Newspaper Page Text
SOUTHERN SCHOOL NEWS—August 1955—PAGE II
Proceedings
(Continued)
here plainly require operation for the
next session on a segregated basis?
That brings me to number five,
which is the ultimate, crucial ques
tion and which was, so far as we
could find, not argued in the way we
have in mind in South Carolina at all.
JUDGE DOBIE: It was argued in
very great detail.
MOORE: I have not stated it yet.
JUDGE DOBIE: It was argued
very fully by Mr. Marshall and Mr.
Figg-
MOORE: I am sure whatever they
argued, they argued ably.
Fifth, Are the defendants, in this
declaratory judgment proceeding and
in a court of equity, entitled to have
the guidance of the court in continu
ing to operate for another year as
heretofore, or do they have to close
the schools to be safe? Or operate at
their peril so far as contempt pro
ceedings are concerned?
... As to this question of deliber
ate speed, what is the significance of
that requirement in the mandate of
the court? We get some light on that
which is very interesting in two cases
in the Supreme Court of the United
States, one in the opinion of Mr. Jus
tice Holmes in the famous litigation
between Virginia and West Virginia,
in the debt settlement, and the other
in a dissenting opinion by Mr. Justice
Frankfurter, later. . . .
Mr. Justice Holmes said:
“A question like the present should
be disposed of without undue delay.
But a state cannot be expected to
move with the celerity of a private
businessman; it is enough if it pro
ceeds in the language of the English
Chancery, with all deliberate speed.”
That seems to be the source of that
phrase. . . .
Mr. Justice Frankfurter . . . used
this striking illustration about trying
to make speed in important litigation
like that:
“In any event, mere speed is not a
test of justice. Deliberate speed is. The
deliberate speed takes time. But it is
time well spent.”
JUDGE DOBIE: As a matter of
fact, deliberation and speed rather
contradict one another, do they not?
MOORE: The Supreme Court
seems to have taken deliberate speed
m considering it, anyway.
JUDGE DOBIE: That is the ex
pression they used; I want to use it,
too.
MOORE: We made considerable
law in this matter in the briefs be
fore the Supreme Court of the Unit-
e d States. As you probably know, op-
posing counsel took the position
before the Supreme Court that dead-
ffaes should be set. They first pro
posed September 1955 for compliance,
arid then as the argument proceeded
1o« firmly moved up to September,
JraB as a time for compliance. Judge
f'obeloff, representing the govem-
n ? en * ; > took the position that there
j ou ld be a plan filed within ninety
ays but with no time limit as to ulti-
ate compliance. We took the posi-
10 n that the whole matter should be
sot back to Your Honors with no
tUlle limit.
Now, what does it mean as to delib-
te speed? Can we look at what the
P re f e Court, itself, did as some
„ ,°r guide as to what might be re-
r ed as deliberate speed?
q u let me turn to the second
y estl °n. The second question is, as
° n ° rS W *N reca ll> m the opin-
mn 41l e Supreme Court said there
t}j e . e , first, a start and then, if
dist * 3 s ^ ar *" ruade, it is up to the
court to determine how much
e ^ reasonably required ... Take
level * >lcture an< l look, at the local
’ at what is being done. Could
don p rri ^ rG Ire done than what has been
ti^, °y these local school authori-
DOBIE: What single step
th 6 c ey ^ken toward carrying out
MnrX>^, me Court’s mandate?
fag te this—but I am com-
for th at ’ s f-ate has taken action
Wa/ m ' ? le state here is a party, as
JUnr^ ^ South Carolina.
you think
M00f>p S any difference?
behalf , . state was acting on
the „ 0 Itse lf- The papers show that
ernor’s 32-man commission
has found and the governor and the
local board have found that the local
authorities are powerless to proceed
in the matter any faster...
As we all know and as indicated by
the papers read, there will have to be
a session of the legislature very short
ly called to act on this matter, and
until that is done there is not a coun
ty in Virginia or a school board that
can appropriately act in that matter.
We say there has been a start made,
plainly, by the state as a defendant
on behalf of most of these local au
thorities.
