GRIFFIN v. SCHOOL BOARD

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Argument of Robert L. Carter

Chief Justice Earl Warren: Number 592. Cocheyse J. Griffin etcetera, et al., Petitioners versus County School Board of Prince Edward County, et al.

Mr. Carter, you may proceed with your argument.

Mr. Robert L. Carter: If the Court please.

This case is here for the second time on the merits and because it's the petitioner's view that this is a case that has influenced to great deal by facts in its history with the Court's permission, I will attempt to summarize the history of the proceedings below.

Some time in the Spring of 1951, a group of Negro high school students then attending the Robert R. Moton High School which was a Negro High School in Prince Edward County, Virginia, believing that they were not being accorded adequate or equal education opportunities, decided to go on strike from school and left the school.

They got in touch with the lawyers and the lawyers persuaded them that the best way for them to present their claim was to present their grievances in court.

And eventually, in May of 1951, a complaint was filed in the United State's District Court, attacking the constitutional validity of Virginia's separate school law.

That cause eventually reached this Court and was disposed of in Brown versus the Board of Education on the merits in 1954.

In 1955, this Court remanded the cause with instructions to the District Court to grant relief, that is the transformation on the separate and segregated school system to a school system without discrimination based upon race with all deliberate fees.

In 1955 on remand, petitioner made an application to the District Court seeking implementation of that decree and therefore the beginning of the process of desegregation by September of 1955.

The District Court then a statutory court, answered a general order and which it forbade any discrimination, but held that the time was not ripe and there was not time enough for the County School Board to make plans for the admission of students without segregation.

In 1956, petitioner appeared before the Court again and again requested that this Court's order be implemented beginning in September of 1956.

The District Court, still a statutory court, took this matter, but held that since all of the constitutional issues had been resolved that the question for resolution was now for a single court for the resident Judge and dissolved the statutory court and the matter was referred to the resident Judge.

It came on for hearing before the single judge in 1957 with an application by petitioner for implementation as of September, 1957.

The District Judge ruled that the time was not ripe.

He construed this Court's decree and implementation decree as giving him discretion and then under the circumstances he said, “The time was not ripe for any decree to be entered because he did not know when Prince Edward County would be able to comply with this Courts decree.”

Justice Potter Stewart: What year was that?

Mr. Robert L. Carter: This was in 1957.

Justice Potter Stewart: 1957.

Mr. Robert L. Carter: All of the citations -- all of these cases are cited in our brief of the citations here.

The Court of Appeals reversed, taking the view that the time had come for the County Board of Prince Edward County to be told to apply, to commence compliance with this Court's order.

The matter then came on for hearing before the District Court again in 1958 and again, the petitioners requested the time of compliance be set as of September of 1958.

At that time, the County School Board introduced evidence showing that they needed more time.

It indicated that a survey was being made by the -- they appointed persons to make a survey and may based upon what the results of that survey would give them help in complying with decree.

The District Judge felt after hearing the evidence that 10 years from 1955, 10 years from the date of the implementation decree of this Court would be at the time when it would be ripe for the School Board to be ordered to commence the segregation.

So he set the date as of September, 1965 for the County School Board to commence the desegregation of the schools.

The Court of Appeals reversed on May 5, 1959 and set the date for the commencement of the segregation of the high schools as of September, 1959 and ordered the County School Board to make plans for the elimination of segregation in the elementary schools at the earliest practicable date.

Now in 1956, in May of 1956, the County School -- the County Board of Supervisors enacted a resolution indicating that they would not levy any taxes or appropriate any funds for the maintenance and support of any public schools in the county in which Negroes and Whites were educated together.

That resolution is set out in the record and in our petition.

Justice John M. Harlan: [Inaudible]

Mr. Robert L. Carter: I think it would be easier for me if I can give it to you.

In the petition, it is set out in the petition as Appendix B.

At 30 A.

After the order of the Court of Appeals of May 5, 1959, the County School Board -- the Board of Supervisors I am sorry, and this is set out at Appendix C of our petition, passed a resolution refusing to levy any taxes and to appropriate any funds for the maintenance of public schools in Prince Edward County.

It made a public statement to this effect, and made it a part of its record, its reasons for doing so and its reasons where that it would not and would not support and maintain any schools in which Negro and white children were educated together in the light of the fourth coming Court decree they would be required to do.

Now this brings us roughly to the present proceedings which are presently before the Court.

In September of 1959, the Prince Edward School found -- County School Foundation which had been charted in 1955, began the operation of secondary and elementary schools for the white children in the County.

It enrolled, there were some roughly 1,500 white students who were going to the public school as of June of 1959 and it enrolled some little over 1,300 of these students.

During the first year that is September of the 1959, 1960 school term, no tuition was charged.

But during the second year, the Board, the Foundation set forth tuition charges of $240 for the elementary grades and $265 for the secondary grades.

On July 18 of 1960, the Prince Edward County Board of Supervisors enacted two ordinances, one, permitting a grant in aid of education, a tuition grant of $100 per child to attend a nonsectarian private school in the County and the only nonsectarian private school in the County was the Prince Edward School Foundation and it allowed as well a 25% tax credit, a rebate of taxes to persons who made any contributions for the support and maintenance of a nonsectarian private school in the County which of course, as I indicated was the school foundation.

Justice Potter Stewart: Was this grant also available for use in a public school outside of the County?

Mr. Robert L. Carter: Yes sir.

The tax credit was, as I remember, was not but the tuition grant was for public schools outside the County and within the County.

Justice Potter Stewart: And within -- of course, they weren't but this time they were not --

Mr. Robert L. Carter: No.

No.

There was no public but private schools in the County and public schools outside.

Now the State's scholarship program also was to provide something like $250 and $275 for scholarship aid for children to go to a public school outside their County and to a private nonsectarian school within the County and pursuant to this, as the record indicates in the trial, over 1,300 white students received aid during the second year for attending the schools of the Prince Edward School Foundation, both from the State's Scholarship aid and from the local tuition grants.

There was no regular of systematic instruction for the Negro students although they were kept together in centers operated by an organization known as the Prince Edward Christian Association.

Now the --

Justice Potter Stewart: Who organized that?

Mr. Robert L. Carter: This was organized by a group of Negro ministers headed by the Reverend Griffin who was the father of the chief petitioner before the Court.

Justice John M. Harlan: Were the grants made available for that -- students attending school?

Mr. Robert L. Carter: The grants were available for persons who attended a school for a 180 days and a systematic course of instruction.

The persons who attended the center didn't feel that they complied with the requirements and as a matter of fact on the trial, both the State superintendent of public instruction in Virginia indicated that the schools or the centers operating would not qualify for the State's Scholarship Grant.

In other words, these centers were open for a few hours.

There was no systematic course of instruction and they were not open for 180 days.

There was some testimony by the person who administered the local program that they would be available or that they ought to be available, but I think the substance of the record would be that they would not be available because they didn't come within the terms of the statute.

Justice Potter Stewart: Grants and aid would have been available to Negro children, would they to attend public schools outside the county?

Mr. Robert L. Carter: As a matter of fact, I think five, the record shows that five Negroes who went to school outside the County did receive the grant.

Justice Tom C. Clark: To public schools outside the County?

Mr. Robert L. Carter: Yes sir.

Now --

Justice Hugo L. Black: [Inaudible]

Mr. Robert L. Carter: The --

Justice Hugo L. Black: For which the grant had -- which the grant came.

Mr. Robert L. Carter: There were both, sir.

Justice Hugo L. Black: Paid by the general taxpayers of the State?

Mr. Robert L. Carter: Yes, sir.

The State's, they were made available, State's Scholarship fund was made available for the – State and local scholarship funds were made available to carry out this program.

This is under the tuition grant program of the State.

Pursuant to what the State allocates and has, says that a person who wants to attend the school to a private sectarian school within the County will receive $250 at the elementary grades and $275 at the high school grades.

The County does not have to participate although locality does not, but if the statute indicates that if they do not, then the State will withhold funds that it would ordinary give for non school purposes.

This was to encourage the local counties and localities to enact programs in aid of this and this is what Prince Edward County did.

So that Prince Edward County gives $100 and the State was giving a $150 and $125, making the total for elementary grade to $225 and for high schools $250.

After the case was sent, the decision of the Court of Appeals on May 5, 1959, the mandate of the District Court was not enacted or issued an order on the mandate until April 22, 1960.

In June of 1960 and this begins the formal part of the proceedings which we bring here.

The petitioner filed a supplemental complaint which had been amended on January of 1961 and in the amended supplemental complaint, the petitioner added as parties, the original proceeding was against the Board of -- the County Board and the Division Superintendent, added as parties defendants, the County Board of Supervisor, the State Board of Education, the Superintendent of Public Instruction and the Prince Edward County Treasurer.

Justice Potter Stewart: State Superintendent of Public Instruction?

Mr. Robert L. Carter: State Superintendent of Public Instruction, yes sir and the County Treasurer and sought to -- and requested relief on the Federal Court on four grounds.

One, to have the Court enjoined the defendant from refusing to maintain and operate public schools in Prince Edward County.

Two, from the expending public funds for the direct or in support of any private schools which practiced discrimination and from allowing tax credits to be used to support any school that practiced discrimination and restraining defendants from conveying, leasing, or transferring possession of any of the school property to a private organization.

The case was tried on these facts in the court below in July of 1961 and after hearing the Court reached the conclusion that the local tuition grant program was an invasion of this Court's decree and order and that therefore it came within the condemnation of Cooper versus Aaron, and that the tax credit also constitutes, the local tax credit program constituted such invasion.

Therefore, those, both of those were enjoined on that ground.

The Court also held a, in a construction of the State's scholarship program that it was intended to be applied only when the public schools were open.

So that for these reasons, it enjoined both the State scholarship program and any of the tuition grants locally for so long as the public schools remain closed.

It reached the conclusion however that insofar as the merits, the basic merits of the claim, that is whether the schools could remain closed, could be closed and whether this was a violation of the Fourteenth Amendment involved questions of state law and that these questions could not be settled without an adjudication of state law matters and applying the doctrine of federal abstention, it withheld decree -- it withheld ruling on these questions until this issue had been settled.

We took, we meaning petitioners, went into the Supreme Court of Appeals of Virginia on mandamus, seeking to have that Court construe and determine the import of Section 136 of the Constitution of Virginia as to whether that provision compelled and required and mandated the Board of Supervisors to appropriate funds and levy taxes for the operation of public schools.

That question was decided in the negative.

The Court held that this was the power where this provision was discretionary, that the Virginia Constitution mandated the general assembly to maintain schools but the question of whether appropriation should be made by the County Board of Supervisors under 136 was discretionary.

We then returned to the District Court seeking further relief in the light of that adjudication.

The District Court in July of 1962, reached the conclusion that it would no longer apply the doctrine of federal abstention, that the schools had been closed and often defined of the fundamental law, and that the public schools in Prince Edward County under the Fourteenth Amendment could not be closed as long as the State of Virginia maintained schools in the rest of the State.

For this reason, it said that this was an adjudication of the federal claims where it would not issue an injunction in support of this because an injunction may not be required.

It reached the conclusion of what, that the -- since the defendants might voluntarily, the law having been declared complied with the Court's order, that it would withhold issuing a decree but it ordered the County Board to make plans for the admission of -- for the reopening of public schools and for the admission of students without regard to race by September of 1962.

And that if the schools were not opened, the Court set the matter down for a hearing on September the 7th in 1962 where would -- it would listen to all of the applications and orders made counsel of record.

On September the 7th, it was clear when the counsel appeared in Court that no plans had been made, that no plans would be made and that the schools would not be opened.

The Court then reaffirmed its ruling, but deferred entering of injunctive decree, pending review of this matter by the Court of Appeals and by this Court.

We appealed from the order on two grounds.

One, on the ground that the District Court should have issued injunctive relief and secondly, we appealed on the grounds that the limitation of the injunction against the use of state scholarship funds, local tuition grants, and certain tax credits.

For as long as the public schools remain closed it was too narrow a reading of the rights of the petitioners under the Fourteenth Amendment.

We contended that there should have been a broader injunction against is to bar the use of state money for any school that discriminated and for the use of state money to evade and frustrate the rights of the petitioners.

The Court of Appeals filed a motion for a -- to accelerate our field with the hope that the matter would be adjudicated and finally settled for the opening of schools by September of 1963.

The hearing was held in the Court of Appeals -- Court of Appeals in January.

Argument was held before the Court of Appeals in January of 1963 and in August of ‘63, the Court handed down its opinion.

In its opinion and the divided vote, it held that the doctrine of federal abstention should have applied to the whole matter which was before the lower court, both in respect to the State scholarship program, local tuition grant program, and in respect to the basic rights of the petitioners as to whether the schools could remain closed.

And at that point, there was a case pending in the courts which the defendants had instituted and the Court held that – vacated the judgment of both judgments of the lower court awaiting their determination.

The Supreme Court of Appeals of Virginia in December, after we had applied for a petition for writ of certiorari here, came down with its opinion in this matter, holding that the Virginia school program was in effect a local option program, that there was no state power, no power on the part of the defendant State Board, local county board or Superintendent Public of Instruction to open and operate or maintain and support the public schools in Prince Edward County as long as the County Board of Supervisors did not levy taxes and appropriate funds for that purpose.

And that there was no power in the State to compel the local county board of supervisors to appropriate funds for that purpose, and that the general assembly had -- although it was under a mandate to provide schools and to maintain an efficient system of public education that had done this, when it had established a system pursuant to which if the local county and districts desire to that they could participate in and that the law did not require that they should operate the schools.

This Court granted the – set the matter down thereafter on the merits.

Now I would want to make one point before I leave the facts.

In September 14 of 1951, the State was made a party to these proceedings on motion, on its motion and when the cause was here and before it was a party to the proceeding.

We are aware of no order that has eliminated the State that it had been withdrawn.

In each of the proceedings, each of the hearings in the District Court and before the Court of Appeals in the history of this case, the Attorney General of Virginia has represented -- had been represented and has argued up through the May 5, 1959 decision of the Court of Appeals for delay and for frustration and for delay in the implementation of the Court's orders.

This was at a point when only the Division Superintendent and the County Board of Education were parties to these proceedings.

With the amended supplemental complaint, the Attorney General has been in the proceedings representing the State Board of Education and the State Superintendent of Public Instruction.

I raise this question not for the technical question as to whether the State is before the Court as a party, but I think that it is important that the highest officer of the State was aware or order or appoint to what was going on, knew what was going on and indeed participated in the arguments before the Court and the theory of the County Board of Supervisors that they had a legal right to not to implement this -- to have this Court decree them.

Now it's our position where the nature of this case, the kind of case of which it is the delays and the frustration and the protracted nature of this cause and the facts which we had set up.

Justice William J. Brennan: Before you go Mr. Carter, may I just ask you, are these grants still being paid --

Mr. Robert L. Carter: I'm sorry if I didn't make that clear.

They were enjoined by the -- in 1961 by an order of the Court, the grants were enjoined.

The State grants and the local grants were enjoined for as long as the public schools remained close.

When the matter was vacated by the judgment it was vacated by the Court of Appeals, we sought a stay which was denied by the Court of Appeals, but granted – a sort and order issued by its use.

Justice William J. Brennan: That's what I'm trying to get, that is the order I signed?

Mr. Robert L. Carter: Yes, sir.

So that as a matter of fact, the pending its determination by this Court, the injunction of the District Court is still operating.

Justice John M. Harlan: Well, they have not in fact have been paid I gather since 1961?

Mr. Robert L. Carter: That's correct.

They had not been paid since the order was issued in November of 1961.

Justice Byron R. White: But the State funds that were enjoined to be dispersed were on the -- is going to attend on the ground on a state ground, wasn't it?

Mr. Robert L. Carter: Yes, sir.

Justice Byron R. White: Well it comes to the State -- the county was on a constitutional --

Chief Justice Earl Warren: They are receiving the tax deductions, are they not?

Mr. Robert L. Carter: The tax credits, no sir.

As a matter of fact, the tax credits were also enjoined by the District Court in November of 1961 and in order -- and the District Court did this on constitutional grounds that this was an evasion of rights and actually I believe in last year, this summer, the county board of supervisors re-appealed the ordinance in regard to tax credits.

Chief Justice Earl Warren: What subsidization does this Foundation or the parents of the students who attend the school receive by the tax?

Mr. Robert L. Carter: They receive insofar at the present time they are receiving none from the State.

Chief Justice Earl Warren: They received none from the State.

Mr. Robert L. Carter: They may have received some bus transportation and so forth but they are receiving substantially nothing from the State.

Justice Potter Stewart: Was the school in operation?

Mr. Robert L. Carter: Yes sir, the Prince Edward School Foundation?

Justice Potter Stewart: Yes the foundation.

How's it being financed?

Mr. Robert L. Carter: Well, it's being financed apparently by the private sources.

I'm in no position to state in the Court.

It is not being financed by state funds.

Justice Potter Stewart: Through any state funds.

Mr. Robert L. Carter: There are no state funds that are --

Justice Potter Stewart: (Voice Overlap)

Mr. Robert L. Carter: Yes sir.

That is correct but the first year they charged no tuition.

