United States v. Montgomery County Board of Education

PETITIONER:United States
RESPONDENT:Montgomery County Board of Education
LOCATION:Chimel’s Home

DOCKET NO.: 798
DECIDED BY: Warren Court (1969)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 395 US 225 (1969)
ARGUED: Apr 28, 1969
DECIDED: Jun 02, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – April 28, 1969 in United States v. Montgomery County Board of Education

Earl Warren:

United States, petitioner, versus Montgomery County Board of Education and Number 997, Arlam Carr, Jr.by Arlam Carr and Johnnie Carr, etcetera et al., petitioners versus Montgomery County Board of Education et al.

Mr. Solicitor General.

Erwin N. Griswold:

Mr. Chief Justice and may it please the Court.

This is a school desegregation case.

The question arises here however with respect to faculty desegregation rather than directly with student desegregation.

The issue is a rather narrow but important one.

It arises with respect to the schools of Montgomery County, Alabama including not only those in the City of Montgomery but also those in the surrounding county area.

For the 1967-1968 school year, the defendants operated 52 schools including 32 predominantly white and 20 predominantly Negro schools.

There were approximately 22,500 white students and 17,000 Negro students taught by approximately 815 white teachers and 550 Negro teachers.

This suit began with a complaint which was filed on May 11, 1964 almost five years ago.

At that time as the District Court stated in its opinion and this is at page 524 of the printed record, the Montgomery County Board of Education had taken no steps and had made no plans whatsoever to comply with the law of this land in the area of school desegregation even though ten years had passed when this matter came on for a hearing in 1964, the Montgomery County Board of Education was allowed by this Court to proceed with desegregation gradually for the reason that it was realized that desegregation of the public schools cut across the social fabric of this community and that there would be both administrative and other practical problems for the Board to cope with.

And the Court went on to show the way in which it had helped to cooperate with the Board and moving forward in this and concluded however we have reached the point where we must pass tokenism and the order that was entered in this case on February 24, 1968 is designed to accomplish this purpose.

It was not designed to and was not intended to accomplish and if complied with will not require more than the Supreme Court of the United States and the other appellate courts have held must be accomplished in order to desegregate a public school system.

Well, now what had been done since the suit was filed in 1964, in the year 1964-65, as a result of an order of the Court entered on July 31, 1964, the Board permitted transfers under the Alabama school placement law in four grades, grade 1 and grades 10, 11, and 12, being the senior high school.

This order did not affect the system of initial assignments on the basis of race.

The Board accepted eight of 29 Negroes who applied to transfer to traditionally white schools.

Two students withdrew their applications and the Board denied the remaining 19 applications, so that during the first year, there were eight Negro students in what had previously been white schools.

In 1965-66, grades 1, 2, 7, and 9 through 12 were to be desegregated, 49 Negro students applied to attend predominantly white schools.

The defendants rejected applications from 31 of these and accepted 18 applications.

On appeal to the Court, the Court overturned six of the rejections but accepted the remainder.

This made 24 students who were admitted to the schools.

In 1966-67, approximately 330 Negro students chose to attend white school — traditionally white schools in Montgomery County, no white students chose to attend traditionally Negro schools.

This was the first year that the school board operated under a freedom of choice plan without initial assignment on the basis of race except in the two grades which were not yet covered by the desegregation plan which were grades 5 and 6.

In the year 1967-68 was the first year that all 12 grades were to be formally desegregated.

Approximately, 550 Negro students attended traditionally white schools.

No white students attended Negro schools and in the year 1968-69, the current year, there are approximately 950 Negro students in 30 traditionally white schools and approximately 16,500 or 94% in all Negro schools.

There are no white students in Negro schools.

So that in summary, as of today, no white student has ever attended a traditionally Negro school in Montgomery County.

The number of Negro students attending traditionally white schools has slowly increased.

Until the present time, it is 950 which seem like a substantial number but it is less than 6% of the Negro students in the Montgomery County school system.

Potter Stewart:

What is the relevance of this to the issues in this case?

Erwin N. Griswold:

What?

Potter Stewart:

What is the relevance of these figures about students to the issues in this case?

Erwin N. Griswold:

The relevance Mr. Justice is to show the slowness of the progress which had occurred over four years and the background for the order of the judge which is under review here.

Potter Stewart:

Which has only to do with faculty as I understand it?

Erwin N. Griswold:

The — I’m turning now to faculty which is the issue here.

There was complete segregation of faculty in the Montgomery County public schools prior to September 1967.

Abe Fortas:

Before you get there Mr. Solicitor General, could you tell me whether the distribution of Negro population is pretty general throughout the area covered by the school system or whether it is more or less separated?

Erwin N. Griswold:

No, Mr. Justice.

I —

Abe Fortas:

Or concentrated in the —

Erwin N. Griswold:

I cannot.

I do not have that information.

Mr. Greenberg may be able to supply something about that but I do not know.

Abe Fortas:

Thank you.

Erwin N. Griswold:

The complaint in this case, as I have said, was filed on May 11, 1964.

In it, the plaintiff sought faculty desegregation.

The Court’s first order made no specific reference to faculty desegregation but it did require the defendants to submit a plan designed to eliminate segregation of students based upon race and the complete elimination of the biracial school system within a reasonable time.

The defendant’s first segregation plan was submitted in January 1965 and it was sound as to faculty desegregation.

The plaintiff’s objected but the Court declined to act beyond ordering the defendants for the second time to submit a plan for the complete elimination of the biracial school system within a reasonable time.

The defendant’s second desegregation plan was submitted in January 1966 and it too was sound as to faculty desegregation.

Both the plaintiffs and the Government objected.

And on March 22nd, the District Court, ordered the Board to adopt a desegregation plan providing in part and this appears on page 337 of the printed record that race or color will henceforth not be a factor in the hiring, assignment, reassignment, promotion, demotion or dismissal of teachers and other professional staff with the exception that assignments shall be made in order to eliminate the effects of past discrimination.

Teachers, principals and staff members will be assigned to schools so that the faculty and staff is not composed of members of one race and that is a fine statement but a completely general in its terms and Judge Johnson at that time stated from the bench that I will not expect too much of it, meaning faculty desegregation in September 1966 because of the timing but I will expect a considerable amount of it, effective in September 1967.

However in August of 1966, following the decision of the Court of Appeals in a case involving the Mobile schools, Judge Johnson sua sponte declared that the Montgomery Board would have the same period available as the Court of Appeals had established for Mobile and that they would be allowed until the school year 1967-68 to commence desegregation of the faculty and professional staff in the Montgomery County school system.

At that time, the defendants had tentatively assigned four teachers of each race to teach in high schools attended predominantly by students of the opposite race for the 1966-67 year.

But after Judge Johnson’s modification in August 1966, these assignments were not implemented.

On June 1, 1967, the District Court ordered the defendants to adopt a desegregation plan with faculty provisions substantially similar to that which it had ordered in March 1966 but with certain additions.

The Court indicated for the first time that its desegregation order was to extend to student teachers.

Also the Court directed and this appears at page 454 of the printed record, wherever possible, teachers will be assigned so that more than one teacher of the minority race, white or Negro will be on a desegregated faculty.

Erwin N. Griswold:

The school board will take positive and affirmative steps to accomplish the desegregation of its school faculties including substantial desegregation of faculties in as many of the schools as possible for the 1967-68 school year notwithstanding the teacher contracts for the 1967-68 or 1968-69 school year have already been signed and approved.

The objective of the school system is that the pattern of teacher assignment to any particular school shall not be identifiable as tailored for a heavy concentration of either Negro or white pupils in the school and here again is an excellent general statement with no appreciable specific standard.

As a result of which, the defendants assigned five teachers of each race to schools predominantly of the opposite race.

The 10 teachers taught only at four high schools in the City of Montgomery, none in any elementary schools, none in any of the schools outside of the city except that in the elementary schools, the defendants did assigned three white speech therapists to teach in all elementary schools.

On August 17, 1967, the Government objected to the defendant’s failure to bring about more faculty desegregation and move for further relief and the plaintiffs in the action joined in the motion.

There was a hearing in September 1967 and the superintendent of the Montgomery School Board, Mr. McKee explained the defendant’s failure to assign desegregating faculty members to 48 of their 52 schools.

He said, we felt, there would be less objection in the senior high schools because one teacher would not have the pupils as much of today as they would in the lower grades.

He acknowledged reassigning over 40 Negro teachers from schools close pursuant to court order to other Negro schools for the 1967-68 school year.

He also acknowledged assigning over 90 new teachers for the 1967-68 school year to schools where their race predominated.

The Court declined to enter in a further order in the fall of 1967.

However, in January 1968, the District Court set the August 1967 motion of the United States down for a second hearing in February 1968, a little over year ago.

Both the Government and the plaintiffs filed a supplemental motion for further relief shortly before the hearing.

In the meantime, the defendants had assigned six or seven additional white teachers to three or four more traditionally Negro schools, so that seven or eight of the 52 schools had desegregated facilities.

