CALHOUN v. LATIMER

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Argument of Constance Baker Motley

Chief Justice Earl Warren: Number 623, Fred S. Calhoun et al., Petitioner, versus A. C. Latimer et al.

Senator Motley.

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

This case filed in January 1958 involves Atlanta, Georgia's school desegregation plan before this Court for review upon the granting of a writ of certiorari is the judgment of the United States Court of Appeals for the Fifth Circuit.

That judgment affirmed, as modified, in order of the trial court by 2-to-1 decision.

Judge Richard T. Rives dissenting on the original hearing and on petition for rehearing.

The trial court flatly refused to discard Atlanta's original court-approved plan which became effective in September 1961.

Now, before getting to the facts in this case, I would just like to briefly state what we believe to be the issues presented by this case.

The first issue here is whether Brown allows a School Board to reassign Negro children on a racial basis and then require them to apply for transfers to white schools.

Or whether Brown requires southern school authorities which established separate system, one for Negroes and one for whites to now integrate those systems into a unitary nonracial system by doing away with the dual school zone lines upon which the dual school systems are based.

Now, the second issue presented by this case is whether the Court of Appeals' approval of a greater year plan, nine years after this Court's first Brown decision, comports with this Court's present concept of deliberate speed.

The third issue involves the teachers.

Here, it takes the form of whether Brown precludes the State from maintaining Negro and white schools, by maintaining separate staffs.

The plan presently before the Court evolved from a plan approved by the trial court in 1960.

The trial court approved the plan which provides for a greater year beginning with the 12th grade and descending a greater year thereafter.

Under the plan, Negro children were all reassigned to Negro schools and white children were all reassigned to white school.

Then the plan permitted children in the 12th and 11th grade, two grades in which the plan began because the year was skipped by the trial court awaiting action by the Georgia Legislature, children in the grades to which the plan applies are then permitted to apply for transfer.

And those transfers were then considered with relation to 17 pupil assigment criteria, which in practice, as the record showed, applied only to Negroes seeking transfers to white schools.

Now, this plan, which the trial court approved in 1960, continued the separate school zone lines on the elementary school level.

There are separate zones which related to the Negro schools and then there were separate zones which related to the system of white schools on the elementary level.

The trial court's plan continued the feeder system which begins when you graduate from elementary school in the 7th grade and you go to high school in the 8th grade.

The feeder system feeds three or probably four elementary schools into a previously designated high school, so that the high schools, in effect, do have zone lines consisting of the three or four elementary school zone lines which feed into their high school.

So the court-approved plan in the first instance continued that system.

Justice Potter Stewart: I'm not sure, Senator Motley, I completely understand the system in Atlanta.

The -- there is no junior high school --

Ms Constance Baker Motley: That's right.

Justice Potter Stewart: -- such as the --

Ms Constance Baker Motley: No junior high school.

Justice Potter Stewart: But high school -- high school, on the other hand, begins not on the 9th grade, that's what --

Ms Constance Baker Motley: But in the 8th.

Justice Potter Stewart: -- I'm familiar with, but in the 8th.

Ms Constance Baker Motley: That's right.

Justice Potter Stewart: For five -- high school is for five years.

Ms Constance Baker Motley: That's right.

Justice Potter Stewart: And these are separate school buildings, the high school, do they?

Ms Constance Baker Motley: Yes, sir.

Justice Potter Stewart: And larger schools than the elementary school.

Ms Constance Baker Motley: Yes.

That's right.

Justice Potter Stewart: So that they accommodate generally the pupils from three or four different elementary schools.

Ms Constance Baker Motley: Yes, sir.

That's correct.

Now, in 1962 after the plan had been in effect a year, we went back into the trial court and tried to get a new plan.

And the trial court refused to discard the plan which it had approved.

Then when the case got to the Court of Appeals, the Court of Appeals modified the plan to require the application of whatever criteria were being used by the School Board at that point to all students seeking transfer, not just Negro students.

The evidence in the trial court showed that Negroes applied for transfer between May 1st and May 15th each year.

Then during the rest of the year, when Negroes sought transfer to Negro schools and whites to white schools, they were permitted to transfer on the other criteria or they were called informal transfers.

So that the plan operated only as to Negroes seeking transfers to white schools and the Court of Appeals said, "You can't do that.

Whatever criteria you use have to apply the old transfers."

In addition, the Court of Appeals said, "You should apply with criteria of the plan when children leave the elementary school going to high school.

The plan should be applied it said, to all students new to a grade which the plan had reached."

And in 1964, which is this year, the plan will reach the 8th grade.

So the trial -- the Court of Appeals said, "Now, when those children move from elementary school, apply the criteria of the plan.

They are new."

And those were the major modifications.

But the Court of Appeals' plan permitted the continuance of the dual zones for the elementary school level.

This is the foundation of the separate school system, the dual zone.

It also --

Justice Potter Stewart: The -- these zones overlapped geographically?

Ms Constance Baker Motley: Yes, the superintendent testified that where the areas are mixed racially --

Justice Potter Stewart: Yes.

Ms Constance Baker Motley: -- with respect to the housing.

They will, in effect, overlap.

That's in the record.

Now, the --

Justice Potter Stewart: You mean they will take in one house and the -- and the house right next door would be in a different zone and then the one next to it will be in the first zone?

Ms Constance Baker Motley: Well, what happens is that Atlanta is such a large school system that it's divided into five administrative areas.

Each administrative area has a supervisor.

And those -- that supervisor gets together with the principals in his area and they determine the lines.

Now, there's one area called "Area 1" and that is the Negro school system and it has a Negro supervisor.

And so he gets together with the Negro principals in the Negro elementary schools and they determine the lines for the Negro elementary schools.

And these lines are related largely to the problem of capacity of the school.

You see, they draw a school zone line not with -- with relation to proximity alone because you may not be able to fill the school.

So you draw the line until the school is filled with its capacity.

And then when Negroes live in outlying areas, the original trial record show, they will bust in from their white area where they live into a Negro school.

Now, that original record isn't before the Court but the School Board appeal in this case.

And they didn't go through with their appeal but they printed the record and -- and that will -- that earlier testimony is there.

Now, the Court of Appeals also postponed indefinitely, as the trial court did, consideration of the teacher issue.

We had urged trial court to require the School Board now to come in with a plan for reassignment of teachers on a nonracial basis because as we pointed out, the Brown case talked about systems, a transition from a segregated system to a system not operated on the basis of race.

So the Brown case required disestablishment of the dual systems which meant, as we see it, not only the reassignment of pupils on some reasonable nonracial basis but the reassignment of teachers and the elimination of all other distinctions in the operation of the school system based on race.

Now, in their brief in this Court, the respondent's claim that beginning in the school year 1964, there will be one criterion applied with respect to request for transfer and that is proximity.

However, their plan will still require students in grades 9 through 12 to apply for transfer that is under the plan, as it has operated so far, there are 150 Negro students, approximately, attending white schools -- white high schools.

Now, the other Negro students who are still in Negro schools in grades 9 to 12 still have to apply for desegregation under their plan.

Their plan will apply the proximity criterion to those leaving the 7th grade and going to the 8th grade this year.

Now, that's proximity criterion, as I have pointed alone, is not sufficient if you live near a school.

That's not a good test because you may live in a densely populated area.

And you may have a school to accommodate 600 or 800 and there are 2000 in the area, so it's not proximity alone but they propose to assign children on that basis.

Now, in Atlanta, most of the Negro high school children live near the Negro high school.

And they're overcrowded.

Our Exhibit 7 gives all of the figures on the overcrowding in the Negro schools and the superintendent admitted that the problem of overcrowding was greater in the Negro schools because there are fewer Negro schools although Negroes are 45% of the school population, so that, that's an insufficient criterion on which to permit people to transfer.

We say that what they should do is to draw a school zone line which relates to the capacity of the school because they have -- I think in the record it shows 13 white high schools un-enrolled whereas every Negro high school, there are only five, now, has overcapacity.

The turn -- the high school has -- 1000 more than it was build to hold for example.

Now --

Justice Potter Stewart: Would you agree that subject to problems of physical capacity that proximity of home to school is -- is relevant -- a factor as any and --

Ms Constance Baker Motley: Yes, it -- it's a relevant factor, yes.

But as I say, proximity alone is not the basis on which they draw these school zone lines or nor could they because the population maybe dense in one area and sparse in another.

Justice Potter Stewart: Yes.

Ms Constance Baker Motley: So that the lines as actually drawn relate to capacity.

Now, under the present plan, as set forth in their brief, in grades 1 through 7, the separate school attendant's area line, which the superintendent describes at page 61 to 62 of the record, will remain in effect in grades 1 through 7, the separate school zones.

And students in these grades cannot even apply to transfer.

Now, when the plan ultimately reaches the first grade in 1971, then they will apply to students entering the 1st grade, the criteria of the plan which as they say now the criterion, which they say is now proximity.

So that beginning in 1971, for the first time in Atlanta, we will have the plan commencing in the 1st grade on the criterion of proximity alone and that will move up a greater year until it gets to the 7th grade.

So that in 1978, we will, for the first time, have the separate zone system eliminated.

In short, Atlanta will finally desegregate their schools 18 years after the plan was first approved.

And almost a quarter of a century after this Court held racial segregation in public education unconstitutional.

Now as I say the first time --

Justice Potter Stewart: I don't think -- I don't think I follow that.

I should think in 1970, we're talking about six years, but I should think in 1971, there would be, as I understand the plan, a -- a complete desegregation.

Ms Constance Baker Motley: No, sir.

In 1971, the plan would have allowed everyone in the school system from 12 to 1 to apply for transfer.

Justice Potter Stewart: Right, and -- but also in that year in the first grade, there's no application involved (Voice Overlap).

Ms Constance Baker Motley: That's right.

You -- you will then be -- the criteria of the plan which is proximity would then be applied.

Justice Potter Stewart: Yes.

Ms Constance Baker Motley: But everyone in grade 2 will still be in a desegregated school only if they have applied and have met the criterion and has been accepted.

Justice Potter Stewart: If they have applied the previous year, second years from the second grade through the 12 --

Ms Constance Baker Motley: That's right.

Justice Potter Stewart: -- they've applied in previous years, previous to 1971, they will have been and --

Ms Constance Baker Motley: That's right.

Justice Potter Stewart: (Voice Overlap)

Ms Constance Baker Motley: -- if they have applied.

Justice Potter Stewart: And beginning in 1971 in the first grade, everywhere from the first grade and thereafter.

Ms Constance Baker Motley: That's right.

Justice Potter Stewart: Everybody goes to the school in their (Voice Overlap)

Ms Constance Baker Motley: That's right.

And then that first grade moves up.

Justice Potter Stewart: Yes.

Ms Constance Baker Motley: In other words, there's no further application --

Justice Potter Stewart: Right.

Ms Constance Baker Motley: -- because you've been assigned on proximity.

Justice Potter Stewart: Right.

Ms Constance Baker Motley: And for the first time, we will have in the elementary school, people in a grade on the same basis, one criteria.

Now this also starts in the 8th grade this year.

Justice Potter Stewart: Yes.

Ms Constance Baker Motley: The plan will begin to move not down but -- well, while it's moving down, it'll also move up with the 8th grade having been assigned on that criterion.

So they're moving up on the 8th grade and down to the elementary school, then he gets to the first grade, it moves up again on another basis.

Justice Byron R. White: Mrs. Motley, I gather that 1971 would be the first step -- first time that involuntary transfers so to speak would be -- would it be operative at all?

Ms Constance Baker Motley: In --

Justice Potter Stewart: (Inaudible)

Ms Constance Baker Motley: Well, no -- no one will be -- will have been in school.

Justice Byron R. White: For example, in 1971 there is no white child that -- that has to go to a -- to -- to the -- to a school that is closest to his home.

Ms Constance Baker Motley: No, beginning in the 8th grade this year, they will apply that proximity criterion and presumably, there'll be some --

Justice Byron R. White: Just to whites or Negroes alike?

Ms Constance Baker Motley: Yes, in the 8th grade as they move, that is from the elementary school, from the 7th grade to the first year of the high school, the 8th grade, they will apply their single criterion, proximity.

Now if it were school zone lines which they were applying related to capacity, you would have some whites going to Negro schools for the first time.

Justice Potter Stewart: So this September, the first time, there will presumably be some Negro children going to integrated schools against their wishes?

Ms Constance Baker Motley: That's right.

And other things --

Justice Potter Stewart: And some of the white children go into an integrated school against their wishes and those of their parents?

Ms Constance Baker Motley: That's right.

If the criterion, a single criterion is applied and if --

Justice Potter Stewart: Of proximity.

Ms Constance Baker Motley: -- proximity itself results in --

Justice Potter Stewart: Results in that and presumably it will in some cases, will it not?

Ms Constance Baker Motley: In -- in some cases, it might, but the best chance for it to result in integration is to draw those high school lines on the basis of capacity.

So that -- those overcrowded Negro schools will shift into the white high school.

Justice Potter Stewart: Are you suggesting or aren't you that there seems to be lurking in your suggestion perhaps that -- are you suggesting that the Constitution requires the Atlanta School Board to affirmatively, to integrate the races in the school?

Ms Constance Baker Motley: I'm suggesting that it requires them to disestablish the separate zone system which they established.

In the separate zone system, when they redraw those zones, there can be some all Negro schools and some all white schools resulting from residential segregation.

And that's what we say Brown requires you to do to disestablish the separate systems which you established.

And they had established a separate system by establishing separate zones in these separate feeder system.

Justice Potter Stewart: That I understand.

That's a --

Ms Constance Baker Motley: And that's what we say Brown requires you to do.

Justice Potter Stewart: But the -- but assuming that there were no problem of capacity, would a rule requiring children to go to the school nearest their homes, even though this resulted in de facto, all colored schools or all white schools in some instances, would that be constitutional in your view or not?

Ms Constance Baker Motley: It'll be perm -- that rule, I think, would apply once the school system had redrawn the school zone line or whatever the basis for the segregation is.

If they then make the rule, once having disestablished a separate system, if they then make a rule that you go to the school nearest your home and it applies across the board, I think that's alright.

And of course, there will always be people who want to transfer for valid educational reasons like somebody in an academic high school may decide he can't do that work once it transferred to a vocational high school.

Now the second issue is whether the Court's approval of this 12-year plan, nine years after Brown comports with this Court's present concept of deliberate speed.

