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SOUTHERN SCHOOL NEWS—June 8, 1955—PAGE 21
Excerpts
Continued From Page 20
a e 3 of our written amicus curiae
^ef, filed in behalf of the State of
Arkansas “i these cases.
‘ We there stated that nothing con
ned in our brief is intended to
br ing into question the directness of
•he May 17th ruling of this Court or
jts reasons for reaching that conclu-
sioD.
\s we now view these cases, it is
wholly immaterial whether the de
cision was right or wrong, advised
or ill advised, or timely or untimely,
jt ^ now accepted as the law in Ar
kansas that in the field of public
education the doctrine of separate
but equal has no place, as was spe
cifically held by this Court in its de
cision of May 17th .. .
I am not here in obedience to any
specific mandate or command from
the General Assembly of Arkansas or
from any branch of the Executive
Department of my State. I am not
here because of any political pres
sure, or pressure of any economic
group or any progaganda of any kind.
TO PRESENT VIEWS
But I here because I honestly and
sincerely conceive it to be my sworn
duty to present to this Court the
views of what I believe to be a ma
jority of all of the people of Arkan
sas on the complex problem which
affects substantially all the people of
Arkansas in their daily walks of
life . ..
Without intending any adverse
criticism of the attorneys general of
several segregated states who have
not seen fit to appear in these cases,
yet it is my personal view that I
would be derelict in my obligation
as a member of the bar of this hon
orable Court to completely ignore
what I choose to consider as an in
vitation from this Court, an invita
tion this Court was under no obli
gation or duty to extend and one
which, as I believe, is very rarely
extended . . .
It is pointed out on Page 6 of our
brief that two Arkansas school dis
tricts have already integrated the
white and Negero children in the
public schools, the integration being
total as to one of these districts and
only partial at the high school level
in the other district.
We were advised by the state board
of education just before we left Little
Rock that there had been no other
■nauguration of any form of segrega
tion in this state by any of the school
districts.
Justice Reed: Did you have a law
,n ^ r kansas forbidding integration?
Mr. Gentry: We have had such a
s«te statute, Mr. Justice Reed, since
prohibiting integration of the
fanes from the first through the
^elfth grades.
Justice Reed: And was that re
pealed?
Mr. Gentry: No, sir, that has not
ken repealed.
ustice Reed: These school districts
ct ed, then, under the belief that that
no longer a valid law?
i *,. r ' Gentry: They acted under the
j * . that by the doctrine of stare
tio * Ihat in the event that the ac-
n should have been taken against
that 1, *° r vi °l a b° n of the state law,
, “ would have been thrown out
0Ur Supreme Court.
^RETAITON of law
tom ’ aS a ma tter of fact, as the ai
e y general of the state, I assuir
Prosecution in the Suprerr
not in the lower courts,
hourt,
jJ] , ouv IV W VI v>vui to, A
Honour' 1131 Cases ’ and frankl y- Yor
befo r * Wou ld have confessed err<
, e 0Ur Supreme Court if the:
of *t- een an y conviction for violatic
Mr j Rbyetteville School Distric
tlce Frankfurter, is located :
that h gton bounty, Arkansas, ar
Unive^f 61 ? 5 to ke w bere the Sta
there lty * s l° cate d- In that distri
stud-nf 1 ® a PProximately 68 Negi
grade tT 0 " 1 the lst to the 121
school i ere , was no Negro hig
01 m that district...
landed j When tlrls decision wi
in the ),• < r vn ’ tke eleven or tweh
Partial] . sc lr°ol there, which w;
Cou^ integrated in Washingtc
With th’ c 6y Were Pl ac e<1 right i
dents fu or so high school sti
’khts'fv. 6 , wk lte high school stt
j. ere in Fayetteville.
’ the Other district, tl
THOMAS J. GENTRY
Charleston District, is in Franklin
County, Arkansas, which is one of
the sparsely populated counties, and
there were only a few Negro pupils
there, and, of course, there was no
particular problem. It was, as a mat
ter of fact, less of a problem to inte
grate them than it was to keep them
separated, and as a result in that sit
uation they were immediately placed.
That was the situation in these two
instances.
QUIETING EFFECT
I might say, Mr. Justice Frankfur
ter, that that has had a very quieting
effect in Arkansas. It has been
watched with a great deal of pleas
ure by a lot of people, and the out
come of it is being watched very
closely by the other districts, but
there have been no untoward inci
dences and it has worked very well
so far....
May it please the Court, why is
gradual integration necessary? We
do not consider it necessary or even
appropriate in this oral argument.
To repeat our several contentions
as set forth in our brief, we are con
tent simply to say that this Court
should enter such decrees as will per
mit these cases and other similar cases
which may hereafter arise to be de
termined on the basis of the partic
ular facts than shown to exist, rec
ognizing, of course, in all cases that
the rights as distinguished from rem
edies have been adjudicated. . . .