I don't even know whether they're charging tuition at the present time.

All I know is that the school is operating but it is not functioning.

Justice Potter Stewart: And what's -- now as a matter of fact, happening with respect to Negroes?

Mr. Robert L. Carter: Well, the -- in September of this year --

Justice Potter Stewart: This past year.

Mr. Robert L. Carter: This past year and the state authorities take from the front because I get some credit to the United States Government, but at least to the efforts of the Department of Justice, a school has been organized which I think it's called the Prince Edward Free Association something of that kind in which the Negro students are now being given instruction.

The school is operating without the restrictions based upon race and they are, I'm advised, a few white students present, but this is the first time that the Negro students since 1959 that we see any kind of systematic instruction.

I'm also advised that this is a temporary manner that they are engaged in for the most part of remedial work and that it is not put their permanent belief away but as a staff gap for until this course had been determined.

Justice Potter Stewart: How was that being finances in the County?

Mr. Robert L. Carter: That's being financed by private foundations.

The Department of Justice got together a group of persons of private resources.

It also has in support, I must say, in the fairness of the Governor of Virginia and certain of the educators of Virginia who are helping to operate this school.

Justice Potter Stewart: In –-

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: No, sir.

Justice William O. Douglas: Then you tried to get in?

Mr. Robert L. Carter: None have – as far as I know, none have tried to get in but the -- I think that it's fair to say without equivocation that the school -- the school was organized for white students and that it was organized to take care of the education of white students only.

Now, this was its purpose and this is how it has operated and functioned up to this time.

Justice Potter Stewart: In terms of the numbers laid here, I think you said there were some 1,300 of white school children in the county?

Mr. Robert L. Carter: Yes sir.

There's something like about there were 1,500 but I think roughly, Mr. Justice Stewart, I think it's about 1,300.

The record shows about 1,358.

Justice Tom C. Clark: That are going to the foundation?

Mr. Robert L. Carter: Yes, sir.

I think that's the record figures.

The figure given for the Negroes is 1,700 to 1,800 students.

Now the Prince Edward consented this Christian Association of operating took care I think, of about 250 of them, but now the schools are being opened and in time for all those who can go.

Justice Tom C. Clark: And that's you said about 1,700 Negroes.

Mr. Robert L. Carter: Yes, sir.

Justice Tom C. Clark: Would that reflect the population make up generally of the county, a little more than half?

Mr. Robert L. Carter: Yes, sir.

It's about 50-50.

It's about 50% Negro, 50% White.

Maybe, slightly more Negroes, but I think that in general, that's just about what it is.

Yes sir.

Justice William O. Douglas: In the pre-school?

Mr. Robert L. Carter: I didn't, I'm afraid I don't know.

Justice Byron R. White: It's not the whole [Inaudible]

Mr. Robert L. Carter: I don't believe so.

Justice Tom C. Clark: Do they get [Inaudible]

Mr. Robert L. Carter: No, sir.

Now --

Justice Hugo L. Black: [Inaudible]

Mr. Robert L. Carter: I beg your pardon, sir.

Justice Hugo L. Black: Would that be because of the injunction that there are no grants and aid to the pupils?

Mr. Robert L. Carter: Well, I think it's because for two reasons, one, the Negro parents in the school in the Prince Edward County take the view that the granting aid are an evasion of --

Justice Hugo L. Black: I'm talking about the white people.

Mr. Robert L. Carter: Oh, no, they've got nothing now.

Justice Hugo L. Black: Why?

Mr. Robert L. Carter: Because the Court in 1951, issued an injunction barring state's --

Justice Hugo L. Black: Has been an existence ever since?

Mr. Robert L. Carter: Ever since -- at the conclusion of a good trial in 1951, the Court handed down an opinion and enjoin.

And although the judgment was vacated below by the Court of Appeals, this Court, Mr. Justice Brennan, stayed the execution of the Court of Appeals decree pending decision here.

Justice Hugo L. Black: And that remains an issue here, does it not?

Mr. Robert L. Carter: Yes, sir.

Yes sir.

The legality of the tuition grant --

Justice Hugo L. Black: That's right.

Mr. Robert L. Carter: -- is before this Court and the States Scholarship Program is before this Court, the questions we raised as well as the basic issue as to whether this Court has the power and whether the petitioners make a valid claim to argue that the public schools in Prince Edward County cannot be closed. These are the matters that we wish to present to the Court for adjudication.

Justice Potter Stewart: I gather that the tax credit may now be out of the case?

You say that it's been repealed?

Mr. Robert L. Carter: I didn't hear you.

Justice Potter Stewart: The tax credit, the 25% tax credit.

Mr. Robert L. Carter: Yes sir.

Justice Potter Stewart: That law has been repealed, isn't it?

Mr. Robert L. Carter: It was suggested in the opinion of the Court of Appeals that the possibility that that ordinance might make -- it appears that the county was still participating in the education sponsored by Prince Edward School Foundation and it was apparent, I merely suggested apparently in the light of that suggestion from the Court of Appeals is the tax credits were repealed.

Justice Tom C. Clark: As a matter of fact, my recollection directed was something asked in this with respect to the tax credit and the order I find [Inaudible]

Mr. Robert L. Carter: Well, what we did was that we understood the Court of Appeals for order to mean that both the 1951 judgment of the Court of Appeals had been vacated and the 1961 and 1962 which in our view would have meant that the county was free to use both tax credits, local tuition grants and so forth.

That's why we asked for stay so that the status quo would remain as it was and as a matter of fact, the effect of that State' was to prevent the use of any tax credits or local tuition grants or state scholarship funds until this case have been further determined here.

Justice William J. Brennan: [Inaudible] the day I find has that effect?

Mr. Robert L. Carter: Yes sir.

We want to add two -- one other point and that is that this during the course of these proceedings there have been three sets of petitions that began with over a hundred petitioners and the main petitioner was a Dr. Davis who came here.

By the time the matter was before the Court in 1957, these were high school students.

Almost all of these petitioners that graduated and they were substituted in the proceedings to continue, not in the name of Allen and the matter was brought before the Court in the amendment supplemental complaint, we introduced a third set of petitioners because all of those had graduated.

So that what we assert to bring to the Court is that even though the law is in this case as we believe and assert has been settled there has been an entire generation of Negro children who have been -- who have not been allowed or permitted to enjoy the constitutional right which this Court declared to be theirs.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Robert L. Carter: I would think so and I would -- it would be my position or it would be -- that would be such a denial and for several reasons, one, because of the vitality and necessity of education, although this Court and other courts had never said that there is a duty on the part of the State to maintain an education.

The State having assumed that obligation, I think it puts them in entirely different posture when it attempts to withdraw.

I might be in a little more difficult position if the State were beginning to have the education in various of the counties and didn't have in another.

But in this instance, the case of state has withdrawn a vital necessity from that it has allocating to various persons.

And it seems to me that there is no -- you can't make a distinction in county based on geography or to apply an education is more important to the individual's concern.

And I would think that this would be a denial of the equal protection of the law because I would think it would be a denial of the equal protection of the law as long as that State assumed the obligation of educating person in other place.

This would be my approach to that problem.

Justice Potter Stewart: Mr. Carter about this hypothetical case, let's assume the State which has been in the conventional business of providing education to a public schools decided, “We're going to do this differently from now on.

We're going to abandon our public school and instead of that, we're going to provide $300 a year for every child of school age who wants to go to school.

All he has to show is that he has gone to a school of his choice, a public school outside of the State or a private school in or outside of the State.

We're going to do this uniformly and give each school child in our State their complete freedom, he and his parents will have complete freedom to be educated any way he wants to, of the public expense up to $300.

Mr. Robert L. Carter: You make my problem a little more difficult when you use this $300.

If I can answer it on the assumption that this will be a complete education and I'll attempt to answer, the $300 gives me problems because I would take the view of the $300 then that's not enough.

Justice Potter Stewart: Let's say $1,500.

Mr. Robert L. Carter: Alright.

Well then -- then this -- then I think I can answer though, at least I'll try to answer in this way. I would think that this kind of arrangement which is being arranged by the State for all the students and they are not really maintaining public schools in the traditional form, but they are in fact, maintaining public schools in a different way.

I would think that as long as there is no attempt to evade, there's no segregation or discrimination in the operation of this program that is both with respect to the schools or in respect to the admissions and so forth that it might be --

Justice Potter Stewart: Well I'm assuming -- I'm assuming that the individual child and his parents, if they want to, they can go to an all white school, to an all Negro school, to an integrated school or to any kind of school they want to and all the -- and that the only control the State puts on it is that the school maintain minimal educational standards.

Mr. Robert L. Carter: No sir.

Justice Potter Stewart: That is intellectual.

Mr. Robert L. Carter: I would contend under those circumstances that this is the denial of the Fourteenth Amendment.

Justice Potter Stewart: What rights under the Fourteenth Amendment?

Mr. Robert L. Carter: I would think that the school, public funds, it is our position here that public funds cannot be used by an institution that although the question of the individual having a right to go to the school they plead, they have no objection to that.

But if the public funds in the institution itself discriminates and segregates, that is it maintains a policy of exclusion of this the Prince Edward School Foundation or from Negro institution that would maintain the policy of inclusion based upon race, it would be my view that the requirements of the Fourteenth Amendment would bar the use of state money and the allocation of state money into that --

Justice Potter Stewart: What other requirements of the Fourteenth -- the Equal Protection Clause?

Mr. Robert L. Carter: Both the -- the Equal Protection Clause and because of the fact that this Court has indicated that education supported and maintained by the State that it cannot participate as I understand in Cooper versus Aaron in any management, arrangement, use of funds and so forth to maintain the segregated school.

Justice Potter Stewart: Do you understand under my hypothetical case, the money goes to the child or to the child's parents.

Mr. Robert L. Carter: It goes to the child's parents, but it eventually goes --

Justice Potter Stewart: Eventually goes to the school.

Mr. Robert L. Carter: I would contend that this also a part of the Fourteenth Amendment.

Justice Potter Stewart: Isn't my case almost exactly like the -- what was provided for in the G.I. Bill of Rights, by the Federal Government?

Mr. Robert L. Carter: But the question in the G.I Bill of Rights, if the G.I. Bill of Rights is used and if funds, public funds for the support and maintenance of the school which bars Negroes based upon race, I would contend that the funds cannot be used for this purpose and this would be a violation of the Fifth Amendment.

This would be my contention.

Now the fact that -- the fact that this matter has not been brought for adjudication by this Court as another matter and another thing, but here we have, here what I think we would have in your instance sir, you would have a foundation or an organization that is like the Prince Edward School Foundation totally supported and is able to be operative because of the funds that it receives under from this kind of program.

And I would think that this is an invasion of the mandate of this Court in Cooper versus Aaron.

It would be my view.

Justice Potter Stewart: But how far would that doctrine go?

Does this mean that everybody who receives any kind of Government funds whether in the form of unemployment insurance or relief payments or anything else, isn't allowed to discriminate on a racial basis, in any aspect of his life?

Mr. Robert L. Carter: I don't believe that the question might come as to whether how much of the public funds are being utilized whether this, by virtue of the public funds that go in, so whether this is in fact the public of institution.

But it seems to me that in the instance that you have given to me which is apparently similar to the kind of program, I think that Virginia indicates that it was attempting to set up, I think that here, you have the State who is attempting to substitute for its obligation to accord to persons without regard to race the equality of education opportunities.

And it seems to me that under these circumstances that the Fourteenth Amendment must attach or if it doesn't attach then I think that evasions and frustrations and so forth can occur.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Robert L. Carter: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Robert L. Carter: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Robert L. Carter: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Robert L. Carter: We feel that although this is not the case, the same kind of facts is in Cooper versus Aaron.

You don't have the governor of the State who is using an army to the national guard to keep children out of school and you don't have the -- is into position by use of physical force to frustrate the rights of Negro children to equal education opportunities.

You have a more gentile, it seems to me attempt to evade the Constitution.

And what is happening here is that the County Board and the Board of Supervisors made up their minds that they would not, that they would not comply with this Court's order that they would not accord in Prince Edward County, they would not operate any schools without regard to race.

And they decided that they would not do this and they take the view that they are not in defiance of this Court's order when they closed the school term.

That as a matter of fact, the petitioners have their right because they have their rights, because they have been declared in principle.

Now it's our view that the rights of equal protection and due process which this Court enunciated in Brown versus Board of Education and in Cooper versus Aaron and in the case from the District of Columbia that these rights were expected to be implemented and enjoyed in realistic, in real life, that they were not abstractions, that they were not principles, that the persons could not have and would not enjoy, that they're not with legalisms before the Court.

Now what the Court said in Brown versus the Board of Education and to be applied here, was the fact that these children in Prince Edward County and Negroes throughout the United States were entitled without regard to discrimination, without regard to race or color to have their right to equal education opportunities.

And we suggest to the Court that if this case were of one of first impression that there were no law, no precedents in our favor, the Cooper versus Aaron and other cases that have been decided by this Court in -- that you can't frustrate the rights of the -- and you can't frustrate the orders of this Court.

We would take the view that the importance of this case is such both in terms of the federal system and constitutional rights of the petitioners and the implementation of the Constitution that we would be in a position, I think, to urge the Court to take the step if there were no precedent in order to settle this case and to settle it favorably.

Now we don't have to reach that point because, as a matter of fact, we think that this case can be decided on all force with Cooper versus Aaron.

We think that it is a settlement of the issue.

That what this Court said in that case can be used to apply to this case that looking at these facts, looking at what has been done.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Robert L. Carter

Chief Justice Earl Warren: Mr. Carter, you may continue.

Mr. Robert L. Carter: We want to make in the time left, several points.

One, that the State is deeply involved in the -- this whole operation that as a matter of fact, but for the fact that the Prince Edward County closed the schools, the Prince Edward School Foundation would not be functioning and what has really happened is by virtue of its closing the schools, it is responsible and directly responsible for the fact that children are now going to the schools.

So that I don't believe that the State can say, that in this instance, “We're innocent bystanders and innocent parties.

Secondly, we don't believe -- what we think is clear is that the schools were closed in order to defeat and frustrate, in order not to maintain unsegregated schools as the Constitution requires.

Justice Hugo L. Black: Suppose the whole State of Virginia had done that?

Suppose the whole State of Virginia or an entire state --

Mr. Robert L. Carter: I don't believe, Mr. Justice --

Justice Hugo L. Black: – had decided it wouldn't run public schools anymore?

Mr. Robert L. Carter: If the whole State of Virginia had said, that it would not run public schools anymore, I don't believe that this would be anything that they could come here and say that they would be allowed to do.

And I don't think, one, I don't think that they can do it for the reasons that they can't do it in order not to obey the commands of the Constitution and it seems to me that in this instance --

Justice Hugo L. Black: Suppose they just decided they didn't want to run public by any reason at all and so there would no more public schools in Virginia?

Mr. Robert L. Carter: Well, I would think that, as I attempted to answer the question of Mr. Justice Goldberg, it seems to me that the question of the maintenance of education for one of the necessities of citizenship is it has been not really held by this Court to be a duty on the part of states, but this Court has said, that it is one of the most vital functions --

Justice Hugo L. Black: Suppose it is –-

Mr. Robert L. Carter: I beg your pardon, sir?

Justice Hugo L. Black: Suppose it is that the Constitution give us the right to determine that the States will do something because we think it's necessary to be done for the people, unless the Constitution requires it.

Mr. Robert L. Carter: Well, I would think that insofar as the -- that the question of education itself is concerned, since it seems to me that it is one of the matters and functions that are essential for the very process of citizenship -- for citizenship, for us to carry out our duties as a citizen.

I would think that the State, an argument can be made, the State cannot withdraw from the public school system, but of course, what I --

Justice Hugo L. Black: Suppose it can, what I'm really -- your time is getting short, I thought your point for was probably your -- the point that you were arguing and presented to us more vigorously, the State might have a perfect right.

Assume that the State had the perfect right to abandon all of these public school systems.

If you can show as you seem to assume there that the State is doing this in this county as a part of a plan which you had in mind denying people the right to get an education on the ground of color.

It has that consequence and that's what it was done before and it has that consequence and you can get a finding of some kind of that effect, either of finding of facts of inclusion of law, you would have a much narrow point than you are presenting on (Voice Overlap), would you not?

Mr. Robert L. Carter: Well yes sir, but I thought that in my argument I had made the point that the schools were in fact close for this reason and I was addressing -- attempting to address myself to the question where you -- that I felt the Court indicated to, is to whether or not the schools could be closed for any reason.

I think that --

Justice Hugo L. Black: Do you any finding of the District Judge on that fact?

Mr. Robert L. Carter: The District Judge found that the schools were closed and there is no question, but that the schools were closed, in order that the Board of Supervisors would not be required to operate schools in which Negro and white children were educated together.

Justice Hugo L. Black: But did the Court find that that was a part of a state plan whereby although the State would not abandon them all at one time, that that was a state plan under which when necessary to do so, it ceased having education in one county or one area of one county.

Mr. Robert L. Carter: No, sir.

I don't believe that I can say to the Court that that was the finding.

The Court --

Justice Hugo L. Black: Is that your argument?

