WATSON v. MEMPHIS

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Argument of Constance B. Motley

Chief Justice Earl Warren: Number 424, I. A. Watson, Jr., et al. petitioners, versus City of Memphis, et al.

Mrs. Motley.

Ms Constance B. Motley: Mr. Chief Justice and may it please the Court.

This case is here on writ of certiorari from United States Court of Appeals from the Sixth Circuit.

Before this Court for review is the judgment of that Circuit, affirming a judgment of the United States District Court for the Western District of Tennessee.

The judgment affirmed by the Sixth Circuit denied petitioners, Negro residents of Memphis, Tennessee, an injunction against continued exclusion of Negroes from a large number of recreational facilities in the City of Memphis.

However, that injunction, the judgment of the District Court rather, provided for desegregation of these recreational facilities on a gradual basis.

Now, in providing for the gradual as opposed to the immediate enforcement of petitioners’ rights to the equal protection of the laws in this case, the courts below relied upon this Court's decision in the second Brown case, involving desegregation of public schools where this Court recognized that a delay might be permitted in the enforcement of the constitutional rights there involved once a start had been made upon a demonstration by the school authority that the resolution of specifically enumerated physical problems would make for a smoother transition from a segregated to a desegregated system.

Now, before proceeding to a discussion of the facts in this case, I would just like to say briefly what our contentions are.

Petitioners say, first, that their constitutional rights here to use the publicly owned and operated recreational facilities in this case should have been immediately enforced by the courts below because these are personal and present constitutional rights.

Second, petitioners say that irrespective of whether the second Brown decision has any application beyond the area of schools, that decision has no applicability to the area of public recreation.

And finally our contention is that even assuming for the purposes of this argument that the second Brown case would apply in the area of public recreation upon a demonstration of complex and difficult physical problems, the record here fails to justify the applicability of the principles of the second Brown case to this case.

Now this controversy presently --

Justice Potter Stewart: These are three alternative arguments?

Ms Constance B. Motley: Yes this is --

Justice Potter Stewart: Getting less and less extreme --

Ms Constance B. Motley: This case presently involves the exclusion of Negroes from 58 neighborhood parks, from Crump Stadium.

Justice Potter Stewart: Are they parks or playgrounds or are they both?

Ms Constance B. Motley: Well these I understand are neighborhood parks on which playground facilities are located generally.

Justice Potter Stewart: And quite a highly organized playground program [Inaudible]

Ms Constance B. Motley: Yes, there is and the record indicates that there is a highly organized playground program in Memphis and that they are operated on these so called neighborhood parks, some are operated on parks attached to the public schools, some on property owned by Churches and private groups.

Now Negro growth --

Justice William J. Brennan: Has there been segregated facilities of this kind --

Ms Constance B. Motley: Pardon me?

Justice William J. Brennan: Have there -- of the 58 right now presently owned, segregated?

Ms Constance B. Motley: That's right sir.

Justice William J. Brennan: Divided between Negro and the white or are they all white?

Ms Constance B. Motley: Yes.

Justice William J. Brennan: I see.

Ms Constance B. Motley: No, these are the facilities from which neighborhoods are presently excluded.

There are some playground facilities available to Negroes, I'm now speaking of only those from which we are presently excluded, and that's 58 in number.

Justice William J. Brennan: Can you tell us what the number is presently provided just for Negroes?

Ms Constance B. Motley: Yes, I think there is something like 40 available to Negroes at the present time.

Justice Tom C. Clark: How many are integrated?

Ms Constance B. Motley: Well now I don't think that any of these playground facilities are integrated.

They have integrated 25 parks, but I think what these are the squares with a statue and a few benches.

Now 25 of those have been desegregated, but what I'm taking about now are playground facilities in the so called neighborhood parks and they are 58 in number from which Negroes are excluded.

Justice William J. Brennan: Well does this mean primarily then since they are playground facilities exclusion of Negro children?

Ms Constance B. Motley: Pardon me?

Justice William J. Brennan: Does this mean primarily then exclusion of Negro children?

Ms Constance B. Motley: Yes, that's right, yes.

They are parks with swings and wading pools and that sort of thing from which Negro children are excluded. In fact in the record one women testified, a Mrs. Bonn that she went to Gaston Park and she lives next door and she took her eight children or whatever number and she was denied admission because she is a Negro, but she lives right next door to that park and those are the kinds of facilities involved here.

And then Negroes are excluded from Crump Stadium which is a large stadium, a stadium and other stadiums in the city.

They are also excluded from the museum known as Pink Palace.

Then they are excluded from 40 playgrounds on property not owned by the city, these are those attached to churches or private groups or school, not owned by the city as such.

Justice Potter Stewart: Does you lawsuit involve those 40 playgrounds too?

Ms Constance B. Motley: Oh yes, these are now trying to bring out those facilities from which we are excluded.

Justice Potter Stewart: As I understood you to say that these 40 playgrounds are not publicly owned?

Ms Constance B. Motley: But I'm sorry.

They are operated by the park authority, which is a respondent here.

The park authority provides supervisory personnel and furnishes the facilities on this land owned by someone else and that's how they are involved in this case.

Then involved are --

Chief Justice Earl Warren: Because it's used as a public park?

Ms Constance B. Motley: Yes, that's right.

It's operated by a public authority.

Now in addition there are five swimming pools from which Negroes are excluded, eight community centers and one golf course.

And as I said a moment ago, they desegregated 21 of these squares, and in addition after the suit was filed Overton Park Zoo was desegregated and an art gallery in Overton Park and then they desegregated a boat dock on a lake in a white park.

Now Negroes can't use the park, but they can walk through the park to get to the boat dock.

Justice Arthur J. Goldberg: [Inaudible]

Ms Constance B. Motley: One day a week that's right.

Justice Arthur J. Goldberg: [Inaudible]

Ms Constance B. Motley: Well my understanding is that it has not been filed in the District Court.

However, when this case was argued before the Sixth Circuit, one of the judges, Judge Starr said “Well what about your plan?”

And they -- the respondents had a copy of it and they handed up that plan and it was made available to the Court, and then they sent us a copy and that plan provides for the desegregation of these remaining segregated facilities over a ten-year period, but that is not in the record.

Justice Arthur J. Goldberg: [Inaudible]

Ms Constance B. Motley: That's my understanding that it has not been filed.

We checked I think yesterday.