And I think it's clear that it does not in view of this Court's recent decisions in Watson and Goss.

I think that petitioners -- respondents rather, haven't demonstrated that there are presently any administrative problems in Atlanta which prevent them from immediately desegregating all the schools in Atlanta in September, 1964.

Now the trial judge specifically asked them to come in with testimony to show that the plan which we had proposed to speed it up could not be speeded up and they never did.

And that's on pages 153 to 154 of the record.

Now if there were some administrative reasons within the categories enumerated by this Court in the second Brown decision which prevented after decade desegregation in Atlanta, they would have come in and they would have demonstrated that to the Court.

And in their brief here they'd only suggest any administrative reason which the Court enumerated in the second Brown case why there can't be immediate desegregation.

Now finally on the teacher issue, we say that the State cannot continue under Brown to maintain Negro and white schools.

And the way that maintain Negro and white schools under their transfer plan such as we've had here, is by maintaining separate staffs.

Now the Superintendent testified that the policy was to assign Negroes to Negro schools and whites to white schools.

Teachers apply their contracts approved by the Board but he does the assignment, the superintendent.

So that when a school has an all Negro staff or an all white staff, that labels that school as a Negro school or white school as much as they had put a sign over the door saying Negro and white.

Now they claimed they've eliminated all labels from their records but this is a far more effective label in the judgment on the community than a label in a -- a record book because everybody knows that that separate system means Negro school, white school.

Now we urge this Court to reverse the judgment below and to remand this case with direction to reassign all students in Atlanta in 1964 pursuant to nonracial capacity related school zone lines that each elementary and high school reassign all teachers and assign all future teachers on the basis of qualification and need and without regard to race and remand it with directions through the District Court to enjoin any other distinction in the operation of the school system based wholly on race and color.

I'd like to save the remainder of my time for rebuttal.

Chief Justice Earl Warren: You may, Senator.

Mr. Marshall.

Argument of Marshall

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

This is the fourth case that this Court has reviewed involving school desegregation since its opinion in the Brown cases in 1954 and 1955.

That includes the Prince Edward case which was argued yesterday.

The United States has participated in each of these cases as amicus, not only because of the interest of the United States in the constitutional rights of the millions of its citizens, but also because of its interest on the effect on the education of millions of children in at least 11 of our states from the manner and speed with which the Brown decisions are implemented.

This is the -- the first of the four cases that presents the Court directly with an opportunity to review the application by School Boards and the lower courts of the deliberate speed concept.

The standards of that concept are contained in a very few sentences in the Brown case, Cooper against Aaron, Goss and Watson.

The issue is whether those standards were applied by the court below and by the Atlanta School Board.

I think that it is relevant in considering that question to look at the implementation of the Brown decisions elsewhere as well.

First in terms of the general statistics in the 11 states and secondly, with the respect to the facts showing experience in particular, other cities.

The general statistics do not show widespread compliance as yet with the Brown decision.

In the 11 states of Texas, Louisiana, Alabama, Mississippi, Georgia, Florida, Arkansas, Tennessee, North Carolina, South Carolina, and Virginia, 82% of the school districts are still segregated.

There are 30,000 as of this last fall, Negro children going to school with white children in these States.

That's out of a total of three and a half million white children and about a million Negro children, who are technically going to the schools in desegregated districts that is districts where some Negro children are going with white children.

Justice Potter Stewart: How many -- I'm looking at this, how many white children are going to school with Negro children?

Mr. Marshall: I don't have --

Justice Potter Stewart: The figure would be much larger, wouldn't it?

Mr. Marshall: Yes, it would, Mr. Justice Stewart, much larger.

Justice Potter Stewart: Because I gather in -- in Atlanta and typically elsewhere, it -- when there is desegregation, the Negroes remain a very small minority in white schools rather than vice versa.

Isn't that the picture?

Mr. Marshall: Yes.

Yes.

The number of -- of white children going to schools which have some Negro children in them --

Justice Potter Stewart: Would be a very much --

Mr. Marshall: -- would be much larger, yes.

Justice Potter Stewart: Yes.

Mr. Marshall: The figure on the number of white children going in -- to school in school districts where there are some Negro children and some white schools is three and a half million.

But how many of those are going to schools in which there are Negro children also attending on is not the statistics I have.

In those same districts, there are a million Negro children.

This is out of a total school population in this area of about almost 3 million Negro children and almost 8 million white children.

The percentage of Negro children going to school with white children is a little over 1%.

In part, these statistics simply show no movement at all.

But in part and I think this is true as to the 30,000 children that are going to schools with white children, 30,000 Negro children were actually going to schools with white children in desegregated school districts which contained a total of over a million Negro children, that they show so many facts of the application by the School Boards and the District Courts of the deliberate speed concept.

That the experience in some cities has been that large school districts can desegregate rapidly and that delay is not necessary or even helpful once the start is made at least as an administrative matter.

Now one example of that is here in Washington which was desegregated all at once in 1954 by complete rezoning of a dual school system.

That was done of course in the city with a large Negro population and it was done just a year after the restaurants in the cities were desegregated following this Court's decision in Thompson.

In Baltimore, it was done in all one year in 1954 that all pupils in the entering school in the first year of elementary school or the first -- or the first year of secondary school, being admitted to the schools of their choice and all other children that were already in the school system being permitted to transfer.

The Baltimore Board considered and rejected gradual desegregation approaches.

In Louisville, Kentucky, another large city was desegregation was achieved in one year in 1956, all levels of education in the city were redistricted and transfers were permitted thereafter on the grounds of space, convenience, and individual preferences.

Justice Potter Stewart: Isn't the -- wasn't the entire premise behind the second Brown decision, the proposition that there were -- or might -- there were or might be great variations among communities in terms of their local laws and their -- and very -- many other factors and that -- and that Louisville and Baltimore and Washington might have quite different problems from Birmingham or Augusta or New Orleans?

Mr. Marshall: Well, that's correct Mr. Justice.

Justice Potter Stewart: And -- and the big cities quite different problems from rural areas and so on?

Mr. Marshall: That's correct, Mr. Justice Stewart and I -- I'm --

Justice Potter Stewart: So -- so what is the experience of Louisville really got to do with the problem here and on the experience of Omaha and Nebraska has to do with the -- that of Birmingham, Alabama?

Mr. Marshall: I think this --

Justice Potter Stewart: In view of the basic premise of the second Brown decision.

Mr. Marshall: Well --

Justice Potter Stewart: That these were local problems to be worked with -- locally worked out in --

Mr. Marshall: I --

Justice Potter Stewart: -- individual variations.

Mr. Marshall: I think this, Mr. Justice Stewart.

These are large cities.

They did have completely segregated school districts when they started, when they first look at the system.

The one thing that the Brown decision in Cooper against Aaron -- Cooper against Aaron in all decisions in -- in this field have ruled out as a factor of delay is disagreement with the Brown decision.

And so the emphasis is on administrative problems, administrative problems in rezoning, transportation, the assignment of personnel and that kind of thing.

Those were the factors that Brown specified.

It -- it seemed to me, Mr. Justice Stewart that the experience in these large cities has some bearing, some relevancy at least on -- on the question of whether administrative problems of that sort require a plan which takes until as Senator Motley pointed out 1977 fall to implement completely.

The -- the manner in which this was achieved in St. Louis was in three steps.

In September 1954, February 1955 and September 1955, involving in a step-by-step plan, the junior college and teacher college, the first time and high schools accept the technical ones the second time and the technical high schools and the elementary schools in the third stage and this again, involved complete rezoning and the creation of new mandatory attendance districts with transfers to deal with the problems of overcrowding.

There's also been progress in the cities where there have been severe problems to start with.

New Orleans, they're at now 350 Negro children attending 27 schools, Norfolk, 347 in 12 schools, where the schools were closed at first.

Little Rock, the School Board announced a complete desegregation this fall.

Nashville, the first seven grades have been desegregated with 773 Negro children now in white schools.

As I've said, the relevance of these statistics seems to me to show that urban desegregation as an administrative problem which is what Brown talked about can be accomplished rapidly.

And of course, the Watson and the Goss case suggest in any event that the passage of time since the Brown decisions in -- in itself has altered the situation because the constitutional doctrines are -- are in effect, are no longer novel, they shouldn't be expected.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Marshall: Well, Mr. Justice Goldberg, I -- I think there are two aspects to it.

Some of these statistics that I have referred to show just no movement, it's as if we had to sue every taxpayer to make him pay his taxes or no corporation obeyed the Sherman Act until you brought a suit against them.

That isn't the problem in this case however, Mr. Justice Goldberg.

In this case, Atlanta is under a court order and it's a question of what the court order should be in a city which is already started, which has shown a willingness in fact a determination at first against the good deal of opposition to obey the court orders.

And that, I think the question is whether the plan that in Atlanta is leading with deliberate speed to what is required by Brown which is an admission of all pupils into a racially non-segregated system.

So I -- I think the other problem, Mr. Justice Goldberg, in a -- in a sense can't be dealt with by this Court, has to be dealt with in some other fashion or its legislation now before Congress which -- which would -- would reach it to some extent, but it isn't -- it -- it isn't a question of what an order -- this order against Atlanta should say if there's no movement at all in a school district that is not a problem that this Court can deal with and the order it corrects against the Atlanta schools district.

In our opinion, the Atlanta plan does not comply with the requirements of the Brown decision after this experience in Atlanta and this experience in the contract in three respects.

And that it's convenient for me talking about this to separate the problem in the high schools from the problem in the elementary schools system.

As Justice Stewart mentioned, there is no junior high school system so that the high schools in Atlanta start with the 8th grade.

So first as to the high school system, it is our view that the plan does not conform to the constitutional requirement in the high schools starting this fall despite the fact that some Negro children will be going to school with white in all grades starting this fall including the 8th grade.

And the reason for that is that in the 9th, 10th, 11th, and 12th grades this fall, the initial assignment will still be on a racial basis being a continuation of the assignment from this year and only the 8th grade will be desegregated and what we view as a constitutional manner with the initial race -- initial assignment being totally without regard to race.

Justice Byron R. White: Based on proximity?

Mr. Marshall: Mr. Justice White, I -- I think that in all urban areas, the problem overcrowded schools is such that you couldn't -- couldn't device a plan for school system which didn't take that into account, so you couldn't just assign people to the school that they live nearest to.

But I -- I think that the school system in Atlanta, the high school system in Atlanta is going to have to be reorganized, rezoned.

Some sort of attendance be -- have to be set up for the 8th grade anyway as the School Board itself concedes in its brief.

So I -- I think it was unclear before that, but I think it's now clear in the brief of the School Board and --

Justice Byron R. White: (Inaudible)

Mr. Marshall: That's -- I -- I would accept that, Mr. Justice White.

I don't know but I would accept that.

Justice Byron R. White: (Inaudible)

Mr. Marshall: Mr. Justice White, it depends on why they're there.

The --

Justice Byron R. White: (Inaudible)

Mr. Marshall: I accept for the 8th grade next fall is complying with the Constitution.

What the School Board in the State of Georgia says is going to be done.

They say that the assignments to the 8th grade will be without regard to race, that the feeder system which has been the basis of assignment up until this fall will be discontinued and that there will be a new zoning or new attendances --

Justice Byron R. White: (Inaudible)

Mr. Marshall: Well, Mr. Justice White, if it -- I would say that's up to the School Board.

If -- if they take -- if they just grew circles around each school and took every child that lived in the circle and sent him to a school then I would say that the schools in the Negro neighborhoods are going to end up being overcrowded.

But the Constitution doesn't require them to do that.

All the school districts take into account the residential area and the number of people that lives in -- live in it in a population.

They -- they deal with that either by changing the school district or permitting a free transfer plan or some other fashion.

A school board in Atlanta has shown itself able to deal with these problems.

I'm sure it can.

The second way in which we believe that the Atlanta plan is unacceptable under the requirements of the Brown decision now, is in the weight of desegregation in the elementary schools.

We think that the District Court erred when he refused to reexamine the speed of -- desegregation that's envisaged by the plan and that he erred in fair -- failing to require the School Board to prove what administrative problems if any, prevented a -- an acceleration of desegregation in the elementary schools either to the extent that was requested by the plaintiffs which is to cut it down to two years or even to do it all at once.

The third mistake that we believe the courts below made, was in refusing to order the School Board to adopt any plan at all with respect to the integration of faculty and particularly as to that point I think with that -- with respect to the integration of the faculty in the high schools which will otherwise be completely desegregated in the 8th grade and we believe also in -- it should be required in the remaining grades this fall.

As to the pupil assignment in the high schools, there's no dispute but that that is the desegregation that has taken place in the high schools, has been by a transferred system.

The initial assignment of pupils under the high schools has been by a feeder system.

And under that system, since the lower grades are completely segregated still, all Negro students automatically came out of the 7th grade, went into the 8th grade into five Negro high schools except to these Negro high schools by everyone.

Justice Potter Stewart: Let's see, what's the situation elsewhere in the State of Georgia by way of desegregation of the school?

Mr. Marshall: There is a -- Atlanta, Mr. Justice Stewart, was the first elementary school district in Georgia to desegregate.

At the time they did that as I mentioned briefly before, there was a good deal of opposition, political opposition to it in the State of Georgia.

The School Board of Atlanta and the people of Atlanta faced that problem in -- in the very fine fashion determined to resist school opposing which was one of the things that was threatened.

That was in 1960.

In 1961, they desegregated in accordance with the Court's orders and did it in as far as the Court's orders are concerned, in a fine fashion.

The -- since then, there has been -- there was prior to the Atlanta desegregation, there were Negro students admitted in the University of Georgia.

And since then, there has been some desegregation in Savannah and there is an order in effect for next fall in Albany, Georgia.

There is some desegregation, I believe scheduled for next fall in Columbus, Georgia.

And that's all that I know of --

Justice Potter Stewart: So as of now, in the University of Georgia,

Mr. Marshall: And Savannah.

Justice Potter Stewart: And Savannah.

Mr. Marshall: And Atlanta.

Justice Potter Stewart: And Atlanta.

Mr. Marshall: Senator Motley informs me, there's some in Brunswick, Georgia also that there are six Negro students assigned to white schools in that.

Justice Potter Stewart: Which one -- yes, we all -- this is a -- you talk or I talk about Negro students being assigned to white schools where -- where guilty of unconstitutional talk.