The chief evidence concerning desegregation is summarized in the District Court’s opinion of February 24, 1968.This is on page 493 and 494 of the printed record.

Since the order of this Court on June 1, 1967, Judge Johnson said, “Defendants have assigned or transferred approximately 75 new teachers to faculties where their race was in the majority.

Since the opening of school in September 1967, defendants have hired approximately 32 new teachers, 26 white and 6 Negro.

Of the 26 new white teachers, only six or seven have been placed in predominantly Negro schools.

All six negroes were assigned to predominantly Negro schools.”

And the judge went on to say, “The defendants have adopted no adequate program for the assignment of student teachers on a desegregated basis.

None of the approximately 150 student teachers whose in the Montgomery County school system in the fall of 1967 were assigned to schools predominantly of the opposite race.

Four Negro schools — four Negro student teachers have very recently been assigned to predominantly white schools.

There has been no faculty desegregation in the night schools operated by the Montgomery County school system.”

Now, Judge Johnson could have added that the defendants had continue their policy of assigning Negro teachers only to negro schools and the two traditionally white senior high schools in the City of Montgomery.

They had assigned no Negro teachers to traditionally white elementary or junior high schools or to a predominantly white senior high school outside of Montgomery.

No teacher was assigned to teach an academic subject in a traditionally white school.

Superintendent McKee testified that the defendants assigned white teachers to Negro schools only if the teachers expressed the willingness to teach there even though the superintendent knew he testified that the law did not permit him to rely on voluntariness.

The defendants continued to hire new white teachers whose application showed that they would not accept integrated faculty.

The defendants assigned Negro teachers to Negro schools even though they were willing to teach at traditionally white schools because of the defendant’s concern for the reaction of white community members.

And so in summary, at the time the order with which we are concerned was entered, prior to 1967, there was no faculty desegregation.

During 1967-68, 32 teachers, 26 white and 6 Negro out of over 1350 were assigned to schools where their race was in the minority.

Erwin N. Griswold:

Four of over 300 student teachers were assigned to desegregating positions.

No Negro substituted for a teacher in a traditionally white school.

Night school facilities were segregated; during the year 1968-69, since the order of the court below, 216 teachers have been assigned to desegregating positions.

Now, in this situation, what was the order of Judge Johnson?

It appears on pages 503 to 510 of the record but it was then amended on pages 520 to 523 and I think the most convenient place to examine it is as it is set out in the opinion of the Court of Appeals where it is set out with the amendments incorporated and that appears on page 754 of the record.

It is there exactly the same as in the references I previously gave except the amendments have been read in.

It starts out on page 754, statement of objective.

In achieving the objective of the school system that the pattern of teacher assignments to any particular school shall not be identifiable as tailored for a heavy concentration of either Negro or white pupils in the school.

The school board will be guided by the ratio of Negro to white faculty members in the school system as a whole.

And that is about 60-40, about three to two, three white to two Negro.

The school board will accomplish faculty desegregation by hiring and assigning faculty members so that in each school, the ratio of white to Negro faculty members is substantially the same as it is throughout the system.

At present, the ratio is approximately three to two.

This will be accomplished in accordance with the schedule set out below.

And then under (b), schedule of faculty desegregation, 1968-69, that’s the current school year.

At every school with fewer than 12 teachers, the Board will have at least one full time teacher whose race is different from the race of the majority of the faculty and staff members of the school.

At every school with 12 or more teachers, the race of at least one of every six faculty and staff members will be different from the race of the majority of the faculty and staff members at the school and then the Court will reserve for the time being other specific faculty and staff desegregation requirements for future years.

So that though there is a statement of objective in terms of three to two, the only order of the Court was that in schools of 12 or more faculty members, the ratio should be five to one.

Now, that it seems to me is not as mechanical or rigid as it might seem when one examines the opinion of the Court of Appeals, I call attention to the top of the Court’s opinion, the top of page 759 where the Court has in large capital letters, “fixed mathematical” ratio.

The Court of Appeals because of that fixed mathematical ratio made two changes in the decree of the District Court.

Instead of maintaining the five to one ratio, with respect to schools of 12 or more, it required inserting substantially and more approximately five to one, and then on page 765 of its opinion, it struck out the three to two ratio entirely.

On page 765, the Court said, “There must be a good faith and effective beginning and good faith and effective effort to achieve faculty and staff desegregation for the entire system, although a ratio of substantially or approximately five to one is a good beginning, we cannot say that a ratio of substantially three to two simply because it mirrors the ratio balance of the entire faculty must be achieved as a final objective.”

And so the ratio provisions of the District Court’s opinion were left out and the only thing that was left in to guide the future development here is that there must be a good faith and effective beginning and a good faith and effective effort to achieve faculty and staff desegregation.

Now, that obviously is wholly vague and uncertain.

It means that the case must be tried a new every time it comes up at large and not merely on matters of detail in connection with the practical problems of complying with the decree.

Indeed, it may well be that this is —

Abe Fortas:

Well, it’s also the requirement of approximately five to one vote for the first school year and I suppose the Court of Appeals prove that, didn’t it?

Erwin N. Griswold:

The Court of Appeals in the District Court’s order was that it be five to one.

Abe Fortas:

I understand.

Erwin N. Griswold:

The Court of Appeals put in substantially or approximately five.

Abe Fortas:

And that would require some shifting, some major shifting, would it not, in the faculty and the school?

Erwin N. Griswold:

Oh!

Yes Mr. Justice, that would be considerably more than they had achieved so far and from the materials referred to in the respondent’s brief here, it would appear that they have made substantial progress towards that.

Five to one of course is a long way from three to two.

It may be that the generality of the Court of Appeals opinion is no kindness to the school board of Montgomery County and its responsible employees.

The panel of the Court of Appeals said early in its opinion at the outset we note that the testimony of the school officials indicates a need for specific directives in the instant case and the Court set out some of that testimony.

Before going further I should point out that the decision of the Court of Appeals was a two to one decision with Judge Thornberry dissenting.

The plaintiffs and the Government filed a petition for rehearing en banc before the full Court of Appeals, that petition was denied by a vote of six to six and within opinion supporting the rehearing by Chief Judge Brown.

It should also be noted that the modification of the decree ordered by the Court of Appeals knocks out the portions of the District Court’s order which were applicable to substitute teachers, student teachers and night schools.

It should be noted that at the time Judge Johnson’s order was entered in February and March 1968, there had been virtually no desegregation of substitute teachers and none of student teachers are night schools and there were no plans in these areas.

Thus, it cannot be said that the respondents were making progress on these matters.

They had not even started.

The brief for the respondents relies on the facts also relied on by the majority in the panel below that Judge Johnson several times complemented the respondents on their efforts and their progress over the years from 1964 to 1968.

But this case can hardly be decided by recalling complements.

The record also shows that Judge Johnson in February 1968 expressed his concern about the conduct of the Court.

He suggested that a geographic zone plan might be have to be imposed if it continued that conduct.

In his February opinion, Judge Johnson spoke of aggravating conduct by the Board and he said that the respondents here would have to act less dilatorily.

The respondents also rely on their brief on the appreciable progress which they have made over the past year.

Since the decree of the District Court was entered and indeed since the decision of the panel of the Court of Appeals.

We can be grateful for what they have accomplished but it is in fact far short of the objectives of the District Court’s decree.

It may be that it complies with the requirements of the decree as modified by the panel of the Court of Appeals and this serves to illustrate the short comings of that modification since the results achieved are so far short of disestablishing the segregation in the respondent’s school system.

We do not contend that the Constitution requires a mathematical ratio in the allocation of faculty members.

We do not contend that such a ratio should be applied in all cases involving all school systems.

We have here a school system which was undeniably completely segregated by law for many years and in which no steps or plans were made for change up to 1964 when this suit was filed.

We have here a case where token changes had been made over the four years from 1964 to 1968.

We have here a case which has been presided over by an able and understanding district judge wholly familiar with the local situation who engaged in patient proving for a long time and then finally came to the conclusion that the ultimate result, this establishment of segregation in a system which had long been legally completely segregated would be achieved only by reallocation of teachers, so that no school would any longer carry that mark that it was a white school or a black school.

The district judge in such a case should have wide latitude in formulating and structuring his decree in order to bring about a result which is undeniably in accordance with law.

This is not a case where a judge has made a decree which condones their failure to comply with the law.

It is a case where a district judge in a case nearly four years old when he acted set down a standard for action which would clearly comply with the law as enunciated by this Court.

In such a situation, the decree of the district judge should not have been modified by the Court of Appeals.

We submit that the judgment below should be reversed and the decree of the District Court should be affirmed.

Earl Warren:

Mr. Greenberg.

Jack Greenberg:

May it please the Court.

