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SOUTHERN SCHOOL NEWS—May 4, 1955—PAGE II
Excerpts From Transcript Of April Supreme Court Hearings
Argument Oil Behalf Of
Board of Education
By Harold R. Fatzer
_ _, Today, we appear not as an ad
versary. We appear here to be of as
sistance if we can to the Court in
helping it see that proper decrees are
imposed and made.
Now in answer directly to the ques
tions, your honors, of Nos. 4 and 5 and
the subsequent subsections, we want
to say that traditionally in Kansas,
segregation has not been a policy of
that state, on a state level. We sus-
Capital
HAROLD R. FATZER
Kansas Attorney General
pect that the Kansas case is probably
the least complex of any that is before
it. We wish to say that that has never
been a matter of state policy. We be
lieve that the decision of the Court
has been received by the students,
teachers, school administrators and
by the parents of both colored and
white with approval...
Your Honors, we believe that 4-A
should be answered in the negative.
We believe that the immediate and
forthwith admission of the plain
tiffs .. . would, and as the Board of
Education found, work a hardship,
would impair administrative proced-
Ures > and so we would suggest to the
Court that no decree be entered
which would forthwith admit any stu
dent to the school of his choice.
Eather, we believe that the Court
should exercise its equitable juris
diction at all times in these cases be-
®use of the public interest involved,
notwithstanding the fact that the
Plaintiffs in the case would undoubt-
% have some present and immedi-
an d Personal right of admission to
he schools.
REVERSAL asked
We bel:
be
ieve ... that this case should
reversed, that it should be re-
a aded to the Federal District Court
inrl v* nSaS ' * should like to tell you
To ^ e ^y review the efforts of the
nato 3 ® oar d °f Education to termi-
in,, se gregation in the public schools
111 ^t city.
commenced on September 3,
Sjl' 'Ehe policy announced by the
^nan ^ oar ^ was d° terminate main-
; c l , Ce °f se gregation in elementary
five jf as rapidly as was practicable.
W a ? S Showing that date, to wit,
'. trrn em her 8, 1953, segregation was
It iu two schools in the city.
to| 0r ° v ’ed only approximately ten
in j, e d children, but they were living
ban 6 , trict. They were permitted
5««1 these schools...
^nd WaS ca ^ e d the first step. The
1554 A Step was ma de on January 20,
schoQj d that was effective for the
^'1955 Frn ’ curren t school term,
Eoanj 'i 1 h me > an d by order of the
ttfIll inat T^ uca tl° n > segregation was
bth ec -, ea h 1 twelve school districts
? r °vid B j^ an< ^ transportation was not
b th 0sp , to the Negro children living
that twelve districts on the basis
°f that j a V~d could attend the school
f he patriot but with the privilege,
:c R°ol , err6 d, to attend the colored
''L * c h he had been attending.
( %dren 6Cte< ^ approximately 113
tf e v i 0l , ’ Plus the ten that had been
s y affected from Step 2—123
(Note: In the interest of providing subscribers with
better background information about the five school seg
regation cases before the U.S. Supreme Court, the follow
ing Section of Southern School News is devoted to perti
nent excerpts from the oral arguments before the court
April 11-14.
The transcript of the arguments ran to 440 typewritten
pages. A verbatim reprint would have filled more than
two complete issues of Southern School News. Accord
ingly, the transcript was edited to point up what ap
peared to be the most salient portions of the argument.
The excerpts in this issue cover arguments by oppos
ing counsel directly concerned with the five cases—from
Kansas, the District of Columbia, Delaware, South Caro
lina, and Virginia.
The June issue of Southern School News will carry
excerpts from the arguments by southern attorneys gen
eral and their assistants, and by the solicitor general of
the United States, all of whom appeared as ‘“friends of
the court.”)
Negro children were placed in the in
tegrated school.
Justice Frankfurter: What is the
total of school population into which
these 123 were merged, roughly?
Mr. Fatzer: I will have to refer ...
Justice Frankfurter: What magni
tude? Was it 10,000, or 50,000?
Mr. Fatzer: No, nothing of that kind.
I think perhaps the school popula
tion in Topeka is roughly 8,200, Mr.
Justice. . . .
Now I spoke to your Honors of a
subsequent event that occurred sub
sequent to the filing of the State’s
brief here in response to the request
of the Court, which occurred on Feb
ruary 23,1955. We have with us today
the minutes of the Topeka Board of
Education adopted February 23, 1955,
which we have filed in the Clerk’s
Office as a supplement to the brief
filed in this Court in response to
questions 4 and 5 propounded by the
Court. We file it simply for informa
tional purposes to show the good faith
of the members of the Board of Edu
cation of Topeka in carrying out the
previous announced policy of ter
minating segregation as rapidly as
practicable.