Mr. Marshall: That's right, Mr. Justice Stewart.

I think that -- that is one that -- I think that is one of the problems that has -- has been in existence since the second Brown case in all the Circuits.

Now it's been litigated in all the Circuits.

Now -- but as -- as the deliberate speed concept started to be applied, the -- there is a tendency on part of the School Board, I think this was true of the Atlanta School Board and on them, the court of the District Courts to think about the problem as if it could be solved by taking individual Negroes that applied in putting them through some series of tests and then assigned them to particular white schools.

That's why we have 30,000 out of more than a million Negro children in desegregated districts that are going to white high -- white schools.

The Brown case, both Brown cases in Cooper against Aaron talked about a constitutional requirement for non-segregated school systems.

And I think, Mr. Justice Stewart, as a fair statement to say that most School Boards and until recently, most District Courts have not been looking at it in those terms.

Now in the last couple of years, there's been litigation in all four Circuits that were mainly concerned with this, in the Fifth Circuit, the Fourth Circuit, the 8th Circuit and the Sixth Circuit and the -- all of those Circuits have held and had come up and they have held that the elimination of dual school systems of this overlapping assignment plans that you referred to earlier are -- is unnecessary part of compliance with Brown.

But that has not been clear and I think it -- I think a premise of the Atlanta plan as it started at least, was that the law required no more than a transfer plan.

But as I understand the school --

Justice Potter Stewart: (Inaudible) which we -- was approved by this Court I suppose in Shuttlesworth case, one of the many Shuttlesworth cases --

Mr. Marshall: No, Mr. Justice Stewart.

I'd -- I don't believe that the -- this Court did approve that in the Shuttlesworth case.

The Shuttlesworth case came --

Justice Potter Stewart: Declined to disapprove it.

Mr. Marshall: Sir?

Justice Potter Stewart: We declined to disapprove it as --

Mr. Marshall: No, it -- the issue was different.

The issue was different.

The Shuttlesworth case came up on the face of the statute.

That's all you have.

That's all this Court had was the statute.

If you read that statute, it had nothing to do with transfers.

It had to do with the initial assignments.

It assumed that you weren't assigning pupils on the grounds of residence alone or -- or residence plus a capacity factor, but that you gave them tests and so forth.

And it assumed and you could read the statute on a suit that every pupil, when he first entered school, was going to go through these series of tests and be placed in the school not because of race but because of how we faired on these tests.

But this was talking about initial assignment, not that it weighed --

Justice Potter Stewart: I -- I --

Mr. Marshall: -- it wasn't superimposed, so I think it was quite different.

Justice Potter Stewart: I see.

Mr. Marshall: The courts below referred to this as the Atlanta plan as having been based on Shuttlesworth and -- and some of the factors that they used in judging transfers were but -- but the -- the Shuttlesworth case did not -- did not approve a transfer system.

Now, on the question of the rate of desegregation in the elementary schools, the courts below put the burden of proof on the plaintiffs and not on the school districts and held that there was insufficient evidence in the record now to show that the plan was not reasonable now and to show that the -- it was not proceeding at deliberate speed and they put a good deal of weight also as -- and their weight should be put on this, on the good faith of the Atlanta School Board and on their cooperation in maintaining law and order and on the increase and transfers that the Board approved that after the first year and going on to the second and third year.

Justice Potter Stewart: You say, this original criteria have now dropped out, haven't they?

Mr. Marshall: That's right, Mr. Justice Stewart.

What didn't -- what was not eliminated by the Board itself I think has been eliminated by the opinion on rehearing of the Court of Appeals.

Justice Potter Stewart: So now the only test are what -- if somebody now in the -- in the 10th grade wants to transfer to a different school, what are the -- what are the test?

Mr. Marshall: As I understand it, it's just residence, where did they live?

Justice Potter Stewart: Period and if they do live closer, they automatically can transfer, if they don't they automatically are prohibited from it, is that it?

Mr. Marshall: I -- as I understand the School Board may enlighten on this and Mr. Justice Stewart, but they reprint in their brief, a letter which is not in the record which sets forth the basis on which they judge transfers.

And as I understand that that's it, that the -- they --

Justice Potter Stewart: If they live closer they can, if they don't live closer, they can't and there's no room discretion, is that the one?

Mr. Marshall: That's right.

That's as I understand it.

We think that the burden should've been put on the School Board.

For one thing, the Court's opinions in Goss and Watson indicate that that is so, that the time that has passed since Brown, the experience that we've had since Brown, the fact that the constitutional doctrines are no longer new, requires a reevaluation of -- of speed and the justifications for delay in this kind of a case.

In addition, we think that the experience in Atlanta itself requires a reexamination that the desegregation that has been taken -- has taken place is taking place without problems, once it was over with, it was over with and it's been accepted in the community and in the State, the Board itself has recognized this by easing requirements to some extent to partly under compulsion, partly voluntarily and what tests they gave to transfer applications.

And the court below again realized that to some degree that this should be reevaluated.

But they did not reexamine the situation.

They did not give the School Board or required the School Board again to show what administrative problems of any justified delay which is, as I again say, ends up with the School Board, the school systems not getting clear -- completely in compliance with the Constitution until fall of 1977.

And thirdly, we think that they should have ordered, just reexamined because of the law has become clear.

The premise of the plan had been the transfer and that has been knocked out.

Justice Byron R. White: Mr. General, (Inaudible)

Mr. Marshall: Mr. Justice White, I think that any system which starts with initial racial assignment and depends upon transfers out of schools after that does not comport with the Brown decision.

Now if the -- if the assignment, if it works as it works in Baltimore and the students can go to the -- whatever school they choose --

Justice Byron R. White: (Inaudible)

Mr. Marshall: That's right.

I think that any system which retains a Negro school district, any Negro school district as such to which pupils are assigned because they're Negroes, not because of where they live or something else, but because they're Negroes is unconstitutional.

Justice Potter Stewart: And you think --

Mr. Marshall: And this is transitional, of course and --

Justice Byron R. White: (Inaudible)

Mr. Marshall: It's necessarily required?

No, I think that transfer system, Mr. Justice White and some transfer system is probably administratively required in any school system because of the problems of the capacity, because of the problems of courses being offered in some schools in --

Justice Byron R. White: (Inaudible)

Mr. Marshall: Yes.

Justice Byron R. White: (Inaudible)

Mr. Marshall: Yes.

Justice Potter Stewart: I don't understand your position to be as I think.

You understand it correctly that regardless of what locality we're talking about and regardless of whether it be only a temporary and transitional phase of a rational plan of gradualism, if it's possible to have such a thing that any system which starts out along a preexisting racial school district is per se unconstitutional.

Let's -- let's assume, let me give you a hypothetical case.

I think I'm right or maybe wrong in thinking that Birmingham, Alabama, doesn't' have any school integration as so far.

Mr. Marshall: Yes --

Justice Potter Stewart: Let's -- let's assume that's correct or X City in Alabama.

And let's assume a -- in -- in obedience to a court decree asking the School Board to come out with a plan that they come up with a plan which provides for starting of a long existing line for the school year 1964.

But that by the year with -- with free possibility of -- of transfer on permission of the School Board.

And that by the year 1966, there will be a complete of obliteration on any racial district.Do you think that would be -- that would be unconstitutional?

Mr. Marshall: No, Mr. Justice Stewart.

I -- I didn't mean to indicate that.

I think that any plan --

Justice Potter Stewart: (Inaudible)

Mr. Marshall: Well, I'm sorry, I misstated my position --

Justice Potter Stewart: Perhaps you did (Inaudible)

Mr. Marshall: -- because I think that any -- any plan that does not end up and does not point with deliberate speed towards the elimination of the dual systems is unconstitutional.

Justice Potter Stewart: Now this one does end up that way.

Mr. Marshall: Yes, but as a transitional --

Chief Justice Earl Warren: (Inaudible) next generation.

Mr. Marshall: But that's my -- that's right, Mr. Justice -- Chief Justice.

The question is -- the question is, does it end up in the right place and does it get there with --

Justice Potter Stewart: That's not --

Mr. Marshall: -- deliberate speed?

Justice Potter Stewart: Yes but what the --

Mr. Marshall: Now if it maintains -- if it maintains the dual school system in grades that are being desegregated as this one does, I think it carries in very, very heavy burden to justify that, because why do it?

It's necessarily a delay having a problem with the Atlanta plan I suppose, is that it started backwards.

Justice Potter Stewart: It started from the top down?

Mr. Marshall: It started from the top down.

If you started the plan with the first grade, I can't think there maybe one --

Justice Potter Stewart: You would rather (Voice Overlap) --

Mr. Marshall: -- but I can't think of any justification for continuing the dual school system in assignments so that the first grade.

Now when it goes backwards and I -- and I myself think there's some question whether going backwards can be justified but if it goes backwards and that's over with in this case and started that way, if it goes backwards there maybe administrative reasons during a transitional period where -- where that could be justified.

But as to the high school in Atlanta -- as to the high school, I don't think that there could or any conceivable administrative reasons anymore because they have to reorganize by their own plan.

Justice Potter Stewart: (Voice Overlap)

Mr. Marshall: They have to reorganize this year anyway because --

Justice Potter Stewart: Yes.

Mr. Marshall: -- they've reached the (Inaudible)

Justice Potter Stewart: Yes.

Justice Byron R. White: (Inaudible)

Mr. Marshall: I'm sorry.

Justice Byron R. White: (Inaudible)

Mr. Marshall: Well Mr. Justice White, I did not understand your question.

I misunderstood your question because I -- I did not -- I did not have in my mind the transitional aspect of it.

If it -- if it happens for one year and the plan on its phase contemplates that it's going to end that year and the year after that, there's going to be a -- an elimination of the initial racial assignment, I don't say that that is necessary.

Justice Byron R. White: (Inaudible)

Mr. Marshall: Well, the -- I -- I think that the decisions in the Fifth Circuit in the Bush case and the Escambia case and -- and the Houston case which were cited in our brief except I think, for the Houston case.

The Houston case is at 312 F.2d 191.

I think that they suggest that -- that it's impermissible even as a transitional manner.

However those cases were all concerned with first grade up and -- and this case goes backwards and there are administrative -- potential administrative problems that I can see when you go backwards.

Now, when you have to reorganize the high school zones and everything just for the 12th grade that don't -- that aren't -- aren't in the picture at all when you start with the first grade either the first grade of elementary school or the first grade of the secondary school.

Justice Potter Stewart: Then you -- what you pointed there -- there are Fifth Circuit.

This case is from the Fifth Circuit?

Mr. Marshall: Yes.

Justice Potter Stewart: And you say there are other Fifth Circuit decisions seemingly inconsistent with this.

Mr. Marshall: Well, Mr. Justice Stewart, Judge Bell wrote the decision before it points out what I just pointed out that in the first place, that the other decisions are concerned with first grade plans that's to go upwards.

And secondly that they didn't -- that they didn't necessarily concentrate on the transitional feature as such.

And Judge Bell pointed out that of course this reached his high school, first entering grade of high school next fall.

Now, the court below did say that even though that happened, it's alright to continue the initial racial assignments in the 9th, 10th, 11th, and 12th grades which is something that wouldn't end until 1968.

I do not think that that can be justified, Mr. Justice Stewart.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Marshall: No, I think not, Mr. Justice Goldberg.

I think that our position is this, that the high school system should be reorganized so that the initial or racial assignments are eliminated completely this fall.

Now that is going to be done as the School Board says as to the 8th grade anyway, we -- we do not see any justification and maybe there is one but I haven't seen any events for not doing that as to the entire high school if you're going to do it as the first grade of high school and there's already some desegregation in the other grades.

As to the -- as to the elementary school, we think that the court below should've put a burden on the -- on the School Board to justify not doing -- not accelerating, now maybe they can justify that, they -- they haven't and so I would say that in that respect, with the -- as to the elementary schools that we would go beyond Judge Rives.

Judge Rives pointed only to the next two years and he did not under what he suggests as I understand it, achieved complete desegregation in that time.

He sort of left it to the future whether it went on two year -- two grades at a time or what.

And that thirdly, we think that the -- that the court below should -- should require the School Board to set forth some plan for elimination of segregated faculties.

Chief Justice Earl Warren: Mr. Latimer.

Argument of A. C. Latimer

Mr. A. C. Latimer: Mr. Chief Justice Warren, may it please the Court.

In arguing this case, I find myself in the role of a lawyer who tries his own case.

This came about by reason of the fact that when this suit was initially filed, I was a member of the Atlanta Board of Education.

I am no longer a member of that Board but its attorney.

And I trust that in appearing in this dual capacity that I will not run afoul of the (Inaudible) that a man who represents himself in Court has a full four o'clock.

At the threshold of my argument, I would like to try to explain what the Atlanta plan is and I mean by that, what the Atlanta plan is in 1964, now and in September of 1964 and not what the plan was in 1961, in September, when Atlanta started on the desegregation plan.

But gentlemen, this is a moving thing.

It's an evolutionary process.

Because as we understand the rulings of this Court and other courts, you allow us a pupil assignment plan as a vehicle to go from a totally desegregated system since 1874 when our system was found to an integrated or desegregated system.

And we view that vehicle as something that you allowed us to use, not as a roadblock, but to smooth the way along and they say one picture is worth 10,000 words.

And I saw this cartoon.

It showed a road and there were some bumps in it.

And they showed a steamroller and on the road was desegregation, the Brown decision.

And on the steamroller was pupil assignment plans and it showed the southern city with a steamroller as a roadblock across the road.

We've tried to use that vehicle to smooth out some rough spots and to achieve an end which we know we must achieve.

In this connection, it had been stated that the Atlanta plan was based upon the plan considered in Birmingham, the Shuttlesworth case.

And even in itself, this statement is misleading for the Atlanta plan is initially instituted was almost verbatim, copied from the Birmingham plan which was the only plan that at that time that had received the approval of this Court even in a preliminary way.

But as this plan has devolved, as we began with this plan of Shuttlesworth, including all its various criteria, many of these criteria and many of the things contained in that plan, were voluntarily abandoned by the Atlanta School Board as serving no useful purpose and serving no educational purpose.

Gentlemen at one time, as a placebo or sugar pill, to make some of these acceptable to our community, there were many things in the plan such a many parents requested that we put in the plan and have the Court approved it, the right to segregate by sexes.