So when this Court comes to de
cide the terms of the decrees in these
cases, I respectfully urge this Court
to remember Mr. Justice Holmes’ ad
monition that traditions and habits
of centuries were not intended to be
overthrown when the 14th Amend
ment was adopted, and that the de
crees should be so framed as to tide
over a passing trouble. . ..
In this litigation one side has said
that what we need is an immediate
and forthwith decree which will take
effect in September, 1955 or not later
than 1956. Then other statements have
been made on the other side that this
matter not be accomplished until
2045.
My guess in these cases is that the
date would be somewhere in be
tween, as is in most cases the posi
tion taken by opposing sides and op
posing lawyers.
DATE UNCERTAIN
I don’t know the exact date. I
don’t think it is possible to determine
an exact date. I think that any guess
or any statement of an exact date
would be purely a guess.
But why guess upon a question
which is as important as this, when it
is not necessary.
Now, it seems to be logical we
should charge the court of first in
stance with the responsibility of car
rying out the mandate of this court
and placing the mandate of this Court
into effect and, secondly, to give the
court of first instance, along with
the responsibility, the authority to
do what is best under the circum
stances in carrying out the mandate
of this Court....
It must always be remembered that
if there is any abuse of discretion,
these people have their right of ap
peal to this Court, and certainly upon
aim .very week we have some alle
gations of abuse of discretion by
courts below brought to this Court.
It is not a new or a novel thing. But
I do believe that the redress of the
grievances of these people will be
better, more promptly taken care of,
by referring this matter back to the
courts of first instance for solution.
Secondly, this Court might well
leave some of the problems of inte
gration to the Congress. After consid
erable reflection on the subject, since
the filing of our written brief, I am
still of the opinion that some of the
problems of integration might well
be worked out through appropriate
legislation by Congress, pursuant to
Section 5 of the Fourteenth Amend
ment.
Justice Douglas: You refer to fu
ture litigation?
Mr. Gentry: Yes, sir, Your Honor.
MANY SUITS FORESEEN
MAC Q. WILLIAMSON
What we who are not parties to
this particular case have to look for
ward to. I, as the Attorney General
of Arkansas, have to look forward to
the possibility—not a probability, but
a possibility—of 422 separate lawsuits
in my state, a multitude of litigation.
I think that the Congress might well
assist in the problem which confronts
the nation....
For example, as the Court stated in
its opinion, the public school educa
tion is one of the most, or the most,
important functions of the local and
state governments. At the present
time, in the opinion of this Court, the
Supreme Court, on the part of the
Federal Government, is now advising
the local and state government how it
must administer this function of the
local and state governments.
Now, if the Fourteenth Amendment
—and the Court has already said that
the Fourteenth Amendment includes
that, then it is also a Federal prob
lem as well as the state and local
problem.
And by enactment of the Congress
outlawing, for example, the depriva
tion of the constitutional rights un
der the Fourteenth Amendment by
refusing to allow someone to go to
an integrated school would be pun
ishable by a fine, I think it would
have a deterring effect upon any vio
lation, and it might be well that that
is the solution rather than the de
crees of this Court and the lower
court in specific instances.
Now, it has been held by the Court
that there has been a violation of the
Fourteenth Amendment, then the
Congress can pass an Act saying that
the violation of the Fourteenth
Amendment in this particular respect
is unlawful, place what penalties it
wishes, and if somebody wilfully vio
lates the law, then you not only have
the courts to assist in the enforce
ment of this, but the criminal courts,
the courts of equity, and the full
power of the law enforcement of the
United States Government, as well as
the Judiciary. That is the point that
I was making.
REACTION TO VARY
There are many sections of Arkan
sas where integration in the schools
will be worked out promptly and
without the necessity of the super
vision of any court, and regardless of
what is contained in the final decree
of this Court.
litigations currently being considered
by the Court, I would like to say
that Oklahoma is keenly interested
in the principles heretofore enunci
ated by the Court of May 17,1954, and
we are further interested in the prin
ciples which will follow in due course
this year.
We filed a very short brief herein
upon invitation of the Court, for
which invitation we are grateful. Our
brief pointed out principally, Your
Honors, the fact that Oklahoma has
a unique, different system of raising
funds for the support of our separate
schools, and I may say at this point
that Oklahoma, having been admitted
into the Union in 1907 as the 46th
state of this Union, had in its Consti
tution, imbedded in the Constitution,
the principle of compulsory segrega
tion in the common public schools
of Oklahoma. That has been the rule,
the constitutional rule, in our state
since 1907, and it is compulsory.
So when the occasion came for this
Court to promulgate the Opinion of
May 17, 1954, that Opinion posed at
once a question involving the fiscal
arrangement of our funds for public
schools, and we met that question in
due course, as I shall explain.
FISCAL PLANS
In our brief filed in November of
1954,1 said to the Court that our State
Legislative Council, which is an or
ganization consisting of the entire
current membership of both the Sen
ate and the House of Representatives
of the State Legislature, was giving
careful and studious consideration to
the impact of the May 17th decision
upon fiscal arrangements of the State
of Oklahoma and drafted, as they are,
into the Constitution, providing for
funds to run separate schools.
