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" might be said to be the declaration of
5 the rights of the parties that were
5 asked for when this declaratory ac-
' tion was brought. In many cases of
' declaratory judgment, the courts go
! n0 further. The court may, however,
; proceed to grant such orders as may
: (jg warranted by the showing made
j m actions involving declaratory judg
ments as I understand the procedure,
and it would seem that maybe the
question which we are discussing
! here, is how much further the court
should go than the declaration of the
1 rights of the parties.
We are here, answering in particu
lar two specific questions with sub
divisions. The fourth question we an
swered in our original brief, that we
did not think that a decree should
necessarily follow, providing that
Negro children should forthwith be
admitted to schools of their own
choice within the limit of normal
geographical school districting.
adjustment period
We did say that we think that this
court in the exercise of its equity
powers does have the power to permit
an effective gradual adjustment to be
brought about from existing systems
to a system not based on color dis
tinctions. . . .
And Atty. Gen. McGrannery, and
Atty. Gen. Brownell in both briefs
which have been filed by them in this
case, have urged the view that the
Louis Schwartz Photo
ROBERT McC. FIGG
Attorney for Respondents
court does not have its full equitable
discretion to deal with this litigation.
They say that a court of equity is not
oound to direct any particular form
of relief, that it has full power to
fashion a remedy which will best
serve the ends of justice in the par-
hcular circumstance.
They
say that Congress expressly
y empowered the court to enter such
appropriate judgment, decree or or-
er or require such further proceed
ings to be had as may be just under
e circumstances. And that the
needs of the public and the effect of
Proposed decrees on the general wel-
® re are always a relevant if not para-
ount concern to a court of justice,
in 11 wRere public interests are
olved, equitable powers assume an
^ v en broader and more flexible char-
c er than when only a private con
troversy is at stake . . . .
as M W ^ * S 0ur v ^ ew °f the case that,
ce - r ' Rogers has told you, we con-
manH tRat case should be re-
ceerp 6C * .* n usua f course of pro-
l a , ln £ hr conformity with the dec-
Ms 1< ^ n w fuch the court made on
. > 1954, and that the school
arits orit ies may then, or the appell-
j, m ay then, present the circum-
distrTt .^ acang the authorities of this
irq- lct m trying to carry out the duty
th e ft upon them by the laws of
Publi tate an< ^ Provide an efficient
distrj 0 . s ^ stem °f education in this
tai^ '.."hat we think is that, cer-
tati 0 n lf the Se Ptember 1955 limi-
Ppo n .?? an outside time limit is put
end of I? district, it would mean the
the distri Pu hh° school system in
'fT, *
a ction^ n °t be the voluntary
thinh M t " 6 f rustees an d I do not
ffe w a /i Rogers mean t to show that,
think tb to tell the court, I
at there are forces at play in
this situation over which the trustees
have no control. There is the question
of whether you are going to have
funds to run a school, there is the
question of whether you are going
to have the legislation to run the
schools. . . .
And then the attitude of the people
in voting on tax levies or even in
electing school board members: This
district is to a considerable extent
autonomous and represents local gov
ernment and is is not like the District
of Columbia where the school board
is appointed by members of the Ju
diciary and the voters do not have
any ability other than persuasion or
letters to the newspapers to influence
in any effective manner the members
of the school board.
But in District 1 of Clarendon
County, the democratic process of the
ballot box has a great effect on the
taxation to run the schools, and as
was suggested here, when it said that
white children will not enter the
schools which can be realistically
called Negro schools. If there were a
forcible requirement of entrance, if
they were made to enter, they will
have other ways of educating their
children.
The white people are in a vast mi
nority but they do happen to pay
most of the taxes, and they have a
considerable influence in the affairs
of the district as would be known and
is natural. . . .
COMMUNITY ACCEPTANCE
One thing that has been mentioned
in the briefs—the Attorney General’s
brief was mentioned and others—has
been the matter of disparity of num
bers as bearing upon this problem.
Another thing, and it seems to me a
very important thing, that has been
mentioned as proper to be taken into
account by the court, is the matter of
community acceptance of the very
idea that it be, or can be carried out.
It is easy enough to say that that is
of no moment, of no relevance, but if
the failure to achieve community ac
ceptance in a short time results in the
destruction of public support for the
idea of public education, that is a very
serious matter and it is serious to both
classes of pupils. It is serious to the
Negroes in this district, nine times as
serious as it is to the white pupils
and maybe more because they may
not be as well able to take care of
themselves if an impasse occurs in the
public education affairs of the dis
trict, and the people of the district,
after all, have lived there for at least
90 years in what my associate called
a bi-racial society.
That has been a long time to de
velop habits and relationships toward
each other, and there has to be some
opportunity as we see it, for com
munity acceptance of this idea. We
think that that is an important con
sideration in the employment of the
discretion of the court of equity
which, after 90 years, has established
the unconstitutionality of their school
system.