Mr. Willis from Memphis was the clerk there and he said it has not been filed.

Now they may be able to give a date on which it has been filed, but further there has been no hearing in the District Court on that plan.

Now the District Court accepted a preliminary plan.

The respondents here said to the District Court “Well now we are prepared to desegregate the fairground at the end of the year and we don't want to do that till the end of the year because concessionaires may lose money if Negroes go in and people stay away and so forth.”

And then they said we are prepared to desegregate the golf courses because several of the plaintiffs had gone to white golf courses and had been denied, even though they lived nearer to the white one and the District Court approved the desegregation of the fairground at the end of the year, six months later and the desegregation of seven golf courses over a three-year period.

Now they have carried out that desegregation as I understand it and there is one more golf course according to their schedule, which in a record at page 94, where Galloway Golf Course is deemed to be desegregated on January 1, 1964 and then all golf courses.

Then they also said to the District Court, we are going to desegregate six parks to Negroes, referring to some of these playground facilities that we mentioned a moment ago, but no dates were given and as far as the record is concerned, those parks are still segregated.

Now they maybe able to say that they have segregated even some of those, but the fact is that the large numbers of facilities are still -- Negroes are still excluded to the large number of these facilities.

Now the District Court after accepting that preliminary plan directed the defendants to bring in another plan in six months with regard to all these other facilities.

Then the District Court stayed adjudication of the right of Negroes to go into Pink Palace on the other six days of the week, until such time as the respondents filed a suit for declaratory judgment in the Chancery Court of Shelby County as to the effect on the title of a city, the admission of Negroes to the Pink Palace regulars.

The respondents claim that they couldn't admit Negroes to the Pink Palace regularly, because this would violate a limitation in the deed to the city, which said that this property was given to the city to operate as a museum or art gallery for Whites only.

Now in violation of that restriction of course they've been admitting Negroes for number of years, but they claim that they would have to have this adjudicated first and they have filed a suit.

The District Court gave them three months in which file it.

They filed that suit on September 1, 1961.

There has been no answer.

Apparently, the grantor or his assign no longer exists, and nobody has answered that suit, it's just pending there and there is no real controversy obviously, but the District Court invoked the doctrine of abstention and said that he would stay this until that was determined.

But abstention was improperly applied there because the question before the District Court was whether Negroes could be excluded as long as the city was operating it and no matter how the State Court proceeding came out, the District Court would still have to determine that because what we're attacking was a policy of these respondents of excluding Negroes from these facilities, not a restriction in the deed because Negroes are being excluded from properties on which there was no such restriction.

So it still has to determine that even if the State Court should for some reason on the Tenancy Law hold that restriction void.

Justice Potter Stewart: Just one day a week plan for the Pink Palace, is this on a segregated basis or --

Ms Constance B. Motley: Yes sir.

Justice Potter Stewart: On that one day a week to both, to all races?

Ms Constance B. Motley: No, I believe that on that one day, Tuesday Negroes other than Whites are not allowed.

Justice Potter Stewart: And White people are not allowed to go?

Ms Constance B. Motley: That's my understanding of it, yes.

Chief Justice Earl Warren: But the dedication was to the use of Caucasians only?

Ms Constance B. Motley: That's right.

Now the judgment below finally provided that the District Court would retain jurisdiction of this case for further orders and so forth.

However, the Petitioner's immediately appealed to the Court of Appeals for the Sixth Circuit which affirmed the District Court's ruling, relying as District Court did on this Court's decision in the second Brown case.

Now our argument is as I have indicated that the Courts below erred in refusing to enjoin this admitted violation of a basic and fundamental constitutional right clearly established by prior decisions of this Court.

Now prior to the Brown decision, this Court had firmly established that the right to equal protection of the law under the Fourteenth Amendment was a personal and present constitutional right and was always immediately enforced.

In the Brown case, the Court recognized that with the desegregation of public school systems in all of the states in the South, which involved the unification of dual school systems into a single unitary non-racial system, obviously would be involved tremendous problems, and the Court therefore made an exception.

And the Court indicated in Cooper against Aaron that this wasn't a general rule applicable to schools altogether that even in some school situation, the District Court might order the immediate admission of Negro children.

Now in the couple of cases that were here following Brown, this Court made it clear that state enforced racial segregation in public facilities were unconstitutional.

In Dawson against Mayor and City Council of Baltimore, which we cite in our brief, this Court affirmed the Fourth Circuit's decision so holding.

And there the City argued in their jurisdictional statement at page 19, the second Brown decision applied.

So this question is already been considered by this Court.

This Court didn't simply deny Certiorari there.

This Court considered that case although without argument and affirmed, so it obviously considered the contentions raised in the jurisdictional statement.

Now even if the second Brown decision does have some applicability beyond public schools, we say that it doesn't apply to the area of public recreation because obviously public recreation is not as complex as the school system.

You don't have compulsory attendance, you don't have transportation of children, you don't have assignment of children, nobody has to go a public park.

You don't have overcrowding in one building like you would have in a school situation, you don't have a close supervision with the teacher in every class, one of these playgrounds would probably have one or at most two supervisors.

And all it's really involved in desegregation of public recreation like desegregation of the buses, the city wide system of transportation is the removal of the sign saying, Negroes here and Whites there, and a public announcement to this effect.

It's really all that's involved in desegregation of recreational facility.

Unknown Speaker: [Inaudible]

Ms Constance B. Motley: Now --

Justice Potter Stewart: The staffs or the playground supervisors, is that an integrated staff?

Ms Constance B. Motley: Yes, the record indicates that they are Negro; well, there are Negroes and Whites employed.

The Negroes are employed of course to work in the Negro parks, but they use the same administrative office I believe as their headquarters.

To that extent it's integrated, that's way I read the record.

Now apart from precedent, we feel that there are strong policy considerations why this Court's decision in the second Brown case should be limited rather than expanded.

First of all, as I've said, the deliberate speed doctrine enunciated in the second Brown case is an anomaly with respect to personal and present constitutional rights, especially such highly prized rights as equal protection of the law.

And then, this all deliberate speed doctrine with respect to the school has resulted in a mass of litigation around the school issue.

Some of these school cases have been pending for five and six years resulting in the admission of a handful of Negroes, all because of this -- what is deliberate speed, how fast and school board have to go, what we get is 12-year plans and pupil assignments and all of this resulting in about 7% of Negroes being desegregated in the last nine years.

