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PAGE 14—May 4, 1955—SOUTHERN SCHOOL NEWS
Excerpts
Continued from Page 13
ington. But it is significant that they
not only began on it in September,
but they found that it was necessary
to speed it up.
And the other thing that we must
bear in mind, it seems to me, in an
swer to all of the arguments to the
contrary, running through them is
this great number of Negroes in
volved, this terrific number makes
the Fourteenth Amendment different.
And, fortunately, in so far as this
argument is concerned, the District of
Columbia has the largest number of
Negroes in its school system of any
city in the country, not only the
southern cities, but any other city. It
is approximately 60-40.
And so that argument, it seems to
me, is lost, because on one hand, we
have a theory that numbers are bad,
and that numbers are this, and we
have unsupported opinions of At
torneys General, and so forth, that
numbers are this, and we have right
here in our face in the District of
Columbia that if you take everything
else aside, numbers could not pos
sibly be important. . .
Justice Reed: If there was more
time than between now and the first
of September, 1955, say the first of
September, 1956, the first of Septem
ber, 1957, there would be opportunity
for the enactment of state law that
would put into a central body au
thority to carry forward desegrega
tion?
Mr. Marshall: On the contrary, Mr.
Justice .Reed, at least one state—I
think it is North Carolina—but at
least one state has further decentral
ized for the express purpose of re
quiring anybody that wants to en
force this decree, whatever it might
be from this Court, to go from dis
trict to district. So, I do not know
whether that would help or not. . . .
So we now are on the assumption
that we are required, if necessary, we
would be required to litigate. But I
just do not believe that people, even
assuming that they are in this frame
of mind, would necessarily continue
—I do not believe these school boards,
many of them I know are the finest
people in the community and there
is nobody more law-abiding, and
once the law is made clear. . .
In the Sweatt and McLaurin cases,
involving the Law School of Texas,
the Graduate School of Oklahoma,
University of Oklahoma, as a result of
this Court’s decision, the universities,
the graduate and professional schools,
were open in twelve southern states,
and the reports show, as a matter of
fact, Professor Guy Johnson, we cite
in our brief, made a study and the
important thing is that there was only
one untoward incident in the whole
twelve states of integrating into pro
fessional schools.
And I also would like to remind
the Court that you will remember at
that time the Attorneys General of
the Southern states, with the excep-
ion of Alabama, filed a brief amicus
in this case in which they said every
thing that they are saying in this
brief and despite all of their predic
tions, not a single prediction came
true except that Mississippi, Georgia,
South Carolina, Florida, and Alabama
have not admitted them yet, and we
are convinced that within the next
six months, for reasons that are not
important to this Court, that Alabama
will be open. So it will leave only
four. . . .
OPINION POLLS
And in that connection, you will
find that in our brief, we set out in
footnote the several studies that have
shown by people who take polls, not
the takers, but the brains behind the
taking—that it is almost impossible to
predict from one person’s opinion,
what he will actually do. You just
cannot do that.
You get his opinion. He would not
like to go to school with the Negro,
he would not like to have his children
to go to school with the Negro, but
that is not saying he won’t, and that
is not saying that he would prefer for
his child to grow up and be an im
becile as to going with the Ne
groes. . . .
I think it would be a better po
sition if somebody came before this
Court from Carolina and Virginia and
said if you give us five years or four
years, we can work it out. They don’t
say that. And they are taking no step
to say it. As a matter of fact, in the
brief filed by the State of Virginia,
their reply brief, the whole brief
relies upon the initial statement that
it is this Commission that has been
appointed, that is working on the May
17 decision. And it is very interest
ing what they are working on, which
appears on page 3 of the Appendix,
the final paragraph of this official
State Commission:
“That in view of the foregoing, I
have been directed to report that the
Commission, working with its coun
sel, will explore avenues towards
formation of a program within the
framework of law designed to pre
vent enforced integration of the races
in the public schools of Virginia.”
That is what they are working on.
And they are coming to this Court,
asking to be given time to work on
that. . . .