Now this third step, your Honors, is
effective September, 1955. It provides,
(1) that segregation has been termi
nated in all remaining buildings; (2)
that the McKinley Elementary
School, one of the colored schools, be
closed and that it be placed on a
standby basis for the coming year; (3)
that colored schools, Buchanan
School, Monroe and Washington
Schools be assigned districts within
the areas of the city, the same as any
other school area in the city and that
any child who is affected by the
change in the school district—I will
go ahead—any child who is affected
by the change in school district lines
as recommended on a map which we
did not attach hereto, be given the
option of finishing the elementary
grades in the school in which he at
tended in 1954 and 1955. That is, he
could attend the school in the district
in which he resided or, if the new dis
trict overlaps now into a district that
formerly existed before the redis
tricting, he can attend the school that
he attended last year. In other words,
it is equally available to both the
white and the colored students.
Justice Frankfurter: Have I missed
a statement as the basis or the reasons
for which this redistricting was done?
Mr. Fatzer: The basis of it was done,
of course, Your Honor, on the Court’s
decision of May, 1954, to comply with
the order of this Court that segrega
tion, per se, was unconstitutional.
That is the basis of it . . .
We believe, your Honors, that this
Board has complied with the Court’s
decision in good faith, that it has done
everything it could as expediently
and as rapidly as possible. It has
taken approximately a year and five
months of this willing Board to meet
its administrative program and prob
lems, to provide for teacher assign
ments, student assignments. The ad
ministrative intent of compliance has
been declared. And we believe, your
Honors, that the rule of Eccles vs.
Peoples Bank in 133 U. S. 426 is appli
cable, that where the administrative
intention is expressed but has not yet
come to fruition, we have held that
the controversy is not ripe for equit
able intervention. We believe that
the cause should be remanded but
that this Board be permitted to carry
out its orderly process of integra
tion. . . .
We, therefore, suggest to this Court
that the case be reversed, that it be
remanded to the District Court and
that the Board of Education be per
mitted and allowed, without the in
terference of any decree, to carry out
the program in good faith, subject to
any objections that any person might
have with respect to its completeness
or with respect to its application, and
that, at that time, notice be given by
the Court to Counsel at which time
those matters may be dealt with by
the lower court. . . .
Justice Reed: Mr. Attorney General,
do you have in Kansas at present a
law which permits segregation?
Mr. Fatzer: We do not now, sir. We
have considered it to be declared in
valid by decision of this Court.
Justice Reed: That is, you have in
terpreted the decision as invalidating
your law?
Mr. Fatzer: Yes, sir, we have . . .
Justice Clark: Under the plan in
Topeka, there will be no segregation,
enforced segregation after when?
Mr. Fatzer: Commencing Septem
ber 1955, sir.
Oral Argument On Behalf
Of Brown Et A1
By Robert L. Carter
We are in accord with Mr. Fatzer
that the case should be reversed and
remanded to the District Court. We
feel that the decree should be en
tered by this court declaring the
Kansas statute by which power the
Topeka Board proceeded to organize
and have segregated schools, that the
statute be declared unconstitutional
and void.
Justice Frankfurter: I understood
that the Attorney General had al
ready expressed an opinion to that
effect.
Mr. Carter: He has expressed an
opinion . . .
Justice Reed: What do you mean,
you want a specific invalidation of
this specific statute?
Mr. Carter: We think, your Hon
ors, that such a decree ought to be
entered, declaring the statute un
constitutional because as of now the
implications are that the statute is
ROBERT L. CARTER
Attorney for Petitioners
unconstitutional by the May 17th de
cision, but the May 17th decision has
no specific declaration or judgment
or decree. And in the reversal, we
think this should be set forth in
your reversal and remanding to the
lower court . . .
Secondly, we would like a decree
that would indicate that an order to
the Topeka Board to cease and desist
at once from basing school attend
ance and admission on the basis of
race so that as of September, 1955
no child in Topeka would be going
to school on the basis of race or col
or. We would think that an instruc
tion should be issued to the District
Court to hold jurisdiction and hold
proceedings to satisfy itself that the
school board of Topeka as of Sep
tember, 1955, has a plan which satis
fies these requirements in that the
school system has been reorganized
to the extent that there is no question
of race or color involved in the
school attendance in its rules . . .
We feel that everything that Mr.
Fatzer has said argues for a forth
with decree in this case.
The plan which has been issued as
the third step, is not one that indi
cates that there are any reasons why
desegregation should not be obtained
as of September, 1955. The plans say
that desegregation will obtain as of
September, 1955. We take objection
to the plan. We think there are a
number of factors in the plan which
will mean there will be a modified
form of segregation being maintained
for many years as the plan now op
erates, but we do not think that
this is the place for us to argue about
the question of the plan.