So upon the convening of the regu
lar 1955 session of the Oklahoma
Legislature, which did convene on
January 10, 1955, and which is cur
rently in session and about to wind
up its duties, that Legislature, among
other things, passed a resolution sub
mitting to the people of Oklahoma at
a state-wide election the question of
whether the people of Oklahoma
wished to and would amend their own
Constitution, taking out of our Con
stitution the segregation provisions
for the raising of taxes on a basis of
four mills to the dollar upon all the
taxable property of the state, to be
devoted to separate schools.
On the other hand, there are many
sections of Arkansas where the Ne
gro population is relatively heavy,
and it is in these sections where
there will have to be close super
vision of some sort. It is in these
sections, in my opinion, it will be ex
tremely inadvisable for this Court to
fix any definite deadline for the com
pletion of integration.
During the transition period it will
be my purpose, both officially and
unofficially, to assist in every possi
ble manner in bringing about com
plete transition without any unpleas
ant incidents. . . .
Argument On Behalf Of
The State Of Oklahoma
By Mac Q. WILLIAMSON
Attorney- General
^LTHOUGH Oklahoma is not a
party contestant in any of the
That question was submitted to the
people of the state, and on April 5,
1955, that being the date called by
the present Governor for the submis
sion of the question, the statewide
election was held.
I may say to the Court that the
people of Oklahoma responded with
more than 300,000 votes cast, perhaps
nearly 350,000, and the question of
removing the segregation feature as
a constitutional feature and substitut
ing therefor an amended constitu
tional section providing that the
money so levied would go into what I
may call a common jackpot for the
distribution county-wide for the
benefit of all children, based on an
average daily attendance of the fiscal
year preceding.
APPROVED 3-1
So this election, having been held,
showed that the people of Oklahoma,
by a majority of 3 to 1, adopted and
ratified that change, the spirit and
significance of which was to take
segregation out of the Oklahoma State
Constitution.
So I point out that Oklahoma has
already made substantial progress
along the lines of putting our house
in order, fiscally speaking, and I may
say further that the fiscal question
was the principal question which
stood as an obstacle in the way of this
plan for proposed gradual change
over . . .
Mr. Chief Justice, Your Honors,
when the Court arose yesterday, I
was speaking among other things
about the features of the amendment
which was adopted by the people . ..
There will be a burden thrown on
some small rural districts in this state
because of the fact that colored chil
dren are in some cases transported
by the buses many miles and there
may be a disposition of the rural
school boards to cut out that charge
and let these children go at home.
There will be a national shifting
of the personnel of the minor popu
lation, school children population
here and there and the basis on which
that will be taken care of is by up
ping of five mills of the debt limit
on bonds voted by the district. That
is planned to take care of the need of
some school districts for great public
improvements, greater than they
could pay for under the old sys
tem . . .
THE BIG QUESTION
In Question No. 4, as propounded
by this Court some several months
ago, providing as it did for (A) and
(B), which have been alluded to by
some, both lawyers and laymen, and
without levity, is the $64 question,
while the immediate impact of that
question, as answered here in this
litigation by this court will not reach
Oklahoma and many of the other so-
called segregation-practicing states,
yet we feel that it would be perhaps
unfortunate and we feel that perhaps
we should speak out against any pro
posed deadline now forthwith.
We feel that we should speak out
because of the impact potentially
which it may have on some of these
segregation states in the future.
We feel that we should speak out
at this time upon the question of an
effective gradual adjustment, because
we see in this historic occasion before
this Court, we see balanced here the
rights of young colored minors who
wish to go to the school of then-
choice and we see over as against that
a tremendous public interest where
men and women, the fathers of chil
dren, boys and girls are disturbed
and vexed and are apprehensive and
we see them having the tremendous
public interest themselves in this sit
uation . . .
It is our considered and earnest
view that public officials as we are
in Oklahoma trying to do our duty
trying to go along with a Governor
who staked his personal and profes
sional reputation with the people of
our state on adopting this bill—and
that is Answer 3—school officers, state
officers, all over the segregation prac
ticing states honestly and earnestly
endeavoring to try to fit this thing
together—we feel here might be a bit
of a potential stigma on any dispo
sition to give a man a deadline or
especially where the courts are open
and active and vigorous and no sus
picion is cast on the trial courts as
to their ability to take care of situa
tions . . .
Argument On Behalf Of
The State Of Maryland
By C. FERDINAND SYBERT
Attorney - General
YYTITH your Honor’s permission, on
behalf of the State of Maryland
I desire to express to the Court my
thanks for this opportunity to appear
and assist in the resolution of these
momentous questions. I call the
Court’s attention to the effect that he
Amicus Curiae brief filed herein on
behalf of Maryland was prepared and
filed by my predecessor in office, At
torney General Edward Rollins whom
I succeeded last December.
See EXCERPTS on Page 22