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PAGE 8—August 1955—SOUTHERN SCHOOL NEWS
Proceedings
(Continued)
we operate under here says anybody
that denies anybody rights guaran
teed by the Constitution is subject
to laws and actions in law or equity.
And, just because somebody is vio
lating the law does not mean that the
other side wants redress. We have
done that all along, Judge Dobie. Go
outside the record in our teacher
salary question....
JUDGE DOBIE: Well, would you
answer my question directly? You
don’t have to. Would you say that,
during those two months under the
ideal conditions that I have imposed
as to X County, would you say that
during those two months they are
violating the law? When the Su
preme Court said it is going to take
time.
MARSHALL: I would say sir, that
on the basis of the May 31st deci
sion, they would most certainly not
be violating the law.
JUDGE DOBIE: All right. That is
all I wanted to know.
•
MARSHALL: And I say further,
sir, that, in situations like that, we
are in the frame of mind of cooperat
ing with such cities, for so long a
period of time as a year. And we
have been doing that in cases. But
I believe that the important thing in
any of these cases is the point that is
emphasized in the decision, which is
the good faith of the school board.
And this is most certainly not good
faith, when, pending this hearing,
while this hearing has been set, they
decide that they are going to run
their schools for another year on a
segregated basis. They decide and
come in here and present it to the
court as an accomplished fact and
then ask this court to approve that
or to not knock it down and then to
allow them to appoint a committee
and to study this problem. And the
study on this problem, there is not
one piece of testimony before this
court of the need for it...
I think that, when the burden is on
somebody to show just grounds for
delaying relief which we would
otherwise be entitled to, that that is
a burden that should be met with
competent evidence to the extent of
showing that there is one, reason for
the delay and two, that there is an
actual constructive plan, step by step
which will bring about compliance
with the Supreme Court’s decision at
some day certain. Otherwise, the
plaintiffs in this case are left without
any remedy that they can actually
know is a remedy. They have shown
no reason why they can’t open these
schools in September, except, as I get
it, that it would disrupt the school
system. Well, the Supreme Court
pointed out specifically in its opinion
that it should go without saying that
the vitality of these Constitutional
principles can not be allowed to yield
simply because of disagreement with
them...
The other one, they say is that they
will have to change the district.
Well, the record in this very case
will show that they changed to this
district in very short order, a matter
of a few weeks. Well, they can
change back to another district in
just as short order so that doesn’t
take time...
Number Two, they say there will
be a problem with the buses. The
only problem with buses is assigning
the children that are along the bus
route, without regard to race. Any
ordinary clerk on the office of the
school, as a clerk that is there could
do that. They have to census the
children, well, they census them
every year, that is no problem. The
teachers can do the census.
So, to my mind, to make myself
specific, this is not a plan and we
believe that we are entitled to have
a plan presented to this court which
will assure the compliance with the
decision at some time, whether it is
in September of 1955 or September,
’56, at some time. But that there is
assurance that, at some time there
will be compliance, full and com
plete, and that there is a start toward
compliance, which is to use the
language of the Supreme Court. This
petition does not present either of
these two and for that reason we
think it should be rejected...
I don’t believe that it is the type
of thing that this court could accept
and I would therefore respectfully
represent to the court that an order
be entered instructing the defend
ants in this case to either present a
plan at a day certain or to have the
children admitted as of the next
school term. And when such a plan
is presented, step by step, I say
frankly, I would be very glad to give
our best judgment on it, with the
idea of working something out on a
cooperative basis. But there is noth
ing here that gives us a working basis
to work on.
JUDGE PARKER: Have you com
pleted. If you have completed your
argument, I want to ask a question
of both sides.
MARSHALL: Yes sir.
•
JUDGE PARKER: The Supreme
Court has said very clearly that the
operation of schools is primarily a
matter for the school board...The
Supreme Court didn’t have to say
that but they did it any how. AH
that a court can do is to direct the
observance of Constitutional limita
tions. Consequently, for us to ap
prove or disapprove a plan doesn’t
seem to me to be germane to the
matters before us. Why isn’t the de
cree that is indicated here, the decree
that is called for here, a decree which
will forbid the discrimination in the
schools with respect to race from and
after time as the trustees may have
made necessary arrangements for ad
mission of children to such schools
on a nondiscriminatory basis, which
is to be done with “all deliberate
speed.”
