we suggested in our brief and — but that’s not for this Court to decide.

Obviously, they would have to be adhering on something like that.

But certainly, it should not have been put out of mind and out of hand as it was in the Court of Appeals.

Byron R. White:

Does your position extend to saying that as a matter of remedy, the — the Court should have — or could and should also limit the freedom of choice so that parents could not send their children to private schools?

Jack Greenberg:

Could not send the children to a private school, genuinely private school, not a states-subsidized private school?

Byron R. White:

Yeah.

Jack Greenberg:

Oh, no.

Jack Greenberg:

I would think that introduces other considerations.

I would think one might have the right — no one has questioned the right to send one’s child to a genuinely private school —

Byron R. White:

And even though the —

Jack Greenberg:

There’s a whole series of —

Byron R. White:

— reason for sending it — for the parents sending the child to the private school was that there no Negroes in the school or no Whites for that matter?

Jack Greenberg:

Mr. Justice White, I don’t believe that that — or anyone has ever suggested that.

I think the Pierce case and those other cases —

Byron R. White:

Well, I know you have — I just wanted — wouldn’t your — would your principle reach that?

Jack Greenberg:

No.

No, it wouldn’t reach that.

Byron R. White:

Would it be applied to that one?

Jack Greenberg:

Well, because I think then, some other principles were introduced into the case and those other principles to me suggest that again, out of the Pierce and the Mayer case and so forth that parents do have the right to select a private education for their children if it meets certain standards.

Hugo L. Black:

Well, if they have that right, can the state take it away?

Jack Greenberg:

Can the state take away the right to send children to a private school?

Hugo L. Black:

Though they want to send them there.

Jack Greenberg:

Mr. Justice Black, I would confess that I have not considered that to be an issue here.

I have not adequately thought it through.

I just wouldn’t know.

I think it does — invoke a whole additional series of considerations in a related but different branch of the law.

In other words, in conclusion, the basis of our position is that when a school district is faced with the task of remedying preexisting segregation, one must look at what are the — what are the options, what are the alternatives, and which of them consistent with educational principles and economic considerations is more likely to achieve the maximum integration or desegregation if you will.

In this case, I think that’s — the answer is rather clear indeed.

I think it is in all the cases that have been argued here today.

Those are the matter that you have presented.

Jack Greenberg:

Well, I — I — I would hope that the Court would — would announce that there’s a positive duty on the part of the school systems to disestablish preexisting segregated systems, that it’s not enough to merely announce something which is called freedom of choice, that where various alternatives are available such as drawing of school district lines or reallocating facilities as between elementary and secondary school use.

Those options should be canvassed and the one which is likely to achieve the greatest amount of integration and assuming that it’s all consistent with other educational factors should — should be employed.

(Inaudible)

Jack Greenberg:

Yes, I would in such cases though.

As I said, we’ve pointed out in our brief, it may be there are some communities where residential segregation is so rigid that freedom of choice perhaps might be the only way to — to eliminate the preexisting system.

I think that it has to be the traditional flexibility of a Court of Equity here and I think the general principles are — are not at least as I’ve suggested and terribly difficult.

Earl Warren:

Mr. Light.

Robert V. Light:

Mr. Chief Justice and may it please the Court.

Mr. Greenberg’s view on freedom of choice had change since 1959.

During which year, he published his now classic book, Race Relations and American Law that’s cited in our brief and where at page 239, he stated, “Moreover, the jury discrimination precedence may be recalled.

Bias may be presumed from a consistently segregated result.

A token number of Negroes may be legally equivalent to none.

If, however, in education there were complete freedom of choice or geographical zoning or any other non-racial standard, and all Negroes still ended up in certain schools, there would seem to be no constitutional objection.”

And I endorse on behalf of the respondents in this case and embrace that principle entirely.

He was entirely right when he wrote those words.

Due to the importance of the constitutional issues here, I want to allude only very briefly to the factual issues that are peculiar to this case, that are not involved or are different from those involved in the other cases.

With respect to the teacher salary differential, and it must be remembered this case was tried in 1965, the proof was that there was a small differential in the salary paid to the Negro and White teachers that the School Board had an active program for several years prior to trial narrowing that gap, and we’re using all of the financial resources of the district to do it and it was comprehended that this was the last year the gap would exist.

And as far as I know, I haven’t had occasion to confirm it because it hadn’t dawned on me until I heard it mentioned in the argument this morning.

As far as I know, the immediate year after trial, that gap certainly was closed.

Those certainly were the plans at the time of the trial and the commitment made to the district judge, and he made that observation in his opinion.

With respect to the equality of the facilities, the only facility which could be said to be unequal that was set aside or was — had in fact been used historically by the Negro students is the Negro high school.

And at the time of trial, plans were already made to replace that facility.

It was an old building and it needed to be replaced.

And funds had already been earmarked to replace the building.

It has now been replaced and the campus occupied by the elementary school and the high school utilized by the Negro students in this district, the proof will show in this record is far superior to the facility used by the Black students because of the addition of this new building.

The elementary school that had been attended solely by Negroes was already a relatively new and perfectly acceptable, perfectly useable educational facility.

With respect to the accreditation, the difference between the two, again, this was three years ago and the primary reason that the accreditation at the school attended by Negroes was not the same as that attended by Whites just because of this old high school building that had to be replaced before proper accreditation could be obtained.

With respect to the suggestion in the briefs and the very brief reference by Mr. Greenberg, to some intimidation or suggestion of intimidation in this school district of Negro students attempting or undertaking to exercise their rights under the Constitution and their rights under this freedom of choice plan, I don’t want to take the time to get into the detail of that but it is covered in detail in the briefs.

There’s absolutely, Your Honors, nothing to it.

I will rely on the expressed findings of both of the courts below that this School Board was in perfect good faith in adopting and carrying you a freedom of choice plan and undertaken to secure the rights of every student in the district, whether he’d be a colored child or a White child.

There is testimony that I would refer the Court to on that subject if the Court is interested, I think the Court would be, in the attitude of the Board of Directors who are the defendants in this case toward the exercise by the Negro students of their rights and toward the education of the Negro students just like their interest in the White students, and that’s the testimony of the president of the board.

And his testimony when asked, was — is there any intimidation when this was on rebuttal?

Is there any intimidation to your knowledge, if you heard anything like that in this little community?

And of course, a community that size, the president and the School Board are going to know it.

He says, “We’ve had nothing like that.

We’ve gone out.

The board members have gone out and encouraged these Negro students here during this first year of the operation of the plan to send their children over to the White school.

Robert V. Light:

We’ve encouraged them to,” he said.

There’s not a member of this board that doesn’t have Negro people living on their property.

This — this is a cotton-oriented rural community.

Hugo L. Black:

What is the population?

Robert V. Light:

Of the school district?

Hugo L. Black:

Yeah, the school district or the town.

Is there town there?

Robert V. Light:

Your Honor, the town is the only incorporated community in a school district.

A school district is rural around the town, but I don’t know how many miles.

I believe there’s some — I’d be reluctant to tell you the geographical size.

The population of the school district is about 3000 people, I believe Mr. Greenberg said, the student population.

Hugo L. Black:

How is that divided between the races?