And then, the deliberate speed doctrine I think has been widely interpreted as substituting a doctrine of gradualism for the separate but equal doctrine in the area of race relations.

And certainly, it is extended from schools to parks where we will have in the enforcement of constitutional rights to Negroes is a gradualism in every area and instead of shortening any period of disquiet and confusion that would certainly lengthen the period of racial unrest and disturbance and then as I said on the whole, there has been a very little desegregation.

Now finally, as I've said before, there is nothing in this record to support the applicability of the principles in the second Brown decision to this case because there is not a single demonstration of any complex physical problem with which the respondent had to deal, which would require the application of that doctrine.

I would like to save the remaining time.

Justice Byron R. White: What is the -- what's the school situation in Memphis now as a matter of fact?

Ms Constance B. Motley: Well, I don't know the exact number of Negro children admitted, but I think that case, a representative from Memphis argued here about a month ago involving the transfer provisions as amicus curiae and I think he stated at that time, there were 66 Negro children admitted, but the District Court has not yet acted upon any plan in Memphis.

It was filed about a year ago and there has never been a hearing.

It's scheduled for May 22nd.

The Sixth Circuit more than year ago sent it back for the plan, but there has been no hearing on it.

Chief Justice Earl Warren: Mr. Prewitt?

Argument of Thomas R. Prewitt

Mr. Thomas R. Prewitt: Mr. Chief Justice and may it please the Court.

As a preliminary, I should allude to this fact, because I don't believe that Mrs. Motley has.

The Department of Justice has filed the brief amicus curiae in this cause as of February the 7th.

We did not know about this until last Thursday, when one of the members in the Solicitor General's office called me in Memphis and advised me of that fact and we have received the brief amicus curiae of the Government on last Friday.

Now, if the Court please, I do not make that statement in any criticism and we do not ask for any additional time within which to answer the propositions raised by the Solicitor General in his brief because I believe that our argument in response to the petitioner's would be substantially the same.

In other words, in our judgment, the brief of the Government raises no substantial new questions, but I did want to make that reference to the Court.

Chief Justice Earl Warren: Should you want some time at the end of the argument, you may have it to reply to the Solicitor General.

Mr. Thomas R. Prewitt: Thank you, sir.

This, I think we should get the record clear to determine just what the question is presented on this record.

The question presented to the Court of Appeals was purely and simply a question of law in our court, whether the decision in the second school desegregation case, Brown against Board of Education, which contemplates allowing a delay in the desegregation of public elementary and secondary schools is applicable in an action involving public recreational facilities.

That was the question presented to the Court of Appeals.

That was the question which the Court of Appeals decided.

That was the question specifically presented in the petition for certiorari, now filed in this cause.

But now, we are faced with an additional question, may it please the Court, not presented to the Court of Appeals, not presented on the petition for certiorari to it under the facts of this case after viewing the record as a whole, was there any justification for the delay permitted by the Trial Judge?

In other words, that question involves a determination of the whole record in this case.

It wouldn't involve necessarily an analysis of all the facts and all the evidence below and that question was not presented to the Court of Appeals and was not presented on petition for certiorari.

Notwithstanding that, I do feel that I should allude to the facts and as far as I can show that the burden cast upon us was met below -- was met both in the Trial Court and in the Court of Appeals.

Justice John M. Harlan: You say that the Court of Appeals [Inaudible] District Court's discretion.

Mr. Thomas R. Prewitt: Yes sir, Court of Appeals did review the District Court's discretion, may it please the Court.

The Court of Appeals had before it the question of whether or not --

Justice John M. Harlan: That's right.

Mr. Thomas R. Prewitt: -- in a case involving public recreational facilities, the rule as announced in the Brown case was applicable.

Justice John M. Harlan: And then why is that the whole case is here, I mean why is it –

Mr. Thomas R. Prewitt: Because if Your Honor please, if the second question presented that is whether or not the burden cast on the public authorities was met, it would require an analysis of the whole record.

The old record isn't here.

The testimony of the some of the important witnesses below is not here and the point I am trying to make, may it please the Court, is that we have here a question of law and that is; are the principles of equity announced in the second Brown decision, which permit of some delay in the desegregation of public school facilities.

Chief Justice Earl Warren: That question wasn't asked in a vacuum, was it?

It was asked in the light of the facts of this case as presented to the District Court, is it not?

Mr. Thomas R. Prewitt: Yes, I agree with the Court that there has to be some analysis of the facts.

Chief Justice Earl Warren: Well then the Court did consider the facts?

Mr. Thomas R. Prewitt: The Court of Appeals did consider the facts to determine whether or not in a case involving public recreational facilities, the rule in the Brown case is applicable, to that extent the Court did consider those facts.

My point is that if we are to go into all of the facts to determine whether or not the burden of proof as is required in the Brown case was met, it would require a consideration of all of the evidence and all of the evidence is not here.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Thomas R. Prewitt: Yes sir, Your Honor please.

Chief Justice Earl Warren: Do you think we should be limited just to those facts?

Mr. Thomas R. Prewitt: Yes sir, because I believe those facts are adequate to determine the question before the Court whether or not the rule announced in the second Brown decision, permitting some delay in the desegregation of public schools is applicable to a system involving public recreation.

Chief Justice Earl Warren: What facts that were before the District Court are not in this record?

Mr. Thomas R. Prewitt: The testimony of the Superintendent of Education may it please the Court, Mr. Marin Hill is not in this record.

Chief Justice Earl Warren: Why?

Mr. Thomas R. Prewitt: Because it wasn't printed, may it please the Court.

The petition for certiorari --

Chief Justice Earl Warren: Is there a typewritten record here?

Mr. Thomas R. Prewitt: I do not know.

I would assume that it is -- it's a typewritten record.

Rebuttal of Constance B. Motley

Ms Constance B. Motley: I believe that there should be, Your Honor.

Chief Justice Earl Warren: I beg your pardon?

Ms Constance B. Motley: I believe that there should be, I didn't check it.

Certainly --

Chief Justice Earl Warren: Well, if there is a typewritten record, then the testimony of the Superintendent of Schools would be in it, wouldn't it?

Rebuttal of Thomas R. Prewitt

Mr. Thomas R. Prewitt: Yes sir.

Chief Justice Earl Warren: That was considered by the Court of Appeals and I suppose it would be -- could be considered by us?

Mr. Thomas R. Prewitt: Yes sir.

