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PAGE 12—May 4, 1955—SOUTHERN SCHOOL NEWS
Excerpts
Continued from Page 11
date, it is a matter of the local officers,
their attitudes and their ability to
cope with local conditions. And so
I strongly urge the Court that it not
set an ultimate date, that it not at
tempt to decide in 48 states how the
thousands of school districts are go
ing to conform with its mandate, but
that it trust the local judgments, and
that under some general directions it
refer these cases back to the local
courts, assuming that the judges and
the local officials will do their
duty ...
Oral Argument On Behalf
Of Belton Et A1
By Louis Redding
May it please the Court, there are
two important circumstances I be
lieve which distinguish the consoli
dated Delaware cases now before
your Honors from all other school
segregation cases. The Attorney
General has alluded to both of those
circumstances. He has pointed out
that the Respondents here were ad
mitted to the schools previously
ascribed by the State Constitution
exclusively for white children, by the
decree of the Court of Chancery,
which was affirmed by the Supreme
Court of Delaware in August, 1952,
LOUIS REDDING
Attorney for Respondents
and except in three instances where
those children have graduated from
high school, they have been or they
are now just about completing their
third successive year of attendance
on a non-segregated basis.
I should like to point out what is
in the brief of the Attorney General
to the effect that this attendance has
been without incident and without
social repercussion.
The other circumstance to which
Mr. Craven has alluded is the fact
that the Delaware Supreme Court
has had occasion to construe the ef
fect of the decision in the school seg
regation cases on school segregation
as it has been practiced in Delaware
since May 17, 1954, and the Attorney
General is, of course, correct in
pointing out that the Supreme Court
of Delaware has said in three places
in its opinion that the decision of this
Court on May 17 renders null the
Delaware constitutional and statu
tory provisions providing for public
school segregation.
But the Supreme Court’s opinion in
this case to which Mr. Craven has
alluded, Steiner vs. Simmons, 111
Atlantic 2nd 574, does create a pecul
iar problem in Delaware. The
Respondents here, as we have al
ready said, were immediately admit
ted by the Delaware Courts to the
schools previously for white, and
they were admitted to those schools
because both the Court of Chancery
of Delaware and the Delaware Su
preme Court interpreting this Court’s
opinions in the Gaines, the Sipuel
and the Sweatt cases decided that
this right to the equal protection of
the laws in so far as that applied to
public schools, was a present and
personal act, and it was for that rea
son that it admitted Negro school
children to the schools.
However, in this opinion of the
State Supreme Court, decided on
February 8, this year, the Court
seems to take another position. The
Court says that, and I would like
with the Court’s indulgence, to read
just a few lines of the opinion which
Mr. Craven did not read. The Court
says: “The right to unsegregated ed
ucation has been established. The
Plaintiffs in the segregation cases and
the Plaintiffs in the case now have
that right. But as to the Plaintiffs in
the segregation case, the enforcement
of that right has been deferred. The
Supreme Court of the United States
has not entered a decree directing
immediate admittance.”
And a little further down, the
Court says:
“Under such circumstances, can
the right of the Plaintiffs who were
their respondents, be considered a
present and personal right?”
Justice Frankfurter: Those are dif
ferent children?
Mr. Redding: Yes, sir, so that now
we have the situation that in Dela
ware the persons who are now Re
spondents in this case have been rec
ognized by the Court, the Supreme
Court of Delaware, as having a pres
ent and personal right to equal op
portunity to a non-segregated edu
cation.
But children who have been segre
gated since that time do not have
such a right. It is for that reason that
I would like to advert, as Mr. Craven
did, to the decrees which this Court
will enter in other cases. We believe
that those decrees should require
forthwith desegregation. We are cer
tain that if they do require imme
diate desegregation, the Delaware
Supreme Court will regard the de
crees as binding and will order im
mediate desegregation in the schools
in Delaware, and thus relieve Dela
ware of this duality which now exists
with respect to the constitutional
rights of Negro school children. . . .
Argument On Behalf Of
Spottswood T. Bolling:
Et A1
By George E. C. Hayes
May it please the Court, this suit
involves the District of Columbia, and
as your Honors well know, integra
tion has been started in the District
of Columbia. With respect to the two
questions that are being asked of us,
I shall address myself to Question 4
and Mr. Nabrit, with whom I am as
sociated, will address himself to
Question 5.
By way of specific answer to Ques
tion 4-A, we answer by saying, yes,
the question being, would a decree
necessarily follow, providing that
within the limits set by normal geo
graphical school districting Negro
children should forthwith be admit
ted to the schools of their choice.
And we take the position that in all
of these cases since the rights are per
sonal and present, that the answer to
that question should be yes. With
respect to the District of Columbia,
there are additional reasons why that
answer should be yes.