Robert V. Light:

Your Honor, there are approximately 66 and two-thirds percent Negroes in the school population, and 33 and one-third percent White.

There are two Negro students for each White student in this district.

Thurgood Marshall:

Mr. Light, are there any White students in Field Elementary School?

Robert V. Light:

No, sir, Your Honor.

Thurgood Marshall:

Can you give me a reason why.

Robert V. Light:

Yes, Your Honor.

No White child or his parent in his behalf has exercised his right to go to that school.

Thurgood Marshall:

What could be the reason for that?

Could it possibly be that the White parents don’t want to send their children to a school that paid 45,000 to build an education part of the school and 82,000 for the gymnasium?

Could it be that they didn’t — they’d rather go to a nice school rather than a nice gymnasium?

Could that be a reason?

Robert V. Light:

Your Honor, I hadn’t previously been aware that the figures might indicate that there are some disproportionate amounts of money spent on the gymnasium.

The gymnasium —

Thurgood Marshall:

I like to point out to page five of your brief.

Robert V. Light:

That gymnasium, I’ve — I’ve been in that facility as I recall.

It contains various facilities other than the gymnasium itself.

That building is just — it was referred to as a gymnasium because that’s the predominant leisure.

Thurgood Marshall:

That could have been the reason.

Thurgood Marshall:

They’d rather not send —

Robert V. Light:

No, sir.

Your Honor, not in this case because that — the Field elementary and high school complex, which is on the same campus and the same square block or two square blocks is by far the superior physical facility in that district.

There’s no question about it.

Thurgood Marshall:

Better than the one?

Robert V. Light:

Yes, sir.

No doubt about it.

Thurgood Marshall:

But then, why do people have a lawsuit against it?

Robert V. Light:

Your Honor —

Thurgood Marshall:

Do you think you’re going with them?

Robert V. Light:

No, sir.

Because they have a free right, an absolute right to choose to go to the Field school or to the Gould school, just like — without regard to race.

Earl Warren:

Do you have a school bus system?

Robert V. Light:

Yes, sir.

Bus transportation is afforded to students that live beyond a certain distance from the school, which is a state-mandated distance, I believe, it’s two miles.

And the busses are routed to serve the school to which they’re assigned.

And the Negro students who have selected to go to the Gould school ride to Gould school busses.

Earl Warren:

How large an area is the school district?

Robert V. Light:

That was the question Mr. Justice Black just asked and I told him I’d have to guess.

Earl Warren:

In square miles, say, from what — suppose it’s in a form of a rectangle, is it, or a square?

Robert V. Light:

Your Honor, my recollection is that we’ve never introduced maps in this litigation of this district.

There’ve been — been no occasion to really.

It’s — it’s a sizeable little country school district with the entire state penitentiary in state ingle farm enclosed within its boundaries, and that farm is 20,000 acres.

Now that’s really — I — I can’t give you anymore accurate description without going back to the record.

This is in the record, I believe, the suit is going to describe it.

Earl Warren:

Well, could you tell me how — what the distance is between the two schools?

Robert V. Light:

Yes, sir.

Eight to ten blocks.

Earl Warren:

Eight to ten blocks between —

Robert V. Light:

Yes, sir.

Earl Warren:

— those two schools?

Robert V. Light:

They are both in the little community, incorporated community of Gould.

Abe Fortas:

Is the HEW approval of your plan still outstanding?

HEW did approve the plan —

Robert V. Light:

Yes, sir.

And it has not withdrawn that approval, Your Honor.

As Mr. Greenberg said, and I appreciate his candor, it was only a one-year incident in which every child in the district was not afforded the right to select the school.

The two subsequent years, including this current school year, there have been no overcrowding of a facility and every child in that school district is attending school that was selected by him or by his parents and there had been no further complaint or — further complaint or had been no complaint at all from HEW.

Abe Fortas:

Was the HEW approval expressed in the form of letter or something of the sort?

Robert V. Light:

That’s my recollection and —

Abe Fortas:

Is that in the record?

Robert V. Light:

This documentation was introduced in the record, Your Honor.

It has not been printed in the printed appendix however and I, of course, had little to do with that, but the references are there.

The testimony of the witnesses putting that material in is there.

Byron R. White:

But that’s in the record that’s obliged here with the clerk?

Robert V. Light:

Mr. Justice White, I really don’t know what came — what the other side brought up in a way of a record.

The printed appendix that was all served on me.

I’d like to point out since the ballot case was mentioned by Mr. Greenberg where the racial designation were to be placed on the ballot Negro or White that that hasn’t got anything to do with the situation that we have here.

That was the state making racial classifications, and what we’ve done here is quit making racial classifications.

We’re affording the fullest exercise of individual liberties without any possibility of penalty because of race.

Abe Fortas:

Do these two school complexes have interschool athletics?

Robert V. Light:

They — between themselves, Your Honor?

Abe Fortas:

Yes.

Robert V. Light:

If they do, I’m not aware of it.

And if they do, it would be an innovation since the time of trial.

Abe Fortas:

I see and but they do — they do have athletic teams to play other schools, don’t they?

Robert V. Light:

Your Honor, there was evidence in the record.

There is some organized athletic activity.

I — I don’t know what sort of program they play on, whether they are large enough to participate in a formal scheduled program or not.

I’d like to point out that subsequent to Brown, there having been no intimation of course in Brown that the Constitution compels the intermingling of the races by any sort of predetermined mixture that what the people had to do, what the state had to do is quit discriminating, quit making racial classifications in public education, that the decisions of the Courts of Appeal of every circuit that had substantial school desegregation litigation were unanimous in reading Brown just as Judge Parker did that the Constitution doesn’t commend integration and the spring board hadn’t held that it does until the Jackson County case decided by the Fifth Circuit in the last year or 14 months ago.

Robert V. Light:

And with all respect of course to that Court, that decision is just wrong and its error can be demonstrated by looking at why Judge Wisdom says we’ve got to take a new look at this constitutional question because that Court was having to overrule some 50 of its own earlier decisions on this very Court.

He says what makes us take a different look at it now is the Civil Right Act of 1964 has been passed and it goes on to mention that the HEW has promulgated some guidelines on how to go about school desegregation.

And then, they examined the constitutional issues in light of the Civil Rights Act of 1964 and concluded that it required the affirmative manipulation of the students in order to achieve affirmative integration.

And of course, the act didn’t do anything of this sort, Your Honors.

Its own language is crystal clear and its legislative history is entirely consistent that the intent was to adopt the legal duty as the legal duty of local school officials in this area, that which was already their duty under the Fourteenth Amendment as construed by this Court in Brown, and there are expressed references.

Senator Humphrey who managed the bill on the Senate expressly said here’s the Bell against School City case decided by Judge Beamer later affirmed by the Court of Appeals for the Seventh Circuit I believe it is, and certiorari denied here.

This is the sense of Congress.

This is the national policy that we’re adopting that if the Constitution doesn’t require manipulation of these people, it doesn’t require overcoming racial imbalances, what it requires is that you do not discriminate, you do not classify these people according to race with respect to admitting and assigning them to the public schools.

And in the even that Congress left anything to be speculative about what its intent was in the ’64 Act, in 1966 it came along and made it expressly clear in the 1966 amendments to the 1965 secondary and — Elementary and Secondary Aid to Education Act.