It seems that it would be reasonable
not to try to establish a six-month
time limit or a 12-month time limit
or an 18-month time limit but to rely
on the district courts in the states
and particularly the court that this
district is in to receive representa
tions from the citizens both white and
Negro as to what the best interests
of both classes of children in the dis
trict might require in the way of
handling its school affairs.
The Chief Justice: I was thinking
of what Mr. Rogers said his sugges
tion was, that perhaps these attitudes
that he relies on could not be changed
until 2015 or 2045. I wonder if the
decision of May 17 last year would be
of much value to these people if they
waited until 2045 for that change in
the attitude of these people.
Mr. Figg: I do not hardly think that
time element is going to be—I never
have thought it was involved in the
disappearance of the institution of
segregation in the southern states.
But the southern states have not been
so far behind the time table of those
who in other sections of the country
have had the same problem and end
ed it in their own time....
We just do not think these people
should be treated as an example or
as a theoretical case, or as you may
say, we just passed it as an act to be
applied in all the states or in all
school districts. This is personal and
present to the trustees, their problem
is. . . .
So that we respectfully suggest, if
your Honor please, that what con
cerns us is that counsel in this case
is not avoiding or getting around or
rearguing your decision, but it is
whether that decision, unless the
things that we are aware of and are
concerned about are given a chance
to be presented to the court in an
orderly fashion without limitation
upon the traditional equitable juris
diction which we think the district
judge is as capable of properly using
as any court in the Federal setup. We
say this is a school district in which
it may well prove impossible to have
unsegregated schools in the reason
ably foreseeable future.
The Chief Justice: And on what do
you base that conclusion?
Mr. Figg: Failure to allow oppor
tunity and time for community ac
ceptance of the idea, on the large
numbers involved, on the long bi-ra
cial society that has developed there,
and there is other evidence in the
community of course. We can look to
see how much acceptance is going to
have to be achieved....
I do not say that it is going to be
easy anywhere in South Carolina. The
history of the way of life there, the
bi-racial society that my associate
spoke about, of course, has been
maintained for nearly a century,
since the war, and it is going to be
difficult to be able to obtain com
munity acceptance of that every
where.
As counsel in this case what wor
ries us is the fact it may be impossi
ble to obtain that without some time
to do it.
The Chief Justice: On the other
hand, do you argue that we should
wait until attitudes have changed,
until compliance with the opinion of
the Court is had?
Mr. Figg: No, I do not say that you
should wait at all on that. You see,
all we suggest is that the proper court
to be considering this matter is not
this court, because it does not have
the opportunity to consider the evi
dence and to consider the circum
stances. If you lay down such a time
as the other side has asked you to do,
you are not considering this district,
you are considering a general prob
lem that is not involved in our par
ticular litigation, and we approach
this as a lawsuit.
The Chief Justice: It makes a con
siderable difference whether the
school district is making a valid effort
to comply with the decisions of the
court or whether it is exercising
every effort that it can put forth to
prevent it from becoming a reality. I
understood from Mr. Rogers that
your school district there and your
people, because of your attitude,
would not permit white and colored
children to go to school together, not
withstanding the opinion of this
court. Now when it comes to remand
ing this to the court below, do you
not believe that it is essential for us
to take into consideration, since it is
a court of equity, whether there is an
attempt to comply or an attempt at
frustration?
Mr. Figg: To speak frankly, I think,
if the case were remanded in the
usual course, for action in the local
court upon such considerations as ad
vanced, it would advance public ac
ceptance, the action which this court
would take. I believe, if it was set
down almost like a legislative act,
that it would retard public accept
ance. You asked me that?
The Chief Justice: Yes, and that is
a very fair answer. Let me ask you,
do you not think that it might be of
some value to the court below to have
some guidance as to the manner in
which progress can be expected?
Mr. Figg: My conception was the
other way, if your Honor please. My
conception was that the district
judge would sit as he does in many
cases, in full possession of his equity
powers and if it was thought that he
misused them, one side or the other
would complain. I think he would be
better off if he may fully consider the
situation. It would mean the public
would feel better about it. I think
definitely one of our major problems
is public acceptance. I am talking
about every part of the country when
I say that that has been the prob
lem. ...
We have great belief in the fact
that the evolutionary process has
done a very, very good job. It is still
a matter that anything that forwards
public acceptance of this undertak
ing and doing this job is going to
speed the day.
SOUTHERN SCHOOL
I think if you ordered the trustees
tomorrow to comply or else, that that
would destroy the public school sys
tem of South Carolina.
Argument On Behalf Of
Prince Edward County
School Board Et A1
By A. G. Robertson
If the Court please, Virginia has no
plan, no panacea for the complete
solution of the segregation problem.
We can not foresee any definite future
date when it can be completely
solved.
What we are up against, of course,
is that government is determined
upon the consent of the governed and
many people in all parts of Virginia
have expressed their unwillingness at
this time to consent to the compul
sory integration of the races in the
public schools. . . .
What we are up against is that
neither a court decree for that matter,
nor an executive order can produce
the result which is opposed by a
united majority in the place where it
must be enforced. . . .