Chief Justice Earl Warren: Very well.

Mr. Thomas R. Prewitt: Now addressing myself, if Your Honor please, to the question presented here, is the rule that this Court announced in the Brown case that permits of some delay in the desegregation of public education facilities applicable here.

If that rule is limited to public education then the petitioners are right.

There is no question about it.

If this Court intended that the -- all deliberate speed formula be limited to cases involving public education, then of course the petitioners are correct.

We say that it should not be so limited and that it should be not so limited in this case.

Now, I believe, may it please the Court, that a statement of some of the facts that were not covered by my adversary is proper.

We are not dealing here, may it please the Court, with an isolated facility or even a group of facilities.

We are dealing here with the vast system of public recreation in a city of a half a million people, 130 public parks, 117 supervised playgrounds, 56 of which are on school and church properties.

These 117 playgrounds are each staffed by trained supervisors who afford a supervised system of play for what the proof shows is 100,000 children, 35,000 I believe colored and 65,000 white.

The proof shows that this system of supervised play is one of the finest in the country.

Justice Potter Stewart: And that number really accurately reflects the make up of the population of the city as a whole, doesn't it?

Mr. Thomas R. Prewitt: Substantially.

Justice Potter Stewart: [Inaudible]

Mr. Thomas R. Prewitt: I believe the proof is that from the 1960 census, the percentage was 37% colored and 63% white, so it's substantially the same.

In addition to that, the recreational facilities include a number of things, which are not troublesome.

There are seven golf courses, I believe 12 community centers, a public zoo, an art gallery, a boat dock, and some ten swimming pools.

I haven't covered all of the facilities, but substantially that is it.

The greatest problem is in the area of the 117 public playgrounds, where there are supervisors to supervise the play of all of these children.

Now, the undisputed proof and incidentally and may it please the Court, none of the proof offered by the Park Commission was disputed.

The only proof offered by the petitioners and there was no question about it, was that in each instance where one of the petitioners sought to use a golf course and incidentally all of the golf courses except one have now been desegregated, but where they sought to use the golf course or the fairgrounds or whatever facility it might have been, they were rejected.

In each case now all of those facilities have now been desegregated.

Justice Potter Stewart: All of which all the golf courses?

Mr. Thomas R. Prewitt: All of the golf courses, except one.

Chief Justice Earl Warren: Why not that one?

Mr. Thomas R. Prewitt: That, may it please the Court, was on the basis of a plan that was submitted to the Trial Court for a gradual desegregation of the seven golf courses.

At the time this case came to trial, there were five golf courses for white and two for colored.

The proof was that the officials in-charge, after making their investigation, determined that the best way to remove the restrictions on the golf courses was to do it on a gradual basis and that plan was started and it is now almost complete.

A plan as I say was submitted to the Trial Court and approved with respect to the golf courses and with respect to other facilities.

While I am on that, may it please the Court, the plan as submitted to the Trial Court for gradual desegregation did not embrace all of the facilities, and it was for that reason that the Trial Court ordered the Park Commission to submit a complete plan within six months, but before the plan could be submitted, the petitioners appealed to the Court of Appeals, thereby staying the hand of the Trial Court.

The plan was evolved, submitted to the Trial Court and it was not filed because of the suggestion of the Court, because its hand was stayed.

It was printed in the public press so that all the world had notice of it.

It was given to the Court of Appeals on their request, the petitioners had the plan when it was submitted to the public press and the plan has been carried out.

And in fact, in several instances it has been accelerated.

Now, I am not here to say that this plan is adequate.

It may not be ten years maybe too long, may it please the Court.

The Trial Court has never had an opportunity to adjudicate with reference to this plan because the appeal was taken before the court had an opportunity to determine whether or not it was adequate or whether or not it was the best plan, but I feel that we have gone as far as we can with respect to a complete plan.

So, that's the status of the six-month plan, but if I might go on further.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Thomas R. Prewitt: It was published in the two newspapers in Memphis.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Thomas R. Prewitt: Certainly, it was made available to the Court of Appeals and I have it here.

Chief Justice Earl Warren: You may leave it with the clerk.

Mr. Thomas R. Prewitt: I will Your Honor, but to go on further with the proof below, there are 117 public staffed supervised playgrounds.

56 of these playgrounds are on school and church properties.

A number of the playgrounds are on parochial school properties.

The Park Commission has felt that since it is an important facet in the Memphis community that its program of desegregation in compliance with the rule in the Brown case should be carried out in coordination with all other activities in Memphis.

Over the last four or five years, there have been many steps toward desegregation of public and private facilities, including the schools, the public transportation system, the public terminals many, many things that I could allude to here.

Chief Justice Earl Warren: How many children are in it -- Negro children are in the public schools?

Mr. Thomas R. Prewitt: I am not prepared to answer that, may it please the Court.

Chief Justice Earl Warren: Have you any idea?

Mr. Thomas R. Prewitt: The city attorney is here, may it please the Court, and I would prefer --

Chief Justice Earl Warren: Very well, we'll recess until morning, maybe let's find out.

Print this transcript Transcript: 

Argument of Thomas R. Prewitt

Chief Justice Earl Warren: I. Watson Jr., et al., petitioners versus City of Memphis.

Mr. Prewitt you may continue your argument.

Mr. Thomas R. Prewitt: Mr. Chief Justice may it please the Court.

Yesterday Your Honor I believe you asked me to check in the [Inaudible] of the number of colored children that are now attending desegregated schools in the City of Memphis and I have that information.

Chief Justice Earl Warren: Thank you.

Mr. Thomas R. Prewitt: There are presently 63 colored school children attending desegregated schools in the City of Memphis.

The program of desegregation was commenced in the Fall of 1961 with the first grade and in the Fall of 1962 the second and third grades were desegregated.

These 63 school children do not include an undetermined number of colored children who were assigned to the desegregated schools, but who asked to be reassigned to all colored schools.

I don't have that number, may it please the Court.

I might state this with respect to the schools because it does have considerable relevancy here that on May the 22nd next there is scheduled a hearing in the District Court at Memphis.

Both the Board of Education and the NAACP have presented proposed plans for further integration of the public schools.

Under the NAACP plan, the first six grades would be integrated this Fall and seven, eight, and nine in the Fall of 1964 and the remaining grades in the Fall of 1965.

Under the Board of Education plan, the first four grades would be integrated this year and then one grade a year here after until the program is terminated.