First of all, there are presently, as
far as we know, no factors which
would justify any request for a de
cree that is not forthwith. The Presi
dent of the United States by his own
statement, has indicated that it is his
desire that the District of Columbia
should be a model, as far as the inte-
GEORGE E. C. HAYES
Attorney for Petitioners
grated school system is concerned.
The Corporation Counsel of this Dis
trict, as soon as the mandate came
down, being called upon by the Board
of Education, pronounced that in his
opinion the decision of May 17 ren
dered unconstitutional the provisions
of the D.C. Code that pretended to
have our system a segregated one.
BOARD’S POLICY
The Board of Education almost im
mediately after the decision came
down came forth with a very forth
right statement of policy....
They end their statement by saying
“In support of the foregoing prin
ciples which are believed to be cardi
nal, the Board will not hesitate to use
its full powers. It is pledged to a com
plete and wholehearted pursuance of
these objectives. We affirm our in
tention to secure the rights of every
child within his own capacity to the
full, equal and impartial use of all
school facilities and the right of all
qualified teachers to teach where
needed within the school system ...”
We read that to your Honors be
cause we feel that is a very fine pro
nouncement of a policy. Pursuant to
that, the Board of Education called
upon the Superintendent of Schools
to offer a plan, and in this regard, we
addressed ourselves to what was done
in the hope that the experience of
the District of Columbia may be help
ful to your Honors in arriving at con
clusions as far as all of the cases may
be concerned . . .
I called your Honors’ attention to
the fact at the outset that there would
be no need for anything beyond a de
cree saying what the Board of Edu
cation has indicated, what the Super
intendent has set forth as a plan is to
be envisioned for our schools as of
September, 1955. That, according to
the plan, is to be a complete integra
tion. If that were all, we would ask
nothing other at the hands of this
Court, than a decree which would set
forth that there should no longer be
an administering of the school system
in the District of Columbia where the
question of race or color was in any
sense involved, as a part of any ad
ministrative action, as a part of any
attendance as far as school children
were concerned, as far as teachers
were concerned. . . .
POSSIBLE ERRORS SEEN
However, we have concern, because
as far as some of the plan, it lends it
self as we see it, to the possibility of
error . . .
In other words, if I be in a given
area, school area, I have the preferen
tial right to go to that school that is
in that area. But the plan allows the
option of remaining at school until
graduation is had if the individual de
sires to do so.
As we conceive it, a geographic
school district which in, and of it
self, would lay the proper foundation
for the integrated schools is superim
posed on a right that may be exer
cised by a student, the result of which
is as we see that race is still made
the issue, and the question of se
gregation is carried forward just as
before, because by the exercise of this
option, a child may continue to stay
in the school until the time of his
graduation . . .
Justice Burton: Mr. Hayes, you re
ferred to the right of a child to stay in
a given school until his graduation
from that school. I take it that is
merely a temporary measure, is it not,
that has to do with the status at the
moment and it will work out over a
period of two or three years? That is
not to break up the continuity of the
course?
Mr. Hayes: It would presumably
work out at the end of the graduation
period through the intermediate
grade from the time the child grad
uated from that to the junior high
school, that would end his right to
exercise his option. . . .
Justice Burton: You are talking
about matters of continuity for the
child in a given school?
Mr. Hayes: That is what is urged as
being the reason for the thing. I sug
gest, that it is the question of con
tinuity within the graduation period
of a child in a particular school.
Justice Minton: You do not contend
that it is done for any purpose of dis
crimination?
Mr. Hayes: No, the actual language,
if your Honor please, would not re
sult in discrimination. We are con
cerned as to whether or not the ad
ministering of it might not be dis
torted, and not in any sense saying
that the present administration has
done any such distorting. I am in no
position to say that and would not
say that. But we are concerned that
the language of a decree which we
are asking would be of such character
as would render impossible the use of
that device as a means of discrimina
tion. . . .
Justice Black: You mean you want
a decree that will prevent an option
being given to children where there
are two or three schools to go to, to
permit them to go to that one school?
Mr. Hayes: No, we do not think
that the decree from this court should
do any forbidding. We think rather,
that the decree from this court should
simply indicate that there should be
nothing done where color was used as
a criterion. Now we feel that this is a
possibility and is a perpetuating of the
old idea of color being the criterion.
Justice Black: Is it your idea that
because there is a possibility that
there should be no option left to the
children of either race to select their
own schools?
Mr. Hayes: No, we think rather, if
the decree were to take the shape
which I have suggested to your Hon
or, that then in the event that there
were showings, flagrant showings of
a violation of this right of option,
that then there would be the right to
go to the courts without the estab
lishing of a principle that we feel has
already now been established. . . .
