This is one of five cases argued as part of Brown v. Board of Education (I). However, the Bolling v. Sharpe, 347 U.S. 497, (1954) decision was issued separately because the case arose in the District of Columbia, so the Court relied on the Due Process Clause of the 5th Amendment rather than the Equal Protection Clause of the 14th Amendment.
Wednesday, December 10, 1952
SPOTTSWOOD THOMAS BOLLING,
—vs.— No. 413
C. MELVIN SHARPE, ET AL.,
Wednesday, December 10, 1952.
The above-entitled cause came on for oral argument at 3:30 p.m.,
FRED M. VINSON, Chief Justice of the United States
HUGO L. BLACK, Associate Justice
STANLEY F. REED, Associate Justice
FELIX FRANKFURTER, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
ROBERT H. JACKSON, Associate Justice
HAROLD H. BURTON, Associate Justice
THOMAS C. CLARK, Associate Justice
SHERMAN MINTON, Associate Justice
GEORGE E. C. HAYES, ESQ., on behalf of the Petitioner.
JAMES M. NABRIT, JR., ESQ., on behalf of Petitioners.
MR. CHIEF JUSTICE VINSON: No. 413, Bolling, et al., versus C. Melvin Sharpe, and others.
All right, Mr. Hayes.
OPENING ARGUMENT OF
GEORGE E. C. HAYES, ESQ.,
ON BEHALF OF PETITIONERS
MR. HAYES: May it please the Court:
This case is here on a petition for a writ of certiorari addressed to the United States Court of Appeals for the District of Columbia Circuit. The jurisdiction of this Court to review by writ of certiorari is conferred by Title 28, United States Code, section 1254(1) and section 2101(e).
This case was on appeal to the United States Court of Appeals for the District of Columbia, where no judgment had been rendered, and no order had been entered, and the matter came up under the rule, as I have stated.
This case came before the court on a complaint and on a motion to dismiss, and the facts are, therefore, not controverted. The minor petitioners, Negroes, fully qualified to attend a junior high school in the District of Columbia, accompanied by their parents, made application to the Sousa Junior High School for admission, and they were denied admission to the Sousa Junior High School solely on the ground of race or color. Thereafter, through their attorneys, to each echelon in the administrative setup of the schools of the District of Columbia, they made application for admission, and finally to the Board of Education; and in each of these areas they were denied admission solely because of their race or color.
Thereafter, and having exhausted their administrative remedies, a suit was filed asking for a declaratory judgment and for injunctive relief. A motion was filed to dismiss. That motion was granted, and an appeal was taken. Certiorari was granted in this case on November 10, 1952.
Your Honors have listened for a number of hours to discussions with respect to this matter of segregation. In the case of the District of Columbia, in our opinion it presents an entirely novel question, one which this Court has not been called upon to pass upon, and in which we specifically and solely present the question as to whether segregation is unconstitutional per se. There are no factual questions as to facilities; we raise no issue with respect to facilities. Our proposition is baldly as to whether or not the respondents have the power, the statutory or constitutional power, to deny to these pupils admission to the Sousa Junior High School.
MR. JUSTICE DOUGLAS: Where is the statute that is relied upon?
MR. HAYES: If Your Honor please, the statutes that are relied upon are in our brief beginning at page 23.
I want to call Your Honors' attention to the fact, at the very outset, that these statutes, contrary to the statutes to which Your Honors have listened for the last two days, nowhere, in and of themselves, require segregation. It, to our mind, is a matter solely of interpretation of these statutes as to whether or not segregation is required. Our opponents take the position that these statutes do require it.
MR. JUSTICE FRANKFURTER: Suppose we do not agree with your construction of the statute? Is that the end of the case?
MR. HAYES: No, Your Honor, that is not, because, if Your Honors were to determine that our construction of the statute was incorrect, and that by so much these statutes require segregation, we would then take the position that any such requirement is beyond the power of the Government to announce, and we would rely upon for that decisions of this Court as making that an impossibility.
MR. JUSTICE FRANKFURTER: So your argument is that as a matter of construction this is not mandatory, but just exercising discretion by the educational authorities?
MR. HAYES: That is right, sir.
MR. JUSTICE FRANKFURTER: And that in construing it, I suppose, that we should take into account that possibly a serious constitutional question is involved, even if on the face of it it does not yield to the construction that you argue; but you argue, in the third place, that if one cannot escape the constitutional question, then you assail it?
MR. HAYES: That is correct, sir; that is exactly our position, Mr. Justice Frankfurter.
MR. JUSTICE DOUGLAS: Has this statute that you refer to consistently been interpreted by the Board of Education as requiring segregation?
MR. HAYES: Yes, sir, Mr. Justice Douglas, it has.
MR. JUSTICE DOUGLAS: This is an old statute?
MR. HAYES: Yes, Mr. Justice Douglas; again, it has been in since 1864; originally there were the Acts of 1862, but the Acts here relied on go from 1864 forward.
MR. JUSTICE REED: Why do you say an "interpretation requiring segregation"?
MR. HAYES: When I say "interpreted as requiring," I mean by that, at any rate, they have required it.
MR. JUSTICE REED: That may be permissive.
MR. HAYES: From our point of view, yes. They take the position, as I understand it, that they are required. From our point of view, it could be purely permissive, and from our point of view they are, if anything at all, simply permissive, because they are in no sense—we take the position—mandatory.
MR. JUSTICE DOUGLAS: Do you set forth the legislative history of this statute?
MR. HAYES: No, Your Honor, we do not set it forth in any—
MR. JUSTICE DOUGLAS: Does it throw any light upon this?
MR. HAYES: I beg your pardon?
MR. JUSTICE DOUGLAS: Does it throw any light upon this?
MR. HAYES: I am sorry.
MR. JUSTICE DOUGLAS: Does it throw any light on this subject as to whether or not Congress intended there be segregation?
MR. HAYES: From our point of view it does not. We say that because it is our belief that Congress, by the statutes, has indicated that it did not intend it because had they so intended, certainly the legislature would have been competent to have spelled it out in a manner so entirely different from the statute that we face, because, as Your Honors well know, we have, for instance, the South Carolina statutes saying that these children shall never be educated together; we have the Virginia statute saying that they shall not be in the same schools. There is no language in any of these which say any such thing, and so we say that Congress has never said that.
MR. CHIEF JUSTICE VINSON: In seeking appropriations, the estimates that are put in, are they for the different schools in the city?
MR. HAYES: Yes, Your Honor.
MR. CHIEF JUSTICE VINSON: Does that show that the schools are for Negroes and schools for white?
MR. HAYES: It shows that, and we do not pretend that the legislature is not mindful of it.
MR. CHIEF JUSTICE VINSON: And Congress throughout the period of years has been mindful of it?
MR. HAYES: Yes, Your Honor. We take the position that being mindful or being mandatory or being constitutional are entirely different propositions.
MR. JUSTICE BLACK: What provisions of the Constitution do you assert this violates?
MR. HAYES: It violates, we will say, a number of them. I shall outline to you the manner in which we think they do violate it.
MR. JUSTICE BLACK: Which?
MR. HAYES: It violates the due process clause of the Fifth Amendment; it violates, as we conceive it, the civil rights statutes; it is in violation of the public policy that this Government has just seen fit to announce in the Charter of the United Nations; all of them, we think, are violated by any attempts to deny to these people, the petitioners, admission into the Sousa Junior High School.
MR. JUSTICE FRANKFURTER: Mr. Hayes, may I ask one other question?
MR. HAYES: Yes, Mr. Justice Frankfurter.
MR. JUSTICE FRANKFURTER: Do I understand you to say that this legislation is not mandatory, but permissive?
MR. HAYES: If at all, it would be nothing but permissive.
MR. JUSTICE FRANKFURTER: Wouldn't you, in your point of view, be attacking the constitutionality of legislation even if Congress authorizes it?
MR. HAYES: No, Your Honor, because from our point of view we take the position—if I stated it was permissive, then I am in error—we take the position that this language is neither mandatory nor permissive.
MR. JUSTICE FRANKFURTER: You say this does not even authorize it?
MR. HAYES: That is right, sir.
MR. JUSTICE FRANKFURTER: And you say for how many years has the District been acting without authority?
MR. HAYES: We do not say "without authority"; we say that the fact that they acted with knowledge does not mean that the statute gives the authority.
MR. JUSTICE FRANKFURTER: If the statute does not give the authority, then it was ultra vires for the District to have been doing what they have been doing; is that right?
MR. HAYES: No, if Your Honor please, because our position is that when the District recognizes that a situation exists, and when they appropriate for the sake of the statement, to an existing situation, that that does not mean that they themselves are given the authority, nor does it mean that they are holding that it is mandatory; and this Court—
MR. JUSTICE FRANKFURTER: Still, somebody must have been doing something lawlessly for a good many years; is that it?
MR. HAYES: If Your Honor says "lawlessly," perhaps, I cannot go along with the idea of lawlessness; but it has been done without constitutional authority. I do say that.
MR. JUSTICE FRANKFURTER: Somebody has been asleep as to the illegality of what has been done?
MR. HAYES: No, I would not say "asleep as to the illegality." I say rather—
MR. JUSTICE FRANKFURTER: If I may say so, I am in deep sympathy with you in not trying to invalidate legislation if it can be dealt with otherwise. But I find a little difficulty in seeing how we can fail to reach the validity of this legislation unless you say that what has been done by the District authorities has been done, if not lawlessly, then without authority of law. How about that, would you accept that?
MR. HAYES: We would say, sir, if this Court were to determine that what has been done up to this time has been done validly, that then for the first time this Court has had the opportunity to say, "No, this is not the proper way." We say that this is the opportunity for this Court to say that any such attempt as this, based solely on the question of race or color, is not within the Constitution.
MR. JUSTICE FRANKFURTER: "Hereafter you have no lawful authority to do this, but we do not care about the past."
MR. HAYES: I would not want Your Honors' statement to indicate that we do not care about the past, but for the first time we have had the opportunity to pass upon it, and we frown upon it.
If Your Honor please, as I have indicated, these three propositions I have outlined are as follows: We take the position, of course, that the court was wrong in having denied the relief sought, and in having granted the motion to dismiss.
This Government—and this is the point which seems to us so fundamental—that in these other situations where the question of these states has been involved, and where the question of equal facilities has been involved, that is one thing. But in our case, this Government of ours is being asked to support a statute having as its basis nothing other than race or color, and we say that this Government cannot afford to do just that.
As I have said, the question of the right of this Government to legislate for the District of Columbia is without question because they expressly have been authorized to legislate for the District of Columbia. But this Court, with respect to that, acting for the District of Columbia, has said that they cannot do it and violate one's constitutional rights. You have said so in Capital Traction v. Hof, and you said in Callen v. Wilson that, as a matter of fact, the right to administer for the District of Columbia is restricted by the fact that you cannot violate the constitutional rights of persons in so doing.
This Court has seen fit to pass upon rights which come within the purview of the due process clause of the Fifth Amendment, and have explained and expressed what the word "liberty" means, and this Court has seen fit to indicate and incorporate in that word "liberty" things which we believe point out the way as to what should be done in this instance.
Governmental restrictions on the right to teach a foreign language, the right of a parent to send his child to a private school, the right for them to acquire knowledge, the right of parents and pupils to a reasonable choice with respect to teachers, curricula, and text books, the right of parents to secure for their children the type of education which they think best, and which is not harmful, have been held by this Court to be fundamental educational rights protected from arbitrary Government action by the due process clause of the Fifth Amendment. That language is found in Meyer v. Nebraska, Bartels v. Iowa, Pierce v. Society of Sisters.
MR. JUSTICE BLACK: Were those cases decided under the Fifth Amendment?
MR. HAYES: They were decided under the Fourteenth Amendment, if Your Honor please, but under the due process clause of the Fourteenth Amendment, and this Court, however, in the case of Farrington v. Tokushige has seen fit to refer specifically to those three cases, indicating that the due process clause of the Fourteenth Amendment, as referred to in those cases, is incorporated and is taken over and assumed as being part of the Fifth Amendment.
As far as the Fifth Amendment cases are concerned, and so in the Takahashi case, this Court, it seems to us, has embraced these educational cases that might be referred to as coming within the Fourteenth Amendment, and has said that the Fifth Amendment applies in instances where due process of law is concerned and that, if Your Honor please, is the exact situation that we have here.
I would not pretend, because it would not be candid to pretend, that in those cases there was not something having to do with economic situations, with the question of ownership; that there was not a question of it being brought by owners and teachers rather than by parents, so that for the sake of the statement someone might say it is dicta.
But I call the Court's attention to the fact that what you said in the Farrington case so entirely, as we conceive it, gave the concept of what this Court has in mind with respect to this question of liberty under this due process clause, and that there was no need to inquire whether or not it was in any sense any other than what this Court was embracing as being its doctrine.
MR. JUSTICE REED: Do you take the same position that the Virginia counsel did, that this legislation was intended to be inimical to the interests of Negroes?
MR. HAYES: That this legislation was—if Your Honor means by "inimical," the question of putting them in—simply segregating them?
MR. JUSTICE REED: As I understood previous counsel, they urged that Virginia had passed these laws in order to deprive Negroes of educational opportunities.
MR. HAYES: I think, if Your Honor please, that unquestionably the answer must be that legislation of this character was pointed solely at the Negro, and that it was done purely and for no other reason than because of the fact that it pretended to keep for him this place of secondary citizenship. I think it could have no other conceivable purpose. I have been concerned—
MR. JUSTICE REED: You do not think that it had any relation to these prior considerations?
MR. HAYES: I do not think it had the slightest relationship to that, if Your Honor please; I do not think anyone can pretend in this jurisdiction that it has any such purpose, because this question of the schools, if Your Honor please—this is the only governmentally constructed situation that has as its basis segregation in the District of Columbia, the only one, and to us it is entirely inconceivable and inconsistent that under those circumstances for any conceivable reason, that the argument can be had that it is necessary on account of any alleged difficulties that might arise.
This Court has seen fit to say that any legislation based on racism is immediately suspect. That is what this Court has said. In the Hirabayashi case this Court said that legislation of this character is suspect, and immediately that it is suspect we take the position that the burden then comes upon the Government to show as to why under those conditions any such thing should be allowed. We throw down that challenge to our friends on the other side, to indicate why this should be done if there be any purpose other than pure racism. If there be any answer other than it is purely on account of color, then we ask them to indicate to us what that situation is.
MR. CHIEF JUSTICE VINSON: Mr. Hayes, if it was solely due to racism, you mean that after the adoption of the Amendments—of course, they would not affect this particular area—that segregation continued solely for racism and, therefore, the Fourteenth Amendment should now declare that under such circumstances the resultant relationships were invalid as unconstitutional?
MR. HAYES: If Your Honor please, I say again—and this is said on something that I hope is not based on obsession because of the fact that I am a Negro—I say to you that I believe that any of the facts—the Fourteenth Amendment, which had in it the question of the equal protection clause—the equal protection clause, as I conceive it, was put into the Fourteenth Amendment not because of the fact that there was any attempt at segregation at that time, but it was the question of getting segregation for Negroes, not of administering it. It was a question of getting it, and I think that the Fourteenth Amendment, when it provided for citizenship, mindful of the situation, and saying that they should have full citizenship, I think that they could not consistently have had that in mind and passed that and, at the same time, had in mind the question of that, we shall segregate in schools.
MR. CHIEF JUSTICE VINSON: The point, to me, coming so close to the end of the War Between the States, so far as the District of Columbia is concerned—
MR. HAYES: Yes, sir.
MR. CHIEF JUSTICE VINSON: —were the people who were there in the Congress at the time the Amendments were passed, and were there when ratified, and were there when this legislation was passed, and it is hard for me to understand that if it is racism, that it was not done deliberately, and the constitutional Amendments were so interpreted, and I assume that you would not go that far, would you, in regard to the war Amendments?
MR. HAYES: Mr. Chief Justice, I think that what was done was a matter of politics, was a matter of doing the thing which, at that time, was to them the opportune thing to do; it was the question of giving away this with the idea of pressing this which was the stronger thing. It was the idea of putting through this act and giving up this, because of the fact that this was the expedient thing to do; and I think that that very situation was what occasioned them not writing into any of these acts anything specific with regard to it, because in the same vein in which Your Honor indicates that this was an allowable circumstance, if they had intended that it should be a matter of segregation they could have written into this this, that Your Honor has indicated.
MR. CHIEF JUSTICE VINSON: I was just merely asking your view relative to the frame of mind in which the people who passed the Amendments had in this situation in the District of Columbia to have separate schools at the time when the Amendments—the Fourteenth Amendment was being ratified by the states—if they did this for the purpose of just punishing the Negro or was it their interpretation of what the Fourteenth Amendment meant?
MR. HAYES: I have attempted to indicate to Your Honor that in my opinion it was not given as punishment; it was given as an expedient. It was done as an expedient. It was done because, as a matter of fact, at that time it seemed for them, I presume, an expedient thing not to press for this particular thing, but rather to allow the amendment to go through. And, as I say, I think it is for that reason expressly that they put nothing into it other than what they did.
May I make just this one additional suggestion, because my time has already gone, and my associate, Mr. Nabrit, is going to argue the other points; but I do want to say in these Japanese war cases, where the Court took the position, as I said, that any segregated attention to the fact that this Government of the United States, with express powers and implied powers only to carry those express thing based upon race alone was suspect, they took the position that the only justification for the denial of constitutional rights can be found where there is pressing public necessity such as the severity of war, and even there the Court must be satisfied in sustaining such restrictions that: one, the purpose of the restriction is within the competency of the Government to effect—we say that this is not within the competency of the Government to effect; two, the restriction must be clearly authorized, and we call attention to the fact that this Government of the United States, with express powers and implied powers only to carry those express powers, has no such indication as to such clear authorization and that they must, restrictions must have a reasonable relation to a proper purpose.
MR. JUSTICE FRANKFURTER: Mr. Hayes, before you sit down I would like to put to you a question because of the candor with which I know you will answer it. I do not suppose that anybody could deny that this legislation, all these enactments, concern drawing a line, drawing a color line. I suppose that is what this is all about. As to motives, the devil himself, as some one wise man said some time ago, "knoweth not the mind of man."
But I must want to ask you whether it is your position that the Fourteenth Amendment or the Fifth, for your purposes, automatically invalidates all legislation which draws a line determined because of race? I do not want to have trouble tomorrow or the day after tomorrow, but one has to look ahead these days. I wonder whether you would say, right off from your analysis of the Constitution, that marriage laws relating to race are ipso facto, on the face of things, unconstitutional?
MR. HAYES: I would say to Your Honor, in answer to the first question as to whether or not in my opinion—
MR. JUSTICE FRANKFURTER: Because I need hardly tell you there is a good deal of legislation in this country drawing the line in connection with it.
MR. HAYES: Oh, yes, I am aware of that, sir. But I think that the problem is an entirely different one. With respect to the first part of your query as to whether or not I think automatically it becomes—
MR. JUSTICE FRANKFURTER: I mean that that denial to the states and to the Congress of the United States and to the District is written in by plain implication of the Fourteenth and the Fifth Amendment; that is what I want to know.