So that is the situation with respect to schools.

Chief Justice Earl Warren: Thank you very much.

Mr. Thomas R. Prewitt: Now with respect to the parochial school and that has some relevance because the Park Commission operates playgrounds on parochial school property.

Bishop Adrian of Nashville has recently announced that the parochial schools in Tennessee would commence their program of desegregation this Fall on a gradual basis.

Now, up to address myself to the problem at hand, the recreational facilities of the City of Memphis.

The undisputed proof shows these facts, may it please the Court that 56 of the 117 supervised playgrounds, which accommodate 100,000 children in supervised play, are on school and Church property.

The Park Commission in its thinking and in evolving its plan with respect to complying with the Brown case felt that it would not be wise to desegregate the playgrounds on the Church properties and the school properties until those institutions themselves were desegregated.

It was thought that that would not be in the best interest of the people as a whole.

Yes sir?

Justice Arthur J. Goldberg: [Inaudible]

Mr. Thomas R. Prewitt: I beg your pardon.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Thomas R. Prewitt: No sir, if Your Honor please.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Thomas R. Prewitt: Not all of it, if Your Honor please, some of it.

For instance basketball takes place in the school gymnasiums.

Of course baseball would take place on the school playgrounds.

Most of it would take place after school hours, but much of the supervised play would take place during the school terms.

A great portion of it of course takes place in the summer time.

And I would judge that the greater percentage of the supervised play does take place in the summer time when the schools are not in session.

But with respect to basketball and baseball and other activities the recreational activity does take place during the school time.

Now, the proof also shows this, may it please the Court, with respect to all of the 117 playgrounds that if the relief sought here is granted and all of the playgrounds are desegregated at the same time that the supervisory staff that now supervises the play of these 100,000 children will not be adequate and that more supervisors will have to be trained and employed to give proper supervision and proper protection to these children during this transition period, it's contemplated.

The necessary result of that, may it please the Court, would be that a large number of children would not receive the benefits of supervised play that they are now receiving and the Park Commission feels that that is tremendously important thing for all of the people of Memphis, especially to keep the children off the streets during the summer vacation period.

And I don't believe that I need any citation of authority otherwise to demonstrate how important that is to any city.

This playground system of Memphis, we feel, is one of the finest in the country and we feel that it has been developed over a period of years to the point where it is one of the most important facets of our community life.

We recognize, may it please the Court that we must comply with the established law that all of the playgrounds must be open to all children colored and white, but we feel that additional time yet is necessary, recognizing that it has been eight years since the Brown decision.

But we feel that experience has shown that where this program can be developed on a gradual basis without an injunction hanging over the heads of our people and authority that we can develop it in such a way that it will not create confusion or disarray and will give protection and supervision to all of these children.

The Park Commission certainly from the concurrent finding of both Lower Courts has acted in unquestioned good faith in trying to carry out what we felt was the law as announced in the second Brown decision.

But we feel that some additional time is necessary, bearing in the mind that the only question before this Court is whether or not the Lower Courts had any discretion save to issue an immediate injunction.

The adequacy of the plan that I filed on yesterday, the adequacy of any plan has never been presented to the District Court or to the Court of Appeals.

This appeal was taken before we had an opportunity to allow the District Judge to adjudicate with respect to the full plan.

And as I stated yesterday, we don't say that this plan that we've got enough is the magic answer or that it will be adequate or that it will be sufficient.

It is the best plan that we've been able to devise and we feel that the District Judge should have an opportunity to adjudicate with respect to that plan and if it is inadequate to accelerate it or to take what other steps might be necessary, that's our position.

If they --

Chief Justice Earl Warren: Mr. Prewitt may I ask you this.

I understood Mrs. Motley to say that practically all or at least a great many of the parts that you have desegregated were merely little squares or little triangles that, where they had a statue and a few -- in a few chair, few seats that people could sit in.

Is that the fact then and if so how many general playgrounds have you in these last nine years desegregated for the use of all people?

Mr. Thomas R. Prewitt: If Your Honor please in answer to your question, I would take issue with counsel on her statement.

I can't tell you how many of the 130 I believe parks and 117 playgrounds have been desegregated.

I will try to give you now some of the facilities that have been desegregated.

Six of the seven public golf courses, Crump Stadium, which was alluded to, has been desegregated.

The public zoo, the fairground, the lake boat dock and several, I'm not prepared to say exactly how many, several playgrounds have already been desegregated.

Several were desegregated last year and the program calls for additional desegregation this year.

But many, many parks and many, many facilities have been desegregated under the plan that's already been evolved.

And the Park Commission is complying with -- yes sir, counsel reminds me that all the tennis courts have been desegregated.

And I am safe in making this statement that there is no activity sponsored by the Park Commission which is not now open to both races.

There is no as distinguished from a particular playground at a particular place.

There are many playgrounds which are still segregated.

Most of them are neighborhood playgrounds, but there is no activity now except the Pink Palace Museum and it stands in a different light and I don't believe that it is going to be a significant problem.

In fact I think that it is very minor when considered in the light of the whole program.

Justice William J. Brennan: Well, Mr. Prewitt are you telling us that the program, this ten year program is in fact being put into effect, is that it?

Mr. Thomas R. Prewitt: Yes, it is being --

Justice William J. Brennan: I see.

Now what you are doing is according to that program and the timetable into that program?

Mr. Thomas R. Prewitt: No sir it's been accelerated, in several different instances.

For instance I believe Winchester Park on the program was to be desegregated in 1965 and that has already been desegregated.

It was desegregated in 1962.

There are other instances of that type where the program has been accelerated and it will be accelerated, but we feel that it is difficult to plan ahead on a program as vast as this.

We recognize the problem and as time goes on and the Park Commission we believe will be able to make judgments as situations come up and accelerate the program in the exercise of its discretion.

Justice Tom C. Clark: The time element is the same in the schools as it is in the recreational area desegregation?

Mr. Thomas R. Prewitt: If Your Honor please, as I stated earlier in response to the Chief Justice's question yesterday, the Board of Education proposes to desegregate the fourth grade this year and then one grade each year thereafter.

The plan submitted by the NAACP would accomplish complete desegregation of the schools by 1965.

The District Judge has not yet ruled with respect to the two plans concerning the school system.

Justice Tom C. Clark: And the schools would be desegregated by 1965?