Mr. Robert L. Carter: Insofar as the argument that we're presenting, we think that the State has function and operated to this extent that the State has, after the 1955 and in terms of its so-called massive resistance which we program, which we presented in our brief, did amend the tuition grant law, did or permit and allow this operation of the schools on the local basis.

And in fact, it does seem to us, in terms of this, that what has happened is that the State was making it possible in terms of its amendments to its laws for local counties to decide for themselves whether they wanted to abide by the Constitution of the United States.

The State itself, since the school closing law was declared unconstitutional in James v. Bowman, has enacted laws apparently to leave this matter to the local parties.

Now we feel that what really is happening in this case is that the Prince Edward County, Prince Edward County has said “We'll close the schools rather than have schools operating and functioning.”

We say to the Court that this cannot be done, that this is the State is operating, the State is functioning and that the State is required to obey and abide by the Constitution, that the schools cannot be closed.

Justice Hugo L. Black: You're arguing now that the -- you're getting that in your first point as I gather, that the Constitution can bill every state in the union to run public schools?

Mr. Robert L. Carter: No, sir.

The Constitution may not -- if the Constitution doesn't compel every state to run public schools, it does compel them to not to abandon public schools in order to defeat the constitutional rights of persons which have been declared by this Court.

Now --

Justice Hugo L. Black: That was on the basis of denial of equal protection of the law.

Mr. Robert L. Carter: On the basis of the denial of equal protection, equal protection of the laws.

It is our view that insofar as the State is concerned, that the State of Virginia, that the people in Prince Edward County, from whatever source the closing of the schools came, that the people in Prince Edward County, the children in Prince Edward County are being denied equal protection of the laws because Virginia is deeply involved in running and operating the school system throughout the study.

Justice Hugo L. Black: I understand that, I understand that.

You're saying that Virginia is involved in carrying out a plan of state action by which certain people are denied the right to go to schools on account of their color.

Mr. Robert L. Carter: Yes sir.

Justice Hugo L. Black: But that is quite separate and distinct it seems to me from an argument that Virginia cannot, if it wishes, abandon its public school system.

And maybe you might have a different argument as to whether it could abandon the part of the State and not in the other, but the argument -- I can understand your argument if you base it on the facts, that this is a state course of conduct, state course of conduct which in denial of the right in the Fourteenth Amendment, ends up in denying people the right to go to school on account of their color or permitting other people to go to school because of their color.

Justice Arthur J. Goldberg: Mr. Carter [Inaudible]

Mr. Robert L. Carter: I beg your pardon, sir.

Justice Arthur J. Goldberg: [Inaudible].

There must be some basic right, the defendant [Inaudible]

Mr. Robert L. Carter: Yes, sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Robert L. Carter: Yes sir.

Mr. Justice Goldberg, my problem is of course in terms of time and I have no need really to make the broad argument and --

Justice Arthur J. Goldberg: I understand.

Mr. Robert L. Carter: – and I think in order to present this case, and I am -- time is pressing close off upon the terms -- by attempting to make the other arguments I wanted to make.

It does seem to me that I do believe that insofar as the narrow question before this Court in which I believe that this case can be determined on one, is on the basis of the reasons why these schools were closed, the reasons why they're not operating, and the basis upon which the Prince Edward County and the State took its position.

Well it seems to me, that on that -- that there's no question, but that there has been a denial and frustration right.

I think that the tuition grant program which has been -- and the state scholarship program that they can be enjoined and should be enjoined as long as they are utilized for the support of education and institutions that discriminate on the basis of the color.

I think insofar as the release is concerned, that there should no question and no problem in regard to relief because the Court has before it the parties, who are the principal parties to this action.

It seems to me that the relief we're asking for is that the County Board be required to levy taxes, sufficient and appropriate funds sufficient to reopen the public schools in Prince Edward County on a nonsegregated basis.

And that the County Board of Education be required to make plan for the admission of people on a nonsegregated basis effective, we hope by September, 1954 and that the State be required -- state officials be required to do all that they must do under -- in order that the schools will be opening and functioning by September, 1954 --

Justice Byron R. White: Mr. Carter --

Mr. Robert L. Carter: -- 1964.

Justice Byron R. White: Mr. Carter, I gather that you don't argue them that -- or you don't feel that it's necessary to argue here that if Virginia granted the local option of the counties to run the schools or not as they saw it fit, some county just decided for some reason that they were going to run schools, as for example, there weren't enough students in the county, I take it you would not object to that particular law or that particular exercise of local option.

But you do say that if the option is permitted in order to avoid the integrated education or desegregated education that that kind of a local option violates the Fourteenth Amendment.

Mr. Robert L. Carter: Well I say the other as well.

Justice Byron R. White: You do.

Mr. Robert L. Carter: I would say the other as well, yes sir, because I think that you can't -- that there is no valid or rational basis, it seems to me, upon which in view of the importance of education, upon which this Court could sustain a local option which would permit some parts of the State to deny or not have the children education in other parts to have them.

Justice Byron R. White: Do you feel that argument is essentially your case?

Mr. Robert L. Carter: No, sir.

I don't feel it's essential to my case but I do feel that in terms of the reach and the reach of this which I think that this issue is presenting, it seems to me that we can bring before this Court, this case showing the schools were closed.

But the importance of this case, in terms of that principle in regard to the full implementation of Brown versus the Board of Education, it makes it vital it seems to me that the local option on the broad basis the that suggested that the local option also be held to be unconstitutional.

I think that, to the reach, in other words, there may well be a case where it's not as clear that the schools were closed to avoid segregation.

Justice Byron R. White: But now -- essentially your narrower ground is the fact of why they closed the school and you feel that's established in the record clearly enough.

Is there argument about that at all by the --

Mr. Robert L. Carter: No sir.

There --

Justice Byron R. White: We'll find that operation later.

Mr. Robert L. Carter: No sir.

Chief Justice Earl Warren: Mr. Solicitor General.

Argument of Cox

Mr. Cox: Mr. Chief Justice, may it please the Court.

The United States joins the petitioners in urging that the judgment below in this case be reversed and that the case be sent back with instructions to grant relief necessary to bring about a reopening of the public schools in Prince Edward County.

I shall argue the case in somewhat technical terms introduced by the respondents, but not because that is the whole case, but because it seems to me important to show that even on their own ground, their arguments when closely examined, are lacking in the merits.

The Court will not forget, I'm sure, even though I don't mention it again, that this case is ultimately concerned with probably the greatest of injustices, the denial of -- and equal education to children because of racial considerations.

Now as we see it, the case has two, somewhat different parts.

The first concerns the situation that obtained while the tax credits, the scholarships, and the tuition grants were enforced.

And it seems quite clear that with the public schools in the county closed, now I don't go beyond it, that with the public schools in the county closed and public schools being operated by the State in every other county, that the main -- that the contribution of state funds to this white foundation school is clearly within Cooper and Aaron, and that there's nothing more to that issue.

The more difficult part of the case, although I think not difficult when one analyzes it clearly, is when one creates it on the supposition that there is no financial aid being given to the children or through them to the foundation school.

As we see it, this branch of the case rests upon a very simple theory that if you keep it clearly in mind dissolves all the complexities that have been so much argued about.

The schools of Prince Edward County have been closed solely because of the policy of denying the children who live in that county, any public education rather than giving them an equal public education as required by this Court's mandate.

And we submit that for officials exercising state power to deny children who live in Prince Edward County any public education, upon such a grant, while granting it to all other children in the state, constitutes an invidious discrimination, in violation of the Equal Protection Clause of the Fourteenth Amendment between children who live in Prince Edward County and children who live outside.

Justice Potter Stewart: Suppose, on this branch of the argument, it doesn't -- it's not important that there be racial discrimination and it's not really vital that this be related to schools.

I suppose this argument could be made if Virginia, through the cooperation of its state and local officials, provided highways in all of the counties, but one that did not provide it (Voice Overlap)

Mr. Cox: I plan to devote my whole argument to this point and I think the difference is that I say between the case you suggest and this case will come out in course of it.

I will develop, Mr. Justice Stewart, at some length two points.

First, that here the only ground suggested for the differentiation is the purpose to perpetuate inequality in educational opportunities.

And second, that assuming one could go behind that, or that that was irrelevant, that in this case there is suggested and cannot be presumed to be any differences in local conditions or local needs such as would justify some of the exercises of local options that have been suggested in the opinions below and here.

I'm going to develop that as we go along, but those seemed to me to be the two essential points in discussing local option.

In the -- I'm going to devote my whole argument except that I would hope until the time at the end to this basic thesis.

In developing it, I start with the indisputable fact that the net effect of respondent's activities is an unconstitutional kind of discrimination against the children of Prince Edward County, in favor of the children who live everywhere else.

Prince Edward County children have no less need for a basic education.

There's no suggestion that they are less educatable.

The sole ground for the differentiation is the desire to avoid having them -- having white children in the county, go to the same school as Negroes.

Now it manifest --

Justice Potter Stewart: You're not talking now though basically about racial discrimination, but rather discrimination against all the school children of Prince Edward County?

Mr. Cox: Right.

Right.

Right.

Justice Potter Stewart: Yes, that's what I'm asking.

Mr. Cox: Oh yes.

Yes.

I'm sorry.

What I meant to say was that there are local options and local options and the fact that this local option, if it may be called that, is impermissible, does not require one to say that all local options are impermissible and I was afraid that I'd let, Your Honor, to think I was taking the opposite.

It depends on the local option, that is what I'm getting and trying to say.

To manifest the purpose of the basis of classification here is not acceptable under the Fourteenth Amendment.

Now that point was squarely decided in James and Almond, a three-judge court decision that was cited by approval in this Court in Cooper and Aaron.

And indeed, the respondents could see that point, that if Virginia had introduced this differentiation, and by Virginia, I now mean the statewide officials, that it would be unconstitutional.

The whole debate here therefore, is whether the respondents, by the procedure that they have followed, can escape responsibility for what would otherwise have been a patently unconstitutional result.

Now manifestly, anybody pressing such a proposition is that has a very heavy burden to carry.

First, I suggest that it's plain that the discrimination between these two groups of children, regardless of race, is not saved by the fact that the victims live in one county and those, with whom they are being compared, live in other counties.

While the Fourteenth Amendment does not require territorial uniformity, nevertheless, and the Fourteenth Amendment leaves a lot of room for territorial variations in the law, still, the bear fact that a discrimination conforms to county line, is not enough to make it rational and within the Equal Protection Clause.

That's the point of of course in Baker and Carr and Grand Sanders and that's the point that's been assumed, repeatedly, in decisions of this Court, examining laws that vary differently on people in different localities.

Again, nobody really questions the fact, as the court below said, “No one questions the principle that if Virginia is operating a statewide centralized system of schools, she may not close their schools in Prince Edward County in the face of a desegregation order, while she continues to operate the schools in the other counties.”

Here respondent's argument is that this discrimination which would be admittedly unconstitutional if the legislature did it is saved in this instance because it's accomplished by what they call local option.

Now it might be enough to say that that contention is inconsistent with this Court's all the precedents.

On at least two, I think it's fair to say three occasions, the Court has held that in making territorial variations in the treatment of citizens, the legislature has all the -- has the power to do everything that could be done by local option.

As a matter of logic it follows, that what the legislature can't do, can't be done by local option and so, under those precedents, the contention that respondents make is contrary to the views of this Court.

Now it's not necessary for us to go so far as to urge that expression of local preference will never save a classification that would be unconstitutional if made by the legislator.

It's enough for us to show, I submit, first that the mere fact of local option does not automatically take a differentiation out from under the Equal Protection Clause.

And second, that the expression of local preference will not save this classification, under the circumstances of this case.

In other words, that the court below erred in supposing that because some local options were constitutional, therefore, all local options must be constitutional, which does not follow.

Plainly the local option does not automatically render the Equal Protection Clause inapplicable.

There's no magic in the words local option.

What the introduction of local option does is two things.

First, it fragments the power decision making processes of the State among a variety officials, some local, and some statewide and second, it provides for a referendum or other expression of local opinion.

Let's see if either of those renders the Equal Protection Clause inapplicable.

The fragmentation of state power, among statewide officials and officials with only countywide jurisdiction is patently irrelevant.

Respondent's, if I understand them say here, that the officials in the county aren't discriminating, the supervisors aren't discriminating because they voted that no child shall have a public education and their authority is only countywide.

Now the School Board says that, it also says “We're helpless.

We're dependent upon the supervisors.”

And the state officials say, “We aren't discriminating because we're offering the same thing to every county.”

And that's the ground chiefly on which the court below rested, but that, I submit, is contrary to the decisions of this Court, and indeed, I think I can say, patently fallacious.

The fallacy is that the act of several officials, including county officials, cannot be viewed one at a time in isolation.

Every respondent here, and this goes for the county supervisors, is exercising or purporting to exercise, the power and authority of Virginia.

Every one of them is acting as and for the State so far as the purposes of the Fourteenth Amendment are concerned.

That's been true all the way from Virginia and Reeves to Cooper against Aaron, that the Fourteenth Amendment is concerned with the net effect of the exercise of state power and not with who doesn't or with what particular officials doing.

That principle is illustrated, perhaps, best by the cases based which involve a converse situation by the cases involving challenges under the Fourteenth Amendment, complaining that the power has been exercised by the wrong instrumentality.

And in an early case of Missouri against Dockery, Mr. Justice Holmes said for the Court, “Rights under that amendment turn on the power of the State, no matter by what organ it acts, it is a question of the power of the State, as a whole,” and so in the converse situation it's the question of the power of the State as a whole and what its impact is in creating an unjust discrimination, not who does it?

The principle is quite clearly illustrated by a case which unfortunately is not cited in our briefs.

Iowa-Des Moines Bank against Bennett in two -- Iowa-Des Moines Bank against Bennett in 284 U.S. at 239.

In that case, a national bank was contending that it had been subjected to discriminatory taxation, not in this case in violation of the Fourteenth Amendment, but in violation of a federal statute that permitted the capital of national banks to be taxed equally with the capital of other monied institution.

And the claim was, on the part of the bank, that they were subjected to a higher rate of taxation, or that their capital had been over valued.

The answer that the State made was that, “Our statutes don't require this.”

The board of the assessors made an equal assessment upon the federal bank and the other monied institutions, but that any higher rate being paid by the federal bank is the result of a mistake made by the county treasurer, I think it was, or perhaps it was the tax collector.

And Justice Brandeis speaking for a unanimous court, if my memory is right, brushed that aside and said its a question of the power of the State as a whole, and that for the purposes of determining whether there was discrimination.

The powers of the several state officials must be treated as if merged into a single officer and that's exactly the contention we made here.

And under that principle, if one took the concession literally, since they must be treated as if they were a single officer and since everybody has agreed through this litigation that the discrimination among children based on where they live, would violate the Fourteenth Amendment if accomplished by a single statewide officer.

It follows that the judgment below was wrong.

Justice Potter Stewart: You don't feel it's necessary at all to prove any knowing concert of action among these various officials?

Mr. Cox: No.

I would think that it was -- I think two things although it's been hard for me to find an exact case.

I would suppose that the normal rules of vicarious liability were enough to charge the state officials, the Board of Supervisors, and this essentially are state officials, with knowledge of what was going on in the rest of the State.

But, we're in equity here, even if they didn't know about it at the time they acted and they know about it today and surely they can't blind their eyes to it under the present circumstances.

I turn --

Chief Justice Earl Warren: Mr. General, there is some money of the state being expended on the public schools in that county, is there not?

Mr. Cox: The so called constitutional minimum funds.

Chief Justice Earl Warren: That's right.

Mr. Cox: Yes.

Chief Justice Earl Warren: And that is dispersed by the School Board and by the County Commissioners, is it not, for the credibility --

Mr. Cox: For the maintenance of the building.

Chief Justice Earl Warren: -- maintenance of the building?

Mr. Cox: Yes, Mr. Chief Justice.

Chief Justice Earl Warren: And their school buildings?

Mr. Cox: Their school buildings.

Chief Justice Earl Warren: And it's same thing that's done in every other part of the state?

Mr. Cox: Well, except that they aren't offering education to children in a way they are in the other part of the state.

Chief Justice Earl Warren: That's what I mean, but they are -- are still expending some of the state's money.

Mr. Cox: I take it your suggestion is that the state, even if one discussed this case in terms of local option, the state retains a close connection with them.

Chief Justice Earl Warren: Exactly.

Mr. Cox: And that's true, and I rely on that fact.

There are many ways, in which, the state retains a close connection, the approval of teachers, the prescription of what the school book should be, the local superintendent of schools must come for an approved list and so on.

But I've been, as I said in the beginning, I've been anxious to take this case just in the terms in which they put it and to show that even then, there is a violation of the Fourteenth Amendment.

So, while of course, we rely on that if necessary, I think even if those elements weren't there, the result would have to be the same.

Now, I mentioned that there were two elements introduced by local option, one was this fragmentation of authority.

The other is -- that per se not here a local referendum but an expression of local opinion through elected officials which I will assume is the same for present purposes.

But I submit that it's clear that that cap, automatically take the case out from under the Fourteenth Amendment and here, I think, was the fundamental error in the opinion below.

The Court said, since every locality may participate, if it wishes to do so and state funds are available to each upon the same conditions.

