GREEN v. COUNTY SCHOOL BOARD
Legal provision: Equal Protection
Argument of Samuel W. Tucker
Chief Justice Earl Warren: Number 695 Charles C. Green, et. al., Petitioners, versus County School Board of New Kent County, Virginia et. al.
Mr. Samuel W. Tucker: Mr. Chief Justice, and may it please the Court.
This case is here on a writ of certiorari to the Fourth Circuit.
The case involves the public schools of New Kent County, Virginia.
There are but two such schools, each with its elementary and high school department serving grades 1 through 12.
There is no residential segregation in New Kent County.
White families and Negro families live in every part of the county, yet three years ago no child of either race have been brought into contact with persons of the other race as a part of his normal daily public school experience.
In March of 1956 when this action was commenced, some 739 Negro children attended George Watkins located in the western half of the county, and some 522 white children attended New Kent School located in the eastern half of the county.
18 Indian children living in New Kent County were transported by public school to Sumari Indian School in adjoining Charles City County.
For more than ten years, the county school board of New Kent has simply ignored this Court decision in school segregation cases and we submit they had no intention of complying unless required.
Negro citizens of the county petitioned the school board to end racial segregation in the school system.
They too were ignored.
On March 15, 1965, 36 Negro school children and their parents brought this class action in the eastern district of Virginia praying that the school board be required to adopt and forthwith implement a plan which will provide for the prompt and efficient elimination of racial segregation in the public schools.
This action so far as its heading, brought in a result, be as well have been ignored.
On June 1, 1965 when the defendants answered, they said in effect that the school board has no due to the desegregate the schools and if any Negro parent was unhappy about the attendance of his child at the Watkins School, you need only to apply to the Virginia People Placement Board for transfer of the child to the New Kent School.
Such -- and such is the board's position today, except for the fact that the board has reassumed irresponsibility of assignment and transfers, and the further fact of the State People Placement Board no longer exists.
After the school board -- the school officials had filed their answer, they found themselves faced, as many school boards around the country, are faced with the threat of loosing federal funds under Title VI of the Civil Rights Act of 1964.
So, like most of the school boards in the south, the New Kent board on August 2, 1965 while the litigation was pending, adopted what was basically a standard freedom of choice plan meeting what were then the minimum requirements of the Department of Health, Education and Welfare.
Essentially, this meant that any child or his parents could only before May 31 of any year choose whether the child would attend the New Kent School or the Watkins School.
Now of course the predictable practicality of the adoption of the freedom of choice plan was that no white parent was going to choose for his child to attend the Watkins School, and only the more aggressive Negro parents would risk their child being an unwanted intruder at the New Kent School.
On June 28, 1966 the District Court approved the plan as supplemented.
There were some additions to provide for faculty desegregation which did not come in effect however the following year.
The case was retained on the docket with the lead to either pardon or to seek further relief.
The court's memorandum noting that it may be necessary, or may become necessary to revoke in full or in part the approval which the court had given the plan.
But meanwhile, 35 Negro children had broken tradition by enrolling in the New Kent School in the fall of 1965.
On appeal by the plaintiffs, this case was, and the case against the county school board of Charles City County, it was Bowman or Cole, were argued in the Fourth Circuit on January 9, 1967.
And at that time, some 111 Negro children had obtained assignments in New Kent School.
No white child was enrolled in Watkins School and no white person taught at Watkins.
One Negro teacher visited New Kent two days per week or the equivalent day.
Indian children were still being transported to Sumari School over in Charles City County at all times before.
And today, the picture in New Kent is just slightly altered from that.
The Indian children are now, ten Indian children are now attend New Kent School.
Some 115 Negro children, an increase of four over the previous year, attend New Kent School, but 621 and that's 54% of the county's Negro school children attend Watkins School completely isolated from all of their white and Indian citizens except one white teacher who was assigned to Watkins School initially this year.
Chief Justice Earl Warren: The Indians were assigned --
Mr. Samuel W. Tucker: The Indians --
Chief Justice Earl Warren: -- to the white scholl?
Mr. Samuel W. Tucker: The Indians were assigned to the white school beginning of this year.
Chief Justice Earl Warren: What was the reason for that change?
Do you know?
Mr. Samuel W. Tucker: I don't know whether there's pressure over in HEW where -- it probably was a requirement of the Department of Health, Education and Welfare.
I'm only surmising that.
Chief Justice Earl Warren: I see.
Mr. Samuel W. Tucker: Of such are the facts 14 years after this Court concluded that in the field of public education, the doctrine of separate but equal has no place.
The Court of Appeals opinions were rendered on June 12, 1967, the basis for the decisions being in the Brown versus County School Board of Green County case.
The majority opinion by Chief Judge Hanesworth states what we consider two contradictory propositions which we feel this Court has to resolve.
First, the majority says and nobody would disagree with the abstract statement, that the burden of extracting individual pupils from discriminatory racial assignments may not be cast upon their parents.
But, the holding of the majority is totally inconsistent with the abstract statement where they said that the school board may not be required to make compulsory assignments to achieve a greater intermixture of the races, or as is otherwise stated by the majority below, that the constitution does not require that he, the individual pupil, be deprived of his choice freely expressed.
In sharp contrast with this holding, Judges Sobbeloff and Winter emphasized what we think the true constitutional imperative in this case is.
And that is the freedom of choice is not the sacred talisman, it is only a means to a constitutionally required in the abolition of the system of segregation and its effects.
Using as nearly as channeling which suggested by the respondents, we would state the issue here as in these words.
