MONROE v. BOARD OF COMMISSIONERS

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Argument of James M. Nabrit Iii

Chief Justice Earl Warren: Number 740, Brenda K. Monroe et al. versus Board of Commissioners of the City of Jackson, Tennessee.

Mr. Nabrit.

You may proceed Mr. Nabrit.

Mr. James M. Nabrit Iii: Mr. Chief Justice and May it please the Court.

This case is here on certiorari to review a judgment of the Court of Appeals for the Sixth Circuit which affirmed an order entered by the District Court in the western district of Tennessee, approving a desegregation plan proposed by the school authorities in Jackson, Tennessee.

At the outset before I begin a description of the facts and proceedings, let me attempt to state the issue as I see it here.

The question I think is whether a School Board which has maintained a dual segregated system satisfies its obligations under the equal protection clause simply by seizing its illegal practices.

Its practices of assigning pupils on the basis of race of whether on the other hand, the Court should require such boards to begin affirmative steps to thoroughly dismantle the dual segregated system and bring about a system which is no longer segregated.

Now the courts below have agreed with the School Board’s argument which is that their only obligations is to stop using race to assign pupils to declare neutrality and that so long as they don’t use race anymore, it doesn’t matter what happens, it doesn’t matter if they argue that the school there may be largely segregated as they were before.

The petitioner's view in our basic submission today, is that it is not enough merely for the boards to stop their illegal and unconstitutional practices but that in addition, the school authorities have to take steps designed to actually reform the dual system of schools which they have built up to integrate them if you will.

In other words, we urge that the remedy must be designed to purely evil and that the evil was the racially segregated school system that the authorities have put together.

This is a very basic and fundamental question I think about the meaning of the Brown decision because the Court is familiar with the war that's been going on.

A war that many public officials have been waging against the Brown decision for all these years and I think the School Boards and these cases are still fighting that war.

They have sophisticated arguments but they are indeed fighting to keep just as much segregation in these school systems as the courts will let them keep.

That's what's involved here and that's the issue.

Will we have real reform of the segregated school systems or will the courts be content with nominal and token compliance.

United States Civil Rights Commission examined a situation filed and made a report to the Congress and the President last July and it pointed out that in many areas there has been commendable progress but that nevertheless, vast majority of Negro children are still denied the rights, their rights under the decision in the school segregation cases.

The Commission said its conclusion, if these rights are to be secured, this cannot be a time for retrenchment or wavering of purpose and this is our view too.

Now, I think it is helpful to look a bit at the particular facts of the Jackson, Tennessee school system.

Jackson has 13 schools, a little more than 7600 pupils, about 60% of them are White and about 40% Negro.

When petitioners filed this lawsuit in January 1963, there were -- there was still complete segregation of faculty and pupils except for seven Negroes where they admitted in White schools.

There were eight White schools and five Negro schools and today, after five years of litigation, we still have the five all Negro schools attended by 80% of the Negro pupils in the county, a little more than 80%.

Now in August 1963 when the District Court first approved a desegregation plan for Jackson, Tennessee, it approved the plan calling for gradual desegregation in five annual steps of various grade levels.

And the plan proposed by the School Board provided for school zones, provided that each school building would have a geographic attendance area around it but -- and they also made provisions for pupils to transfer out of the areas where they lived and the plan that the judge approved was that any transfer arrangements that the School Board wanted to make would be acceptable provided the court said they were reasonable and were not based on race.

Now, after in the fall of --

Justice Byron R. White: And that means that it was a free transfer system?

Mr. James M. Nabrit Iii: Well, it didn't work out that way.

I think that's what the district judge --

Justice Byron R. White: No, I mean -- is that any different from the Kent County type of plans?

Mr. James M. Nabrit Iii: Well, it's not now but it was -- I was telling the events chronologically.

Justice Byron R. White: I see.

Mr. James M. Nabrit Iii: Now, we have free choice just like New Kent.

We have free transfer out of the zones at that time and in the fall of 1964, 27 Negro pupils after the plan had been operated for two long years, these 27 Negro pupils intervene in the case, complaining that they have been denied admission to White schools discriminatorily.

They also complained that the school zones were gerrymandered and they asked for faculty desegregation.

The District Court held the hearing.

It took evidence and lasting several days to file an issue and opinion of an order in the summer of 1965 and that's what this comes from.

And in that opinion, the district judge held that indeed the School Board was disobeying his prior order that they were discriminating in the transfers.

He thought that the disobedience of his order was so egregious that he ordered counsel fees on that issue.

What the School Board was doing according to his finding was that any White child who lived in a Negro zone was permitted to transfer to go to a White school and 100% of the White children did just that during those three years.

Every White child who was zoned into the Negro areas still went to the White school but the Negro children in those same neighborhoods were required by the School Board to stay in Negro school and this was two years after this Court condemned such an arrangement in Goss case.

The Jackson, Tennessee School Board was still there.

The district judge also ruled that the school zones for the elementary schools, eight elementary schools, five White and three Negroes were gerrymandered racial and that finding by the district judge was followed elaborate presentation of evidence, with diagrams and maps and expert testimony by school educators and the district judge found that the elementary zones were gerrymandered.

Now, the Court rejected the plaintiff's argument about gerrymandering of the junior high school zone.

I'm going to -- I think the trial judge made plain in his opinion however that the basic position which guided his decision of these gerrymandering issues and the zoning issues was a view of a law that he thought primarily a legal question was involved and this is as to what sort of a standard he should use in looking at the evidence.

Now petitioners had two school administrators, two school superintendents as expert witnesses to make a study of the zone lines and the attendance pattern.

And they prepared a number of exhibits which we were not able to print but we have reproduced one of them.

It's the exhibit in the blue folder.

We reproduced photographically a copy of I think the most important exhibit and what -- the exhibit you have in the blue folder is the small copy of the exhibit I have on the aisle, the one on the aisle is just an enlargement of the little one.

Justice Potter Stewart: And we have to peel off three layers before we--

Mr. James M. Nabrit Iii: Yes, I think the simplest way to begin is to start with the basic map of the (Inaudible) layers –

Justice Potter Stewart: That means to peel off the top three layers and we get to the beginning, is that it?