And at page 42 on our brief, we set out this amendment which states that in the administration of this chapter, no department, agency, officer, employees of United States shall exercise any direction, supervision or control over the personnel, curriculum or program of instruction of any school or school system and any local or state educational agency are — now, this is the language that was added by the 1966 Amendment that I’m about to read, are required the assignment or transportation of students or teachers in order to overcome racial imbalance.

That’s the national policy expressed by the Congress with respect to any federal concern about racial imbalances.

I’d like to say this of freedom of choice and since it’s suggested that it was a recent innovation to escape constitutional obligation, I think that would be a fair characterization of what my adversary suggests.

In the first place, it’s a method of school assignment that had been followed by many districts.

It happens to be that the residential zoning, drawing zoning lines has been the predominant wave of assigning students to school on its country.

But I think freedom of choice is next.

Baltimore is the largest city that’s traditionally for many, many years used freedom of choice, and that was apparent.

I leaned that in re-reading the arguments before this Court in the Brown case.

For many years prior to that, Baltimore used freedom of choice.

Many other places — yes, Your Honor?

Thurgood Marshall:

Mr. Light, but here you should know as an old Baltimorean, nobody ever knew about it.

It was there but nobody ever knew until after the Brown case.

Robert V. Light:

Your Honor, perhaps the first references that I read, and I don’t recall, concerning the Baltimore freedom of choice plan because it was discussed by several of the counsel.

And I think on both sides of the table during the Brown arguments may have been during the last argument concerning the remedy.

But references were made, Mr. Justice Marshall and I think perhaps —

Thurgood Marshall:

Well, you did have it in Arkansas.

Robert V. Light:

I don’t know whether we had it in Arkansas, Your Honor.

Thurgood Marshall:

So you didn’t have it in Gould?

Robert V. Light:

We didn’t have it in Gould, Your Honor.

We didn’t.

Thurgood Marshall:

You didn’t get it until you’re up against the wall.

Robert V. Light:

Your Honor, we’ve got it 1965.

Thurgood Marshall:

Well, we’ll leave it at 1965.

And you could have taken the two and combined the two schools together, the two campuses physically.

Robert V. Light:

Your Honor, I don’t know how you could combine facilities that are eight to ten blocks apart physically.

Perhaps I didn’t understand the thrust of your question.

Thurgood Marshall:

But you could have made one elementary and one high school.

Robert V. Light:

Yes, sir.

That’s one of the “feasible alternatives” suggested by our adversaries.

Thurgood Marshall:

In 1954 when you built the Field Elementary School, you could have built that around the campus with Gould.

Robert V. Light:

With Gould?

Thurgood Marshall:

Yes, sir.

Robert V. Light:

No, sir, Your Honor.

The proof in the trial that was there is no space available on the Gould campus for any further construction because the issue tried in this case below, Mr. Justice Marshall, was whether we should build this new proposed high school building on the site that the School Board had secured and was planning on building on, which was near the Field Elementary School, or whether we should build one in Gould.

Thurgood Marshall:

I assume you have a right to build your school building wherever you want to build them.

But you could have made one large elementary school and one large high school and you put everybody in the same school without much trouble.

Robert V. Light:

Your Honor, certainly the proof in the record doesn’t support that assumption.

Thurgood Marshall:

It’s possibility.

Robert V. Light:

I would certainly concede it’s a possibility.

Yes, sir.

Thurgood Marshall:

And there’s one other possibility.

You could have drawn the line four blocks from each one of the schools and said everybody on that side go into one.

Robert V. Light:

What really was a —

Thurgood Marshall:

If you could put four blocks in either one of them, you’d be in the middle, would you?

Robert V. Light:

I suppose that’s a possibility. Of course, it’s — as Your Honor knows from the dispute in the prior case when you get into drawing lines, people disagree on whether the line — where the line should be drawn.

Thurgood Marshall:

But once you draw the line, you could go right down to the middle of the county and detour a penitentiary and set everybody on this side and everybody on this side goes to the other one.

Robert V. Light:

Yes, sir.

But one of the failings of that is that it wouldn’t offer the opportunity we do here for every child or his parent on his behalf to make a full and free choice on his own in this matter.

Thurgood Marshall:

And finally, once you did that to consider both of them is your school rather than just the Gould school.

Robert V. Light:

This Board that I represent considered both of the schools now Your Honor.

I want to say something of freedom of choice that it is not what it might be pictured here just to device to achieve a result that it maybe thought that we have set out to achieve.

Robert V. Light:

It’s an old procedure in education and I’d like to refer to the Court to how it works at the collegiate level.

We’ve had freedom of choice at the collegiate level since they started building colleges in this country 300 years ago and we’ve had freedom of choice at the collegiate level ever since the states got into the business of offering collegiate training to their citizens and even in the states where formally segregation was legal, we’ve had freedom of choice at the collegiate level since some years before Brown because of the decision to this Court in Sweatt against Painter and McLaurin.

And what has that freedom of choice, that long existing freedom of choice and currently freedom of choice produced?

It’s produced the same pattern that we’ve got in this school district with respect to racial attendance and the same pattern you have in the Virginia’s case, the school district with respect the racial pattern.

You have a relatively few Negro students going to White educational, predominantly White educational institution.

And the Gould School District is possibly 15% of the Negro students have elected the old to the previously White school in the New Kent County, Virginia, I believe it’s about 18%.

That’s about the pattern you have in the colleges over this nation as the result of freedom of choice.

The vast majority of these people and the Court can’t go any other rational inference, I don’t think want to attend school with members of their own race and that’s been proved year after year.

I’ve never heard any suggestion that any intimidation brought about that pattern.

And I would submit to the Court there would be a serious question.

I believe the vast majority of the Negro students in this nation who are receiving collegiate training are in predominantly are all Negro schools and if the Court should make a rule of constitutional law that it’s unlawful to operate an all Negro educational institution as I understand the petitioner seek to have invoked here.

But what will happen to all of those Negro colleges where collegiate training is now being received?

It’s a serious problem.

I want to bring down realistically in concrete fact that way from the theories, what would happen if this Court adopted the rule of law that the petitioner seek here?

They have suggested as their alternative or feasible alternative although there’s no proof in the record that it was feasible.

Well, this issue wasn’t even tried in the District Court that we could make one of the schools, an elementary school and one a high school.

If we did that Your Honors, the high school would contain 157 White students and 100 — correction — and 247 Negro students.

And I had erroneously given that that would be the elementary school.

The high school would contain 147 White students and 301 Negro students.

These are based on the figures supplied by the petitioners with their petition for certiorari.

They file the HEW statistics concerning this district with this Court and I’ve taken those figures.

So you’ve got approximately two Negro students and one White student in each of those schools and I think that if we examine that situation with candor and the time I believe has come for candor and I want to speak to the Court with candor on this that we know from experience that the White students will not continue to attend those schools.

That’s the racial breakdown you’d have if the White students stayed in those schools.

But they would flee just as inevitably as they have fled from the public schools of Washington DC and go to private schools, go stay with relatives in some other school district but they leave and I don’t know how to characterize the reason for them doing that any better than to say in all sincerity that as one of the justices suggested this morning, I believe the Chief Justice, that we can’t ignore what’s going on for a hundred years in that community.