We do not think that this Court
should say by its mandate that no one
shall have the right to exercise an
option. We do not think that that
would be right. ...
Justice Frankfurter: Have you in
your brief set forth a proposal for the
kind of decree that you would like
this court to issue?
Mr. Hayes: No, your Honor, we
have not.
Justice Frankfurter: Would that
appeal to you or would it be agreeable
to you?
Mr. Hayes: Yes, your Honor.
Justice Frankfurter: Perhaps I
might suggest to other counsel that
they take their hand in drafting the
kind of decree they want this Court
in terms, not in generalities, but in
terms of the kind of decree that they
propose as is so often the case in
chancery, proposed from the states,
specifically the kind of decree they
submitted for consideration by the
Court because generality of language
easily evaporates in memory, let alone
in speech. . . .
Argument On Behalf Of
Spottswood T. Bolling
Et A1
By James M. Nabrit Jr.
Mr. Chief Justice, if the Court
please, I should like to add to what
Mr. Hayes has said about the situation
in the District of Columbia. There are
160 odd schools in the District of
Columbia and they were divided into
two divisions, white and colored,
prior to the decision of May 17.
Essentially 17 of the schools that
were formerly white, there are now
only 11 elementary schools, no junior
high schools and 1 senior high school
and 3 vocational high schools which
do not have Negroes in them.
In other words, Negroes have gone
into all of the formerly white schools
in the District except those indicated,
a total of 16. In the case of those
schools that were formerly all Ne
gro schools, there are 15 elementary
schools now with no whites, 9 junior
high schools and 4 high schools. In
the case of the teachers collegs they
have two. Wilson, which was formerly
all white, now has 36 Negroes, and
Miner, formerly all Negro, still has
no white students.
‘AMAZING’ PROGRESS
Now we would be remiss in our
obligations to the court if we did not
say and make it clear that the prog
ress in integration in the District has
been amazing since May 17, 1954.
We also feel that we would be re
miss in our obligations if we did not
point out to the Court some things
which we think ought to be taken
into account in deciding what dis
position to make finally of this litiga
tion which has now taken the greater
part of five years, and also, if we did
not suggest to the Court something
which we think we have learned in
the District of Columbia which might
JAMES M. NABRIT JR.
Attorney for Petitioners
be of some aid in the resolution of
the difficult problems inherent in
questions 4 and 5 in the cases before
the Court.
We feel that we may do that since
so many representatives of the vari
ous states have been asked to give
some aid to the court, and two things
we think may be helpful to the Court
from our own experience in the Dis
trict of Columbia. In the first place,
implicit in many of the requests for
delay and for a gradual effective de
segregation process, inherent and im
plicit in these replies is that inte
gration involved manifold admin
istrative difficulties and that to do this
short of a long delayed process may
prove educationally unsound.
Now we concede that there is merit
in both of those positions, but what
we want to give the Court our ex
perience about is an aid in the view
which the Court gives to these rep
resentations.
Now the experience which we have
had in the District I think ideally
illustrates it. When the decision was
handed down immediately thereafter,
thinking of all of the things that may
stand in the way, the Superintendent
announced that we could not take
any steps toward a desegregation
until the Court had handed down its
decree . . .
PROGRAM SPEEDED
The Board of Education did not
agree with that. The Board voted that
new boundaries be drawn by July 1.
and that the program begin on Sep
tember 1. The Superintendent pro
ceeded to draw the boundaries by
July 1, and to accelerate the program
by September 1. Now the only reason
I call that to the Court’s attention is
to say that the Court must be care
fully observant of representations
that long periods of time are needed
for these integration steps, because
we have found in the District that
when a decision was made, the dif
ficulties vanished, the administrate e
difficulties, educationally question
able results did not come as a con
sequence of the action taken
Now, it would seem to me
that
this also could be of assistance to the
Court in dealing with the question
if, in a situation where the Cou
has as wide a supervisory power a
in this, the court directed the court*
below here to enter a decree win
is in effect, Mr. Justice Frankfurte^
this judgment reversed and ca ^ S r
remanded to the District Court
proceedings not inconsistent with
Court’s opinion, and entry of a deer
containing the following provisio
TERMS OF DECREE f
(1) All provisions of Distric
Columbia Code or other legislate
enactments, rules or regulations,
quiring, directing or permitting ^
fendants to administer public sc
in the District of Columbia on
basis of race or color, or denying ^
admission of petitioner or ot ” er . ^,[ s
groes similarly situated to the sc
of their choice within the ln|J* .
by normal geographic school dis ^
ing on the basis of race or co o ^
unconstitutional and of no fore
idants, their agents, e®
■vants and all ot ^f r P an d
under their direc 10 , t0
, are forthwith ordered^
/l:ofinotions baseu