Mr. James M. Nabrit Iii: That's correct.

Now, if you -- the underlying map shows the City of Jackson and if you spread the red dots over, the City that White -- these dots represent the White junior high school children in the city and what the picture shows that they're spread all over the city generally.

They're distributed throughout Jackson.

Justice John M. Harlan: The red dots represent the Whites.

Mr. James M. Nabrit Iii: The Whites.

If you remove that for a moment and spread the blue dots over, you can see that the Negroes in Jackson, Tennessee are distributed more or less in the center of the city.

Now, with -- starting with that situation, the School Board built three junior high schools, all sets the Brown decision.

They built one junior high school in the western part of the city.

They built one in the east and they built one in the center and they adopted and those three schools opened as two all White schools and one all Negro schools and they were establishments and such with all Negro faculties in the Merry Junior High school in the side of the Negro school and the other two schools were established as all White schools.

In 1965 when the Board was ordered to desegregate junior high schools, it proposed these school zones indicated by the green lines so that's the green lines over the blue dots for a moment.

Justice Potter Stewart: Mr. Nabrit, that all of these schools have been built since 1955?

Mr. James M. Nabrit Iii: That's right, that's right.

But in 1965, they began to desegregate.

Justice Potter Stewart: I see.

Mr. James M. Nabrit Iii: Ten years after the (Inaudible).

This is when the plans reached the junior high school.

So what we have is this hourglass shape zone as the witnesses called it in the middle which was the attendance area for Merry Junior High School, a Negro school.

And as you can see it included most but not all the Negroes in the city.

If you remove the -- put the red dots on again and spread the zones over there, you can see that there are a handful of White pupils in Merry Junior High School zone.

Justice Potter Stewart: Do they go to that high school?

Mr. James M. Nabrit Iii: No.

None have ever gone.

Justice Potter Stewart: They transfer out to the --

Mr. James M. Nabrit Iii: They transfer out -- or Jackson and Merry discontinued a 100% Negro school.

Now --

Justice Byron R. White: How about the Negroes in the Jackson School District.

Mr. James M. Nabrit Iii: Jackson is desegregated but all of the Roman figures for the current year are page 3 of the School Board's brief.

Jackson have--

Justice Potter Stewart: How many of the Negro--

Mr. James M. Nabrit Iii: 130.

Justice Potter Stewart: How many of the Negroes who live in Jackson go to the Jackson school?

Mr. James M. Nabrit Iii: I have a total of 135 Negroes in Jackson.

Justice Potter Stewart: I thought --

Mr. James M. Nabrit Iii: I think--

Justice Potter Stewart: How many Negro children are there in the district?

Mr. James M. Nabrit Iii: I'm taking a moment to calculate --

Justice Potter Stewart: These dots stands for --

Mr. James M. Nabrit Iii: Those dots stand for five pupils each.

Justice Potter Stewart: It looks to be 180 then.

Mr. James M. Nabrit Iii: 180.

Justice Potter Stewart: It seems to be.

If each dot is five.

Justice Byron R. White: Well, that's alright.

I just wondered how many to what extent the Negroes have operated into the free choice plan either to go to a White school or to a Negro school.

Mr. James M. Nabrit Iii: We don't have a breakdown for the current year beyond that on page 3 of the School Board's brief.

Justice Byron R. White: I see.

Mr. James M. Nabrit Iii: Now, the plaintiff's expert witness proposed a -- testified that he thought it was quite claimed with this arrangement that merely it has got to remain an all Negro school.

The experience two years prior to the plan had been in the elementary grade.

Every White child in the Negro zone transferred out.

And there were so few whites in the Merry zone and there were so many Negroes concentrated there.

It was just apparent that Merry was going to remain an all Negro school.

So the plaintiff's expert proposed an alternate -- in his testimony, Mr. Herman proposed an ultimate arrangement, plant to desegregate all three schools and it was very simple.

He proposed that the White elementary up in this area called Highland Park, and the East Jackson school and the Negro school down this area flee their pupils to Tigrett, that the White pupils in elementary graduate -- finished elementary school here, the Negro people at the school here send their children to Merry and that the pupils of the two White schools in the eastern section and the Negro school down here in Washington Douglas send their pupils to Jackson.

He said that the capacity is all fit that this method would be in accordance with the traditional way of assigning pupils in schools all over the country of signing the graduates of an elementary school to be gathered to a junior high school.

Justice Potter Stewart: And I gather this eliminated any freedom of choice.

Mr. James M. Nabrit Iii: That's right.

Justice Potter Stewart: You had to go to the school in the district in which you lived.

Mr. James M. Nabrit Iii: That's right.

And you would have assigned pupils so that all three junior high schools would have been desegregated.

Justice Potter Stewart: Well, this had been done by drawing district clients I gathered to accomplish it --

Mr. James M. Nabrit Iii: Yes, in other words, we would have taken the elementary school zone lines and drawn another map and clustered them, combined three of them and made them as zones for the -- made up the zones of junior high school.

Justice Potter Stewart: This was -- you said this man was an expert witness.

What was his area of expertise?

Mr. James M. Nabrit Iii: There were two people yes.

One was a school superintendent and the other was an assistant school superintendent.

They both made a study and they prepared these exhibits.

They made a study of all the school zones.

They were from two different school systems in Illinois and they conducted a fairly substantial study of the Jackson system and they made this recommendation.

The trial judge rejected it because he said these witnesses assume that there was a duty to integrate the schools and to maximize integration, and that was not his understanding of the law so he disregarded their recommendation.

Because apparently the trial judge thought that his search was to find out whether there was a non-racial explanation for the plan.

Other than that, there was a nonracial explanation to find out and explain why the plan retained a large degree of segregation.

It's our view of course that that's the wrong inquiry.

The proper inquiry for the trial court should be to find out if there is any reasonable way of reforming the system, any reasonable way of integrating the school.

If the Court had understood the issue that way, it would have reached a different result.