Let the girls go to one school and the boys to another.

It's never been used.

It's not contemplated to be used.

It's not even a (Inaudible).

But many of these criteria are hurdles that were there, were put there following what we thought Shuttlesworth had said that these criteria could be used as a transfer complaint.

Now during the first year, the record shows that only three of the criteria we use, we did the first year.

I will admit unconstitutionally test all of the applicants for transfer and that application on his test must make a score which would equal the average of the grade to which he sought transfer.

And it was pointed out to us that you have some Negroes do it, though not as well qualified and you also have some white students who possibly wouldn't pass that test.

So the second year --

Justice Potter Stewart: Obviously you have many white -- white students, who would be below the average, wouldn't you?

Well, you're conceding this anyway.

Mr. A. C. Latimer: Yes sir, that's right.

Now during the second year, no special tests, I want to show a motion, a movement forward.

During the second year, no special tests were given to these children.

We simply used a citywide test that all children take.

We're constantly testing our children in the school system to determine if the product we are selling or developing is progressive.

So we did away that.

That shows some motion forward.

We did away with that special test.

Judge Rives even on his -- in his dissenting opinion, said that we gave the personality test.

We did give a personality test the first year of 1961.

Now if it please the Court, that test was to try to make the Atlanta plan work.

He was to bring these kids in and tell them, "Look, here's what's expected of you.

Here's what we're going to do.

Here's what we expect of you.

And this plan must work because this community devoutly wanted this plan to work."

Now, let me say this that generally speaking at Atlanians and Georgians did not want to start on a program of desegregation.

But above that desire was a desire to be law abiding and two, under no circumstances with my community ever abandon public education.

Our few section that of our community, for what was known as the pupil tuition grants acts, as we thought unconstitutional and not serving any useful purpose to our community and quite expensive.

Now in 1962, we infringed, in 1963, we went further.

No special tests were given.

No personality tests were given.

But the tests that were normally and routinely given in the schools was still greater and those who did not meet the average of the medium of the class to which they saw transfer, were denied.

Judge Bell's opinion came out and by the way, I think possibly had Judge Bell reversed that case, we might not be here.

But in essence, he pointed out to us what our deficiencies were and even on the 63 assignments, all those who had in the sense been tested out or called back in and this criteria was used and this only, do you still want to transfer?

Yes.

Well now, you must live closer to the school to which you seek transfer, then the school from which you came, which we think is -- is constitutionally acceptable.

Now, we exa -- reexamined all of these pending transfers and granted it.

Atlanta points with pride to these accomplishments, but in reply, our opponents say that we still operate a dual or biracial system of schools.

And that our plan will never accomplish complete desegregation.

In addition, they say that in terms of results, we promised an eagle and produced only tomcat.

That after three full years, under this Atlanta plan that some 150 Negro students are now attending formally all white schools.

Now, viewed in terms of numbers, this argument is a powerful one.

Even allowing for the factors of geography and residential patterns which the lower courts recognized taken in prospective however, any argument based on numbers alone is -- is an argument that has got to be -- you've got to take into consideration when you're talking about numbers, the overall plan and it's all like the story of a man who hired an itinerate mathematician to work for him, told him he would pay him one cent a day and double it each day thereafter.

And if you recall that story, the -- on the 10th day, he owed him $10.23 I think, it was.

At the end of 30 days, the 30th day it was $5 million and some $23 million or $24 million over the whole 30-day period.

Now, we bring that story to illustrate this.

We don't propose to take 30 years to desegregate the Atlanta system.

We don't propose to do it tomorrow if we allowed gradualism.

But we do want to show that Atlanta plan and in the mean voluntarily is in motion and has moved forward.

Now --

Justice John M. Harlan: (Inaudible)

Mr. A. C. Latimer: Yes, sir.

Justice John M. Harlan: (Inaudible)

Mr. A. C. Latimer: Yes, sir.

But we want to point out this --

Justice John M. Harlan: (Inaudible)

Mr. A. C. Latimer: Yes, sir.

I agree with you.

I would say this that they reassigned 100,000 pupils overnight incidentally, would create many problems.

Many problems nothing to do with race but you would disrupt neighborhood patterns, you would disrupt transportation patterns, extracurricular activities and such.

But I think when -- let me say here if I may, what is the Atlanta plan today?

Now, for and what the Atlanta has done voluntarily, following what Atlanta learned from other District Court and Circuit Court cases and your various rulings and followed after the rather extensive surgery in Judge Bell's opinion.

Here's what the Atlanta plan is in 1964, it's first, choice, second, space, third, proximity.

Now, let me explain that if I may.

Traditionally, Atlanta has been what we call an open city and the reason for that was that boys all and girls all over the city went primarily to Boys High School, which was downtown and Girls High School, which was downtown, and they came from all over the city.

And at 2 or 3 o'clock when they went home to (Inaudible) the community because everything merged through the center of town, transportation-wise, so we went back to a community high school and we took our old junior highs and converted them to high schools.

Now, that policy of children going pretty much where they want to has still remained in the Atlanta system.

Normally and ordinarily, children go to the school nearest to their home.

So we would like if we may, be permitted to do so because we think that's best by our community to let children, pretty much have and their parents a choice of where they go to school.

Now, you would recognize immediately that administratively, if they all decided to go to the same school, and some schools are just an old school, some a little bit of area than others and such.

That the administrator and you've recognized it all through your writings that the local School Board has to run the school system, that the local administrator, the superintendent then, would have to use some way of determining whether that who's -- shall go to the school if more apply for the school than we have facilities.

So then you would use proximity as a limiting factor there.

That is three children apply for the same seat in the school room, in the same building.Now, how do you go and determine which gets the seat?

Well, the one that lived nearest to the schoolhouse.

Justice Potter Stewart: Assuming you only have one seat available.

Mr. A. C. Latimer: Yes, sir.

But -- and we are -- some 580 classrooms shy and we have --

Justice Potter Stewart: Yes.

Mr. A. C. Latimer: -- build it day and night to cure that.

Now, as far as the plan is concerned, one of the complaints of the petitioners is, you come down 12, 11, 10, 9, you're down to 8.

Nine, eight, where the feed of system takes hold, the Court has told you and this was part of the surgery that you must now reassign those children that go -- formally went -- Negro high -- Negro -- formally all -- Negro all elementary to Negro high, formal white to white high.

Now that you must reassign these children with an evenhanded, in an evenhanded manner, without regard to race and that we are going to do.

And on that basis, the child can go to the high school of his choice leaving the 7th grade, going to the 8th grade with these factors that I've enumerated, taken in proximity and so forth.

Now, that does away certainly with the 8th grade with the duel system, but you say, what about the poor kid in 9, 10, 11 and 12, who didn't make it here on that magic date and get an original assignment or reassignment?

Well, it's this simple.

Since Judge Bell's surgery, the difference between a transfer and assignment in Atlanta is tweedle-dee, tweedle-dum.

Now, let me illustrate.

Assume a colored child lives directly across from a formerly white high school and he's in this 9th grade we're talking about, he can get there simply by he and his parents going across the street and going through the ordinary process that any child goes through, to be admitted to a school.

We have pre-registration as you do here and everywhere, go there and let it be known that he wants to go there and it will be granted.

In other words, since Judge Bell's opinion, we believe that all that is left of the Atlanta plan is a greater year from seven down.

Now, it is true, if they charge us with a biracial system there, that is true, but we thought Shuttlesworth -- Shuttlesworth approved that.

That is, you fire the gun on opening day, each went back to the schools where they formally attended with a right to transfer out.

Now, in most of those cases you read, if it please the Court, you will find that there are method of getting out.

They had to jump a lot of hurdles.

Did Judge Wright said in the Bush case, they had to stand muster.

Some of the judges said, they had to ask for something that'd already been granted to them.

Now, we've tried to give a free system of transfers, because in 1963, after Judge Bell's opinion came down, we called in each one of the applicants, asked them if they wanted to be transferred and all who lived nearer to the formally white school who still wanted to go there, were transferred.

Now --

Justice Potter Stewart: You said, the initiative came from the Board, you -- you asked them if they wanted to be transferred or did you require them to.

Mr. A. C. Latimer: No, sir.

Justice Potter Stewart: Where is the initiative now?

Mr. A. C. Latimer: We -- no, sir.

We contacted each one and their patents, we asked them to come to City Hall where the --

Justice Potter Stewart: Yes.

Mr. A. C. Latimer: -- School Board is.

Justice Potter Stewart: Yes.

Mr. A. C. Latimer: Met there and explained to them that we had been operating under one theory but that we have been told we could not do that.

That they had a constitutional right and we wanted to give them that right and afford them that right that even though it was late in the day, we would speed up everything in the way of processing their transfer.

And some 40, 50, 60, I don't remember how many, said, “Yes, we still want to transfer,” and they were, and they win.

Justice Byron R. White: How many --

Chief Justice Earl Warren: Mr. --

Justice Byron R. White: (Inaudible)

Mr. A. C. Latimer: There's a total of about 24, is my recollection, Mr. Justice White.

Justice Byron R. White: High schools?

Mr. A. C. Latimer: 24 high schools of which some eight or nine, possibly ten are predominantly Negro high schools.

Justice Byron R. White: (Inaudible)

Mr. A. C. Latimer: Not many, not many.

We built a new Harper High School, it's right lush, right then, so many want to go to Harper that we've had refused some of the transfers because it's becoming overcrowded but --

Justice Byron R. White: (Inaudible)

Mr. A. C. Latimer: On the 1964 plan.

Justice Byron R. White: (Inaudible)

Mr. A. C. Latimer: Yes, sir and they go to the nearest high school, they simply by the informal method --

Justice Byron R. White: (Inaudible)

Mr. A. C. Latimer: They may, because of choice, space, proximity.

Justice Byron R. White: (Inaudible)

Mr. A. C. Latimer: Yes, sir.

Well produced -- sometimes that's for good educational reasons.

We had a boy that wanted to go to West Point and he couldn't find the particular math course in the high school that was merely across the street from it.

For good educational reasons, he went across town.

Now, I would not say we would encourage that because I don't -- I think a kid could use his time a whole lot better studying on the athletic field and going way across town and our transportation is --

Justice Byron R. White: (Inaudible)

Mr. A. C. Latimer: No, sir.

Justice Byron R. White: (Inaudible)

Mr. A. C. Latimer: No, sir.

Justice Byron R. White: (Inaudible)

Mr. A. C. Latimer: We have in Atlanta, K 7125 V, as kindergartens, seven years of elementary school, five years of high school, 12, total and V, vocation.

Now, we don't have three changing theories.

Ordinarily and normally, a child goes to two schools in Atlanta, he goes to an elementary school for seven years.

He then leaves elementary schools and goes to high school.

Now, without taking up any time to explain those systems which was constitutionally defective, the feeder systems faired into the high schools.

Now, the child leaving the 7th grade will receive an initial assignment, a call to transfer, call it anything you want to.

When he leaves the 7th grade, that child now has a choice of attending the high school of his choice.

Now, if it -- that fills up, then you use proximity as a limiting factor to determine which child gets the seat.

Justice William J. Brennan: I gather the exercise of that choice have to be at the 7th grade?

You said under some pre-registration system, he goes to whatever is the high school of his choice.

Mr. A. C. Latimer: Yes sir, we have pre-registration.

They go and let it be known why --

Justice William J. Brennan: But mechanically, is that the way he does it?

Mr. A. C. Latimer: Yes, sir.

That's the way the -- and -- and that's the way he still and has always done except in the past, you --

Chief Justice Earl Warren: Mr. Latimer, I understood Senator Motley to say that as a result of your segregationally organized zones in the city, all of the Negro high schools were overpopulated.

One of them to the extent of 1000 overpopulation and that your white high schools were underpopulated, how -- how do you justify that if -- if -- on the basis of -- of proximity and all these other factors that you reviewed, why do you continue to maintain that situation when it deprives students of a fair opportunity for a good education?

Mr. A. C. Latimer: Mr. Chief Justice Warren, that is a real good question and it's one we wrestle with for the past 13 years that have had anything to do with Atlanta school system.

Chief Justice Earl Warren: And they won't be --

Mr. A. C. Latimer: We've --

Chief Justice Earl Warren: -- cured until 1978 if then.

Mr. A. C. Latimer: No, sir.

It won't be cured then because of the changing neighborhood patterns of urban remote --

Chief Justice Earl Warren: Yes.

Mr. A. C. Latimer: -- renewal, the express way systems and such.

Chief Justice Earl Warren: Yes.

Mr. A. C. Latimer: We have in any fine schools, may it please the Court, that because of the -- the neighborhood going to industrial and commercial and nothing to do with race, the patrons have moved out.

Chief Justice Earl Warren: Yes.

Mr. A. C. Latimer: There are other areas, white and Negro, this is not peculiar and the record shows, this is not peculiar distantly, but that in many areas that are fast growing, we can't keep up with them.

Now, the immigration of the Negro to Atlanta is as largely proportionate as it is to Chicago and other Eastern City, it is tremendous because we have labor market there and we have certain things that we are proud of there.

But one reason for the overcrowding of the Negro schools, more so than the white, is because the attendants charts show the white within the city limits, population going down and the Negro population going up and they have met, I think, in last year or so.

But --

Chief Justice Earl Warren: But by reason of the fact that you have a larger number of white high schools and a smaller number of Negro schools and approximately, the same number of students of both -- both races through your -- your segregated zoning, you do require colored students to go farther from their home to -- to get to a colored high school.

Now -- now, how can you justify, basing that kind of segregation on the fact that you're just trying to evolve this situation when at the same time, you are actually depriving children of a decent education when you have the space there and the facilities for give them -- giving them the -- the opportunity for a good education if it wasn't for your racial segregation by zoning.

Mr. A. C. Latimer: Now, let me answer that two-way, if -- if I may please Mr. Chief Justice Warren.

One, when are we talking about?

Now, if 1961, 1962 --

Chief Justice Earl Warren: I'm talking about from -- from 1954 to 1978 -- from 1954 to 1978 when you say that the segregation will be eliminated.

Mr. A. C. Latimer: No, sir.

We consider the time it began, September 1961, when we started.

And in those three short years, we think, we've taken monumental strides, but to try and answer your question, in the first place, we do not have attended zones.

Now, the record, page 61, 62, 77 show that there are some lines in Atlanta but those are administrative lines.