The Solicitor General has stated the facts in thorough detail and I will not rehearse them except to add one additional fact which appears in the record and that is that the exceedingly slow pace of progress and indeed such progresses has occurred in Montgomery County has occurred in a background of pervasive political opposition to desegregation throughout the state and that the specificity of the District Court’s order should be read in the light of how useful an order like that may be with that kind of a background.

I might refer to page 392 of the record in which action of the state superintendent of education and of the governor in opposition to faculty desegregation as set forth and that is in the opinion of Lee against Macon County which is in the record here and which was affirmed by this Court.

Sentence or two is Dr. Meadows, the State Superintendent, advised the local school official that he was calling as a constitutional officer of the State of Alabama and that the assignment of Negro teachers to white schools was against the law and public policy of the state.

And I skipped awhile and about the same time, Attorney Hugh Maddocks, legal adviser to the governor telephoned the Tuscaloosa County superintendent and informed him that “It is the public policy of the state that negro teachers not teach white children and that the governor would use his police power to enforce the law.

In that situation, specificity —

Earl Warren:

As to what date were those record, do you recall, Mr. Greenberg?

Jack Greenberg:

It was roughly contemporaneous with the opinion below.

August 1966.

Earl Warren:

1966.

Yes.

While this case was going on.

And so that the specificity of the order should be seen not only against the background of whatever it was that motivated the local school board but in a certain sense may be seen as a protective device for a local school board which desires to comply with an order.

Now, as the Solicitor General stated, this case involves two fundamental issues.

One is the question of the standards by which District Courts should review desegregation plans of school systems which have previously been segregated pursuant to law, and as another aspect of that, more importantly, it involves the vitality of this Court’s decision last year in Green against County School Board where this Court held that desegregation plans must work.

Two things should be stated clearly at the outset though they appear in the record and on the briefs and that is this case does not involve a hiring quota.

It is not a case in which any fixed proportion of Negro or white teachers must be employed by the system.

Or the standard of employment may be any objective standard as the standard employment has set forth in the decree of the United States against Jefferson County which was entered in this case previously and which appears in the record in the briefs and that is that race — only that race may not be a standard in employment.

The Jefferson standard included also that race may be taken into account for the purpose of counter-acting or correcting the effect of the past segregated assignment of teachers in the dual system and to that extent, I think anticipated the ruling in the instant case.

Second thing I think of considerable importance that should be noted is that the area of disagreement between the Court of Appeals and the District Court is not one of principle and not one of constitutionality but one of standards and workability.

Judges Guinn and Elliott in the Court of Appeals on page 766 assert that race may be taken into account for purposes of counter acting or correcting the effects of racial segregation in any dual school system as has been held previously in this Court and elsewhere.

Their objections of the ruling of the trial court is one of that it is not workable.

It is not a sufficiently flexible system.

On 763, they write, “it is our conclusion of the standards fixed by courts with respect to faculty desegregation cannot be totally inflexible and as a consequence, what they did was they took out the numerical ratios of substituting and then their court order merely doesn’t tell the trial court of the school board what to do which it tells them not what to do which it tells them what not to do in 766.

Under the facts and circumstances of this case, the order will be modified accordingly and the numerical ratios set forth in the District Court order and decree will be eliminated.

Now, this Court in Green said that a plan must work.

The district judge writing his opinion shortly before the decision in the Green case anticipated in effect what this Court said in Green and he set down a workable standard, a standard by which the District Court could work after he has to be able to measure whether or not there is compliance and by which the school board can work.

As a substitute for that, the Court of Appeals gives us nothing and we would like to submit several reasons why we believe the District Court was clearly correct.

First of all, as the Solicitor General pointed out, the district judge has lived with this case for four years.

Earl Warren:

He knows the record, he knows the school system.

He knows the defendants.

He knows their internal problems and their problems they have with regard to the rest of the state.

He found explicitly in his opinion that there were no administrative difficulties either to his immediate goals or to achieving his ultimate objective.

Secondly, the respondents in an appendix to their brief set forth what they have done with respect to the interim goals, that is the one to five.

And if you look at those statistics, they demonstrate that when the school board is given a numerical goal, it knows how to abide by it, and then a numerical goal can work and consequently, there is no reason to believe that if having been given one to five, they can’t do more but the numerical ratio as having been stricken from the District Court opinion by the Court of Appeals.

No one knows what to do now.

Should they go to two to five, two-and-a-half to five, three to five, it’s not known.

Thirdly, the superintendent in charge of faculties testified that he needed precise instructions.

Generalities were not good enough for him.

On page 657, we have him testifying, 657 and 658, “I don’t know what the objectives of the court order are.

This is previous to the numerical ratios having been set down.

That has never been laid down in any percentage fashion that I know of.

It says that you will have reasonable desegregation of faculty and that you will strive to would have in each faculty not recognizable as being staff for particular race.

Now, with the order in that form, he didn’t know what to do.

Judge Johnson has told him what to do.

The Court of Appeals has struck that out and now he is back where he started again.

The situation is as he went on saying, that would depend upon with the definition of it is.

And we have discussed it many times.

I do not have a definition of what that would mean.

And this testimony of the school superintendent precisely describes what the state of mind of the school board has to be in the present status.

The Court of Appeals has put him back in a situation in which according to his own testimony, he does not know what to do.

Now, the numerical ratio of 60-40 or three to two is not taken out of the blue on 668 of the record, we have Judge Johnson speaking to the superintendent and suggesting that perhaps a numerical ratio like that would be appropriate.

And he says, “Your student population,” he was referring to the student population but he really must have meant in fact that the student ratio was somewhat different.

“Your student population is 60-40.”

“Yes sir.”

“Ultimately, that would be optimum if you’re going to eliminate the racial characteristics of your school through faculty, knotted to indicate affirmative reply.”

And so when this was suggested to the school superintendent and the assistant superintendent towards the faculty as an acceptable ratio, he acquiesced in it to preferably an agreeable way of going about it.

Finally, the notion of numerical ratios is one which is entirely suitable for use by this board and indeed based to those initially that numbers was what they were going.

On 656 of the record, the assistant superintendent says, “Well, the way I’ll go about it is first I’ll put one in each school and then I’ll put two in each school and then I’ll put three in each school and so on and so on.

Earl Warren:

So numbers is not an unconginular impossible way of working according to their own testimony and the judge pointed out indeed in his opinion that the formula which he proposed was a little different from what they were doing as founded in the record on page 526.

Now, the numerical ratio as I pointed out protects the Board in two senses.

It protects them because now they know what to do.

It is less likely they will be contempt.

It is less likely they will be in violation.

It protects them also against depredations by state authorities.

And finally, other courts have found this type of approach useful.

In the Dowell case in Oklahoma City, the Tenth Circuit affirmed the use of precisely such ratio and it might be pointed out that it initially was suggested by a panel of educators that it is being used in other courts throughout the country as cited in our brief.

Most importantly however, the Court of Appeals are no record whatsoever substituted a vapid good faith standard requirement for one which is resting on a solid record.

This is based upon that.

We submit to this Court that the history of desegregation in the courts has been that specificity and immediacy bring results and the generalities do not.

And this is the sense of the Green decision of this Court of last year.

Since Green has been handed down, it has indeed been working.

More important its effect is pervasive beyond the judicial system because its standards are being incorporated as the standards of this Court on other school desegregation issues are incorporated into the guidelines of the Department of Health, Education and Welfare, so it has an effect beyond the ordinary effect of stare decisis.

We submit that the Court of Appeals decision is a throw back.

There’s no justification for it and that it should be reversed.

Mr. Phelps.

Joseph D. Phelps:

Mr. Chief Justice and may it please the Court.

As the Solicitor General and Mr. Greenberg have stated, the issue is whether or not in public education, we must have a compulsory mathematical ratio in faculty assignment.

We would like you to bear outset to emphasize to the Court that we are not here and don’t take the position of contesting full faculty desegregation.

We recognize and the Montgomery County Board of Education recognizes that full faculty desegregation is indeed an important and integral part in the overall desegregation process.

We do have extraneously object to the compulsory mathematical ratio on the basis that we (Inaudible).

We understand the responsibility of the Board to be to assign teachers to schools throughout the system so that no school is identifiable by its faculty as being tailored to either white or Negro children.

Earl Warren:

Has that been done?

Joseph D. Phelps:

It’s in the process now, Your Honor of being done and we are making we believe sir extensive numerical progress is where this qualitative process.

Earl Warren:

What is the — what is the effect of that policy of the state government that Mr. Greenberg just read a moment ago, if the policy of the state government being against doing this very thing?

Joseph D. Phelps:

Well, if the Court please Mr. Chief Justice, the data he read was in 1966 in the Macon County, Lee versus Macon County, a case about three years ago.

At that time, Mr. Chief Justice, there were only 1600 students throughout the whole state in desegregated situations.

We have more than that now and even in Montgomery, Alabama.

Earl Warren:

Has there been a change?

Joseph D. Phelps:

Yes, sir.

Earl Warren:

Has there been a change in the state policy?