Neither of these states has made
any statement that their laws on seg
regation are unconstitutional. To the
contrary, they take the position that,
despite this decision, they are still
constitutional, and all they are ask
ing for is one of two things: It is
either a moratorium on the enforce
ment of the 14th amendment, or local
option.
LOCAL OPTION
And in this case, throughout the
briefs of both sides, throughout the
arguments on yesterday and possibly
throughout the arguments today, will
be the effect of these decrees not only
in the individual areas involved, but
for other areas. And, whereas, this
Court has said—I would say as far
back as at least the Gaines case, and
I think farther back—that there is
no local option on the 14th amend
ment in the question of rights. That
just because there is a southern area
involved or border area involved,
that is no reason to delay it. . . .
It is a national constitution. There
is no place for local option in our
constitution. . . .
We have taken in our brief, and I
think in argument, the position that
we say that there is no question but
that we are entitled to relief under
4-A. However, in good faith, we are
going to assume that we are not en
titled to it as the question is asked
in 5, at which stage we go out and
get all of the available scientific ma
terials that we think will help the
Court. We take the different plans
that have been put into segregation
for that and we, in good faith, answer
the question because it is considered
by this Court to be material, it is
material to us.
On the other hand, Virginia and
South Carolina are rearguing ques
tion 3, which was decided on May 17.
It is the exact same argument. .. .
Justice Frankfurter: Why is it that
Fayetteville desegregated and other
parts of the State of Arkansas did
not, because there is some individual
reason?
Mr. Marshall: The best I can get
from reading the writeup of it, which
is in the Southern School News, is
the statement from the superintend
ent who emphasized the fact they
made no preparation about it, they
just put them in there, but then he
said that the smallness of number
was what encouraged them to do it.
Justice Frankfurter: Well, isn’t that
very important, and is it not some
thing—is it not the same thing that
is involved in carrying them by bus?
Mr. Marshall: Yes.
Justice Frankfurter: That is a direct
statement, is it not?
Mr. Marshall: Yes.
Justice Frankfurter: That is a great
saving?
Mr. Marshall: It is also a great sav
ing—there would be a saving because
to equalize the facilities in the south
ern states would take around four
and a half billion dollars. That would
save money all over the South for
them if they did that. . .
Now, whatever other plan they
want to work out, the question is
made about the educational level of
children. That has been an adminis
trative detail since we have had pub
lic schools.
They give tests to grade children,
so what do we think is the solution?
Simple. Put the dumb colored chil
dren in with the dumb white chil
dren, and put the smart colored chil
dren with the smart white children
—that is no problem. . . .
We say that the least that would do
us any good at all would be a de
cree which included four items: (1)
That this Court make the clearest
declaration that not only those stat
utes but others are in violation of the
14th amendment. We think it is
necessary for that to be put in the
decree. (2) That they start immedi
ately to desegregate. (3) File re
ports; (4) That it must end at a day
certain, and that, we take the posi
tion, is the minimum that we should
expect if we cannot get the decree
which will say that as of the next
school term—
Justice Frankfurter: What you are
saying is that the decision of this
Court on May 17,1954 was not empty
words, that it was a declaration of
unconstitutionality of everything that
made a differential on the ground of
race.
What you want is a manifestation
clear and unequivocal on that, that
states, the counties, the cities and the
schools, are affected because we have
specific cases and not the world at
large?
Mr. Marshall: Yes, sir.
Justice Frankfurter: That, in good
faith, this declaration should be car
ried into action?
Mr. Marshall: That is what we
would like to have, because we take
the position that this Court could
have ordered this done immediately
after the May 17th decision, could it
not? . . .
Justice Frankfurter: There are cer
tain unalterable facts of life that can
not be changed even by this court.
I am not talking about the feelings of
people, I am talking about districting,
the accommodations, the arrangement
of personnel, and all the complexities
that go with the administering of
schools.
Mr. Marshall: What I would say,
Mr. Justice Frankfurter, is that it
should be done as of the school term
which is September, 1955. I am get
ting to using words again.
