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PAGE 20—June 8, 1955—SOUTHERN SCHOOL NEWS
Excerpts From ‘Friends Of The Court’ Arguments In April
More Background For You Readers
In the May issue, SOUTHERN SCHOOL News published excerpts
from the oral arguments before the Supreme Court in April by
counsel for the parties to the five school cases.
In this issue, arguments by attorneys-general or their assistants
from six southern states, and by the solicitor general of the United
States, all of whom appeared by invitation as “friends of the court,”
are excerpted.
Although the Supreme Court action to which these arguments
were directed was completed with the remanding of the cases to
district courts on May 31, they lose none of their timeliness. In the
opinion of the editors of SOUTHERN SCHOOL News, the arguments
excerpted on this and the following pages are even more revealing
since the Supreme Court substantially embraced the viewpoints ad-
vanced here.
Argument On Behalf Of
The State Of Florida
By RICHARD ERVIN
Attorney-General
piRST I would like to express ap
preciation for the opportunity to
be present and present the facts of
our amicus brief.
The decision of May 17 was mo
mentous and it had a very serious
impact potentially upon our Florida
school system.
We believe the answer to this is
that stated in Question 4-B, effective
gradual adjustment.
We feel that the legal justification
rests in equity jurisprudence con
sidering the progressive state of so
ciety, the public interest, and that
this Court should permit a situation
where sociological and psychological
factors can be considered as well as
physical adjustments in each situa
tion that comes before the courts for
adjudication.
We feel that no constitutional rights
are absolute but that all are exer
cised within the realm of the police
power, the public welfare and regu
lations for the best interest of the
people.
IMPORTANT FACTORS
In overturning the present decision
on the basis of advanced and psycho
logical knowledge, we feel that the
Court in any implementation pattern
RICHARD ERVIN
that it sets in these cases, particularly
in the South Carolina and Virginia
cases, that it should give considera
tion to psychological and sociological
factors in implementation.
The brief of the United States At
torney-General says, “The impact of
segregation upon children the court
found can affect their entire life as
to preclude their full enjoyment of
their constitutional rights. In similar
fashion, psychological and emotional
factors are involved and must be
met with understanding and good
faith in alterations that must now
take place in order to bring about
compliance with the court’s decision.”
PREPARATION NEEDED
We feel that he means that in the
implementation of the Court’s May
17th decision that consideration must
be given to sociological and psycho
logical factors, we think that in order
to do that, that there must be essen
tial preparation in the South, in the
various school districts of the South
to bring about some degree of public
acceptance and diminution of socio
logical and psychological factors
which militate against a nonsegre-
gated school system.
The Attorney-General’s brief then
says “General hostility is a relevant
factor to be considered in determin
ing the most effective method for
ending segregation in a particular lo
cality. School administrators have
an obvious concern in obtaining pub
lic support and acceptance of the
transition. Thoughtful preparation in
advance will resolve the problem with
as few disruptions as possible.”
Harry Ashmore wrote the book,
“The Negro and the Schools.” He
based it on the Ford Foundation
studies of education and he wrote, “It
is axiomatic that separate schools
can be merged only with great dif
ficulty if at all, where a great ma
jority of the citizens who support
them are actively opposed to the
move. No public school is isolated
from the community that supports
it, and if the very composition of
its classes is subect to deep-seated
and sustained public disapproval, it
is hardly likely to foster the spirit
of united effort essential to learning.”
SCHOOLS CLOSE TO PEOPLE
As we understand it, the school
system in the South is close to the
people and it is an important center
of social life in many of our Southern
communities. In arguments here, it
has been suggested that the Federal
Court could by decree handle the
situation without the cooperation of
state and local officials, that public
opinion of the community may be
disregarded, provided positive lead
ership and action of responsible pub
lic officials is extended on behalf of
the program of desegregation. . .
We believe that it is wise in these
cases where only the question is in
volved of race, that a decree remand
ing the case to the courts of first
instance and in the general directions
stating that the court will consider
not only physical adjustments but
sociological and psychological factors,
would be the right decree.
We feel on the other hand, that an
abrupt decision, one that sets a time
limit which could become the maxi
mum limit, that it would seriously
retard the efforts of all moderate, all
liberM-minded people in the State
of Florida, and would drive them
probably into the opposition camp. ..
MAKING EFFORTS
We are making efforts in our state
to work this out on a local basis. It
is true some of the counties, some
of the areas of the state are not
making that effort. Others are ...