The county school board of New Kent County, Virginia has a constitutional duty immediately to assign children to each of the public schools so that children of all races will attend schools indiscriminately.
And in support of that, we argue two propositions, the Brown contemplated that this school system would long since have been converted into a unitary non-racial system.
And second, the freedom of choice in the context of this case is merely an impermissible expedient to evade the constitutional duty.
On May 17, 1954 this nation, indeed the entire world, was electrified by this Court's holding of the Negro children being segregated of the public schools, were being denied the equal protection of laws.
A many Americans were jubilant.
Some were relieved.
Many were disappointed, but there were done who question what the Court meant when it decided that in the field of public education, the doctrine of separate but equal has no place.
From that point of departure, Americans have come to accept the demise of the doctrine of separate but equal in other areas, but it still lingers in the area in which this Court first pronounced it or pronounced its demise.
Having settled the basic issue, the Court then addressed to counsel and directs the re-argument upon two questions including a question for which posed two alternatives.
(A) further decree would necessary to follow providing that within the limits set on normal geographic school districting, Negro children are forthwith be admitted to schools of their choice, or (B) might the Court in the exercise of its equate to powers permit an effective gradual adjustment to be brought about from existing segregate system to a system not based on colored distinctions.
Under respondents argue in their brief that the quandary that was faced in the court at that time was freedom of choice now or gradual progression to a system which would allow freedom of choice in some indefinite time in the future.
We do not so read the questions but in any event, this Court's 1955 resolution of its question number four said nothing about the choice of any individual.
On the contrary, the Court directed that there be among other things, revision of school districts and attendance areas therein into compact units to achieve the system of determining admission to the public schools on a non-racial basis.
It was obvious that such revision in large and complex school districts would require more time than would be required for a simple school district like New Kent County with two separate and equal schools.
Hence the court charged the District Courts to allow time when necessary, but the lower courts would ere to be bear in mind that the burden rests upon the defendants to establish that such time is necessary in the public interest in consistent with good faith compliance at the earliest practical date.
In New Kent County with two schools, it would be a simple matter to assign all children in the western part of the county to Watkins School, and all of the children in the eastern part of the county to New Kent School.
Or one school could've been made the elementary school and one school could've been made the high school.
Either these could've been done overnight and but for Virginia's infamous massive resistance, we say that the earliest practical date for compliance in New Kent County was the first day of school in the 1955.
The respondents do not suggest in their brief or in any stage in these proceedings that there are or ever have been obstacles of administrative character to justify delay in making the transition.
On the contrary, they have deliberately selected the only available alternative, composite though it may be, by which segregation might continue.
This they admit where on pages 3 and 4 of their brief they say that their adoption of freedom of choice was designed to honor the educational imperative of the system.
By that they meaning, that if they should desegregate both schools that white patrons would withdraw their children form the schools, from the public schools.
I think this suggestion was answered by the Court in 1955 when it said that it should go without saying that the vitality of these constitutional principles should not be allowed to yield simply because of disagreement with them.
We think the answer was reaffirmed in 1958 when this Court considered the Liberrock case, Cooper versus Errand.
We think the same answer was reaffirmed in 1964 in the Prince Ebert County, Virginia case and we submit that on January 15, 1968 when this Court affirmed the tuition grant case from Louisiana that that was another answer -- sufficient answer to that threat or the possible to white persons might withdraw their children from the public schools.
We submit that in New Kent County, compliance with the Brown mandate is long overdue that the time for deliberate speed has long rendered.
Freedom of choice in New Kent and in most places where it's been adopted.
It's just another expedient to avoid compliance with Brown mandate.
If a residential segregation prevails, school boards wishing to retain segregated schools assign children to schools in accordance with their zones, school attendance there and thereby force the racial segregation of children in the public schools.
Such a case before this Court in 1965 as suppose of summarily, Guilan versus School Board of the City of Hoopa.
Whereas here, residential segregation does not prevail, the school board pleads it should not force children to attend school with children of the other race.
Force is seen as normal government regulation when its use retains segregation.
The school board seem to make it sound horrible when used with reference to putting children of both races into public schools together.
New Kent here appoints to dicta in the case from Atlanta, Georgia Kelton versus Latima and the case from Knoxville, Tennessee Gose versus Board of Education as justifying the adoption of freedom of choice in New Kent.
But those large metropolitan systems it seems to me the court could easily and could easily perceive and did perceive of valid reasons why persons would exercise their choice.
Now the choice in a large system, it may be difference in curricular or other differences by which would validate a parent's choosing one school rather than the other.
But in New Kent County, the only choice is a choice of the white school or the colored school.
And we submit that the state is forbidden by the Fourteenth Amendment to extend such choice to parents and thereby permit parents to accomplish the same thing that the state is forbidden to do and that is to racially segregate children in the public schools.
Justice Potter Stewart: How did these two schools compare physically?
Mr. Samuel W. Tucker: We assume physically that they compare that they're alike.
I don't know of any -- there's nothing in the record that suggest otherwise and my information is that not that I've heard of is --
Justice Potter Stewart: They're more like equivalent in quality and how about in capacity and size, about the same?
Mr. Samuel W. Tucker: Capacity is generally the same.
I mean, I don't want to --
Justice Potter Stewart: They're more or less equivalent in physical facility.
Mr. Samuel W. Tucker: They're more or less equivalent.
The Negro school population is a little larger than the white school population but I don't think that made any difference in the size of the schools, I could be wrong with that.
Justice William J. Brennan: You suggested Mr. Tucker that one of this might have been the high school and the other the elementary school.