The state is even handed.

Well, I've already mentioned that the locality is the state, as one error in that, but more than that the Fourteenth Amendment isn't concerned with the equality of treatment among localities, it's concerned with the equality treatment among people.

These are personal rights and they are personal rights, which it has been held many times, cannot be waived by majority vote, not even by the will of the majority of the class affected.

So that the referendum doesn't destroy the individuals right, whether a white or colored child in Prince Edward County, to equality before the state with other children in Virginia.

So that the local option, I submit, does not automatically take this case out from under the Equal Protection Clause.

Then the question becomes is the denial of public schooling to Prince Edward children while giving it to other children an invidious or otherwise arbitrary classification and I point out to begin with that so far as anything in the record shows, conditions in Prince Edward County and children in Prince Edward County are just like other children in respect to the fundamental need for an education.

And so, we say, that even if it would be assumed that there are times when the preference of the people in a particular locality, will save a classification based on residence, a lack of territorial uniformity in the law, still that the local preference will not save the classification here for two independently sufficient reasons.

In the first place, this classification differentiating between people, between children, who are apparently similarly situated in every relevant respect is itself too invidious, to furnish a justification for the differentiation.

The schools were closed and this is beyond dispute because of the recitals of the school -- of the Board of Supervisors, and I don't think they deny it or have any desire to slide away from it, the schools were closed, solely to avoid giving Negro children an equal public education as this Court has defined it with white children.

Only in the abolition of segregated education can Negro children receive true equality.

Surely, the desire to perpetuate one invidious discrimination, one inequality based on race, will not justify introducing another inequality, although that one is not based upon race, it is still an inequality and that, I submit, is the end of the case here we have so far as the substance goes.

Here, we have a classification, different treatment by the state of people who in all respect are apparently alike, and the reason for it is so unworthy as the motive in this case and it just won't serve to justify and to rationalize the classification.

The state is not treating people differently in pursuit of a rational policy.

Now, I would emphasize that this, that what I have said is not inconsistent in any respect with the cases cited by the respondents which they argue, support the proposition that motive will not vitiate an otherwise constitutional act.

Nut the cases that they cite, typically, deal with use of the commerce power and the claim was made that what Congress was interested in was not regulating commerce but accomplishing some moral objective as in lottery ticket or that in the Child Labor Tax case, that the purpose was to eliminate child labor, not to raise money.

Those cases are different and we would fully concede that the use of a power to achieve was not -- is not vitiated by achieving some collateral objective, but here the question is whether you -- by a classification, which is at first blunt, arbitrary and unreasonable, there is something -- some policy the state is trying to achieve that justifies the classification that makes it rational and here, the state has excluded all other hypothesis by saying what their purpose is and as I said a moment ago, the purpose to perpetuate one inequality of a character that the constitution condemns certainly won't justify introducing another inequality.

Nor is this in anyway inconsistent with the possibility, and I state only with the possibility but I assume it for this case, with the possibility that a state might be able to abandon all public education.

Then there would be no question, under the Equal Protection Clause, if it genuinely abandoned, but here we are concerned with the Equal Protection Clause, and the schools are operating in other parts of the state.

Now, I go a step further.

I assume now, for the sake of argument, that the Supervisors are not bound by their own resolutions or that their motive is irrelevant.

Still, we submit that this discrimination cannot be saved by any expression of opinion under local option because education is a subject, in relation to which, because education is subject in relation to which the discrimination occurs is too important, and its importance too far transcends county lines to deny some children the opportunity for some education while granting it to others unless some very strong justification appeared.

Here -- that my time is running terribly rapidly, I -- here, let me simply say briefly, this is not a situation in which one can presume that there are any differences in territorial or local conditions that would justify this discrimination in the cases of juvenile detention homes, and the like, they're obviously are.

Here, it is not suggested that the schools compete with other needs of the county, for the tax dollars available, nor can it be said that education is such a local matter, that the people -- just because they want it that way, can give it to children -- they give it to their children or not.

That maybe true of speed loss or whether you'll have race tracks in the town or whiskey as the like, as Justice Holmes once said, those matters are wholly within the power of the state.

Education is too fundamental, too important, and I emphasize that it transcends county lines.

If children lose three years of education, their lives will be affected by that, where ever they go or what ever they do.

And if this experiment in ignorance is continued in Prince Edward County, it will affect the whole state and not just conditions in that county.

Now, taking it as established, I hurry on, that there is a violation of the Equal Protection Clause, because of this discrimination between children in Prince Edward County and all other children in Virginia then it seems to us to follow that the decree must bar the continuance of that unconstitutional state of action.

The decree should require the defendants so long as Virginia furnishes public education elsewhere to take the steps necessary to furnish it to children in Prince Edward County.

The thrust of such a decree is plainly negative.

It would enjoin an unconstitutional course of conduct and on direct parties persons purporting to exercise state authority in order to carry on an unconstitutional course of conduct may be enjoined.

Under some circumstances, it might be possible simply to stop there and it's to be presumed that respondents, especially those who have taken an oath of office, will carry out their duties when they're laid down clearly, certainly by this Court.

Here, so much time has passed that we join in urging that more specific steps be spelled out in the Court's Amendment.

We think the supervisors should be ordered to levy the taxes necessary to provide some basic education in Prince Edward County that the Board of Education should be required to open the schools and to submit a plan for the desegregation of the schools and that the state officials should be enjoined from continuing the discrimination.

Justice William J. Brennan: [Inaudible]

Mr. Cox: I think not, Your Honor for two reasons.

So far as the county officials are concerned, it seems to me that the Eleventh Amendment is rendered inapplicable by the fact that they are county officials and the counties enjoined -- enjoy none of the immunity that the state would enjoy.

Now, my friends from Virginia say that that applies only where there is a debt involved.

The two answers to that, one that most clearly is not the ground on which this Court's decision rests.

Second, there are a number of cases including Hopkins against Clemson College, where the cause of action against county was not based on the debt, that was the case involving trespass.

I -- in -- might I take just a few minutes in view of the importance of the case?

Chief Justice Earl Warren: You may take five minutes more and --

Mr. Cox: Thank you, Mr. Chief Justice.

Chief Justice Earl Warren: -- the respondents may have the same amount of time.

Mr. Cox: A second illustration in this Court is Board of Commissioners against United States, 100 F.2d 929, which as modified in the minor respect was affirmed in 308 U.S. 343, which was a suit by an Indian to recover back taxes.

The United States was not the real plaintiff and nothing turned on the fact that the suit was brought in the name of the United States.

Justice Potter Stewart: I'd better go back and read the Eleventh Amendment, I guess, but this people are citizens of Virginia, aren't they?

The Eleventh Amendment applies for suits against the states by citizens of another state, isn't it?

Mr. Cox: But by interpretation, it has been taken to apply by citizens of the same state.

Justice Potter Stewart: Well, that's sovereign immunity, isn't it?

Mr. Cox: In that event, I suggest the doctrine doesn't apply for the reason I have stated.

The two have been equated quite frequently, Mr. Justice.

I think Hummel and Louisiana are some such names in this first case.

So we say that in terms of the counties acts -- count -- the county supervisor's action, this defense simply doesn't apply, but I think there's another and more fundamental answer to any argument based on the Eleventh Amendment or sovereign immunity, and that is, that you can't pick the decree apart and look at it bit by bit.

The remedies that are proposed here are in their thrust, negative.

Their aim as a whole at compelling the cessation of this course of conduct.

That truly suggests that the County Supervisors should be required to levy the tax.

Strictly speaking, I take it that if Virginia were disposed to give up her entire public school system then the theory we've advanced here would make it proper to release the Board of Supervisors from that obligation, but surely the Court in framing the details of its decree, vis-a-via the Supervisors, is entitled to presume that Virginia is going to continue doing what it's done all along, do its part to provide public schools for the children of Virginia.

And if that is a false assumption and if Virginia comes in and says, “We're planning to close our entire school system despite the provisions of our Constitution, requiring the legislature to operate and maintain a system of schools throughout the state,” then will be time enough to think about modifying the decree.

For the present as I say, the relief we suggest, seems to us, to be essentially negative, essentially directed at terminating an unconstitutional course of conduct.

Justice Potter Stewart: Now, would you have us enter such a decree or --

Mr. Cox: Send it back to lower court.

Justice Potter Stewart: Send it back to the three-judge district court?

Mr. Cox: No, I would (Voice Overlap) I think that they -- does not require a three-judge court and I was just coming to that.

I do want to say, if I may say one sentence first, of course mandamus to compel the levying of taxes is sustained by a number of decisions cited in our brief.

Now, the reason we think that a three-judge court is not required, the reasons are two-fold.

In the first place, the relief sought is not to restrain in the language of the federal statute, the enforcement or execution of a state statute.

The attack is upon the executive or administrative action and the action which the respondents have chosen to embark upon, not upon anything required by the state law.

And the decision of this Court in Ex parte Bransford, 310 U.S. 354, 310 U.S 354, especially at 359, deals with that very point if I may read just a sentence.

There the challenge was that certain state taxation was discriminatory under the Fourteenth Amendment, but the state statute didn't require the discrimination.

It resulted from the act of minor state officials and the Court said, “Variations by assessors in valuations of like property, taxable under the same statute, sufficiently marked to be discriminatory under the Constitution for valuations so large as to be confiscatory cannot properly be said to be the basis for an attack on the ground of the unconstitutionality of the statute.

Such assessments, if made and if invalid, are so because of a wrong done by officers under the statute rather than because of the requirement of the statute itself” and I submit that that is an exact description.

Justice John M. Harlan: What is that case please?

Mr. Cox: Ex parte Bransford, 310 U.S. 354.

I'm sorry it's not in our brief because we didn't think --

Justice John M. Harlan: You have a brief this point.

Mr. Cox: If the Court wishes in memorandum, we'd be happy to supply it.

Chief Justice Earl Warren: Would you do that, please.

Mr. Cox: We certainly, will.

Chief Justice Earl Warren: The counsel may reply (Voice Overlap)

Mr. Cox: Then I won't mention the other case and our second argument upon this point would be -- would be this, that a case primarily against local officials on a matter that is of immediate local concern, which the decree will not have a statewide impact of any significance It's not a case that requires a three-judge court.

I'll supply the citations to support that statement.

There are a number of such cases.

There is one last point.

It is argued here that the state officials have done nothing wrong and that the county school authorities have done nothing wrong, that each of their acts depends upon an act by somebody else, and that therefore, no relief can be granted against them.

That point is squarely covered by an opinion by Mr. Justice Brandeis in the case of Labette County Commissioners versus United States which is cited in our brief, Labette County Commissioners against United States, 112 U.S. 217, 224, 225.

I won't read it in view of the time that has been taken.

For those reasons, we submit that the judgment should be reversed and the case go back with the instructions I've suggested.

Chief Justice Earl Warren: Mr. Gravatt.

Argument of J. Segar Gravatt

Mr. J. Segar Gravatt: Mr. Chief Justice, if the Court please.

I would like at the outset of the argument of this case, sir, to see if we can agree on a few very simple and I think well-established principles.

The first is that this is a suit to redress deprivation of rights secured by the Constitution of the United States upon that fact depends the jurisdiction of the District Court.

It is extremely difficult to read the brief of the petitioners and ascertain what is the right that they claim that they have been deprived of.

It is stated in oral argument that the right is a right to equal educational opportunities.

That statement is contained in the brief.

In order to find out what are the constitutional rights that they have, it is necessary first for us to determine what this Court decided in Brown against Board of Education.

As I understand the opinion, as it has been construed by all of the lower federal courts, the opinion was an enlargement of the liberty of people within the jurisdiction of the United States in that, it removed race as a consideration with respect to the access to and the use of public facilities, namely, public schools.

Now, if that be a correct interpretation, that cannot be enlarged into a decree or a judgment that Virginia is compelled to operate public schools nor that any person is required to attend the public school or that the power of the state of Virginia to control and to modify, and to alter the methods and the means by which it provides education, is in any way is impaired by that decision.

I take it further that there will be no disagreement with the proposition which has been repeatedly mentioned in the more -- most recent decisions of this Court that education is in fact an area that is reserved to the states or to the people under the Tenth Amendment, and that the states have the power and the complete power, and the whole control of education, subject of course to the requirements of the Fourteenth Amendment and any other applicable requirements of the Constitution of the United States.

Now, what Virginia has done is not to abolish education.

What Virginia has done is that the Constitution of Virginia, the arrangement about education is fixed in its constitution, has been there since 1902.

This is no new innovation, no new power that has been reposed in local bodies, as a response to the decision in Brown against Board of Education.

This is a power that all of the debates was fixed in the Constitution of Virginia, predicated upon a principle which I suppose all of us must recognize and that is that the success of any public educational enterprise depends upon the support and the sympathy of those who must furnish the funds and who must patronize it.

And it's upon that proposition that Virginia, when it embarked upon the course of fixing the public educational system, reposed in the local government body of each county and city the power to determine whether or not and how much it would appropriate for that purpose and reposed the administration and the operation of those schools in a local school board.

All that the state has done on the state level is to fix a plan, the outline of a probe by which the localities, if they chose to do it, could provide public education for their citizens and that has been the law in Virginia since the year 1902 under the present Constitution.

Now, in 1956, the Constitution of Virginia was amended, so as to permit the state and the localities to use public funds for the education of children in private non-sectarian schools located anywhere in the United States, and in public schools located outside of the community in which the child resides.

Now, the statement is made that Prince Edward has acted in this case, to mean racial motives.

That it has acted to deny any education.

I would not void the fact, which you find stated in the brief that I have filed, that this has been a tremendous problem for the people of Prince Edward County and it will be a tremendous problem for the people of all southern communities, and particularly, in Sunnyside, Virginia for an indefinite period of time.

There's no way in the world that you can take a community upon which white and colored people have lived upon the land, in many instances, have given homes and parcels of land.

There's no way in the world that you can arrange to admit those people to public schools except to commit them on -- admit them on the basis of race.

And that means that when you bring them into the public school system, in that arrangement, in that county that you have got what the lower court says, 1,800 colored children and you've got approximate of 1,500 white children.

And while it's good --

Justice Potter Stewart: I don't quite understand the point you're making.

Mr. J. Segar Gravatt: I make the point, sir, that this is a problem that finds an origin in facts among the people who live in the county.

That's the first point, that it's not possible to have what you have in the urban communities where colored people and white people live in separate districts and they have de facto segregation, and where they have it in great many other places.

What I'm saying is that this problem and the impact of this problem in a rural community such as Prince Edward County, is not comparable with anything that goes on in any urban community.

Justice Hugo L. Black: Are you saying in substance that the purpose and object of this plan and its [Inaudible] was to keep from having any schools where whites and blacks go together?

Mr. J. Segar Gravatt: No, sir.

I am saying that the purpose of this plan was -- the purpose of what has been done here was to exercise an option and to afford all of the people of Prince Edward County, an enlargement of their liberty of choice as to where they would go to school and where they would procure an education.

Justice Hugo L. Black: The main object was, I gather, I'm not sure, the main object was I gather to keep [Inaudible] so that the people -- the individuals didn't choose to go in the school together, they didn't have to go under Virginia's plan.

Mr. J. Segar Gravatt: That is correct, sir, that is correct, that is correct.

There is no other --

Justice Hugo L. Black: That is a part of the --

Mr. J. Segar Gravatt: There is no other statement to be made sir and that is absolutely correct.

Justice Hugo L. Black: Is it a part of a statewide plan?

Mr. J. Segar Gravatt: No, sir.

No, sir.

There are --

Justice Hugo L. Black: Isn't the state in their educational system, a statewide plan that some can have local option or not --

Mr. J. Segar Gravatt: Absolutely sir.

Justice Hugo L. Black: -- and this is all a part of the general plan which came in effect after Brown versus Maryland?

Mr. J. Segar Gravatt: The tuition grant part of it came into effect after Brown against Board of -- School Board.

Justice Hugo L. Black: We have to consider that tuition grant on that basis?

Mr. J. Segar Gravatt: The tuition grant part came in to effect after that decision in 1956, but it is -- the purpose of it is not a racial purpose.

It's a purpose to give people what I take it, the Constitution of the United States gives people, the privilege of selecting the school in which they put their children.

Justice Potter Stewart: It seems to me that your plan has completely deprived people of the privilege of going to an integrated public school in Prince Edward County which is what everybody else in the United States is required to do under the Constitution and certainly has the option of doing it.

Mr. J. Segar Gravatt: Well, sir, I come back.

I say that there is nothing in any decision of this Court that requires any county or city in Virginia to operate a public school.

That when we call the public school, that we have deprived no one of a right guaranteed under the Constitution of the United States.

That what we do when we close the school under this arraignment is that we alter the method by which public education is provided.

Instead of having children in a school building that's owned, maintained and controlled by public authority, which of course, under decisions of this Court has to be integrated, that is everybody who wants to go there has got a right to go there.

To have in the place of that by the exercise of a legal power that's reposed in the Board of Supervisors, to have in the place of it available for all citizens in scholarship funds which can be used by them in such schools as they choose to use them in.

Chief Justice Earl Warren: Was there any other school -- any school in that county where public – children would go?