We divide the city into four or five administrative areas, where we have an area superintendent and they have under them what we call super teachers, resource people, you see.

Now, that has nothing to do with attendants' signs as far as school is concerned.

Now, to go on to answer your question --

Justice Arthur J. Goldberg: (Inaudible)

Mr. A. C. Latimer: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. A. C. Latimer: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. A. C. Latimer: Well, now, Mr. Justice Goldberg, we do that for this reason.

To view in effect, you -- it is historical, you must go back and put yourself in the situation, the place and the times.

Now, under state law and I know under the Cooper ruling that that doesn't give us any comfort but it is a fact, sir, that our funds would be cut off, we were subject to go into jail and all these factors.

Judge Hooper, the District Court Judge in his wisdom, said, “I want the people of Georgia to decide that.”

So he deferred the due date from September 1960 to September 1961, he said, I will make it catch up two years.

Now, that's the reason we consider that we started.

Now, I know your writings in Goss or Watson that says that time there has been sharply limited, and I agree.

Except for this that we consider that's when we got the show on the road.

Now, as far as the Chief Justice's question is concerned, I -- I'd like to try to finish answering that if may.

Under the system that will attain in Atlanta on September 1st, 1964, that half empty high school, white, predominantly white or formerly all white, can be filled up with whites or Negroes or students simply by making it known that they want to go there.

This may be one way of filing up those empty classrooms, Your Honor.

Chief Justice Earl Warren: Well, why do you transfer them away from their home and make them -- make the request to come back close to their home when you have -- in the school, you're sending them to is overcrowded and the school that's close to their home is under you?

Mr. A. C. Latimer: Your Honor, I plead guilty to that as -- but pass but we say so that in all due respect, that that's ancient history, now, that has been abandoned.

Chief Justice Earl Warren: Well, it can't be very ancient history because you only have 150 some Negro students in the whole system now.

And how long is it going to take to -- to fill up that unused space and how long is it going to take to -- to take away the overpopulation in the overcrowded Negro schools?

Mr. A. C. Latimer: I think it would probably take the rest of my lifetime and the lifetime of my son, who's watching me in the Court today, and I mean that.

I don't mean to be --

Chief Justice Earl Warren: I don't think (Voice Overlap) --

Mr. A. C. Latimer: -- disrespectful.

But I -- I mean that --

Chief Justice Earl Warren: (Voice Overlap)

Mr. A. C. Latimer: -- we have such a fast growing system.

That in the few years, I've had anything to do with it, we spent some $40 million or $50 million, a bond money to build new classrooms and as soon as we get one school, Collier Heights for instance through, we have to go back and double the size over there.

Chief Justice Earl Warren: And still you have -- still you have vacant space, a lot of it just because you segregate your school system 10 years after the decision of Brown versus Board of Education.

Mr. A. C. Latimer: No, sir.

Let's take Bass High School, formerly all white.

Bass High is in a -- in an area which is going industrial and commercial.

Let's say that its capacity is 1500.

Let's say, they illustrate its now down to 900.

Chief Justice Earl Warren: But 900 there with a capacity of 1500.

Mr. A. C. Latimer: Yes, sir, alright.

Now, let's take Howard High School.

Chief Justice Earl Warren: Well, let's take that one, how many Negroes have you put into that school?

Mr. A. C. Latimer: We haven't put in any because we were going with this vehicle at that time on an assignment basis.

Now, Your Honor, we'd -- we can't do that anymore and we're not going to do it anymore.

Chief Justice Earl Warren: But you do assign Negro students out of the proximity of that school to a Negro school that is farther away from their homes.

Mr. A. C. Latimer: We did do that but we don't anymore and we won't in 1964, that's the point I'm trying to make Your Honor.

Chief Justice Earl Warren: Well, you do it as long as those zones continue.

Mr. A. C. Latimer: Sir, we don't have zones.

Chief Justice Earl Warren: The zone was based on -- based on race.

Mr. A. C. Latimer: We don't have zones.

Chief Justice Earl Warren: Well, I -- then I completely misunderstood what counsel -- counsel said and I thought you -- you yourself said that there were zones that were based upon race.

Mr. A. C. Latimer: No, sir.

Those are administrative zones.

Chief Justice Earl Warren: Well, whatever they are, you take the -- you take the youngsters, Negro youngsters who live closer to a school that is a white school and move them farther away to a colored school with the result that that -- the colored school is overcrowded and the white school is underused.

Mr. A. C. Latimer: Your Honor -- I --

Chief Justice Earl Warren: Isn't that true?

Mr. A. C. Latimer: -- plead guilty to that in the past but not in the present or the future.

Chief Justice Earl Warren: Has it been remedied?

Mr. A. C. Latimer: Yes, sir.

Chief Justice Earl Warren: Tell -- tell us the specific action that you've taken to remedy it then what the situation is today.

Mr. A. C. Latimer: Alright, sir.

I state in my place that this is what the Atlanta Board of Education is going to do and we can ensure that, I'm sure by --

Chief Justice Earl Warren: Well, it's not -- not what you're going to --

Mr. A. C. Latimer: No sir.

Chief Justice Earl Warren: -- do you told me it had been eliminated.

Mr. A. C. Latimer: Yes, sir.

We -- we would -- but these changes don't come about until the beginning of a new school year.

We think it would be tragic to start this particular thing we're talking about now in the middle of a school term, so I believe that -- that all would agree to that.

Chief Justice Earl Warren: Well, no one --

Mr. A. C. Latimer: But --

Chief Justice Earl Warren: -- particular term, you had -- you had 20 terms because you had 10 years and I guess you had two school terms in a year.

Mr. A. C. Latimer: No, sir, just one school year.

Chief Justice Earl Warren: Well, let -- let's say 10 terms that you had which to remedy.

Mr. A. C. Latimer: Yes, sir.

Your Honor, I don't mean to split as we -- because we do consider, we started in 1961 and then we -- we have moved forward to the best of our ability.

Now, come 1964, a child in those grades that have been reached by the plan, eight of them.

The child moving from the elementary to high school will receive an initial assignment on a non-racial basis.

And we think that's constitutional accepted in anyway.

Justice Byron R. White: That's not his choice, isn't it?

Mr. A. C. Latimer: On a basis of --

Justice Byron R. White: (Inaudible)

Mr. A. C. Latimer: Well, we assigned him to this -- to the school he chooses.

I -- I mean where he --

Justice Byron R. White: (Voice Overlap) -- he chooses.

Mr. A. C. Latimer: Yes, sir.

Justice Byron R. White: (Inaudible)

Mr. A. C. Latimer: Bass High School.

Justice Byron R. White: Bass?

Mr. A. C. Latimer: Yes, sir.

Justice Byron R. White: (Inaudible)

Mr. A. C. Latimer: Right, right.

Justice William J. Brennan: (Inaudible) -- now this -- this last place that you've told us about, if they all want to go there and there aren't enough seats there, then I gather that on a proximity basis --

Mr. A. C. Latimer: We use --

Justice William J. Brennan: -- those colored children going into the 8th grade who near -- lived nearest Bass High School will be assigned to Bass, isn't that it?

Mr. A. C. Latimer: Yes, sir.

Justice Byron R. White: If they chose to --

Justice William J. Brennan: No.

Mr. A. C. Latimer: No, sir.

Justice William J. Brennan: No --

Mr. A. C. Latimer: It would then --

Justice William J. Brennan: -- they don't.

Mr. A. C. Latimer: No, sir.

You see, after this machine -- first is choice --

Justice Byron R. White: Yes, but what --

Mr. A. C. Latimer: -- and then --

Justice Byron R. White: -- what if the -- what if -- what if a Negro who is closer to -- who -- chose the (Inaudible) that got to build up but he was still closer to Bass or some other school, he decided he wanted to go to a Negro school, he could still do it, couldn't he?

Mr. A. C. Latimer: Yes, sir.

Yes, sir, that's right, sir.

First, his choice, second is whether or not there's available space for the child and if there's not enough available space then you use the fact of proximity there as a limiting factor.

Justice William J. Brennan: And that takes care of the 8th grade, is that -- I think -- I think I can understand it now.

Mr. A. C. Latimer: Yes, sir.

What --

Justice William J. Brennan: What about the 9th, 10th, 11th --

Mr. A. C. Latimer: Alright.

Justice William J. Brennan: -- 12th, let's use the 9th grade youngster now who lives nearest Bass High School.

Mr. A. C. Latimer: Yes, sir.

Justice William J. Brennan: Alright.

Mr. A. C. Latimer: Alright.

Justice William J. Brennan: What happens to him?

Mr. A. C. Latimer: Alright sir.

No longer does he have to go through or jump these hurdles or take test or apply to be transferred.

If he will let his -- that fact be known that he lives near Bass or whether he lives near Bass or not, he wants to go to Bass High School.

Justice William J. Brennan: Well, that seems -- well, let -- let's suppose now he's at one of these predominantly Negro High Schools (Voice Overlap) --

Mr. A. C. Latimer: Or at Howard High, yes.

Justice William J. Brennan: -- across town.

Mr. A. C. Latimer: Yes sir.

Justice William J. Brennan: And he's in the 9th grade and he'd like to attend Bass?

Mr. A. C. Latimer: Yes.

Justice William J. Brennan: And as a youngster, his sister or brother going in the 8th grade, is now in Bass.

Now, what specifically does he have to do in order to get into Bass?

Mr. A. C. Latimer: Go to the principal of the school and register.

Justice William J. Brennan: Principal of which school?

Mr. A. C. Latimer: Bass High School.

Justice William J. Brennan: Alright.

Mr. A. C. Latimer: Now, they would administratively call back over to the school where he went and now he's applied for a transfer over here, we'd like his records, we have permanent records on every child have to.

Let me say this --

Justice Byron R. White: (Inaudible)

Mr. A. C. Latimer: -- it's just not going to be a scramble situation --

Justice William J. Brennan: I know, I know.

Mr. A. C. Latimer: -- entirely, we have certain administrative matters that have to be gone through.

Justice Byron R. White: But couldn't he --

Chief Justice Earl Warren: Can he -- can he walk right over to the high school, the white high school and register there or under your system, doesn't he have to first go to a Negro school and then make his application and be transferred.

Mr. A. C. Latimer: No, sir.

And I've made a bad job of making that clear, Your Honor.

That -- some of this was true in the past.

What we are saying since --

Chief Justice Earl Warren: What was the date that it ended, that it has ended, not where you're going to end it but -- but --

Mr. A. C. Latimer: In --

Chief Justice Earl Warren: -- what is the date --

Mr. A. C. Latimer: -- June --

Chief Justice Earl Warren: -- you have that.

Mr. A. C. Latimer: -- June and August, 1963 when Judge Bell wrote his opinion and said that this -- this reassignment from elementary to high had to be done on a non-racial basis.

And that a child entering a class -- a child new to a class, meaning transfers in the 8th, 9th, and 10th grade had to be done non-racially too.

Chief Justice Earl Warren: Well, what was the result of that in -- in Negro students being put into white schools?

How many --

Mr. A. C. Latimer: How many?

Chief Justice Earl Warren: -- out of these 47 -- 48,000 Negro students?

Mr. A. C. Latimer: Well, Your Honor, now, the plan is only applicable to about 12,000.

Chief Justice Earl Warren: Well, let's say 12,000.

Mr. A. C. Latimer: Alright, sir.

Chief Justice Earl Warren: How many of them -- how many of them were -- were put in those schools?

Mr. A. C. Latimer: Not many, something less than 100, Your Honor because unfortunately that decision of Judge Bell's, I think came out in June.

They made a motion for rehearing in -- en banc.

That was denied in a subsequent clarifying opinion which is in the record, came out, in August, some time.

Let me say this, basically, we are down to this.

A question of choice, Louisville has tried it, other cities have tried it.

There must be a seat or space available, a teacher, cafeteria, the library, the athletic field and if four applied in that school, we'll handle.

Then we would say the fairest test I know of is to give the seat to the child who lives nearest to the school.

Justice William J. Brennan: Well, Mr. Bass, may I just -- this one other illustration again for having a rather -- using Bass High School.

Suppose now we have a -- a colored youngster living across the street from a colored high school, attending that colored high school in the 9th grade.

Mr. A. C. Latimer: Yes, sir.

Justice William J. Brennan: And even his parents say it's overcrowded.

Mr. A. C. Latimer: Yes, sir.

Justice William J. Brennan: And he's willing to go all the way across town to Bass.

Mr. A. C. Latimer: Yes, sir.

Justice William J. Brennan: May in September or whatever your registration trade is, that youngster's parents take him over to Bass and register him in Bass.

Mr. A. C. Latimer: Yes, sir.

Justice Arthur J. Goldberg: Suppose we'd have to --

Mr. A. C. Latimer: Absolutely, yes sir.

Justice William J. Brennan: As long as there are seats there and --

Mr. A. C. Latimer: Yes, sir.

Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. A. C. Latimer: Well, if he could -- he -- he'd -- he'd exercise his second choice, it maybe all --

Justice Arthur J. Goldberg: (Inaudible)

Mr. A. C. Latimer: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. A. C. Latimer: Yes sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. A. C. Latimer: Yes sir, as an in-system, yes.

Justice Arthur J. Goldberg: In other words, (Inaudible)

Mr. A. C. Latimer: No sir, no sir.

We said that proximity would be the test -- the determining factor there.

And if the Negro child is closer to that high school he would have the choice -- he would have the proximity factor working in his favor, not against him, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. A. C. Latimer: Yes, sir.

That -- that is true.

Justice Arthur J. Goldberg: (Inaudible)

Mr. A. C. Latimer: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Mr. A. C. Latimer: Yes, sir.

Otherwise, if you -- you would have started out with the bad situation and you perpetuate it, that -- that's the point as I see it, yes sir.

Chief Justice Earl Warren: Mr. Latimer, may I -- may I just restate Mr. Justice Brennan's question and ask another one whether -- where the -- the Negro child lives in close proximity to an extremely overcrowded Negro school and he wants to go to -- to a white school which is under populated --

Mr. A. C. Latimer: Yes.

Chief Justice Earl Warren: -- even though he's willing -- his parents are willing to -- to undergo the -- the discomfort of additional travel and he goes over there and applies for admission to that school, what criteria must he meet in making that transfer?

Mr. A. C. Latimer: None.

Chief Justice Earl Warren: All he has to do is say, “I want to be there.”