What's the present situation?
Mr. Samuel W. Tucker: Each one has an elementary and high school department.
Justice William J. Brennan: In both?
Mr. Samuel W. Tucker: Yes.
This is the 19th year since Brown too.
The struggle to desegregation --
Chief Justice Earl Warren: Can I ask before you get to that.
Mr. Samuel W. Tucker: Yes, Mr. Chief Justice.
Chief Justice Earl Warren: May I ask about the teaching staff?
Is there any difference on the teaching staff?
Mr. Samuel W. Tucker: Today there is one teacher assigned to the Watkins School which is the Negro school and one Negro teacher as I take it be from the figures given is -- which is given as appoint two teacher -- appoint four, teaches two days a week at the New Kent School or maybe some other explanation would be practical.
That's my surmise on it.
I don't -- we didn't develop any striking difference in the qualifications of the teachers.
We developed -- we served the derogatoriness on the qualifications, but we have nothing striking that we would present to the Court to suggest that the -- inequality of the schools.
Chief Justice Earl Warren: I notice in one of these cases at least the Negro teachers were paid about $200.00 less than the white teachers.
Is there anything like that in this case?
Mr. Samuel W. Tucker: I don't think that reveals there, no sir.
Chief Justice Earl Warren: There's nothing in this.
Justice William J. Brennan: Well is there any issue at all of faculty desegregation here?
Mr. Samuel W. Tucker: No.
No issue on faculty desegregation here.
Justice William J. Brennan: No in this --
Mr. Samuel W. Tucker: The circuit remanded the case to the District Court to do something more about faculty desegregation but we elected to bring the student assignment picture here.
The struggle to desegregate the general public schools is in its fourth stage.
For four years, 1955 through 1959, we had massive resistance.
The next three years, 1959 through 1962, we had State Pupil Placement Board or local school boards rejecting the application of Negro children to attend white schools on a basis of criteria which would not apply in the -- to determine the admission of white children of those schools.
That practice was struck down by the Fourth Circuit in May and in June 1962.
Then for three years, 1962 through 1965, we had freedom of choice administered by the State Pupil Placement Board.
The Department of Health, Education and Welfare came to the picture effective of the fall of 1965.
Now the Department of Health, Education and Welfare is seeking to expand or to accelerate the desegregation of schools, but they can only require such speed as the judicial opinion seems to require.
Today, the New Kent School Board says that if any of the inequalities that noted in the Brown decision managed to survive the Fourth Circuit striking down of the discriminatory criteria that they were clearly overcome and everything was made all right on August 2, 1965 as if by the wave of a magic wand when the New Kent School Board formally adopted the plan label freedom of choice.
They said that was all they have to do the schools -- by that act desegregated.
By its own resolution the claims to have become a neutral party without interest in and without responsible for the continuing struggle between those who want New Kent School desegregated -- to be segregated, and those who want every vestige of segregation to be removed.
And these kinds of struggles are going to continue as long as school boards and federal judges can read judicial dicta and make semantic arguments contending that public authorities not required to use a more or the most expeditious means of accomplishing total rather than token desegregation.
And the most famous of such dicta is one that was composed 45 days, I believe it was, after this Court's remand of the Brown cases and the one called Briggs versus Elliot, the one that came from Claren County, South Carolina.
And the Court had convened with counsel to consult the type of decree to be entered and before counsel had an opportunity to make a suggestion what Judge Parker read from the bench, the what has become a very famous and much quoted dictum and is there that sprung the notion as he said that the Supreme Court had not decided that the states with mixed races, persons of different races in the school almost deprived them of the right of choosing the schools that they attend.
Or as the otherwise expressed it that the constitution does not require integration, it merely forbids discrimination.
Now, the -- in analyzing that dictum, the factual basis what was entirely false, because at that time they never had been there never was any right of persons to choose what school they would attend.
Not in the -- and certainly not in New Kent County no where in Virginia and I dare say not in Claren County, South Carolina.
But now in the language of the Fourth Circuit, majority in this very case, that right so bluntly assumed has been accorded an overwriting constitution dimension.
The legal conclusion stated in Briggs that this Court had not decided that the state must mix races persons or different races in the public schools, and the constitution merely forbids the use of government power to enforce segregation.
Those legal conclusions were in the very teeth of what the court had just held that the states failure to mix persons of different races in public schools denied the Negro children of equal protection of laws.
The Briggs Doctrine has been very thoroughly analyzed from the historical and the cases referring to it had been collected by Judge Wisdom in United States versus Jefferson County 372 F2d at 386 beginning at page 861.
The Briggs Doctrine was very summarily rejected by Judges Sobbeloff and Winter in this very case, but unfortunately, it is still living law as far as the Fourth Circuit is concerned and that is why we are here.
So we urge in the words of Judge Wisdom written in the case of Singleton versus Jackson in 1965 that it is time that Judge Parker's dictum in Briggs versus Elliot were laid to rest.
We ask that the case be reversed.
Chief Justice Earl Warren: Mr. Gray.
Argument of Frederick T. Gray
Mr. Frederick T. Gray: Mr. Chief Justice, and may it please the Court.
A few years ago there was a very popular parlor game called gossip.
And the game was played by a person writing down a little statement on a piece of paper not letting anyone see what he had written and then whispering it to the person on his left and letting it proceed to be whispered one person to another around the room, until it finally was whispered back to the person who had uttered it, and he would then state aloud what had been whispered to him and read aloud what he had originally said.