We think that there must be a duty to disestablish segregation because this is the only way to assure that the effects of the unconstitutional practices are really disobeyed and are not -- and that segregation is not just been carried on under no judge.

It's the only way the community can be disabused of the idea that schools are still segregated just as they always were.

Justice Byron R. White: Apparently your principle then that you're urging would be limited to those areas where there had been legal segregation?

Mr. James M. Nabrit Iii: Well, I think I would make an argument in other areas that's consistent with that one but the argument I make is addressed to such a community and its particular --

Justice Byron R. White: An issue of remedy.

Mr. James M. Nabrit Iii: Yes, yes.

That's the -- I think looking at it as an issue of remedy is very illuminating.

It's very analogous I think to cases like this Courts had under the National Labor Relations Act where you had company dominated unions.

And the issue is whether or not it's simply enough to order them to stop the illegal domination of whether you must require to establish and of course, we would follow that analogy out as this Court has done.

Obviously, what has to be done is to strike a way, to wipe the slate clean.

You can't wipe the slate clean.

Justice Byron R. White: Where there has been official segregation should be followed by some official integration.

Mr. James M. Nabrit Iii: Yes, yes.

This is the only --

Justice Byron R. White: It's your submission.

Mr. James M. Nabrit Iii: The policy of neutrality is not good enough to undo what they've done in the community like this after all, the Tennessee had -- Tennessee school segregation law -- as I think about them are really significant.

They were criminal statutes.

In Tennessee it was a crime.

Six months in jail for running an integrated school.

A policy like that is significant to the public.

It can't be uprooted by a hands-off --

Justice Byron R. White: But do you think this is a plan there that you think is a neutral plan?

Mr. James M. Nabrit Iii: No.

I think there's a class of neutrality about the free choice idea but it's not a neutral plan at all.

I think this is a segregationist plan because it groups all the Negroes together and the trial judge found that that was their intention in the elementary school zone.

He found that they had a segregationist policy in terms of -- in the way they were administering the transfers until we stopped them.

Justice Byron R. White: But are you urging this case here on the basis that this is really a -- this zoning, the junior high schools really, actually in reality is the initial segregation?

Mr. James M. Nabrit Iii: Oh yes, yes.

Sure.

Justice Potter Stewart: Well, was that because you say inherently it's impossible against this background that it could be neutral?

Mr. James M. Nabrit Iii: Well, I think no.

I think that there's nothing you know that's not neutral about the geographic zoning idea.

I think this particular plan was not well intended.

That's all I meant in that.

In a voting case that the court considered several terms ago called Louisiana against the United States.

Mr. Justice Black wrote for the Court that the Court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past, as well as bar discrimination in the future.

It seems to me, what I'm talking about is eliminating the discriminatory effects of the past and that where the School Board is engaged in vigorous efforts to maintain segregation that they must engage in equally vigorous efforts to dismantle the dual system they create.

Justice Thurgood Marshall: Mr. Nabrit, just a point of information, you mentioned the Washington Douglas Elementary School --

Mr. James M. Nabrit Iii: Well, it could be Washington.

Justice Thurgood Marshall: I didn't know if it was (Inaudible) or George, I wouldn't know.

Mr. James M. Nabrit Iii: I see.

But Frederick Douglas.

To finish, I think to fully understand the trial judge's thinking and what we regard as the erroneous standard influenced it.

The trial judge looked at the zones and he thought and this is from his opinion.

He thought fair discretion in drawing zone should not be overwritten unless it constitutes a clearer abuse of discretion.

In other words, a quick thought, he thought he was required to approve any arrangements that the School Boards made as long as they weren't obviously phony -- obvious trait to preserve segregation.

Whereas, we submit that the proper inquiry is for the judge to look at what is the most reasonable way consistent with maintaining an effective educational program.

What's the most reasonable way for dismantling the dual system and for eliminating segregation and that if district judge has made that inquiry, we would get a substantially different results in these communities.

Thank you Mr. Chief Justice.

Chief Justice Earl Warren: Mr. Rice.

Argument of Russell Rice

Mr. Russell Rice: Mr. Chief Justice and may it please the Court.

It was interesting to me to listen to Mr. Nabrit and to realize the changes that can occur something by the way that it is placed in the language.

The trial judge in the Jackson, Tennessee case granted summary judgment in June of 1963, the latter part of June.

A brand new School Board took office, July 1, 1963 and a brand new city attorney took the job on July 1st of that same year.

The first thing that was handed to me when I went in there was what to do about this school summary judgment.

And what they did do is upon my recommendation and I do in a way wait to receive the motives of the School Board in myself impugned with an absolute barren record of fact.

We did the very best that we could do to meet the requirements of the Brown decisions in this Court.

And I'm going to show it to the Court I think some of the differences that exist between what we actually did and the way that it has been stated here today.

First of all, I must agree that I have never read the Brown decisions as being a command for racial mixing as such.

As I read on Brown, this Court said, stop segregation -- compulsory segregation and establish a system of admissions to new schools based on some other factor than race and we've done that in Jackson, Tennessee in our view.

Now, this Exhibit 5 which has been handed to you purported to be the residence of people that live in a zone, that's not so.

The residence of the people that live in these zones appear upon this large Exhibit 11, what you have here is a study of who attended certain schools and it appeared -- their residence appears upon here but the residence of all the other people living there do not appear here.

Now, the initial decision of our trial judge allowed those children attending the school to continue in that school until graduation regardless of where they lived.

Secondly, the transfer provision was allowed and thirdly, those who lived in that zone had the uncontested right to go to that school if they wished to do so.

After all three of those provisions had been applied and the student body had assembled for the school year after transferring, after exercising their right to remain if they had been attending and those who lived in that zone were going there, that is what appears here.

It does not show you the residence of the people.

It shows you who went to that school after all three of these factors had been exhausted.

So as far as zoning is concerned, it shows this Court nothing.

The comments which are --

Justice Potter Stewart: I don't -- you say it shows who went to the various schools.

Now, I'm referring now to this exhibit.

Mr. Russell Rice: Yes sir.