That is the language of the Su-
preme Court...
MARSHALL: If I might... Judge
Parker, we have here a resolution,
which says that they are going to
operate for the next year on a seg-
gated basis, so that we know full
well that deliberate speed will not
be any sooner than the year ’56 and
’57.
JUDGE PARKER: Well, what I am
thinking about, Mr. Marshall is this
—suppose we enter a decree here
without approving or disapproving
this plan and they go to work at once
to bring about what they say they
have in mind. That would be com
pliance in good faith and you
wouldn’t question it. If. on the other
hand, they show that they are stall
ing and delaying and are not acting
in good faith, you can make a mo
tion to attach them for contempt.
MARSHALL: Well, how about
their making their reports like they
did in the other case?
JUDGE PARKER: Well, they don’t
need any reports. If they comply you
don’t want any reports.
MARSHALL: I would be the first
one to say so. But the thing that
actually; frankly, it is pointed out
that the court suggested that this
court consider the adequacy of the
plans as they come along.
JUDGE PARKER: I know, it said
that and that would come up on a
petition to attach for contempt.
MARSHALL: Well, as I see it, if
Your Honors please, the only thing,
as I said, is that they have agreed
that nothing would change then for
the next year and I think that we
are precluded within that year and I
would like something to be done
about that one resolution.
JUDGE PARKER: Well, let me ask
you this: As a practical matter, this
court can’t get itself in the attitude
of trying to run the schools.
MARSHALL: No sir.
JUDGE PARKER: That is a
hopeless undertaking. If we give a
general injunction, such as is con
templated, such as I have suggested
to you, enjoining them from and
after a reasonable time and they go
to work at once in an effort to solve
the problem, you wouldn’t contend
that they could do it probably in the
course of a week or two. You know
enough about running the schools to
know that couldn’t be done. If they
start to work now and get it done
within the next year they will have
done it about as fast as they could
do it, wouldn’t you say so?
MARSHALL: No sir. It can be done
between now and September and I
can cite you some large places where
it has been done, large towns. Kan
sas City for example or Baltimore,
Washington.
JUDGE DOBIE: Were conditions
similar there to those in this case,
you think?
MARSHALL: Sir?
JUDGE DOBIE: Are the conditions
in those localities, you think, similar
to those that are existing in this
case?
MARSHALL: The racial percent
age is no wheres near the same but
I take the position of a lawyer op
erating under the 14th Amendment
that the racial percentage one way
or the other is unimportant.
JUDGE TIMMERMAN: Do you
have any segregated schools in
Baltimore?
MARSHALL: As such? There are
some schools where there are no
body but Negroes still.
JUDGE TIMMERMAN: And you
have some where there are nobody
but whites?
MARSHALL: Right.
JUDGE TIMMERMAN: And the
ones in which you do have them
mixed is onlv iu c t a handful?
MARSHALL: Oh. no sir.
JUDGE TIMMERMAN: Isn’t that
correct?
MARSHALL: No sir, it is several
thousand and the faculties are also
mixed.
JUDGE TIMMERMAN: The facul
ties?
MARSHALL: They are mixed all
the way un to the Assistant Superin
tendent of Schools there is a Negro.
JUDGE TIMMERMAN: I am not
concerned with the faculties... I
am talking about the children who
are to be educated or who are to lose
the right to be educated.
MARSHALL: I don’t remember,
Judge Timmerman, exactly how
many but it is far from a token num
ber.
@
JUDGE PARKER: Here is what I
am thinking about. I think it is im
portant for schools systems of the
South to be preserved.
MARSHALL: And to work out.
JUDGE PARKER: You don’t want
and your adversaries don’t want and
I don’t want to see what Chief Jus
tice Hughes called delusive tactics
wreck the school system in any dis
trict. The Supreme Court used the
words “all deliberate speed.” It is an
old phrase, used in former decisions.
MARSHALL: That is right.