And the point of the game was that the results were usually very amusing and sometimes quite startling that the change that had come to be in what was said originally and what got back to him because the message gets groveled in the transmission.
Over 13 years now since this Court decided the Brown cases.
The cases have been talked about, construed and interpreted in the courts of this land.
And I think that we can very quickly point out some of th results and similarities to the game of gossip by reference to portions of the brief.
Chief Justice Earl Warren: Is the game that you've mentioned had in mind that the players would try to repeat it accurately or that they would try to distort it?
Mr. Frederick T. Gray: They attempt, Your Honor, I would suppose to be that everyone would try to repeat as accurately as possible.
Chief Justice Earl Warren: You think that is comparable to these segregation cases we've had in recent years?
Mr. Frederick T. Gray: I think, Your Honor that the courts of this land have tried as accurately as they can to repeat what this Court has said, yes, sir.
I don't think any of the courts have tried to distort the Brown decisions.
Your Honor, I would recall in the oral arguments -- in the course of the oral arguments in the Brown case, Mr. Justice Frankfort at one point in questioning counsel asked whether or not he did not think that in a decision of this magnitude, the court should not fashion its language with fastidious accuracy with his direct quote.
And I think that Your Honor, in light of these opinions, chose language very carefully because of the significance and importance of it.
And for that reason, I think that we have to the Brown decisions themselves to determine what this Court meant when it wrote about Brown decisions.
If I may point out to the language on page 30 and 31 of the appellant's briefs, in speaking of Brown II, appellants say that this Court presuppose major reorganization of the educational systems.
And the that the direction of Brown II said that the lower courts were held to consider problems relating to admission arising our of physical condition of school plans, the school transportation system, personnel revisions, revision of school lines, attendance areas and so forth.
But this Your Honor was not, as I understand, by an announced, it has been understood.
This was not a direction to the District Court that all of these things of necessity need be revised.
This was said in response to the request that time needed to be granted, and Your Honor said that the District Courts in determining with what speed the District Court must require the school systems to move could take these problems into consideration.
That these things might have to be done in order to achieve the results, but there was no direction that all of this be done.
Chief Justice Earl Warren: But what consideration did they give between 1954 and 1965 in this county?
Mr. Frederick T. Gray: In this county?
If Your Honor please in this county in New Kent County, Virginia immediately following the --
Chief Justice Earl Warren: I beg your pardon?
Mr. Frederick T. Gray: -- in New Kent County immediately following the Brown decisions.
The State of Virginia undertook all pupil assignment function the State Pupil Placement Board had this pupil assignment function.
The county school board had no control whatsoever over student assignments.
When the State Pupil Assignment Board was abolished and New Kent County, Virginia again had the pupil assignment function.
This was the first time that New Kent County, Virginia had the assignment function after the constitutional provision in Virginia requiring the segregation of the races was struck down.
The first action which New Kent Count, Virginia School Board ever took after Brown was to adopt a freedom of choice plan that every child in the county could go to the school of his choice.
That is the first act that these defendants ever took.
Chief Justice Earl Warren: When was the -- when was that act repealed to the state --
Mr. Frederick T. Gray: Your Honor '64, I believe Your Honor, I believe it was '64.
Now going forward with this quotation or this reference in the brief, if Your Honor please and the point I'm trying to make here is that what we have before us is what you have to decide today is, does Brown compel integration.
That runs -- if that's what runs through these three cases.
And at page 31 of their brief, the appellants here attribute to this Court as I read what they are saying in the middle paragraph of that page.
They say that the court did not stop saying that compulsory racial assignment shall seize, here's a direct quote from their brief now, but the court did not stop there.
It ordered rather a pervasively organization which would transform the system into one that was “unitary and non-racial”.
Now as I read this, this purports to be a direct quotation from Brown and I can not find it in Brown, I find it in Jefferson only recently decided.
Now, this goes to the very heart of the case.
I can not conceive Your Honors that Brown ordered compulsory integration.
Mr. Tucker has referred here this morning to the fact that in Briggs against Elliot which was one of the five cases before this Court, Brown -- the time of the Brown decisions.
45 days after the decision, Judge Parker on the fourth district bench handed down the decision that what the court has done is strike down compulsory segregation, but it has not ordered compulsory integration.
And it is inconceivable to me, call it dicta if you like, in its original utterance perhaps it was, but it didn't remain dicta very long.
It has been adopted by one court after another across this land.
And it is inconceivable to me that it could stand in the repeated cases that have come before this Court and stand as a guide for the courts of this land if that were not the meaning of Brown when it was given.
Chief Justice Earl Warren: And has been uniformly accepted?
Has that dicta --
Mr. Frederick T. Gray: I think, Your Honor, until the Jefferson case it has been generally very uniformly accepted, yes sir.
Chief Justice Earl Warren: In the Fifth Circuit?
Mr. Frederick T. Gray: I beg your pardon sir?
Chief Justice Earl Warren: In the Fifth Circuit.
Mr. Frederick T. Gray: In the Fifth Circuit in Jefferson County.
It's the first case which departed from the conception that compulsory integration is not required.
I think Your Honors in preparation for this matter attempting to determine what Brown meant, we have reread the arguments made before this Court and the briefs filed before this Court.
And I sincerely say to this Court that if you were to reread those voluminous arguments and the briefs filed there, you would quickly come to the conclusion that you weren't even asked.
That question wasn't even here.
Mr. Justice Marshall was -- distinguished counsel in the case for the petitioner from plaintiffs there, and I have two -- on two occasions on December 9 in the Briggs case on one -- at one point he said “My emphasis is that all we are asking for is to take off the state imposed segregation.