Mr. A. C. Latimer: Yes, sir.

We've abandoned --

Chief Justice Earl Warren: And --

Mr. A. C. Latimer: -- the criteria --

Chief Justice Earl Warren: And if there --

Mr. A. C. Latimer: -- of the transfer.

Chief Justice Earl Warren: If there is a seat -- if there is a seat in that school, he's entitled to it?

Mr. A. C. Latimer: Yes, sir.

What I'm trying to say is and I -- I sort of jumped into this, I had relevant orderly speech --

Chief Justice Earl Warren: But I want to say --

Mr. A. C. Latimer: -- I've been working on for months and --

Chief Justice Earl Warren: -- I won't say that I'm mistaken -- I'm mistaken in the -- in a lot of --

Mr. A. C. Latimer: I --

Chief Justice Earl Warren: -- the questions that I've asked you --

Mr. A. C. Latimer: I think so, I probably --

Chief Justice Earl Warren: -- because I did not understand it with that way.

Mr. A. C. Latimer: Yes, I think I probably would have been more effective had I followed this written speech which I wouldn't going to read but referred to and gone into it a little more orderly but this is a --

Justice William J. Brennan: Mr. Latimer, may I just make this observation.

Mr. A. C. Latimer: Yes.

Justice William J. Brennan: I must the picture you've given us if different in (Inaudible) like from the picture that's been given to us by Senator Motley and Mr. Marshall.

What -- what's the -- this wants to be resolved in the record somewhere.

Mr. A. C. Latimer: Mr. Justice Brennan, if we were trying a damage suit or tax matter or labor case, the record is then ecstatic and it's frozen.

This, because of your teachings in Brown, it -- it -- we -- we are moving.

It's like a ship out at sea then it sends a radio message to tell us -- give us a -- our bearing and tell us where we are, and the radio operator that receives it is asleep and he doesn't get the message back for to or three hours, the ship's gone home.

Justice Byron R. White: But if it's the matter, then all the things that have -- that make your presentation different from Senator Motley's -- Mr. Marshall of all that happened, since this it's the decision below and that this is the -- this is the -- this thing to me would be the problem.

Mr. A. C. Latimer: It is a problem.

Justice Byron R. White: And it's not in the record.

Mr. A. C. Latimer: No, sir.

Justice Byron R. White: And you're saying what you think your plan is and there's -- there's never been a -- an official adjudication on what the plan is.

Mr. A. C. Latimer: Its official sufficient adjudication, as far as a -- a School Board can officially adjudicate.

Justice Byron R. White: Well, I know but if we have -- we -- we know what you say it is but no lower court --

Mr. A. C. Latimer: No, sir.

Justice Byron R. White: -- said what kind of a -- have said what the facts are or what the plan is.

Mr. A. C. Latimer: Well, even though -- let -- let me explain this, if I may, Mr. Justice White.

This plan took effect September 1, 1961.

April 30 of 1962, Mrs. Motley filed a motion for further relief.

Now, we've gone on since April through -- 1963 and up to whatever it is, March or April of 1964.

Now, if I could convince this Court of the sincerity of the Atlanta School Board in wanting to move forward, I think I would've done a good job and I -- I do say this.

That if there's any question about it, put the odd on because make no mistake about it, our philosophy since the first round decision has been compliance, not defiance.

Now, it's hard for me to argue why we didn't start in 1958 when we read that decision and we -- and we have always -- it -- can understand that procedure.

Justice Byron R. White: Mr. Latimer, (Inaudible) --

Mr. A. C. Latimer: Well we did.

Justice Byron R. White: -- suggesting that the court of equity ought to update itself to bring itself up to the date of -- of its decree apparently?

Mr. A. C. Latimer: I think it's the only thing you can do because equity cases, you retain jurisdiction and all the time you say and move forward with this thing because we've tried to use your plans that you -- on the surface approved in Shuttlesworth as a vehicle to go from a total desegregated to -- I mean to segregate it to a desegregated system.

We --

Chief Justice Earl Warren: Mr. -- Mr. Latimer, if the -- if the decree recited that no longer should there be anymore racially established districts or zones in the City of Atlanta and that in the future, any -- any child, Negro child who is in an overcrowded school, has the right to be admitted to an underpopulated white school, you would have no objection to it?

Mr. A. C. Latimer: No, sir.

Because we don't have any attended zones in Atlanta now.

So if you ordered us to do away with them, it would have absolutely no effect on the way we're operating our school system.

Justice Potter Stewart: You don't even -- you don't have it even from the 1st to the -- through the 7th grade?

Mr. A. C. Latimer: Let me explain this.

Dr. Letson had been superintendent over a year less when his depositions were taken.

In the record, you will see something about lines.

Now, traditionally, I state in my place, we have never had hard and fast zone lines, a square or triangle, rectangle or circle, put a dot inside, every child goes into that school.

Chief Justice Earl Warren: Mr. Latimer, I think you better (Voice Overlap)

Mr. A. C. Latimer: I didn't notice the light.

Thank you so much.

Print this transcript Transcript: 

Argument of A. C. Latimer

Chief Justice Earl Warren: -- continue your argument.

Mr. A. C. Latimer: Mr. Chief Justice Warren.

Chief Justice Earl Warren: But before you -- before you start, there -- where you in somewhat stated confusion because of the different approaches that you and -- and counsel for the petitioners have -- the -- the basis of your arguments and so I'm going to extend your time for 15 minutes to explore these things and Mrs. Motley, you may have 10 minutes to -- additional to reply and Mr. Marshall, you may have 5.

And we'll see if we can get down to a basis where we're all talking about the same things.

Mr. A. C. Latimer: Mr. Chief Justice Warren, I wanted to say at the outset that I do not think -- do not contend that Mrs. Motley is in anyway misquoting the record.

The difficulty of this in -- in most of these cases isn't this record is what we say is ancient history, it's two years or more older.

And that in the meantime, Atlanta has been discharging what it considered to be the requirements of the Brown decision, wherein this Court said that the speed of a plan and how it waits and so forth, is first, addresses itself to the local school authorities and second, to the local district courts.

So, I make that statement, I don't know that anybody would consider that Mrs. Motley has misquoted the record and I'm sure she is -- has not and would not.

But that these depositions were taken sometime along in June of, I think, 1962 and since that time, we have tried to move forward with our plan.

Chief Justice Earl Warren: But do you have any -- any resolutions of your -- of your Board of Education or -- or any documents of any kind that would establish this new policy that you're talking about but which neither counsel nor ourselves seem to know anything about?

Mr. A. C. Latimer: Yes, sir.

The official records and minutes of the Board of Education would contain that portion of this argument that we're talking about which concerned those applicants in 1963 who had been turned down on the testing criteria, who were called back in and told that they could go to the school of their choice if they live closer to it.

Chief Justice Earl Warren: But do we have documents that will -- will answer the precise question that -- that Mr. Justice Brennan asked -- asked of you --

Mr. A. C. Latimer: I don't --

Chief Justice Earl Warren: -- about the right of -- right of the colored youngster?

Mr. A. C. Latimer: No, sir, I do not think we do have precise document.

I might suggest this Your Honor that --

Chief Justice Earl Warren: Now, may I ask you this then, do you have any documents that -- that will establish your answer to -- to the question of Justice Goldberg about youngsters who do go to school under those circumstances?

Mr. A. C. Latimer: No, sir, I don't think there's anything in the record.

Now, we could probably --

Chief Justice Earl Warren: But how can we establish at them to -- to be the fact?

Mr. A. C. Latimer: Yes, sir.

We can stipulate here and now what the Atlanta plan is as of this time.

Chief Justice Earl Warren: And where has it been enunciated in -- in a public way prior to your statement here?

Mr. A. C. Latimer: Well, Mr. Chief Justice, in the summer months of 1963, following Judge Bell's opinion, it was widely publicized the effect of the opinion on the Atlanta plan.

Chief Justice Earl Warren: Well, yeah -- but -- but where was the action of the Board of Education published?

Mr. A. C. Latimer: Well, the only --

Chief Justice Earl Warren: Pursuant to that, pursuant to that.

Mr. A. C. Latimer: In its official records in minutes.

Chief Justice Earl Warren: Is it thereby resolution or -- or how?

Mr. A. C. Latimer: By recommendation of the Superintendent of schools adopted by the School Board.

Chief Justice Earl Warren: And have you the recommendations, the written recommendations of the Board of -- of the Superintendent?

Mr. A. C. Latimer: Not with me, sir.

Chief Justice Earl Warren: Well, are they available?

Mr. A. C. Latimer: They could be made available.

Yes, sir.

Chief Justice Earl Warren: Very well.

Mr. A. C. Latimer: And I would say this, if it please the Court, that if it would be helpful in anyway to file a supplemental brief and state positively and in writing what the Atlanta plan is and what -- what they're going to do in September 6, what they're doing now, well, we'll be glad to do so.

Chief Justice Earl Warren: Well, I -- I think that if you're going to argue it, I think it would be rather a good thing to let us know that beforehand so we would have some idea what we were going to have argued here in Court.

Did you ever -- did you ever tell counsel for the other side what the plan is?

Mr. A. C. Latimer: Well, Your Honor, we have it on our brief in the State of Georgia filed the brief of amicus in which they state that the plan now is choice of a space and proximity.

He stated I think --

Chief Justice Earl Warren: Could you read us that portion of your -- of your brief which will -- will give the answer to Justice Brennan's question?

Mr. A. C. Latimer: Yes.

I'll be looking for them if you will.

Justice Hugo L. Black: This one I'm reading -- you're reading about Mr. Latimer.

Mr. A. C. Latimer: I'm reading, Mr. Justice Black, from page 1 of the brief -- of the amicus brief filed by the State of Georgia.

Justice Hugo L. Black: March 28, 1964.

Mr. A. C. Latimer: Yes.

Justice Hugo L. Black: (Inaudible)

Mr. A. C. Latimer: Yes sir.

Chief Justice Earl Warren: Page 1?

Mr. A. C. Latimer: Page 1.

Chief Justice Earl Warren: Yes.

Mr. A. C. Latimer: Question presented whether the Atlanta plan of desegregation of public schools approved both by the District Court and the Court of Appeals below is constitutionally defected, one, in its basic approach to achieving desegregation through application of assignment of pre -- procedures now based solely on consideration of choice, space and proximity on the grade or year basis commencing with the high school grades and proceeding down.

Chief Justice Earl Warren: Well, does asking a question answered?

Mr. A. C. Latimer: No, sir, except that the -- the question is so stated.

Now, also, Your Honor, in the brief of respondents, page 14, in the brief of the United -- in the brief, United States makes several suggestions with reference to an obvious solution.

It suggest as such an immediate reassignment of all students on the basis of proximity alone.

Admittedly, Atlanta has recently resorted to proximity as a factor in making transfers but for administrative reasons --

Justice Tom C. Clark: What page was that?

Mr. A. C. Latimer: Start -- at the bottom of page 14, sir.

Justice Tom C. Clark: In your brief?

Mr. A. C. Latimer: Yes, sir, bottom of page 14, Mr. Justice Clark.

Admittedly, Atlanta has recently resorted to proximity as a factor in making transfers.

But for administrative reasons, Atlanta has never used either inflexible zones or proximity as the sole criteria either at the first of the high school level.

It does not want to resort solely to inflexible zones or proximity now.

It based with the choice, would prefer, probably prefer a system of complete freedom of choice conditioned only upon availability of space would resort to proximity to settle priorities between two applicants where facilities were available for only one.

Such a choice, obviously, there is no relation to integration or segregation and would be consistent with either.

Justice William J. Brennan: (Inaudible)

Mr. A. C. Latimer: Well, sir, I don't believe I made myself clear.

What we would prefer and what the thrust of our brief is, we'd like to be left alone.

I say that in all due respect.

But that if we must change, which these cases indicate or constantly change, then, rather than fixed rigid zones that lock people in of either race, we would prefer a system of free choice, assuming the space is available and using then proximity as a limiting factor, not as the sole factor.

Justice Byron R. White: (Inaudible)

Mr. A. C. Latimer: No, sir.

I -- when I -- I didn't mean exactly what I said apparently.

I say we'd like to be left alone.

We would like for this plan as we have it now and as we envision our plan to run its normal course.

Justice Byron R. White: (Inaudible)

Mr. A. C. Latimer: Yes, sir.

Justice Byron R. White: (Inaudible)

Mr. A. C. Latimer: Yes.

Justice Byron R. White: (Inaudible)

Mr. A. C. Latimer: Now, let me -- excuse me, sir, that maybe a little bit deceptive and I don't want to be because the schools run -- on a school year --

Justice Byron R. White: (Inaudible)

Mr. A. C. Latimer: Yes, in the high school, in those grades that had been desegregated says Judge Bell's opinion, the difference between the transfer and an assignment becomes meaningless.

Justice Byron R. White: (Inaudible)

Mr. A. C. Latimer: Yes, sir.

Justice William J. Brennan: (Inaudible)

Mr. A. C. Latimer: Yes, sir.

Justice William J. Brennan: Let's take a (Inaudible)

Mr. A. C. Latimer: Alright, sir.

Justice William J. Brennan: (Inaudible)

Mr. A. C. Latimer: That's so hard.

I won't answer.

I think, educationally, it would be unsound.

But I think if we are going to -- to adopt the philosophy of choice first, availability and then proximity that it may require that result in same instances.

I think as a practically matter that it will not.

Justice William J. Brennan: I hope not.

Mr. A. C. Latimer: I hope not too.

Chief Justice Earl Warren: Well, Mr. Latimer --

Mr. A. C. Latimer: Yes, sir.

Chief Justice Earl Warren: -- you read a portion of your brief in the bottom of page 14 and the top of 15 where you said, "And if faced with a choice would probably prefer a system of complete freedom of choice conditioned only upon availability of facilities with the resort to proximity to settle priorities between two applicants where facilities were available for only one.

Such a choice obviously bears no relation to integration or segregation would be consistent with either."

Then you go on and you say, "But these suggestions are beside the point.

Atlanta has an "obvious solution".

Once it becomes clear that as the present plan progresses, there will be initial assignments without regard to race.

In short, once it appears that the freeze in of existing assignments is purely transitory, petitioners' argument that the Atlanta plan is inherently unfair is -- is eliminated."

Now, you filed this brief on March 16th, 1964 and what were you talking about when you said, "In short, once it appears that the freeze in of existing assignments is purely transitory"?