Mr. J. Segar Gravatt: No, sir and there were none that white children could go to and we've tried, the local people in the county, I don't mean by that but the Board of Supervisors did anything about it but they were repeated efforts made by local people to try to provide educational facilities.

There was an organized resistance to it and affirmed in complete refusal to accept the means that were offered.

This record shows that in 1960, the Virginia Teachers Association, I'll call it Organization of Virginia Teachers has put in the paper, I noticed that they were going to put on an educational program in Prince Edward County during the summer months.

We offered -- the School Board offered to give them the school buildings of the county, to give them the facilities and to give them janitorial and upkeep of the buildings and they refused to accept it.

At the present time, through the good offices of my friend, Mr. William Vanden Heuvel of the Justice Department, and through the mutual effort of myself and Mr. Danny, who is dead and gone, and the Governor of Virginia and other people, we were able and [Inaudible] Mr. Tucker, we were able to induce the colored children to at least go to school and we rent it to them at a nominal figure the finest school buildings in the county to be used for that purpose.

And I say to you, that those same school buildings and that -- I don't say we could put on the same educational program that's presently being on, but we could offer to -- in that building, to those children, all of the education and better than being offer -- offered in the Prince Edward Academy or in the Prince Edward Foundation Schools or in any county that's anywhere adjacent to Prince Edward County and upon this issue --

Chief Justice Earl Warren: Wouldn't you then be running a public school if they have done that?

Mr. J. Segar Gravatt: Well, sir.

That depends upon the definition of a public school and under the definitions that have come down from Your Honor, it would undoubtedly be a public school.

Justice Byron R. White: Well, Mr. Gravatt.

Mr. J. Segar Gravatt: Yes sir.

Justice Byron R. White: It seems to me that the public schools of Prince Edward were -- really weren't close when they -- I mean as such.

The action was not to terminate public education, but the action was to terminate the giving of funds to schools that were operated to educate both Negroes and whites together.

That's the action that was taken, isn't it?

Mr. J. Segar Gravatt: The action that was taken sir was not to procreate any money to the School Board for the operation of public schools.

Justice Byron R. White: Well, I've -- as I read it, it's the 1956 resolution, isn't it?

Mr. J. Segar Gravatt: No, sir.

No, sir.

These schools were not -- this action was not taken until 1959, and that resolution has got nothing in the world to do with the Board of Supervisors within office at that time.

Justice Byron R. White: Well this -- the 1956 resolution has nothing whatsoever to do with the case?

Mr. J. Segar Gravatt: Not that I know of, sir.

Justice Byron R. White: So, the -- well, it would have been a violation of the -- whatever action the Board of Supervisors took who have entered into [Inaudible] that you're just been telling the Chief Justice about?

You say it would have been a public school but it would have been an integrated school.

Mr. J. Segar Gravatt: It is an integrated pubic school.

This -- it is an integrated school that's been operated in the school buildings, owned by the School Board and leased to a private corporation known as the Prince Edward Preschool.

Justice Byron R. White: Now, is that a --

Mr. J. Segar Gravatt: That is an integrated student body.

That is an integrated faculty.

That is an integrated school in every sense of the world.

Justice Byron R. White: So that the -- so that the Board of Supervisors hasn't taken action to bar this kind of public education?

Mr. J. Segar Gravatt: No, sir.

We not only -- the Board of Supervisors approved everything that I did to try to cooperate in getting this school open and in time get this people into the school and the state money and the county money under the county ordinance would be available anytime that these people would apply for it, to pay the expenses of their attendance in that school if they chose to make the application.

Justice Byron R. White: Well what -- what action did the -- what action did the Board of Supervisors take then with regards to schools in 1959?

Mr. J. Segar Gravatt: In 1959, they simply declared, they simply decided that School Board under the law offers the Board of Supervisors a school budget with a request for an appropriation.

The Board of Supervisors refused to make any appropriation under that school budget in 1959 and that left no money in the hands of the School Board with which to operate the schools.

All of the state money is appropriate on a matching fund basis in any county that chooses to operate schools, gets a certain proportion of state funds.

A county that does not choose to operate schools, and choose to go on a tuition grant program an approximately commensurate amount of money is paid out through the state which may be supplemented by the county in the way of scholarships to count, to be used in schools as a parent's choice.

Chief Justice Earl Warren: Mr. Gravatt.

Mr. J. Segar Gravatt: Yes sir.

Chief Justice Earl Warren: Has resolution of the Board of Supervisors in Prince Edward County in May 1956, ever been repealed?

In accordance with the will of the people of the said county, no tax levy shall be made upon the said people for revenue derived from local taxes, shall be approved for the purpose of operation and maintenance of public schools in said county wherein white and colored pupils are taught together under any plan or arrangement whatsoever.

Has that ever been repealed?

Mr. J. Segar Gravatt: It has not been repealed in the sense that you can repeal a resolution.

That's a minute of a prior Board, but the action that the Board of Supervisors has taken is incomplete and absolute negation of the declaration contained in that resolution and to that extent, there certainly has been a repeal of the resolution because they have taken action that is inconsistent with it.

Chief Justice Earl Warren: You -- your position is then that -- that one may -- they passed the resolution which permitted the use of these public school buildings by the Negroes with the right to have anyone else they wanted in there, that you were actually abandoning this principle and were actually operating public schools --

Mr. J. Segar Gravatt: Participating in --

Chief Justice Earl Warren: No, wait a minute, you're actually operating public schools in your county on an integrated basis.

Mr. J. Segar Gravatt: We were contributing too.

Chief Justice Earl Warren: No, you were operating.

Mr. J. Segar Gravatt: We -- we do not operate those schools, sir.

They are operated by a private Board of Trustees and a private corporation.

And we made -- the School Board, not the Board of Supervisors, made a lease of school buildings to that private corporation and that private corporation and their Board of Directors as a matter of fact and the staff operate the school.

Chief Justice Earl Warren: But you spend some $50,000 a year to maintain those buildings and [Inaudible] them and to operate them in all respects, did you not?

Mr. J. Segar Gravatt: The School Board spends money on them, yes.

Chief Justice Earl Warren: The School Board --

Mr. J. Segar Gravatt: Yes, sir.

Chief Justice Earl Warren: -- and that's public money --

Mr. J. Segar Gravatt: That -- yes sir.

Chief Justice Earl Warren: Public money and --

Mr. J. Segar Gravatt: Yes sir.

Chief Justice Earl Warren: -- you permitted -- you permitted these people to go in there and operate a school for any children in the county that wanted to do it.

Mr. J. Segar Gravatt: Absolutely sir.

Chief Justice Earl Warren: And that is a public school, isn't it?

Mr. J. Segar Gravatt: I certainly think it is in the -- in the sense of the Fourteenth Amendment.

Chief Justice Earl Warren: Yes, and it -- and you were -- you say it wasn't in -- would be an integrated school.

Mr. J. Segar Gravatt: It is an integrated school.

Chief Justice Earl Warren: Then haven't you abandoned your principle of not having segregated schools?

Mr. J. Segar Gravatt: That's just the point, sir.

I say that it has been abandoned because of actual practice and the participation of the School Board and the Board in the operation of that school is a complete negation of the declaration contained in that resolution, yes Your Honor.

Chief Justice Earl Warren: Then why do you object -- why do you object to having other schools integrated in the same way if you've completely abandoned your purpose of segregation.

Mr. J. Segar Gravatt: We have no objection, sir.

We have -- not the Board of Supervisors.

We have no objection.

We have no objection.

Justice Byron R. White: -- the Board of Supervisors won't --

Mr. J. Segar Gravatt: We do not run into schools.

Justice Byron R. White: But you won't provide money?

Mr. J. Segar Gravatt: No, sir.

Justice Byron R. White: Or provide buildings?

Mr. J. Segar Gravatt: No, sir.

Chief Justice Earl Warren: Why?

Mr. J. Segar Gravatt: Well sir, we think that we are with -- absolutely within our rights.

We think that we have a complete right of choice and we think that --

Chief Justice Earl Warren: Now, who has a right of choice?

Mr. J. Segar Gravatt: The Board of Supervisors of Prince Edward County as to whether or not they levy tax upon the people of Prince Edward County and to fix a rate and to name the subject to tax on and we think that's right that it cannot be reached by the judiciary.

Now, we further think that the program that has presently in effect in that county, supplemented by whatever funds might be necessary in order to provide if additional money is needed, holds out the best opportunity for a solution of the social and difficult problems involved in education resulting from integration.

That if that program can be put into effect, everybody in that county who wants to go to an integrated school or have the right to do it, colored people who want to go to a colored school have the right to do it and the white people who want to go a white school have the right to do it.

And that, sir, is an enlargement of liberty that has been declared by this Court to be protected under the First and Fifth Amendment of the Constitution of the United States.

And if you take a different schools, your first opinion was an enlargement of the liberty of colored people, but what you're being asked to do now is to constrict the liberty of everybody.

Justice Byron R. White: Mr. Gravatt, I take it then that you do not argue that the Prince Edward County or the State of Virginia has the constitutional right and privilege to keep the schools in Prince -- the public schools in Prince Edward County closed?

Mr. J. Segar Gravatt: Oh to keep them closed?

We -- the question of whether it closed or not, the proposition is that we have the absolute right not to -- to levy tax and appropriate money on people that have elected legislative representatives that were committed not to do it.

Justice Byron R. White: You do say that Prince Edward County got the right to keep the school -- public schools closed if they want to?

Mr. J. Segar Gravatt: Yes, sir.

Justice Byron R. White: And is they have got a right to keep them closed for the -- for the reasons stated in the 1956 resolution?

Mr. J. Segar Gravatt: Well, I think -- I do not think that the reason, when you're dealing with a question of power, either under the Constitution of the United States, under the Eleventh Amendment, under the constitution of Virginia and I think this is what the decision that this Court holds that when you are talking about what a power is and who has the power to do something, the motive and the purpose that -- that power that prompts to exercise that power is totally irrelevant and this Court has said that courts would not investigate or inquire into it.

Justice Arthur J. Goldberg: [Inaudible]

Mr. J. Segar Gravatt: Yes, sir.

Yes, yes, yes.

Now, when we --

Justice Arthur J. Goldberg: [Inaudible]

Mr. J. Segar Gravatt: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. J. Segar Gravatt: School Board, yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. J. Segar Gravatt: Nobody in the world -- I don't know how much it cost but a great many of those children are going to school and churches and improvised buildings.

But for the high school, they have been able to construct a campus type school at what expense, I do not know but I would say certainly more than a half million dollars.

And it's been done by the contribution of labor, of people, and by the contributions of funds and by the help of private individuals in that respect and never would.

It has not been any public effort of any public contribution to it, whatever, except what went in the year 1961 when the tuition grant law was enacted.

Justice Arthur J. Goldberg: [Inaudible]

Mr. J. Segar Gravatt: None, none.

No public assistance from any source, not since the court ended its injunction.

Justice Potter Stewart: Are you talking about the foundation?

Mr. J. Segar Gravatt: Yes, sir.

Yes sir.

Unknown Speaker: [Inaudible]

Mr. J. Segar Gravatt: I certainly do, sir and I'll get to that.

Justice Arthur J. Goldberg: [Inaudible]

Mr. J. Segar Gravatt: The liberty, yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. J. Segar Gravatt: Well sir, it was a change from what had been the law for a great many years and in my judgment, it constituted an enlargement of rights or liberties but did not constitute an affirmative requirement of anything.

Now, if the Court please, back to the question of redress of rights deprived on the Constitution, secured by the Constitution of the United States.

In order, it seems to me in my simple way of thinking, to get a decree that says to Prince Edward County, you've got to open these schools.

You have to enlarge what you have decided in Brown against Board of Supervisors -- Brown against School Board and you've got to find some federal right in these petitions.

Some federally secured right to have an education, and not just in education because to get that -- the law of Virginia provides it by tuition payments, but an education inside of a school house that is owned, operated, and controlled by the state or some political subdivision.

And I say, that up until now, there's no decision of this Court and so far as I know, no decision of any state court that takes issue with the fact that education and the method which it provides is a state matter and is not a matter secured by the Constitution of the United States.

Now, for the tuition grants.

You will see in the brief, reference to cases that have been decided in regard parent -- parental rights with respect to the training and education of their children.

You will find that these rights have been established by this Court, as rights protected under the Fifth Amendment.

And you will find that they are protected not only against state law such as Oregon enacted the law saying that all children have to go to a public school, it was over thrown as an invasion of parental liberty.

But you'll find that in the territory of Hawaii, the federal territorial government enacted arbitrary and high statutes against Japanese taught in Japanese language school and that this Court overthrew it as an invasion of the Fifth Amendment, the freedom of those people, and that the Federal Government could no more invade that privilege than could the state.

In more recent decisions, this Court has related the right, the freedom of association to freedom of speech under the First Amendment.

I say to you gentlemen that the tuition grant program of Virginia is designed not to deny anybody anything, but to give in a democratic society the greatest opportunity for the solution of a difficult problem by giving to every person the liberty that is here under this Constitution that was truly ordained to protect those freedoms.

Justice Potter Stewart: Does anybody there have the liberty to go to a public school in the county?

Mr. J. Segar Gravatt: Sir?

Justice Potter Stewart: Does any school child in Prince Edward County have the liberty to go to a public school in Prince Edward County?

Mr. J. Segar Gravatt: Not one that's owned and operated or controlled by the School Board.

No, sir, not at the present time.

Justice Potter Stewart: Any public school.

Mr. J. Segar Gravatt: No sir.

Justice Potter Stewart: By definition.

Mr. J. Segar Gravatt: No sir.

No sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. J. Segar Gravatt: Yes sir.

No sir, it hadn't been repealed.

It's construed and the case was recently decided by the Supreme Court in the same fashion that it had been suggested in prior decisions that the general assembly have the duty to establish a system, a plan for public education, but the public education depended upon the election of local authorities and operation schools upon what was in the hands of local authorities.

Chief Justice Earl Warren: But you have no plan, have you?

Mr. J. Segar Gravatt: Sir?

Chief Justice Earl Warren: You have no plan in Prince Edward County.

Mr. J. Segar Gravatt: Yes sir, we have juris --

Chief Justice Earl Warren: -- public school.

Mr. J. Segar Gravatt: We have tuition grants at Prince Edward County which is an option that we have under the law.

Chief Justice Earl Warren: Your provision in the Constitution says to maintain public schools and you say according to the plan of the local governments, you have no fund?

Mr. J. Segar Gravatt: The Virginia -- the decision of our Supreme Court, sir, and what that section says here, that the general assembly shall establish and maintain an efficient system --

Chief Justice Earl Warren: Of what?

Mr. J. Segar Gravatt: -- public schools.

Chief Justice Earl Warren: Yes.

Mr. J. Segar Gravatt: And the Supreme Court of Appeals of Virginia has construed it and I take it that that's -- that that is an authoritative construction.

They have construed it to mean that the State of Virginia, the general assembly has complied with that provision of the Constitution when it adopted the School Board and provided the method and the way by which localities could carry out the powers that are opposed in them in the Constitution.

Chief Justice Earl Warren: Could or should?

Mr. J. Segar Gravatt: May.

Justice Arthur J. Goldberg: [Inaudible]

Mr. J. Segar Gravatt: The Cons -- first thing sir is that the Constitution of 1859 gave the Board of Supervisors exactly the same discretionary power that the present Constitution gives.

The language in that Constitution is that the local school -- local Board of Supervisors may levy taxes.

They are not required to levy any taxes and not under that.

Now may I say an additional thing, sir, about that that if that were an effort to restrict the control of the State of Virginia of the method and means of providing education for its people, it would be in violation of the Tenth Amendment of the Constitution of the United States in that it would deny to the State of Virginia rights of the Constitution, the rights shall be reserved to them.

So that's my response to that, sir.

Now if the Court please in regard to the tuition grant statutes of Virginia, they are not -- they have no racial connotation whatsoever.

They are available to any person for use in any school that meets the reasonable standard of education.

I do not contend that the constitutionality of those statutes are here before this Court.

There has been no application of any -- of the petitioners or any place for admission to any school wherein a tuition grant has been or was used.

There has been no application of any person that's in the class of these petitions for a tuition grant and -- so that they are without anything in this record that shows -- that by virtue of the tuition grant law of Virginia, they have been deprived of any right secured by the Constitution of the United States.

Now when you begin talking to use in a legal opinion, terms such as circumvention of a court decision or circumvention of a court order, I submit to you that you're using terms that depends upon matters of judgment and doesn't depend upon matters of the law.

How can you circumvent a court order anymore than you can circumvent the speed limit?

You either violate it or you don't violate it.

I take it that's the reason why the rules of the federal courts require that injunctive orders be spelled out in writing so that a man will know and anybody who's on the one will know when he's violating or when he's not.

And to make a kind of a mythical broadside statement that an act is a circumvention or a frustration of a court order, lives within the hands of the Court, a power that is not defined and that nobody can know when they are violating an order and when they're not violating.

We have known that the Board of Supervisors of Prince Edward County has never violated any order of any court.

We have never acted in defiance of any order.

We have acted in what we honestly and conscientiously believe today are the sacred rights of American people protected under the fair Constitution which you gentlemen are here to interpret and to construe and to apply.