It is the State imposed part of it that affects the individual children.”
And on another point, we are not asking affirmative.
Striking down the statute will not put anybody in any school.
The only thing we ask for is that the state impose racial segregation be taken off and leave to the county school board, the county people, the district people to work out their own solution to the problems to assign children on any reasonable basis that they want to assign them on.
So we urge Your Honors that in deciding this question, the issue that are here that you return to Brown.
Your Honor, in determining the validity of constitutional and statutory provisions requiring segregation both in the states and in the District of Columbia be laid these provision down alongside the Fourteenth Amendment in the case of the states and the Fifth Amendment in the case of the district to see if they squared with the Constitution.
And we say that must go back to the constitution and lay down freedom of choice alongside the Equal Protection Clause and read the Equal Protection Clause.
No state shall deny any person within his jurisdiction equal protection of the law.
Now that's the tip and that is what we ask for.
Justice Thurgood Marshall: Mr. Gray, did you have freedom of choice before '65?
Mr. Frederick T. Gray: For three years before '65 sir, the Pupil Placement Board, the State Pupil Placement Board accorded any child assignment to the school that he chose.
Justice Thurgood Marshall: You didn't have freedom of choice before '65, right?
Mr. Frederick T. Gray: The county did not have a freedom of choice plan sir, but --
Justice Thurgood Marshall: And the first one that this county ever put on was '65.
Mr. Frederick T. Gray: The first time that this county had the authority after the Brown decision to assign children to school was '65.
For the year --
Justice Thurgood Marshall: You didn't have it before '65.
Mr. Frederick T. Gray: The children had the right prior to '65 to apply to the State Pupil Placement Board which controlled the assignment of all children.
Justice Thurgood Marshall: Well, do you --
Mr. Frederick T. Gray: And --
Justice Thurgood Marshall: -- now say that pupil assignment plan of 1965 was adopted without regard to race or color?
Mr. Frederick T. Gray: I say it's for the --
Justice Thurgood Marshall: Do you say that?
Mr. Frederick T. Gray: I say it for that the pupil placement plan of 1965 accords to every child in New Kent County, Virginia.
The right to go to any school in the county regardless of his race and accords to him full equal protection of the law, but if I --
Justice Thurgood Marshall: It had -- it was for the purpose of giving children freedom of choice and there was no question of the race problem at all.
Mr. Frederick T. Gray: It --
Justice Thurgood Marshall: Is that your position?
Mr. Frederick T. Gray: It was to give children freedom of choice to attend whichever school they want.
Mr. Justice Marshall --
Justice Thurgood Marshall: Was it -- was it brought about because of the Brown decision or not?
Mr. Frederick T. Gray: Oh, on question if it was brought about by the Brown decision, yes sir, because the --
Justice Thurgood Marshall: So race was involved in the adoption of it.
Mr. Frederick T. Gray: Race had to be involved in adoption of it, sir prior to the Brown decision, the Constitution of --
Justice Thurgood Marshall: Well was it --
Mr. Frederick T. Gray: -- Constitution of the State prohibited the mixing of the races.
Justice Thurgood Marshall: Well Mr. Gray, was it adopted with any purpose other than to perpetuate as much segregation as you could?
Mr. Frederick T. Gray: Mr. Justice Marshall, let me ask you in this manner if I may, as I can see the situation in New Kent County as related to Brown.
Prior to the Brown decision with two schools, one in each end of the county in New Kent County, there was a fence.
There was a legal fence across that county and the law of the State of Virginia said to the white children “You go to school A and you may not climb that fence and go to school B.”
And it said to the colored children in the county “You go to school B and you may not climb the fence and go school A.”
And this Court sir, said to the county “Take down that fence.”
And it was taken down by the Brown decision, and the school board said to the children and says to the children “There are two schools in this county.
Look them over regardless of whether you are white or colored, look them over and go to the one that you choose.”
And the appellants here today are saying to this Court “Choices are not being made that suit us.
Put the fence back.”
Build a fence in New Kent County, Virginia today and say to certain of the white children, “No you may not go to school A because all white children can't congregate there and because some of you are white you must go to school B.”
And to say to the colored children, “No you may not all go to school B, you must go to school A, because we can't have you congregating in school B.”
And it seems to me that we are going full circle, the case --
Justice William J. Brennan: Well is it quite -- is it quite like that Mr. Gray?
I thought the idea was that you might create two school districts?
Mr. Frederick T. Gray: But for what reason Your Honor?
Justice William J. Brennan: Well I know, but you might create two school districts and you might say all the children who live in school district A without regard to color shall attend school district A.
When I went to school that's the way they had to set up in my hometown.
I had to go to the school that was set up for the district for which I lived.
Mr. Frederick T. Gray: Well, Your Honor that is the vehicle which would be used.
That is the device which would be used to do it, but for what reason?
It's just inconceivable to me that I stand before this Court, the highest court in this land this morning, defending the school board of New Kent County.
And at this very moment in New Kent County we're denying somebody something.
We're denying equal protection of the law.
That's what they say.
I don't -- they went to the decisions doesn't bother me.
Are we violating the Equal Protection Clause of the Fourteenth Amendment?
That's what we have to square with and at this very moment in New Kent County, Virginia every child in the county just happens by coincidence the choice period is open right now.
From now till the first of May and every child in New Kent County, Virginia has one of these choices.
Chief Justice Earl Warren: Has there ever been a white child admitted to the colored school?
Mr. Frederick T. Gray: Yes.
No white child have applied to go to colored school.