Mr. A. C. Latimer: Alright, sir.

When the plan started out, the Negro child went back to the Negro school where he had always going whether he or she had always going.

And to get out, he or she must apply for transfer.

And the first year, there were more hurdles and then -- and -- and they've come down as time went on.

As we read Judge Bell's opinion, that grid having been desegregated in the Atlanta high school system, she no longer has to -- to apply through a formal transfer route of procedure to get over to the school of her choice.

Now, let's abandon for a moment the word "transfer" or "assignment", let's just say she has to go register.

All students must register.

You have to follow a certain administrative procedures in order to oddly run a big --

Chief Justice Earl Warren: Yes.

Mr. A. C. Latimer: -- school system.

Chief Justice Earl Warren: Are you talking about --

Mr. A. C. Latimer: So let's use the word "she has to register".

Chief Justice Earl Warren: -- register from -- registering from choice, the school of her choice.

Mr. A. C. Latimer: Yes, sir.

Chief Justice Earl Warren: Yes.

Mr. A. C. Latimer: And that could be the closest school or it could be for reasons peculiar to her that she wants to go across town to her school.

Now, this may do two things.

It's probably a -- a two headed sword.

It may fill up some of these half empty classrooms.

And that's a problem at any school system.

But not all of that is bothered about by race, the sum of that is just purely changing neighborhood pattern.

Justice Arthur J. Goldberg: (Inaudible)

Mr. A. C. Latimer: No, sir.

No, sir.

Now, we are still in our spin-off, Mr. Justice Goldberg.

And I don't want to mislead the Court on that, I -- it -- it -- we are saying in those grades which the plan has affected.

Justice Arthur J. Goldberg: (Inaudible)

Mr. A. C. Latimer: Yes.

Justice Arthur J. Goldberg: Now, would you describe for us (Inaudible)

Mr. A. C. Latimer: Mr. Justice Goldberg, we do not, in the Atlanta school system, have rigid attended zones.

Now, we plan to gain awards in the place because -- take the school, the Spring Street School, people referred generally to the Spring Street School area.

I want to buy a home in the Spring Street School area.

I -- I live in the Spring Street School area.

But insofar as the School Board and the Superintendent, drawing hard and fixed in rigid zone lines down here and so forth, we do not have nor have we ever had.

Now, there is some testimony of Dr. (Inaudible) that says this, "Where a particular elementary school," and he's referring to elementary school, and then we point out that the plan has not yet reached the elementary grades, "That where a particular elementary school becomes overcrowded," and there's one not too far from there that is not overcrowded, "the principals of those two schools get together and they say, "Look, I'll take them up to Peachtree Street and you take them beyond."

But as far as the policy of -- that is actually to a -- an imaginary line to prevent overcrowding.

It is not a line to assign children on the basis of race or otherwise.

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

Isn't -- the Spring -- Spring Street School is a White school?

Mr. A. C. Latimer: Yes, sir.

Chief Justice Earl Warren: Suppose a little Negro child lives across the street from the Spring Street School --

Mr. A. C. Latimer: Yes, sir.

Chief Justice Earl Warren: -- let's say he' in the sixth grade, can he, under your system at the present time, go to that school and register?

Mr. A. C. Latimer: No, sir.

Chief Justice Earl Warren: Where must he go?

Mr. A. C. Latimer: Back to where he has been going.

Chief Justice Earl Warren: Well, suppose he's an outsider, hadn't been to any school in -- in Atlanta, he comes to -- he comes -- lives across the street from the school.

Mr. A. C. Latimer: Then he would be assigned to Spring Street School.

Chief Justice Earl Warren: Why?

Would he be entitled to stay there?

Mr. A. C. Latimer: Yes, sir.

Chief Justice Earl Warren: Alright.

Now, where would he -- where would he have to go -- you say, he'd go back to the original school that he came from if he was in the sixth grade, why would he have to do that?

Mr. A. C. Latimer: Because that is what we understood.

The courts had approved.

They said it's unconstitutional to segregate on the basis of race.

Chief Justice Earl Warren: Yes.

Mr. A. C. Latimer: But because of the equity of powers of this Court, this Court in its wisdom says, “We're going to let you do this gradually and we're going to weigh and balance these equities.”

Now, we are in the transition period.

There'd been few -- few headlines about the trouble in Atlanta because we've tried to maintain law and order and do this in a -- in a fine way, which I think we've done.

But we are still in the transition period -- again, I say, starting in 1961, motion for further relief filed in April of 1962 and we are trying the case here in this Court nearly April 1 of 1964 based on 1961 and 1962 facts, that's where the confusion comes in.

But, Your Honor, the -- we are in -- still in our spin-off of greater years.

We have come down now through the high schools.

But it would take another six years to complete that course for the elementary schools.

And then at the end of that time, every child entering the elementary grade, the first grade, would receive an initial assignment just as we've outlined, choice, space, proximity.

Justice Tom C. Clark: That means a lot of (Inaudible)

Mr. A. C. Latimer: No, sir.

Justice Tom C. Clark: (Voice Overlap) --

Mr. A. C. Latimer: It's the -- the -- it's the eighth grader who is the first year of high school.

Justice Tom C. Clark: That's right (Inaudible)

Mr. A. C. Latimer: Next, in the fall of September of 1965.

Justice Tom C. Clark: (Inaudible) the seventh grade.

Mr. A. C. Latimer: The seventh grade.

Justice Tom C. Clark: Seventh.

Mr. A. C. Latimer: Yes, sir, seventh grade.

Justice William J. Brennan: (Inaudible)

Mr. A. C. Latimer: That's right.

Justice Tom C. Clark: (Inaudible)

Mr. A. C. Latimer: That's right.

Justice Tom C. Clark: I thought it began in 1964 for the seventh grade (Inaudible)?

Mr. A. C. Latimer: Well, that's this -- no, sir, the eighth grader who's moving up from the seventh grade.

He's graduated from the seventh grade in elementary school and he's now moving --

Justice Tom C. Clark: (Inaudible)

Mr. A. C. Latimer: Yes, sir.

Judge Bell goes into that, it may.

Now, may it please the Court, on the question of acceleration, as school people, we would prefer that the plan, which takes its biggest boost in September of 1964, be allowed to continue uninterrupted.

That is stated because we understand that if we have administrative problems, the Court is often been sympathetic to the fact that the size of the school system makes a great deal of difference is what do you do to them by way of a plan, roughly, 100,000 to 115,000 students in Atlanta.

And we think and our educators tell us that it would be chaotic indeed to reassign initially, all at one time, the entire school system on some plan of choice or some plan of proximity or what else.

Now, the other reasons unconnected with race, their transportation patterns, their school associations, their academic reasons, extracurricular activity reasons and such, why we think that the process that we are in now would best serve education of the children of both races if allowed to continue to the plan once out.

Justice William J. Brennan: (Inaudible)

Mr. A. C. Latimer: Yes.

I calculated the -- I'll take you on --

Justice William J. Brennan: (Inaudible)

Mr. A. C. Latimer: Yes, sir.

Justice William J. Brennan: On the first grade (Inaudible)

Mr. A. C. Latimer: Yes, and also though, the children new to the -- to the school system, as Judge Bell pointed out, must receive an initial assignment on a nonracial basis.

He would be put, as Your Honor asked the question, in the school nearest to him or of his choice.

Now, and may it please the Court, on the question of faculty desegregation, we recognize that that is something that will ultimately take place in Atlanta.

We have started.

It is not an extensive program.

I'll state to you quite categorically, there are no Negro teachers teaching all white classes.

I think maybe there's one in -- in the trade school, I'm not certain but I ask you as to any extensive use of a Negro teachers in White schools that has not come about.

As you will recognize, we may require children to go to school but we cannot require teachers to teach.

And we have the problem that's universal to every major school system in the country that is the teacher shortage.

We actually send our people to recruit teachers.

They go into the colleges and the classrooms and try to sell them on coming to Atlanta.

We've tried to up our wage scale to attract them there.

And for the time being and until this -- until this plan runs its course, we would much prefer, if it please the Court, to differ that as the local District Court did and as the Fifth Circuit did, bearing in mind please that the Fifth Circuit has not been timid about this question.

In the Jacksonville case, they ordered on a finding of fact there that the Jacksonville School Board proceed forthwith with the desegregation of the faculty for reasons which they understood.

The Fifth Circuit deferred the matter of desegregation of the faculty in Atlanta.

Gentlemen, if there are anymore questions, I -- I would be most pleased to answer.

I would say this that in all fairness to all concern, record-wise, we could not come here and defend this cold record.

We couldn't do it.

But we have thought that our obligation was to move, that is to push forward to use the assignment plan which you -- in a preliminary way approved in Shuttles Way as a method of means of getting over some rough places in the road.

And we've got some more to go.

But we feel that educationally, that we have progressed in the fields of extracurricular activities, there is no distinction.

We've eliminated all distinction as to designate schools by race.

But in passing, we would say that arbitrarily reassign some 100,000 children would sacrifice some great educational reasons, we think for speed.

Chief Justice Earl Warren: Ms. Motley, you and -- and the Solicitor General may speak in any order that you wish and you could rebuttal just -- just as you -- if you please.

Argument of Constance Baker Motley

Ms Constance Baker Motley: Well, first, Your Honor, I would like to read from the record to settle once and for all this question of whether there are zone lines on the elementary school level.

Now, on page 62 of the record, preceding this on page 61, I went into this matter with the Superintendent as to zone lines.

I first went back to 1960 before the plan took effect and asked him how the students were assigned.

And then, we finally got to the end of it after several questions.

And he -- I asked him this, "And you still have separate lines which relate to the Negro schools and separate lines which would relate to the White elementary schools, is that right?"

And he said, "Roughly, yes."

Now, prior to that on page 61 at the bottom -- near the bottom, I asked him, "Now, in the areas where the housing is mixed racially," that is the areas where Negroes and Whites live in the same area, "these lines would overlap so to speak, wouldn't they?"

And then he said, "Well, formerly, the lines were drawn separately for White and Negro schools," and I said, "And how are they drawn now?"

He said, "They're drawn on the basis of the pupil assignment law."

And I said, "Do you mean by that the law of the plan," and he said, "The plan," top of page 62.

And then we went on and I said, "And you say the lines are drawn pursuant to that?"

Answer, "The same lines that were in existence in 1960 aren't existence at the present time".

"I see," and then I went on to the question and answer I read before.

And Judge Reeves, in his dissenting opinion, points out that the District Court and the majority simply overlooked the record and he put this testimony in a footnote, I think it's Footnote 4, if I'm not mistaken, regarding the fact that there are zone lines.

And he's -- he points out in his dissenting opinion, this majority opinion represents a step backward for the Fifth Circuit because they had just said in Augustus and in Bush that you must do away with the dual school zone lines and he says he --

Justice Byron R. White: We don't have a finding of -- of the District Court that there are school zone lines.

Ms Constance Baker Motley: That's right.

He says there were none and that's why Judge Reeves quoted this testimony in a footnote.

Justice Byron R. White: I know but under the fact is the District Court didn't find there were some zone lines.

Ms Constance Baker Motley: That -- that's right.

He -- he just didn't make any finding at all.

He just approved the plan which had been approved in 1960.

And we complained of course to the Court of Appeals and pointed that out and Judge Reeves quoted and said, "You're just overlooking the record.

Here it is."

Now, as to the Negro high school situation, we put in the exhibit, which is plaintiff's Exhibit 7, which came up here in its original form which has every elementary school and beside the names of the elementary schools, I put an end for those schools which are Negro elementary schools.

The Superintendent agreed those were right in the record.

Then the last page of the record contains the high schools in Atlanta beginning with Archer, Bass and so forth.

And the check marks on that exhibit are the Negro high schools and it shows five Negro high schools.

Now, as he said, they have built one since that and that's Harper, so that's six Negro high schools.

Then they have one Negro vocational school which is Karp.

Now, that's in the record as to the number of Negro schools.

Now, the problem here is, as you can see, is a case where the facts were always changing.

The District Court, we had one set of facts.

We had a plan with 12 -- 17 criteria and so forth.

As to the Court of Appeals, they had abandoned all the three or four of the criteria.

So we had another situation.

In their brief, they said the sole criterion is proximity.

On this argument for the first time, we hear its free choice.

Now, there has never been published, as far as we know, any document by the School Board which says what the plan is going to be in September 1964.

We have not seen any.

And if the lawyers can't keep up with the changing facts and different plans in this case, you can imagine the situation of the parents at Atlanta.

But what is the School Board's plan?

And that's why this Court must establish standards based on this record.

So that for once and for all, we can have standards to guide the district courts with respect to what kind of desegregation is acceptable at this point.

Justice Hugo L. Black: May I ask you, assuming what he says is correct as to the plan and the way the school will be operated from going back to the time he said, what are your objections with Atlanta plan?

What -- what would be your objections with Atlanta --

Ms Constance Baker Motley: Our first --

Justice Hugo L. Black: -- the plan as (Inaudible)

Ms Constance Baker Motley: Yes.

Our first objection is that it's a still a 12-year plan which, in fact, is an 18-year old plan before it's entirely desegregated that is until students are assigned throughout the system on a single criterion or the same criterion.

Justice Hugo L. Black: That's the -- that's the basis of just to change the grade each year.

Ms Constance Baker Motley: That's right.

We opposed that kind of delay 10 years after Brown.

That's our first objection to their plan.

They have never abandoned the 12-year featured any point.

So that's our first objection.

Our second objection is that Negro students have to apply for transfer in grades 9 to 12 or make some request or do something to get out of a Negro school and one that's over crowded particularly.

Justice Hugo L. Black: You said not (Inaudible) --

Ms Constance Baker Motley: Well --

Justice Hugo L. Black: (Inaudible)

Ms Constance Baker Motley: I can only --

Justice Hugo L. Black: That's -- that's why I was asking you to discuss the -- your ideas on the basis of what he said.

There's the plan that they intended to carry out now.

Ms Constance Baker Motley: Well, if -- if -- he has now changed what's written on page 14, that is the second paragraph on that page which I read -- read to require some kind of transfer on the part of Negro students in grades 9 to 12.

Now, if he has now changed that and you no longer have to apply for transfer in grades 9 to 12, you have this free choice business.

We object to that because we think that any free choice business in this situation will not carry out the intent of the Brown decision.