MR. HAYES: I want to say my answer to that is, if Your Honor please: I think that the very purpose of this Court is the very answer to that question. I think that this Court is called upon with that question now properly posed to make the answer.
MR. JUSTICE FRANKFURTER: You mean as to schools?
MR. HAYES: Yes, sir; that is what your first question, I thought, was addressed to.
MR. JUSTICE FRANKFURTER: Yes.
MR. HAYES: I answered that by saying as to schools this Court is called upon to say that this sort of thing cannot happen because it is a violation of the due process clause of the Fifth Amendment, and the due process clause of the Fifth Amendment does not lend itself to any substantial proposition. You can have substantial equality but you cannot have substantial liberty.
MR. JUSTICE FRANKFURTER: Is that because no legislation which draws any line with reference to race is automatically outlawed by the Fifth and the Fourteenth Amendment? So that takes you over—I am violating my own rule against posing hypothetical cases and, particularly, one that is as full of implications as the laws relating to the marriage laws involved, but I think one has to test these things to see what is the principle which you are invoking before this Court. Is it all-embracing, is it the all-embracing principle, that no legislation which is based on differentiation of race is valid?
MR. HAYES: I am invoking rather the principle which I think this Court invoked in the Hirabayashi case when this Court said that legislation based upon race is immediately suspect; that is what I am invoking.
MR. JUSTICE FRANKFURTER: Well, that is a very candid and logical answer. That simply means that it can be valid. It is not an absolute prohibition; that good cause must be shown, or great cause must be shown for the rule.
MR. HAYES: That is right, sir; and it is for that reason that I move to the next position of public necessity that was pointed out in those cases, and of the fact that even with the public necessity you must meet the three requirements.
MR. JUSTICE BLACK: Why do you have to equate the Fourteenth Amendment and the Fifth Amendment provisions on that score?
MR. HAYES: I am not attempting to equate them, if Your Honor please. I am attempting rather to say that as far as the Fifth Amendment is concerned there is no possibility of equating. You cannot make a quantum with respect to one's liberty.
MR. JUSTICE BLACK: You have just referred to the fact that we said that under the Fifth Amendment such laws are suspect, which means that we look at them very carefully to see if they can discriminate on account of race, or distinguish on account of race. Do you think the same rule applies with reference to the Fourteenth Amendment, which was passed under entirely different circumstances and for entirely different purposes?
MR. HAYES: Yes. I think the Fourteenth Amendment has within it inherent those possibilities. They have inherent within it the due process clause as well as the equal protection clause.
MR. JUSTICE FRANKFURTER: But you have got to stand on the due process clause?
MR. HAYES: Yes, I am standing on due process.
MR. JUSTICE FRANKFURTER: I take it that was what Justice Black had in mind, and which was behind Justice Black's question.
MR. HAYES: If that be the answer, that is what I was attempting to say. I was not attempting to equate them. We are relying on due process.
MR. JUSTICE DOUGLAS: Your closest case in point so far as decisions go is Farrington?
MR. HAYES: Yes, Your Honor; and in fact, the Farrington case embraced the Meyer, Bartels, and the Pierce case. And that brings them into this.
ARGUMENT OF JAMES M. NABRIT, JR., ESQ.,
ON BEHALF OF THE PETITIONERS
MR. NABRIT: If the Court please:
It would appear necessary that petitioners make clear the position which they take in the midst of these five cases. It is our position, simply stated, that the respondents, the public school board officials in the District of Columbia, do not possess either the constitutional power or the statutory power to deny these minor petitioners admission to Sousa Junior High School solely because of race or color. Now, that, as we take it, is the sole question to be considered by this Court.
In considering that question, we would urge upon the Court that it consider whether these respondents possess that power under the due process clause, whether they possess it because these Acts of Congress compel it or authorize it, either, whether they possess it in the face of sections 41 and 43 of Title 8 of the United States Code, known as the Civil Rights Act of 1866, or whether they possess it in light of the pledge which this Government has given towards the implementation of human freedoms and rights without any distinction on the basis of race or color; in other words, not as a requirement of the charge but as a policy which is enunciated by the charge.
Now, it would appear to petitioners that it is necessary also for this Court to consider the fact that we are not dealing with the State of South Carolina, we are not dealing with the State of Virginia, the State of Delaware, or the State of Kansas. We are not here concerned with those oversensitive areas of state and federal relation. That is not involved in this case. We are not involved in this case with the question of the sensitiveness of states with the projection of federal power.
We are concerned here solely with the question of the relationship of the Federal Government to its citizens. It might be assumed as the basis for our approach to this problem that we go back and look at something of the history of our Constitution. We know that when the Constitution was adopted, there were provisions in there which made it possible for us to have an institution of slavery. We also know that the juristic concepts were such, in Dred Scott v. Sandford, that it was decided that a Negro could not be a citizen.
But along came the Thirteenth, Fourteenth and Fifteenth Amendments. The Thirteenth Amendment removed slavery as a condition, as a status. The Fourteenth, so far as the federal citizens are concerned, gave citizenship to those born or naturalized in the United States. Now, those things together would appear to us to have removed from the Federal Government any power to impose racial distinctions in dealing with its citizens.
Now, we know that this is a government of limited powers, and we know that it has express powers, and one of these is to deal with the District of Columbia.
MR. JUSTICE MINTON: Is it your thought that the adoption of the Fourteenth Amendment's due process clause changed the meaning of the Fifth Amendment's due process clause?
MR. NABRIT: No, Mr. Justice. I thought, with the abolition of slavery and the federal citizenship conferred in the first section of the Fourteenth Amendment, that those two things robbed any dubious power which the Federal Government may have had prior to that time to deal with people solely on the basis of race or color.
MR. JUSTICE BLACK: Do you think that there is any doubt that they had complete power before that?
MR. NABRIT: No, not in the light of Dred Scott v. Sandford, I do not doubt it, because in the light of Dred Scott v. Sandford, they simply said that no matter whether you went to Missouri or where you went, you are a Negro and you cannot be a citizen, and as soon as you cannot be a citizen, you cannot come within the purview of these things about which we are talking.
MR. JUSTICE FRANKFURTER: We are talking about the District.
MR. NABRIT: That is right.
MR. JUSTICE FRANKFURTER: We are talking about the District.
MR. NABRIT: Yes, I am saying the District, because if you could not be a federal citizen—and that is what Dred Scott held—it was for jurisdictional purposes, but everybody in the country took it as a finding of a lack of status as far as Negroes were concerned in 1856.
MR. JUSTICE FRANKFURTER: You could not be a citizen merely by going to Missouri.
MR. NABRIT: Yes, I agree with you, Mr. Justice Frankfurter, if you say that the Court went further than it should have or had to. But I would say this, that after the citizenship that was conferred under the first clause of the Fourteenth Amendment, and after the abolition of slavery, that we would seriously question, as this Court questioned, the power of the Federal Government to deal with a federal citizen solely on the basis of his race. The only two cases that I can recall in the history of this Court where it is held that that could be done were in two cases where the Court said that there was an express power to wage war, that that was one of the all-embracing powers, and that as an implied power necessary to prevent sabotage and espionage, this Court said, under those circumstances, that a citizen of the United States might, one, be detained in his home overnight; and the other, be removed to a relocation center and there detained.
So this Court itself, even when it recognized the all-inclusiveness of the war power, when the security of the nation was at stake —this court has said, "We must test this detention, first, to see if it is authorized' and see if the statute authorizes it." If it is a case like Ex parte Endo, or it is not authorized, it is not good. Even if it is authorized, there must be a relationship between the purpose and the statute, and when we find that, as the Court said, we are not satisfied. There must also be some purpose which it is within the competency of this Government to effect.
MR. JUSTICE REED: Who is to determine that?
MR. NABRIT: This Court.
MR. JUSTICE REED: And Congress cannot determine it for itself?
MR. NABRIT: No, sir. Never in the history of this country have the individual liberties of the citizen been entrusted in the hands of the legislators. The very founders of the Government refused to agree to the Constitution itself until they could be satisfied, Jefferson and others, that they had a Bill of Rights, so as to protect individual liberties.
MR. JUSTICE REED: That would mean that we would examine the basis, the foundation, of congressional enactments relating to race, such as the Japanese cases?
MR. NABRIT: It is my position—
MR. JUSTICE REED: Who is going to make that determination as to whether it is necessary or proper or desirable? This Court?
MR. NABRIT: I would say this, that this Court, faced with a piece of legislation by Congress which did that, or an act under a piece of legislation which did that, would in my opinion test it by the same type of test that it used in Korematsu and in Hirabayashi and in Endo. This Court tested it by that same method and found that it had no such authority and released Mitsye Endo. In other words, we ask nothing different than that we be given the same type of protection in peace that these Japanese were given in time of war. We are not asking anything different.
We are simply saying that liberty to us is just as precious, and that the same way in which the Court measures out liberty to others, it measures to us; and Congress itself has nothing to do with it, except that in the exercise of a power which Congress has, if Congress determines that it has something that it must do as an implied necessity in order to carry out that power, and then we say it does not and we bring the question to this Court, this Court would decide it.
I cannot make the statement that there is no situation in which Congress might not use race. I do not know of one right now, except the war powers. But that certainly leaves it open for determination by this Court. But at the same time, I assert that there is absolutely no basis that can be produced that would be accepted in our country in 1952 that would justify Congress making it such a racial basis for the exclusion of a student from a high school in the District of Columbia.
MR. JUSTICE REED: Would that same test apply on it for Congress under the commerce clause?
MR. NABRIT: Under the commerce clause?
MR. JUSTICE REED: I just happened to choose that.
MR. NABRIT: I was trying to think of one under the commerce clause.
MR. JUSTICE REED: Or any of the other clauses?
MR. NABRIT: Or any of the other clauses, where the only purpose was the purpose of making a racial distinction, in affording it. For instance, if they say that no Negro can ride the trains, the answer is yes; it would apply precisely.
MR. JUSTICE REED: Could we examine the reasonableness of that decision?
MR. NABRIT: Because you have said already, Mr. Justice Reed, or this Court, that as soon as we see that, we suspect it. It is not to say that it is unconstitutional, but it is to say that it is suspect, and you have said in so many cases, race is invidious; race is irrelevant. So when we get over in the Federal Government where there is nobody to deal with, but just us, the Federal Government, we do not have to worry. We know it is irrelevant, invidious, odious, and suspect. So this Court should examine it.
[Whereupon, at 4:30 o'clock p.m., argument in the above-entitled matter was recessed, to reconvene at 12:10 o'clock p.m., December 11, 1952.]
Thursday, December 11, 1952
SPOTTSWOOD THOMAS BOLLING,
—vs.— No. 413
C. MELVIN SHARPE, ET AL.,
Washington, D. C.
Thursday, December 11, 1952.
Oral argument in the above-entitled matter was resumed, pursuant to recess, at 12:10 p.m.,
FRED M. VINSON, Chief Justice of the United States
HUGO L. BLACK, Associate Justice
STANLEY F. REED, Associate Justice
FELIX FRANKFURTER, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
ROBERT H. JACKSON, Associate Justice
HAROLD H. BURTON, Associate Justice
THOMAS C. CLARK, Associate Justice
SHERMAN MINTON, Associate Justice
JAMES M. NABRIT, JR., ESQ., on behalf of Petitioners—Resumed.
MILTON D. KORMAN, ESQ., on behalf of Respondents.
MR. CHIEF JUSTICE VINSON: No. 413, Bolling et al., versus C. Melvin Sharpe et al.
ARGUMENT OF JAMES M. NABRIT, JR., ESQ.,
ON BEHALF OF PETITIONERS—RESUMED
MR. NABRIT: If it please the Court:
At the close of the Court's session yesterday, we were attempting to outline the basic arguments of the petitioners. Unfortunately, we only have ten minutes left, and probably we can barely outline it. We would like to address ourselves, however, to some of the questions which seem to be of concern to the Court in these cases.
MR. JUSTICE FRANKFURTER: Before you sit down, I hope you will include in your answers the answer to this question, whether during the life of this statute there came before Congress periodically or at such periods as there did come, if any, the requirement to make appropriations for the enforcement of this statute; or, since you question whether they had the duty to enforce it the way they did, for the things that the District authorities did, and whether during that period there was any legislative effort to stop these appropriations or to prohibit the authorities from doing what I understand you and your colleagues said was not authorized by this legislation.
MR. NABRIT: I would be very happy to address myself to that at this moment, Mr. Justice Frankfurter.
In looking at these statutes enacted by Congress governing the schools in the District, I should like to preface my answer by saying that the first statute passed with respect to public education in the District of Columbia was passed in 1862. Now, at the time petitioners drafted their briefs in support of our proposition, we had taken the position that the statutes did require it, and we did set out the history. However, if the Court is interested in the history, there is in the brief filed in this case amicus curiae for the 18 organizations, on pages 20 and 21, some historical analysis of these statutes, which may be of help to the Court.
The Court may also take judicial notice of the Barnard Report, which is in the special report of the Commissioner of Education of the Public Schools of the District of Columbia in 1871, and in that volume at page 49 and page 267 they give the history of the public schools of the District of Columbia up to that time, and they also discuss the Act of 1864, to which I shall advert in just a moment.
MR. JUSTICE FRANKFURTER: Is that report referred to in your brief or in the amici brief?
MR. NABRIT: No.
MR. JUSTICE FRANKFURTER: What is the name of that report?
MR. NABRIT: The District of Columbia, the Barnard Special Report, Commissioner of Education of the Public Schools in the District of Columbia, 1871.
MR. JUSTICE FRANKFURTER: Thank you.
MR. NABRIT: That is the Government Printing Office. It does not give any other name. It is the House of Representatives.
Now, if the Court please, in 1862 this was the situation in the District of Columbia. There were a number of private schools for whites and a number of private schools for Negroes in Georgetown, Washington, and the District of Columbia. As you recall, we had not yet combined all of those into what is now the District. But for purposes of this discussion I think that the Court may take those as one.
At that time, these private schools were supported by private philanthropy. In 1862, Congress, as discussions in Congress indicated—about that there is no dispute—being concerned about the support of the schools which existed in the District for the Negroes, enacted a measure which provided that these schools should be supported by tax funds derived from taxes levied upon free Negroes.
That did not appear either to produce revenue or to be satisfactory. So Congress then enacted a statute the latter part of that year in which Congress said that these schools should be supported by funds derived from the general revenue, that is, from the taxes of all of the inhabitants of the District. Now, this, as you recall, was in 1862, before the Fourteenth Amendment and before the actual effect of the Emancipation Proclamation.
Now, at this time the members of the legislature stated that they were concerned about what should be done for the Negroes who would be free. I think it is also fair to say to the Court that in the Barnard Report, to which I referred, the Congressmen, in presenting this to the House and stating that there had been no printed report of the proceedings, stated that they were providing no separate schools for Negroes because they had no adequate financial support, and they were concerned about the educational situation.
In 1864, the basic acts out of which grow the present acts governing the schools in the District of Columbia were enacted. They provided in substance that suitable rooms and schools should be provided for the training of the colored pupils, and in addition to that they provided mandatory legislation to ensure that a proportionate share of the funds secured from revenue in the District should be allotted to these schools. I might say to the Court that they did this because experience had shown that there was some diversion of funds that Congress had intended for these schools to the white schools.
Now, all of this is uncontroverted. There is no dispute about this.
Then, after the proposal of the Fourteenth Amendment in 1866, and after its adoption in 1868, there was, in 1874, a re-enactment of these statutes, in substance as they are found in our brief. Now, it appears to petitioners that it is the contention of the respondents that that re-enactment after the adoption of the Fourteenth Amendment was a congressional construction of these acts that they permitted separate schools, and I think that it was the issue which underlies the question of Mr. Justice Frankfurter, as to re-enactment of these statutes and as to the appropriations in respect to these acts over all these years.
MR. CHIEF JUSTICE VINSON: Do I understand that the schools were separate prior to the adoption of the Fourteenth Amendment?
MR. NABRIT: Yes, sir, they were.
MR. CHIEF JUSTICE VINSON: And at one time they taxed property separately; they taxed colored property for the maintenance of colored schools and white property for the maintenance of white schools?
MR. NABRIT: No. They did not say anything about the white schools. I should say this—
MR. CHIEF JUSTICE VINSON: The white schools were run out of general revenues?
MR. NABRIT: I presume so. I did not find that phrase. But I would answer your question by saying that they must have been supported out of the general revenue, since this special provision was made.
But I should say this, Mr. Chief Justice. At this time, public education—this is the first public education attempt in the District of Columbia—public education itself was suspect in the country, especially with these compulsory features that were attached to it, so that the least we can say is that at the beginning of public education, Congress indicated before the Fourteenth Amendment, by its support to these separate schools, that at that time separate schools existed and could exist.
MR. CHIEF JUSTICE VINSON: And in the District of Columbia, they did exist at the time of the passage and the adoption of the Fourteenth Amendment?
MR. NABRIT: That is correct.
Now, it is the petitioners' position at that stage in the history of these statutes that prior to the adoption of the Fourteenth Amendment, respondents can get no support from whatever Congress did with these schools; that they must gain their support by reason of the action of Congress thereafter. I think they joined in that position. It is therefore the position of petitioners that the action of Congress in 1874, in re-enacting these statutes, is not persuasive on this Court as to whether or not either, one, Congress intended compulsory or authorized segregation in the District, or, two, whether that is constitutional.
MR. CHIEF JUSTICE VINSON: Mr. Nabrit, in view of the questions from the bench, you may have five minutes more time, and the District may have similar time.
MR. NABRIT: Thank you.
As to the re-enactment of these statutes—
MR. JUSTICE FRANKFURTER: I did not mean to divert you on any legal implication. I wanted to know what the facts were, whether from year to year appropriations had to be made, or whether the question was raised, and whether it got through without anybody's thinking about it.
MR. NABRIT: Yes, sir. I wanted to address myself to that, but I thought you were entitled to have some background for it. Now, specifically addressing myself—
MR. JUSTICE REED: Apparently there is no reference in the briefs to legislative history. Was there a discussion of the desirability or the undesirability of segregation in 1874?
MR. NABRIT: I do not know about 1874, but there was a discussion of it prior to 1874, in 1866 and 1864.
MR. JUSTICE REED: Was it directed toward the adoption of segregation?
MR. NABRIT: That is right. And there was considerable difference of opinion among the Negroes in the District of Columbia on that question.
MR. JUSTICE REED: I meant on the floor of the Congress.
MR. NABRIT: It was not printed, you see. So we just have to suppose that there was some discussion. I would say for the purpose of the Court, it might be assumed that there was discussion. But it was not printed.
MR. CHIEF JUSTICE VINSON: But that was prior to the adoption of the Amendment?
MR. NABRIT: That is right. And we take the position that on this particular problem, it is not persuasive to the Court.
Now, as to your specific question, Mr. Justice Frankfurter, there have been acts in support of these schools, appropriation acts, directed to the support of this separate system in the District of Columbia each year, and also in 1906 a group of citizens went before Congress to urge in the appropriation bill the adoption of more powers for the then assistant Negro superintendent.