Joseph D. Phelps:

Yes, sir.

I would say very definitely.

Earl Warren:

Has it been announced?

Joseph D. Phelps:

I would say very definitely and I can give the Court some examples.

Earl Warren:

I’d like to hear you tell us how it’s been announced.

Joseph D. Phelps:

Alright, so right now.

Earl Warren:

I beg your pardon?

Joseph D. Phelps:

Right today, or this week in the State of Alabama, the Alabama legislature’s meeting on a called special session that was called by a new governor to consider an extensive program for education that was presented to the Alabama legislature by a biracial committee and here’s the Alabama legislature meeting considering recommendations for education throughout the system that were presented to the governor and presented to the legislature by a fully desegregated or by a fully integrated committee.

We think that’s enough.

Earl Warren:

But whereas the governor of the state announced in many way that it has changed its policy in this regard?

Joseph D. Phelps:

I believe that that is an announcement in and of itself.

Another announcement as far as policy has said —

Earl Warren:

You mean a statement that it’s going to consider education in Alabama as announcement and abandon all its segregation policies.

Joseph D. Phelps:

I think that Mr. Chief Justice is one example.

Another example is this.

In the case of Lee versus Macon County that Mr. Gray is well familiar with, Governor Brewer appeared before Judge Frank M. Johnson and made the statement that the State of Alabama has no state policy of segregation.

That statement was made I believe by Mr. Gray, by Governor Brewer in Judge Johnson’s Court.

That if the Court pleases is another example.

That one is in the Montgomery addresses itself to the Court’s question and to Mr. Greenberg’s remark.

Another example as far as the climate in Alabama, on April 15, 1969, a black person was appointed on the school board itself in Birmingham, Alabama.

We think that’s a significant development as far as the climate is concerned.

Earl Warren:

Well, I thought you said 15 years ago almost to the day that the climate wasn’t to be considered.

Joseph D. Phelps:

I’m sorry, I didn’t understand it.

Earl Warren:

I say, my recollection is that 15 years ago almost to the day that Brown versus Board of Education, you said that climate was not one of the things that should be considered in desegregation was to made.

Joseph D. Phelps:

Well, sir, you ask me, I thought what changes the governor had made in the problem, I was attempting sir to point out I think the changes that have been made.

I think that the examples that I’ve given to the Court are some.

Another example is this.

Just last week, a black athlete at the University of Alabama who had just received a grant scholarship was asked by the newspaper concerning racial considerations.

Joseph D. Phelps:

At the scene of the of the “school house” and the black athlete haven’t received the grant scholarship and asked about race, he says, everybody has got to be some color or I want to play basketball.

We think that the changes that have made, now that was a change at the University of Alabama, or change in the Birmingham Board of Education having a black person on the Board or change in the legislature of Alabama considering the biracial integrated committee of recommendation in calling a special session of the legislature.

Mr. Chief Justice asked for changes and I think those are changes quoted the Court in 1966 quoted in Lee versus Macon as it is.

Thurgood Marshall:

Assuming all that to be true and it could be increased in the future, about when do you expect to get desegregation in Montgomery County, about when?

Joseph D. Phelps:

Mr. Justice Marshall, we are working diligently at that now.

We don’t state to the Court that the ultimate objective has been reached when I would say that measuring and looking at we think substantial progress and I will get to its figures on a minute but I think certainly in the foreseeable future, it’s hard to give the court time.

Thurgood Marshall:

Will it be after these children have graduated?

Joseph D. Phelps:

I should hope not Mr. Justice Marshall.

Thurgood Marshall:

Don’t you think it will be later than that.

Joseph D. Phelps:

I should hope not and I don’t think that it will, no sir.

I think that —

Thurgood Marshall:

Well, how long did it take you to reach this place since 1954?

Joseph D. Phelps:

True.

It’s been — since 1954, since Brown versus Board of Education but since 1964 when Montgomery County became under a desegregation program, I think tremendous tries —

Thurgood Marshall:

You didn’t volunteer to that program that Judge Johnson put it on you?

Joseph D. Phelps:

That’s correct sir.

And we —

Thurgood Marshall:

And if you were left alone, you wouldn’t move it all the way.

Joseph D. Phelps:

We can’t argue with the fact that we had to do desegregation in Montgomery County prior to that.

We have to say that but we have to say that but we’ve stated this Court that we are going about changing the school system and we recognize —

Thurgood Marshall:

What if we change in time to do these petitioners any good?

Joseph D. Phelps:

I believe that these petitioners Mr. Justice Marshall must (Inaudible) has probably already graduated from school so it couldn’t — it did in good, yes sir.

I believe that it gave to all (Inaudible) or time in public school systems in Montgomery or desegregated education.

Thurgood Marshall:

Well, when you get these faculties desegregated before the present elementary school students graduated.

Joseph D. Phelps:

Yes, sir.

Thurgood Marshall:

On what basis?

Joseph D. Phelps:

On the basis of making assignments in the future years as we’ve done between 1967 and today.

Thurgood Marshall:

Did you tell Judge Johnson that?

Has this come after his holding, you talked about that?

Joseph D. Phelps:

No, sir.

Joseph D. Phelps:

I believe, in the record, —

Thurgood Marshall:

You should ask Judge Johnson to change his order?

Joseph D. Phelps:

We asked Judge Johnson sir to stay his order pending appeal.

Thurgood Marshall:

But did you asked him to modify and give you some more time?

Joseph D. Phelps:

In essence, yes sir because he gave us some more time in fact in substitute teachers and that was — it’s not formally by a motion, no sir, but informal yes.

Thurgood Marshall:

Mr. Phelps, what I’m trying to say is you’re — if this Court asked you for more time and all.

Did you ask Judge Johnson for the same thing you’re now asking us for?

Joseph D. Phelps:

We are asking this Court Mr. Justice Marshall for more than more time.

We are asking to be able to assign our faculty and stay according to the qualification of the individual as well as to remove the identifiability of the school.

That’s what we’re asking this Court.

Thurgood Marshall:

How long will that take?

Joseph D. Phelps:

In answer to the Justice’s prior question, it would accomplished before the children that the Justice mentioned —

Thurgood Marshall:

You mean before these children graduate, there will be no faculty in Montgomery County that will be racially identifiable.

Joseph D. Phelps:

That’s right, sir.

Thurgood Marshall:

To what percentage?

Joseph D. Phelps:

Well, in representing the Board, I have to talk to the educators on that question and I’m told that professional educator —

Thurgood Marshall:

You’re not talking to educators about race.

Joseph D. Phelps:

Sir?

Thurgood Marshall:

You’re not talking to educators about race.

I said to a faculty that is not racially identifiable.

Joseph D. Phelps:

Well, as far percentages are concerned, it’s often difficult from what standpoint or quality education to answer that.

We think that the test is when a parent or a child looks at a school, is that school identified as being either for black or white?

We think Mr. Justice Marshall that quality placement is more important than numerical placement.

For example, if we put a black teacher or white teacher that’s well qualified for the job, in a particular school and if that teacher is in fact qualified, that teacher, the black or all white teacher in the black or white school in a desegregated assignment will become looked upon as a teacher, as a quality educator and not as either black or white.

That’s true we think on identifiability in schools and we can get that if the Court please by quality, whereas, if we assign unqualified teachers either black or white in desegregated assignments, they will remain black or white forever.

Thurgood Marshall:

I assume — I assume that the all of the white teachers and all of the Negro teachers of Montgomery County are equally qualified.

Joseph D. Phelps:

Well, that’s true Justice Marshall but —

Thurgood Marshall:

When talk about qualified now, I thought they won’t qualify.

Joseph D. Phelps:

Well, that’s true.

They are qualified to teach in the subjects that they have trained to be teachers.

Thurgood Marshall:

Do you mean that some teachers are unqualified to teach children of another race?

Joseph D. Phelps:

Well, high school science teacher Mr. Marshall — Justice Marshall is certainly not qualified to teach an elementary child how to read.

And if we get into —

Thurgood Marshall:

I doubt that a science teacher teaching the junior high school isn’t capable to teach in kindergarten.

I assume so, I’m talking about equally qualified teachers, equally qualified race, equally qualified subjects.

You say that some are qualified and some are not.

Now, take seventh grade elementary school teachers, what is the difference in their qualification?

Joseph D. Phelps:

Right.

If we had to meet a racial quota of 60-40 in the elementary grades, we would have to take some of the teachers from the elementary grades and move them elsewhere in order to get that quota, I’ll bring them in to the elementary junior high grades from some other face of our system.

Here’s what the 60-40 overall doesn’t consider.

We’ve got different ratios of white to blacks in high schools than we’re doing in junior high, different ratio to white to black in junior high as in grammar school.

Now, if we have to make a racial quota, we would have to come along and take them out of elementary, put them into high school throughout the high school and put them in the elementary.

Now, we have specific examples and that appears from —

Thurgood Marshall:

— Judge Johnson to all that it should be shifted from one level of education to the other.