Well, we can’t ignore what’s going on for a hundred years in that community and whether that history is right or wrong, whether it’s more with Christian is going on.

It’s a fact that we have to deal with and that has produced two groups of people with such cultural differences in that community, Your Honor, that when the predominant culture becomes that of the Negro people in the community, the White people flee from it.

It’s not acceptable term and to say this that difficult thing to speak with — to speak about with candor but I feel obliged to speak about it with candor.

Earl Warren:

Unbelievable.

That being the situation Mr. Light, isn’t it?

Isn’t the fact that the School Board in doing here what it has done is merely bowing to the imperatives of community feeling rather than to bow to the law in trying to desegregate the schools and that if permitted to go on, it will go on indefinitely that all the White students will go to one school or practically all and practically all the Negro’s go to another and the desegregation decisions therefore become frustrated entirely.

Robert V. Light:

Oh, no sir.

Your Honor, to answer the first of your two part question.

Earl Warren:

Yes.

Robert V. Light:

The motive of the School Board and this has been inquired about before doing the course of these arguments.

If the motive of the School Board is impertinent, perhaps it is if adopted this alternative from among the several that it had to look at, at the time that procedure desegregate these schools because it’s the only one it could adopt in its judgment not concurring its judgment that wouldn’t destroy the public schools of this system.

It’s the only one that would be constitutional that it gave everybody their rights.

The full equality of the law and yet not destroy the public school system by driving out a substantial segment of the community and losing the support for the public schools that that segment of the community provides.

I — I’m fearful.

Thurgood Marshall:

How many private schools do you have in your county?

Robert V. Light:

In — in that county?

Thurgood Marshall:

Yes, sir.

Robert V. Light:

None of which I’m aware of, Your Honor.

Thurgood Marshall:

So we don’t have to worry about that part, do we?

Robert V. Light:

Your Honor, I presume that there are no private schools and in fact, I’m relatively certain from my reading that there are no private schools in Prince Edward County, Virginia until the recent years.

Thurgood Marshall:

I understand.

That’s over with now too because they weren’t private.

Robert V. Light:

Well, Your Honor, I have —

Thurgood Marshall:

Well, you don’t think that the old county would try to deal with Prince Edward County do you —

Robert V. Light:

No, sir.

Thurgood Marshall:

This Court found that that was wrong, would you?

Robert V. Light:

No, sir.

Thurgood Marshall:

We wouldn’t think of doing that.

Robert V. Light:

These respondents Your Honor will comply to the extent within their power with whatever order of this Court enter.

I’m concerned about the —

Thurgood Marshall:

Well, look into the future about how long do you think it would take for your county to reach the point where they wouldn’t mind the White children attending the school and there’s two to one nature — but how long do you think your county would get around at that point?

Robert V. Light:

Your Honor, I’m not clairvoyant not to project that but I imagine that it would largely coincide with the length of time it took the majority of the Negro people in that community to decide that they didn’t want to keep their own school and use it as their community center and attend school with members of their own race.

Every one of them Mr. Justice Marshall has this right that —

Thurgood Marshall:

Well, doesn’t Mr. Arthur Lee Raney — he isn’t not interested and that is —

Robert V. Light:

Mr. Arthur Lee Raney is in the Gould school and admitted to the school when he first applied in 1965 and was erroneously listed his plane fair.

Thurgood Marshall:

But you’re not speaking to all the Negroes, are you?

Robert V. Light:

I’m speaking for all the Negro’s in saying what sir?

Thurgood Marshall:

In saying that they want to be themselves in their own little school.

Robert V. Light:

I’m speaking of all —

Thurgood Marshall:

Then let’s all be happy.

Robert V. Light:

— I’m speaking of all that are in the field of high school and elementary school in this school district because they’ve had the —

Thurgood Marshall:

How many Negroes do you know in that county personally?

Robert V. Light:

Your Honor, it goes out that I have some professional contact with some of the staff.

Thurgood Marshall:

How many approximately because you’re speaking for all of them.

Robert V. Light:

That’s why I’m not speaking furthermore thinking of —

Thurgood Marshall:

Whom you just said — I thought you said you’re speaking for all of them.

Robert V. Light:

And I thought I’d selected the word of, I meant to because I’m sensitive to Mr. Greenberg taking the position that he speaks for all Negro’s when I know that he does not and cannot be impossible.

Thurgood Marshall:

I’m not talking about Mr. Greenberg.

I’m talking about you.

You said that the Negroes in Gould love to be by themselves in their own school building.

You didn’t say some.

You really mean some, don’t you?

Robert V. Light:

I think Mr. Justice Marshall that I respectfully suggest that you’ve taken some liberty with what I said.

I — I have said that the Negroes in the field school complex, all freely selected to go there.

They’re there because they want to be there.

Now —

Thurgood Marshall:

How do you know?

You don’t know why they’re there?

Robert V. Light:

No, sir.

But I know how the mechanics —

Thurgood Marshall:

What they first assigned — the children in Field were first assigned there, weren’t they?

Robert V. Light:

Your Honor, they filled out a child’s form to get there.

They selected the school and now those that are in the higher grade before 1965, originally were assigned there on a racial basis.

Thurgood Marshall:

And how do they get out?

Robert V. Light:

How do they get out?

By signing a document such as the one that Mr. Greenberg —

Thurgood Marshall:

Which they have to have to sign.

Robert V. Light:

Well, the parents in some instances, the child —

Thurgood Marshall:

That’s what I mean but it’s up to them.

They have to make the move.

Robert V. Light:

If — that’s right, simply signing in there, Your Honor.

Thurgood Marshall:

They have to make the move.

Robert V. Light:

Thank you, Your Honor.

Earl Warren:

Mr. Claiborne.

Louis F. Claiborne:

Mr. Chief Justice and may it please the Court.

It might be helpful at this stage to summarize the context in so far as it’s common to these three cases.

As the United States views these cases, they present three situations very alike and that, in each one, normal, old fashioned geographic zoning would achieve either a substantial measure or complete desegregation school district and yet, this long after Brown in each of these three schools districts, 80% to 85% of the Negro children attend all Negro schools.

At each and every one of the previously all Negro schools in each of these school districts remains today absolutely 100% a Negro school.

It is that persistence of racial segregation that each of these districts it seems to us calls for a remedy.

There has been a lot of talk about compulsory integration and the challenge to freedom of choice is characterized as advocacy of compulsory integration.

It seems to us that that is a false issue as it applies to these cases.

We’re not talking here about busting or any other extraordinary measures to accomplish a racial balance in the schools of the districts.

We’re merely suggesting the old fashion traditional system of neighborhood schools of geographic zoning be followed here as if no doubt would have been followed except for the effort to escape the racial integration that would follow from such geographic zoning.

To hear the respondent’s one would suppose that there were some sort of constitutional right to children to choose their own schools.

There is of course no such right and that fact is in this country for a century has been to resign the children to the school even there is their home or on some other basis but without giving them any absolute freedom as to which school they wish to pick.

One would suppose that the Brown decision had condemned not racial segregation but compulsory assignment.

Shortly, Brown did not condemn the old system of assigning children to a school in the best interest of the district as a whole.

All it condemned was the system of racial assignments, not the system with compulsory assignments.