Justice Potter Stewart: I don't understand Mr. Gravatt if there's any claim to the contrary by your --

Mr. J. Segar Gravatt: Alright sir.

I just want --

Justice Potter Stewart: -- (Voice Overlap) right about that.

Mr. J. Segar Gravatt: -- they suggest sir that their motives and that we are circumventing and that we are frustrating an order or that we're doing something that not depriving them a right.

They never come out and say, “here are the right that the Constitution of the United States secures to me”, and here is what the jurisdiction of the Courts are.

They come in and said the Court entered an order.

And it said, “You admit people to such schools as you operate.”

And it was the expectation of their reply that should operate public schools and everybody would be admitted but nobody said, “We haven't got a right to do what we're doing”, or that it violates anything that's secured under the Constitution of the United States and that's the issue.

Justice Arthur J. Goldberg: Mr. Gravatt, what about the argument made by the Solicitor General which is this that the state, assuming the federal [Inaudible]

Mr. J. Segar Gravatt: If all that you have, sir, were public schools, if that was all that was conceived of under the Virginia plan of education that might be a tenable position. But when the Virginia plan of education gives everybody tuition grants and gives the locality the option to bring that into effect as a method of education in that county and the same option, the same privilege is given to every other county and city in Virginia unless, sir, the cases that this Court has decided are reversed, I do not see how it could violate the Fourteenth Amendment.

Justice Arthur J. Goldberg: [Inaudible]

Mr. J. Segar Gravatt: I do not -- this Court -- you had a similar question.

You had quite a similar question if you look at the case of Millers against Bowman which is cited in the brief.

The State of Missouri allowed in St. Louis and certain areas, an appeal in certain types of cases.

In other areas of the same state, they were denied an appeal and the matter came here and this Court held in our – in an opinion that is absolutely in point on this very question that that was not a violation of the Fourteenth Amendment.

The only time in my judgment that you get to a question that you can't delegate an option to a locality is when you get to a right that is secured by the Constitution of the United States.

When you get to something that is a privilege of a citizen of the United States or is a right that the federal constitution requires, then you got some limitation on what you can do because everybody everywhere has got to be subject to the same thing, but when it's education and education is a state matter and anymore requirement for state uniformity with respect to education and there would be if the state said, “We have powers.”

And we just put them where we're pleased to put them and you can't come into Court and say, “Give me a power in my county and give -- take it away from him over there” or something of that nature.

Now, if Your Honor please, this is what the Court has decided in all of its cases, and I do not believe there's a case cited in the Attorney General's brief that holds to the contrary.

All that I could get my hands on and could look at are absolutely not in point.

They either go off on some state constitutional restriction of the delegated power or they have got a statute that's on the state level and as applied as absolutely a clear violation of the Fourteenth Amendment.

I said a moment ago that I did not think that the tuition grant program here is before you.

I still do not think so.

It is not impeachable on the grounds that they impeach it if they've got any rights and they go out to tenants of the schools that operate it, then let them have -- make an application and bring this --

Justice Hugo L. Black: Suppose -- suppose it was shown, I don't say it is but I just want to ask you, suppose it was shown that Virginia passed the law and says we're going to have a -- we're not going to have any integration in any school in the state.

Mr. J. Segar Gravatt: We did that judge and got knocked there by hall, that's all.[Attempt to laughter]

Justice Hugo L. Black: I'm sorry.

Suppose they just said it in their own genuine language, ingeniously just frankly, they're not going to have it and they said we are creating a system here whereby we can prevent it, a statewide system.

It's going to work in this way that they're going to give grants to parents in order that they can avoid it and we're going to provide another part of the system whereby through our system of local opportunity, the counties that wants to prevent this integration can take advantage of these grants and have private schools -- what they call private schools where the state doesn't want them.

Mr. J. Segar Gravatt: Yes sir.

Justice Hugo L. Black: Now isn't that what you have here?

Mr. J. Segar Gravatt: That's exactly -- that's substantial on what we have, sir.

Justice Hugo L. Black: And your argument is, as I understand it, I think [Inaudible]. Your argument is that you have a right to do this --

Mr. J. Segar Gravatt: That's correct.

Justice Hugo L. Black: -- even though it's a part of a statewide system.

The aim and purpose and consequence of this is to have certain counties if they reach that point where they will not have any integrated -- integration in any school in the county, public or private?

Mr. J. Segar Gravatt: Well Judge, I would -- I would avoid saying it --

Justice Hugo L. Black: I understand it.

Mr. J. Segar Gravatt: -- in just a way you do.

I say that it's not done to avoid integration. I'd say that it was done to --

Justice Hugo L. Black: Well that's the basis -- that's the basis of it.

Mr. J. Segar Gravatt: -- to give -- to enlarge the liberty and the freedom of people under the Constitution.

Justice Hugo L. Black: I understand, but using -- getting away from --

Mr. J. Segar Gravatt: You are correct.

You are correct.

Justice Hugo L. Black: -- all of these languages --

Mr. J. Segar Gravatt: You are correct.

Justice Hugo L. Black: That's exactly what it is.

Mr. J. Segar Gravatt: You are correct.

Justice Hugo L. Black: The question is whether that's constitutional.

Mr. J. Segar Gravatt: That is correct, sir.

That is correct and we have the argument in our brief.

I do not think that the tuition grant program as I have said is here before the Court.

The Solicitor General asked you not to enjoin tuition grants on the basis of the liberty involved.

He asked you to enjoin the tuition grants on a conditional basis until public schools are open.

I think if the Court feels compelled to do anything in this case, that is far and away the desirable -- the more desirable thing to do.

Because the issue, the actual issue, and this is a tremendously important question, this matter of how, what does it reach of the privilege of the parents and of citizens to select their associations in education and to have a freedom to bring up their children as a will involved the most intimate and the most sacred natural rights of people.

And I do not think and I hope that this Court will not enter an order that will so restrict the freedom that I know that you gentlemen are dedicated to preserve -- preservation of perhaps and more conscious of perhaps than almost anybody.

And that whatever you do with this case, that you will not take Brown against Board of Education which was in truth an enlargement of the liberty of mankind, and use it as a means to exercise compulsion and force against people.

The opportunity, the genius of our Constitution is in the blessings of liberty that it protects and bestows upon our people.

The solution of this problem like the greatness of our country in so many respects depends upon the preservation of it and when you give people freedom.

You can take away these restraints on account of race.

I suppose many, they should never have been in the law, but let's not in the name of advancing what we think in our private judgment maybe a good thing to take away and constrict the liberties of people because in truth, that has been historically the way that we have solved these difficult problems and the way that we have brought about unity and cohesion with our people, and it is a possibility here that holds out a peaceful existence of people.

Virginia has had peace in racial matter since this program has been in effect but whatever -- whatever --

Chief Justice Earl Warren: May I ask you this?

Mr. J. Segar Gravatt: Yes, sir.

Chief Justice Earl Warren: These little children, these little colored children who have had no education or no opportunity for education in the last several years that they had freedom.

Mr. J. Segar Gravatt: If Your Honor please, we have done every -- yes sir.

Chief Justice Earl Warren: No.

Mr. J. Segar Gravatt: I think they have.

Chief Justice Earl Warren: Do they have freedom?

Mr. J. Segar Gravatt: Yes, I think they have.

Chief Justice Earl Warren: I mean freedom to go through life without education.

Mr. J. Segar Gravatt: Sir, they have had the same opportunity to that -- everybody else in the county has had and they have rejected those things that were provided for them.

Nobody has wanted to be harsh on it.

If it please, Mr. Chief Justice, there is no other way to get the decision of this Court except to bring this case here, that's the only way.

This issue has to be decided and upon the decision of it.

And if you look for a motive and a purpose in the people of Prince Edward County, looked for a motive and purpose that has insisted that they bring to this Court the constitutional principles upon which they have acted and find that answer as to whether or not they are right that they live in freedom or whether or not it is a mistake and that there is some other solution or some other course that they should follow.

Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. J. Segar Gravatt: There -- there is a difference.

Justice Arthur J. Goldberg: [Inaudible]

Mr. J. Segar Gravatt: You will find in there, sir, that there were appeals that were allowed in the urban courts in cases in which appeals were not allowed in the rural courts.

Here is a quotation is on it, you can find in the briefs.

It contemplates Fourteenth Amendment, persons and classes of persons.

It has no -- it has no respect to local and municipal regulations that do not injuriously effect or discriminate between persons or classes of persons within the places or municipalities for which such regulations are made.

The Amendment could never have been intended to prevent a state from arranging and parceling out the jurisdiction of its several courts at its discretion.

No such restriction as this could have been in view or could have been included in the prohibition that no state shall deny that any person within its jurisdiction the equal protection of the law.

It is the right of every state to establish such course as it sees fit and to prescribe their several jurisdictions as to territorial extent to subject matter and amount and the finality and effect of their decisions, provided that it does not encroach upon the proper jurisdiction of the United States and does not abridge the privileges and immunities of citizens of the United States.

It does not deprive any person of his rights without Due Process of law nor denied to any person the equal protection of the law including the equal right to resort to their appropriate courts for redress.

Justice Arthur J. Goldberg: [Inaudible]

Mr. J. Segar Gravatt: Yes sir, and there's no discrimination within the counties.

Justice Arthur J. Goldberg: [Inaudible]

Mr. J. Segar Gravatt: No sir, no sir.

The law within the territorial limits of the county is absolutely equal with respect to everybody.

The inequality results from a private decision of these petitioners not to accept the means that were provided for them and the fact of it is that they are now being educated and if they would accept the means, they could provide the education very easily and have it.

Chief Justice Earl Warren: Mr. McIlwaine.

Argument of R.d. Mcilwaine Iii

Mr. R.d. Mcilwaine Iii: Mr. Chief Justice, may it please the Court.

As an Assistant Attorney General of Virginia, I appear as counsel for the State Board of Education and the Superintendent of Public Instruction of the Commonwealth.

These respondents first became defendants in this suit when the amended supplemental complaint was filed by order of Court on August the 14th, 1961.

At that time, the defendants asserted a series of defenses and contentions against the suits sought to be set up against them in the amended supplemental complaint and we have continued consistently thereafter to assert these defenses.

Thus, we have taken the position that the suit sought to be setup in the amended supplemental complaint is in its direct purpose and effect a suit against the Commonwealth of Virginia which has not consented to be sued and is expressly forbidden by the Eleventh Amendment.

We have taken the position that the amended supplemental complaint states no claim upon which relief can be granted against these respondents.

We have taken the position that the amended supplemental complaint states a new and distinct cause of action different from that setup in the original complaint which cannot properly be maintained in an amended supplemental complaint.

And we have stated that the amended supplemental complaint asks relief in the nature of the enjoining of the enforcement operation and execution of a state statute which relief under the laws of the United States cannot be granted except by District Court of three judges.

The District Court in its opinion set out on page 160 of the record detailed all of these points which we made, set them for consideration when the trial was heard on the merits at a later date and these points were argued.

That was the last we have ever heard of these contentions.

I make this statement with more than passing justification where I refer to the language of the Fourth Circuit set out on page five of my brief, in which the majority pointed out this.

For the District Court to get to the merits, it had to bypass a number of preliminary questions, including a very troublesome question arising under the Eleventh Amendment, all of which are brought up before us.

Now we have no doubt whatever that if the Fourth Circuit had not decided to abstain until the Virginia Supreme Court had considered what precisely was the nature of the Virginia system and this case had gone back to them from that decision that we would have had all of these contentions considered by the Fourth Circuit.

But we take the position, that Due Process of law no matter how it maybe construed assuming it applies to the respondents in this case as it does to the petitioners which of course it does, necessarily requires that these contentions which we have made be considered at some time by some judicial tribunal.

We suggest in view of the action what this Court has taken that they must now be considered by this judicial tribunal.

So far as the Eleventh Amendment question is concerned, we have set out in our brief a number of cases, none of which the Solicitor General has dared to mention in which we have pointed out that the line of demarcation between a suit which seeks to enjoin a state official from taking action under an unconstitutional statute, that is a suit which seeks a cessation of action by state officials as contrasted to a suit which affirmatively seeks to require state officials to perform a duty alleged to be place upon them by the law is the line of demarcation between suits which are not forbidden by the Eleventh Amendment and suits which clearly fall within the prohibition of the Eleventh Amendment.

Now in the case at bar, the amended supplemental complaint alleged that the state officials whom I represent had failed to discharge the obligation placed upon them by the Virginia Constitution to maintain a system of free public schools throughout the state and it asked a peremptory writ of mandamus to compel the state officials to operate public schools in Prince Edward County.

Now they did not ask for the peremptory writ of mandamus in so much -- in so many words.

They asked for an injunction to enjoin the state officials from refusing to operate the schools in Prince Edward County.

Now this sort of strategy has been laid to rest in the case of Louisiana versus Jumel which we cite, in which the Court has said that suits of this nature, a suit to mandamus a public official to perform an act or a suit to restrain a state official from refusing to perform an act under a state statute raise identical questions and constitutes a suit against the State within the prohibition of the Eleventh Amendment.

If we may paraphrase the language of this Court in Hagood versus Southern, a suit requesting the relief which is here requested by the petitioners, that is that state officials spend money which they do not have, which has not been appropriated, and affirmatively begin to operate the public schools in Prince Edward County.

If a suit requesting this relief be not a suit within the inhibition of the Eleventh Amendment, it would be difficult to conceive the frame of one which would be.

As the Court said in Hagood versus Southern, a judgment against state officials in their official and representative capacity commanding them to perform official functions on behalf of the state according to the dictates and decrease of the Court is, if anything can be, a judicial proceeding against the State itself.

Chief Justice Earl Warren: May I ask you this?

I have in mind, now you may have been cited in your brief the series of cases in which affirmative action has been required forcing the laying of a tax to pay debts.

Mr. R.d. Mcilwaine Iii: Yes, Your Honor, but not against state officials.

Justice Hugo L. Black: Who is it against?

Mr. R.d. Mcilwaine Iii: Against a locality and we do not assert that the Eleventh Amendment covers a locality.

Justice Hugo L. Black: What was the ground of saying that they can force them to do that?

Mr. R.d. Mcilwaine Iii: It was because the initial legislative decision to issue the bonds and lay the tax had already been made by the elected representatives of the people and that in requiring the local Board of Supervisors to lay the tax, the Federal Government, the federal court was giving them contract relief which they would have been entitled to under state law and would have obtained even if the matter had been heard in a state court.

Justice Hugo L. Black: Of course you wouldn't -- you wouldn't base that on the fact that that is contract relief instead of some other, would you?

Mr. R.d. Mcilwaine Iii: Yes, Your Honor, I do because I think those cases clearly turn upon the fact that there had been a contract by the local people to pay the bonds.

And they were suiable on their contracts.

We don't take the position that a locality is not suiable on its contracts or that if the people have decided and have contracted with bond holders that they will levy a tax that that contract cannot be enforced.

Justice Hugo L. Black: If they passed a law or ordinance in the county, saying, if we're not going to pay this debt, could they be required to pass another order saying they would?

Mr. R.d. Mcilwaine Iii: No, sir.

That case actually happened.

The Court invalidated the subsequent enactment as being in violation of the federal constitutional prohibition against the passage of a legislation impairing the obligation of contracts, and then enforced the right to which the petitioners were entitled under the original law.

Every one of those cases, Mr. Justice Black, is a contract case on a debt for a liquidated sum after the representatives of the people had contracted and agreed that they would levy the tax.

Justice Hugo L. Black: Based on denial of a constitutional right?

Mr. R.d. Mcilwaine Iii: No, sir.

Only one of them -- only --

Justice Hugo L. Black: He didn't have any?

Mr. R.d. Mcilwaine Iii: Sir?

Justice Hugo L. Black: You can put him on a contract?

Mr. R.d. Mcilwaine Iii: Only one of the cases was that matter an impairment of contract did arise.

In all the others, the legislature, I mean the local governing body just simply did not pay the debt, they just fell into default and the Court said, “You can be mandamus.

The state court would mandamus you.

We can mandamus you because you have already exercised the legislative discretion.

You have contracted the debt and you as a municipality or just as suiable as if the case with Brown against Smith.

It's not Brown against the City of Quincy or what have you and any one of those cases or the Labette County Commissioners.

Under the Eleventh Amendment, the locality is just as suiable as a private party.

We don't state that but the State is not and if the State repudiates its debt, this Court cannot require the State to levy the tax unless the State has entered into a contract with another state which would come within the original jurisdiction of this Court, which is not this case at all.

Justice Hugo L. Black: Suppose the State directed on local communities to repudiate their debts, I'm asking --

Mr. R.d. Mcilwaine Iii: Yes, well.

Justice Hugo L. Black: -- really exploratory questions.

Mr. R.d. Mcilwaine Iii: Yes.

If they did, Mr. Justice Black, I would suppose that sort of thing would fair exactly the same way as a subsequent enactment trying to withdraw the taxing power from the locality which existed in one of these cases.

In other words, I should think that any attempt to repudiate a debt by the locality would raise that question.

In other words, so far as the Eleventh Amendment is concerned, we do not assert, we never have asserted that the Eleventh Amendment erects any shield for local officials.