We want the Court acting as an
executive council here at the very
top to write in these cases where race
is the sole question, that the lower
courts can take into consideration
the sociological and psychological
factors involved in the integration,
only for the transition period as well
as the physical adjustment that is
necessary, and then there will be the
arguments all along the way, that
is the Federal district judge or per
haps the state court judge, where
there is a dispute about administra
tive policy, to see whether or not
the quotas of the school administra-
tors m Florida and other areas of
the South-whether they are trying
to circumvent or whether they are
really trying to adopt these programs
ot human engineering to bring about
public acceptance .
We want an opportunity to show
this court that we can by local ac
tion, not by taking a vote but by peo
ple working with the school admin
istrators, the PTA, inter-racial com
mittees, talking this problem out, ar-
range some time of desegregation in
the school districts. We want to show
the Court that it can be done.
WORTH A TRY
If it appears that this idea of grad
ual adjustment under the great pow
er of the court of equity is not prop
erly received by the people of the
bouth, then the court can abandon
it But at least they should give us
the chance, just as you felt that you
had to strike down racial segregation
altogether in the schools because of
the modern advance, the psychologi
cal knowledge, then you should take
into consideration the psychological
and sociological factors and allow us
a period of grace to work on them.
We feel you have faith in your
decision that ultimately it will be not
only the rule but the accepted prac
tice everywhere. But to ruin the good
effect of this decision by abrupt de
cree is what we respectfully request
that you guard against. The Prophet
Isaiah said, “He that believeth will
not make haste.”
In this instance, this great prob
lem before us, we would like to ask
the court that you write a broad
decree remanding these cases under
your equity power and your power to
say that within the framework of
reality these rights of the Negro chil
dren shall be exercised in such a way
that they will not arouse our com
munities and that they will not result
in all kinds of trouble in the schools.
If you will allow us the opportu
nity to work under this decision, not
against some deadline, we feel
eventually we will bring about full
integration...
The Chief Justice: We thank you
for your cooperation and presenta
tion ...
Argument Oil Behalf Of
The State Of North
Carolina
By I. BEVERLY LAKE
Asst. Attorney-General
M AY it please the Court, speaking
on behalf of myself and the At
torney General of North Carolina.
I would like to express my appre
ciation for the opportunity to par
ticipate in the argument of these
cases, to which neither our state nor
any of our citizens was a party.
In response to the invitation of the
court, we are here as a friend of the
court. We have no reason to make
North Carolina a party to these cases
nor by anything that we may say
or do here to commit her or her peo
ple to any course of conduct. No de
cree that is issued under your au
thority in these cases can reach di
rectly any officer, agency, or citizen
of North Carolina.
But whether or not the children
of this state will or will not attend
public school after this year and
whether or not the people of North
Carolina will or will not continue
to live side by side in peace and
friendliness will depend in a large
measure on the decrees about to be
issued.
AT GRIPS WITH REALITY
To ignore those facts is simply to
shut one s eyes to reality, and if ever
there was need to come to grips with
reality, that need is present in draft
ing of these cases....
We are not here to re-argue the
issue disposed of last May, but the
proper discussion of the questions
which we have been invited here to
discuss requires that we start with
the frank recognition of the indis
putable fact that in North Carolina,
contrary to the conditions in Kansas,
North Carolina, there the over
whelming majority of people regard
that decision as a serious blow which
they did not expect in view of the
circumstances under which their
schools are being operated.
It comes as a terrific blow and
comments of the county and city
school superintendents which are
quoted in the Appendix to our brief
show that those people who know
the North Carolina schools best be
lieve that if such a decree should
fall from this court upon the schools
of our state, it would in all prob
ability be a death blow, and if not,
that it would put those schools in
turmoil and confusion from which
only the enemies of our country
could derive satisfaction.
I. BEVERLY LAKE
The people of North Carolina rec
ognize that this issue is too great for
hasty action. I speak on behalf of
a state which is conscious of no
wrongdoing in this matter. North
Carolina is proud of her record in
the field of Negro education. Today
North Carolina is, in fact, educating
more Negro children than any other
state in the Union and she is edu
cating them well. That is not the
result of an eleventh hour attempt to
avert the decision of last May. It
is the result of a century of devotion
to the cause of public education. . . .
There is nothing, we think, in the
decision of last May which requires
a decree that Negro children be ad
mitted forthwith to the schools of
their choice within the limit of their
normal geographic school district. On
the contrary, such a decree would go
far beyond that decision and would,
in our opinion, we respectfully sub
mit, go beyond the authority of this
or any other Federal Court. . . .
The Federal Constitution does not
confer upon the Federal Govern
ment, as a whole, authority to im
pose upon state officials affirmative
duties in the administration of the
state’s schools, and it certainly does
not give that power to the Federal
Courts. Of course, Congress is au
thorized by the 14th Amendment to
enact legislation to enforce the rights
guaranteed by that amendment. But
we submit that Congress has no au
thority to assign children to this or
that building owned and operated by
the State. . ..