Justice Potter Stewart: This then seems to show that at least some Negro children went to Tigrett Junior High because there are some blue dots inside that to the left of that green line and yet in your brief, it's indicated that no Negro children go to that junior high school.

Mr. Russell Rice: The record that the -- the figures that Your Honors hold in Mr. Justice Stewart is of 1963.

The figures which I use in my brief on page 3 on 1965 and I thought that we did have -- we started out with some in --

Justice Potter Stewart: I thought not maybe --

Mr. Russell Rice: There are seven in Tigrett at this time.

Justice Potter Stewart: Seven, yes.

Mr. Russell Rice: Yes sir.

So --

Justice Potter Stewart: And this would indicate that each one of this dots represents five children as I understood it there are some 70 or so children represented by those blue dots, is that right?

Mr. Russell Rice: I think perhaps -- well, I can't really --

Justice Potter Stewart: More or like 50 perhaps.

Mr. Russell Rice: I hope that the Court can see this, it's not too large.

The blue dots on here, I don't know how it got switched out on these exhibits.

The blue dots on this exhibit indicate where the White children live.

Now this is White children age one through 18 regardless of where they go to school.

This is just where they live.

The red dots on here indicate where the Negro children in the City of Jackson age one through 18 actually live.

This is the Tigrett Junior High School, this is the Merry Junior High School and this is the Jackson Junior High School.

Justice Byron R. White: Mr. Rice, it may interest you to know that at least on this end of the bench you -- I just can't see any dots on your end.

Mr. Russell Rice: Mr. Justice White, I sympathize with my approval problem I have it myself but I wish that I could do something about it but --

Justice Byron R. White: It's nothing to do with bifocal it's --

Justice Potter Stewart: I don't use bifocal, I can see --[Laughter]

Mr. Russell Rice: Well sir, I'm learning to do anything that the Court suggest sir.

Justice Potter Stewart: Well, it just doesn't do a whole lot to refer to the map to those dots.

We can't see them.

Justice Byron R. White: We can't see a dot up here.

Mr. Russell Rice: Alright sir.

I do hope that at some stage of the proceeding the Court will take the occasion to examine.

Justice Byron R. White: That is a miniature form?

Mr. Russell Rice: Yes sir it is.

But nothing in --

Chief Justice Earl Warren: Is that in the record?

Mr. Russell Rice: Yes sir, it is.

In the record referred to --

Chief Justice Earl Warren: The diagram I mean.

Mr. Russell Rice: This one is in the printed record, no sir.

I really thought that in bringing this, I'm doing the right --

Chief Justice Earl Warren: Is there a miniature of that in the --

Mr. Russell Rice: In the official record there is as an exhibit of this type but it is not printed in the Appendix.

Chief Justice Earl Warren: Not in the Appendix.

Could you -- before you go farther with your argument, would you mind telling us what the breakdown is in each of these three schools as to Negroes and Whites.

Mr. Russell Rice: Who attend the school?

Chief Justice Earl Warren: Who attend the schools, yes.

Mr. Russell Rice: Yes sir.

On page 3 in the brief of the respondent if the Court has that there.

The Alexander school --

Chief Justice Earl Warren: Which one is that?

Could you point it out to us?

Mr. Russell Rice: Well, you just want the junior highs Your Honor.

Chief Justice Earl Warren: First, I thought we would go to those three that represented by those --

Mr. Russell Rice: Alright, the Tigrett Junior High School, this school out in the west has 812 White and 7 Negro children.

It is in the predominantly White neighborhood.

The entire area there is White.

Chief Justice Earl Warren: Yes.

Mr. Russell Rice: The Jackson Junior High School which is the one to the east --

Chief Justice Earl Warren: Yes.

Mr. Russell Rice: Has 349 White students and 135 Negro students.

The Merry Junior High which is the one in the center is entirely Negro having 640 Negro children and no White children.

Now the elementary school --

Chief Justice Earl Warren: Now why would that be that they are all Negroes there and no Whites?

Mr. Russell Rice: Primarily Your Honor because the Negro children are preferring to go there and Whites are transferring out under the free transfer.

Chief Justice Earl Warren: But could it be also those various lines that you should draw there, the red lines that appear on your map?

Mr. Russell Rice: No sir.

Chief Justice Earl Warren: Do they have anything to do with it?

Mr. Russell Rice: I don't believe that it does.

Chief Justice Earl Warren: Why were they drawn in that irregular line and going clear across the setting.

Mr. Russell Rice: That's a fair question and I'm willing to give the Court a fair answer.

We were trying to find natural boundaries.

Now, if the Court cannot see this map at this time, it's a little hard to point it out but there are no natural boundary.

We would just assume that boundary lines running in this fashion and in any other fashion, it would make no difference but that did not happen to be any usable boundary that -- that would make it clear.

Justice Byron R. White: What's natural boundaries got to do with educational considerations?

Mr. Russell Rice: Well, it has this factor to consider Your Honor.

If you draw (Inaudible) across blocks in every single street, you've got the problem of who is in this district or who is in that district.

These are merely, clearly identifiable boundaries.

Justice Byron R. White: Is that one boundary seem to follow a freeway?

Mr. Russell Rice: Are you speaking of this one Your Honor?

Justice Byron R. White: Yes.

Mr. Russell Rice: This one follows a major highway until it reaches this point, the third west follows a major highway to this point and follows the railroad out of Jackson.

Justice Byron R. White: And how about to the -- under the north.

Mr. Russell Rice: I was thinking of this one.

Justice Byron R. White: That's right.

Mr. Russell Rice: This boundary right here followed a major role all the way in town going in, you turn west on the major road, go south on the major road and goes out on a major road.

Justice Byron R. White: Now why does it -- there are other major roads around that they could have -- why is that one?

Mr. Russell Rice: There is but this town is an old town and it's caught up in the little tiny square through here and they just simply didn't happen to be one there that we could use and that will show that to the Court.

In fact, these petitioners spoke with these experts that came and examined our system.