Also, subsequent to that, there was agitation for the creation of another first assistant superintendent for the white schools and for the Negro schools; and in each of those two instances, Congress provided the money and the position, and as to the first assistant, white and colored, they wrote that into the legislation, in addition to the appropriation.
Now, as to whether or not—
MR. JUSTICE FRANKFURTER: You say they wrote into the legislation that there was to be an assistant, or deputy, superintendent for colored schools and for white schools?
MR. NABRIT: Precisely, in language as clear as that.
MR. JUSTICE FRANKFURTER: That goes back to when, you say? 1906?
MR. NABRIT: Nineteen hundred six was when they enlarged the powers. This last act, I believe, was in 1947. I mean, this first assistant.
MR. JUSTICE FRANKFURTER; But it was in 1906 that there was explicit legislative recognition that there is such a person as a superintendent for colored schools?
MR. NABRIT: This is correct.
There is no question so far as petitioners are concerned that that type of language has persisted in the District of Columbia. And as to the enforcement, there is no question about it; the Congress has done it.
It is petitioners' position, one, that there is nothing in this language that anybody can find that compels segregation. This is clear. There is language which may be said to permit it, or authorize it. About that, men may differ. Some may think that the differences are unreasonable, in view of the language. It is petitioners' position that it does not authorize it. But if it does authorize it, to the extent that it is implemented by these respondents, it is unconstitutional action on the part of respondents.
MR. JUSTICE FRANKFURTER: You would say that providing whatever it is, x thousand dollars salary, for an assistant superintendent for Negro schools is merely a provision that if there are to be Negro schools, and if there is to be the assistant superintendent, he is to get 6,000 dollars; is that it?
MR. NABRIT: I would go further than that. I would say, since there is in the District of Columbia a system of Negro schools—I mean, I would recognize the fact that they are.
MR. JUSTICE FRANKFURTER: If you say that—
MR. NABRIT: I would.
MR. JUSTICE FRANKFURTER: I wonder if you are not saying, since there is, and Congress appropriated for it, that it recognized the right, at least, under the statute, that there should be Negro schools?
MR. NABRIT: Now, the reason I do not say that, Mr. Justice Frankfurter, is that the language of this Court in Ex parte Endo, when they said that wherever there is implied legislation which restricts the individual, or curtails, to use the Court's language, the individual rights of citizens, that curtailment has to be explicitly stated in clear and unmistakable language.
MR. JUSTICE FRANKFURTER: It does not touch on a constitutional point.
MR. NABRIT: Yes.
MR. JUSTICE FRANKFURTER: I wonder if it does not carry permissiveness into a clear recognition by Congress here in the situation where they provide money, because the alternative is that Congress was providing money for something that they did not authorize.
MR. NABRIT: I would say yes, and I would say that that would not change petitioners' position. In other words, I agree to that.
Now, with this other principle, I want to say—
MR. JUSTICE FRANKFURTER: In the course of these years, was there opposition to this legislation, or were there voices raised to the Congress, or objections to this? Did the issue ever come to discussion or to challenge?
MR. NABRIT: As to whether or not this system should be changed?
MR. JUSTICE FRANKFURTER: Yes. MR. NABRIT: In the early years—
MR. JUSTICE FRANKFURTER: I am not meaning to draw any inference. I just want the facts.
MR. NABRIT: In the early years, there was such discussion. And I am also of the opinion that we may, on an exhaustive study of that question, find such language even later; and it is petitioners' position that, as this Court has said, Congress does not enact statutes, or does not deal with things in many instances, for political or other reasons; so that petitioners would not consider that persuasive.
Now, I would like to say this final thing before my time runs out, that if the Court disagrees with us, which it may, and says that these statutes compelled and authorized, and therefore this action may be constitutional, we urge the Court not to do it, because, as this Court has said, where a possible interpretation might lead into the danger of declaring a statute unconstitutional, the Court will avoid that construction.
It is our opinion that if you do hold that these statutes compelled and authorized, they would then be unconstitutional under the due process clause of the Fifth Amendment. But more than that, we suggest to the Court that they would be in violation of Article I, section 9, clause 3, as bills of attainder, not under the classical concept of a bill of attainder, but under the concept of a bill of attainder as enunciated by this Court in United States v. Lovett, and it would appear to us that denial of admission solely on the basis of race or color of petitioners to Sousa fits precisely the formula set forth by this Court in United States v. Lovett.
Now, if I have time, I will explain it. That is, in United States v. Lovett, this Court said that where Congress had named Lovett and two others in an appropriations bill and said that they should not receive funds from that until they had been recommended by the President and approved by Congress, that that was a permanent ban on employment. This Court went to the congressional discussion to find out whether they were trying to get them for disloyalty and subversive activities.
Now, we say that if this Court decides that these statutes prohibit Negroes from ever associating with whites or ever studying with whites in a white school, they have placed the same ban upon them, and they have done it without a trial, as in the other, merely because for some undisclosed crime, some status, some position, some matter of birth, appropriation, or something else in the past, these Negroes are unfit to associate with whites, and under the definition of a bill of attainder as laid down by this Court in United States v. Lovett, we suggest that there would be another danger that these acts would be unconstitutional.
Therefore, we urge upon this Court not to adopt that construction, and we say this to the Court: You would not reach the constitutionality, because if you find these statutes do not require it and do not authorize it, then the action of respondents is unlawful, and you may direct admission into Sousa Junior High School.
MR. CHIEF JUSTICE VINSON: Mr. Korman?
ARGUMENT OF MILTON D. KORMAN, ESQ.,
ON BEHALF OF THE RESPONDENTS
MR. KORMAN: May it please the Court:
Questions have been asked by the Court concerning the history
of this legislation, and my distinguished opponent, Mr. Hayes, has thrown the gauntlet down to us to show the real reason for this type of legislation setting up a dual school system in the District of Columbia. I shall endeavor to point out to the Court the history of this legislation, and I accept the challenge of Mr. Hayes to show what the real reason for this legislation was.
In 1862, there was slavery in the District of Columbia. In April of 1862, by an Act of April 16, the Congress abolished slavery in the District. That was three and one-half years before the Thirteenth Amendment abolished it in the states.
There was a problem of doing something for these emancipated people. Up to that point, they had had no schools except some few private schools for the free Negroes. So the first enactment of Congress on May 20, 1862, was to set up a system of schools in the County of Washington. At that time, the District of Columbia consisted of three parts: the City of Georgetown, the City of Washington, and the County of Washington. They were distinct entities. The City of Georgetown had its own council, mayor and board of aldermen; the City of Washington had the same setup; the county was governed by a levy court. It appears that there were no schools of any kind, white or colored, in the county. There apparently were schools for white children, publicly supported, in the cities.
On May 20, 1862, the Congress passed an enactment which established a system of schools in the county, white and colored. It was a long act, with some 36 sections to it, and in section 35 they provided that the levy court in its discretion—apparently there were not many Negroes in the county at that time—but the levy court in its discretion might levy a tax of one-eighth of one percent on property owned by persons of color for the purpose of initiating a system of education of colored children in said county.
But I remind you that in that same act they set up for the first time a system of white schools in the county. Now, in that same paragraph 35, they said this:
And said trustees are authorized to receive any donations or contributions that may he made for the benefit of said schools—
—that is, the schools for colored children—
—by persons disposed to aid in the elevation of the colored population in the District of Columbia.
That was the purpose of these acts, to aid in the elevation of the colored population of the District of Columbia, and not to stamp them, as Mr. Hayes says, with a badge of inferiority, this pure racism that he speaks of. They were trying to elevate these people.
It goes on to say that:
Said trustees shall account for those funds.
Then the next day, May 21, the Congress passed another act for the Cities of Washington and Georgetown, and with your permission I should like to read that entire Act, which is not lengthy, because to me it shows what the purpose of this legislation was:
Be it enacted—and so forth—
That from and after the passage of this Act it shall be the duty of the municipal authorities of the Cities of Washington and Georgetown in the District of Columbia to set apart ten per-centum of the amount received from taxes levied on the real and personal property in said Cities owned by persons of color, which sum received from taxes as aforesaid shall be appropriated for the purpose of initiating a system of primary schools for the education of colored children residing in said Cities.
Be it further enacted that the board of trustees of the public schools in said Cities shall have sole control of the fund arising from the tax aforesaid as well as from contributions by persons disposed to aid in the education of the colored race, or from any other source which shall be kept as a distinct fund from the general school fund.
Which I believe answers Mr. Justice Frankfurter's question.
It is made their duty to provide suitable rooms and teachers for the number of schools as in their opinion will best accommodate the colored children in the various portions of said Cities.
Section 3 deals with the setting up of boards of trustees, which says that they shall have equal supervision over both the white and colored schools.
Section 4—this is the same Act, I remind Your Honors—
That all persons of color in the District of Columbia or in the corporate limits of the Cities of Washington and Georgetown shall be subject and amenable to the same laws and ordinances to which free white persons are or may be subject amenable; that they shall be tried for any offenses against the laws in the same manner as free white persons are or may be tried for the same offenses, and that upon being legally convicted of any crime or offense against any law or ordinance, such persons of color shall be liable to the same penalty or punishment, and no other, as would be imposed on or inflicted upon white persons for the same crime or offense and all acts or parts of acts inconsistent with the provisions of this Act are hereby repealed.
Now, when we find those provisions in the same Act setting up schools for colored children and saying that they may receive funds from those who may want to help the colored race, and setting up these provisions for equal treatment of both races before the law, there can be no question of what the intention of the Congress was at that time.
On July 11, 1862, a few months later, Congress transferred to the board of trustees of the schools for colored children—of the schools for colored children—thereby creating the powers with respect to such schools vested by the Act of May 21 in the board of trustees for public schools in the cities.
By an Act of June 25, 1864, Congress established the Board of Commissioners of Primary Schools of Washington County, District of Columbia, and in section 9 thereof authorized that Board to purchase sites, erect schools, regulate the number of children to be taught in each school, and the price of tuition, and so on, and said this:
That any white resident might place his or her child in the schools provided for the education of white children in said county, and any colored resident should have the same rights with respect to the colored schools.
It seems to me that that definitely established an intent to set up separate schools.
Then in the Act of May 21, 1862, in section 18 of that Act, they authorized the municipal authorities of the Cities of Washington and Georgetown to set apart each year from the whole fund received from all sources applicable to public education such proportionate part thereof as the number of colored children between the ages of sixteen and seventeen in the respective cities bears to the total number of children to help support these colored schools.
Then in 1871, the Congress enacted the Legislative Assembly Act, which combined the Cities of Washington and Georgetown and the county into one unit, and they transferred all these schools to the combined board of education which governed all of the schools in the two cities and the county.
A question was asked by Mr. Justice Frankfurter, I believe, as to whether or not there were any specific attacks upon this system of separate schools, and it was intimated that, while there were some before the adoption of the Fourteenth Amendment, there were none thereafter. I specifically call the Court's attention to the fact, which is mentioned in our brief, that in the Forty-First, Forty-Second, and Forty-Third Congresses, between 1870 and 1874, there were three separate bills introduced by Senator Sumner of Massachusetts to strike down the dual school system in the District of Columbia, and they all failed of passage. The Fourteenth Amendment was adopted in 1868, and all three of these things came after that.
Specifically, I call the Court's attention to the fact that the Civil Rights Act of 1875 was debated over a considerable period during the Forty-Second and Forty-Third Congresses, although that Act is not now constitutional, having been so declared on other grounds. But the bill which became the Civil Rights Act of 1875, as originally drawn, specifically provided for the abolition of separation in the schools of the United States, in and out of the District of Columbia; but as finally enacted, the word "schools" was stricken from that Act.
So it seems to me that as late as 1875, you have a specific declaration by Congress that there shall be a dual school system in the District of Columbia.
Now, what transpired thereafter? In 1900, Congress set up a new school board, a paid school board, of seven persons, and they provided at that time for a board of education, a superintendent, and two assistant superintendents, one of whom under the direction of the superintendent shall have charge of the schools for colored children. That was the Act of June 6, 1900.
Then, in 1906, the Congress reorganized the whole school system here, and they established the present Board of Directors as it exists today. The organic Act of 1906 was debated at some length, and there were lengthy hearings on that before a Subcommittee of the Congress.
In our brief, I set forth some of the expressions of Negro leaders at that time, and I should ask the Court to please bear with me while I read some of them to you, because it seems to me that they go to the very heart of this question. We find Professor William A. Joiner—
MR. JUSTICE REED: What page is that?
MR. KORMAN: This is on page 25 of respondents' brief.
We find Professor William A. Joiner, of Howard University addressing the Committee, and I did not include the letter which he had presented to the Committee, but I should like to read you one sentence from the letter which he handed to the Committee prior to making this statement. He says this, and this is found or page 199 of the hearings on that bill:
Experience in the past dating back to the first organization of the schools for colored children in the District has tended to prove that the interests of these schools are most carefully guarded by those who are most deeply interested in the children who attend them.
Then he said this:
I think, Mr. Chairman, that that embodies the main sentiment as expressed by that organization, an organization composed of those whose minds have led them into literary pursuits and those who have given attention to the best welfare and interest of their people. It may seem strange that this particular word `colored' or the idea of colored schools thrusts itself into this argument. I would it were not so. Facts are stubborn things, and when we deal with facts we must deal with them as they exist and not as we would they were; and so, Mr. Chairman, it becomes our province and our duty to do what we can to see that in the administration of school affairs in that most precious birthright of equality of opportunity spoken to us by President Eliot of Harvard that there will not be the slightest divergence from the division, `unto him who needs and most unto him who needs most.'
Then Professor Lewis B. Moore, of Howard University, said this at the same hearings, and I am reading from page 26 of our brief:
Give us what is being asked for here by the colored citizens, give us that, and we shall conduct under the guidance of the Board of Education the colored schools of the District of Columbia in such a way as to produce just as good results as are produced anywhere else in this country.
As the result of those sorts of expressions, we find this in the report on the bill, which became the Act of 1906, setting up the school board: The bill does not change the number of assistant superintendents, merely enlarging the power of the colored superintendent so that he shall, besides having jurisdiction over the colored grade schools, also have entire jurisdiction over the colored normal, high, and manual training schools. This was done at the earnest solicitation of the colored educators who appeared before the Committee and was heartily endorsed by the superintendent of Howard University. The hearings developed that a great deal of friction had arisen between the director of high schools and the teachers in the colored high school, and to avoid this it was the unanimous opinion and desire of all who testified that not only should the colored superintendent have control, but that the colored schools in every instance should be designated as colored schools, so that no possible mistake could arise in that regard.
So in the Act of 1906, the Congress provided for a superintendent of schools and for two assistant superintendents of schools, one of whom, a colored man, should have charge of the colored schools.
That is not, however, the last expression by the Congress upon this point. As has been intimated, every year for practically ninety years there have been applications to the Congress for funds to operate these schools, and every year the justification for the appropriations has contained statements that so much is needed for colored schools, so much is needed for colored teachers, so much is needed for white schools, so much is needed for white teachers, so much is needed for new construction because the colored population has increased and we need another colored school and so forth and so forth.
In addition, in the Teachers' Salary Act of 1945, we find these expressions by the Congress:
There shall be two first assistant superintendents of schools—
—they are now first assistant superintendents—
—one white first assistant superintendent for the white schools, who under the direction of the superintendent of schools shall have general supervision over the white schools, and one colored first assistant superintendent for the colored schools who under the direction of the superintendent of schools shall have sole charge of all employees, classes and schools in which colored children are taught.
Not the colored schools, but the schools, classes, and employees under which colored children are taught.
The next section of that Act is:
Boards of examiners for carrying out the provisions of the statutes with reference to the examination of teachers shall consist of the superintendent of schools and not less than four or more than six members of the supervisory or teaching staff of the white schools for the white schools, and of the superintendent of schools and not less than four nor more than six members of the supervisory or teaching staff of the colored schools for the colored schools.
Then in the next section:
There shall be appointed a board of education on the recommendation of the superintendent of schools, a chief examiner for the board of examiners for white schools, and an associate superintendent in the colored schools shall be designated by the superintendent as chief examiner for the board of examiners for the colored schools.
And so on; almost identical language in the Teachers' Salary Act of 1947, two years later. And the latest expression by the Congress on that score was the Act of October 24, 1951, amending the Teachers' Salary Act, where we find in section 13—and this was one year ago, if the Court please:
There shall be appointed by the Board of Education on the recommendation of the superintendent of schools a chief examiner for the board of examiners for white schools and a chief examiner for the board of examiners for colored schools. All members of the respective boards of examiners shall serve without additional compensation.
It seems to me that that should dispose of this question of whether or not Congress intended that there should be separate schools for white and colored children.
In addition, however, twice in the history of these acts, the United States Court of Appeals for the District of Columbia Circuit has passed upon the question. In the case of Wall v. Oyster in 1910, the court specifically said that these acts of 1862 and 1864 and so on that I read to the Court, and which were carried over into the revised statutes in 1874—the court said that they "manifest an intention by Congress that these schools shall be separate. In the case of Carr v. Corning, and Browne v. Magdeburger, decided on a joint opinion in 1950, the court came to exactly the same conclusion, the court saying:
These various enactments by the Congress cannot be read with any meaning except that the schools for white and colored children were then intended to be separate.
Now, in the light of those decisions by the highest court of the District of Columbia—and I remind the Court that this Court has said many times that it accepts the construction of purely locally applicable statutes as decided by the highest court of the jurisdiction—in the case of the states, the interpretation by the highest court of the state is, it has been said, completely binding on this Court, and in the case of the Court of Appeals of the District of Columbia, this Court has said several times that in most instances and generally, you accept the interpretation of that court of locally applicable statutes.
I might read to you further from the expressions of leaders at the time the bill which became the Act of 1906 was being considered. There were expressions by Dr. Kelly Miller, one of the leaders of his people in this city, one of the foremost fighters for rights for the colored people. Indeed, one of the newest junior high schools for colored in the District is named after him, and he says essentially the same things that I have read to Your Honors in support of that Act of 1906.
What, then, is the situation? I say to the Court, and I say to my distinguished adversary, Mr. Hayes, these acts were not passed, this dual school system was not set up to stamp these people with a badge of inferiority. There was not this racial feeling that he speaks of with such fervor behind these acts. There was behind these acts a kindly feeling; there was behind these acts an intention to help these people who had been in bondage. And there was and there still is an intention by the Congress to see that these children shall be educated in a healthful atmosphere, in a wholesome atmosphere, in a place where they are wanted, in a place where they will not be looked upon with hostility, in a place where there will be. a receptive atmosphere for learning for both races without the hostility that undoubtedly Congress thought might creep into these situations.
We cannot hide our faces and our minds from the fact that there is feeling between races in these United States. It is a deplorable situation. Would that it were not so. But we must face these facts.