JUDGE DOBIE: Is it fair to state
that every step that has been taken
has been a step to insure segregation
for one more session?
MOORE: May it please Your
Honor, I think that takes a rather
comprehensive answer. The steps tak
en by the state undoubtedly look to
ward minimizing the impact of com
pliance with the decree. Now, that is
where our friends on the other side
and we differ so sharply. They take
the view that these children ought to
be treated very much like you would
take a pack of cards and just shuffle
the cards and then distribute the chil
dren proportionately, like you would
distribute a hand of cards ...
JUDGE DOBIE: The question
would properly arise, wouldn’t it, if
you shuffle the cards, Who is going to
get the ace in the hole?
MOORE: That is right, sir, and
we are afraid they might get it if it
would happen that way. On the other
hand, there are extremists, as Your
Honors know, who say that the only
practical way to deal with this prob
lem is just to close up the schools.
Now, there lies in between those two,
really, the practical solution for this
problem, and that is what the state of
Virginia is seeking to work out...
Now, the third question: Is it with
in the intent of the Supreme Court’s
decree for the defendants, during this
interim period, to continue for anoth
er year on the same basis as in the
past? We don’t think there can be any
doubt about that. All we need do is
look at the opinion of the court. Why
should the court have referred to the
difficulties of removing these various
obstacles? As Your Honors will recall
—I am not going to take the time to
read very much of it, but you will re
member — there in two paragraphs,
the Supreme Court lists a great long
list of problems that have to be dealt
with and one of those is the need of
further legislation to make this thing
acceptable at all. That is what the
people of Virginia are struggling with
and that is what the court recognized
would require time and time would
be appropriate...
Now, if all of those obstacles were
recognized by the court as problems
to be considered, what are we going
to do in the meantime? Is it conceiv
able that we are just going to be put
in a state of paralysis? That opinion
can’t mean anything except, as we
proceed, the schools shall continue as
best they can.
Now, I was struck by this phrase in
the order that Your Honor, Judge
Dobie, participated in in South Caro
lina last Friday...
“That the defendants be, and they
are hereby, restrained and enjoined
from refusing on account of race to
admit to any school under their su
pervision any child qualified for such
school, from and after such time as
they have made the necessary ar
rangements for admission of children
to such schools on a non-discrimina-
tory basis with all deliberate speed
as required by the decision of the Su
preme Court in this case.”
... To me the court necessarily had
in mind that until such rearrange
ment could be made it would be per
missible to operate, so long as it was
done in good faith, along lines that
were practical and reasonable ...
These people refuse to recognize
anything except just whether there
are enough seats for children and
desks in Prince Edward County to ac
commodate them, but the Supreme
Court made plain that is not the
problem. What are we going to do in
the meantime? I think Your Honors
in the South Carolina decree faced
squarely up to that question, and un
til a bona fide arrangement could be
made on a non-discriminatory basis,
it was permissible to continue as is.
The fourth question is a very prac
tical one. Does the public interest of
this particular situation plainly re
quire operation for the next session
ATTORNEYS FOR THE DEFENDANT—Left to right, Archibald G. Rob
ertson, Attorney-General Almond and T. Justin Moore Sr.
on a segregated basis as heretofore?
As distinguished from South Caro
lina, we have brought Your Honors
in the greatest detail a full picture of
the situation over in Prince Edward
County... They have got (a unique
situation) in the sense that there are
ten Negro children for each white.
They did not present a situation of
fact and background to Your Honors
as we have done here today, showing
efforts that have been made both at
the local and the state level to fit in
with the framework of the decree,
and to fit into it does not mean just to
reshuffle these children like a pack
of cards, either. The court refers very
specifically to acting on the basis of
what is in the public interest...
That is what we appeal to Your
Honors to do.