He doesn’t say anything like that.

Joseph D. Phelps:

I think that would be a —

Thurgood Marshall:

He says if you got a hundred teachers in the seventh grade elementary school, you divide them up, period.

He didn’t say move them from seventh to high school.

Joseph D. Phelps:

Well, the government and the plaintiffs, if the Court please, have asked for a random redistribution.

Now, random redistribution to accomplish a 60-40 overall ratio would have to be in each particular high school level, junior high school level, elementary level.

They asked for a random redistribution and it just cannot from the administrative standpoint were.

Thurgood Marshall:

I thought what anybody said except Judge Johnson.

Joseph D. Phelps:

Alright sir.

Thurgood Marshall:

His words weren’t.

Joseph D. Phelps:

Well, let me say —

Earl Warren:

Why is that you shuffle your elementary teachers as between white and black schools?

Why can’t you shuffle your junior high teachers as between the schools in the same with the high school teachers?

Joseph D. Phelps:

Right now for example, —

Earl Warren:

I beg your pardon.

Joseph D. Phelps:

I’m saying, we’ve got different quotas or different actual percentages in our various schools.

Joseph D. Phelps:

For example in junior high school, it might well be that we’ve got 70-30 instead of 60-40.

If we had to come along and we would have more of one then we’d be able to use in the 60-40 and we’d have to have something to do with those teachers.

We’d either have to move them up to high school and that would create positions that would have to be found for teachers in other areas.

It would just create mass confusion.

Abe Fortas:

But why you have one part racial.

You got a lot of latitude there, haven’t you?

Joseph D. Phelps:

Well, I think if the Court will look at the exhibit to our brief, we are meeting a one to five, approximately a substantial one to five.

We got more latitude of course if the Court please and we would have a three to two overall.

And I think this is significant to bring out at this point.

This racial ration requirement was not asked for in the plaintiffs or the Government’s motions before Judge Johnson.

The first time it came up was in the suggested decree prepared by the governor.

Therefore, the District Court had no opportunity to look into these.

We say impossible affix —

Abe Fortas:

Well, does the record show — does the record show how many teachers there are in the various levels for example as the record show how many teachers there are in the elementary schools and the ratio of breakdown and in the junior high, in the ratio of breakdown and then in the high school.

Joseph D. Phelps:

Mr. Justice Fortas, I believe we would have to be further in order for the record to show that someone would have to be familiar with the individual schools.

Abe Fortas:

Well, does the record show that or it doesn’t?

It does not, is that what you’re saying?

Joseph D. Phelps:

I don’t believe sir that it doesn’t.

Abe Fortas:

Is it your point that in order to comply with Judge Johnson’s decree, there would have to be some shifting of teachers as among the different levels, that is to say that some elementary teachers for example in the junior high and high school teachers or high school teachers in the elementary levels?

Is that what you’re telling me?

Joseph D. Phelps:

Yes sir.

I’m saying that that is the case and is going to be the case in varying degrees from year to year.

Abe Fortas:

Well, is there any proof of that in the record?

Is there any evidence in the record?

Is there any factual data from which a judgment may be made as to the seriousness of that problem on a quantitative basis?

Joseph D. Phelps:

Yes, sir.

I believe that it is for this reason.

Certainly, it will appear from the record and from the reports that have been filed over the years that varying numbers of students will attend varying schools each year.

Abe Fortas:

That’s not what I meant.

Joseph D. Phelps:

Well no sir.

Joseph D. Phelps:

I can’t state —

Abe Fortas:

Tell me about the printed record before us.

Joseph D. Phelps:

I can’t state to the Court that it’s specifically in the printed record because we had no way of knowing that we are going to be faced with this racial requirement and it was not as I said a moment ago when neither the plaintiffs nor the government’s motion for further relief and the first time, we were faced with a racial ratio was in the suggested order as prepared by the government.

Earl Warren:

Well, if teacher Jones, a white person, is teaching first year history in the high school, a white high school, and teacher Smith, a black person is teaching the same subject in the first year class in a black school, why couldn’t — why could you just change those two teachers?

Joseph D. Phelps:

If it was just those two Mr. Justice Warren involved here but if you got a racial requirement that you’re having to meet, you got to have 60-40 in your black school, 60% white and 40% black.

You are going to have to move more than just those two teachers and it’s going to get into a process of musical chairs of just shifting teachers around in corners of bodies and yet it cannot.

This is to be the best thing for quality education.

Earl Warren:

But as I — I thought that Judge Johnson held that you need not do that school by school.

You are to do it by the overall population, isn’t that true?

Joseph D. Phelps:

No, sir.

Earl Warren:

It has to be done by every school?

Joseph D. Phelps:

Yes sir and that’s something that the government and the plaintiff stated differently in their petition for certiorari than it did in their briefs on the merits.

Judge Johnson’s order says that you’ve got to have in each school the same ratio of blacks to white as the overall faculty composition demand and that was not presented.

It was presented as Mr. Chief Justice says in petition for certiorari within the briefs, they did say what Judge Johnson ordered and it was in each schools.

Earl Warren:

Would you be satisfied with his decree if it provided for doing it on the basis of your overall school population as distinguished from each individual school?

Joseph D. Phelps:

Mr. Chief Justice, I believe that composed from mathematical ratios are certainly an innovation in public education.

We think this is a very far reaching decree in effect and we think that certainly, a great deal of thoughts should go into it and I think that we should have the opportunity to present to the District Court the effects of the various and I’ve outlined some of my line some more the effects of this arbitrary, we say, preconceived mathematical ratios.

We say they are unwise, arbitrary and educationally unsound.

In Hobson versus Hansen —

Earl Warren:

You have just 15 years —

Joseph D. Phelps:

Well, I think and I will get to the progress that we made in fact of the desegregation if the Court please.

In one year, the Montgomery County Board of Education, in 1966-67 was the first year that pursuant to court order, we went in to faculty desegregation.

Earl Warren:

Would you take the position that you are not supposed to do anything until you have a court order compelling you to do it?

Joseph D. Phelps:

No, sir.

Earl Warren:

Then why do you start with 1964?

Why don’t you go back to 1954?

Joseph D. Phelps:

Alright.

Well, I think in any that whether is 1954, Mr. Justice, or whether it’s 1964, we have 212 full time faculty members teaching in minority assignments today, 111 blacks and 34 white schools in a 101 whites and 39 black school, approximately in a one to five ratio and we state —

Byron R. White:

Those weren’t very meaningful figures that set a time, where teachers are teaching by the color of the student.

This is a question of faculty.

Byron R. White:

This isn’t a question of matching faculty to students.

This is a question of integrating or desegregating the faculty, isn’t it?

Joseph D. Phelps:

I think that Mr. Justice is right.

I think what we was tried before is regardless of whether it be a formally or predominantly black or white school.

We are striving for having the faculty in each school regardless of racial or non-racial composition as not being identified.

I agree —

Byron R. White:

Is there anything in this record that would indicate what the distribution in the various grades is of white and Negro teachers?

Overall it’s three to two.

Is there anything in the record that indicates that the distribution between white and Negro faculty is substantially different in the high schools than in the grade schools?

Joseph D. Phelps:

I don’t believe so.

We would have to take —

Byron R. White:

Is there anything that indicates the distribution is substantially different to three to two as between the first grade and the twelfth grade for example or between the ninth grade and the sixth grade?

Joseph D. Phelps:

Mr. Justice White, I can’t say it specifically —

Byron R. White:

Well, unless you can.

Unless you can, I think you are asking us to assume that the distribution is different in making the argument that you may have to distribute teachers or redistribute teachers for high schools to grade schools or from the sixth grade to the seventh grade.

Joseph D. Phelps:

Well —

Byron R. White:

I can see that if all — if it just so happened that all the teachers in high schools and all the high schools were white and all the teachers of all the grade schools were Negro, then a requirement is really two in each school would obviously require some shifting between high school and grade school.

But I’m not — I don’t — I just like to know if there’s anything really helpful in the record.

Joseph D. Phelps:

Not Mr. Justice White —

Potter Stewart:

I think your appendix Mr. Phelps on page 36 of your brief, I think that would furnish the ingredients of the information in which Mr. Justice Fortas have manifested in interest if we knew which of those schools were high schools and which are elementary schools.

Some are identified, others are not.

For example, there in (Inaudible) and so on are simply —

Joseph D. Phelps:

Well, this is an —

Potter Stewart:

Others are identified as high schools or elementary schools.

Joseph D. Phelps:

If — this is an example of an area that the District Court had no opportunity to get into because neither the plaintiffs nor the government asked for a racial ratio ahead of this hearing and we had no opportunity to present these factors to the Court.

Byron R. White:

Well, I know but your objection, one of you objections here, I agree that’s only one of them is that it may require shifting teachers into jobs for which they are not qualified.

Joseph D. Phelps:

That’s right sir.