We know that there have been outbursts between races north of here where there are not separate schools for white and colored. We know that these things exist, and constitutionally, if there be a question as to which is better, to throw these people together into the schools and perhaps bring that hostile atmosphere, if it exists, into the schoolroom and harm the ability to learn of both the races, or to give them completely adequate, separate, full educational opportunities on both sides, where they will be instructed on the white side by white teachers, who are sympathetic to them, and on the colored side by colored teachers, who are sympathetic to them, and where they will receive from the lips of their own people education in colored folklore, which is important to a people—if that is to be decided, who else shall decide it but the legislature, who decides things for each jurisdiction? And I say that the Constitution does not inveigh against such a determination by the legislature.
The Fifth Amendment contains a due process clause, as does the Fourteenth Amendment. It does not, however, contain an equal protection clause. It has been said by this Court that the Congress is not bound not to pass discriminatory laws. It can pass discriminatory laws, because there is no equal protection clause in the Fifth Amendment. This Court has likewise, over a long period of time, some ninety years, said that under the Fourteenth Amendment separate schools for white and colored children may be retained.
If, therefore, this Court has said that such schools may be maintained under the Fourteenth Amendment where there is an equal protection clause, how can my friends here argue to the Court that there may not be a dual school system in the District of Columbia for such fine reasons as I have demonstrated to the Court, when there is no equal protection clause binding on the Congress of the United States?
And if there be questions concerning the long line of decisions leading up to this point where this Court has said that separation in schools is proper and constitutional, there can be no clearer statement than there was in the case of Gaines v. Canada, decided scarcely fourteen years ago, where this Court said, through Mr. Chief Justice Hughes:
The state has sought to fulfill that obligation by furnishing equal facilities in separate schools, a method the validity of which has been sustained by our decisions.
That was the language, "a method the validity of which has been sustained by our decisions."
But then they went on to say that you cannot do it in this case because those equal facilities have to be within the borders of the state and not outside the state.
That is all that case said. But it established the principle that if there were separate but equal facilities within the state, then it was constitutional. And I say to the Court that it is conceded here by my distinguished opponents that there is no question of equality here.
You live here in the District of Columbia or its environs. You know that we have a complete system of schools here. I invite your attention to the fact that it is so complete that we have two side-by-side complete systems of schools for white and colored, autonomous each in every respect, with one exception: one superintendent over them and a board of education laying down the policy for both systems. But from the janitor up to the first assistant superintendent, the colored schools are completely autonomous, and if we need an exhibit of what fine people they turn out, I will turn to my friend here, a product of the local schools.
What has changed the Constitution in fourteen years, since the Gaines case? What changes have occurred? What policy announcements have there been by the Congress?
Questions were directed to counsel all through these cases about changed conditions. Mr. Justice Burton asked counsel if it were not true that these other cases could be disposed of as being proper law at the time they were decided, but not now in the light of changed conditions.
I ask the rhetorical question: What changed conditions? What has happened in fourteen years that we did not know in 1938 when the Gaines case was decided? What is there now?
I submit to the Court that the answer is: Nothing is new. The Constitution is the same today as it was in 1938 at the time all these other decisions came from the lips of this Court.
It has been said here by our distinguished opponents—indeed, it has been said by the Attorney General of the United States—that Washington, this District of Columbia in which we live, is the window through which the world looks upon us. It does not seem to me that is a constitutional argument, and I should like to read something to the Court, if I may, with the Court's indulgence. This comes from this Court. After I have read it, I will tell you the case it comes from:
No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.
—or, if I may paraphrase by saying, "than they were intended to bear at the time of each amendment of it"—
Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption.
—or, if I may paraphrase, "at the time of its amendment"—
It is not only the same in words, but the same in meaning, and delegates the same powers to the Government and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.
That, Your Honors, was from Dred Scott v. Sandford, oh, almost one hundred years ago. But it is equally applicable today. They speak there of the civilized nations and how we look to them, just as my friends say to us here today that we must be careful; as the Attorney General says, we must be careful because the Iron Curtain countries talk about us. But he admits that they tell some lies about us. Would the change in this system stop them from telling lies if they want to tell them?
As regards the question of the applicability of the Fifth Amendment, even the Attorney General concedes that it raises a grave constitutional question when we say, "Does the Fifth Amendment control the situation?"
To some extent, I am indebted to the Attorney General for some of the things he has said in his brief amicus curiae. He speaks of "vexing problems which may arise in eliminating segregation," and he suggests to the Court that if you should come to the point where you should strike down separate schools in the United States then you should do it gradually over a period, which he suggests as much as fifteen years, class by class, starting in the kindergarten and going on up. Why? Because, I say to the Court, he recognizes that "vexing problems would arise in many places."
Before I leave the Fifth Amendment, there was a suggestion by Mr. Justice Jackson that there might be effect upon the Indians if this Court should hold that separate schools may not be maintained under the Fifth Amendment. And I suggest that there are whole chapters of the United States Code which are entitled "Protection of the Indians," and under which Congress has legislated especially for them, because it is recognized that there is a people that needs protection. You and I can go out and buy a bottle of liquor if we want. The Indian cannot, nowhere in the United States. And he is a citizen. Why? Because it is recognized that it is not good for him, and he needs protection. That assumes, I know, that it is good for us.
MR. JUSTICE JACKSON: I live very close to the Seneca Reservation in New York, and I would just as soon deal with a drunken Indian as with a drunken white man, myself, under modern conditions. It may have been different in the days of scalping knives.
MR. KORMAN: Possibly so.
MR. JUSTICE DOUGLAS: Referring to the educational system in the part of the country I come from, the Indians are not barred from the public schools, but the schools on the reservations are open only to Indians, and the white man would be barred from those schools.
MR. KORMAN: That is quite a different problem, Mr. Justice. In anticipation of that question, I talked to representatives of the Indian Bureau, and I was told by them that there are some 230 schools on reservations which are restricted to Indians, and there are 19 schools off reservations which are restricted to Indians.
MR. JUSTICE DOUGLAS: That merely keeps the white man out. The public school systems of the West, at least, are open to Indians.
MR. KORMAN: That may be. But that is a state proposition, left up to the states in the individual case. If the states want to let them in and think that it will not cause a problem, that is up to the legislature of the states.
MR. JUSTICE DOUGLAS: Some of these cases are state questions.
MR. KORMAN: Perhaps.
MR. JUSTICE DOUGLAS: Not yours?
MR. KORMAN: Perhaps.
I call your attention to the fact that there is separation, I have learned, by sexes in many of the large cities of the country, not in all the schools, apparently, but in some, perhaps for some special reason. I find from the National Education Association that they have separate schools for the sexes in San Francisco, Louisville, New Orleans, Baltimore, Boston, Elizabeth, Buffalo, New York City, even, Cleveland, Portland, Philadelphia. Such cities as those separate by sexes. Those are the things which are left to the decision of the legislature, the competent authority in each case to decide what is best for that community.
Of course, this Court has said many times that it is not concerned with the wisdom of legislation or the policy except as it is expressed in acts of Congress.
Mention has been made that there is violation of the Civil Rights Act. The two sections of the Civil Rights Act that are set forth in the complaint and in the brief for the appellants are sections 41 and 43, and in the case which first had to deal with that, a case for Indiana, the Court reviewed the Civil Rights statute at some length, and said, after reading the language of the statute:
In this, nothing is left to inference. Every right intended is specified.
The Court of Appeals of the District of Columbia, in Carr v. Corning, came to exactly the same conclusion.
I should like to point out, with reference to the Civil Rights Act, that Mr. Justice Vinson in the case of Hurd v. Hodge pointed out the fact that the Civil Rights Act of 1866, as amended in 1970, was passed by the same Congress that submitted the Fourteenth Amendment to the states, and that that same Congress, as was pointed out in Carr v. Corning, as I pointed out to the Court earlier—that same Congress is the one which passed some of these laws setting up separate schools in the District of Columbia for the two races. How, then, can it be said that the contemporaneous thought on this by the people who made these enactments had any idea that schools were to be included in the Civil Rights Act?
In Hurd v. Hodge, there was another section of the Civil Rights Act involved, section 42 of Title 8 of the United States Code, and that dealt only with the right to hold and own real property and to transfer it and lease it and contract for it, and so on. That has no bearing on the question of the right to integrate the schools in the District of Columbia.
My distinguished opponents have taken a different tack here than they have in their brief and than they took in their petition and in the argument in the district court with regard to the provisions of the United Nations Charter. In their petition and in their brief they have said that these laws violate the provisions of the United Nations Charter. Apparently they recede from that position now, and they say only that the United Nations Charter expresses the policy of the United States. If it expresses the policy of the United States, it expresses the policy of the United States to enact legislation upon a particular subject, and that is all that it expresses.
It has been demonstrated rather clearly that the United Nations Charter is not a self-executing treaty. It is a non-self-executing treaty which must be implemented by Acts of Congress. In Article 55 of the Charter it is said:
With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:
- Higher standards of living, full employment, and conditions of economic and social progress and development;
- Solutions of international economic, social, health and related problems; and international cultural and educational cooperation; and
- Universal respect for, and observance of, human rights and fundamental freedoms for all with no distinction as to race, sex, language, or religion.
What is the meaning of "human rights and fundamental freedoms"? It is not defined in the Charter anywhere. "Fundamental freedom" is not defined. No one knows what it means. There has been set up a separate organization, an organization which I think is called the Council on Human Rights, which has attempted to define that term, but it has been stated specifically by Mrs. Roosevelt, who heads that, that that has no binding effect even on the General Assembly of the United Nations, much less on the signatory powers.
We bar people into this country on grounds of polygamy. Polygamy is a fundamental right and freedom in some nations. How can these things be justified together? They cannot be.
My distinguished friend, Mr. Nabrit, has said that these laws constitute a bill of attainder. As I read the law of a bill of attainder, I shall give the definition as it comes from the leading case in the United States, Cummings against Missouri, 4 Wall. 277. At page 323 of that opinion, the Court said:
A bill of attainder is a legislative act, which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. In these cases the legislative body, in addition to its legitimate functions, exercises the powers and office of judge; it assumes, in the language of the textbooks, judicial magistracy; it pronounces upon the guilt of the party, without any of the form or safeguards of trial; it determines the sufficiency of the proofs produced, whether conformable to the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offense.
This Court has said that when it speaks of punishment, it may mean deprivation of rights, but it means deprivation of rights, civil or political, previously enjoyed, which may be punishment.
These people have never enjoyed anything which has been taken away from them. These laws which set up these schools for them were to give them something, and not to take something away from them. These laws which set up the dual school system in the District of Columbia are not to take anything from my friends and they are not to take anything from the white children. They are set up so that there will be schools which have an atmosphere wholesome to the reception of education by both races. That is the only thing that Congress has said is right for them in the District of Columbia.
They attempted to twist this word "punishment" in some way to say that they have punishment inflicted upon them by being required to go to schools to which white children are not admitted and by being denied the right to go to schools in which white children are taught. I cannot really get their reasoning. Before that, they cite some of these sociologists, some of these psychologists that have been mentioned in earlier arguments.
In this brief I have set forth a list of publications, monographs, psychological treatises, and what-not that oppose the views of the psychologists that have been named by my friends and by those in the other cases. I do not say that either one or the other is right. I take no position on that. I do not know. I am not a sociologist. Frankly, I think the effect of that psychological testimony has been already demolished here in this Court by Mr. Davis and Mr. Moore.
I might say more upon it, but I do not think that the issue justifies further argument. I leave with the Court the citations, however; if the Court thinks that they have any merit at all.
It seems to me, Your Honors, that I have answered specifically the points which have been raised by my adversaries, and I have answered, I believe, most of the questions which the Court has put to other counsel. It seems to me, as I have listened to seven hours of argument that preceded my addressing the Court, this is the situation, that my friends say, "This is the time for a change."
MR. JUSTICE BLACK: Does that have anything to do with the law in the case?
MR. KORMAN: I do not think so, sir.
MR. JUSTICE BLACK: You do not.
MR. JUSTICE JACKSON: There has been a promise of change.
MR. KORMAN: Sir, if there has been a promise of change and it comes through the proper channels, I certainly, and the respondents certainly, have no objection to it, if it comes in the proper way by the judgment of the Congress that should pass upon it. We do not object to it. But if they decide that there is no need further for separation of the children of white and colored people in the schools so that the two may benefit from being separated because of the receptive air, the wholesome atmosphere that pervades these schools, we do not object.
Perhaps this is the time. I do. not know. But I say that this is not the forum for such arguments. I say that these arguments should be made in the halls of Congress, and not in this chamber.
Incidentally, while there has been talk about breaking down segregation in all fields, I note that it has not been completely broken down in the armed forces, where it could be done by executive order, where we do not have to go to the Court and we do not have to go to the Congress. There have been some moves in that direction—and incidentally, while we are talking about progress in that direction, I should like to call the attention of the Court—and I am indebted to my friends in the amici briefs for this, because they have pointed to those fields wherein there has been advancement, where there is no longer segregation, and I thank them for suggesting it to me; and I have looked into it myself and I find that here in the District of Columbia Negroes are admitted to all the legitimate theaters, that they are admitted to a number of downtown moving pictures, that they are admitted to a number of the fine restaurants, including the famous Harvey's Restaurant, that there is a gradual integration on the playgrounds, that they are admitted onto all the recreation areas, that they are accepted into many of our larger and better hotels, that they serve on the staffs of the hospitals—particularly, I call your attention to the Gallinger Hospital, which is conducted by the District of Columbia—that they take part in entertainment and in athletic contests along with white people. I say to you that even in the school system there has been a movement toward the betterment, or a breaking down, let us say, a breaking down of any of the possible feeling of hostility, the possible thought that these races cannot get along together. It has recently been ruled that mixed groups of entertainers may come into the schools and put on performances, which was denied them previously. This is not generally known, but in the southwest section there have been joint meetings called of teachers, parents and pupils, where they confer together for the betterment of their neighborhood.
Those are steps which have been accomplished without the intervention of courts, without the intervention of legislative bodies, and if those things have been accomplished, pray God the day will come when all things will be merged and the white and colored men will meet together in every place, even in the school, and it will not require even arguments from my friends before the halls of Congress, because there will be a general acceptance of the proposition that these two races can live side by side without friction, without hostility, without any occurrences. If that be so, then there will be a general movement without their taking any action to help it, without their seeking it, to bring those things about.
This legislation is now in the place where it can be handled by the Congress, and not where it will be cut off completely by this Court without power of change.
I should like to read to Your Honors what Judge Prettyman of the United States Court of Appeals said in 1950 in the Carr case:
Since the beginning of human history, no circumstance has given rise to more difficult and delicate problems than has the coexistence of different races in the same area. Centuries of bitter experience in all parts of the world have proved that the problem is insoluble by force of any sort. The same history shows that it is soluble by the patient processes of community experience. Such problems lie naturally in the field of legislation, a method susceptible of experimentation, of development, of adjustment to the current necessities in a variety of community circumstances.
That is what I urge upon this Court, to leave this issue where constitutionally it belongs, in the body that can legislate one way or another as it finds the situation to be and as it finds the needs to be in each community. Particularly, I speak for the District of Columbia. But I say it is true in all areas. And these allusions to the Japanese cases and the other cases that they have said to Your Honors control this situation, I say they do not. In those cases, there were complete denials. Hirabayashi, Korematsu, and Endo were kept in their homes as prisoners. They were taken from their homes and put in concentration camps. Takahashi was denied the right to fish; and in the Farrington case, which they say is the nearest approach to their problem, there was an attempt to legislate out of existence by regulation the foreign language schools of Hawaii.
In each of these cases, there was either denial or an attempt to completely deny. These people are denied nothing. They have a complete system of education, which they admit is equal in all respects. They do not raise that issue.
I say to the Court that this issue should be left to the Congress where it belongs. There is no constitutional issue here. It has been decided by this Court. It should be left where it now is.
REBUTTAL ARGUMENT OF
JAMES M. NABRIT, JR., ESQ.,
ON BEHALF OF APPELLANTS
MR. NABRIT: If the Court please:
I would like to adopt for the petitioners the complete argument of Mr. Korman with respect to changed conditions and to urge the Court that those changed conditions that he suggests are the very conditions that we have been saying to the Court should have a bearing upon the construction of these acts of respondents.
In the District of Columbia, contrary to the situation in the states, he has explained that the whole situation is one in which this action will create no problems, so that the question of "vexatious problems" which he mentioned does not exist in the District, and we adopt his answers to that.
Now, with respect to his statement that there is no constitutional issue, we think our brief deals with this whole argument. It appears that he does not believe that there is a constitutional issue and refuses to meet it. Giving to his argument the full meaning of it, that is, that these statutes give the authority, he has failed to deal with the question as to whether or not, conceding that they are authorized by the statutes, that is a constitutional delegation of power, and he has not addressed himself to that.
Rather he has dwelt in the past upon the white man's burden, and he has seemed to feel that for some reason that exists today. It would appear to me that in 1952, the Negro should not be viewed as anybody's burden. He is a citizen. He is performing his duties in peace and in war, and today, on the bloody hills of Korea, he is serving in an unsegregated war.
All we ask of this Court is that it say that under the Constitution he is entitled to live and send his children to school in the District of Columbia unsegregated, with the children of his war comrades. That is simple. The Constitution gives him that right.
The basic question here is one of liberty, and under liberty, under the due process clause, you cannot deal with it as you deal with equal protection of laws, because there you deal with it as a quantum of treatment, substantially equal. You either have liberty or you do not. When liberty is interfered with by the state, it has to be justified, and you cannot justify it by saying that we only took a little liberty. You justify it by the reasonableness of the taking.
We submit that in this case, in the heart of the nation's capital, in the capital of democracy, in the capital of the free world, there is no place for a segregated school system. This country cannot afford it, and the Constitution does not permit it, and the statutes of Congress do not authorize it.
[Whereupon, at 1:27 o'clock p.m., the argument was concluded.]
Tuesday, December 8, 1953
SPOTTSWOOD THOMAS BOLLING, ET AL.,
—vs.— No. 8
C. MELVIN SHARPE, ET AL.,
Washington, D. C.
Tuesday, December 8, 1953.
The above-entitled cause came on for reargument at 3:40 o'clock p.m.,
EARL WARREN, Chief Justice of the United States
HUGO L. BLACK, Associate Justice
STANLEY F. REED, Associate Justice
FELIX FRANKFURTER, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
ROBERT H. JACKSON, Associate Justice
HAROLD H. BURTON, Associate Justice
THOMAS C. CLARK, Associate Justice
SHERMAN MINTON, Associate Justice
GEORGE E. C. HAYES, ESQ., and JAMES M. NABRIT, JR., ESQ., on behalf of the Petitioners.
MILTON D. KORMAN, ESQ., on behalf of the Respondents.
MR. CHIEF JUSTICE WARREN: Number 8, Spottswood Thomas Bolling, et al., versus C. Melvin Sharpe, et al.
THE CLERK: Counsel are present.
MR. CHIEF JUSTICE WARREN: Mr. Hayes?
OPENING ARGUMENT OF
GEORGE E. C. HAYES, ESQ.,
ON BEHALF OF PETITIONERS
MR. HAYES: May it please the Court:
The case of Bolling v. Sharpe comes before this Court by reason of certiorari granted to the United States Court of Appeals for the District of Columbia, and the problems that we face are problems which are different from those which the Court has been hearing for the past two days; different because of the fact of our federal relationship; different because of the fact that there are no state-federal conflicts; different because of the fact that in our case there is no question of equality of facilities.