This will shift to the Negro community the burden of desegregating the schools which we say Brown has put on the School Board.

And you see, what they would then be relying on is the momentum of 100 years of segregation whereby habit and custom, Negroes have traditionally gone to Negro schools and that's the way it will be.

And they're saying in effect that if you want the schools desegregated, Negroes will now have to apply for admission to White school.

And we say that Brown put on them the duty to reassign everybody on some reasonable nonracial basis to disestablish the segregation which the State established.

Now, I want to point out --

Justice Hugo L. Black: Are you saying -- are you saying that we should strike down as unconstitutionally the idea of the freedom of choice on the part of the children and the parents?

Is that it?

Ms Constance Baker Motley: Well, in this situation, we're dealing with what a School Board must do to satisfy the requirements of Brown.

I say that a free choice system would not satisfy those requirements.

It doesn't --

Justice Hugo L. Black: Then you -- then you do say that we should hold that they should not be given freedom of choice by reason of the argument of --

Ms Constance Baker Motley: That -- that's right because --

Justice Hugo L. Black: -- you put us on.

Ms Constance Baker Motley: -- because what we then do by that is to shift the burden of desegregation to the Negro community from the School Board.

We understood that Brown put on the School Board a duty to disestablish segregation which the State had set up.

Free choice will operate to shift that duty to the Negro community to come forward and to now apply.

Now, there's a conflict, as I see it, between the circuits.

The Sixth Circuit in the Northcross case, which we cited, dealt with this.

And they said that Negro children cannot be made to apply for that which this Court has already said they were entitled to.

And in that case, the Sixth Circuit --

Justice Hugo L. Black: Well, did we -- did we pass on whether they could be forced to go to the school they didn't want to?

Ms Constance Baker Motley: No, this is not forcing anyone to go to a school that they don't want to go to.

Justice Hugo L. Black: But did we pass on the question -- maybe we did but I'm not -- I don't understand you're saying with us.

Did we pass on the question as to whether or not, a plan which allowed the children and their parents choose between the schools which condemned by our decision?

I thought it was an open question maybe it's not.

Justice Tom C. Clark: As a matter of fact --

Ms Constance Baker Motley: Well, I -- yes.

I don't think Brown said that you could not have such a plan, that is Brown did not say, "We condemn free choice."

Now --

Justice Tom C. Clark: What about the District of Columbia case?

Ms Constance Baker Motley: Pardon me.

Justice Tom C. Clark: What about the District of Columbia case was here the same time as Brown?

They had a transfer of provision where the, as I remember, I haven't look at it for sometime but they had a transfer of provision where about a parent chose the school.

Are you familiar with that?

Ms Constance Baker Motley: Yes, if I recall.I don't recall that specific fact, Your Honor, in the Brown case.

I think they -- somebody mentioned --

Justice Tom C. Clark: No, not in the Brown.

Justice Potter Stewart: Bolling -- Bolling against Sharpe.

Ms Constance Baker Motley: I mean in the Bolling against Sharpe.

Justice Tom C. Clark: Bolling.

Ms Constance Baker Motley: Well, if there's a free transfer system and -- and if there was in the District of Columbia operated within the segregated framework, that is Negroes are free to go to any Negro school and Whites free to go at any White school prior to Bolling against Sharpe.

Justice Tom C. Clark: As I understood it, as I remember it's been a long time ago, they could file an application to transfer the Whites too to any schools of white, don't they?

Ms Constance Baker Motley: After Bolling against Sharpe?

Justice Tom C. Clark: That's right, as we understood it.

Ms Constance Baker Motley: Well, I -- I thought somebody said that there was a school zone line system established after that in the District of Columbia.

But I would say that if a School Board has maintained for 100 years segregation and they now say, “free transfer” that that would not make the requirements of Brown because --

Justice William J. Brennan: Well, Ms. Motley, was -- what about Baltimore?

Isn't free transfer you've label it which seems that --

Ms Constance Baker Motley: Yes.

Justice William J. Brennan: Isn't that what Baltimore is saying?

Ms Constance Baker Motley: That's what I understand Baltimore --

Justice William J. Brennan: Well, you contested in Baltimore the system there didn't meet the requirements of Brown?

Ms Constance Baker Motley: Yes, because what you have is substantially all Negro schools and all White schools now in Baltimore because what happens is that Negroes continue to go to those Negro schools, that's what I'm saying.

This carries with it the momentum of 100 years of segregation.

Justice William J. Brennan: You mean it's not free choice?

Ms Constance Baker Motley: It's -- it's free choice and it doesn't operate to do what Brown intended the decision to do and that is to make the school authorities which had established the segregated system.

As the Eighth Circuit said, “Disestablish it.”

And then you can put free choice or anything else you want on that disestablished system.

But you have to undo a century of segregation.

And you can't say to the Negro community, “You undo it.”

By now coming forward and what happens is a Negro child applies to go to a White school and he is maybe the only one and then he is in an isolated situation.

Whereas Brown, we say, guaranteed him not the right to apply for admission to a White school.

Brown guaranteed him the right to go to a nonracial school system.

And in way you have free choice on top of 100 years of segregation.

What you're doing is preserving segregation and giving a Negro child a right to apply for admission to a White school.

Justice William J. Brennan: Well, in -- in this line of situation, as Mr. Latimer has described before us, the matters of (Inaudible) within the briefs of the record, as he described for us, what is it that you think we should do?

Ms Constance Baker Motley: In the Atlanta situation, I think this Court should now require Atlanta to draw a school zone line related to capacity without consideration of race, that is they have so many children to accommodate in the 22 high school.

And they should draw a school zone line to accommodate this high school population to fill all those schools to its capacity.

Justice William J. Brennan: Thus limiting the children within the particular zone, two of the high school --

Ms Constance Baker Motley: Yes.

Once drawn on the basis of capacity not proximity alone.

Then if a student wants to transfer for some valid educational reason, of course, he may be able to do so.

Justice Byron R. White: Well, what if he wants --

Ms Constance Baker Motley: But --

Justice Byron R. White: -- to transfer (Inaudible) you could redraw the line as you suggest.

There will be, I suppose, some Negro high schools that just going to (Inaudible) area in the neighborhood.

Ms Constance Baker Motley: That's right.

Justice Byron R. White: Now, if a Negro wants to try to that school just because I want to go to desegregated school, you would tell him no.

Ms Constance Baker Motley: I would say he couldn't transfer because of race.

Justice Byron R. White: That's right.

Ms Constance Baker Motley: I understand that.

It's already there.

Justice Byron R. White: (Voice Overlap) I want to go a desegregated school.

Ms Constance Baker Motley: He's then in a desegregated system and he cannot --

Justice Byron R. White: (Voice Overlap)

Ms Constance Baker Motley: -- then predicate his transfer on the basis of race.

I would say that he can't -- if the School Board commits that kind of transfer, he would have to permit it for Whites.

The White person will say, “Well, I don't want to be in this all -- disintegrated school.

I want to go back to a White school”, because the Negroes application was predicated on race.

Justice Byron R. White: (Inaudible) see and -- and if (Inaudible) desegregated school and either a White or a Negro want to transfer out of that school to a Negro school or White school (Inaudible)

Ms Constance Baker Motley: If I understand --

Justice Byron R. White: (Inaudible)

Ms Constance Baker Motley: I would say, no, no.

Because a Negro doesn't have anymore right to go to a Negro school than a White person has to go to a White school.

Justice William J. Brennan: Does the standard you suggest, Mrs. Motley, a standard you're suggesting is the only thing that could comply with the ground?

Ms Constance Baker Motley: Well, I suggest it as the minimum as if -- Sixth Circuit said and as the Fifth Circuit, a minimum for those school systems which have -- had 100 years of segregation.

That's the minimum requirement.

Now, there maybe something that can be done later to facilitate more integration which we don't have yet in this case.

But I think that in this Southern school system, we've got to first get a standard which eliminates the dual school system.

Now, once you do that, we may have other problems developing and we may be back another day arguing another phase of this.

But we've got to get the Southern school systems to first assign children on a zone basis related to capacity.

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: That's right.

That's correct.

That's -- that -- in answer to the question of Mr. Justice White, that is why I should have said it.

That once you desegregate the system and you do away with the dual school zone lines, it may be that you have some kind of -- of choice operating if it's there but we don't have to decide that in this case because they haven't --

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: That's right.

Chief Justice Earl Warren: Mr. Marshall.

Argument of Marshall

Mr. Marshall: Mr. Chief Justice, I would like to return to a comment that Mr. Justice Brennan made as Mr. Latimer was closing and that is as he understood it, if the plan worked the way that it is working as Mr. Latimer described it that the entire school system would be desegregated by 1971.

As I understand this, even accepting the way Mr. Latimer states it, Mr. Justice Brennan, that is not correct, that it would still take until the fall of 1977 for the -- a school system, the school system as such to be desegregated and that is because of the effects and the remnants of the initial racial assignment.

Now, as Mr. Latimer described it, it is easy for Negroes who live closer to a White school than to a Negro school to get out of the initial racial assignment which they are in because they went to that school the year before when the -- in the grade that was not desegregated at all.

But that's all he said that was -- that it was easy for the Negro student to get out.

However, he does it, whatever the physical arrangement is, by going to the near White school or whatever else it does, he has to make a move which shifts him from a school that he has been going to because it was a Negro school to another school because he's closer to it and he meets whatever other requirements the School Board put on top.

Now, it seems to me that no matter how easy that transfer system is, that it does not answer the requirement of a desegregated or a nonracial school system.

For one thing, it -- it does not in itself answer the point that Mr. Justice Goldberg made earlier which is the question of a White school to which the Negro student is close, which is already fall.

In answer to that, the question of Mr. Justice Goldberg, Mr. Latimer said that a Negro student close by that went into that would displace White students already in and they would presumably have to go somewhere else.

But that is not a school system working on a -- on a nonracial system necessarily.

It -- it has racial facts -- factors to start with.

The -- and a related point to that is that it seems to me that in preserving Negro schools as such was -- which it does through this initial racial assignment, it is going to maintain systems of overcrowding, conditions of overcrowding, a Negro schools that a School Board normally were not for racial considerations would cure of itself by rezoning, by changing attendant systems or by whatever means they chose, they would -- it would at least be a situation that a School Board would normally look to and try to cure.

And in -- in this -- this period of remnants --

Justice William J. Brennan: (Inaudible)

I mean one has to register before the school year begins in speaking of high school.

Everyone registers and as I understand it, he registers wherever he pleases at that junction and -- except in the incidence where there is overcrowding because of too many application receipts in that particular school, he's going to go to the school of his choice.

Mr. Marshall: Mr. Justice Brennan, as I understand what that means that he -- he will go to the school to which he assigned -- is assigned unless he wants to change.

Justice William J. Brennan: But he -- but --

Mr. Marshall: And the --

Justice William J. Brennan: -- Mr. Latimer told us was that -- that there's no business of assignment, and as I understood him this is all on the premise of -- the way it's going to work as Mr. Latimer described it for us, all bets are off for the past.

You start in September 1964 and you go to any school you want to register.

There's nothing else you have to do, you don't have to go back to the school you've been attending, there's no application for transfer of that school involved.

You merely go to the school and register where you want to.

Chief Justice Earl Warren: That's high school --

Justice William J. Brennan: High school alone, yes.

Chief Justice Earl Warren: Yes.

Mr. Marshall: Now, Mr. Justice Brennan, as -- as I understood that, Mr. Latimer was describing the way transfers worked.

The way they worked, that the way that you worked --

Justice William J. Brennan: (Voice Overlap) but he didn't use the term--

Mr. Marshall: Well --

Justice William J. Brennan: -- he -- did he said he didn't care what they -- what -- what label you put on it, that this is what's going to happen that youngster and his parent go to the particular high school, a youngster wants to go and there, he registered.

Mr. Marshall: Well, I think, Mr. Justice Brennan, it would be easiest if I described it in terms of the -- the opinion of the court below.

What Mr. Latimer was describing was a change which the School Board was making or was going to make in response to Judge Bell's per curiam opinion after the original opinion of the Fifth Circuit to correct the record.

And Judge Bell, at that time, said that the School Board had to eliminate all factors in dealing with transfers that made it more difficult for a Negro who had already in a school because he was a Negro to get out, then it would make it to -- for a White student to transfer from one school to another.

And if I can put it this way, Mr. Justice Brennan, the opinion of the Fifth Circuit in approving that is wrong then because they are talking in terms of transfers.

They are talking about a school system which is perpetuated by -- in terms of initial racial assignments but in which they have made it easy, as easy as possible for Negro students who are still or put into school or go to a school because they went there last year.

And they went there last year because it was a Negro school, no matter where they came from, that's why they went to it, make it easy for them to get out rather than the School Board reorganizing the school system so that no student is in the school because he's a Negro in the first place.

Justice William J. Brennan: Do you agree --

Mr. Marshall: What -- whatever else you say, the Negroes that are in the Negro high schools now in the 9th grade next fall will be there because they're Negroes.

Justice William J. Brennan: Do you join Ms. Motley, the only solution here even on Mr. Latimer's premise, is the one she suggested?

Mr. Marshall: Mr. Justice Brennan, I -- I would -- if -- if we were in the District Court and we were suggesting plans for the District Court, I would agree with her but I -- I do not think that I know enough about the Atlanta school system or -- or -- and I don't think that it's a constitutional requirement, Mr. Justice Brennan.

It maybe the best plan for Atlanta, I do not know.

Chief Justice Earl Warren: Well, I think it's quite evident -- it must be quite evident to counsel that -- that we are confused about this situation and I think also that there's some confusion among counsel as to -- as to what the facts are.

Before we decide this case, we want to know what facts we are deciding the case on.

If there is anything outside of this record that we must decide the case on that we would like to -- that we would like to know.

If -- so, I -- I think we will ask counsel to or counsel for the School Board to prepare a memorandum for us that is actual in nature, not a brief or an argumentative brief but one that is actual in nature that will demonstrate to us what -- what the basic facts of this case are and what we must reach in order to -- to decide it bearing in mind the questions that have been asked here from the bench.

And do you think you could do that for 15 days, Mr. --

Rebuttal of A. C. Latimer

Mr. A. C. Latimer: I would think so, Your Honor.

Chief Justice Earl Warren: Very well.

If you will do that then and counsel for the petitioners may have 15 days to reply.

Very well.