Byron R. White:

But — and if that would, I would suppose that in that objection, wasn’t obvious in the District Court when this provision supposes it is there.

You could’ve — you could’ve made some showing along this line.

Joseph D. Phelps:

We had no idea that a ratio, a faculty ratio quota was going to come out of this.

Byron R. White:

Well, do you had a — did you file for a petition for rehearing in the District Court?

Joseph D. Phelps:

As I see it in answer to Mr. Justice Marshall’s question, we did not formally, no sir.

We discussed it with the Court and we filed a petition to stay pending appeal to the Fifth Circuit.

Thurgood Marshall:

Filed a petition to stay after you filed an appeal.

Joseph D. Phelps:

Yes sir.

We filed after we —

Thurgood Marshall:

So you made no effort to bring any of this before Judge Johnson?

Joseph D. Phelps:

Of course, this is an example —

Byron R. White:

Didn’t Judge Johnson modify his order for some respect?

Joseph D. Phelps:

Yes.

Byron R. White:

At your request?

Joseph D. Phelps:

After we had an informal discussion and pointed out the problems that was —

Byron R. White:

Did you point out this particular problem?

Joseph D. Phelps:

Well, we didn’t pointed out in the —

Byron R. White:

Well, you wouldn’t have to.

Joseph D. Phelps:

In detail that we’re pointing it out to this Court.

We just didn’t have the opportunity and the time to study with our people.

We had an order that it was just in —

Byron R. White:

Well, I take it if Judge Johnson, I don’t see anything in here to indicate that he would expect you to reassign high school students, high school or grade school teachers to high school.

Joseph D. Phelps:

Well, if we think that’s a —

Byron R. White:

Suppose the order on its face requires that, I would firstly be surprised in such a place I gather if you could stick to that.

Joseph D. Phelps:

We think that mathematical ratios are dangerous in public education and that is one of the examples.

And one of the reasons we say we had no opportunity to go into this another problem that we have in racial ratios and in fact the assignment no one the school board nor the court can control a teacher or an employment, his or her employment.

Teachers could resign, go to another school system or go into another means of employment.

So here we’ve got a standard on the employment of faculties, this gives to something that the school board nor the Court has anything to do with.

A teacher can resign if she wants to.

She can go into another field of endeavor, he or she can.

Unfortunately in the State of Alabama, we don’t have the financial resources to hold a lot (Inaudible) money.

We have to treat them as professional people, so we think another drawback on a racial ratio requirement is that you are tying the standard to something that neither the courts nor the school board can control.

Another point that we bring out and we say shows the lack of wisdom in such a proposal, if your state, if it’s tied to the composition in the entire faculty, it would inevitably fair from one school district to another.

Joseph D. Phelps:

For example, in Birmingham, Alabama, there are 25-26% black and 74% white.

In Oklahoma City, there are 14% black, 86% white.

Washington D.C., 78% black and 12% white.

You got a yardstick that varies from state to state from district to district and even within the various school districts within a given state and was pointed out a minute ago, it varies between your junior high school and elementary levels even within the same school district.

And it varies from year to year.

And we think that your state is a —

Thurgood Marshall:

What if they integrated all of the students of all of the schools, they wouldn’t have any of the problems?

Joseph D. Phelps:

No, sir and that’s hopefully what all of the schools are headed for.

As the Solicitor General pointed out though —

Thurgood Marshall:

1954 to date, it made 6% progress.

Joseph D. Phelps:

Well, we feel that it is more than that on the current statistics.

All current statistics are I think we see it and we got 212 full time classroom faculty teachers and now the superintendent in his testimony before this order said that he was going to have an excess of a hundred and he has worked diligently and in his statement on of this Court that he’s going to continue to do it without the imposition or mathematical ratio that certainly cannot be beneficial to quality education when you assign teachers as —

Byron R. White:

(Inaudible)

Joseph D. Phelps:

No, sir.

And —

Byron R. White:

(Inaudible)

Joseph D. Phelps:

Yes sir and the Fifth Circuit made that clear that the majority opinion emphatically said that you had to compulsory assign but we say alright.

But in this compulsory assignment, let’s take the qualification, the individuality of a teacher into consideration if you lose that, if the Court please, in public education is going to be at the expense of school children throughout the nation regardless of race.

Earl Warren:

Why should there be any difference between a high school history teacher in a black school and a white school so far as qualifications are concerned?

Joseph D. Phelps:

I don’t think there is but I think when you have to assign a teacher on the basis of meeting a quota instead of assigning a teacher on the basis of qualification and after careful consideration of what she was teaching.

For example, a science teacher for a science teacher, that sounds alright but if this science teacher had been teaching physics at one school, you can’t send over, it wouldn’t be right to send him over and teach biology in another — or the other side or if a teacher had been teaching general science in a white school, it certainly wouldn’t be fair to the teacher nor to the child to send it to a black school to teach physics and those are all elements that they’ve got to come in to faculty placement.

So I say yes to the judge, we don’t make a distinction between a white and a black teacher on the basis of qualification but what the teacher is trained to do.

If it’s a science teacher and a science teacher change from one school to another would meet a quota but if that science teacher had been teaching general science in white school, it wouldn’t be fair to the teacher nor to the children to teach physics into other school.

Abe Fortas:

Well, are your black teachers and your white teachers respectively recruited from different universities in normal schools, teachers colleges and whatever they call these days?

Joseph D. Phelps:

Not as much narrow as it has been.

I can’t say that all the best teachers have gone but they are leaving certainly, that’s true to some extent.

Abe Fortas:

Well, you got a lot of people there who were recruited in the past, I assume.

Joseph D. Phelps:

Yes sir, that’s true.

Abe Fortas:

And most of those were — most of the blacks were recruited from segregated Negro teachers colleges, I suppose.

Joseph D. Phelps:

Yes.

Abe Fortas:

And most of the whites were recruited from segregated white colleges.

Joseph D. Phelps:

Yes.

Abe Fortas:

And would you say that the white colleges generally had better facilities, better staff and so on?

Joseph D. Phelps:

I think it would be Your Honor unrealistic not to say that would be true.

Thurgood Marshall:

Mr. Phelps, do you have the exact same books, regular subject matter, equipment in both schools?

Joseph D. Phelps:

I would say substantially so, yes.

Thurgood Marshall:

Well, what’s the problem with transferring the general science teacher in a predominantly white school to the general science teacher in the Negro school, since they have everything exactly the same?

Joseph D. Phelps:

Alright sir, yes.

In answer to Mr. Justice Warren’s question, if those were the only two, as I said, the only two teachers that you can —

Thurgood Marshall:

We have to start some place.

Joseph D. Phelps:

Alright sir.

Thurgood Marshall:

So I’m starting with the general science teacher, that’s the one you like to talk about.

The general science teacher from one school to the other would be no problem, exact same facilities, exact same books, exact same training, and exact same fee.

Joseph D. Phelps:

What about this sir if the a teacher at one school that it shows him to take physics and not (Inaudible) then the general science teacher would be in the position of teaching —

Thurgood Marshall:

Well, in mind, I assume that in both schools, since they’re all the same people, they all chose to take general science.

What’s the problem?

Joseph D. Phelps:

As far as one teacher is concerned, there wouldn’t be but if we got a three to two ratio overall and we’ve got to make it in the high school, elementary —

Thurgood Marshall:

Where is there that much difference between these schools?

Joseph D. Phelps:

Well —

Thurgood Marshall:

You seem to always find a problem here like there’s a difference in these schools.

Joseph D. Phelps:

Well, I’ll say this to the Court that mathematical ratios are inherently problematic in public education and I’ve tried to point out some of them and there are many, many more and I think Judge Skelly Wright in Hobson versus Hansen recognized it when after discussing Dowell and Kier and other cases cited.

Thurgood Marshall:

Do you think that case is on here sir?

Joseph D. Phelps:

I think it is Mr. Justice Marshall in so far as —

Thurgood Marshall:

Are you sure (Inaudible)?

Joseph D. Phelps:

After discussing Dowell and Kier, Justice Wright said this.

Justice Wright — Judge Wright said there will be an abundance of opportunity later for advisory argument on the merits and demerits of the ends and means concerning teacher and of race.

He said that in Hobson versus Hansen after —

Thurgood Marshall:

There is a problem.

The whole school system is a problem.

Joseph D. Phelps:

Yes.

Thurgood Marshall:

Any school system is a problem.

Joseph D. Phelps:

I think that —

Thurgood Marshall:

It tends to be you can solve every problem but race.

Joseph D. Phelps:

Well, I think in the school system in Montgomery County, Alabama, we are striving to cope with the problem and to solve it and we state to the court that we will solve it.

We will solve it in student desegregation and we’ll solve it in fact that desegregation without the imposition of these compulsory mathematical ratios.

The Government in brief and in argument have said that this is only — that the mathematical ratio requirement is remedial and not for perpetuity.