It is probably proper that I should begin by saying something by way of background in order to acquaint the Court again of the problems, as we see it, that we face in this jurisdiction. The minor petitioners in this case presented themselves to the authorities at the Sousa Junior High School, seeking admittance as students. They were denied admittance, and expressly denied it for no other reason than because of their race and color. They followed that up by going through each of the echelons with respect to the administrative authorities in the District of Columbia, and at each of the levels they were denied admission for no reason other than the question of their race or color.
This suit was then filed, asking by way of injunction, that they be admitted to these schools and that the Board of Education should not use as a means of excluding them the race and the color of these petitioners.
I have heard comment within the last few days about the concern that the seventeen states may have as to what this decision of this Court might be so as to know what they should do. I respectfully submit to this Court that not seventeen states but the world at large is waiting to see what this Court will do as far as the District of Columbia is concerned, to determine as to whether or not the Government of the United States will say to these petitioners, if they are not entitled to the same liberties as other persons, that they are denied it simply because of their race and color.
When my colleague, Mr. Nabrit, and I—I should, perhaps, interrupt myself to say to the Court that it is our purpose to open our argument, divide fifty minutes of time between us, and then allow ten minutes for the closing; so I shall address myself to the feature with respect to the history as far as the statutes are concerned, and Mr. Nabrit will address himself to the things which seem pertinent to us by way of the inquiries made by this Court.
Turning, then, to this question of the history of the statutes, there has been a great deal said in the last few days about the statutes here in the District of Columbia having to do with the Fourteenth Amendment. I do not need to say to this Court that we are not concerned primarily with the Fourteenth Amendment. We rely rather upon the Fifth Amendment because of the fact that that applies to our jurisdiction. But a great deal has been said, as I have indicated to you, and as you will realize, with respect to the question of statutes here in the District of Columbia.
We find ourselves in the company of the distinguished Attorney General of the United States and his associates when we take the position that, as far as the statutes are concerned, as we conceive it, they are permissive and voluntary; they are not compulsory; and we believe that this Court can find, by looking at these statutes, or must find, either one of two things: either that they are permissive and voluntary, and that by so much, if they find that the Board of Education has construed them as being compulsory and has used them as a means of segregating Negroes, that then by its mandate this Court will say that the Board of Education is wrong in any such interpretation; or, if on the other hand, it were to be determined that they are, as a matter of fact, compulsory, that then this Court must, of necessity, say that they are unconstitutional if, as a matter of fact, they use as their yardstick nothing other than race or color.
It may, therefore, become important for us to look and see what was the atmosphere under which the statutes came upon the books.
MR. JUSTICE REED: Whether they are permissive or mandatory, would they not be unconstitutional in either case?
MR. HAYES: If they are permissive and voluntary, the answer would be that they would be unconstitutional; but that the constitutional question—and this is where we think the issue is, as we presently see it—that until the issue is raised, that then, of course, the question of constitutionality has not been passed upon; and it is our position that we are presently at the place where that issue, as far as this Court is concerned and as far as the statutes are concerned, is for the first time being raised, and, therefore, Your Honor, to specifically answer your question, Justice Reed, the answer is, yes, we think it is unconstitutional in both instances, unconstitutional whether permissive and voluntary, unconstitutional whether by actual compulsion, and we think it is the present time when this Court should so determine.
MR. JUSTICE FRANKFURTER: Mr. Hayes, may I ask you what you mean by permissive? I am not talking about any legal implications, but am I wrong in thinking that Congress year after year passed appropriations for the maintenance of a system of segregation?
MR. HAYES: Your Honor is entirely correct with respect to the fact that they have passed appropriations. It is our position that the fact that Congress, having found a certain situation and having acted upon it, and having supplementarily issued or allowed appropriations, that that inaction on the part of Congress or that acceptance of a situation on the part of Congress does not still avoid the fact of the unconstitutionality which we ask Your Honors to determine.
With respect to the history of these statutes, I say there may be, therefore, some appropriate comment.
Slavery was abolished in the District of Columbia in April of 1862. In May of 1862, within approximately one month after the time of the abolition of slavery, two of these statutes that are presently on the books and under which the Board of Education is acting, were promulgated. Those are referred to, and they use the expression of "initiating education." That was not an actual fact, because they amounted to nothing other than appropriations, appropriations to an existing situation. What had happened had been that public education, as such, even among the whites at that time, had taken on no actual status.
As I have heard the suggestion within the last couple of days, I think it was from the Attorney General's office, from the Assistant there, that, as a matter of fact, from their point of view, what they were at that time attempting to do was to reach a situation which they found. It was not a question of them actually appropriating, of them actually initiating. It was the fact of their appropriating.
They found a situation existing. Public education was for the poor people. The persons who had money sent their children to private schools, and public education had no such concept as is the present concept with respect to public education; and so, what happened was that Congress, finding that situation and desiring, as it unquestionably did desire, that something should be done for the Negro, just emancipated from slavery, attempted to do something in the way of appropriating moneys.
It is to be noticed that what they did or attempted first to do was to tax Negroes for their property, with an idea of Negro education in the public sense.
As I say, at that time it was not with respect to any public education, but rather in the nature of appropriations. There were no public schools so far as Negroes were concerned. It was not until 1864 that there was anything that purported to be a public school, as far as Negroes were concerned, and that was then in a private church, showing again that public education did not have the connotations that it presently has.
What they did was to attempt to give this Negro some opportunity for an education, and so it became a part of what the background was, that there was this appropriation for Negro education; and the things that happened subsequently, significantly so, were that in 1864 there was a requirement of compulsory education.
Now, that takes on, too, a different aspect, because as far as we are concerned, we find ourselves in a question of compulsory segregation, either announced, created or sanctioned by the Federal Government.
In 1864, I say then, they created compulsory education, and also provided that there might be the right of selection of persons who were white persons to send their children to a white school of their choice, and for Negroes to send Negro children to colored schools 'of their choice, the language at each time, if Your Honors please, being permissive in its character.
At no place in any of these enactments do we find language which specifically says, as they do in instances when the legislature feels disposed to say, "that this shall be a compulsory proposition as far as Negroes and whites are concerned," and the language in these statutes does not lend itself to anything other than permission rather than compulsion.
The enactments that came from that time forward, if Your Honors please—the question has been referred to of three lots which were to be given for the use of Negroes; another act which required that the money should be turned over to the Board of Education for Negro students because of the fact that moneys had been allocated and had not been properly applied.
Further along, the question of legislation having to do with assistant superintendents of the schools—there was that legislation—or with respect to the question of Boards of Examiners, all simply addressing themselves to a situation begun back in 1862, and which had been, shall I say, winked at and carried forward from that time forward, but not legislated upon, not made compulsory. With respect to that situation, there has been, perhaps, some addressing of itself to the question as far as our courts are concerned, and I say our courts now, meaning the courts of the District of Columbia.
But I would call Your Honors' attention to the fact, in the first instance, the case of Wall v. Oyster, that there was no question there raised of a character which is being raised before this Court. What happened then was that the person who was the petitioner desired not to be placed in a colored school. She had taken the position that she would rather be held a part of the white race and therefore was asking not to be put into a colored school.
As Your Honors will see, that begins with the premise that the segregation in and of itself was all right; that all that the person wanted to do was to be put into a school which they believed would not put them among the Negroes; and so we say to you in that case there was no issue of the character that is here being raised.
My attention is called to the fact that, as far as an interpretation of the statute was concerned—and this has significance which I want to bring to Your Honors' attention—that back in 1869—and I am reverting, now—that back in 1869 there was an issue that was raised as to whether a colored child who had been given a permit to go to a white school should be allowed to go to that school, and that question was posed to the Office of the Corporation Counsel of the District of Columbia, who appears for the respondent in this case; and the Corporation Counsel at that time, in 1869, took the position that there was nothing in the statute that avoided this child being admitted to the white school, and the record seems to indicate that the child was admitted to this school, continued to go there until they finished the colored school.
We call Your Honors' attention to that, not that we think it in any sense changes the situation, but rather to show the indecision that was a part of the picture, rather to show that even there, then at the time of the early promulgation of the statute, there was the interpretation by the substantial office of the Government that it permitted of going into the white school and that that being the allowed circumstance, it was accepted as such, and no issue was raised further with respect to that.
MR. JUSTICE FRANKFURTER: Mr. Hayes, in those days roughly what was the proportion of the colored population to the total population, just as a rough guess? Don't bother if you—
MR. HAYES: I would not like to give Your Honor an inaccurate statement. We did have calculations, and I think that somewhere—
MR. JUSTICE FRANKFURTER: Don't bother.
MR. HAYES: Mr. Nabrit suggests there were in the District some 11,000 Negroes at that time. I do not know the proportion that there were—I mean, that held to the total population—but there were some 11,000 Negroes, and at that time, as I have indicated to Your Honors, the education which they were getting was that of the benign gentlemen who were the philanthropists, and that type of thing, rather than any question of public education. There was also at that time, as a part of the population situation which Your Honor has just asked me, after the time that slavery was abolished in the District, there was a great influx of freedmen into this area because of that circumstance, naturally because of that circumstance—there was this great influx.
I was addressing myself to the question of litigation in some sense that had come up. This litigation came again in the case of Carr v. Corning, and in that case—well, there were two cases, Carr v. Corning and Browne v. Magdeburger, and the two cases were combined because of the fact that inherent in them was the same proposition.
The Brown v. Magdeburger case—this proposition, the question as to whether or not there was a violation of the constitutional right of a student because of the fact of being required to go into a school where there was the alleged inequality; that they were required to go where there was a double shift of students, so far as they were concerned; and the same proposition was raised in Carr v. Corning, but there was the additional proposition in the Carr v. Corning case, which we have raised in this case, and that was as to whether or not segregation as such, whether or not segregation per se was unconstitutional.
That is the position which we are taking with respect to these cases, that segregation per se is unconstitutional, and that without regard to physical facilities, without regard to the question of curriculum, and that if, as a matter of fact, there is a designation that one must go to a particular school for no other reason than because of race or color, that that is a violation of the constitutional right; and, as this Court has said, wherever the issue is raised with respect to color, then it is upon the Government to show that the reason for it—that there is a reason that is a justifiable reason. I shall address myself to that in a moment or two, if I have the time.
But with respect to this Carr v. Corning case, we take the position that, as far as the Carr v. Corning case was concerned, it simply was decided incorrectly; that our court of appeals was simply wrong in its decision.
We call attention to the fact that there was in that case a dissenting opinion by Mr. Judge Edgerton, which we commend to this Court as being more nearly what the law should be with respect to that case. In that case, Judge Edgerton went on to say that it was an improper concept to be able to have education based solely upon race or color. Judge Edgerton in that case says:
Appellees say that Congress requires them to maintain segregation—
—reading from page 48; page 48, Mr. Korman, in our original brief—
The President's Committee concluded that congressional legislation `assumes the fact of segregation but nowhere makes it mandatory.' I think the question irrelevant, since legislation cannot affect appellant's constitutional rights.
That is the position which we urge upon this Court, that it cannot be affected—that the constitutional rights of these people cannot be affected by legislation of any character; and Mr. Judge Edgerton in that case was saying the thing which we say to this Court, that in his opinion there was not any such showing as made the Board of Education take such a step, but that from his point of view it was irrelevant as to whether they did or not, because if it purported to affect the constitutional rights of these persons, that then there was no alternative but that the Court should declare it to be unconstitutional.
I have heard the question asked today as to under what heading it should come. This Court has told us under what heading it should come. It should come under the heading of liberty because this Court in Meyer v. Nebraska said it was a violation of the liberty of the person, which is the language of the Fifth Amendment upon which we stand, to deny to him their constitutional right, and that constitutional right was then an educational right, just as has been indicated to Your Honors before.
May I say this final word: that we believe that this Court has already determined this proposition in the Farrington v. Tokushige case where, with respect to the Hawaiian legislation, this Court struck down legislation saying that it was a violation of the person's constitutional right, talking about education, and referred to Meyer v. Nebraska, Bartels v. Iowa, Pierce v. Sisters, saying, "Yes, admittedly, they come under the Fourteenth Amendment, but, as far as the Fifth Amendment is concerned, the same thing is to be adopted"; and so we say to this Court that under whatever angle the situation is looked at in the District of Columbia, from whatever aspect we take it, that this Court, as we conceive it, cannot say to a waiting world that we sanction segregation in the District of Columbia for no other reason than because of the fact that the skin of the person is dark. That, this Court has said, is suspect; that, you have said, is void; that, you have said, should not be sanctioned; that, we believe, must be your decision.
MR. CHIEF JUSTICE WARREN: Mr. Nabrit.
ARGUMENT OF JAMES M. NABRIT, JR., ESQ.,
ON BEHALF OF THE PETITIONERS
MR. NABRIT: If the Court please, we have for the past two days been engaged continuously in a concentrated and thorough attempt to recapture the spirit and mood of a significant period in the history of our country. The danger in this, as I see it, is that in a worthy attempt to project ourselves into the remote scenes of the 1860's and '70's, that we shall lack either the normal apperceptions of men of that day which, though inarticulate, nevertheless were a part of their own concept of day-to-day events, or we shall miss the motivations of legislators, though known then by all, though not set forth in specificity by any, which agitated both men and events 88 years ago.
At best, I fear that we shall recapture only the overtones of these historical settings, the outlines of the broad sweep of events; but I hope at least we shall have grasped the general delineation of the primary purpose and objectives.
Men do not always set forth explicitly the motives which cause them to act as they do, nor do congressmen always explain in detail either the objectives which they seek in proposed legislation or the reasons why they support or fail to support a particular bill. In this posture of these cases, then, it seems to us that we need to be reminded of two facts of great importance and significance, as we consider the District of Columbia case.
First, none of this exhaustive discussion of history, however illuminating it may be, can conceal the blunt tact that under a system of legalized segregation millions of American Negroes live in this land of opportunity, equality and democracy as second-class citizens, suffering all types of civil disabilities imposed upon them in every aspect of their daily lives solely because of their race and color. Today we deal only with one significant aspect of it, segregation in public school education.
In the second place, in this posture of the cases, we should single out the District of Columbia for different treatment, not alone because the District of Columbia brings this case under the Fifth Amendment, but because this is the Federal Government dealing with federal citizens. Here is no question of the delicate relationship of state and Federal Government. Here we are dealing with the capital of the free world.
In this framework, we submit to the Court that the question before the Court is not merely the technical question of the construction of school statutes or the propriety or the reasonableness of the action of the respondents complained of here, but it is also the basic inquiry as to whether under our Constitution the Federal Government is authorized to classify Negroes in the District of Columbia as untouchables for the purpose of educating them for living in a democracy.
We say to the Court that this is not in line either with the principles of the Constitution of the United States, our ideals of democracy, nor with the decisions of this Court, nor with the executive orders of the President of the United States, nor with the orders of the Commissioners of the District of Columbia; and that so far as we have been able to find, with the exception of these school statutes, the training school in the District of Columbia and one or two other instances of that ilk, that there is in the District of Columbia no authority, no official, no body of responsible persons who takes the position that racial distinction should be imposed upon Negroes because of color, except for the respondents complained of here; and we say that these respondents do this in defiance of the decisions of this Court, the executive orders of the President of the United States, the policy of the District of Columbia Commissioners, and in that framework they violate federal policy, and that inconsistent position should lead this Court to deny these respondents the power which they claim to possess.
MR. JUSTICE FRANKFURTER: Have the Commissioners of the District expressed themselves on this subject?
MR. NABRIT: They have expressed themselves, Mr. Justice Frankfurter, as not having authority over the school board and, therefore, it is one of the phases of the life in the District of Columbia to which the thrust of their power does not reach.
MR. JUSTICE FRANKFURTER: Is the legislation of Congress clear that the school board is autonomous as to this question?
MR. NABRIT: I would like to—I will answer that, but I would like to answer it, instead of a yes or no—
MR. JUSTICE FRANKFURTER: You do whatever you want to; you give that before you get through.
MR. NABRIT: Yes. I want to answer that right now, Mr. Justice Frankfurter, because it is a peculiar situation.
In the District of Columbia the school board is not appointed by the President of the United States; it is not appointed by the District Commissioners; it is not chosen by the voteless inhabitants of the District of Columbia. Rather, it is appointed by the District Court of the District of Columbia, and, as we understand the situation in the District of Columbia, we do not know to whom they are responsible.
MR. NABRIT: That is the status of the school board in the District of Columbia.
MR. JUSTICE FRANKFURTER: They are appointed for a term?
MR. NABRIT: Of three years, and then they are either not reappointed or they are reappointed by the District Court of the District of Columbia.
MR. JUSTICE FRANKFURTER: By the District Court, you mean the whole bench of judges of the District, the United States District Court?
MR. NABRIT: Yes, sir; the United States District Court, a very unusual situation.
MR. JUSTICE FRANKFURTER: Does the district court define their powers or does the Code of the District of Columbia define their powers?
MR. NABRIT: Their Code—you know, under our setup in that area we have some administrative functions in the courts.
MR. JUSTICE FRANKFURTER: Does the Code say anything about the problem, the segregation of the grade schools?
MR. NABRIT: No, sir.
MR. JUSTICE FRANKFURTER: This is just a pronouncement by the board?
MR. NABRIT: That is right.
MR. JUSTICE FRANKFURTER: And the board has pronounced—
MR. NABRIT: The board has pronounced it, although I notice—and this is something that the Court may reprimand me for, but I noted—in the brief and in the papers that counsel for the respondent is not certain as to what the positions of all his respondents are on this matter.
MR. NABRIT: They are sued individually, you know.
MR. JUSTICE FRANKFURTER: All you have to do is read his brief; I do not know for whom he speaks.
MR. NABRIT: I neither, Mr. Justice Frankfurter.
MR. JUSTICE FRANKFURTER: I take it he will tell us before we get through.
MR. NABRIT: Yes, I hope so.
So, in this posture of the cases, we would like to say to the Court—and I say this primarily, if this is proper, so that the Chief Justice might have this, because I said it to the Court—but I want it understood that our position is that, number one, the statutes governing the schools in the District of Columbia, which were passed immediately prior to and during the Civil War, without any thought of whether segregation was good or bad, when schools in the United States, public schools themselves, were at issue as to whether people ought not to educate their children privately or not—they were only thirty years old at that time—in the District of Columbia they were only six years old—and here were these Negroes; there were these three systems of schools, public schools for whites, Negroes excluded, a private school for Negroes and a private school for whites—system of schools; these are all systems—Congress looked at these schools for Negroes getting no support and authorized support for them from taxes from the Negroes themselves; that is the first bill. Obviously, that did not do much good.
They then authorized taxes from all of the persons in the District to be used for that purpose, and in this four-year period, ending in the middle of the Civil War, all of the basic statutes governing the schools in the District of Columbia were enacted.
Under that circumstance and in that case, it is inconceivable that Congress would do anything but make a provision for people who had no schooling, no question of separate or anything else. It was just providing for schools that were found there.