•
That brings me to the fifth and last
question... I want to start out on this
fifth question with the question,
Whether or not these trustees at this
stage of the case, in this court of
equity, in a declaratory judgment
proceeding (that is what this is), are
entitled to guidance of this court on
this crucial question? As a matter of
fact... you have the further... ques
tion whether 3,300 school children in
Prince Edward County get a decent
education next year depends on what
Your Honors do on this next question,
and perhaps thousands more in Vir
ginia, because what is done there is
going to have its repercussions in
possibly 20 counties or more in Vir
ginia. These are not private litigants
that are represented here; they are
trustees; they are in a fiduciary ca
pacity. There is nothing for them to
do as trustees but come before a court
of equity and ask guidance in advance
of action...
I am trying to avoid reading from
this opinion any more than I can help
... but let me read a line or two of
what the Supreme Court said was
Your Honors’ duty on this question:
“In fashioning and effectuating the
decrees, the courts will be guided by
equitable principles. Traditionally,
equity has been characterized by a
practical flexibility in shaping its
remedies and by a facility for adjust
ing and reconciling public and private
needs. These cases call for the exer
cise of these traditional attributes of
equity power. At stake is the per
sonal interest of the plaintiffs in ad
mission to public schools as soon as
practicable on a non-discriminatory
basis. To effectuate this interest may
call for elimination of a variety of
obstacles,” and so forth.
Now, Your Honors, may I just be a
bit personal. May I ask that you put
yourselves in the position of one of
these trustees ... They are faced
with an impossible situation over
there, as these affidavits show, unless
they can get guidance from this court.
There is no threat involved in this
matter; it is just a matter of looking
at the facts of life as they are. I can’t
believe that these gentlemen on the
other side ever did believe that re
sults would be accomplished—and I
don’t mean it in any ugly spirit, but I
am distressed to find that apparently
their position is that they would rath
er see no schools in Prince Edward
County during the next year than to
have schools as they have had dur
ing all the years—unless they can
have the kind of schools they want.
Now, they may not like to have the
matter put just that way, but that is
the way it works out.
JUDGE DOBIE: I asked Mr. Mar
shall that specific question in South
Carolina. I told him, “If you were fac
ing a situation of this kind, would the
NAACP be satisfied to have public
schools abolished and no white or col
ored?” I said, “Would you be satisfied
with such a Pyrrhic victory as that? ”
And he said he would not. He assured
us down there ... that the attitude of
the NAACP would be one of cooper
ation and if they were assured that the
school authorities were acting in good
faith and really trying to carry out
the Supreme Court’s decree, the
NAACP would cooperate...
MOORE: Of course, we are inter
ested in the kind of cooperation they
mean, other than words.
Here are the figures—I got them
just this morning: There are 1,850
Negro children over there affected by
this thing. There are 1,450 white chil
dren. They are divided as follows: In
high schools, 500 Negroes, 450 whites.
In the elementary schools there are
2,350, of whom 1,000 are white and
1,350 are Negro...
Suppose Your Honors entered a
decree just as you did in South Caro
lina and these trustees decided, “We
will take a chance on going to jail or
suffering the penalties and we will
operate just as we have in the past.”
Nobody questions it would be just as
it has been in the past, except they
have a better Negro school than they
had before. Then, three or six months
from now, these gentlemen come be
fore Your Honors and file a complaint
for contempt. They say, “You are not
going forward in line with the Su
preme Court’s decision in good faith.”
They know the facts today just as
well as they will know them then.
JUDGE DOBIE: Can you conceive
that this court, with these men
brought before it, if they could con
vince this court that they tried to act
in good faith to try to implement the
decree—can you conceive of this
court’s sending them to jail?
MOORE: I can’t imagine it, Judge,
but I have seen judges do things I
never imagined they would do... I
was never more astonished in all my
life than I was when we did not get
a favorable decree from the United
States Supreme Court at the end of
the first argument.
JUDGE DOBIE: But this is not
the Supreme Court.
MOORE: I know, Your Honor. I
have great respect for Your Honors.
But the trouble is, that kind of thing
is like a sword hanging over a bunch
of trustees who have no interest in
this matter except to do the right
thing. And I don’t know what would
influence the minds of these gentle
men in the NAACP ... Now, why
should citizens functioning in a pub
lic way be subjected to that kind of
risk, when we are here before the
court today on just as good a basis as
we would be three or six months from
now? If we came back here and filed
a petition a month from now asking
for guidance of the court, would the
court be in better position then than
it is now? Certainly not. Your Hon
ors are in perfect position to give us
in a court of equity guidance which
we have got to have ...