Mr. Thomas R. Prewitt: If the plan submitted by the end of --

Justice Tom C. Clark: [Inaudible]

Mr. Thomas R. Prewitt: If the plan that we have already presented to the public press is the final plan, but the Trial Court has never had an opportunity to even consider that plan.

Chief Justice Earl Warren: Well Mr. Prewitt, has the City of Memphis opened up any new parks in recent years?

Mr. Thomas R. Prewitt: Yes sir.

Chief Justice Earl Warren: Have all of those been opened up on the non-segregated basis?

Mr. Thomas R. Prewitt: You mean parks that were formally undeveloped, is that what you...

Chief Justice Earl Warren: I don't know.

I said have they opened any any new parks?

I don't know what undeveloped means, but have they opened up any new parks for use of the people of Memphis during recent years, and if so have those that they have opened up been desegregated or have they been segregated?

Mr. Thomas R. Prewitt: I think I can answer that yes, if Your Honor please, that they have opened up new parks, which are now desegregated.

Chief Justice Earl Warren: Have they opened any of that have remained segregated?

Mr. Thomas R. Prewitt: Yes sir.

Chief Justice Earl Warren: And why?

If you are looking for a plan to remedy this situation and to give these people their rights, why do you buy new parks and segregate them?

Mr. Thomas R. Prewitt: If Your Honor please, the only answer I can give to that is that the new parks as well as the old parks have to be considered as part of the overall system and the plan for desegregation takes into account all of the system, including new parks as well as the old parks and the program that we are trying to evolve will result of course in desegregation of all the parks.

In all candor, may it please the Court, I can add very little or detract from the opinion of the Court of Appeals.

I feel that the Court of Appeals has analyzed the evidence presented below, has concurred in the findings of the fact of the Trial Court, and has stated our position far better than I can state it.

We feel that since both Lower Courts found that the Park Commission acted in unquestioned good faith and that more time was necessary in order to accomplish an orderly desegregation of this vast recreational system, that the trial Judge was not in error in refusing to issue an injunction, which would order massive desegregation of every recreational facility in the City of Memphis.

Justice Potter Stewart: Mr. Prewitt, you've emphasized several times that the -- in your view the only question before this Court now is whether any delay at all is permissible in -- with respect to park and playground system as contracted -- as contrasted with a school system and that no particular plan is before us.

Is that what I understand?

Mr. Thomas R. Prewitt: Yes.

Justice Potter Stewart: I've been looking through the record and I can't seem to find the judgment of the District Court.

The judgment of the Court of Appeals is one affirming the District Court, but there is lots of -- there are some conclusion in fact in law with no signature by the Judge on it, were those proposed and not --

Mr. Thomas R. Prewitt: No sir, they were entered.

If the record reflects only a copy then this record is in error.

The findings of facts of the Lower Court are in the record at page 91.

Justice Potter Stewart: 91 to 101.

Mr. Thomas R. Prewitt: Yes, sir.

Justice William J. Brennan: That's 102.

That doesn't seem to be signed or approved, is that the District Court judgment?

Mr. Thomas R. Prewitt: That is the fault of the printer, may it please the Court and not the fault of the District Court.

Justice William J. Brennan: But is this the --

Mr. Thomas R. Prewitt: That is the judgment.

Now I do not know why they printed a record doesn't have a signed copy, but it is the judgment of the Court and I have learned today that the typewritten record is here, so that I'm sure it will reflect the signature of the judge.

Justice Hugo L. Black: Who was the Judge?

Mr. Thomas R. Prewitt: Marion Boyd, may it please the Court.

Justice Arthur J. Goldberg: [Inaudible]

Justice Potter Stewart: As I am glancing over this record at page 102 and 103, it appears that the -- that Judge Boyd approved a specific plan and a specific timetable, didn't he?

Mr. Thomas R. Prewitt: Judge Boyd approved a partial plan, may it please the Court, with respect to the golf courses, fairgrounds, amusement park and a few other facilities that are specifically listed.

He further ordered the Park Commission to submit a complete plan within six months and before that six-month period expired the appeal was taken.

So that he has never had an opportunity to rule on the adequacy of the complete plan.

Justice Potter Stewart: So his basic judgment and as you submitted it was simply denying an injunction, a prayer for injunction, which would have required the immediate total desegregation of all the facilities.

And it's your point that if we agree with you, that there is at least possibly some room for some delay, this would not imply the approval of any specific plan in Memphis or anywhere else, is that right?

Mr. Thomas R. Prewitt: Certainly not, because no plan has ever been presented to the Court other than the partial plan with respect to the golf courses and fairgrounds and amusement parks, and the tennis courts, yes.

Justice John M. Harlan: [Inaudible] the Court gives judgment -- the district court will then be called on to approve or disapprove or modify the plan that you've left here?

Mr. Thomas R. Prewitt: That's correct.

Justice John M. Harlan: And they of course should be subject to further reviews as to whether he abused this discretion or not in what he did?

Mr. Thomas R. Prewitt: That's correct Your Honor please if the plan that we've submitted is inadequate then the court necessarily will do something about it.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Thomas R. Prewitt: If Your Honor please, I believe that if the Board of Education plan is approved it will -- the time they'll need for desegregation will be about the same time, yes sir.

Well both programs were commenced at about the same time.

Your Honor is correct, that if the NAACP Plan is approved then there -- it would be on earlier date and I think that might very well have a considerable bearing on what the trial court should do with respect to the Park system.

It's hard to separate the two, they are so enmeshed.

They even -- the Park Commission and the Board of Education even operate out of the same building now.

It's very difficult to consider the two things separately because actually we are talking about the same children because they have the same children, the same children go to school to play on the playgrounds, and the two systems--

Chief Justice Earl Warren: The children must go to school they need not go to the playground.

Mr. Thomas R. Prewitt: That's correct Your Honor please and we feel that that strengthens our position, because the participation on the playgrounds is voluntary and we certainly don't want to create a situation which would discourage that voluntary participation.

We want to make the playground system attractive to the children so that they will avail themselves of the benefits of it.

Chief Justice Earl Warren: Then you are continuing an existence the feeling of the community that there should be segregation?

Mr. Thomas R. Prewitt: To some extent yes, I think that's true if Your Honor please.

Chief Justice Earl Warren: At least in the Brown case that that wasn't a justifiable reason?

Mr. Thomas R. Prewitt: Yes sir, but may it please the Court, the opinion of the Court of Appeals is not based on that fact.