Now, our position is that the Court should construe those statutes as voluntary, meaning by that what the congressman said in talking about them—and I do not cite him for history, but I cite him for the point, for his saying the point that I want to say on this point, that he said Negroes could go to the schools. That is all I need.
That is voluntary. If that be true, until somebody complains in this Court about the exertion of the power of government to compel him to go to one of these schools, there is nothing unlawful about that situation. Therefore, we do not have a history of lawless action by people in the District of Columbia.
Now, if the Court takes that view, it can dispose of the District of Columbia case simply by saying the states do not authorize compulsory segregation of races in the District of Columbia in the public schools, and your action complained of here is unlawful and violates due process. We don't have to go into any constitutional question. We just find they don't have the authority.
Now, I suggest that this Court has always done that when it was faced with the statute which it had not interpreted, and one interpretation would lead to a constitutional result, and the other interpretation would lead to a nonconstitutional result.
And since we suggest to you that if these statutes compel it, they would violate our federal policy, they would violate the due process clause of the Fifth Amendment, the liberty aspect of it, it would violate section 41 and 43 of Title 8 of the Civil Rights Act, that under these circumstances the Court should construe these as merely voluntary statutes; and that in the event the Court doesn't agree, it has still to deal with the question of whether they are not in the nature of bills of attainder. So we suggest as our line of argument that the Court say there is no authority for the actions complained of. It is out of line with the District of Columbia. Now, the counsel for the respondents—
MR. JUSTICE REED: On whose part was the complaint?
MR. NABRIT: On the part of the pupils and the parents. Here are two systems of education. Everybody has been going in there without any complaint for sixty or seventy years.
MR. JUSTICE FRANKFURTER: Who has kept these children out of this?
MR. NABRIT: Before this?
MR. JUSTICE FRANKFURTER: Now.
MR. NABRIT: Oh, these respondents, these people—we have got them named. We have them all pointed out.
MR. JUSTICE FRANKFURTER: Do they make a justification for that?
MR. NABRIT: They do.
MR. JUSTICE FRANKFURTER: What do they say?
MR. NABRIT: On the grounds of race and color and that "we are compelled by these statutes."
MR. NABRIT: Oh, no. They say they are compelled to do it. They don't make any technical differential between authority and compel. They say they are compelled by these statutes to do it.
MR. JUSTICE FRANKFURTER: Suppose we say the statutes do not compel them and then they say it is a matter of discretion: "We ourselves think it is a matter of discretion"?
MR. NABRIT: Well, all we would do—
MR. JUSTICE FRANKFURTER: Start a new suit?
MR. NABRIT: I was just going to tell you, we would file suit that day.
MR. JUSTICE FRANKFURTER: I am merely suggesting it is multiplying litigation instead of subtracting it.
MR. NABRIT: Well, at least we are going along with the line that the Court follows of restraining itself from engaging in decisions of constitutional questions when it may resolve the problem by a step less than that.
One other thing the Court may do—and I like the Schneiderman case because the Court did something there that I think we don't use enough.
MR. JUSTICE FRANKFURTER: You are for opinions that you like, is that it?
MR. NABRIT: That's right. I like this Schneiderman opinion, Mr. Frankfurter, because in that case the Congress passed, you will recall, an attachment statute in 1906. An alien was naturalized in 1927. About 1919, I believe, Mr. Justice Holmes enunciated that clear and present danger doctrine. In '42, when this Court passed on that statute for the first time, they read into that statute the intent which Mr. Holmes first discovered—I won't say discovered—announced, twenty years, almost, after the statute was passed.
Now, why can't the Court in this case read into these statutes an intent on the part of Congress not to segregate Negroes by compulsion following the Schneiderman case?
MR. JUSTICE FRANKFURTER: That is easier than worrying about what they debated in '66.
MR. NABRIT: Precisely. That is precisely our position.
Now, I would say, I want to say—I want to save ten minutes, but I want to say one thing on this matter of due process, because it seems to me the Court has had a remarkable record in dealing with the exertions of power by the Federal Government on its citizens where it was based solely on race or color; and if I am correct, the only instances where the Court has permitted that to be done since Dred Scott has been in the case where war power was involved, and implied power essential to effectuate the war power. With great reservations the Court has permitted the Federal Government to make racial distinctions.
Now, I think that that establishes the fundamental principles upon which our case rests, and that it is in line with the policy of this Court, and we would there urge the Court under these considerations to hold that the respondents are without power in the District of Columbia to discriminate or segregate the Negro pupils solely on the basis of race and color.
MR. CHIEF JUSTICE WARREN: Mr. Korman?
ARGUMENT OF MILTON D. KORMAN, ESQ.,
ON BEHALF OF THE RESPONDENTS
MR. KORMAN: Mr. Chief Justice, may it please the Court:
At the outset I should like to state the position of the Corporation Counsel of the District of Columbia in this matter. I stand before the Court to defend acts of Congress which we believe to be lawful and constitutional. I stand before the Court to assert that this is not the forum wherein laws should be attacked because change is wanted. I stand before the Court, as we stood before the Court on May 1 of this year, to defend legislation which we think is valid legislation and constitutional legislation. I refer to the Thompson restaurant case. At that time, we found statutes enacted in 1872 and 1873 which required service to all well-behaved persons in any restaurant, hotel, or other place of assembly in the District of Columbia, irrespective of race and color.
For 75 or 80 years no one had attempted to enforce those laws. They were believed to be dead. They were called to our attention; we looked into the history of them; we studied the statutes and acts of legislatures thereafter. We studied the Constitution of the United States and the decisions of this Court, and we came to the conclusion that those statutes were valid, even though lying dormant for all those years, and that they were constitutional, and we came here to defend them.
Now, we say to the Court that there are statutes enacted by the Congress of the United States which provide for separation of races in the schools; that they have not lain dormant for 75 or 80 years, but they have been repeatedly legislated upon by the Congress of the United States. It appears that they are still valid, that it is still the policy of the Congress to maintain separate school for the races in the District of Columbia, and we are here to defend the validity and the constitutionality of those laws.
MR. JUSTICE FRANKFURTER: When you say "we," am I to infer that means the Board of Education of the District of Columbia?
MR. KORMAN: You are, sir. I speak for the Board of Education of the District, although I admit very frankly in our brief that I have not talked to the individual members so far as their position on the sociological issue is concerned.
MR. JUSTICE FRANKFURTER: I do not know what that means.
MR. KORMAN: It means this—
MR. KORMAN: From public statements that I have seen in the press, it appears that at least some members of the Board of Education are strongly convinced at this time that the time has come for a change in the system; that the time has come to integrate the schools of the District. Indeed, I concede that there is a strong movement in the District of Columbia from a number of sources to strike down segregation in all fields. The President of the United States has made the pronouncement that he expects to use all the power of his office to accomplish that end. The Commissioners of the District of Columbia have made a pronouncement that they intend to try to implement the statement of the President, and they have, in fact, taken action in that direction.
I say that there are many people in the District of Columbia who feel that way. By the same token, statements have come to me from a number of sources that there are others who think otherwise; indeed, I am constrained to believe that some members of the Board of Education believe otherwise. But as we see it, that issue, which is the one I called the sociological issue, is not the one involved here.
MR. JUSTICE FRANKFURTER: But my question is to elicit, not by anything other than what I read in your brief, that this is a strictly legal position which you take as an officer of the Court. I supposed the Corporation Counsel must represent appellants or respondents before the Court.
MR. KORMAN: That is right.
MR. JUSTICE FRANKFURTER: And it becomes relevant to know whether the Board of Education of the District maintains and has instructed the Corporation Counsel to maintain the position which you are putting and which you now plead before the Court.
MR. KORMAN: Yes, Your Honor.
MR. JUSTICE FRANKFURTER: Then you do speak for the Board of Education?
MR. KORMAN: Yes, I do.
MR. JUSTICE FRANKFURTER: All right.
MR. KORMAN: I speak for the Board of Education in that the position we take here today is the same position that we took here one year ago, and slightly more than a year ago, when we filed the original brief, and we have not changed our position on that. We advised the Board of Education what the law is; they do not tell us what the law is.
MR. JUSTICE FRANKFURTER: No, but clients do not have to pursue their rights under the law. They may take a position in advance of the law, and lawyers do not maintain positions. They merely maintain their clients' positions.
MR. KORMAN: May I say this to the Court: that the Board, while it is sued individually, is sued individually because it is not an entity, as a matter of law. The petition in this case asserts, and it is a fact, that the Board of Education itself denied these petitioners entry into the school that they claim they have a right to enter into.
MR. JUSTICE FRANKFURTER: I do not want to take needless time. It is a simple question. You tell the Court that you are here, as other counsel are here, under instructions appropriately given by their clients, and, of course, I will accept your word for it.
MR. KORMAN: At the time this case was first filed, the Corporation Counsel was asked by the Board of Education to defend it in the district court. We were definitely apprised of the position of the Board of Education.
The case arose in 1950. Since that time there has been a decided change in the personnel of the Board of Education. There are some eight of the nine members who have been replaced. Only one, Mr. Sharpe, still remains of the original defendants in the district court.
There has been no notification to us that the new Board—the Board as now constituted, and which denied to these petitioners the entry into the school which they claimed the right to enter—has changed its position in that regard. We have seen some statements in the press by some members of the Board which have been alluded to in the briefs.
MR. JUSTICE FRANKFURTER: I do not care about that, and the reason why I think it is important is—I hope this is not improper for stating my own individual responsibility—to the extent that problems of this sort are settled outside a court of law, to that extent, in my opinion, the public good is advanced; and if, by any chance, settlements are made in various jurisdictions through the power of those who have power to settle it, I call it all to the good, without the need of litigation and adjudication and controversy. Therefore, I raised the question.
If you will give me assurance that you are here by the same right by which the State of South Carolina is represented by its counsel, and the State of Virginia—and the Commonwealth of Virginia—by its, of course, I repeat, I will accept your word.
MR. KORMAN: We are here on that condition; yes, sir.
MR. JUSTICE FRANKFURTER: Very well.
MR. JUSTICE BLACK: May I ask you, I do not quite understand you, because you stated—when was it, a year ago, that you said the Board had changed? Will you let us know in the morning, when the case comes up, whether the Board wants you to defend this case? It has raised some question in my mind, and I think—
MR. KORMAN: I do not know whether I can or not, Your Honor. The Board is composed of nine members; I do not know whether it is possible to get them together tonight or not.
MR. JUSTICE JACKSON: Isn't the Corporation Counsel by law made the representative of the Board?
MR. KORMAN: That is right.
MR. JUSTICE JACKSON: I think that settles it. You may have a row with your own clients, but that is not our business.
MR. JUSTICE FRANKFURTER: The question is, your client at the moment—
MR. KORMAN: My client is the Board of Education.
MR. JUSTICE FRANKFURTER: Yes, but they do not know it, apparently.
MR. KORMAN: There are a number of other respondents, who are the superintendents of schools, and some of the assistant superintendents of schools, and the principal of the Sousa Junior High School. They are all respondents in this case, and we were directed to represent them by order of the Commissioners of the District of Columbia specifically, because there were other respondents or defendants in the case, as originally filed, than the actual members of the Board of Education, and in those instances we get an order from the Commissioners of the District of Columbia to represent the parties. We have such an order.
[Whereupon, at 4:30 o'clock p.m., argument in the above-entitled matter was recessed, to reconvene the next day.]
Wednesday, December 9, 1953
SPOTTSWOOD THOMAS BOLLING, ET AL.,
—vs.— No. 8
C. MELVIN SHARPE, ET AL.,
Washington, D. C.
Wednesday, December 9, 1953.
Oral argument in the above-entitled cause was resumed, pursuant to recesss,
EARL WARREN, Chief Justice of the United States
HUGO L. BLACK, Associate Justice
STANLEY F. REED, Associate Justice
FELIX FRANKFURTER, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
ROBERT H. JACKSON, Associate Justice
HAROLD H. BURTON, Associate Justice
THOMAS C. CLARK, Associate Justice
SHERMAN MINTON, Associate Justice
MILTON D. KORMAN, ESQ., on behalf of the Respondents—Resumed.
JAMES M. NABRIT, JR., ESQ., on behalf of the Petitioners.
MR. CHIEF JUSTICE WARREN: No. 8, Spottswood Thomas Bolling, et al., v. C. Melvin Sharpe, et al.
THE CLERK: Counsel are present.
MR. CHIEF JUSTICE WARREN: Mr. Korman?
ARGUMENT OF MILTON D. KORMAN, ESQ.,
ON BEHALF OF RESPONDENTS—RESUMED
MR. KORMAN: May it please the Court:
When the Court rose on yesterday, we were having some discussion concerning the right of Corporation Counsel to appear here as counsel for the respondents. On yesterday I made certain statements to the Court. I should now like to document those statements to some extent.
Section 1301 of the Code of Law for the District of Columbia provides that the Corporation Counsel
...shall be under the direction of the Commissioners and shall have charge of the conduct of all law business of said District, among other things.
And it provides further that:
He shall perform such other professional duties as may be required of him by the Commissioners.
I said to you on yesterday that the last action of the respondent members of the Board of Education as set forth in the complaint filed in this case below was to deny to the petitioners admission to the Sousa Junior High School, which is set apart for the instruction of white students. You will find that statement on page seven of the record.
I have in my hand a copy of a letter sent by Mrs. Elise Z. Watkins, the secretary of the Board of Education, to Mr. George E. C. Hayes, with copies to Mr. Merican and Mr. Nabrit, under date of November 6, 1950. I shall not read the whole letter. It acknowledges receipt of a letter from Mr. Hayes, Mr. Merican and Mr. Nabrit under date of October 31, 1950, requesting admission of the petitioners to the Sousa Junior High School. The letter continues:
In reply to your letter, you are advised that the following motion was passed by the Board: `That the Board feels it has fulfilled its obligation as far as it is capable and that the request to send children to the Sousa Junior High School be denied.'
On the bottom of that is this certification by Mrs. Watkins:
I hereby certify that this letter embodies the action of the Board of Education taken at its meeting on November 1, 1950. I am familiar with all of the actions of the Board of Education since that time, and the Board of Education has taken no action to rescind or change in any manner its action on November 1, 1950, as reflected in this letter to Mr. George E. C. Hayes, dated November 6, 1950.
I said to you on yesterday that the Board of Education—
MR. CHIEF JUSTICE WARREN: What was the date of that certificate, sir?
MR. KORMAN: That certificate is dated—it is not dated, Your Honor. It was signed yesterday evening. It is a copy of a letter written November 6 with an up-to-date certification as of today.
MR. CHIEF JUSTICE WARREN: Thank you.
MR. KORMAN: I said to you on yesterday that the Board of Education had requested the Commissioners to direct the Corporation Counsel to represent them in this action, and that the Commissioners had so directed us. I have in my hand a copy of a letter prepared by Mrs. Watkins, the secretary of the Board of Education, and I have also in my hand a duplicate original of that letter dated November 13, 1950, which came to the office of the Corporation Counsel. The letter is to the Board of Commissioners of the District of Columbia, and without burdening the Court to read the whole thing, it asks the Commissioners to direct the Corporation Counsel to represent all of the respondents in two civil actions, one of which is Bolling v. Sharpe. Mrs. Watkins has put this certification as of last evening on a copy of that letter:
I hereby certify that the foregoing is a true and correct copy of the letter sent by me to the Board of Commissioners, D. C., under date of November 13, 1950, at the direction of the President of the Board of Education.
This is the usual letter which is sent to the Board of Commissioners whenever the Board of Education or its members or its public school officers have been sued, and is in accordance with Chapter 1, Article 9, section 1 of the rules of the Board of Education, which provide, when legal advice or service as counsel is desired by the Board of Education upon matters relating to the administration of school affairs, application shall be made to the Commissioners, D. C., for the services of the Corporation Counsel of the District of Columbia.
Mrs. Watkins continues:
I am familiar with all of the actions of the Board of Education since the date of the letter of which the foregoing is a copy, and certify that the Board of Education has taken no action to rescind the request of the President of the Board of Education that the Board members, the superintendent of schools, and the public school officers be represented by the Corporation Counsel of the District of Columbia in regard to the civil actions enumerated in the foregoing letter.
In the case of Denney v. Callahan in 294 Federal 992, it was held that the rules of the Board of Education have the force and effect of law.
I have in my hand a certification by Mr. G. M. Thornett, secretary for the Board of Commissioners, D. C., prepared last evening, certifying—I shall read it:
I hereby certify that the following is a true and exact excerpt from the minutes of the meeting of the Board of Commissioners of the District of Columbia on November 14, 1950.
I shall not read the whole order, but I say to the Court that it contains a direction to represent the various members of the Board of Education and the various school officers named as respondents in this case denominated Spottswood Thomas Bolling, et al. v. C. Melvin Sharpe, et al. There has been no withdrawal of any of that, and I should be very glad if the Court desires to file these copies with the Clerk of this Court, with sufficient copies for each member of the Court, if required.
I may say to you further that on last evening Mr. West, the Corporation Counsel, Mr. Gray, the Assistant Corporation Counsel, and I held what might be called a four-way telephone conversation with Mr. Sharpe, the President of the Board of Education, and we were assured by him that we have the right to stand before you and say that we represent the members of the Board of Education in this controversy.
This morning Mr. Sharpe telephoned me about ten-thirty to say that of his own volition he had contacted all the members of the Board of Education, and that he could say to me that, in his own words, one hundred percent they say that I have the right to stand before you to represent them in this controversy; that they want decided the question of the constitutionality and the validity of the acts of Congress under which the dual school system in the District of Columbia is being maintained.
MR. JUSTICE BLACK: May I ask you, then, this question? The reason I asked you the question yesterday was not that I doubted your right as Corporation Counsel to defend them if they wanted the case defended. You say they want the constitutionality decided.
MR. KORMAN: And the validity of these acts.
MR. JUSTICE BLACK: I understand that. The thing that disturbed me, more from what had been said, I gathered the impression there is the implication that perhaps the majority of the Board were going to change the rules; and, if so, I did not think that the Court should be called upon to decide the constitutionality of the rules.
MR. KORMAN: May I say this, Mr. Justice Black. I do not understand that there is a majority of the Board that has such a feeling. I am not sure. It may be that that is the case.
MR. JUSTICE BLACK: That was the cause of my interest in the question I asked you. That was the point in my mind.
MR. KORMAN: But I may say to you further, sir, that our position as legal advisers to the Board is that they have not the right to make any change in the system, because we firmly believe, and I hope to establish to you in argument today, that the acts of Congress require the maintenance of separate schools for white and colored children in the District of Columbia, and that those acts of Congress are constitutional.
I may say to you further, that that has been passed on indirectly by this Court in the case of Plessy v. Ferguson in 1896, directly by the United States Court of Appeals for the District of Columbia in 1910 in the case of Wall v. Oyster, and directly and specifically in the cases of Carr v. Corning and Browne v. Magdeburger in 1950 by the United States Court of Appeals for the District of Columbia Circuit, holding in so many words that the acts of Congress required the maintenance of separate schools for white and colored children, and that those acts of Congress are constitutional.