•
ROBINSON: May it please the
court, notwithstanding the lengthy
argument that has already been pre
sented, the petition, and lengthy affi
davits, I still believe that counsel for
the plaintiff can be brief in presenting
their views with respect to the type
of decree that should be entered in
this case...
At the outset, I would like to have
the indulgence of the court in going
back, at the risk of some repetition,
to the May 31 decision of the Supreme
Court of the United States, because I
think reference to that decision, for
our purposes today, accomplishes two
things. First, I think it affords an
ample foundation for the type of de
cree that we ask of this court...
Secondly, I think reference to the
decision in and of itself supplies the
full answer to the requests and to the
arguments of counsel for the defend
ants relative to the type of decree that
they have asked of this court.
In that decision the Supreme Court
reversed the judgment that had
theretofore been entered in this case
by this court and remanded the case
to this court, in the language of the
Supreme Court, “to take such pro
ceedings and enter such orders and
decrees consistent with this opinion
as are necessary and proper to admit
to public schools on a racially non-
discriminatory basis with all deliber
ate speed the parties to these cases.”
We think the type of decree that we
will ask the court for is entirely in
conformity with this direction...
JUDGE DOBIE: Are you going to
ask for the same decree as was en
tered in South Carolina?
ROBINSON: Your Honor, we feel
that this case requires a decree differ
ent from the decree in South Caro
lina.
JUDGE DOBIE: All right. I just
wanted to know if you were dissatis
fied with the South Carolina decree.
ROBINSON: I wanted to point out
that we were not very happy with
the South Carolina decree when we
were there, and we felt that the stand
ards of this case would require a dif
ferent decree...
At the outset, I suggest again to the
court that the only school unit be
fore the court is Prince Edward
County. We are not concerned here
this morning with making a decree for
the state of Virginia; we are con
cerned only with the entry of the de
cree that will be appropriate to con
form to the Supreme Court’s deci
sion respecting segregation as it has
existed in the past in the public sec
ondary schools of Prince Edward
County, and we are of opinion and
submit to the court that if the de
fendants make such a prompt and
reasonable start, the necessary and
reasonable changes can be accom
plished in time to enable the admis
sion of Negro students to the public
secondary schools on a racially non-
segregated basis in September of
1955.
JUDGE DOBIE: You are not con
tending, are you, that the Supreme
Court decree requires integration?
ROBINSON: Our indication all
along has been that the decree re
quires the elimination of segrega
tion.
JUDGE DOBIE: But the word “in
tegration” does not appear—merely
negative.
ROBINSON: That is correct, but
there isn’t any question about that
under the Supreme Court’s decision.
JUDGE DOBIE: We are not rec
ommending it, of course, now, but if
all through the South they would
abolish the public schools, that would
be a perfect compliance with the Su
preme Court’s decree, would it not?
ROBINSON: That is a very diffi
cult interpretation —
JUDGE DOBIE: I don’t think it is
difficult at all. I am being just as
frank as I want you to be. There is
not a word in the opinion which re
quires integration; it is purely nega
tive. Do you mean to say that the
Supreme Court can compel a state to
establish a public school system?
ROBINSON: I am not—
JUDGE DOBIE: You prefer not to
answer the question, so go ahead.
ROBINSON: No, it is not that I
prefer not to answer the question; it
is that I am not certain what the
right answer to the question is. We
have been giving that question some
consideration...
I am aware, of course, that the de
fendants have stated generally that
there are some administrative prob
lems involved in effecting the transi
tion to a non-segregated high school
system in the county, but, as counsel
has admitted, I am not aware of any
lack of classrooms, I am not aware of
any lack of teachers, I am not aware
of any lack of equipment that would
apparently prevent the desegregation
of three public high schools in the
county by September of this year.
JUDGE DOBIE: I am going to ask
you another question. You have a
(Continued on Next Page)