The opinion of the Court of Appeals is based upon the fact that if the release sought here is granted many more supervisors will be necessary to supervise these 100,000 children and that many children that now enjoy the benefits of supervised play will be deprived of that.

That was the basis, not that the community feeling was against it.

Of course I would be naïve even if I stood in front of this Court and said that the white people of Memphis were all for integration, but the opinion of the Court of Appeals did not take into account any hostility in rendering its opinion.

It was based upon other factors that we feel are legitimate factors under the Brown decision.

Justice John M. Harlan: What other Courts of Appeals [Inaudible]

Mr. Thomas R. Prewitt: If Your Honor please the Fifth Circuit Court of Appeals with respect to Birmingham or Montgomery I'm not sure, ruled, Gilmore against Montgomery, ruled that the second Brown decision applied to public parks and in the City of Charleston case, the Court of Appeals for the Fourth Circuit ruled not that the Brown case applied, but that delay would be authorized in if there was a proof to justify.

In the South Carolina case, there was only one facility involved, the public golf course.

They weren't considering a system, an entire recreational system. Those are the only two cases that I know about that cover this specific question.

Justice Byron R. White: Mr. Prewitt there will still be the same 100,000 children to be serviced whether the parks are segregated or desegregated and how is that that they will take more supervisors in the event of desegregation, in a particular park?

Just take and pick one of the parks you are familiar with and give us an example.

Mr. Thomas R. Prewitt: All right if Your Honor please let's take a park that accommodates 800 children, that would be an average, because there are 100,000 children to be -- that are involved in.

Justice Byron R. White: We'll take a specific park with which you are familiar.

You don't need to deal with averages and figures.

You know of a park there, just speak of one that is now segregated and tell us about how --

Mr. Thomas R. Prewitt: I am told that the average park requires two to four supervisors to supervise the play.

Until last year there were no integrated playground situations.

Where that situation has changed and instead of having children of all of one race, but are mixed for the first time the feeling of the people in-charge, the Superintendent of Recreation and the Director of Parks based upon trouble already experienced on the public buses and at the zoo where additional protection was needed to the public, based upon actual experience, they testified that more supervisors than two to four in the park in question would be needed to protect those 800 children.

Justice Byron R. White: I know that's the testimony, but why are they needed.

I know that's somebody's opinion, but what are the -- now you said a moment ago that some parks, some playground that was schedule to be desegregated in 1965 was desegregated in 1962, which park was that whether --?

Mr. Thomas R. Prewitt: That was Winchester and I believe the basic reason for that was that the character of the neighborhood had changed more rapidly than the --

Justice Byron R. White: Well, did you need more supervisors in that park when --?

Mr. Thomas R. Prewitt: No, because the character of the neighborhood was such that once it was open to both races, only the colored children participated.

Justice Byron R. White: Well was -- what is your, is that just -- do we have the facts in the record as to why more supervisors would be needed or just someone's opinion would be prevalent?

Mr. Thomas R. Prewitt: You have the facts that where other facilities have been desegregated Mr. Justice White, such as the public buses and the public Zoo that additional protection was needed.

Justice Byron R. White: Well -- are you saying that if you only desegregate a park and you have a mixture of the races, there is going to be just more fights or more or what?

Mr. Thomas R. Prewitt: Yes sir and I don't think there is a slightest doubt about it.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Thomas R. Prewitt: Yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Thomas R. Prewitt: Very little trouble with the tennis courts, very little trouble, may it please the Court, with the golf courses, very little trouble actually at the Zoo, but in dealing with the playgrounds such vast numbers of children, it's the feeling of the people in-charge who lived in Memphis all of their life that, that is a much more sensitive area and it is an area in which we need more additional time.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Thomas R. Prewitt: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Thomas R. Prewitt: I mentioned, may it please the Court, the Zoo and the public transportation system as two examples of where there was confusion and turmoil.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Thomas R. Prewitt: There have been, as I mentioned the playground to Mr. Justice White, but because of the character of the neighborhood, the participation by the white children ceased upon the integration, but there are many neighborhoods where that situation will be not be true.

Justice Byron R. White: Will is it -- are there any other public playgrounds that are desegregated other than the Winchester?

Mr. Thomas R. Prewitt: There are three, I believe Your Honor please, there are either three that are already desegregated or that will be that --

Justice Byron R. White: Well, how about that the ones that are already segregated – desegregated? You say there are three of those or only – there are only one?

Mr. Thomas R. Prewitt: The only one I can think of is that has already been desegregated is Winchester.

Two more are on -- are planned immediately.

Justice Byron R. White: Well, do you know what -- are these in the neighborhoods similar to those of the Winchester?

Mr. Thomas R. Prewitt: Yes, sir.

Justice Byron R. White: So that you would anticipate that there will be colored children in the end result there?

Mr. Thomas R. Prewitt: Probably if Your Honor please.

Justice Byron R. White: So you have no plans in any neighborhood this time to desegregate a park where there actually in a -- were after the so called desegregation there would be both races on the playground.

Mr. Thomas R. Prewitt: We feel that those should be desegregated after such parks as Winchester.

That the plan contemplates that park such as Winchester should be first desegregated and that other parks where there will be more --

Justice Byron R. White: Have you submitted your plan yet in the District Court or not?

Mr. Thomas R. Prewitt: We submitted it to the Court, but the Court would not consider it.

Justice Byron R. White: Well, in that plan that you submitted, when is the first -- when will be the first park or the first playground that is -- when is that scheduled for desegregation where you know there will be a mixture of the races after the so called desegregation, what year?

Mr. Thomas R. Prewitt: All I can say Your Honor please, the Winchester playground has been desegregated.

Justice Byron R. White: Well I know, but you know that -- and why the other two you've got plans, you anticipated only colored children will be playing in that park?

Mr. Thomas R. Prewitt: I cannot since it's a voluntary program, may it please the Court.

Justice Byron R. White: I know, but you said a while ago there are other neighborhoods where this will not take place after desegregation and that there actually will be a mixture.

Mr. Thomas R. Prewitt: I don't understand exactly what the Court --

Justice Byron R. White: Well, I know but the -- you've -- if the only park that have been desegregated or that are going to be desegregated are the ones in the Winchester type neighborhood, there going to be required no further supervisors because there only be colored children there?