I suppose that they are seeking to make the distinction between a de facto and a de jure public school system but when it comes to teachers, I failed to see the distinction between de facto and de jure or certainly it makes no difference as far as the neighborhood or fortuitous housing patterns as to what teachers are assigned to what schools and I think that even more in a de facto situation, what we call, what’s been called de facto faculty integration is more important.

We can’t see either teachers there, they are not, if they are not, they have the school as identifiable as patterned for one particular race or another, we think that the problem exists whether you call it de facto or whether you call it de jure, the teachers are either there.

It’s either identifiable as white or identifiable as black.

If they say it’s not for perpetuity if a charge of racial imbalance is made, continued to be made, if the charges of racial identifiability is made, the perpetuity of the racial ratio requirement would exist just as long as these charges are made.

And we say that we are going about in Montgomery, Alabama to provide non-racially identified faculties in each schools and we say that it’s unwise, educationally unsound and not consistent with quality education to have a mathematical ratio and I’ve tried to explain.

But if we’re doing it and if we’re getting the job done as the District Court noted in the opinion that’s been quoted from, Judge Johnson said that you are doing as much without the racial requirement or as what you tell us you do is the Court requiring you to do anyway at record page 562.

What’s exactly required in the court order is very little that it’s any more than the school board by his testimony and by the school that we’re going to do anyway.

But we planned to assign faculty and staff, so the schools are not identifiable racially and also to carefully consider the quality placement.

Teaching as we pointed out in our brief is uniformly recognized as an art and least are professional people.

The individuality in imparting knowledge from one to another is an intensely personal endeavor and it’s just not can’t possibly be in the best interest of public education for blacks or whites, to assign these people according to color, to assign professional teachers according to their bodies and not as to individuality.

Now, we recognize that we must foremost in our minds keep the consideration of desegregating the faculties and we state to the Court that we are but we ask for the opportunity to desegregate our faculties and do it consistently with quality education.

And as the Solicitor General commented candidly so I thought, the Montgomery County Board has made significant progress.

We got significant progress we say in faculty desegregation and in students and we state to the Courts that we’re going to continue but we ask for the opportunity to continue with our constitutional requirements to desegregate and at the same time, let us consider this vital, the critical element of the individuality in faculty assignment.

Earl Warren:

Did you argue this way before in the lower courts?

Joseph D. Phelps:

I did if the Court please, before the Court of Appeals but again, I didn’t have an opportunity —

Earl Warren:

Did you or let me read from the Court of Appeals.

So this is from the Court of Appeals, yes.

On page 757 of the record, it says, however, appellants object to the District Court’s order requiring assignment of teachers on the ground that such is not in keeping with sound and quality school administration.

We quote from appellant’s brief and then it quotes, in Beckett versus School Board, the City of Norfolk Virginia, 267 F. Supp. 118, page 139.

The court stated in considering faculty desegregation, “However, in line with the most recent Wheeler case, Wheeler versus Durham City Board of Education, the School Board has not adopted the tactic of compelling a teacher to transfer.

Moreover, such a practice would not be in accord with sound educational principle.”

Did you argue that below?

Joseph D. Phelps:

Yes sir and I argued —

Earl Warren:

How is that consistent with what you’re arguing now?

Joseph D. Phelps:

I think it is in the context Mr. Justice of what we’re arguing at the footnote on the record at page 757, the Court of Appeals says this, “Although appellants consistently argued a voluntary assignment of teachers and staff and contend that sound and quality school administration favored voluntary assignment, the following statement has found from the brief of appellant.”

And we stated this in the Court of Appeals in the court below.

These appellants fully recognized that they have the affirmative duty to desegregate the faculty throughout the system to the end of the pattern of teacher assignment to any particular school shall not be identifiable as tailored for a heavy concentration of either Negro or white pupils in the schools.

The appellant further recognized that they have a legal right to compel faculty assignment if voluntary placement is not effective and we ask therefore an opportunity to volunteer the placement and of course that’s if it can’t be done.

If you can have a teacher —

Byron R. White:

You are not reaching up here to the (Inaudible).

Joseph D. Phelps:

No sir.

The Court of Appeals said —

Byron R. White:

Here you are talkinga about the (Inaudible)?

Joseph D. Phelps:

No sir and the Court of Appeals emphatically said that we must assign teachers and what we will continue to do though we’ll continue to have them volunteer if we can do it inconsistently without mandate of complete faculty desegregation.

If we can’t then we’re going to assign but we’re going to try to have volunteers.

If we can’t get the job done that way, we’ll move in to assignment.

Of course, every teacher that comes into the certain system now is told and no one in certain terms did she cannot come to work without the clear understanding that she can be assigned to any school in the system whether it be formally white or black school.

We think that the progress that we made in the area of segregation in Montgomery County leans credence to our statements to the Court of our good intent.

The District Court on five occasions has pointed out in the Court of Appeals order complemented the Montgomery County Board of Education on its efforts in desegregation.

In September 1967, the hearing that was the start of the very hearing that is before the Court now.

Byron R. White:

May I ask you, you’ve got you say 212 teachers teaching in schools where their races are minority.

Right?

Joseph D. Phelps:

Yes.

Byron R. White:

Now, I take it that you feel that those 212 are capable of teaching students of the opposite race.

Joseph D. Phelps:

They were placed if the Court please to the best of our ability in accord with quality criteria.

Byron R. White:

You just don’t deny — you just don’t assert the court warrants that the teachers of one race can’t teach students of another race?

Joseph D. Phelps:

No sir, I certainly do not.

Byron R. White:

Well the relationships are bound to be such between a student of one race and teacher for another that you can’t have a decent educational —

Joseph D. Phelps:

No sir, as I say it to the Court, — as I say it to Court early, I believe that if we are allowed to make these assignments based on individual quality, based on individual consideration, it wouldn’t be long before that teacher is looked upon as not black or not white but it looked upon and respected as a professional educator and that might — so I might say that’s optimistic but I think it already happened in the black athlete that’s going to the University of Alabama in a grant scholarship.

Byron R. White:

Why do you object them to the District Court at least consisting that you tried on a three to two basis?

Joseph D. Phelps:

If the Court please —

Byron R. White:

How did you know that some of these — you must be making a judgment that — it’s part of your judgment — it’s part of your objection to this decree that you are not permitted, not permitted to make a judgment that this particular black teacher in this particular teacher will be unsuccessful teaching students of the opposite race.

Is that part of it?

Joseph D. Phelps:

I would say that it’s certainly that’s part of it.

Joseph D. Phelps:

I think the overall — I’ve tried —

Byron R. White:

How can you tell that?

Joseph D. Phelps:

Because the judge as I said overall and I tried to point out specifics.

In the area of faculty placement, if teachers are assigned according to quotas, according to percentages, it’s just inevitably is going to lose sight of the critical individuality in teachers and I gave the examples that I’ve given a while ago —

Byron R. White:

(Inaudible)

Joseph D. Phelps:

Well, I’ve tried —

Byron R. White:

(Inauidlbe)

Do you think it’s the recurring judgment in your school system that a person — that a teacher is not assigned, a white teacher is not assigned to a black school or a black teacher is not assigned to a white school because the judgment is that that teacher would not be a good teacher to the opposite race, is that a recurring judgment of your school system?

Joseph D. Phelps:

I’m not —

Byron R. White:

Or you wanted that kind of “flexibility”?

Joseph D. Phelps:

I’m not sure I understand Mr. Justice White’s question.

I’d say this.

We want to be able to consider the individual quality.

Byron R. White:

Well, I know — I’m asking about a specific aspect of that.

You want a right to consider race in the assignment of a teacher?

Joseph D. Phelps:

No, sir.

Byron R. White:

You don’t want to say — you do want to be able to say that well this particular white teacher wouldn’t be successful in teaching in that school.

Joseph D. Phelps:

In that particular white school or black school.

Byron R. White:

Or this particular black because of the racial situation.

Joseph D. Phelps:

I don’t believe that the racial consideration is controlling.

I think the ability of the teacher regardless of race, the training of the teacher regardless of race, the teaching certificate of the teacher regardless of race, what the teacher had been teaching for the last ten years regardless of race, those were the things we want to consider and we stated in all sincerity, if we have a ratio and they say, “Well, it is not for perpetuity.

It’s only remedial and the judge didn’t mean for you to do it all it want.”

We say that let us try to get the non-identifiability corrected, get the problem solved before such as this.

We say it’s never going to be the same but let us — we state that we’re going to do it, we’re in the process of doing it, the objective we see, we’re accomplishing it.

We say —

Byron R. White:

Could I ask you this?

To what extent if you had resignations to faculty members which has resulted the problem which you think have resulted from the teacher objecting to having to teach students of the opposite race?

Any?

Joseph D. Phelps:

Yes.

Quite extensively at the outset.

Byron R. White:

Based right on that reason.

Joseph D. Phelps:

I would think so particularly in the summer of 1967 and not as much in the summer of 1968.

