ALEXANDER v. BOARD OF EDUCATION

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Argument of Jack Greenberg

Chief Justice Warren E. Burger: Number 632, Alexander and others against Holmes County Board of Education and others.

Mr. Greenberg you may proceed whenever you're ready.

Mr. Jack Greenberg: Mr. Chief Justice and may it please the Court.

These cases are here on writ of certiorari to the United States Court of Appeals for the Fifth Circuit.

They involved the issue of the timing of desegregation of 14 Mississippi school districts and the procedure by which is to be accomplished.

The basic issue here is how much longer Negro school children in these cases in 14 Mississippi school districts must wait to realize their constitutional right to attend desegregated school systems required by this Court more than 15 years --

Chief Justice Warren E. Burger: Mr. Greenberg, I overlooked advising you and your co-counsel and friends that Mr. Justice Brennan is unavoidably detained but he will participate in the case on the basis of course the entire record, the briefs and the tape recording of the oral arguments.

Excuse me for not having clarified that right at the onset.

Mr. Jack Greenberg: Thank you Mr. Chief Justice.

The basic issue here as I said a moment ago is how much longer Negro school children in these districts must wait to realize their constitutional right to attend desegregated schools decreed by this Court more than 15 years ago.

The law has been disobeyed by respondent districts and the courts below have not required obedience.

We submit that the issues must be seen in historical context.

For only in that context is it apparent why as we urge that this Court's expression on timing must be unequivocal and further what particular procedures which we will describe below are called for to achieve compliance for the Constitution.

The plaintiffs in this case live in school district in a state whose resistance to the Fourteenth Amendment has been second to none.

From 1954 to 1964, note, there was no school desegregation in Mississippi.

Instead, the State has doctrines of interposition and nullification.

Indeed, the University of Mississippi desegregated not until more than a decade after this Court's decision in Sweatt against Painter.

Only after what can be called resistance with the quality of rebellion and that of the cost of life, not until 1964 that the Mississippi Federal Courts acknowledged that children of that State were subject to the requirements of Brown against Board of Education.

And the first case was Evers against Jackson Municipal Separate School District.

Shortly after the filing of that case, Medger Evers, the plaintiff was shot and killed.

A fact which bears upon respondents school districts continue to search and that freedom of choice can be a reality in Mississippi.

But the sorriest part of the story lies in the exercise of discretion by some of United States District judges in that state.

That discretion which in ordinary cases is necessary and salutary has been as to the setting of hearings, the time it takes to render judgments, the refusal to follow the plain intendment of decisions of this Court, the Court of Appeals and the exploitation of ambiguity is real ambiguities and fancy ambiguities in the decisions of this Court and the Court of Appeals.

The District Court has commenced disciplinary proceedings against the civil rights lawyer or Jess Brown merely because he filed the Leake County case which is here as part of these proceedings and sought to keep out of state civil rights lawyers from handling cases in the state only to be reversed by the Court of Appeals.

All of this has had the effect of perpetuating the status quo pendente lite.

And so far in Mississippi, the status quo pendente lite has been racial segregation or minimal token desegregation.

Indeed in these cases, the delay on the District Court became so great that the Court of Appeals was required to take the unusual step in an order of August 20, 1968 of setting a deadline for hearing the District Court.

Plaintiffs in the United States had appealed from the District Court's refusal to set an early hearing on motions following these Courts decision in Green against New Kent County.

The Court of Appeals set November 4, 1968 as the deadline for hearing on plaintiffs' motions and it directed the District Court to enter an order granting relief within the 1968-1969 school year.

The District Court did neither not withstanding the Court of Appeals November 4th deadline, the District Court failed to render an opinion for five months and this precluded any relief for the 1968-1969 school year.

On May 13, 1969 it entered an order upholding the same old freedom of choice plans on the totally unsupported assumption that freedom of choice might work in the future.

The District Court hearing astoundingly enough consisted of more than 3,000 pages of testimony, most of which was devoted to the asserted proposition that Negro school children are the inferiors of whites.

The May 13th District Court opinion reaffirming the validity of freedom of choice plans justified their failure to have desegregated because they did not permit school boards to cross the ties in the Negro community and urge Negro children to go to white schools.

The Court of Appeals reversed on July 3, 1969 --

Justice Potter Stewart: Mr. Greenberg, your -- the statements you just made about cross the ties.

Mr. Jack Greenberg: Yes, pardon me, that's in the opinion of the --

Justice Potter Stewart: Well, I missed what you said, could you repeat it.

Mr. Jack Greenberg: Well, the reason why they said freedom of choice might work in -- freedom of choice had failed to work was because the Court of Appeals, Jefferson orders said that school districts could not go out in to the community and urge children to attend certain schools.

It prohibited them from doing that.

They said that that was why it didn't work.

The Court of Appeals in reversing on July 3, 1969 announced the timetable which gives rise to the instant petition.

The Court of Appeals requested the Department of Health, Education, and Welfare to draw up desegregation plans for the respondent districts and present those plans to the District Court by August 11, 1969 for hearing on August 23.

If there were any objections in the respondents schools districts.

September 1st, eight days later was the deadline for implementation of the plans and the Court of Appeals order use the term immediately.

Accordingly, a team of 27 educators of the Department of Health, Education, and Welfare with distinguished credentials that appear in the record and reproduce in the appendix to our petition paid a series of visits in the school districts in question produced detailed plan.

Now we have filed with the court sets of these plans here, sufficient number for each justice to have a set of plans.