Mr. Thomas R. Prewitt: Your Honor please, our plan contemplates desegregation of all 117 --

Justice Byron R. White: Yeah, I know it, but I want to -- I would like to when is the year -- in what year do you plan desegregation of the park where in a neighborhood not like the Winchester Park?

Mr. Thomas R. Prewitt: If our plan that has been submitted to the Court, but has not been filed but which has been published is adopted, the playground will desegregated on a staggered basis until 1971 when at which time all of the playgrounds will be desegregated.

I cannot answer Your Honor's question that in 1965 our playground number 25 will be desegregated and in that area, the population is 50-50.

I just don't know, but it's a gradual program over a period of the next seven or eight years until 1971, taking around six or seven playgrounds a year or whatever is required.

We haven't attempted to gerrymander this proposition, but we have -- the Park Commission has attempted to desegregate areas which will be less troublesome first.

Chief Justice Earl Warren: Well, if you desegregate only those parks that because of the type of the neighborhood will only be used by Negroes, have you desegregated at all?

Mr. Thomas R. Prewitt: Well, as I say, it's a voluntary participation, may it please the Court.

Chief Justice Earl Warren: Well, I was asking you a while back about voluntary participation in the park is distinguished from attendance of public schools and you said it was because the people of Memphis weren't ready to accept that and use the park in that spirit, that cause them to -- cause your authorities to do what they are doing on this basis.

Mr. Thomas R. Prewitt: Well, if Your Honor please, my answer – I will try to answer the Court's question in this way.

Actually, there is no segregation in housing in Memphis as such.

That is, there is no one particular area in Memphis where there are only colored people and other areas where there are only White people.

They are intermingled and scattered over the whole city.

This plan of desegregation would desegregate these various parks and playgrounds over a six to seven-year period until 1971.

And I can't answer Your Honor's question by saying that when the park number 25 is desegregated that only white people or only colored people will appear there.

Chief Justice Earl Warren: Well I didn't answer that, you told us that just a little while ago that the reason is Westchester one could be done in a manner that it was, was because it was so predominantly colored that when they desegregated it, the Whites wouldn't go there and therefore, you would have no trouble?

Mr. Thomas R. Prewitt: That was not the basic reason.

The reason was that the neighborhood around this particular park was almost entirely colored.

The White people can participate there if they wish, it's a voluntary situation.

That's about all I can say, Your Honor please.

Again, I submit to the Court that the question herein involved is whether or not the District Court and the Court of Appeals had any discretion save to issue an immediate injunction that was the only issue there, it's the only issue before this Court and if we are inadequate in our plans then that can be corrected and the Trial Judge will correct it, I'm sure.

Chief Justice Earl Warren: Mrs. Motley

Argument of Constance B. Motley

Ms Constance B. Motley: As Mr. Prewitt has stated the typewritten transcript of all of the testimony is here in this Court.

And on Page 45 of the first volume, it is made clear that those parks, which are already desegregated or which had been desegregated prior to the institution of the suit to 25 of these squares and the --

Justice William J. Brennan: 25 [Inaudible]

Ms Constance B. Motley: Yes sir, the 25 that had been already desegregated.

Justice William J. Brennan: Those were all these little neighborhood squares?

Ms Constance B. Motley: That's right.

And as it appears on page 45 of the typewritten transcript of the testimony, at that time, the Superintendent of the parks was going over the list of all the facilities and he had in his hand Plaintiff's Exhibit 6 and he has the summary of all these facilities and there is one category on the top marked “General” and the Counsel examining him said, “Doesn't general mean these -- he said alright, in this category called general up there, number one, aren't they what you mean to say these parks with just benches and places like Fort Square, are they?”

Answer; “That is correct,” so that the facilities which were desegregated were mainly these squares with statues.

In fact, one of them is I think a little strip of land near the river with four or five benches and they call that a park, but actually it's just a little square that's been desegregated.

Justice Potter Stewart: Mrs. Motley, it's your position or at least your first position that with respect to a park and a playground system, there is no room for any delay of any kind, any place for any reason in delaying the compulsory immediate desegregation.

Is that correct?

Ms Constance B. Motley: Yes, our first position is that with respect to public recreation --

Justice Potter Stewart: Yes.

Ms Constance B. Motley: -- there is no need for the delay contemplated by this Court in the second Brown case because recreation is not like public schools, it's like desegregation of the buses and those have been desegregated in Memphis and many other communities, immediate in the sense of immediate here of course doesn't mean tomorrow, because no injunction was issued for ten days anyway and there maybe an appeal and a stay, but what we mean is that, that it should not be applied to this area, this gradualism, which is developed with respect to school --

Justice Potter Stewart: Well, any gradualism at all, don't you mean?

Ms Constance B. Motley: That's right.

No gradualism at all is our first --

Justice Potter Stewart: And this area, you don't mean Memphis, you mean the area of parks and playgrounds anywhere whether it be Memphis or Jackson, Mississippi or --

Ms Constance B. Motley: Yes sir, yes that's correct.

And what they're attempting to do here really is to apply gradualism to the area of recreation such as now has developed with respect to the school.

Now, Mr. Prewitt also said that the District Court has not acted on their plan because that his hands were stayed.

Now, that seems to imply that we applied for a stay of the District Court's order or somebody did, but there was no stay here.

And of course, an appeal does not automatically stay proceedings in the District Court and it is my understanding that that plan has not been filed with the District Court, the ten-year plan.

Justice Potter Stewart: There is no plan before this Court, is there?

Ms Constance B. Motley: That's right.

It has not been filed in the District Court, but as I said before, the Sixth Circuit has looked at it and now this Court has it because they say it's a public document, everybody knows what --

Justice Potter Stewart: But it's neither been approved nor disapproved by any Court?

Ms Constance B. Motley: That's right.

Yes that's absolutely correct.

Now, the point of --

Justice Arthur J. Goldberg: [Inaudible]

Ms Constance B. Motley: Yes sir, that's what it is.

Now as to the more supervisors -- I think the answer to that was there -- desegregation is that, if 20,000 new white children should move into Memphis as the Sixth Circuit said in the Clemens case, the local authorities would take care of that and they would provide more supervisors or whatever is required to accommodate an additional increase in white children.

And the other thing is that there is more confusion now as a result of this gradualism and not less because Negroes are not advised when these parks are desegregated, they don't know which park they can go in and as the record says, you don't know until you go there and the policeman doesn't chase you and you can go.

So, this has resulted in more confusion rather than less.

Thank you.