And now we take the position that
the court should do it. That is the
fundamental place we are now. It is
whether or not the Court should do
it. And we take the position that hav
ing done this, having gone into an
swering the broad equity powers,
there is no question about the gradual
and effective—we say it can never
be effective and that having answered
those, we then say that we came back
to the point that this court at this
time should enter that type of decree,
that is the substance of our posi
tion. . . .
Justice Black: As I understand it,
as far as South Carolina is concerned,
this order would affect the pupils in
that district and no others?
Mr. Marshall: Absolutely....
Justice Frankfurter: Mr. Marshall,
in all the prior cases, the Gaines cases,
and Sweatt cases, and all that class
of cases—
Mr. Marshall: Yes, sir.
Justice Frankfurter: — in any of
them, was there any requirement of
reorganization of the school system
other than the mere admission of a
few colored students?
Mr. Marshall: It was nothing but
the registration detail, they had no
thing to do otherwise.
Justice Frankfurter: There was no
problem of what you call administra
tion?
Mr. Marshall: None that I conceive
of. There would have been problems
if they wanted to assign them to a dif
ferent place, but they did not do it.
Justice Frankfurter: It was only the
question of admitting them?
Mr. Marshall: The question of ad
mitting them. We think in our brief,
we have recognized this in these cases’
that there will be problems but we
take the position that, if they can
work out the details in the District of
Columbia, in that highly involved
system, they can work them out in
Clarendon County with 2,800 chil
dren.
DEADLINE ASKED
In conclusion, in so far as this par
ticular, as our side is concerned, I
am trying to leave some time for re
buttal—in summing up, while we still
believe that we are entitled to this
type of decree that would come un
der the answer to 4-A, and we are
convinced that any other form of
gradual adjustment would not meet
the words of the question of this
court which is effective gradual ad
justment. We say only at that stage
that assuming that that is done, then
we believe that the least we should
expect is that protection be given to
these cases. . . .
We say that the only thing that will
protect us is a deadline because we
hope that the court will recognize
that there is practically no way under
the sun that a lawyer seeking relief
under any other decree, could show
that the delay was not one way or the
other, and that in this effort to solve
this very difficult problem, it seems
to us that the answer should be that
this is not a matter for local option.
This is not a matter that shall be
geared down to the local mores and
customs of each community in the
country, to the extent that, not the
Constitution, but the mores and cus-
oms of some people in some commu
nity will determine what are and
how they shall be enforced in so far
as constitutional rights are concerned.
Argument Of
R. W. Elliott Et A1
By S. E. Rogers
Mr. Figg will make the principal
argument, Mr. Chief Justice.
I would like to just have the in
dulgence of the Court for about five
or ten minutes, since I come from
the district involved.
It seems to be recognized by our
opponents that these are terrific
problems. They are the greatest prob
lems that have been presented to our
people in this district, probably this
century.
We are not in the position of Kan
sas where we have only a few Ne
groes who would be involved in the
integration or the desegregation. We
are not in the position of the District
of Columbia, where school authori
ties are not responsible to the people
in the District.
COMMUNITY BACKGROUND
We are an agricultural community.
We have no industries as you will
note from the record. As our children
are educated from generation to gen
eration, some remain at home to farm
and supervise the farming, some to
work and labor on the farms, but
most of them have to leave the dis
trict and find employment elsewhere.
We are tied to the land.
Therefore, we are not in the posi
tion as I noticed here in Washington
yesterday, Mr. Korman stated that
some of the districts where there was
a complaint that there were no white
children sent to this particular Negro
school, that the problem could not
be solved by just moving away from
the district, because we can not—we
are tied to the land and we cannot
take the land with us.
So our school district, being an ag
ricultural district, and being tied as
we are to the land, we have to face
our problems there, without moving
away.
Justice Reed: What is your district,
is it a county district?
Mr. Rogers: No, sir, it is only one-
third. Our district is composed of the
old plantation section of the county,
fronting along a deep curve in the
Santos River. It is for that reason
that our Negro population is so large
in that district and our white popu
lation so small....
If this court should order the im
mediate desegregation, the immediate
integration of the schools of this dis
trict, we would be—it would not pro
duce an integration that most people
have in their minds of mixing the
white and the colored in school. It
would actually be the sending of the
few white children that we have there
to the Negro schools, because our ra
tio of population is approximately 9
to 1 in students in the school popu
lation. ...