The state quite a while (Inaudible) about it and I believe it was Mr. Herman was on the stand, he objected for this and instead he looked like he was gerrymandered to him offered in the tape as said Mr. Herman, you put your own lines on there and we may just settle this lawsuit right now and he wouldn't touch it.

So we have no pride in ownership of those zones but they're not gerrymandered in the sense that we were trying to prevent people from going to some school that they might otherwise be --

Justice Potter Stewart: Mr. Rice, what was the -- in relation to what lines was it that the District Court found gerrymandering as to the elementary schools.

Are they there?

Mr. Russell Rice: Yes sir only elementary level.

Can the court see these green lines --

Justice Potter Stewart: Well, not too easily but I can see something that looks like --

Mr. Russell Rice: Let me say this.

The first time that we presented our plan to the court, the trial judge approved our district lines.

On the motion to rehear, he set it down for further hearing.

At that time, after one year experience, the School Board of its own volition changed this land right here.

It had come in, in this fashion and across.

Just moved it down to straighten that line.

The trial judge took where we followed that railroad track down with this line right here, he moved it over and came down that part right there.

That's the extent of the -- I believe that's all of the gerrymandering that he found in the elementary lines.

Justice Potter Stewart: And did he ever deal with an issue of gerrymandering on this junior high school line.

Mr. Russell Rice: Oh yes, we had an extended hearing on question of gerrymandering and there just doesn't happen to be a natural boundary to come there.

Now, let me point this out.

We stipulated with these petitioners about the high school line which run on a major third layer, I believe as that one continued just like that straight and I think that Merry High school, they have thirty Negroes.

They have taken advantage of the unfettered opportunity to attend the White school.

The boundary line --

Justice Potter Stewart: Well, what -- in any event as long as you have a free transfer plan and one can go out anywhere he pleases what significance do these lines have anyway?

Mr. Russell Rice: It has this significance Your Honor.

Anybody that lives in that district has the unqualified right to attend that school.

Justice Potter Stewart: I see.

Mr. Russell Rice: Now, we were told by this Court to eliminate segregated dual system and this display on right here sets up a unitary geographic zone for every school that we have in our system, we take that student by the hands and make him go in that school physically every year and register and as far as the City of Jackson is concerned that is where that child must go to school unless their parents choose otherwise.

Justice Thurgood Marshall: Mr. Rice, you drew the line right in the middle for the high schools, is that right, in the middle of that map.

Mr. Russell Rice: Something like that.

Justice Thurgood Marshall: Well, why couldn't you use that same line for the junior high school?

Mr. Russell Rice: I possibly could.

Justice Thurgood Marshall: Wouldn't that -- and just on the question of energy.

Mr. Russell Rice: Question of what?

Justice Thurgood Marshall: Energy -- wouldn't be easier to do that and all of those involved in business.

Mr. Russell Rice: We have no pride of authorship in those lines Your Honor.

If that line suits this --

Justice Thurgood Marshall: Would you be willing to put that line there now and say that everybody on this side goes to that one junior high school and everybody on the other side goes to one or other too?

Mr. Russell Rice: As long as the Court allows us the freedom that Goss gave us.

Justice Thurgood Marshall: My question didn't give you that freedom.

Mr. Russell Rice: Well, I'm not agreeable to do it because I don't think it's constitutional requirement.

Now when we prepared this plan and I can go so far as to say when I have prepared.

I had to look to see what this Court told us to do and when I look at Brown, I stated to the Court what I thought Brown said and if that's not the law then I'm wrong but that's what I read it to mean.

I look to see if it had to be a rigid implacable zoning and I found where this Court in the Goss case went out of its way to tell us that if we had a free wholly nonracial transfer plan then that would be an entirely different question than what we have here the way the Court put it.

Now why would that be of importance?

It's important to this effect Your Honors.

Now, I hope this Court recognizes the fact that Jackson, Tennessee is probably never been heard up here by this Court.

We're not a racist town.

We've had no trouble.

We don't -- we're not fighting the problem and we had the advantage if we were a little late coming along but we had the advantage and so be that we could look at what this Court have had to say and try to do what we were supposed to do.

Chief Justice Earl Warren: When did you start coming along as you mentioned --

Mr. Russell Rice: The first integration in Jackson was on a voluntary basis in 1961, I grant the Court that there was more or less putting the cold water so to speak to see what the temperature was but nevertheless that it was a move of considerable magnitude in that area at that time.

Still in all, it was not until 1963 that we were confronted with Court order desegregation.

At any event in 1963 when we were so confronted where we didn't have the advantage if it can be called at of seeing what this Court has had to say and that's where we went.

Now --

Justice Byron R. White: Well, I gather then that your submission is much as in the previous case as long as you have a free transfer and free choice of schools that you can't be violating the Fourteenth Amendment.

Mr. Russell Rice: We don't think we are violating the Fourteenth Amendment Your Honor.

The Fourteenth Amendment told us to stop doing something.

It didn't tell us to affirmatively do something or command us to do something.

Justice Byron R. White: Well, was it -- suppose with the free choice provision do you suppose in Jackson that was predictable that there would be this pattern of the school attendance.

Mr. Russell Rice: I can say this to you Your Honor that we had no more idea what would come of this than any judge sitting on this panel.

Justice Byron R. White: But in any event, it's a plan which permits the community attitudes to be reflected in the school attendance and you say that is precisely what it does and that does not violate the Fourteenth Amendment.

Mr. Russell Rice: When you speak of a community attitude, I --

Justice Byron R. White: No I mean because the city is in community, it reflects the attitudes of parents and school children.

Mr. Russell Rice: As distinguished from hostile community attitude because in our case -- we haven't got any hostile community attitudes but we do have the attitude to the -- you see that there are many Negroes in this country and in Jackson, Tennessee, we have a considerable group who have great pride in their race and in things that are all Negro and I think it's on erroneous conclusion to conclude that anything that is all Negro if so per se is bad.

Justice Byron R. White: We had the benefit of Goss and Goss said no official transfer plan of which racial segregation is the inevitable consequence may stand under the Fourteenth Amendment.

Mr. Russell Rice: That's right.

Justice Byron R. White: I suppose that would apply to the one that's so called unrestrictive transfer plans as well as any other?