It does not lie in my mouth to say to the members of the Board of Education that they have a right to fly in the face of such decisions, and I say to you that they could not make any change as we understand the law, and I think as they understand the law, however much any of them might want the law to be otherwise.
MR. JUSTICE BLACK: Of course, that would be a different lawsuit. I don't suppose that the Corporation Counsel would have a right to defend the Board or require them to appear as defendants if a majority of them decided that they wanted to change the rule. Now, I can understand mandamus might be filed against them or something of that kind.
MR. KORMAN: I would think that under those circumstances, sir—I don't know whether we would be called on to represent them or not, but if we were, I would feel constrained to go before the Court and confess error, because we believe the law is otherwise.
As I said to the Court on yesterday, we stand here to maintain the validity of these acts of Congress, just as we stood before this Court in May and asked this Court to sustain the validity of other legislative enactments in the Thompson restaurant case; that in the one case segregation is inveighed against and that in the other it is required, is to us a legal immateriality. We say that Congress has a right and that the legislature which enacted the other laws had the right, to pass such laws, and they are in effect in the District of Columbia.
I should like to touch on the question of the kind of decree which might be entered by the Court in the event of unconstitutionality. I take this up at this point because I believe that the Court will not reach that point, but I think that in respect of the Court's wishes, I should say something about it, because the question was asked.
MR. JUSTICE DOUGLAS: Are you going to reach the legal questions, whether the District of Columbia statutes—
MR. KORMAN: I expect to cover that further.
MR. JUSTICE DOUGLAS: —are mandatory or are merely permissive?
MR. KORMAN: Yes, I expect to reach that. We have suggested in our brief on reargument that the Court should not enter any detailed decree. On page 17 of our brief we merely make this suggestion:
The soundest suggestion that counsel for respondents can make to the Court concerning the nature of the order, if unconstitutionality is to be decreed, is that the Court make recognition of the necessity for proper preparation and changes which appear essential to perfect integration in all jurisdictions and remand the cases to the respective district courts with instructions for such courts to prepare decrees directing the immediate commencement of such preparation, with periodic investigation by the district courts of the progress thereof, with direction that, in accordance with the principle of unconstitutionality of separation of races in schools, integration be commenced at the earliest possible date, and that complete integration be accomplished by a definite future date, not to exceed in any jurisdiction more than a maximum period of time.
And we do not suggest any maximum period of time.
MR. JUSTICE JACKSON: If you can't, how are we going to? How are we going to be better informed on that than you?
MR. KORMAN: I don't know that you can be, Your Honor, and I don't know that I can help, and I don't know that any counsel here can help the Court, for the reason that it appears in the District of Columbia and in many of these states legislation may be necessary, as has been suggested by members of the Court. Some officers may move slower than others, some may resign, not want to serve at all, and so forth. Those are contingencies which I frankly don't know how the Court can deal with.
Perhaps it might be better—and I know that my friends on the other side will disagree with this—that no positive future date be set, but that the matter be left to the district courts, because I don't think that anyone can now determine what those lengths of time will be. Certainly I can't predict what time may be required to get Congress to act on something.
MR. CHIEF JUSTICE WARREN: Mr. Korman, is there any legal question involved in remanding this to the District Court of the District of Columbia, in view of the fact that the district court itself appoints the members of the Board of Education, who are the appellees in this case?
MR. KORMAN: I don't think so, sir.
I may say, sir, that there have been many cases that have come before that court involving the Board of Education since the Organic Act of 1906, when they got the authority to appoint members of the Board of Education, and the record will show that they have dealt quite firmly and severely with the members of the Board when necessary. I don't think there is any tie between the members of the bench and the members of the Board, so that it would be at all embarrassing in any way for them to take positive and firm action if necessary, even in opposition to wishes of some of the members of the Board. I don't anticipate that that would ever come up.
Indeed, my thought is that the matter would be worked out quite amicably. I am inclined to believe that the Board of Education, if there should be a mandate from this Court that segregation is unconstitutional, would take immediate steps to try to plan and work out the desegregation of the schools of the District of Columbia as quickly as possible.
I have made some suggestions in the brief concerning things that I believe are necessary to be done before the actual reshuffling of children takes place. I don't believe that my opponents agree with me.
Indeed, I am not at all sure that all of the members of the Board of Education, from some public statements I have seen in the press, agree with some of the things that I have said; but I assure the Court that I did not pluck them out of the air. I consulted with the chief executive of the Board of Education, the Superintendent of Schools, at some length. I consulted with representatives of the United States Government in the United States Department of Education. I consulted with others, and I have read on the subject; and I am firmly of the belief that some preparation and indoctrination of the teachers to handle integration is a prime prerequisite.
My friends on the other side take me to task for this, and they say that these things are not necessary; but yet, there is a strange situation developed. In their reply brief, on page 17 and on page 16, they have an indication that the American Friends Service Committee has conducted courses of instruction for some 120 enrollees in four classes or seminars extending from last March until November of this year.
It is not shown whether the 120 enrollees were thirty who enrolled four times in each of the four seminars. There are, however, 3,500 to 3,600 teachers in the public school system. I should like to call the Court's attention to the fact that in the appendix to the brief which we have filed on reargument, there is a letter from the Superintendent of Schools of the District of Columbia which shows that instructional courses have been provided for recreational workers, so that they will be properly indoctrinated in the handling of integration in recreation areas, and we~ find that those courses were put on a voluntary basis, and at the expense of these organizations: The National Conference of Christians and Jews, the Jewish Community Council of Greater Washington, the American Friends Service Committee, the Washington Interracial Workshop, the Washington Federation of Churches, the Catholic Interracial Council, the Washington Urban League, and the Unitarian Fellowship for Social Justice.
Now, strangely enough, in this yellow-backed brief which was filed as a friend of the court last year, before this case was argued, we find these organizations, among others, that are advocating the striking down of segregation in the district court: The Catholic Interracial Council, the Commission on Community Life of the Washington Federation of Churches, the Friends Committee on National Legislation, the Jewish Community Council of Washington, the Unitarian Fellowship for Social Justice, the Washington Interracial Workshop, the Washington Urban League.
And so we see that the organizations that are urging this Court to strike down segregation are conducting courses to instruct teachers and workers in the proper way to handle integration, and if that is not an acknowledgment that it is necessary, then I don't know what is.
May I say one thing further. The complaint in this case asks for a declaratory judgment that the acts of Congress under which separate schools are conducted in the District of Columbia are unconstitutional. It would seem to me that a decree by this Court that segregation is unconstitutional would require the lower court to enter such declaratory judgment, and that would indeed cover the whole situation in the District of Columbia, and not just this handful of students who have brought this suit; and so I don't think we have the problem that was suggested by Mr. Justice Jackson, that the decree would only go to the immediate petitioners.
MR. JUSTICE JACKSON: You have all of your authorities here?
MR. KORMAN: Sir?
MR. JUSTICE JACKSON: All of your authorities are in this litigation, aren't they?
MR. KORMAN: Yes.
MR. JUSTICE BLACK: The petition asks that we enter a declaratory judgment, or the Court does, stating that the defendants are without right, construing the statutes having to do with public education as requiring the Board to do this. That is the first question that has to be decided, isn't it?
MR. KORMAN: I think so, sir.
MR. JUSTICE BLACK: And I would assume that it should be construed in a way possible so that we don't reach a constitutional question.
MR. KORMAN: That has been the policy of this Court; but by the same token, it has been the policy of this Court, as expressed in the Butler case, every presumption is to be indulged in favor of faithful compliance by Congress with the mandates of the fundamental law. Courts are reluctant to judge any statute in contravention of them, but under the frame of our government, no other place is provided where the citizen may be heard to urge that law fails to conform to the limit set upon the use of a granted power. When such a contention comes here, we naturally require a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress.
Now, I realize that that is not completely apposite, because it does not go to the constitutionality, but to construction, which is a different thing; but I believe I can demonstrate to you that these acts of Congress do require the maintenance of separate schools.
MR. JUSTICE BLACK: Has it been construed by the local district court or the local court of appeals—
MR. KORMAN: Yes, sir.
MR. JUSTICE BLACK: —in this respect?
MR. KORMAN: In this respect. They have been twice so construed, in the case of Wall v. Oyster in 1910, and in the combined cases which were consolidated for argument and consolidated opinion, Carr v. Corning and Browne v. Magdeburger, decided in 1950.
MR. JUSTICE FRANKFURTER: Did Judge Prettyman in the Carr case explicitly deal with this problem? He sustained the segregation and he sustained the constitutionality, but was it an issue in that case, whether the segregation was to be sustained because that was the system which the Board enforced, or that segregation was sustained because the statutes compelled the court to enforce them?
MR. KORMAN: The question was raised in that case, and Judge Prettyman—
MR. JUSTICE FRANKFURTER: Did he discuss that problem, Mr. Korman. That is what I want to know.
MR. KORMAN: He reviewed all of the statutes, and then he said—
MR. JUSTICE FRANKFURTER: And said segregation is constitutional?
MR. KORMAN: No. He said this. It is set forth more fully in the brief we filed last year. I have this quote in my notes. After citing the various statutes, he said:
These various enactments by Congress cannot be read with any meaning except that the schools for white and colored children were then intended to be separate.
That was his conclusion, and I think I can demonstrate that to you by reviewing the statutes, which I should like to do.
MR. JUSTICE FRANKFURTER: I am not questioning that, but as I remember his opinion and as I remember Judge Edgerton's dissent, they did not clinch, if I may use a vulgarism, on that question.
MR. KORMAN: I am quite in agreement with you that Judge Prettyman and Judge Edgerton did not clinch on that question.
MR. JUSTICE FRANKFURTER: That is all I am trying to find out, the scope of the decision on that question.
MR. KORMAN: But Judge Clark clinched pretty well on that.
MR. JUSTICE FRANKFURTER: In that case?
MR. KORMAN: Yes.
MR. JUSTICE FRANKFURTER: Was there an opinion by Judge Clark?
MR. KORMAN: No. He joined Judge Prettyman in the majority
MR. JUSTICE FRANKFURTER: How can a concurring judge go beyond what he concurs with, unless he says so? I don't understand that.
MR. KORMAN: Well, my understanding—
MR. JUSTICE FRANKFURTER: He may have done so from the bench, but so far as my reading goes, which is all I have in these matters, I did not see that that issue was in contest between the judge who wrote the majority opinion and the judge who wrote the dissent.
MR. KORMAN: I don't think it was in contest between those two, no.
MR. JUSTICE FRANKFURTER: All right, that is all there is in the books. I have no private edition of their opinion.
MR. KORMAN: Well, sir, Judge Clark joined with Judge Prettyman—
MR. JUSTICE FRANKFURTER: But he could not join more than what Judge Prettyman wrote.
MR. KORMAN: No, but he joined that much, and Judge Prettyman wrote—
MR. JUSTICE FRANKFURTER: So I read Judge Prettyman's opinion—
MR. KORMAN: And I think it bears out my opinion.
MR. JUSTICE FRANKFURTER: Very well.
MR. KORMAN: May I then proceed to a review of these enactments? I think it should be said to the Court that in 1862 Congress passed an Act on April 16 by which the slaves in the District of Columbia were freed, and slavery was abolished. At that time there was in the District of Columbia two cities and a county, all of which were ruled by Congress. There was the City of Washington and the City of Georgetown, and the county, which was ruled, governed, by a levy court; and the legislation for all of them was by Congress. About a month later, on May 20, Congress provided for schools for the county. Up to that time there had been no schools at all in the county. There had been, for some years, public schools in the cities for white children, but not for colored children.
In the Act of May 20 setting up the colored schools, setting up the schools in the county, there was a law enacted, some 36 sections, and in one of those sections, section 35, as I recall, they provided schools, separate schools, equal schools, for the colored children. May I refer to the Act itself and read you some of the—
MR. JUSTICE DOUGLAS: What Act is this?
MR. KORMAN: This is the Act of May 20, 1862.
MR. JUSTICE DOUGLAS: That was the first one?
MR. KORMAN: Yes, sir. That was the one which set up schools in the county for white and colored children.
MR. JUSTICE DOUGLAS: Is this in your brief?
MR. KORMAN: No, this is in the petitioners' brief on page 23. It is set out in extenso, and we did not set it out again.
And be it further enacted, that the said levy court may in its discretion, and if it shall be deemed by said court best for the interest and welfare of the colored people residing in said county, levy an annual tax of one-eighth of one percent on all the taxable property in said county outside the limits of the cities of Washington and Georgetown, owned by persons of color, for the purpose of initiating a system of education of colored children in said county.
Discussions on this indicate that there were not many colored people in the county.
. . . levy an annual tax of one-eighth of one percent on all the taxable property in said county outside the limits of the cities of Washington and Georgetown, owned by persons of color, for the purpose of initiating a system of education of colored children in said county, which tax shall be collected in the same manner as the tax named in section 13 of this Act. And it shall be the duty of the trustees elected under section 9 to provide suitable and convenient rooms for holding schools for colored children, to employ teachers therefor, and to appropriate the proceeds of said tax to the payment of teachers' wages, rent of school rooms, fuel and other necessary expenses pertaining to said schools, to exercise a general supervision over them, to establish proper discipline, and to endeavor to promote a full, equal and useful instruction of the colored children in said county.
I think I might skip down to the last sentence at the bottom of that page:
And said trustees are authorized to receive any donations or contributions that may be made for the benefit of said schools by persons disposed to aid in the elevation of the colored population in the District of Columbia.
And so you see that here is Congress setting up a system of schools in the County of Washington for white children, and in one section of the same Act, setting up separate schools for colored children, and saying that they shall be equal in all respects. It seems to me that this is the beginning of the "separate but equal" doctrine.
Now, then, on the next day, May 21, 1862, the Congress set up schools for colored children in the cities, the cities of Washington and Georgetown, and therein they provided a tax of ten percent on the property of colored persons for the maintenance of these colored schools. Now, unusually enough—and I have to burden the Court with reading—but this is an Act of four sections.
My friends yesterday spoke about the striking down of the Black Codes, and here we see in one Act the establishment by the Congress in the District of Columbia, of separate schools for Negro children and the striking down of the Black Codes, all in one Act:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that from and after the passage of this Act it shall be the duty of the municipal authorities of the cities of Washington and Georgetown, in the District of Columbia, to set apart ten per centum of the amount received from taxes levied on the real and personal property in said cities owned by persons of color; which sum received for taxes, as aforesaid, shall be appropriated for the purpose of initiating a system of primary schools, for the education of colored children residing in said cities.
This is section 2:
And be it further enacted, that the board of trustees of public schools in said cities shall have sole control of the fund arising from the tax aforesaid, as well as from contributions by persons disposed to aid in the education of the colored race, or from any other source, which shall be kept as a fund distinct from the general school fund; and it is made their duty to provide suitable rooms and teachers for such a number of schools as, in their opinion—
—not classes, but "such number of schools as, in their opinion"—
. . . will best accommodate the colored children in the various portions of said cities.
Section 3. And be it further enacted, that the board of trustees aforesaid shall possess all the powers, exercise the same functions, have the same supervision over the schools provided for in this Act, as are now exercised by them over the public schools now existing in said cities by virtue of the laws and ordinances of the Corporation thereof.
Obviously, they mean the setting up of separate schools for the Negroes.
Now, section 4—and this strikes down the Black Codes in the same Act:
And be it further enacted, that all persons of color in the District of Columbia, or in the corporate limits of the cities of Washington and Georgetown, shall be subject and amenable to the same laws and ordinances to which free white persons are or may be subject or amenable; that they shall be tried for any offenses against the laws in the same manner as free white persons are or may be tried for the same offenses; and that upon being legally convicted of any crime or offense against any law or ordinance, such persons of color shall be liable to the same penalty or punishment, and no other, as would be imposed or inflicted upon free white persons for the same crime or offense; and all acts or parts of acts inconsistent with the provisions of this Act are hereby repealed.
So it seems to me that thereby is a positive demonstration that Congress wanted to do something for these newly freed slaves, but at the same time, while giving them these rights of the white man, the right to be tried in the same courts, the right to be subject only to the same punishments and so on, all of these things in the same Act, and sets up for him separate schools.
MR. JUSTICE REED: What Act is that?
MR. KORMAN: That is the Act of May 21, 1862, 12 Stat. 394, page 407.
MR. JUSTICE REED: Is that in here?
MR. KORMAN: The citation is in there, but the full text is not in my brief.
MR. JUSTICE DOUGLAS: It is 12 what?
MR. KORMAN: 12 Stat. 407.
Now then, that was on May 21. On July 11, in the same year, Congress established a board of trustees for colored schools. You see, these schools had been set up under the existing board of trustees, which handled the white schools, and they established a separate board of trustees for the colored schools; and they transferred the authority from the board of trustees of the schools, as set forth in the Act of May 21, to the new board of trustees for colored schools; and in that connection, may I read to the Court something that was said by Senator Grimes on the Senate floor at the time that was being considered:
I am instructed by the Committee on the District of Columbia, to whom was referred the bill of House of Representatives No. 543, relating to schools for the education of colored children in the cities of Washington and Georgetown in the District of Columbia, to report it back and recommend its passage.
And then, after something further which is not concerned here, he said this: "The motion was agreed to"—this is from the Congressional Globe—
The motion was agreed to and the bill was considered as in the Committee of the Whole. It provides that the duties imposed on the board of trustees of the public schools of the cities of Washington and Georgetown in the District of Columbia, by virtue of an Act entitled `An Act Providing for the Education of Colored Children in the Cities of Washington and Georgetown, District of Columbia, and for Other Purposes,' approved May 21, 1862, be transferred to Daniel Breath, Zales J. Brown, and Zena C. Robbins and their successors in office, who are now to be created a board of trustees of the schools for colored children in those cities, who are to possess all of the powers and perform all the duties conferred upon and required of the trustees of public schools in Washington and Georgetown by the Act referred to.
And I am still quoting—
. . . are to hold their offices for the respective terms of one, two, and three years to be determined by lot, and it is to be the duty of the Secretary of the Interior on the first day of July, 1863 and annually on that date thereafter to appoint from among the residents of those cities a trustee in place of the one whose term has expired.
And so on. The bill became law.
The next enactment that we find with reference to the schools is on June 25, 1864, which established a board of commissioners of primary schools in the county, and that provided for the purchase of sites, for the erection of schools, for the regulation of the number of children, the fixing of tuition and so on. That contained in section 16 this provision:
That any white resident of said county shall be privileged to place his or her child or ward at any one of the schools provided for the education of white children in said county he or she may think proper to select, with the consent of the trustees of both districts and any colored resident shall have the same rights with respect to the colored schools.
But I can't see how possibly anyone could think that Congress intended otherwise than that those schools should be separate.
Section 18 provided funds to be set up or collected for the maintenance of those children according to the census, the proportion of colored children to white children of school age. Now, in that connection I would like to read to you something that was said by Representative Patterson in the House when that bill was being considered. He said this:
In the twentieth section we have endeavored to give efficiency to the system by requiring attendance at school under a penal enactment. This is in accordance with the school laws in most of our northern cities, and would seem to be especially necessary here.
