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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