Mr. Russell Rice: I think it would if it was the inevitable result.

Justice Byron R. White: How non-inevitable is it in Jackson.

Mr. Russell Rice: It's not inevitable in this sense Your Honor that in 1966 and ‘67, 475 Negro children took advantage of the integrated education.

In 1967 and ‘68, 615 of our Negro children are taking advantage of an integrated education.

All the White children are engaged in an integrated education.

So to that extent, there is nothing inevitable about it when they register in September, we have no earthly idea whether we will have 615 --

Justice Byron R. White: Are they officially registered in the school of their district don't they?

Mr. Russell Rice: They must do that.

Justice Byron R. White: They must do that.

So thus the state initially places them in a certain school by a school zonary.

Mr. Russell Rice: Right.

Justice Byron R. White: And then there's a transfer --

Mr. Russell Rice: If they choose.

Justice Byron R. White: If they choose without giving any reason.

Mr. Russell Rice: That's right.

Justice Byron R. White: No necessity to give any reason.

Mr. Russell Rice: That's correct.

We tried that -- given a reason and the trial judge found that to be erroneous.

That's what brought on that other problem that we had.

So we abandoned that.

Every Negro child that has asked for a transfer since August 11, 1965 had been granted.

Justice Abe Fortas: They didn't had to deny transfer in any case because of lack of facilities.

Mr. Russell Rice: No sir, we have not.

Now --

Chief Justice Earl Warren: Is there any -- was there any reason why that red line to the left on your -- to my left -- should outline an area of the city which is almost entirely White.

Mr. Russell Rice: Capacity of school.

Chief Justice Earl Warren: I beg your pardon.

Mr. Russell Rice: Capacity of the school, you have to get enough children in the school to use it efficiently that's all.

Chief Justice Earl Warren: Well, is there any reason why you couldn't have divided the city a little differently so it wouldn't find all the Negroes or mostly Negroes in one district and most of the Whites in another.

Mr. Russell Rice: I assume not.

Chief Justice Earl Warren: And why did they do that then?

Mr. Russell Rice: Well as I stated it.

Chief Justice Earl Warren: Was that just happenstance or --

Mr. Russell Rice: Well, the Negroes are all lay up in the center area of the city and almost anyway we diagram it -- we're going to have a substantial group of Negroes together.

But as I state, we have no particular pride of authorship in this geographic zoning.

There are other ways to do it.

This happened to be the one that considering the capacity of the school in the streets and so forth of how they get there in the natural boundary, that's the one they came up with.

Justice Abe Fortas: Do you run a free bus service for school children?

Mr. Russell Rice: No sir.

Justice Abe Fortas: What sort of transportation method is there?

Mr. Russell Rice: There is a city bus system and primarily they are transported either they walk to the school or their parents bring them.

Justice Abe Fortas: And is there a reduced fare for school children on the city bus system?

Mr. Russell Rice: I tell you the truth Your Honor, I don't know.

I just don't know.

Chief Justice Earl Warren: So under your arrangement, the Negroes who live over here on the right side of your map --

Mr. Russell Rice: Yes sir.

Chief Justice Earl Warren: Would have to either walk or have their own automobiles or go on buses to attend the school way over on the left part of your map.

Mr. Russell Rice: Are you speaking here?

Chief Justice Earl Warren: Yes.

Mr. Russell Rice: Well, if these over here wanted to go there, they'd have to get there somehow and --

Chief Justice Earl Warren: I suppose there are no natural boundaries.

No natural routes that would take them up there to that school either because you say that's the reason you drew your lines differently.

Mr. Russell Rice: No sir, you find your -- you find your planned area of our city on the outskirts.

This is an old town and it's just simply has chopped up like court --

Chief Justice Earl Warren: I see.

We'll recess now Mr. Rice.

Mr. Russell Rice: To point out to the Court, I looked at the Appendix for a moment and I found that Exhibits one through nine of the defendants in the court below were consolidated on to this exhibit which is Exhibit 11.

The smaller exhibits were not printed because I had thought that this would be by far the best exhibit to use but in any event those smaller exhibits are in the record if that's in any consequence to the Court.

Chief Justice Earl Warren: Are those the petitioner's exhibits?

Mr. Russell Rice: They are the defendant's exhibits below.

Chief Justice Earl Warren: Oh, the defense below, yes.

Mr. Russell Rice: Now, in the short term that I have left, there are one or two points that I would like to touch upon.

In connection with that transfer plan which we consider to be within the meaning of Goss.

That plan provides the necessary element of flexibility to our plan which assures that this plan will in fact work.

If it were rigid, we would have the immediate reaction of resegregation.

I am of the opinion that if we discarded our transfer plan and made this a rigid zoning plan within three years, it would not be a blue dot to the right of the line.

Now, that may sound like community hostility.

I don't think that it is community hostility.

There was an article on that very question in the New York Times, March 24th which was an analysis of that type of problem by some west coast sociologist and it had so much sense in it and those people understand what we have against it -- so thorough that I had it reproduced and it is in a supplement to this rather voluminous appendix which I filed here.

I am sorry that that appendix was so long but the importance of this key is we felt like that the voice of the educator should be here and at considerable trouble we have amassed in our appendix what we consider to be the educational information that is vital to the determination of the question before this Court.

Chief Justice Earl Warren: Is there anything in the record to indicate the fairness or otherwise the transfer system as you use it here?

Mr. Russell Rice: The record itself is an appeal from the District Court order telling us to see that it is free.

Chief Justice Earl Warren: But is there anything to indicate whether it has function equitably in the past?

Mr. Russell Rice: You mean here back to the August 11th?

Chief Justice Earl Warren: Well, let's put it this way.

Is there anything in the Court's opinion below to indicate whether this was an attempt to do the equitable thing or whether there was discrimination on the parts of the board?

Mr. Russell Rice: The Court has never found that we or in bad faith -- now, they did find this --

Chief Justice Earl Warren: I'm not talking about bad faith.

You can't approve bad faith.

What did they -- what did they determine about discriminatory effects of what you've done?