As the court said in the Virginia-
West Virginia Debt case, the State
cannot be expected to move with the
zealotry of a private individual. It is
Richmond Times-Dispatch
A. G. ROBERTSON
Attorney for Respondents
enough if it proceeds with all speed
and to adjust Virginia to the decision
of May 17,1954, the General Assembly
of Virginia must consider and must
enact new legislation and, of course,
this Court must grant time adequate
for that.
The next session of the General As
sembly of Virginia convenes in Jan
uary, 1956. Though the rights are
personal and present, the allowance
of an immediate remedy in a court of
equity is within the discretion of the
court in view of the circumstances of
the particular case before the Court.
This Court has the power to permit
adjustment to new conditions which
presents many problems in Virginia
and Prince Edward County.
VIRGINIA NO ‘CULPRIT’
That power is conceded by all the
parties to this action and the Attorney
General of the United States, we
understand now. Virginia does not
appear before this Court as a con
victed culprit to be punished for
wrongdoing. Segregation was de
clared legal in Roberts vs. City of
Boston in 1849 and in some cases the
separate and equal doctrine was
promulgated in Plessy vs. Ferguson
in 1896, that doctrine was not repudi
ated until May 17,1954.
At least—I say it with deference—
it took this court more than 60 years
to change its mind and decide that
segregation was illegal per se, and it
would seem now that justice would
require that Prince Edward County
and the State of Virginia be afforded
fair opportunity to adjust itself to this
revolutionary decision. . . .
We come now to the evidence in
this case. The evidence of record in
this case applies to the effects of seg
regation. There is not a scintilla of
evidence in this case now regarding
the effects of desegregation. Much
has been said of the emotional and
psychological effects of segregation
upon Negro children. What we are
confronted with now and concerned
with now are what the emotional and
psychological effects will be upon the
NEWS—May 4, 1955—PAGE 15
white children. In Charles City, with
in 25 miles of Richmond, the Negro
school children outnumber the whites
3 to 1. And whites constitute the mi
nority group in Prince Edward
County. Fifty-five per cent of the
school children are Negroes. . . .
The greater the percentage of Ne
groes in the community, the more
difficult the problem of desegrega
tion. . . .
Justice Minton: If a deadline was
fixed in the decree entered by this
court of 1956, what would be the at
titude of your people?
Mr. Robertson: I think they would
be greatly hampered. I have no au
thority to speak in that way for any
one but myself. My feeling is that, as
I will come to that in a moment in my
argument, that if this case was re
manded to the District Court without
instructions, other than to proceed in
conformity with the opinion delivered
here on May 17, 1954, as rapidly as
can be done, without serious jeopardy
or impairment of the public school
system of Virginia, then the district
court in its normal process with this
case serving as a precedent for all the
state, would bring about desegrega
tion in the different localities in the
state as rapidly as could reasonably
be done and as the law could be en
forced. . . .
The general level of educational ca
pacity and attainment must be deter
mined. Standard reading tests of
31,000 Virginia school children in
eight grades for the school session
1950-1951 showed that the lowest 25
per cent of white students were fur
ther advanced than the highest 25 per
cent of the Negro students. . . .
I know that it may be said, well,
that is your fault, you denied them
opportunity, you denied them equal
ity. It is the result of environment.
We think that is irrelevant in this
case. We are not aware of any un
fairness or inequality and we are not
responsible for that. . . .
We come now to the consideration
of the decree. We say that this Court
should not formulate a decree, a de
tailed decree and this court should not
appoint a special Master.
We think that this court should re
mand the case to the court below and
direct that court to take further evi
dence to determine a program for
effective enforcement of the decision
of May 17. . . .
If this court enters a detailed de
cree now, the decree will be based
upon issues developed in the briefs
of counsel and through the assertion
of facts made by the counsel.
It will be based upon general no
tions of propriety, not upon the testi
mony of witnesses. It will be entered
upon undetermined issues, without a
hearing upon the issues, without evi
dence and without cross examina
tion. . . .
SUPREME COURT REMOTE
This court is remote from the scene.
On the other hand, the court below
clearly has much greater familiarity
with local conditions than this court
can ever acquire.
The court below in pretrial confer
ence could confer with counsel, with
school authorities and with others. It
could consider administrative pro
grams here and formulate an approp
riate decree.
The court below should be free to
supervise future action in Prince Ed
ward County and enforce the de
cisions of this court as speedily as
may be done, consistent with the
maintenance of the public school sys
tem in Prince Edward County. . . .
We agree with the attorney general
of the United States that no decree
should be entered now in this court
providing that Negro children shall
forthwith be admitted to schools of
their choice. . . .
We differ with the Attorney Gen
eral in that we believe that no specific
direction should be given to the court
below for all the reasons I have stated
and that no definite time limit should
be set. Any specific directions to the
court below will crimp its effi
ciency. . . .
There is no short or easy path to the
solution of the segregation problem in
Virginia. New phases of the same
problem will continue to be present
and the generations of litigation that
Mr. Justice Jackson apprehended
when these cases were decided here
before cannot be forestalled by any
action of this court now. . . .
This Court cannot tell Virginia
See EXCERPTS on Page 16