Now, it’s one thing and bad enough if the school districts after these many years in maintaining segregation, want to wash their hands at the problem and leave it up to the students or leave it up with somebody else to repair the damage that have been done.

But that’s not even to this case.

They’re not simply washing their hand at the problem.

They’re not simply advocating responsibility which it seems to us is theirs under the circumstances and in light of the history.

They’re going — taking affirmative steps.

They’re going very far out of their way to create, to make it possible of resegregation or a perpetuation of segregation within the school districts.

They’re not simply letting the assignments fall as they would naturally by geographic zoning.

Byron R. White:

What if — what if old fashioned neighborhood zoning produced no integration at all or perhaps the segregation where it was.

Louis F. Claiborne:

That seems to us, Mr. Justice White, presents a quite different problem.

I don’t say that we wouldn’t in that case argue that at least against the background of enforced racial segregation.

There weren’t some offended duty on the School Board to take measures or at least to avoid as between equal alternatives.

That alternative which is least likely to produce an end of the new school system but that is not what’s involved here as I say.

Rather these School Boards have taken quite extraordinary measures to avoid the natural result that would follow.

We condemn freedom of choice here in this context where it does seem to us to be an artificial device to delay, to retard, even to defeat the segregation.

First, because it’s so obviously artificial, it is not a traditional method of assigning, at least in the south of assigning elementary and high school students, whatever it may be, college area.

It does seem to be educational nonsense.

It’s a pure haphazard system in theory which takes no account of what things they might be desirable from educational point of view.

At least in those cases where it requires long distance bussing as in New Kent, Virginia and in Gould, Arkansas.

It imposes a special financial burden on the school district and of course, it’s an administrative nightmare if it works as it should in theory because not only do you have forms, letters to be sent out, receive, tabulate, count, all of which would be unnecessary.

If the School Board to simply assign as it used to on the basis of residence, but the results are unpredictable from year to year.

School construction can’t proceed on any intelligent basis if, as I say, it worked as it’s supposed to in theory and the results were truly unpredictable.

Of course, the fact is that freedom of choice is not supposed to work toward the segregation.

If it did, it would be self-defeating from the point of view of its office because pretty soon, the White school to which all the Negroes would transfer would become overcrowded.

The Negro school would have to be closed, and the whole theory of freedom of choice would be ended and there would be no free assignment or free choice.

They would then have to be compulsory assignments on the basis of proximity to school.

This fact alone shows that freedom of choice is not supposed to work in the sense of achieving desegregation.

It is calculated on the theory that the Whites will all choose to attend the White schools and that very few Negroes will overcome the burden and have the courage to take the adventure into a school where they have been shunned, where they don’t expect to be welcomed.

Abe Fortas:

Well here, the result of the free choice — so-called free choice is to place any Negro in a White school, isn’t that right?

Louis F. Claiborne:

In one of these — in one of these cases, yes.

Abe Fortas:

So that’s in the Raney cases, I understand that there’s about 20% of the Negroes who are in the White school, is that right?

Is that your instinct?

Louis F. Claiborne:

The figures are from 80% to 85% who are —

Abe Fortas:

So that they become — I gather that the system did accomplish that much.

It did accomplish the placement of any Negroes in the White school, is that right?

Louis F. Claiborne:

It did accomplish that much.

Abe Fortas:

Now, it left the Negro school all Negroes as I understand it.

I suppose that the resulting situation of whatever plan it was the School Board adopted was to have 20% Negroes in the White school and 20% Whites in the Negro School, would that still offend your conception of the result about to be achieved here?

Louis F. Claiborne:

Mr. Justice Fortas, we are not playing a game of statistics sir.

Abe Fortas:

Well, I wonder if — that’s what I’m trying to find out.

Are we or are we not, we’re not playing games it’s deadly serious but there is a test of the result here.

A statistical test if it’s not, what is it?

Is it a test of good faith or just what is it?

Louis F. Claiborne:

Certainly it is relevant to what results are achieved.

If good results are achieved the method even though seemingly bad is harmless.

On the other hand, if the results are so insubstantial as they are here, then one begins to look to see if some other method would not achieve better results.

Abe Fortas:

Well, what I’m asking Mr. Claiborne, how do you test the adequacy of the result?

Now, here you did have — a result of this system was that any Negroes landed in the White school, there had been none before as I understand it.

That’s in the Raney case.

And let — well, let’s just take that alone.

What does that say to you with respect to the result so far as the previous in White schools that was concerned?

Louis F. Claiborne:

That figure alone will not find meaningless, Mr. Justice Fortas.

I have to test it against what the result would be if another alternative were followed especially when the other alternative is cheaper, simpler, more customary and when I find that that other alternative reproduced 50% integration, then I’ve condemned the 20%.

Abe Fortas:

Now, tell me in Raney or you could take one of these other cases that’s easier for you, what — the alternative method might be that seems feasible and which would produce a different result.

Louis F. Claiborne:

Well, in the Gould case —

Abe Fortas:

In which one?

Louis F. Claiborne:

I take it Raney as the Gould case number 805, Gould, Arkansas, either of the two methods already mentioned, one would be drawing a geographical line down in the middle as Mr. Justice Marshall put it four blocks from each of the schools right down the middle of separating this district into two zones and assigning of the students on the basis of geography or alternatively qince this is a system with so few students, one would suppose that economic and educational considerations would normally leave the school district if race were not involved to consolidate or pay and have one of the buildings used for the high school and the other use for the elementary school for every one in the district.

That latter system, of course, would produce total desegregation and we are told that there’s a little residential segregation within this district so we can presume that a fairly drawn geographic zoning system would likewise produce the substantial degree of this occasion.

Abe Fortas:

What you’re really saying is that this — if I understand it is for the standard of compliance with Brown in a previously segregation school district, should be whether of the alternatives reasonably available, that alternative was adopted which would result of the maximum desegregation.

Louis F. Claiborne:

I don’t think I have to go even that far Mr. Justice Fortas because here, it’s not, these are not equal alternatives.

This is so obviously a cumbersome out of the way transparent device to drift on desegregation that they don’t have to say what would be the result if it was a question of consolidation versus geographic zoning and condemn one of the other depending on resulting statistics.

Here, there is an extraordinary effort by the state action not only to advocate whatever responsibility they may be in the school district to repair, to compensate for the discrimination of repairs but a devising of a scheme which allows race to control assignment of students.

Albeit, race in terms of the exercise of private prejudice rather than the School Board itself during —

Potter Stewart:

The result in each of these cases unless I’m mistaken, the net result is that every White student in each of these three cases goes to a school where there are some Negro students.

Louis F. Claiborne:

I’m not sure that’s true.

Potter Stewart:

But I think — alright, but you tell me if I’m wrong but about that in each of the three cases.

Some if not most of the Negro students go to schools where there are no White students.

Louis F. Claiborne:

That in each case — so 80% to 85% of the Negroes go to schools in which they are the White —

Potter Stewart:

Every White student goes to an integrated school I believe —

Louis F. Claiborne:

I submit, there maybe —

Potter Stewart:

— first in my case and the —

Louis F. Claiborne:

— integrated in a token sense.