We say that it does erect the shield with respect to the relief sort in this case of requiring the state officials to operate public schools in Prince Edward County and we cite a number of cases which make it perfectly clear that the difference between enjoining state officials from acting under an unconstitutional statute which means they're enjoined in their personal capacity because the unconstitutional statute gives them no immunity and those which require a state official affirmatively to perform its obligations is the line of demarcation between Eleventh Amendment suits and Fourteenth -- and of suits which are not within the scope of the Eleventh Amendment.

Justice Byron R. White: Mr. McIlwaine, you don't make any Eleventh Amendment argument in regard to any acts against the local official?

Mr. R.d. Mcilwaine Iii: No sir.

I'm going to make --

Justice Byron R. White: Nor do you -- nor do you make an Eleventh Amendment argument insofar as they sought an injunction to keep -- to keep the State Board from -- from following the – tuition --

Mr. R.d. Mcilwaine Iii: No sir.

I am going to make -- when the opportunity arises, a very strong argument against all on the Bond cases that you cannot require a locality to exercise its discretion in the first instance that there is no judicial authority, not because of the Eleventh Amendment but simply because of the division of powers for this Court to tell Prince Edward County that it must lay a levy for public schools in the City of Cleveland, that it must lay a levy for public parks in the city of -- in any city in Colorado that it must engage in a state local hospitalization program or Medicare or anything else.

Unless the local people have decided to undergo that program, we say there is no judicial power in any court in the United States to tell a city, “You must lay a levy and embark upon this program.”

Justice Hugo L. Black: Suppose the local community here had against -- I am asking this question merely following your argument, suppose the local community here had passed a rule, a local authority saying that we're not going to raise any taxes for the purpose of sending children to school, public schools, we're going to have public schools, we're not going to raise any taxes to it. Let them pay the public schools of the money if they mix up the races.

What would you say about that?

Mr. R.d. Mcilwaine Iii: Well, if Your Honor please, if the tax -- if the enactment of the tax is conditioned upon an unconstitutional requirement, we have a far different proposition –

Justice Hugo L. Black: That is -- that is partly --

Mr. R.d. Mcilwaine Iii: That is James against Almond Your Honor.

That is --

Justice Hugo L. Black: But that's where it would finally get to?

Mr. R.d. Mcilwaine Iii: No, sir, I don't think it's --

Justice Hugo L. Black: Suppose there is an unconstitutional condition there?

Mr. R.d. Mcilwaine Iii: Well, it may come to that Mr. Justice Black, but our position here is that you cannot equate those two situations when a locality says as it has the undisputed right to do, we are not going to spend any money for any school, integrated or segregated.

It's not a matter of conditioning the appropriation upon the character of the school.

We just aren't going to have schools in Prince Edward County just as the City of Fairfax, 15 miles from where your city as a political subdivision of Virginia that don't have a public school in it.

They just decided --

Justice Hugo L. Black: It's not that they can't be sued, but they haven't done anything here which justifies them to be sued at all.

Mr. R.d. Mcilwaine Iii: Yes Your Honor but I was brought into the remedy situation first by Your Honor's question about the Bond cases.

Our basic premise is of course, that there is no right which requires a remedy, that they have no right whatever to be provided with public schools in Prince Edward County.

This is --

Justice Byron R. White: [Inaudible] these schools weren't closed [Inaudible]

Mr. R.d. Mcilwaine Iii: I don't say that at all.

Justice Byron R. White: Would you say they have the right --

Mr. R.d. Mcilwaine Iii: I say they have the right to do it and I say every decision has been decided in the Fifth and Fourth Circuit with respect to any public facility clearly bears that out.

Justice Byron R. White: [Inaudible] they have got a right to --

Mr. R.d. Mcilwaine Iii: The Board of Supervisors has a right not to appropriate funds for the operation of public schools for any reason which it seems fit, including the reason that they would be operated on racially integrated basis if the money were appropriated and this is Tompkins and Gilmore, and cases without ending.

I'm running over my time, I apologize.

Chief Justice Earl Warren: No you're not.

We're going to finish tonight.

Mr. R.d. Mcilwaine Iii: Oh we're going to finish.

Chief Justice Earl Warren: Yes.

Mr. R.d. Mcilwaine Iii: I see.

In that case Your Honor, I will proceed right away then to the question of the right.

We take the position that what is here required by the petitioners is this.

They say that they have a right to be provided with public schools in Prince Edward County.

This is what they say.

Now Brown said and we admit this, that they have a right to racially nondiscriminatory access to such public schools as operated in the county, but that there is no provision in the Federal Constitution which requires the State to operate any public schools.

Second, we say, that this Court has never held that any truly local option law violates the Equal Protection Clause of the Fourteenth Amendment and this is a point which I feel I must stress.

No decision of which I am aware and no decision contained in the brief of the Solicitor General holds that a local option law is unconstitutional under the Fourteenth Amendment.

There is no such case.

Now in Virginia, we have a truly local option system. Our State Supreme Court has made that perfectly clear.

Whether or not, public schools will be operated and locality is a decision which is made by each individual locality.

It has been this way since the foundation of our public school systems were laid in 1869.

It was that way when Virginia was readmitted to the Union, that principle was carried on in the Constitution of 1902 and it exists today.

Nothing having to do with local option was fashioned on a post Brown basis over the idea of concocting any evasive schemes to continue segregated education in Virginia.

Justice Potter Stewart: I thought you are surely -- you're not suggesting what you seem to be saying a moment ago that a law is automatically constitutionally valid if it's enacted by majority vote of the locality?

Mr. R.d. Mcilwaine Iii: No, sir.

What I'm saying is this, that you cannot say that the Virginia local option laws which had existed for 100 years, constituted an invasive scheme to circumvent any orders of this Court.

That's what I want to say.

Now on the local option proposition, I do say that a local option law in which you have a statewide program in which state aid is made available to each and every locality of the State which elects to come under it, provided the locality meets certain minimum requirements, I say that that is constitutionally unassailable.

As the majority of the Fourth Circuit said, “Any such program is that which is engaged in by every state in the union which the Federal Government engages in, in which it lets the states wish to come up to the minimum requirements, participate, pays money to those states which elect to come under the program and doesn't pay money to those which do not elect to come under the program is constitutionally unassailable.

We will not see the Solicitor General stand before this Court and urge to it that the National Defense Education Program is unconstitutional, but it is a clear local option program which is available only to those cities and counties in the United State which elect to insert in their curriculum those provisions for advanced Mathematics, modern foreign language and Science for which alone the Federal Government is willing to make its money available.

Now this is straight local option, and it is available to everyone who wishes to come under the program.

In Virginia, three of our cities have elected to come under the program.

Must the Federal Government discontinue aid to those simply because three other cities in Virginia have elected not to come under the program, and that is precisely what we have here.

Virginia for 100 years has had a local option program in which every locality in the state which elects to operate public schools and which appropriates funds therefore may have state aid.

Justice Potter Stewart: Now the state aid is on a matching dollar per dollar basis?

Mr. R.d. Mcilwaine Iii: It's on a formula basis Your Honor.

It's not on a matching form -- it's not on a matching fund basis because certain localities make a greater effort and get a large proportion of the funds.

Certain localities will appropriate quite a bit as much as 75% to 80% of that budget because they will go beyond what the State requires and will spend more money even though the State will not match it.

But so far as the matching state funds are concerned, they are available only upon the condition that the locality has provided certain minimum funds and it's undertaken to operate schools --

Justice Potter Stewart: Except to the so-called constitutional minimum of something like $40,000 in this case --

Mr. R.d. Mcilwaine Iii: That's correct Your Honor.

Justice Potter Stewart: -- available --

Mr. R.d. Mcilwaine Iii: Now the constitutional minimum goes to the locality for whatever use they wish to make of it.

In one year, Prince Edward -- they have no use for it at all, didn't even take it.

But under the Constitution all that Virginia is required to give in the way of financial assistance is that constitutional minimum.

Anything beyond that constitutional minimum comes within the scope of Section 129, that Virginia shall provide a statewide system in every locality, a plan for it.

And our state court has clearly said that we have established that plan when we set it up on the same basis of the National Defense Educational Program or other federal programs in which a locality is permitted to participate if it elects to have schools in the first instance.

Chief Justice Earl Warren: Mr. McIlwaine, when you say that the local communities can spend that constitutional minimum in any manner they choose, do you mean in any manner they choose for public schools, or --

Mr. R.d. Mcilwaine Iii: It wouldn't --

Chief Justice Earl Warren: -- or do you mean for any purpose whatsoever?

Mr. R.d. Mcilwaine Iii: No sir, I mean, within the educational framework.

Chief Justice Earl Warren: Within the educational --

Mr. R.d. Mcilwaine Iii: That constitutional minimum is set up in Article 9 of our Constitution relating to the public schools Your Honor.

And it can only be used for the repair of people – public buildings, public school buildings or for payment of teacher salaries or for anything that relates to the operation of public schools or the maintenance of public schools.

That's what it has been used for in Prince Edward County.

Chief Justice Earl Warren: Is there anything in your Constitution that gives local community the right to spend that money if it has no public schools?

Mr. R.d. Mcilwaine Iii: No, sir.

If it is used at all, it must be used for the -- for public school purposes.

That's why --

Chief Justice Earl Warren: Then can a -- does your local option program go so far as to say that it can use a little money for the state educational system or public schools but that it didn't go any farther?

Mr. R.d. Mcilwaine Iii: It goes so far as to say whether or not the money will be spent at all is solely up to the locality Your Honor.

The $40,000 constitutional minimum --

Chief Justice Earl Warren: But then you spend it --

Mr. R.d. Mcilwaine Iii: -- does not have to go to the locality unless the locality select -- elects to take it.

Chief Justice Earl Warren: But it has elected to take it and has used it here and it has used it for the public school buildings at least.

Mr. R.d. Mcilwaine Iii: But it has used -- yes, Your Honor, but it has used it to maintain the buildings, not to operate in the schools --

Chief Justice Earl Warren: Yes, that's true but that -- that's a school purpose, isn't it?

Mr. R.d. Mcilwaine Iii: Yes Your Honor.

Yes, the maintenance of the school buildings which are owned by the School Board.

They are not operated by the School Board because they have no money.

The Board of Supervisors has not appropriated any money to operate the school.

Chief Justice Earl Warren: I understand that.

Mr. R.d. Mcilwaine Iii: And so they have elected to take the constitutional minimum and maintain the buildings during the interim.

Chief Justice Earl Warren: I understand that.

Mr. R.d. Mcilwaine Iii: Yes.

I mean this is the method by which it is done.

Chief Justice Earl Warren: Would it make any difference to your argument, Mr. McIlwaine, the legislature in passing this law and said -- so you're making this plan for local option in connection with the school and object and purpose is to give the counties the ability if they see fit to close up the school, public school, in order to prevent Whites and Blacks sitting in the same school together.

Would that make any difference?

Mr. R.d. Mcilwaine Iii: No, sir.

Constitutionally, I do not think it would.

Justice Hugo L. Black: [Inaudible]

Mr. R.d. Mcilwaine Iii: No sir.

Justice Hugo L. Black: It'd be just the same.

Mr. R.d. Mcilwaine Iii: Yes sir, because the result would still be no schools within a particular locality, which we say they have a perfect right to do and on this we rely on the Tompkins case and the Gilmore case in which the localities elected not to operate parks, not to operate schools, playgrounds, libraries, or any facility that had to be operated.

Justice Hugo L. Black: Do you understand that the Fourteenth Amendment makes it unconstitutional to pass a law which is designed to discriminate against people on account of their color?

Mr. R.d. Mcilwaine Iii: Yes, Your Honor.

But this --

Justice Hugo L. Black: Do you think -- do you think it does that?

Mr. R.d. Mcilwaine Iii: No sir.

Justice Hugo L. Black: You do not.

Mr. R.d. Mcilwaine Iii: No sir.

The end result is no public facilities for anyone under your proposition.

Justice Hugo L. Black: I mean, do you think that the purpose of it is to provide and that it does, I'm not talking about now in this case, it does say that if a state passes law so as to discriminate against people on account of their color, it is an invalid law?

Mr. R.d. Mcilwaine Iii: If they pass a law for that purpose?

Justice Hugo L. Black: That's right.

Mr. R.d. Mcilwaine Iii: Well, if it has that result.

Justice Hugo L. Black: Well, suppose it has that purpose and that result?

Mr. R.d. Mcilwaine Iii: Well then I think if Your Honor please, if it has that unconstitutional purpose and gives rise to that unconstitutional result, then it would be unconstitutional.

Justice Hugo L. Black: Then a great deal is said about motive and purpose and so forth, those things that are -- mental things into mind.

Mr. R.d. Mcilwaine Iii: Yes sir.

Justice Hugo L. Black: How can it be determined that a state has or has not done something in order to discriminate on account of color without trying to find out why they did it?

Mr. R.d. Mcilwaine Iii: Because Your Honor, I think you have to look at the result and at the rights which are being asserted, and see whether or not a right exists and what effect the law has upon the right.

Now we --

Justice Hugo L. Black: I agree to that --

Mr. R.d. Mcilwaine Iii: Yes sir.

Justice Hugo L. Black: -- and if it's not to discriminate on account of color by reason of a state law.

Of course, that wouldn't make any difference, but suppose it is then it accomplishes that result?

Mr. R.d. Mcilwaine Iii: If it accomplishes that result, Your Honor, then I think it would be unconstitutional.

Justice Hugo L. Black: Then we get back to the question of whether they can do that which I thought maybe the Brown case had forbidden, a state to pass law which by one means or another, I'm not talking about evasion, I don't see any evasion because I don't see that either one of these gentlemen tried to evade the issue.

If it pass and if it does pass the law for that purpose and has that consequence of discrimination being an unlawful discrimination as set out in the Brown case, wouldn't it be unconstitutional?

Mr. R.d. Mcilwaine Iii: Yes Your Honor, if it had that purpose and that effect of being an unlawful discrimination as forbidden by the Brown case or any decision of this Court, but there is no decision of this Court which says the abolition of public facilities in a locality for everybody accomplishes any impermissible discrimination.

Justice Hugo L. Black: I understand that.

Mr. R.d. Mcilwaine Iii: And the courts have said that it doesn't.

Justice Hugo L. Black: I understand that.

If the whole state had done it, you got a lot of people involved in the State, but a lot of people and the discrimination between persons -- between persons why -- why do you have to only consider the person within a certain county boundaries?

Mr. R.d. Mcilwaine Iii: It is not a matter of whether we have to Your Honor.

The question is, is it a constitutional right to do it? Does the state have the power under the Constitution to refer a decision to the localities for exercise of their local option?

Justice Hugo L. Black: Well, it finally gets down to this as I understand your argument which is a really frank argument.

It gets down to this seemingly to me that the argument is that it does not involve and deny equal protection for a state to have a whole plan of Government within the state with reference to its school some of which they call it public and some of which private, is passed that way in order to prohibit, we will say, to bar -- to permit a county to keep its people from having to sit together because they are white and black and it accomplishes that result in the end that that would not be unconstitutional.

Mr. R.d. Mcilwaine Iii: If it accomplishes that result in the end, Your Honor, but that is not what has happened here.

Justice Hugo L. Black: Well does --

Mr. R.d. Mcilwaine Iii: But when --

Justice Hugo L. Black: But it has happened.

I'm talking about pragmatically what happened.

I'm not talking about what happened (Voice Overlap)

Mr. R.d. Mcilwaine Iii: Pragmatically what has happened Your Honor --

Justice Hugo L. Black: -- with reference to a legal definition of the difference between abolishing and doing a way with it and what actually happened and what has actually happened here in that respect.

Mr. R.d. Mcilwaine Iii: Very well.

If I may say, pragmatically what has happened is that some half of the Virginia school districts are operating on racially integrated basis right now.

Justice Hugo L. Black: What happened -- how about the others?

Mr. R.d. Mcilwaine Iii: The others?

They have either not begun to desegregate or no -- request has been made to desegregate --

Justice Hugo L. Black: What happened in Prince Edward County?

Mr. R.d. Mcilwaine Iii: Now in Prince Edward County, the public schools have not been operated because the Board of Supervisors has not appropriated any money to operate public schools which they have a perfect right to make.

Now --

Justice Hugo L. Black: That -- that gets to the issue.

Mr. R.d. Mcilwaine Iii: Yes.

Justice Hugo L. Black: Could they have a perfect right to do it?

Mr. R.d. Mcilwaine Iii: Well I say Your Honor --

Justice Hugo L. Black: (Voice Overlap) question?

Mr. R.d. Mcilwaine Iii: MWell, I don't think so, Your Honor for this -- I mean -- I think it brings your question and I will come to it in a minute but I don't think that it's beside the issue because I think every case that is -- that exists on the point clearly establishes the right of the locality.

We have cited numerous decisions in which the right of the locality to close a public facility rather than operate on integrated basis has been held to violate no unconstitutional rights.

The Fifth Circuit has held it.

The Fourth Circuit has held it.