Chief Justice Earl Warren: That is, isn't in that result then that although they took down the fence, they put booby-traps in the place of it?
Mr. Frederick T. Gray: No, sir.
Chief Justice Earl Warren: So that there won't be any white children go to a Negro school?
Mr. Frederick T. Gray: No, sir.
Not unless the --
Chief Justice Earl Warren: Is in the experience of three years in that county where there never has been a white child go to a -- the Negro school, isn't that some indication that it was designed for the purpose of having a booby-trap there for them that they couldn't -- didn't dare to go over?
Mr. Frederick T. Gray: If Your Honor please, if the free choice of an American citizen is a booby-traps and this plan has booby-traps.
Chief Justice Earl Warren: Yes.
And didn't we say in Brown that we couldn't let the feelings of the community delay this deliberate speed that we spoke of?
Mr. Frederick T. Gray: The deliberate speed to what Your Honor?
Deliberate speed to the granting of equal protection of the law --
Chief Justice Earl Warren: That's right.
Mr. Frederick T. Gray: -- not to the integration of a school system.
Not to the integration of a school system.
I ask you sir, who is the plaintiff in those lawsuits?
I think you get to the question there.
Who is the plaintiff?
Who can stand before the bar of this Court and say to this Court “I am being denied my equal rights when I can --“
Chief Justice Earl Warren: I think if I was a Negro in Kent County, I would say so.
Mr. Frederick T. Gray: But sir, by signing this piece of paper, you may go to either school that the county offers.
Chief Justice Earl Warren: But the social and cultural influences and the prejudices that have existed for century there are themselves written into that thing.
Mr. Frederick T. Gray: No.
If Your Honor please, over three years of operation of this plan, first year 35 white children chose to go -- colored children chose to go to the -- Your Honor asked me a question about the Indians let me --
Chief Justice Earl Warren: Yes, yes.
Mr. Frederick T. Gray: -- let me parenthetically explain that situation.
There had been for years Indian tribes who lived on reservations in New Kent and Charles City County, Virginia.
They wanted their own school system and they had their own school system until the adoption of the freedom of choice plan being modeled on the guidelines of HEW which say that you may not transport children out of the a county or into a county to preserve any form of racial segregation.
And for that reason we had to take away from the Indians the schools that they would have preferred to keep, but they chose the school to which they went just like every other child in the county.
But Your Honor, it's just inconceivable that anyone could stand here and say to this Court “I'm being denied equal protection” because as Your Honor said in Brown I “Public education, when the state undertakes to provide, must be given to all on the equal terms.”
Now, I say to Your Honor that any child in New Kent County, Virginia can get any educational facility which New Kent County offers by the mere signing of his name.
Justice Thurgood Marshall: Mr. Gray, on this freedom of choice, so many Negro parents wants to choose to send his child to the -- what the label for the purpose is the previous white school.
As employer says “I suggest that you not do it” would that be freedom of choice?
Mr. Frederick T. Gray: No, sir.
That would not be freedom of choice.
Justice Thurgood Marshall: Well, do you think that's happened?
Mr. Frederick T. Gray: No, sir, I do not.
In this case --
Justice Thurgood Marshall: This is a different county isn't it?
Mr. Frederick T. Gray: Mr. Justice Marshall, in the case before this Court in the Fourth Circuit, there was an admission before the bar of the Court, Judge Hanesworth took into consideration the very pipe of factors that you are mentioning.
And he said “Of course, if there were any extraneous pressures then it wouldn't be a free choice.”
But there is an admission before the bar of the Court in this case that the choices are free and unrestricted.
And in the --
Justice Thurgood Marshall: Is that right here?
Mr. Frederick T. Gray: Sir?
Justice Thurgood Marshall: Is that directed before us?
Mr. Frederick T. Gray: That is in the appendix at page --
Justice Thurgood Marshall: Where about?
Mr. Frederick T. Gray: -- 68 of the appendix, it's in the opinion of the Fourth Circuit and in the brief of the appellants in this case at page 22.
Justice Thurgood Marshall: 22?
Mr. Frederick T. Gray: No, in the appendix sir at page 68 is Judge Hanesworth's statement.
In the brief filed by the appellants at page 22 --
Justice Thurgood Marshall: Where is it?
Mr. Frederick T. Gray: The white brief at page 22, they say, “To be sure each child was given the unrestricted right to attend any school in the system.”
Justice Thurgood Marshall: Well, I also see a quote down the bottom of the same page it doesn't seem to say the same thing.
The very nature of free choice plan had affected long standard community attitudes often tend to include or inhibit the exercise of a truly free choice by or for minority group students.”
Mr. Frederick T. Gray: They are quoting there, if Your Honor please, from the guidelines the Department of Health, Education and Welfare stating of this situation across the country general.
But in this case which was presented to a court of law, counsel for the appellant admitted that the children have a free and un-incumbent choice.
If we're not -- we're talking about free choice plans and that's something else, but what we would talk about is where they do have a free choice.
And in this county, 115 children of the colored race have elected to go to the white schools.
They are going to the white schools.
There is not one shred of evidence offered by anyone that anyone of them has been in any way abused, that any parent has lost his job, that any pressure has been exerted and the school board in notifying the parents of their plan tell them that they will be admitted to the school of their choice to all of its activities that there will be no coercion, no punishment nothing of any kind to use against them.
So it just isn't in this case to say that there are pressures.
In New Kent --
Justice Thurgood Marshall: Is this in the case any place the reason that this plan was chosen rather than some other plan?