Mr. Russell Rice: Up to the time of August 11, 1965 decision, the Court said that we were not granting every Negro child a transfer and that sets every White child to get a transfer that we were an error and they fine us a thousand dollars for that.

Now, I might point this out.

Chief Justice Earl Warren: I thought they were acting discriminatorily.

Mr. Russell Rice: In the courts conclusion, I think that would have to be the conclusion, yes sir.

And he told us to stop it.

Now since August 11, 1965, I state to this Court upon paying of this (Inaudible) without any question that there has not been a Negro child denied a transfer in the City of Jackson, in these three school years, not one.

Chief Justice Earl Warren: Is there ever been one since that time asked for a transfer to the school or here on the left, the one where it's all White?

Mr. Russell Rice: There are seven Negro children in there and everyone that has asked to go there has been allowed to go there.

Chief Justice Earl Warren: Has been allowed to go.

Mr. Russell Rice: Yes sir.

We gave serious consideration -- I don't suppose this is really partnered but we did consider appealing that proposition from the District Court but you know, we have other things to consider to carry on that litigation, to keep the pot boiling.

It was worth a thousand dollars to -- let's just get it or the way to the keep the community and get all of that business of education and that's neither here to there but that happened to be the consideration upon which we decided to let it drop because you try not to stir these things anymore than you can have.

Justice Hugo L. Black: But could you tell me in as brief statement as possible, what you understand they want you to do and what you say you are doing, what is the difference between them?

Mr. Russell Rice: The difference between us Mr. Justice Black is that they want us to compulsorily assign White children to what has been the formerly Negro schools.

In other words, they want us to substitute compulsory assignment on the basis of race for elimination of segregation based upon race.

Justice Hugo L. Black: They want you to compel --

Mr. Russell Rice: Right.

Justice Hugo L. Black: The student, colored students to go into the White schools enough to bring about a better showing of integration, is that it?

Mr. Russell Rice: And White children vice versa into the Negro school.

That's the --

Justice Hugo L. Black: Then what is your position.

Mr. Russell Rice: Our position is that the constitution told us to stop discrimination and then we have so stopped that it does not require a racial mixing to any of the -- they don't define what formula but that it does not actually require the state to compulsorily assign somebody in order to achieve racial mixing in any particular school.

Justice Hugo L. Black: How far is it from over here that you put your hand some time ago by where they are or to the school that's all White.

How far is it?

What's the distance?

Mr. Russell Rice: Well, the maximum, I would say its three miles.

Justice Hugo L. Black: That's what they would have to walk or go on a bus.

Mr. Russell Rice: If they were assigned over there, they would have to get there somehow.

Chief Justice Earl Warren: Are there buses that go directly from this school on the right over to the school on the left?

Mr. Russell Rice: No sir.

Chief Justice Earl Warren: --which is all Negro and the one which is White with the exception of seven.

Mr. Russell Rice: No sir.

Our bus system --

Chief Justice Earl Warren: How would they have to go?

Can you divide it?

Mr. Russell Rice: Yes sir.

This is the downtown area of Jackson, Tennessee where my finger is.

All bus systems come in there like fingers or a hand.

They come to the center and transfer and go back out.

It applies that way in all of the city.

Justice Hugo L. Black: What you'd have to do then would depend on in walking like our fathers did, the city buying in a bus.

Mr. Russell Rice: Ride the city buses to town transfer and then ride back up, it would be six to seven miles trip.

Chief Justice Earl Warren: What is the bus fare from this school on the right to the school on the left?

Mr. Russell Rice: The regular fare Your Honor is $0.25.I frankly --

Chief Justice Earl Warren: Each way?

Mr. Russell Rice: But I do not know for certain whether there is a reduced fare on not.

I think there is but I can't say for any degree of accuracy that that's true.

I think its $0.15 but I don't know that.

Justice Thurgood Marshall: Mr. Rice, what's the purpose of the transfer plan?

Mr. Russell Rice: The purpose of the transfer plan Mr. Justice Marshall is simply this, that at the level at which I operate, which is at the School Board level, we have to deal in possibilities.

We are not permitted the luxury of dealing in theory or utopian ideas.

We have to deal in possibilities and that transfer plan allows enough flexibility.

It let's the citizens of that town give and take in accordance with their desire to some degree.

At the same time it guarantees them the right to go to the school in that district if they want to do that.

That assures that that transfer plan is not going to segregate our school, our city just half into on a racial line.

We now live together, play together, work together, go to school together and we do extremely well in our community in view of the uncontrolled forces that are now losing this country.

Justice Thurgood Marshall: But the transfer plan was so that individual people who had a desire to attend the school of one racial group could do so.

Mr. Russell Rice: For any reason.

Justice Thurgood Marshall: And you did realize that that was one of the reasons.

Mr. Russell Rice: We did realize Your Honor that the Goss case told us that a transfer that was utterly free without racial consideration was satisfactory.

Justice Thurgood Marshall: And you realized that this was allowing for the individuals on their own to use their racial prejudices to determine which school they would go to.

Mr. Russell Rice: I don't know that I realized that at all Your Honor.

Justice Thurgood Marshall: But didn't you realize that there were some White people living next door to that Negro high school that wouldn't go there?

Mr. Russell Rice: I have no idea -- we thought there was a good chance and we wondered what we would do.

Justice Thurgood Marshall: Well, what do you think happened if there are none there?

Mr. Russell Rice: They don't wish to go there Mr. Justice Marshall.

Justice Thurgood Marshall: And you didn't realize that.

Mr. Russell Rice: Sir?

Justice Thurgood Marshall: You didn't realize that that they wouldn't want to go to the Negro --

Mr. Russell Rice: I had no idea what they would do.

Justice Thurgood Marshall: You didn't realize that a White citizen in Jackson, Tennessee might not want to go to the Washington Douglas School did you?

Mr. Russell Rice: I'm sure -- I'm reasonably sure that the White people would not want to go there -- yes sir.

Justice Thurgood Marshall: And you knew that when you got this plan.

Mr. Russell Rice: Well, of course I know it, yes sir.