The abolition of all public facilities within a geographical area eliminates the discrimination forbidden by the Fourteenth Amendment, infringes no rights of Negro plaintiffs, and violates no order of the Court even after a court has entered an order against the city requiring it to refrain from the racial discrimination, the operation of public parks.

The city has come along and said, “Alright, we'll close the public parks” and the courts have said, “That's no violation of our order.

We didn't tell them they had to operate public parks.

What we told them was you cannot discriminate in those parks which you do operate,” that's all Brown said.

Justice Hugo L. Black: But what did Brown said was, no state, no state --

Mr. R.d. Mcilwaine Iii: Yes.

Justice Hugo L. Black: -- can discriminate and described discrimination as I understood it --

Mr. R.d. Mcilwaine Iii: On the basis of race.

Justice Hugo L. Black: -- on the basis of racial integration or segregation.

Mr. R.d. Mcilwaine Iii: But this is not any such discrimination, Your Honor, because the tuition grants which are --

Justice Hugo L. Black: Pragmatically?

Mr. R.d. Mcilwaine Iii: Pragmatically, it's not Your Honor because the tuition grants which are available to the people in Prince Edward County are available for use at segregated or integrated schools.

Justice Hugo L. Black: But suppose -- suppose that the purpose of it was to use that knowing it would result in just exactly what it has resulted in, and it actually resulted in it, what difference would it make and what language it was framed whether it was done ingeniously or in genuinely?

Mr. R.d. Mcilwaine Iii: Because I think Your Honor, it would make all the difference in the world if a program is racially nondiscriminatory and if the result which arises is -- arises simply because of the fact that certain people will not make use of the avail -- the educational opportunities to which Your Honor have given them even though they would -- could be operated on an integrated basis.

Justice Arthur J. Goldberg: But why would the public schools have to close?

Mr. R.d. Mcilwaine Iii: Because the people of Prince Edward County decided that they were not going to operate public schools, publicly owned, publicly controlled in Prince Edward County on a racially integrated basis.

Justice Byron R. White: Well this is -- this is why they were closed.

Mr. R.d. Mcilwaine Iii: This is why they were closed but the tuition grants -- the tuition grants are available for the operation by any private parties of any integrated or segregated school.

Justice Byron R. White: From this I cite your position I take it [Inaudible] constitutional permissible that involves the public school for that purpose.

Mr. R.d. Mcilwaine Iii: Yes, Your Honor.

Justice Byron R. White: And it had [Inaudible] provide the local option on any basis?

Mr. R.d. Mcilwaine Iii: The local option on any basis Your Honor without any reference to anything except geography.

And we say that there is no decision of this Court on the books from John Jay to this day or from 1868 when the Fourteenth Amendment was adopted to this day, in which this Court has ever held that a local option statute, a straight local option statute which gives each political subdivision of the State the power to choose whether or not it will or will not come under a statewide program, violates the Fourteenth Amendment.

Justice Hugo L. Black: Well, if a state -- if they're doing that by state violates a Constitution, what difference does it make whether it does it by local option or some other way?

Mr. R.d. Mcilwaine Iii: Well, if Your Honor please, it doesn't violate the Constitution because there's no requirement --

Justice Hugo L. Black: But are you saying -- you're saying that it doesn't violate the Constitution for the State to have a plan, the end result of which is to divide people in the schools on account of their race?

Mr. R.d. Mcilwaine Iii: But Your Honor that is not the end result of the program.

It doesn't divide people in the schools because of their race.

If the State -- I mean if people are divided in their races – because of race in private schools, this is no concern of the Fourteenth Amendment.

Justice Hugo L. Black: That's right.

Mr. R.d. Mcilwaine Iii: And it is no concern of the States whether or not --

Justice Hugo L. Black: But the (Voice Overlap) plan to do it that way, it's quite different, isn't it?

Mr. R.d. Mcilwaine Iii: But the State has no plan, Your Honor.

The tuition grants are available and have been available to the people regardless of the kind of school which they use them to go to.

Justice Hugo L. Black: I thought the Court found and I thought it was a matter of common knowledge anyhow, that the whole object of the entire plan that's called massive resistance or something else, was to keep from having white and colored people go to the same school.

Mr. R.d. Mcilwaine Iii: No sir.

They did not wish to have White and colored children enrolled in public schools in Prince Edward County operated by the public school board and subject to public control, that's all.

The tuition grant is available to any school integrated or segregated.

It makes no difference whatever and as Mr. Gravatt has pointed out in his brief, this has been a method by which more rather than less integration has been achieved in a number of parts of the country and a number of our tuition grants have been used by Negro citizens all over the State of Virginia to send their children to schools in the District of Columbia, public schools in District of Columbia because they believe that integrated education obtainable in the District of Columbia is better for them than the education which they received in Virginia.

And tuition grants are available for some 400 schools all over the United States, a public school in Vermont, petite school in New Jersey, Philips Exeter and [Inaudible] -- which school?

Justice Hugo L. Black: Are they passed -- were they passed for the purpose of discriminating against races?

Mr. R.d. Mcilwaine Iii: No sir.

They were passed for the purpose of enlarging the freedom of people to select --

Justice Hugo L. Black: They were not -- were they passed for the purpose of defeating decision of the Constitution which said that a state can't have a plan whatever it called it that does result in carrying on segregation in the schools.

Mr. R.d. Mcilwaine Iii: Your Honor --

Justice Hugo L. Black: Were any of them passed for that reason?

Mr. R.d. Mcilwaine Iii: No, sir.

Justice Hugo L. Black: But they're not talking about it, are they?

Mr. R.d. Mcilwaine Iii: No sir, I don't think they are.

The object of the tuition grant program is simply to let those people who elect to use them, decide where they will send their children to school, and the State has no interest at all in whether it's an integrated or a segregated facility, no interest whatever.

All that the State requires is that it'd be a school to operate -- giving a minimum foundation of education and as I say, they have been used to --

Justice Hugo L. Black: But can we decide this case really genuinely on the basis that the state has no interest in whether they are -- shouldn't be together in the same school or not?

Mr. R.d. Mcilwaine Iii: I think yes Your Honor because I don't think that the tuition grant program is actually before this Court.

I don't think that because I don't think there was, that the three-judge District Court was empaneled to hear the question of the constitutionality of that statute.

I think the basic issue here is whether or not, if petitioners in this case have a right to be educated in public schools in Prince Edward County, that is the schools operated by the School Board in Prince Edward County.

Now if they have that right, then it is unquestionably been denied them because there are no public schools operated in Prince Edward County.

There aren't any public schools being operated in the City of Fairfax 15 miles down the road.

There aren't any public schools being operated in the City of Franklin either.

The people in those areas have elected not to have any public schools but to foster the education of their citizens by tuition grants and tuition payments.

If somebody in the City of Fairfax filed a suit, claiming that his Federal Constitutional rights have been denied him because the city fathers have decided that they would not build any public schools or establish them or go to the expense but would simply give them tuition grants and make tuition payments, would not such a person receive exceedingly short script at the hands of this Court if he attempted to assert any such federal constitutional right as that, that he has a right to public schools in his own political subdivision or that's what he's being asserted in this case?

They claim that they have a right to have this Court make the Board of Supervisors of Prince Edward County open and operate public schools in Prince Edward County.

Justice Hugo L. Black: But why do they claim it?

Mr. R.d. Mcilwaine Iii: I --

Justice Hugo L. Black: It doesn't answer the question I suppose the question does it just to say they make that claim?

Mr. R.d. Mcilwaine Iii: Well, I think Your Honor, you have to decide what the right is that they're asserting.

Justice Hugo L. Black: They claim they have a right not to have the state have a plan in operation for the purpose and with the effect of preventing integration of people who go to school?

Mr. R.d. Mcilwaine Iii: But Your Honor they say in their brief that they have a declared right to education in public schools in Prince Edward County on a racially nondiscriminatory basis.

That's the right which they assert and they don't have that right anymore than the people in the City of Fairfax or the City of Franklin have that right and that's why you have the difficulty with the remedy.

That's why the Solicitor General stands here and makes the bold assertion that this Court has the authority to require a political subdivision to exercise the initial legislative function and lay a levy to support public schools when it is decided not to do so and in support of that proposition, cites such cases as the Bond cases in which the Court did no more than grant a right which existed under the State in which the right asserted was a contract liquidated right, and in which the initial legislative decision to undertake the program had already been exercised.

The Solicitor General can't cite any case to this Court in which this Court has held, “We have a right to tell a locality, you got to operate public schools.

You've got to lay or levy your tax to do it.”

You've got to have public parks.

You've got to have a hospitalization program.

You've got to have a library program.

Justice Arthur J. Goldberg: [Inaudible]

Mr. R.d. Mcilwaine Iii: A constitutional right to have a sheriff to do it?

No sir.

Justice Arthur J. Goldberg: Because the sheriff protects.

Mr. R.d. Mcilwaine Iii: No sir.

Not as such.

Not as a sheriff as such, I believe that --

Justice Arthur J. Goldberg: [Inaudible]

Mr. R.d. Mcilwaine Iii: Well, with equivalent terms, I think a person of course does have a constitutional right not to be lynched. I didn't know whether if Your Honors -- how a sheriff do it or state official or something like that, yes, alright.

Justice Arthur J. Goldberg: [Inaudible]

Mr. R.d. Mcilwaine Iii: No, Your Honor.

No --

Justice Arthur J. Goldberg: [Inaudible]

Mr. R.d. Mcilwaine Iii: But I have not --

Justice Arthur J. Goldberg: [Inaudible]

Mr. R.d. Mcilwaine Iii: Yes sir, I understand that.

Justice Arthur J. Goldberg: [Inaudible]

Mr. R.d. Mcilwaine Iii: No Your Honor.

I do not -- I do not carry it so far.

I said --

Justice Potter Stewart: The point I suppose Mr. McIlwaine is that a county is not constitutionally required to have a sheriff at all.

Mr. R.d. Mcilwaine Iii: That's right and I say that they're constitutionally not required to have schools at all.

I do not say that a right -- that a constitutional right which the state must recognize can be referred to local option.

I don't say that at all.

I don't say that they are not some constitutional rights which cannot be referred to local option, but the right to go to a school in one political subdivision doesn't exist.

It never has existed.

Nobody has a right to go to a public school in their locality if the city fathers in that locality decided that they're not going to have any public schools for any reason and if the petitioners in this case --

Justice Hugo L. Black: You would say I'm sure that they do not have a right to be barred from going into certain locality on account of their race?

Mr. R.d. Mcilwaine Iii: Oh yes.

We admit this in our brief, Your Honor, but that was exactly true in all of the cases we've cited Tompkins, Gilmore, and so forth.

It was admitted that if the State or the city had the public facility, they could not bar people from the use of them on account of their race, but the closing of the facility was the exercise by that locality of its constitutional right to decide whether it would operate the facility at all.

This was a power reserved to the city fathers which the Constitution has not taken away.

And we say that if this Court decides that it can say to Prince Edward County, you ought to lay the following levy, you are to appropriate the amount raised by that levy to the public -- to the School Board and that they are to use it to operate the following schools, in other words divest every citizen of Prince Edward County, every elected public official of Prince Edward County with any control of the system and Your Honors running then I say this will be the first time in the history of this nation that this Court has ever undertaken to say, we can order a locality to lay a tax and carry out a program which we think should be carried out.

It will be the first time in which this Court has said a local option statute violates the Equal Protection Clause of the Fourteenth Amendment.

And constitutionally of course, there is no difference whatever between public schools and public parks, and playgrounds, and libraries, or any other public facility.

The decisions of this Court had made that perfectly clear that you can't discriminate on the account of race in schools or parks, or playgrounds, or anything else.

If it's a public facility, it's constitutionally identical.

Consequently, you can close the parks and the swimming pools, and the playgrounds which you unquestionably can do under the decisions then a locality may close its public schools.

Justice John M. Harlan: Would that be that the argument of this case [Inaudible]

Mr. R.d. Mcilwaine Iii: No sir, I do not think so.

I don't think that it can be argued that there are anymore public schools and going back to Mr. Justice Stewart's question, you can argue that a school which has students, which -- who have had tuition grants under the GI Bill of Rights are public schools.

When I returned from the Pacific World War II, I went to the University of Virginia with a lot of veterans, and that the University of Virginia received an awful lot of federal money and that didn't make the University of Virginia an instrumentality of the Federal Government.

And I can take it one step further, there were certain people, a vast number of veterans I submit who returned from the war and went to Princeton and Harvard.

And I submit that millions of dollars were paid to Princeton and Harvard on their account and that neither Princeton nor Harvard ever became an agency of the United States Government simply because the money was paid.

That's all what's done in this case.

No control, nothing.

Justice John M. Harlan: [Inaudible]

Mr. R.d. Mcilwaine Iii: No sir, they are not.

They are not.

The people in Prince Edward County, the white people formed a foundation.

They went out.

They got contributions.

They built a school.

They used -- made their schools and churches as Mr. Gravatt has said.

They offered an educational program. The same opportunity was available and as the Fourth Circuit found, the Negroes declined property systems in undertaking exactly the same program for themselves.

But it is my view that the simple payment of money to a child in reimbursement of tuition, whatever type of school the child may select to go to, no more has the effect of converting that institution into a public school or public institution than does the Federal GI Bill of Rights converted Princeton and Harvard into agencies or instrumentalities of the United States government.

Chief Justice Earl Warren: Your -- do your teachers maintain any connection with -- with the state government or the local government?

Mr. R.d. Mcilwaine Iii: No sir, not as such.

They do, they are permitted to maintain their retirement here under our retirement system.

Chief Justice Earl Warren: Now isn't that -- isn't that a part of their compensation?

Mr. R.d. Mcilwaine Iii: No more so than social security for Princeton and Harvard educators would be under the Federal Government Your Honor.

Chief Justice Earl Warren: Well they don't -- they don't have any social security except for people who are working for them, do they?

Mr. R.d. Mcilwaine Iii: I submit that any -- the persons working for Princeton or Harvard University.

They maintain a relation to the Federal Government by virtue of their social security.

Does this make them a government agency?

Chief Justice Earl Warren: Well now, we had a different situation here.

Here you have teachers who build up certain rights under your pension system and then you abolish the public schools and set up -- you let them set up what they claim to be private schools.

And still the State says, “We'll recognize your pension rights and the time that you put in, in these private schools will enlarge your rights under our pension program” and that means paying state money to them, doesn't it?

Mr. R.d. Mcilwaine Iii: It means -- yes sir --

Chief Justice Earl Warren: Well --

Mr. R.d. Mcilwaine Iii: Under the agreement for the pension plan.

Chief Justice Earl Warren: Then you are in the sense maintaining these teachers under your public school system, aren't you?

Mr. R.d. Mcilwaine Iii: No sir because that isn't a public school system.

That is a retirement plan which operates for a wide variety of citizens in Virginia.

It has no relation to the public schools any more than social security does.

Chief Justice Earl Warren: Can anybody who isn't in the school system get into the teacher's retirement system?

Mr. R.d. Mcilwaine Iii: No sir, not the teacher's retirement system, that's just (Voice Overlap) that is one face of that --

Chief Justice Earl Warren: That's what we're talking about here, the teacher's retirement system.

Mr. R.d. Mcilwaine Iii: That is --

Chief Justice Earl Warren: And they were in the retirement system, you close your public schools and these people are still in your teacher's retirement system under the state educational system, are they not?

Mr. R.d. Mcilwaine Iii: Yes sir, but they are in the teacher's retirement system.

Chief Justice Earl Warren: Now how do you -- how could you justify that on the basis of them having no connection with the public school system?

Mr. R.d. Mcilwaine Iii: Because Your Honor, the state retirement system, the teacher's retirement system is a segment of an overall state retirement system in which (Voice Overlap)

Chief Justice Earl Warren: I know it's a segment of -- it's a segment of the school system.

No one can get into that system except the school teacher.

Mr. R.d. Mcilwaine Iii: Well --

Chief Justice Earl Warren: Certainly you know that.

Mr. R.d. Mcilwaine Iii: So far as the teacher's retirement system but --

Chief Justice Earl Warren: And that's what we're talking about and that's all I'm talking about.

Mr. R.d. Mcilwaine Iii: Alright.

So now, I say that that raises no more relation between the teacher and the State for the purpose of constituting that institution in which the teacher performs her function a state institution than does social security granted by the Federal Government to teachers in Princeton and Harvard make that institution a Government institution.

Chief Justice Earl Warren: In any other part -- in any other part of Virginia can any school teacher in the private school get into your public retirement system?

Mr. R.d. Mcilwaine Iii: Yes Your Honor.

Chief Justice Earl Warren: They can?

Mr. R.d. Mcilwaine Iii: Yes Your Honor.

Chief Justice Earl Warren: In what manner?

Mr. R.d. Mcilwaine Iii: By simply -- by filing under the system.

I am certain that that is correct.

I will certainly check it but I'm --

Chief Justice Earl Warren: I'm sure that (Voice Overlap)

Mr. R.d. Mcilwaine Iii: -- that it pertains to any private -- any private teacher.

Chief Justice Earl Warren: Yes, I wish you would.

Mr. R.d. Mcilwaine Iii: I would like to confer by doing a rebuttal.

Chief Justice Earl Warren: Very well.

We'll recess now.