Byron R. White:

Well, have you been able to keep up your complement of teachers or have you been able to replace those teachers who are willing put up a compulsory assignment?

Joseph D. Phelps:

Well, not as whether we would like to.

Byron R. White:

Well, yes but you’ve been able to get them?

Joseph D. Phelps:

We’ve been able to get them to the standpoint that we will accomplish what we have here but if they wouldn’t for resignations, if there wasn’t for just saying I won’t teach in your system, I’ll go to Birmingham where there’s not that much, so I’ll go to Mountain Brook, Alabama where there’s none.

Or if it hadn’t been to that, we’d have a substantial mode, if it wasn’t for resignations or refusal to take, we would have it.

Byron R. White:

Would you anticipate more of the spaces as a result of this decree?

Joseph D. Phelps:

More resignations, yes.

I think we saw some after the District Court order.

Earl Warren:

I thought I read some place in the record that you no longer have any problem of replacing teachers that used to be, that you’d have to have I don’t know how many, 70 or something like that every year but that now, you don’t have to do that because you have enough teachers that stay in the schools?

Joseph D. Phelps:

I think now, Mr. Justice Warren, the record shows that there’s probably a little less than 10% faculty turnover a year and that would be new ones coming in and I think the surge of students firing the old ones is not the problem that it was some years ago.

Earl Warren:

Mr. Phelps, in this question of assignment, do you reason from the premise that any teacher who is qualified to teach black students in this county is equally qualified to teach white students?

Joseph D. Phelps:

They’re teaching the same thing.

Yes.

Earl Warren:

Teaching the same thing.

You start — your reasoning is from that premise.

Joseph D. Phelps:

I would say in answer to that yes.

And one other objection, I’d like to say as far as we say that the mathematical ratio requirement is unwarranted because of our progress, because of the District Court’s — the Court of Appeals’ specific directives that faculty desegregation must be accomplished without delay or we had affirmatively said he had to assign a voluntary assignments, it didn’t work.

We say that in a remedial read as being handed down by the Court of Appeals, we say it’s unconstitutional hereto and we think it would be dangerous.

No mathematical ratio has been required that we know about that would require juries to mirror the racial composition of a community.

No court has said that we know about that Government agencies have to hire according to racial ratio or that the school chairman would have to be assigned according to racial ratios and in fact the Civil Rights Act of 1964 specifically says that they shouldn’t be assigned to eliminate racial imbalance and in the area of hiring on jury system, we feel like it that it points out the lack of wisdom and the inherent dangerousness that we have here.

Just a touch to another minute on our statistics, in addition to the 212 full time faculty assignments that we have, that’s in every school but one in our system has a desegregated faculty.

The only school that does not is a three room rural school down in Pine Level, Alabama.

It only has three teachers but they’ve had black substitute teachers.

Now student teachers, there are 48.

Out of 262, 48 student teachers teaching in minority assignments, 24 white in seven black schools and 24 black in 12 white schools.

There are 48 in 19 schools.

In substitute teachers, substitute teachers according to the report that we filed on these, some of the 15 in 1968 and according to a letter that we received from the District Court, though reports have been sent up here, 701 days have been taught by minority teachers as substitute teachers.

318 days taught by white substitutes and 18 predominantly black schools.

Joseph D. Phelps:

300 days taught by blacks in 30 predominantly white schools or 701 taught in desegregated assignments and have a total of 2516 in 48 schools.

Excuse me.

Two schools in our system didn’t have any substitute teachers between September 15 and all substitute teachers are dated from September 15 to December 15.

Substitute teachers present a terrific problem and that the teacher will call 7:30 or 8 o’clock in the morning and say I’m sick and the principal has to get on the phone and find somebody and get them out there.

It’s a burden and we think the progress that we made there are substantial.

(Inaudible) is training programs throughout the system had been desegregated and we think that that’s really an important.

Here, our teachers of both races who are experts in the field were teachers or desegregated faculty audience in both white and black schools and we think that that certainly lay in good ground where toward the continued progress that we stated to the court that we’re going to make and they do that in a meeting in a white school one time and in a black school the next.

Teachers are assigned to other schools for observation of classes, to see a more experienced math teacher to teach that class and that’s not completely on an integrated basis.

We think that again is important.

Administrative councils have been completely desegregated.

Faculty meetings have been completely desegregated.

Administrative councils went over the school.

Administrative staffs meet one week in a black school and the next week in a white school.

We state to the Court that the progress that we made and has been noted by the District Court and it wasn’t that an empty phrase when Judge Frank M. Johnson told the school board in 1967 I believe and 1966 that complemented the Board by operating a school system as professional educators and not as politicians.

I think that’s significant.

It’s significant like I started to say a moment ago.

In September of 1967, four months before the order that we had in Court about, Judge Johnson stated that it complemented the Board again as pointed out by the Court of Appeals and saved this from the bench on September 5, 1967.

They’re dealing here with the school system that you haven’t had to take the appellate court a single time since you started.

It’s the only system in the state that you haven’t had to do at all.

They have done what they have done in good faith and they have done ahead than most of your other systems in every field.

We think that that again is evidence of our progress in substantial ways what we say we’re going to do and additionally when Judge Johnson said and complemented the Board and said that he would recommend other school systems to emulate the conduct of the Montgomery County Board, that’s not an empty phrase.

We say to the Court that we made progress.

The remedial writ had been handed down by the Court of Appeals.

We say that we recognize and we are the first to recognize that the ultimate objectives have been reached.

We say we’re working on it.

We’re on the process of accomplishing it.

We say that we will reach them for the purposes of desegregating our school system and compliance with the Green case, with Bradley case, with Rogers versus Paul but also consistently with quality education for the best interest of white children and black children alike.

We think that —

Hugo L. Black:

May I ask you.

Since you say you are going to do that, what is your objection to Judge Johnson’s decree particular objection?

Joseph D. Phelps:

The particular objection Judge is that we have to have a ratio in faculty assignment and we say when teachers are assigned to meet a ratio instead of to meet quality education and instead to remedy identifiableness of the schools that you lose quality education for whites and blacks alike.

We say that racial quotas are inherently dangerous in public education, that they are tied —

Hugo L. Black:

I understood that’s what you’re moving toward?

Joseph D. Phelps:

No, sir.

We’re moving toward this.

We are moving toward the faculty in each school being not identifiable as either white or colored for the students to go into that school.

When a child —

Hugo L. Black:

How can you do that?

Joseph D. Phelps:

We can do that Judge the same way that we’ve done in the last year by assigning blacks to white schools consistently with quality education and white students, blacks to whites and whites black, not to meet the quota but to remove the identifiableness of either a black or white school in so far as the children are concerned.

And I tried to go into the specific reasons that we say specifically that the invocation of a compulsory ratio on top of what we say we’re going to do is unwarranted, it’s unnecessary, it’s unconstitutional and it puts an unwise detrimental burden on quality education and we think —

Hugo L. Black:

What school in the City of Montgomery do you have colored teachers teaching the most, white pupils?

Joseph D. Phelps:

Probably the Jefferson Davis High School.

Hugo L. Black:

Where is it situated?

Joseph D. Phelps:

It’s situated on Carter Hill Road in Montgomery, Alabama.

Hugo L. Black:

What are their number there, the white pupils, students in that school and the number of colored teachers?

Joseph D. Phelps:

Another school, Mr. Robinson just called my attention to was the Harrison School on the Southern (Inaudible) in Montgomery.

Harrison school — let’s see — the 3 black teachers and 15 white.

The Jefferson Davis School, 7 black and 29 white.

Generally, on the basis, those are two examples.

And to some it may be more but generally one out of five throughout the system are teaching a whole class, so in our schools where — if it is a predominantly white student population, approximately one out of five of the teachers in that school are black teachers.

Does that answer the judge’s question?

Hugo L. Black:

Are you among the Board of Education or just an attorney?

Joseph D. Phelps:

I’m just an attorney sir.

But I do state that we’ve discussed this with our board and the statements and assurances that I make to this Court are from the Board of Education of Montgomery County, the same people that Judge Johnson said were running the school system as professional educators and not as politicians.

Hugo L. Black:

What has been your experience so far as you understood in having these white pupils under the colored teachers in those schools?

Joseph D. Phelps:

It’s been favorable.

Hugo L. Black:

Favorable?

Joseph D. Phelps:

Yes, I think they tend to communicate well and I think a reason Justice Black that it has been favorable is that we made these assignments based on considerations of what the teacher had been teaching and what she was assigned to and she’s qualified for what she’s doing and those white children are going to look at that black teacher not as a black or white but as a good teacher and likely they will respect her as a good teacher.

And I think that’s what we would like to accomplish.

Hugo L. Black:

You think you’ve moved that far in Montgomery?

Joseph D. Phelps:

I do so.

I think we’re going to move further.

Earl Warren:

Mr. Solicitor, any response?

Erwin N. Griswold:

No response.

Earl Warren:

Very well.

We’ll adjourn.