Potter Stewart:

Well, in some of the cases more than a token sense, I would say as far to your definition of token, 30% but moreover —

Louis F. Claiborne:

Now, let me point out that this free choice which is spoken of as though we were asking that the Negroes and the Whites be denied.

It seems unfair — no one has ever asked the Negroes in these Negro schools whether they would object to the assignment of the White students there until that point comes, there is no basis for saying that they had been — they would be denied the right to go to school alone.

There are of course obvious in many reasons why the Negro is reluctant to take the advantage into the White school and the system works so as to put the entire burden on here.

The White assigns himself back to his old school where he is familiar.

The Negro is expected to leave the familiar surroundings and to go to a school where he is led to believe right or wrong that he will be shown — that he will be unwelcome and at all events, he is the one who has to make a move.

He is the one who has to break with the comfortable customary surrounding and that in itself is unfair.

All these would be tolerable if it were necessary, if it were unavoidable but it’s not only unnecessary unavoidable, it’s a manufactured burden that could so easily by employing traditional and customary method of assignment —

Byron R. White:

Well to say that both are to favor that you assume that if the — if some alternative plan were adopted, you can either say the Whites would not move out or if they would, it’s wholly irrelevant to the question, wholly irrelevant.

Louis F. Claiborne:

I have to say first Mr. Justice White that that frightening prospect which is always put forward in these cases, tends to argue against any desegregation.

Byron R. White:

I understand that but you say that that is a matter of fact, you dispute it.

Louis F. Claiborne:

Well, I have no basis on which to dispute whether in this particular school district it would or would not happen.

Byron R. White:

If you accepted it, would you say it’s irrelevant?

Louis F. Claiborne:

I would say it were irrelevant even if it works.

And I must point out that the more school district is subjected to the same constitutional standard, the less place there is to flee to.

The more tuition aide to so-called private schools are stricken down, the less attractive the alternative private schooling becomes and it works perhaps a little bit like the public accommodation law of — if everybody has to desegregate and there’s no place else to go.

Pretty soon, people stay where they once were and I would hope that would be the result.

William J. Brennan, Jr.:

Mr. Claiborne, may I ask.

Do I read your brief correctly as suggesting that at least in the New Kent and Gould case that this Court had only should say that the — in those instances, the free choice school is not a viable alternative but indeed that we should go beyond that and require that the School Board adopt a geographical zoning plan?

Is that what —

Louis F. Claiborne:

I — as to the first, it is I suggest, Mr. Justice Brennan, that there is no basis on which — and there is no occasion for a remand to reconsider the propriety of freedom of choice in those two districts nor of the free transfer —

William J. Brennan, Jr.:

Yeah, I understood that and you want us to decide that —

Louis F. Claiborne:

What as to wait what — what final solution ought to be adopted whether geographic zoning or pairing a consolidation as to that matter, I would think it would be in the first instance a matter for the District Court or perhaps the School Board —

William J. Brennan, Jr.:

Well, then I’m wrong in reading your brief that’s suggesting that we should prescribe.

Louis F. Claiborne:

I do think this Court should condemn freedom of choice as an alternative —

William J. Brennan, Jr.:

This is on the premise that we did but then what do we do?

Just remand and tell a District Court that board has got to come up with some other more satisfactory alternative?

Louis F. Claiborne:

Well, I don’t know that there are any but those two.

I don’t know that it would —

William J. Brennan, Jr.:

Well, then what do you want us to do?

That’s what I’m trying to get at.

Louis F. Claiborne:

With all those two that is pairing and geographic zoning.

I would not suppose it’s appropriate for this Court to choose between them.

William J. Brennan, Jr.:

But are you — what you do supposedly appropriate for this Court to say that these two it appears on this record would be satisfactory as a remedy but you go ahead in District Court and choose between them, limiting the District Court to the choice between the two?

Louis F. Claiborne:

I would leave it perhaps a bit more open and if the District Court could device some plan which I haven’t thought of which might —

William J. Brennan, Jr.:

Well, don’t you think it’s singularly inappropriate for us to talk and prescribe these schools?

Louis F. Claiborne:

I don’t suggest that this Court ought to prescribe the précised plan which any given district ought to apply.

I do think it is both appropriate that fitting that this Court do condemn freedom of choice as applied in this sort of circumstance.

Let me hasten to say that we do not challenge freedom of choice in all circumstances as I think Mr. Greenberg mentioned in those situations where residential patterns of segregation are so strict that geographic zoning would produce a high degree of segregation of — freedom of choice can certainly do no harm and it may do substantial good.

Now finally, I want to stress that because this is such a transparent device to unable the White students primarily and their parents to segregate or continue desegregation of the school system in a way that the state itself could not.

Because everybody understands that that’s the reason why this plan was resorted to and because that message has been gone across both to the Negro community and the White community.

We have a situation in which the state appears at least to be applauding, to be encouraging, to be at least sanctioning and approving a choice made on the basis of place.

Since this is a device to permit the White students to find themselves a haven away from their normal assignment in a school which is mostly Negro and since the state has gone to such extraordinary lands and put such a burden on itself to make this choice available, it has thereby indicated to all members of the community that this is a legitimate and proper basis on which to choose your school and thereby it seems to me it has hardened those racials — racial attitudes which is our purpose of educational desegregation to relax and it has also compounded the injury on the Negro children.

It’s bad enough to be segregated off to have that as the accidental consequence of geographic zoning which is wholly neutral is one thing but to have it as the consequence of a deliberate policy sanctioned by the state being shunned by the White students who live next door to them and makes the injury that much more severe.

That is the injury which the Brown decision is concerned about, that injury which is that much worse when it seems to have the sanction, the approval state behind it.

Now finally and to conclude, let me repeat what I said at the outset, we do not in these cases think it’s necessary to argue that the School Board had an affirmative obligation to take special measures to achieve racial balance.

That is not our argument here.

Our argument is rather that the state must at least avoid resorting to extraordinary measures which can only be in their purpose and effect defeat or retard desegregation.

On this submission, we suggest that in all the three cases, the judgments below be reversed.

Earl Warren:

Mr. Light.

Robert V. Light:

Mr. Chief Justice and may it please the Court.

Mr. Claiborne indicated that he would not challenge the proposition that there is a tendency of the Whites to flee when a predominantly Negro facility develops.

I have evidence to support that in the form of the report of United States Commission on Civil Rights cited at page 60 of my brief where they say there’s evidence to suggest that once a school becomes almost half or majority Negro, it tends rapidly to become nearly all Negro and this is consistent with the experience in life that we’ve had all over the country.

This isn’t a sudden phenomenon.

I do not want to be understood as arguing that the Court should approve the freedom of choice method of school assignment because it’s the only one that will preserve the public schools in the rural south at least that it is.

The Court should approve it because it’s clearly constitutional where it accords to every one the full exercise of these constitutional rights.

And incidentally, it will preserve the public schools.

Robert V. Light:

I think that it’s interesting that in the three hours of argument we’ve been talking about schools and we’ve been talking about desegregation that nothing had been said really about education and how does it square with this and after all the purpose of the schools is to educate these children and I believe that the voice of an educator should be before the Court.

In the Tennessee case, there’s a large appendix of many writings to assist the Court in determining what the practical things would be if you strike down the freedom of choice here.