PUSHING CLOCK AHEAD
We must remember that in the very
statement that was filed by the Ap
pellants, called a social science state
ment in the original causes, attention
was called to the fact that the ques
tion of desegregation involved prob
lems that were as they use them, in
the frontiers of scientific knowldege.
We realize that very much in this
district because we have had a bi-
racial society for more than two cen
turies. As this court called attention
to the fact that we could not turn the
clock of progress back to 1895 or even
to 1868, using the basis that we are
now doing—are now exploring the
frontiers of scientific knowledge, I do
not believe that in a biracial society,
that we can push the clock forward
abruptly to 2015 or 2045....
Whether we like it or not, there is
a feeling in the District that the de
segregation of the elementary and the
high school does affect the social lif e
of the community, and for that rea.
son, we have to remark that to say
that the decision is unpopular in the
area, is the understatement of the
year, but we would wish to work
within the framework of the decision,
but we do know that we are faced
with problems that can not be solved
except with a change of attitude and
those attitudes will have to be
changed slowly, not quickly.
As a result, we are asking that the
cases be sent back without instruc
tions, but to be sent back to the lower
court for action in conformity with
the provisions of the decision....
The Chief Justice: Is your request
for an open decree predicated upon
the assumption that your school dis
trict will immediately undertake to
conform to the opinion of this court
of last year and to the decree or is it
on the basis—
Mr. Rogers: Mr. Chief Justice, to
say we will conform depends on the
decree handed down. I am frank to
tell you, right in our district I do not
think that the white people of the
district will send their children to the
Negro schools. It would be unfair to
tell the Court that we are going to do
that. I do not think it is. But I do
think that something can be worked
out. We hope so.
The Chief Justice: It is not a ques
tion of attitude, it is a question of
conforming to the decree. Is there any
basis upon which we can assume that
there will be an immediate attempt
to comply with the decree of tUs
court, whatever it may be?
Mr. Rogers: Mr. Chief Justice, I
would say that we would present our
problem, as I understand it, if the
decree is sent out, that we would
present our problem to the District
Court and we are in the Fourth Cir
cuit. Our opposition has just told this
Court how the Fourth Circuit has
been—he has no fear of the Fourth
Circuit. I feel we can expect the
Courts in the Fourth Circuit and the
people of the district to work out
something in accordance with your
decree.
The Chief Justice: Don’t you be
lieve that the question as to whether
the district will attempt to comply
should be considered in any such de
cree?
Mr. Rogers: Not necessarily, sir. I
think that should be left to the lower
court.
The Chief Justice: And why?
Mr. Rogers: Your Honors, we have
laid down here in this court the prin
ciple that segregation is unconstitu
tional. The lower court we feel is the
place that the machinery should be
set in motion to conform to that.
The Chief Justice: But you are not
willing to say here that there would
be an honest attempt to conform to
this decree, if we did leave it to the
district court?
Mr. Rogers: No, I am not. Let us get
the word “honest” out of there.
The Chief Justice: No, leave it in-
Mr. Rogers: No, because I would
have to tell you that right now we
would not conform—we would not
send our white children to the Negro
schools.
The Chief Justice: Thank you. . • •
Justice Frankfurter: May I ask one
more question? Am I right—I « m n °
asking a leading question—in thins'
ing that you have said or implied, a 16
you asking that this court reconsider
the declaration of unconstitutionally
of last May? ,
Mr. Rogers: No, We are asking t* 1
opportunity to work the matter out a
the local level. ,
Justice Frankfurter: You are n°
inferentially or remotely coming
fore this court and saying that deci^
sion was a mistake and what went o
before should be continued?
Mr. Rogers: I am certainly not saj
ing that in my argument, no, sir.
Argument Of
R. W. Elliott Et A1
By Robert McC. Figg
... I think Mr. Rogers and I
understand that we were not in' 1 ^
up here to reconsider the decisi 00
May 17, 1954. ^
It seems to me that that aec
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