JUDGE PARKER: And has a well
understood meaning.
MARSHALL: That is right.
JUDGE PARKER: That is that
they must do it, not in haste but to
do it as soon as they conveniently
can work out the problems. That is
what it means. Now, why isn’t such
a decree as I have indicated the wise
decree from the standpoint of your
client as well as from the standpoint
of the community at large?
MARSHALL: If I may say so,
Judge Parker, our research shows,
and in our belief we pointed out that,
in the past ten years there has been
considerable scientific writing on the
Questions of desegregation, running
through labor unions, hospitals,
housing and schools. And the con
clusion of these people who have
studied this and, if I might say, Judge
Dobie, is that the postponement hurts
more than it helps. That is the far
weight of authority with very few
exceptions. Because the delay allows
people to get together and discuss
it and it sorta breaks into two sides.
When it is done as a final act once
and with finality, it tends to work
out.
JUDGE PARKER: I think there is
no question about that. But when
you take the final act, it must be
taken with deliberation, with knowl
edge of what you are doing.
MARSHALL: That was my sugges
tion, sir, about the decree, if it could
be this type of decree, that this is
what the judgment is, the laws are
unconstitutional, that the practice of
segregating on the basis of race is
unlawful and unconstitutional but
the operative effect of it is—injunc
tion will be postponed providing
that the work is done with deliberate
speed so that it is made final that
this court says that this must be
stopped.
JUDGE PARKER: Well now, that
is exactly what I suggested, I think.
I don’t think you heard what I did
say ... Let me read it again. I have
been thinking about this thing and I
have written it down.
MARSHALL: All right, sir.
JUDGE PARKER: Defendants be
and they are hereby restrained and
enjoined from refusing on account of
race, to admit to any school under
their supervision any child qualified
to enter such school from and after
such time as they may have made
the necessary arrangement for ad
mission of children to such school on
a nondiscriminatory basis which is
to be done with all deliberate speed
as required by the decision of the
Supreme Court.
MARSHALL: May it please the
court, as we understand it, this does
not in any way approve this. I mean,
I just want the understanding.
JUDGE PARKER: No, that doesn’t
approve or disapprove.
MARSHALL: Well, on that basis,
it seems, sir, from then on it is up
to the defendants to move with de
liberate speed and it is up to us to
watch and be satisfied.
•
JUDGE PARKER: What do you
say now, Mr. Figg?
FIGG: Your Honor, there is one
thing I am wondering about. That is
a very general decree. Your Honor
said that, if there should be com
plaining, if the court would hold that
it didn’t agree with the action the
trustees were taking, that they could
be attached for contempt.
JUDGE PARKER: That is an inci
dent of any decree.
FIGG: Well, I think the average
trustee would be very difficult to
persuade to open schools and run the
risk of punishment by this court for
contempt without something more
definite.
JUDGE PARKER: Well, if the
trustees are acting in good faith,
thev have nothing to fear.
JUDGE TIMMERMAN: Wouldn’t
the trustees have to take the chance
of elucidating what the Supreme
Court meant and then finally meet
ing the approval of the Supreme
Court as to elucidation.
FIGG: Take the chance?
JUDGE TIMMERMAN: Have to
take that chance.
FIGG: Well, they would take a lot
of chances, I think, if they proceed
JUDGE PARKER: What I am
thinking, Mr. Figg is this—I know
you want to operate the schools ...
And your adversaries too want to
operate them and I certainly want
to see them operate. My idea is that
a decree in these general terms, which
says nothing except what the Su
preme Court has said ... will give
the people of that community an op
portunity to work out their prob
lems. If they work it out in good
faith, why they have nothing to fear
from anybody, the court or anybody
else ... And if they proceed with all
deliberate speed to do it, even though
it may take a month or so or a year
to do it, this court has got sense
enough to know that they are pro
ceeding in good faith and I think
that ,if you proceed in good faith
that your adversaries may accept
what you are doing down there as
a satisfactory solution.
FIGG: If I were a trustee, I would
have to pre-suppose that the court is
going to agree with me or I’m pun
ished.
JUDGE PARKER: Well, if you are
a trustee, I would suppose you were
going to act in good faith.