And then further on he said this:
But the most important feature of the amendment is to be found in the seventeenth and eighteenth sections, and in the proviso of the nineteenth section which provides for separate schools for the colored children of the District. To accomplish this, we have provided that such a portion of the entire school fund shall be set aside for this purpose as the number of colored children between the ages of six and seventeen bear to the whole number of children of the District.
Now, let us follow the chronology of some of the things done by Congress; and I should like to point out to you, which I think probably is rather well known to the Court, that because of its plenary legislative power over the District of Columbia, the Congress, if I may use the expression, frequently uses the District for testing purposes. They put through bills here which they later enact into national policy; and I find in Bryan's History of the National Capital, page 133, this statement:
Some years prior to the attempt to commit the Government to a national policy of internal improvements through a District measure, the District had been made the battleground upon which for nearly four decades the contest over slavery was waged. The field of action was chosen not because of concern in the District, but because there the Congress had the power of exclusive legislation and could at a stroke do away with the entire system.
And so we find that in 1862 they struck down slavery in the District; but it was not until three years later that they proposed the Thirteenth Amendment, which accomplished it for the rest of the nation. And so it was with other things, as I shall demonstrate to you.
And further on in this same book, at page 259, we find this statement. It is only indicative of the thinking of the time:
In Alexandria, the loss of the banks was especially felt and there was great anger and excitement. At a town meeting held in that place, resolutions were adopted declaring that if Congress looked upon the District as a `field of legislative experiment' the people of the several states are called upon to relieve us of political bondage.
That was the attitude of the people in those times, and that was what Congress did. And so, it seems to me that when you find the Congress making these enactments for the District of Columbia, setting forth as they abolish slavery here, later on for the whole country, as I shall show you; giving the right of suffrage to the Negroes in the District, later on for the whole country; the District of Columbia is the testing ground, and it seems to me it should lend weight to some of the arguments that were made here earlier concerning the intention of Congress in framing the Fourteenth Amendment. But I won't touch on that; I think that has been fully covered.
On February 1, 1865, there was a resolution proposing the Thirteenth Amendment abolishing slavery. I have already pointed out to you that that was done for the District in '62. In March of '65 there was the right of the Negroes to ride on streetcars. The Act of July 23, 1866, was—that was right at the time the same Congress was proposing the Fourteenth Amendment—passed an Act enforcing the payment of the proportionate share of the taxes for the colored schools, which had been provided for earlier, as I read. Apparently it wasn't being paid on time, and they put some teeth in it, and put a ten percent penalty in it if it wasn't paid on time.
And then, on July 28, 1866, that same Congress which proposed the Fourteenth Amendment passed this Act transferring certain lots, and this was the language:
. . . for the sole use of the schools for colored children.
And further on in the Act:
. . . to be used for the colored schools.
And providing that if they were not so used, there should be reversion to the United States. Then, as I told you earlier, on January 8, 1867, the right to vote in elections in the District was given to the Negro. And in 1869 there was the bill to abolish the separate school boards and transfer all of this to one school board; and it passed, but it was vetoed because the President said the Negroes here did not want that, and it was not passed over the President's veto. It died.
And then my friends refer to a memorial by the City Council of Washington to the Congress. They refer to that on pages 44 and 45 of their brief, that the City Council of Washington memorialized Congress to strike down segregation in the schools, and that is true. The City Council of Washington did memorialize Congress to strike down segregation in the schools, but it was a fruitless gesture. It was a vain effort. Nothing came of it. So that we see that the Congress, in spite of the memorialization by the Council of the city, refused to take such action; and it seems to me that that definitely establishes the intent of Congress.
But my friends made one mistake in their brief when they cited the memorial by the City Council to the Congress to change the school system. They cited a page, and I thought I had better look at it, and so if you will refer to—and I shall not take the time to read it, because I see my time is running out—the Washington, D. C. Council, 67th Council, 1869-1870, at pages 828 and 829, and later on—
MR. JUSTICE JACKSON: Are those set forth in your brief?
MR. KORMAN: No, Your Honor.
MR. JUSTICE JACKSON: I wonder if you are going to rely on our memory?
MR. KORMAN: I shall be very glad to submit these references in writing, if the Court would permit. These are things which I found only recently.
MR. JUSTICE JACKSON: It is pretty hard to—I would think you would file a supplemental brief setting forth this. It would be advisable if you think it is important, because it will all be out of mind.
MR. KORMAN: Well, let me say this: I shall briefly refer to what this says.
MR. JUSTICE JACKSON: All right. I am not trying to stop the argument. I am simply suggesting.
MR. KORMAN: Yes, I understand that.
The Council of the City of Washington took to task rather severely by a resolution a member of the school board who had issued a certificate to a colored girl to enter a white school. They quoted a report, an opinion by the Corporation Counsel. There was no Corporation Counsel at that time. There was an opinion by some lawyer for the District of Columbia Government then that, once having got the ticket, they couldn't deny this girl the right to enter this school; and the Council takes that very much to task and says that the man ought to be fired for doing such a thing.
On February 21, 1871, the legislative assembly of the district was created, combining the cities of Washington and Georgetown and the county into one; but there was no integration of the schools provided for. In the 41st Congress, there was the specific bill by Senator Sumner to integrate the schools, and there was a great deal of debate found in the Congressional Record; but the bill did not pass.
In the 42nd Congress, in 1872, there was a bitter debate on a similar bill to integrate the schools, but it failed of passage. And then the legislative assembly passed the acts which I mentioned earlier which gave to the Negro the right to enter all restaurants and places of public assembly, but they did not legislate on this subject of schools, because they knew they could not.
They gave the Negro all sorts of rights and powers in the District, but they did not legislate on schools because they couldn't; and that was at the time when Mr. Sumner, the Senator from Massachusetts, was a member of the District Committee in the Senate, and I have no doubt that they acted under his prodding, and yet they took no action because they knew that the schools were intended to be separate.
And then in 1900 a school board was provided for of seven paid members of the school board, a superintendent and two assistant superintendents, one of whom, under the direction of the superintendent, shall have charge of the schools for colored people; and the Organic Act of 1906 came along, when they reorganized the whole school system; and the reason, Mr. Nabrit, why they provided for the appointment for the Board of Education by the judges was because they felt that the judges were incorruptible and the school board appointed by them would not be subject to the vagaries of politics and pressure groups. And you will find that in discussion on the subject.
Then I should like to call your attention to the Teachers' Salary Act of 1945, and of 1947, which says essentially the same thing. May I read some of those provisions to the Court:
There shall be two first assistant superintendents of schools, one white first assistant superintendent for the white schools who, under the direction of the superintendent, shall have charge of general supervision over the white schools, and one colored first assistant superintendent for the colored schools who shall have direction of those schools.
And so on through enactments right up to the present day. Each year, as has been pointed out, Congress appropriates for this separate system of schools and provides so much money for the colored schools, so much money for the white schools, as is set up in the request for appropriations.
I might call your attention further, in addition to the appendix which was filed and which is the order of the Commissioners of the District of Columbia striking down segregation in certain areas and which contains in it a recognition by them that there are certain areas in which they have no power to act because it has been taken care of and provided for by the Congress of the United States—and with that I shall leave it to the Court and ask the Court to take into account the arguments which were set forth in our brief filed in 1952.
MR. JUSTICE REED: Mr. Korman?
MR. KORMAN: Mr. Justice?
MR. JUSTICE REED: The matter referred to here as being Acts of the Congress for the benefit of the District of Columbia Government, are they stated in your brief?
MR. KORMAN: The Act of the Congress relating to the District of Columbia?
MR. JUSTICE REED: Yes.
MR. KORMAN: All of the Acts?
MR. JUSTICE REED: That you referred to this morning. For instance, 12 Stat. 407.
MR. KORMAN: Yes, sir, they are referred to in my brief. They are not set out in extenso, but they are referred to and those citations of statutes are set forth in the brief.
MR. JUSTICE REED: Which brief is that?
MR. KORMAN: That is the 1952 brief. The brief that was filed this time touched only upon the fourth and fifth questions asked by the Court. We took the position—
MR. JUSTICE REED: There is a section called "The Acts of Congress providing for education of children in the District of Columbia," which is section 2 of your brief.
MR. KORMAN: The latest brief?
MR. JUSTICE REED: No. This is the 1952 brief.
MR. KORMAN: Yes, sir. That contains those acts, the reference to them. You will find at the bottom of page twelve the list of these enactments.
MR. JUSTICE REED: That you referred to this morning?
MR. KORMAN: That's right, sir.
MR. CHIEF JUSTICE WARREN: Thank you.
REBUTTAL ARGUMENT OF
JAMES M. NABRIT, JR., ESQ.,
ON BEHALF OF PETITIONERS
MR. NABRIT: If it please the Court:
Counsel for respondents, in answer to the question of referring the decision as to action to be taken, if the Court would find that segregation in the District of Columbia is not authorized, to the district court as satisfying some inquiries upon the Court, he quoted from the Act in which the authority for the judges to do this—in which it was stated that the purpose was to confer the power of appointment in a group of persons who were noncorruptible.
Under American jurisprudence, however, we would suggest to the Court that in considering due process, we have not let the incorruptibility or noncorruptibility of the persons involved permit us to entrust to them both the appointive and reappointive power of boards, and then the judicial power to distinguish between litigants who are contesting the rights of the board and the board on the basis that their incorruptibility satisfies the requirements of due process.
We don't suggest in any way or question the corruptibility or the impeccability or the character of the judges. All we suggest to the Court is that there appears to be an impropriety in the District of Columbia where the District judges appoint the members of the board, and if they don't like them, they don't reappoint them—and when I say "don't like them," 1 mean it in the high sense. They don't reappoint them. And yet, when we sue the Board of Education, these same judges pass upon the actions of the board.
Now, we merely suggest to the Court that there appears to be some impropriety in that. And again, counsel for respondents take the position that the attitude of Congress with respect to racial distinctions in the District of Columbia can be gathered by reading certain phrases in these statutes. Now, counsel neglects some very important things in doing that.
Number one, out of the eleven basic statutes governing the control of schools of the District of Columbia, nine of those statutes were passed between 1862 and 1866. Of those nine, seven of them were passed before 1864, by the end—between 1862 and 1864. At that stage of history in this country, two things ought to be borne in mind by the Court. One, we were on the verge of the Civil War in 1862. We were in the midst of the Civil War thereafter until 1864, I merely speak of that period because the war continued. Number two, during that period public education itself was in an elementary stage of development. The public education for anybody in the District of Columbia, even whites, was in such a fragmentary and rudimentary situation as not to be dignified by the name of public educational system.
Now, in that historical framework, where Congress provided funds—and Mr. Grimes said in both of these Acts to which Corporation Counsel referred your attention, that these were revenue acts to give to systems—I should not use the word "systems"—to Negro schools some financial support in a situation where there were three types of schools, a so-called public school system for whites, private schools for whites, and private schools for Negroes—now, without using the word "separate," without using any words of compulsion, when Congress provided that sort of system to say that the intent of Congress was to provide for racial distinctions in education, when at the same time in every other Act of Congress beginning with the Emancipation Act which he referred to; the elimination of the Black Codes, which he referred to; the Civil Rights Act; the Acts giving the District of Columbia Negroes electoral rights; the Acts enacted immediately after the enactment of the Fourteenth Amendment, those dealing with restaurants, public places in the District of Columbia; those in the Civil Rights Act of 1875—every one of those Acts of Congress provided against any distinction on the basis of race or color with respect to Negroes. It is inconceivable that in this type of fragmentary educational system the Congress there intended to manifest an intention to impose a racial distinction. There is no basis for such a supposition. So that we must read these statutes, if we are going into history, in the light of the historical background where we find it.
Now, we suggest to the Court, however, if it does not agree, that it is not necessary to do that. They can look in these statutes in vain for any language which provides any type of penalty or punishment or disability for the mixing of Negroes and whites in the public schools in the District of Columbia.
In Ex parte Endo this Court has said this: that when the Government, the Federal Government, imposes restraints upon its citizens based upon race, or when it restrains its liberty—I think we can say the Court went that far—that the restraint must be justified by the language used in specificity. The justification for the restraint must be found in the words used, and we suggest to the Court that no such condition exists with respect to these statutes.
Now, in the third place, we say with respect to these statutes, that the Court does not agree with that, that the Court should give these statutes an intent which is in conformity with the decisions of this Court, the policy of the Government, both executive and legislative, as we have indicated.
I think it also highly important to call this to the attention of the Court: that the President of the United States, President Truman, the Attorney General of the United States during Mr. Truman's Presidency, President Eisenhower, the Attorney General now under President Eisenhower, Attorney General Brownell, both of the executive officers of the highest position in this country of the major political parties, including the highest legal officers of the United States, have stated: One, these statutes do not compel or authorize segregation; two, that segregation is unlawful and unconstitutional in the District of Columbia.
Now, I suggest that under those circumstances, that is much more persuasive than the position taken because some statutes authorize the Corporation Counsel to represent the Board of Education. Those statutes do not authorize him to determine, contrary to all of the legal opinion, that these persons must compel segregation in the public schools. He says that is his opinion, and he cites for that Carr v. Corning.
Now, in Carr v. Corning, the Court decided that these statutes, in the framework with which we have been dealing with them, indicated that Congress did not intend to lift the question of segregation in education out of the hands of Congress, and under the facts in that case they found equality. The Court did not reach the question which we ask the Court to decide here, whether or not the Government has the power to impose racial distinction in affording educational opportunity to citizens in the public schools in the District of Columbia solely on the basis of race or color; so that Carr v. Corning is of no help; and if Carr v. Corning had decided that, there would be no doubt about our position, that would have no binding effect on this Court when, for the first time, this Court is called upon to decide as to the lawfulness of this type of action by the Federal Government.
Now, as far as Wall v. Oyster is concerned, that was the case in which a Negro girl was admitted to the white schools. Shortly after she was admitted, it was found out that some far ancestor of hers in the past had a few drops of Negro blood, but it could not be discerned by looking at her. They put her out, and she tried to get back; and the issue was on the basis of the classification, and the court said that the District had the power to classify, and that their classification of you as a Negro could not be contested. Now, the court said that, well, underlying that wasn't there an assumption that this was a proper separation of the races in the District? I would say yes, but that was not the issue.
Furthermore, Wall v. Oyster points out the basic thing that is wrong in this whole situation, and that is, there is no justification for the separation of these races except on a basis of inferiority, because in Wall v. Oyster this girl was in the school, no question being raised about her, the same person. When they found out she had this drop of Negro blood in her, she became unfit to associate with the others in the classroom, and she was put out, not because of anything that was wrong, other than that she possessed this Negro blood.
That, we say, is inconsistent with the Constitution of the United States; and nothing has been said by the Corporation Counsel in this Court in the last argument or this which offers to this Court any suggestion of any reason or any justification for this separation of races by the exertion of governmental power, save and except there is something in the nature of the Negro which makes him unfit to associate with the whites in the public schools. And that, we say, is against the policy of the Federal Government and against the Fifth Amendment of the Constitution of the United States.
Now, I want, if I have a minute or two, to say something to the Court about this matter of relief and about the question of—well, I did not mean to say anything about the power of the Court. My answer to the question about the power of the Court is, of course, the Court has its power under its equitable power to give any type of relief which the Court thinks is desirable, and with that we have no quarrel. We think, however, that the Court might raise a question itself as to whether it should exercise the power in these cases so as to give any type of gradual relief.
In the District of Columbia we go further: We say to the Court that the District of Columbia itself does not ask for any gradual relief. We assert no gradual relief is necessary. Under those circumstances, we would think that the Court, having no reason to give gradual relief of itself, would consider gradual relief not to be involved in the District. If that be sound, that would leave the question of what type of decree the Court should enter.
In our judgment, the Court should not enter a detailed decree. In our judgment, we have a time within which we think the Court should require the respondents to grant the relief requested, and that is that the Court enter a decree that these respondents be restrained from operating and managing these schools in the District of Columbia on the basis of racial distinctions alone, by the beginning of the next school term succeeding the issuance of the decree. So that if the decree were issued—it is a supposition contrary to fact—if the decree were issued in January, the next term would be September; if it were issued in May, the next term would be September. Now, if it were issued in June, the last day, it would still be September. In our judgment, there would then be sufficient time for whatever normal administrative problems arise in the adjustment of an integrated system to be resolved in the District.
We like to point that out to the Court: Number one, they talk about the reshuffling of students. There are 105,000 students. A normal administrative procedure would take the cards of all the students in the elementary grades, group them, group those cards of the students in junior high, group those in the senior high, so that you have your school populations in your cards; get maps for your areas in the District of Columbia divided for convenience; select either five or ten or whatever number of students you want represented by a pin, and put a pin in that map to show the number of students in each area.
You have the capacity of every school building in the area in each of the categories, and it is a simple proposition to distribute them; so simple is it that in the District of Columbia they do it every year, if not every other year, for the separate Negro system, and for this separate white system which they impose on us. Now, in order to do it for both, all you do is to coalesce this mechanical action.
The second thing they say that is so difficult is that they have some teachers with different seniorities, and that when you get two lists together of these eligibles, you do not have any way to do that. This Court has decided in any number of these labor cases that where we have collective bargaining agreements, and you have seniority and these lists, in the decision of the Court these lists are put together and there is no difficulty. As a matter of fact, the superintendent of schools has announced that they are going to combine the lists for all teachers of physical education this year. It is just as simple to combine lists for all else; so there is no difficulty as to that.
The next thing, they say it is difficult because you have got to indoctrinate the teachers. We know it is much better, the more teachers have some training in intercultural relations, the better it is. We do not dispute that. But in the District of Columbia 85 percent of the teachers of the 3,500 teachers have served and are serving today on integrated committees, so they have not been isolated in a vacuum. All of the officers operate that way, largely groups of students operate that way. All of that is in our brief.
In addition to that, over two hundred of them will have been trained for intergroup living and activities and work before March, so that we have a nucleus if we only use those trained or if we only use those who belong to their amalgamated or integrated teachers union, to furnish a nucleus of teachers experienced enough to do this.
All of that calls for simply administrative judgment. So that these evils and obstacles which the Corporation Counsel—although he takes the position that gradualism is not necessary, he postulates to this Court in a form to require the same time that gradualism requires—seems to have no substantial basis or merit; and therefore we suggest to the Court that these respondents be required to conform to a mandate of this Court, assuming the Court decided that segregation is unconstitutional, that this or that that action is not lawful, that they do this at the beginning, by the beginning of the next succeeding school term; and, to be specific, since we hope the decision will come some time during this next year, that it be September, 1954, at the beginning of the school year.
I would like to say as one final sentence, if I may, that America is a great country, in which we can come before the Court and express to the Court the great concern which we have, where our great government is dealing with us; and we are not in the position that the animals were in George Orwell's satirical novel Animal Farm, where after the revolution the dictatorship was set up and the sign set up there, that all animals were equal, was changed to read, "but some are more equal than others." Our Constitution has no provision across it that all men are equal, but that white men are more equal than others.
Under this statute and under this country—under this Constitution and under the protection of this Court, we believe that we, too, are equal.
[Whereupon, at 1:20 o'clock p.m., the argument was concluded.]