What would be the practical effects if we’re required to adopt the plan that will put in Gould School District, 66 Negro students and 33 White students, a ratio of that sort?

Will that affect the education?

Will the placement of two hostile groups in the same building perpetuate a climate where education can take place?

I —

Thurgood Marshall:

Do you have any residential segregation in Gould?

The answer is no, right?

Robert V. Light:

Yes, sir.

No.

Thurgood Marshall:

The White and colored children play together?

They sometimes eat together and the only time they’re segregated is in school and in church.

Is that an accurate statement?

Robert V. Light:

Your Honor, I couldn’t attest to it or challenge it.

I have not made those observations of White children playing together so I’m not in position.

Thurgood Marshall:

You have never seen White and colored kids playing together in that county?

Robert V. Light:

I have not but my occasion to be in Gould which is some 70 miles perhaps from Little Rock would not be frequent enough to make me a reliable observer.

Thurgood Marshall:

Well, have you seen White and colored kids playing in Little Rock?

Robert V. Light:

White and Negro children playing in Little Rock?

Thurgood Marshall:

Right.

Robert V. Light:

On the school grounds of our desegregated schools that’s a common —

Thurgood Marshall:

I mean the streets, the nearby place where they live.

I’m trying to get where you’ve got this hostility from.

You said they’ll be hostile to each other.

Where do they get the hostility, from the church or the school?

Robert V. Light:

Your Honor, I’m not a psychiatrist or a sociologist.

Thurgood Marshall:

I’m not an expert on that but we do know that there is tension and we’ve seen it and you see it in the daily newspapers the other day and where they got it?

I don’t know.

Reverting to the educational significance of this, it’s been called to my attention this morning that it was put in the congressional record yesterday by Congressman Fountain, page E2532.

The same article that the attorney for the School Board in Tennessee case printed as an appendix to his appendix I believe he would call it.

Thurgood Marshall:

That is as excellent a summary of absolutely impartial professional observers about the practical effects on education of the school desegregation process I’ve ever seen.

In that article, there is a full biography of the authors of the article in the congressional record insertion and I commend that to the board for its consideration on this regard.

The Solicitor General has considerably changed his view apparently since the Goss case in 1963, only five years ago about freedom of choice as a device to resolve the problem which school district like this is confronted.

He argued in that case Goss involved two Tennessee seats and he argued in that case that the School Board had a final alternative to this plan that was brought before this Court and attack.

It can take full freedom of choice and the particular merit and say that would be a constitutional alternative, no question about it.

And the particular merit by the way, this material from the Solicitor General’s brief in Goss is in my brief in this case at page 50.

The particular merit of freedom of choice suggested by the Solicitor General Lynn is that it would avoid any child, Negro or White from being confronted with the mandatory prospect of having to go to the school that was predominantly populated by the other race.

This is a serious educational consideration and the Solicitor General was much more realistic about this practical problem at that time.

I would like to suggest further that the alternatives that our adversary suggests, all of them are suggested for purely racial reasons to achieve a purely racial result and the only reason to offer an alternative.

They don’t attack freedom of choice per se.

If they don’t like the result, it’s achieved in this particular instance and so they offer an alternative to achieve a different result, a racial result.

That — those alternatives that they offer do not square with this Court’s insistence that the state be neutral in matters of race.

That’s the proper position for the state to take.

It must maintain a neutrality.

The Solicitor General says in his brief although in Evans v. Newton, the Court said, I believe Mr. Justice White wrote this and I’m not sure that the state must be neutral in racial matters.

The Solicitor General suggests in his brief here that neutrality is not enough and pursues the argument along that line.

Thank you very much, Your Honor.

Earl Warren:

Mr. Greenberg.

Jack Greenberg:

I believe that Mr. Gray is going to —

Earl Warren:

Oh!

Pardon me.

Jack Greenberg:

Your Honor, he’s going to —

Earl Warren:

I beg your pardon.

Frederick T. Gray:

Mr. Chief Justice and may it please the Court.

If I might sir, I would like to volunteer my distinction of the California case from a freedom of choice plan if I could.

I think that what was condemned in California was a procedure by which a particular individual could be denied the right to acquire that which he was seeking to acquire but under a freedom of choice plan, the particular individual may not be denied the right to acquire that which he is seeking to acquire and I think that’s the basic distinction.

Every child in this county can go where he wants to go and even though — I can’t recall whether it was Justice Brennan or Justice White which asked me about the PTA groups getting together.

I think it was Justice White — getting together in deciding that, well, all the colored people will go here and all the White people will go there.

Of course that result and I answered you that that could happen but it can’t happen against the wishes of any one person because any one person that wants to go to that particular school could of course choose to go to that particular school.

Earl Warren:

Well, I thought from the California case, the Act simply said that everyone could lease or sell or not lease or not sell to anyone of his choice for any reason.

Frederick T. Gray:

Yes, sir.

But the point here is that that if I were the seller, that would give me the right to discriminate and thus deny to a particular individual the right to acquire that which he was seeking to acquire.

But under the freedom of choice plan, that individual can’t be denied what he — I can still seek to discriminate but I can’t prevent his going to the school that he wants to go to.

He can still go where he wants to go.

Earl Warren:

But you’re assuming of course that there are no subtleties in the situation or no community attitudes or anything of that kind that would deter a person from having a free choice.

Frederick T. Gray:

I am assuming that in my case because in my case sir, the record says, they have an unrestricted freedom of choice and I was delighted that you Mr. Justice Marshall point out that there really isn’t the hostility, that the children play together and go every thing together, that’s not really the hostility that was suppose.

Certainly in New Kent County, Virginia, there is nothing in this record that suggests any subtle forms of pressures against the children making the choice that they want to make.

Byron R. White:

Where is the fact, the decision that there are children are made on the basis of the racial composition of the school.

Frederick T. Gray:

In some, yes.

Byron R. White:

Wouldn’t you suppose that to be true?

Frederick T. Gray:

In some ways, I think that is true.

I think that is true in subtle ways.

Byron R. White:

And — and so the state is saying that if he wants to choose based on racial considerations, go ahead and do it.

Frederick T. Gray:

Any basis, choose on any basis.

Byron R. White:

Including of race.

Frederick T. Gray:

Any basis.

In the petition filed in the New Kent case, there was a — I thought a singularly extraordinary statement that the New Kent County and School Board afforded to the Negro children and I quote, “A privilege rarely enjoyed in the past, the opportunity to attend the school of their choice.”

That seems to be a very, very strange thing to be the subject of an appeal that they should have taken away from them that which they have finally achieved legislative bodies at one point said, we want segregation.

We want choices made on the basis of race and you struck it down and now you are asked, substitute your judgment or how our judgment for the judgment of the children’s parents and find some method of course you have.

If you have residential segregation, well, make them have a free choice.

If you have free choice segregation, make them have zoning.

Do something but don’t let them choose what they want.

Take that choice away from them again on racial basis.

Thurgood Marshall:

Well, isn’t it true that what you really say is that if a White child wants to — White parents who want to send their children to the Negro school, he has a perfect right to make that choice and send this child to that school, the Negro school and then come home and take his chances with his neighbors and this employer — and this employer —

Frederick T. Gray:

Mr. Justice Marshall, I have to say if I’m trying a lawsuit, I have to try it on my record.