So a decree such as is contemplated
by this Court’s Question 4(a) would
amount to taking the assignment of
children to the public schools in
North Carolina out of the hands of
the school board and placing it in the
hands of Negro children. And we
respectfully submit that that would
be as unconstitutional as it would be
impractical. ...
RACE DIVISION OUT
The Court has closed the road, as
I understand it, to a public school
system in which children are sep
arated solely on the basis of race.
And certainly this Court can issue
a decree forbidding a State from at
tempting to travel that road again.
But within those alternatives which
remain we submit, sir, that a state
has the right to choose its alterna
tive. ...
No counsel here has questioned the
fact that this Court in the exercise
of its equity powers which these peti
tioners have invoked has the author
ity to allow these defendants and
others similarly situated ample time
to find and put into operation an
adequate and constitutional substi
tute for their present method of as
signing children to the public schools
or an adequate and constitutional
substitute for their public school sys
tem as a whole.. ..
So in the exercise of its equity
powers this Court may certainly mold
its decree to fit the conditions in the
communities where those decrees are
operating. But we respectfully sub
mit that this Court cannot know and
cannot determine those conditions so
well as can the District Courts which
know those communities. . . .
Justice Harlan: Could I ask you a
question about your (state) com
mittee?
Mr. Lake: Yes, Sir.
Justice Harlan: You said your eo®
mittee had resolved that immediate
desegregation is impracticable.
Mr. Lake: Yes, Sir.
Justice Harlan: Is the committee
now functus officio or is North Caro,
lina going ahead to try to apply
Court’s opinion? In other words, are
you going to wait until a suit’has
been brought and North Carolina is
under the impact of judicial process
or is it your contemplation that y ou
will go ahead and try to work it out?
Mr. Lake: That committee has
ceased to function, but this resolution
which I am going to file with the
Court provided for the creation of
a permanent committee to continue
the study of the problems directly
and indirectly arising out of this de
cision.
FUTURE UNCERTAIN
Now, sir, as to the other aspect of
your question. I cannot say what
North Carolina will do because we
have had no pronouncement from the
Legislature as to what will be done
in the future. . . .
We have not yet had that time. No.,
I want to be completely frank, Mr.
Justice Harlan. I do not know, of
course, what the future will bring.
But so far as I know now, I would
say that the chance that North Caro
lina in the near future will mingle
white and Negro children in her pub
lic schools throughout the State is
eexceedingly remote. That is the rea
son that I have the gravest fear that
such a decree would result in the
abolition of our public school sys
tem. ...
North Carolina differs from North
ern and border states in this impor
tant circumstance. In North Carolina
we have no large metropolitan areas.
We have no large sub-racial groups,
such as are to be found, I believe, in
all large metropolitan areas. Conse
quently, everybody in North Caro
lina, practically everybody in North
Carolina, is either Anglo-Saxon or
Negro. As a result of that, we have
more consciousness of race in North
Carolina than is to be found in some
of the border and Northern States.
That race consciousness is not race
prejudice. It is not race hatred. It
is not intolerance. It is a deeply in
grained awareness of a birthright
held in trust for posterity. . . .
RACIAL HARMONY
The Negroes of North Carolina
know the difference between race
pride and race hatred. Every day
there is in North Carolina a demon
stration of the truth that two races
as fundamentally different as the An
glo-Saxon and the Negro, can live
side by side in freedom, security,
peace, friendship, mutual helpfulness.
If our State Department will only
use that demonstration of democ
racy in action in North Carolina, #
will be a more effective answer to
communism at home and abroad than
would a decree of this Court which
proclaims equality but destroys the
public schools.
I do not know what decree should
finally be entered in Prince Edward
County, in Clarendon County, be
cause I don’t know the conditions in
those counties. But I do know this:
I know that if a decree should be
entered by this Court, requiring the
immediate intermixing of white and
Negro children in the public schools
of North Carolina, those schools wd
be in the gravest danger of aboli
tion.
And the friendliness and p«a ce
which now characterizes the rela
tions of white and Negro North Car®'
linians would be supplemented by
racial tensions and bitterness and an
tipathies unparalleled in our stow
since those terrible days which call® 0
forth the original Ku Klux Klan. .
The people of North Carolina a^
convinced that a segregated schoo
system is a just school system, an
the only practical school system 0
their state....
Argument On Behalf Of
The State Of Arkansas
By THOMAS J. GENTRY
Attorney-General
It/TAY it please the Court, at &
very outset of my oral argume®
I should like to repeat for the P ^
pose of emphasis what was sai
See EXCERPTS on Page 21