Mr. Frederick T. Gray: I'm sorry that I didn't understand.
Justice Thurgood Marshall: Is there anything in the record to show that the school board of New Kent County adopted this plan rather than some other plan?
Mr. Frederick T. Gray: There is nothing in the record to show any reason why the plan -- why one plan was chosen over another?
No, sir, there was not.
Justice William J. Brennan: There's nothing to show that there was any consideration at all of setting up school districts?
Mr. Frederick T. Gray: There is nothing to show why they chose the freedom of choice plan.
Justice Abe Fortas: Do I correctly understand that now 115 Negroes attending New Kent School?
Mr. Frederick T. Gray: 115 Negroes attending New Kent School, yes sir.
And of course Your Honor, as I said, the freedom of choice period is open at this moment.
We don't know what choices will be made for this coming school year.
Your Honor --
Justice Byron R. White: Is there anything in this record to show where the 115 Negroes live?
Mr. Frederick T. Gray: No, sir.
There is not.
There -- now if I may answer to as to this 115 children specifically, no, sir.
The record does show in answer to interrogatories and in the utterance which was developed that generally the pattern of residences is throughout the county.
There's no --
Justice Byron R. White: Well I understand that, I understand that but are the 115 Negroes going to New Kent School most of the Negroes who live around that school?
Mr. Frederick T. Gray: There's -- I do not know sir and the record does not show.
I do --
Justice Abe Fortas: If a Negro --
Justice Byron R. White: Is there state transportation for --
Mr. Frederick T. Gray: There're busses to take the children to both schools.
Justice Byron R. White: And if Negroes living far in the Watkins end of the county could get transportation --
Mr. Frederick T. Gray: Would be transported --
Justice Byron R. White: -- to New Kent?
Mr. Frederick T. Gray: -- yes, sir.
Justice William J. Brennan: Along with the white children who live in the Watkins County?
Mr. Frederick T. Gray: Yes, sir.
The busses --
Justice William J. Brennan: There must be a good many white children living in the Watkins end to attend the --
Mr. Frederick T. Gray: Yes, the busses serve the schools, if you go to the school that this bus is going to you ride that bus.
There's no -- there's no segregation on the busses.
Justice William J. Brennan: And I gather the colored children who live in the New Kent School area are bussed over to the Watkins area.
Mr. Frederick T. Gray: Watkins area if that is the choice that they make, yes sir.
Justice Byron R. White: What would you say if the state said put out the free choice for them and then at the bottom the last line was “Why do you choose this school”, and the parents put down “I prefer to go to a white school”, and the Negroes put down “I prefer to go to a Negro school”, and transfers were allowed on that basis.
Mr. Frederick T. Gray: I think sir what the court would say, but I know what HEW would say, because they very specifically and of course in the adoption of the plan, we also adopt this provision.
They are so fearful of the subtle pressure that Mr. Justice Marshall is speaking about that they would never permit you to question why he was -- why the --
Justice Byron R. White: Well is there any evidence in this record as to why these choices were made?
Mr. Frederick T. Gray: There's no evidence in this record Your Honor, but I can say to you why they were made.
They were made because in a role of Virginia County the colored school is the community center of colored activity.
It's the hub of their social.
They don't want to loose that school.
This is the heart of their social life and their community center.
They -- they go to that school because they want to go there.
In my home city, my home of Hoopla, we want to -- thought was given to consolidating the high school into one high school that was -- they were based on residential patterns.
It was a colored high school which was on one side of the town, the white high school on the other.
Justice Byron R. White: Would you think it's unfair to say that the free choice plan, the way it operates here is in effect authority to the parents to make their choice based on race?
Mr. Frederick T. Gray: Well, the white child parent certainly can not choose to go to a segregated school, because he does not go to segregated school.
Justice Byron R. White: But it isn't if parents -- do you think it's unfair to say that or not to the parent to the extent their racial differences between the two schools is it an authority to parents to make that a fact there is --
Mr. Frederick T. Gray: If, Your Honor, if we were going to -- the only way you could do that is to say that no one but white will go here and this isn't the case.
Justice Byron R. White: But the state is saying to the parents “Now look, as long as you -- if all of you parents got together in the county, if you had a county-wide PTA meeting and you parents decided that we would just like to have a white school and a Negro school.”
And all the parents of the Negro children are going to go to the Negro school and all the parents -- and the parents of the white children said “We're going to send them to another school.”
That would be permissible under this trial, but to the extent to the community itself --
Mr. Frederick T. Gray: Yes, it would be for people --
Justice Byron R. White: Do you think how may have been decided to have --
Mr. Frederick T. Gray: -- it would be permissible under this plan, and I think it would be permissible on the constitution.
Your Honor if I may answer you in this way, I have time to make this answer.
Justice Byron R. White: Go ahead.
Mr. Frederick T. Gray: It seems to me that prior to Brown, the Government of my state and the Government of many states for reasons sufficient to the Government determined that it's better for one reason or another, it's better that white children go to one school and colored children go to another school.
This Court struck that down and said, “You may not have compulsory segregation.”
And when it was stricken down, this county at least said, “All right, I'll answer to that.
Just let every child go where he wants to go.
We deny no one anything.
And now, people stand before this Court and say to you the right choices aren't being made and the only reason that --
Justice Byron R. White: Who signs those forms?
Mr. Frederick T. Gray: I beg your pardon sir?
Justice Byron R. White: Who signs those forms?
Mr. Frederick T. Gray: The parent, guardian or if the child had reached the ninth grade or is 15 years old he may make his own choice.