My record says that there’s no restrictions against the choices in New Kent County and I say to you that I know of situations in Virginia where White children have chosen to go to college schools and have gone and their parents are still employed and I know of no — nothing untoward that happened to them when they made that choice.

But I’ll say to you also sir that there isn’t a White person in New Kent County Virginia that can elect to send their trial to a segregated school in New Kent County, Virginia because there isn’t one for White children in New Kent County, Virginia that can elect to send their child to a segregated school in New Kent County, Virginia because there isn’t one for White children in New Kent County, Virginia.

Every White child in New Kent County, Virginia goes to a racially integrated school.

Now, one further point about the complications of this going to vast trouble to set up a system, the Solicitor General said that we go to long bus routes where complicated bus routes all over the county to get the kids to these two schools.

He then suggest that you could turn one into a high school and the other one into the elementary school and I wonder how he would bust the children without running those buses all over the county just as we do now.

Frederick T. Gray:

If you’re going to catch them from all over the county to the two schools they’re going to run buses all over the two schools.

As far as these complicated forms are concerned, I don’t know of a simpler way in the world to find out which children are going where than to ask them where they want to go.

If you draw a zone line, you’re going to take a census and find out wherever child in that county lives to know which side of the zone it will go.

And you’re going to still have to get his part together, a form from him to determine his age and his name and all the other factors that school officials always get from children when they go to school.

The question was asked me in opening about the fact.

Oh!

It was not asked to me, it was asked Mr. Tucker about the faculty in the — to the comparative faculty in New Kent County.

We don’t have a breakdown of the entire faculty in the record.

There’s a breakdown of the faculty that’s been employed for the last five years and by way of comparison on the 11 White teachers who had been employed, five of them do not have a collegiate degree.

Three of them have a BS degree, one has a Bachelor of Music and two have BA so we have six with bachelor’s degrees and five with no degrees and of the college teachers, there are nine with bachelor’s degrees, five BA degrees, five of BS degrees and one with no degree.

So, of the 16 Negro teachers hired only one does not have a degree and of the 11 White teachers hired, five have no degrees.

I also would like to point out that the statistics in the record as to the overcrowding of the schools and the teacher capacities were figures as of three years ago.

With 115 colored children moving into the White school, the pupil-teacher ratio at the colored school is now less than that at the school which has just been integrated.

We just submit in closing Your Honors that we come here under the Fourteenth Amendment and unless this Court is prepared to go beyond anything that has been conceived that it said in Brown unless it is prepared to say that when we spoke in Goss and said that if you had a completely free choice, that would be an entirely different case because neither the parents or the children could choose free of racial consideration unless you are in fact prepared to write an affirmative command in the Fourteenth Amendment, freedom of choice must stand as a constitutional answer to the command of Brown.

Thank you.

Earl Warren:

Mr. Rice.

Russell Rice:

Mr. Chief Justice and may it please the Court.

I would be very brief.

On page 14 of our brief of the respondent, the relief sought in the lower court is copied therein and it was to the — to have the City of Jackson stop excluding these plaintiffs from entering the Jackson High School, elementary — Alexander Elementary and other similar schools and that is the summary judgment that was granted by the District Court to stop excluding these people form these schools and we have done that.

Now, there are two points brought up by the Solicitor General that provoked me to make a short rebuttal.

The — the argument that I’m starting to make listening carefully that racial mixing is required in the schools.

He concluded the statement by saying that was not he meant and he said that freedom of choice is not unconstitutional per se, provided the freedom — provided that choice is exercised in a predetermined way.

In other words, if these people exercise their choice in accordance with the plan which the Government has in mind for them, that that is alright.

If they do not so exercise it in that direction then it’s unconstitutional.

Well now, that is no freedom whatever.

We have given to these people, to these parents I expect this more reasonable.

We have given to the parents, the right to determine under our transfer plan to where that child will go to school.

Now, in this Court, we seek to take that right away from that parent who is only here as a class.

It — I think it’s alright to bring them here as a class when you’re trying to give them rights but now we seek that right away from these parents which has been held by this Court to be a fundamental principle of our government that the parent has the right of control of the rearing of his child.

So now we will take that away from that parent who is not even in this Court except perhaps as a member of a class.

Russell Rice:

We think that is carrying the class doctrine too far and finally, I want to make this point that there has been in many cases, some effort to make a distinction between the de jure segregation and de facto segregation and I’ve heard it argued here today that segregation which results from housing patterns.

Well now, that’s alright but now if it’s something that occurred in the state that had a statute requiring segregation at the time of Brown then it’s up to the School Board to do something more than just eliminate that segregation.

Now, I want to ask this Court one question.

If you are in a de facto segregated area in say New York City just to pick an example, how can you get out?

You are there by law.

You have no choice.

You must go to a segregated school and that’s alright so they say.

In the City of Jackson, Tennessee, if you are in a segregated school, you get out by signing your name and I ask the Court which really gives to the individual the greatest choice.

I thank you.

Earl Warren:

Mr. Greenberg.

Jack Greenberg:

May it please the Court.

In the moment remaining, I like just to make several points.

I think these cases come down to several propositions among which I think the most prominent one is of whether or not a school system has disestablished segregation when it continues to remain in existence, the all Negro school which is the symbol of the segregated system in circumstances when steps can be taken — quite reasonable steps can be taken to end that situation.

Secondly, I would like to address myself to perhaps just for the moment to the proposition that has been mentioned several times today, the possibility that something like free choice may be a constitutional right.

If that is so, it’s certainly has not been articulated previously.

It certainly appears nowhere explicitly in the Constitution.

And finally, if it were the case, it would totally upset the administration of school systems throughout the county because most of them traditionally for generations have operated upon a basis of assigning children.

Finally, I may be permitted a personal reference that was a quotation from race relations in American law and it’s to that where some reference to statements out of context I might say I did not know then what I know now.

And if I had —

William J. Brennan, Jr.:

Last, that happen with the book?

Jack Greenberg:

Well, no.

If — yes, if I had known it, I would have stated the matter somewhat differently.

William J. Brennan, Jr.:

You might not have written it.

Jack Greenberg:

I might not have written that section of the book.

Now, I think I would have written it but I would have stated things differently.

Actually, I think it is somewhat out of context but I would not have written anything susceptible to such an interpretation.

Finally, this entire question of flight in connection with this proposition being raised in the brief, we did a bit of research on just how many majority school districts there are in United States or at least in the region of the country that would be affected by this decision.

Of the approximately 6,000 school district’s in the seventeen sovereign and border states, 303 approximately 5% have Negro student majorities and even smaller percentage have 60% Negro student bodies.

So the matters, as a practical matter, are not of any great consequence.

As a matter of principle, however, it invokes the considerations and the statement of the Brown case that hostility may not be grounds for refusing to abide by this decision, reiterated in Cooper against Aaron and ultimately the proposition of when this Court expounds the Constitution, it states a proposition and the principle which is a practical matter at any given moment may not be actually attainable but something that we at least want to work towards and that proposition as I see Brown is official being one country rather than two and that we should not acquiesce in various schemes and devices to frustrate the principle of the Brown decision which I think is perhaps the greatest thing ever to happen — to come out of this Court in the history of the nation.

Earl Warren:

We’ll recess now.