But that was not the basis of this plan.

We look to the Supreme Court to tell us what to do and that's what we found.

Justice Potter Stewart: Mr. Rice, may I ask if you did not have the free transfer privilege.

Mr. Russell Rice: Yes sir.

Justice Potter Stewart: And all of the junior high school children living in a particular distance have to attend the junior high school in his or her district.

Mr. Russell Rice: Yes sir.

Justice Potter Stewart: What would be the racial mix in those three schools?

Mr. Russell Rice: In the -- I have to guess --

Justice Potter Stewart: I appreciate that.

Mr. Russell Rice: The district of the Jackson Junior High School or I would say would be about 25% Negro and 75% White.

The district in the center which is the Merry Junior high school would be in the neighborhood of 70% Negro and 30% White.

The Tigrett Junior High would perhaps be 80:20 something of that type.

Justice Potter Stewart: And I think you said earlier the thing that you apprehended if that kind of plan were adopted, is that those living in the district as of Washington Douglas in that middle district.

Mr. Russell Rice: This is Merry Junior High.

Justice Potter Stewart: Yes that those living in that district, the Whites would move out rather than have their children go to that school.

Mr. Russell Rice: I don't think there is any question about it Your Honor.

Justice Hugo L. Black: As I understand your position from directive and I want to see if it's right.

You take the position that you now have provided for anyone who wants to go to any school he pleases.

That's number one.

Do you consider that to be giving them a right to exercise a voluntary choice and you consider that if you pass alone which -- ask these people who want to stay at that school or to go to the other, that would be either the city or the state compelling people to go to a school that they don't want to go to.

Mr. Russell Rice: On basis of race, yes.

Justice Hugo L. Black: And that's the position you take as a whole.

That's the argument between you isn't it?

Mr. Russell Rice: If I understand -- understood you Your Honor, I think that that's very close.

Justice Hugo L. Black: What does it mean?

Mr. Russell Rice: Well, I'm not really sure that I did understand.

Justice Hugo L. Black: What I intended to ask you was if your view based on the fact, you would not make any child in the community of a certain age or his parents agree to send him to a school which they objected to sending him to that on the contrary, you take the position and you're allowed to take the position that you are not going to compel anybody to go to the school they don't want to go to.

Mr. Russell Rice: On the basis of race, yes.

Justice Hugo L. Black: What basis you -- on any basis, what you're saying is that you're not going to compel him to do.

Mr. Russell Rice: Well, that's the big difference because the petitioners contend here that they should -- if necessary, they should be compelled because they are White to go to a Negro school -- formerly Negro school --

Justice Hugo L. Black: Well, that's on that side.

What about the other side?

Mr. Russell Rice: On our side of the picture Mr. Justice Black, it's our position.

Justice Hugo L. Black: I'm not talking about your position, one is White and one is colored.

What about the colored, are you taking in position and that would compel them to go to the school they don't want to go to.

And would place the state in the attitude of knowing better than they do, what school they ought to go to.

Mr. Russell Rice: Yes, that is right.

You see Mr. Justice Black, here is what we're up against.

Now, I'm talking to educationally, now we're here on an equity posture and I think the real equity in this thing at least in our view, the real equity here is the education of children and that's the only function we have and I think that it can be -- that here is our position on this, that integration on integrated education maybe helpful to some children.

We think that there's no question that an integrated education maybe harmful to some children.

The government in their brief in making a point that there ought to be no transfer point out that while there are no gross abuses here, they took about this more subtle type influence such as fear whether it's founded or unfounded, emotional instability, apathy, fear of being unwelcome -- at any point that those as being a reason why there should be no transfer.

I can say to this Court in all honesty that educationally speaking, that is the child who absolutely needs the right to stay out of an integrated education.

We cannot educate a child under those conditions.

Justice Byron R. White: How many -- I would suppose that that it would be relevant to inquire how many Negroes have requested transfer out of the districts to which they would be initially assigned.

Do you have any -- does the record show that?

Mr. Russell Rice: No sir but I can tell the Court.

In this ‘67 and ‘68 year in which we now are in, 111 Negro children transferred from predominantly Negro schools into predominantly White schools.

Justice Byron R. White: Now, how about the reverse where they --

Mr. Russell Rice: 303 Negro children transferred from predominantly White schools into predominantly Negro schools of the White children transferred from predominantly Negro schools to predominantly White schools, 269.

So to --

Justice Potter Stewart: Mr. Rice, this is a fair question.

If this one all White community, this one all White community, you suppose you'd have a free transfer plan?

Mr. Russell Rice: Well, I really can't say because we don't have -- we didn't have that before us when we were trying to work this up.

We think that we need -- we think any school department --

Justice Potter Stewart: Well for example, I'm sure with your obvious familiarity with this whole problem in other places where they have all White communities are free transfer plans very common?

Indeed, do we find them at all?

Mr. Russell Rice: Well, let me talk about what we had before segregation was knocked out.

We had what amounted to a free transfer if we had room for the people to go.

There are many reasons why people wish to transfer and we tried to accommodate our --

Justice Potter Stewart: Well, I suppose always a transfer in so called hardship cases and things like that.

And I wonder if you ever -- if it's a common experience to have a free transfer plan where the child has for whatever reason his parents think a good one, the absolute right as under this plan I understand of a child to transfer to any school he wants.

Mr. Russell Rice: Perhaps not as absolute as this case because of the terminology of the Goss case but we did have a -- you see the school is for the people and where we've got capacity and the ability to accommodate somebody without damaging the system, we've always tried to do that.

Chief Justice Earl Warren: Mr. Rice, is there any real difference in principle, we claim your program here and the statute of California that was recently before this Court which said that anyone could sell or lease his real estate to anyone that he wanted and could not be compelled to -- sold to anyone else regardless of price.

We struck that down, I wonder if there is any difference in principle between that statute and this one which you have here?

Mr. Russell Rice: Mr. Justice Warren, I'm not acquainted with that case and I really would be reluctant to answer you without knowing the basis of it.

Chief Justice Earl Warren: Very well.