Justice Byron R. White: Thank you.
Mr. Frederick T. Gray: Either the --
Justice Thurgood Marshall: Mr. Gray, those things you outlined to Mr. Justice White about the feeling and on local rule community in Virginia and that they would prefer to go to their own school and all, would that be fair in assuming that the school board knew that when they adopted this plan?
Mr. Frederick T. Gray: Yes, I think you would sir.
Justice Thurgood Marshall: Then the plan was conceived in an atmosphere of race.
Mr. Frederick T. Gray: The plan was conceived sir by school board which had the duty, a sworn duty to try to preserve public education and to better public education in New Kent County.
They had before them, certainly in law at least, some alternatives.
I presume they could have, if they chose, put the name of every first grade child in a paper bag and say, “All right, we'll do it by lottery.
We'll pull out and this child will go to this school and this child will go to this school regardless.”
They could have done it by pairing the schools, one as an elementary school one as a high school, but as long as they did in a manner that did not deny in any child the equal protection of the law, they did constitutionally.
They chose the plan which they felt would preserve the public education system in New Kent County, Virginia for all of the children and to give them the equal protection of the law.
And I say to you sir that there is not a child in New Kent who can stand before this Court and say that, “The school board of New Kent County is denying me anything.”
Every facility is open to him, and I say to you if it is an education, an integrated education if that's what the colored plaintiff wants I can provide it for him this morning if he's in the courtroom.
He need only to sign that form and check the New Kent School and he will have a fully integrated education.
Thank you Your Honor.
Chief Justice Earl Warren: Can you say to us that there are no community attitudes to pervade that copy of --
Mr. Frederick T. Gray: Mr. --
Chief Justice Earl Warren: -- which would militate against a Negro child saying that he wanted to go to the white school. Can you say that to us honestly?
Mr. Frederick T. Gray: I think Your Honor that I can't.
New Kent County and Charles City County were adjoining counties both of them have a colored population larger than the white population.
In New Kent County, Virginia and I think that the appellant very wisely chose not to proceed with the Charles City appeal which they started to bring here.
Charles City County has progress a bit to follow along the line.
In Charles City County a great many of the elected officials are members of the colored race.
In New Kent County of the governing body, there are four men on the governing body.
One of the members of the governing body is a Negro.
In Charles City County, one of the members of the school board who adopted an identical freedom of choice plan is a Negro and who felt that if we afford everyone a free opportunity to go everybody wants to go, we do not deny them equal protection.
I do not believe sir that there is any community activity.
The race relations in New Kent County, Virginia are excellent.
Chief Justice Earl Warren: Don't we find though in many counties that the larger Negro population, percentage wise, the greater the animosity is toward their participation in things?
Mr. Frederick T. Gray: I think that in generally speaking sir that is true.
Chief Justice Earl Warren: Also the --
Mr. Frederick T. Gray: I think --
Chief Justice Earl Warren: -- large size of Negro population in New Kent County wouldn't bring one normally to believe what you just said.
Mr. Frederick T. Gray: Well, I can always say to you sir, as I have said before that this record in this lawsuit recites in the court's opinion and in the brief filed here they admitted in the bar of the Court they have free and unrestricted choice.
And if you want to send us back on evidentiary hearing as to whether they are community pressure is militating against their choice, that's another thing.
But this case this case on this record has to be decided on the basis that they do have an unrestricted choice.
Chief Justice Earl Warren: But aren't we entitled to take into consideration what has happened in that County for a hundred years before?
Mr. Frederick T. Gray: I don't know what you mean about what's happened in that county for a hundred years before sir.
Chief Justice Earl Warren: Your -- your segregation in all things, not only in schools but in everything.
Your busses and your trains and everything else --
Mr. Frederick T. Gray: Well, I think --
Chief Justice Earl Warren: -- will you segregate those?
Mr. Frederick T. Gray: -- I think that is in your --
Chief Justice Earl Warren: Is in your title?
Aren't we entitled and wasn't the court entitled below?
Shouldn't it have taken those things into consideration in determining whether this was an honest effort to desegregate these schools?
Mr. Frederick T. Gray: I think that it did that into consideration.
Certainly, it was entitled to it, it was a matter of law up until the Brown decision that it was constitutionally permissible to have separate facilities, and this Court had put its stamp of approval of it.
So I think that what you should do is look at what has happened under this plan.
Chief Justice Earl Warren: Without relation to anything that's gone before?
Mr. Frederick T. Gray: To see if this plan is working fairly.
Look at what has happened under this plan.
Chief Justice Earl Warren: Is it accomplishing the purpose of Brown or his progeny when there hasn't been a single white child go to that school that is entirely Negro?
Is that accomplishing any purpose for Brown?
Mr. Frederick T. Gray: As I understand Brown its purpose was to strike down compulsory segregation.
That has been totally and completely accomplished.
If it is your purpose --
Chief Justice Earl Warren: And it referred those cases to the District Court for accomplishing that purpose.
Has the purpose been accomplished?
Mr. Frederick T. Gray: The compulsory integration does not exist in New Kent County, Virginia.
Chief Justice Earl Warren: Mr. -- Mr. Tucker?
Might as well you could I --
Rebuttal of Samuel W. Tucker
Mr. Samuel W. Tucker: We understood that the rebuttal would be done at the end of the three cases.
Chief Justice Earl Warren: Oh!
Mr. Samuel W. Tucker: After Solicitor General's argument.
Chief Justice Earl Warren: Oh!
I see, alright until that time.
Now, that completes the Green versus County School Board of New Kent County, does it?