We think that if this court issues
a decree as we have suggested to the
lower court the school board and the
appellants can argue as to whether
or not a specific plan which is being
adopted by the Board conforms with
the requirements of this court’s opin
ion and its decree, that segregation
be ended as of September, 1955,
which we think should be done . . .
I would think that we would of
course want to have a hearing before
the District Court at as early a date
as possible so that this matter could
be settled and there would be no
question but that the question in To
peka would be going to unsegregated
schools on a plan which conforms to
the court’s decree in all its require
ments as of September, 1955. With
that we would be satisfied . . .
The Chief Justice: Thank you, Mr.
Carter. Mr. Attorney General, can
you tell us when the schools open in
Topeka?
Mr. Fatzer: My understanding is,
sir, that it commences on the second
Monday in September and that the
enrollment of students is generally
completed during a three-day period
just about, just before the second
Monday in September.
The Chief Justice: The determin
ing as to where a child shall go is not
made until in September?
Mr. Fatzer: I think that is true. I
assume that it will be worked out
under this plan. If the lower court
would approve it or if it were to be
modified by that date, surely the
school authorities want to know how
many children are going to be in
some school and whether facilities
are going to be adequate and wheth
er or not, under the program and the
plan as proposed or as may be modi
fied, that what children are going,
whether they are eligible under the
plan to go to this school and whether
existing facilities are available to
take care of them.
The Chief Justice: I think general
ly what this Court would be inter
ested in knowing would be in the
event there is a remand to the Dis
trict Court, if it might be said when
it gets there, that it was too late for
next year.
Mr. Fatzer: No.
The Chief Justice: That it should
have been there before some date,
say, in July or August when those
things are done.
Mr. Fatzer: I am sure that would
not be the case, your Honors. I can
tell this Court that I am pretty cer
tain . ..
Argument On Behalf Of
Gebhart Et A1
By Joseph Donald Craven
Mr. Chief Justice and Members of
the Supreme Court: The brief for the
State of Delaware was filed by my
predecessor, Mr. Young. I find myself
in agreement with that brief except
for one modification which I will
mention to the Court a little later, but
we are before the Court asking for a
firm answer to the Court of Chan
cery of the State of Delaware and the
Supreme Court of the State of Dela
ware.
That is based on two considerations.
First, that the separate but equal
doctrine under which these cases
were brought here is, of course, no
longer in effect in view of the Court’s
decision of May 17 and secondly, be
cause these children have been inte
grated into the two school districts
which were involved in those cases,
that is, the Hockessin and Yorklyn
school districts.
There have been no untoward
events in connection with that inte
gration and the state is asking for a
firm answer...
Justice Reed: What decree do you
recommend?
Mr. Craven: A simple, a firm an
swer of the holding of the Supreme
Court of Delaware and affirm the
Court of Chancery decision.
Justice Frankfurter: What did your
court decree?
Mr. Craven: Our Court of Chancery
decreed that the children should be
entitled to immediate admittance into
Wilmington News
JOSEPH DONALD CRAVEN
Delaware Attorney General
nonsegregated schools on the theory
that they had this present constitu
tional personal right and having
found that the facilities were not
equal in those two districts and that
decision of our Court of Chancery
was appealed to our State Supreme
Court which affirmed and the State
again appealed on the narrow ques
tion that the districts in question
should have been given time in which
to make the facilities equal.
Of course, that is no longer a matter
for argument before this Court.
Justice Reed: The matter of consti
tutionality was not dealt with at all?
Mr. Craven: No, it was not. We did
not come up here on the question as
to whether segregation per se was
unconstitutional . . .
I say to that extent I, as the present
attorney general of the state, am in
accord with my predecessor in asking
that the cases be affirmed. And it
would seem to me that that is all that
there is before the Court as far as
Delaware is concerned. . . .
However, my predecessor did argue
at some length—I will not argue at
length but I feel in duty bound to
have something to say about the sit
uation in Delaware otherwise.
I wish I were in the happy position
of my friend Mr. Fatzer from Kansas,
and to say that there is no problem as
far as Delaware is concerned, but we
are a border state and ever since the
civil war, it seems to me, the border
states have had their particular prob
lems. I should be happy to be able to
tell this Court that all is well and will
be well whatever the form of the
mandate of this court is. That I can
not, either in justice to this Court,
nor in justice to the people of Dela
ware, say, because we are a divided
and a troubled people in the face of
the mandate of the Court. . . .
I am not asking the sympathy of the
Court, but the Attorney General of
the State has these problems to face,
and I sometimes feel that the making
of the decision and the implementing
of the decision is not a matter of man-
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