FIGG: I know, but your idea of
good faith and mine may differ. You
may not always approve of what I
think to be good faith .. . And I think
that the limit of the power of this
court is to enjoin the operations of
schools that are not constitutional
and not to make an affirmative direc
tive to trustees on the pains and
penalties of contempt to do some
thing affirmative.
JUDGE PARKER: Well, we are not
doing anything affirmative.
FIGG: But you said that if you
came to the conclusion that they had
not complied with that very general
language, then they might be at
tached for contempt. Up to that point,
I think the decree that Your Honor
has proposed would be a beneficial
decree. But I don’t think it would
be one I would care to be under un
der the penalty of contempt because
the other side and the court might
disagree with my idea of good faith.
I think the decree should order that
in a little different language that
they be enjoined from operating
schools which are not in conformity
with the Constitution within a rea
sonable time, or something like that
JUDGE PARKER: Well, I don’t
think you listened to it.
FIGG: I listened to it.
JUDGE PARKER: That is exactly
what I have done except that I have
done this—in the decree I have gi ven
you time.
FIGG: I understand that. But I
don’t know when your idea of time
is going to run out. I’m saying that
seriously, Your Honor, that I have
got to assist in advising these trus-
tees. And I am not at all sure that
they would be comfortable with mv
explaining to them that we can prob
ably convince the court at any time
the question comes up that they have
been in good faith and haven’t taken
too much time ... I think the other
side should not be able to have them
cited for contempt next month or six
months from now or a year from
now; that there should be a proceed
ing in which the matter can come
before the court and the question be
adjudicated without their running
the risk of being in contempt of this
court. I hope I make you see what
I am envisioning.
JUDGE PARKER: Yes, I do, Mr
Figg. And what I am thinking about
is this ... we don’t want to put our
selves in the attitude of attempting to
run the schools of this state. We can’t
do it in the first place ...
We haven’t got the knowledge to
do it, we haven’t got the machinery
to do it. That has got to be done by
the school boards. All that we can
say to them is you must not violate
the Constitution ... in the running
of the schools.
Now, when we say that, unless we
put some time element in, why, they
would be violating the decree at
once if they didn’t abolish segrega
tion. Consequently, it is necessary to
nut this time element in. I don’t see
how you can put it in general
language that would protect both
sides in a better way than I have
suggested. If you can suggest a bet
ter way, I would be glad to hear it.
FIGG: It may be that another sen
tence . .. that gave leave to the de
fendants at any time to submit to the
court any matter that it saw fit.
JUDGE PARKER: Oh. I don’t want
them running to us with plans and
asking us to approve this, that or
the other. That is a matter for them,
not for us.
FIGG: Yes sir. Well, we don’t want
to have a lot of papers served on us
every time we are in a disagreemen
with the other side.
JUDGE PARKER: Well. I don't
imagine you will... Men obey t *
law and they obey the mandates o
the court and I haven’t any dou
that these people will.
FIGG: That, I am sure they would
but the difference then that intangi
ble quality of when one person ma>
think they have obeyed the law
their heart and the other one mat
think they haven’t; that is wha 1
worrying me.
JUDGE TIMMERMAN: What y°“
are worrying about, you don t
what the law is and they don t ei
FIGG: Well, I think, if Your H 0 ^_ r
please, I believe that we could
tition this court for instructions
for a declaration or something a ^
time we got into trouble or fe
were in trouble. ,
JUDGE PARKER: You could
that, of course. We have retaine
case on the docket.
FIGG: And then, if any 9 ueS '
came up that looked like they ' ^
headed into trouble, I imagine
proceeding then would be to ^
petition with you to convene a^
us present our problems to yo
JUDGE PARKER: I think so. ^
FIGG: And that would P rot ®^ t .
situation. I hadn’t thought o
r»GE DOBIE: Mr. Marshall, y°
suggest, do you, that there oug
a time limit in here?
lRSHALL: I came into jt
that idea. We had agree ^gl
istening to what Judge we
there, it seems to me jj,e
get one of the other. e it
al language with all P , f 0 r
- a definite time limit