Detail plans for the desegregation of the school districts in question that when inspects these plans and compares something numerous other plans which have found their way into the courts and to this Court, one will find that they are as careful and detailed as one might hope for.

They go in to the mechanics and logistics in the number of students and the number of rooms and of drawing of zone lines.

In addition to which, they go into something which has been made much of and on and off again in various parts of the proceedings below, the whole question of human relations and announcing the necessity of obedience of law and setting up training sessions and training teachers to work in teams and so forth and so on.

On August 19th however, the Secretary of Health Education and Welfare wrote a letter to the Court of Appeals and the district judges withdrawing these plans.

The letter stated that as the Officer of the United States Government with the ultimate responsibility for the education of pupils in this nation, he concluded the time allowed for development of the plans was too short.

His letter appears in the appendix to our petition on page 54-A, there is the pertinent “as to the reasons he gave.”

The administrative and logistical difficulties which must be encountered and meant in the terribly short space of time remaining will surely in my judgment produce chaos, confusion, and a catastrophic educational setback to the 135,700 children.

Black and white alike must look to the 222 schools of this 33 Mississippi districts for their only available educational opportunity.

I might add that while only 14 cases are here.

The proceedings below involved 33 districts because on the private plaintiffs have taken this case to this Court and the Government which is the only plaintiff and the remaining cases has not.

The Secretary's letter mentioned no particular fact concerning any particular district.

In the view of the letter, the circumstances of some of the districts which have only two or three schools with only a few hundred pupils were indistinguishable from districts with thousands of students.

Enrollments in the districts vary from 720 in one district to 11,000 in another.

I calculated the median figure of about 27,000 per school district.

Not a single administrative or logistical fact was mentioned tied to any particular school or tied to any particular period of time, much less described.

No time was prescribed by which the new desegregation plans were to be complied with there be gone.

The letter was completely open-ended only proposing resubmission of some plans by December 1st.

Having received this letter, the Court of Appeals asked the district judge to hold a hearing on the Secretary's request to withdraw plans which the District Court did and the Secretary's letter was followed by a motion of the Department of Justice I might add to the same effect.

At the District Court hearing which to the hearing of August 25th that appears in this particular Court report as transcript, several facts are clear appeared without any contradiction.

One is that no particular difficulty administrative or otherwise with respect to any particular school system was identified.

The sort of things was held about these schools, could be set about any schools in any condition within a process of desegregation or not.

Second, in all likelihood, it is quite clear, the existing plans will be brought back again with no difference or with immaterial difference and in our brief on page 21, we set forth some testimony that occurred in the -- this in the brief not in the petition.

Some testimony which occurred in the trial court hearing in this, Mr. Leonard interrogated one of the witnesses from the Department of Health, Education, and Welfare Mr. Jordan.

Question: Mr. Jordan, I want to clarify to be sure the Court and counsel all understand your position with respect to the delay, should the Court grant a delay?

Am I clear that it is your position that even with the delay that in all likelihood, the plans would be very much similar and that these officials of the school board should start to work with the office of education now, in fact by October 1st to prepare for the movement from a dual to a unitary system, is that your position?

Answer: that is correct.

There is no evidence that there is going to be.

And there, incidentally I might say testimony that two witnesses testified.

One of them inspected three school districts, he said as to two of the districts, the plans would be identical as to the third, he was not aware.

He did not identify any particular change.

Third, the matter of timing which is of course one part of the -- a crucial part of the issues here had been contemplating in drawing the plans originally when the Court of Appeals gave a mandate or presented request to the Department of Health, Education, and Welfare, it requested Department of Health, Education, and Welfare to draw plans according to a certain timetable.

And that timetable was that those plans might be ordered into effect on August 23rd and if ordered into effect on August 23rd, they were to be plans which between August 23rd and September 1st could become operational.

Now, Mr. Anre (ph) who was the chief of all the experts who examine the school systems of considerable number, there might be 27 I said.

Mr. Anre wrote a letter which is in the record here in 44-A of our appendix in which he addresses himself not only to the substance of the plans but the timing in the 44-A of our petition in a rather lengthy letter that discusses in considerable detail, how these plans were developed.

He says, I believe that each of the enclosed plans, educationally and administratively sound both in terms of substance and in terms of timing.

So, the record --

Unknown Speaker: May I ask you a question?

Did the original Court of Appeals order contemplate the plans and objections to the plan in hearing the District Court of any objections in view of the Court of Appeals and possible into this Court which certiorari will all take place of the August 11 and September 1?

Mr. Jack Greenberg: It did not express itself on all aspects of that.

I imagine that one of the problems that would have risen that it did contemplate there would be objections and the issue that then would have arisen whether the issue was to stay and so forth.

But it did contemplate that there would be objections.

If there were no objections, the plans were going to effect.

If there were objections they might go into effect nevertheless, it did not discuss the timing of any review that any court he might see.

Chief Justice Warren E. Burger: Let me see if I get that latter part of your response clear in mind that the Court of Appeals opinion either contemplate or can it reasonably be construed so that the plan submitted in that latter week could have been put into effect either before or during the period when objections were being filed to it and executed pending any appeals or further reviews in this Court.

Mr. Jack Greenberg: The Court of Appeals order did not address itself to what would happen between the time of the entry of an order or putting plans into effect and any review which any party might see.

It did not address itself to that.

But it addressed to the fact that one of the plans is going to effect on September 1.

Chief Justice Warren E. Burger: If the report submitted to the District Court was accepted by the District Court and ordered into execution.

At that time, that is to say in time for September 1st or thereabout.

Would you think it would have been within the power of the Court of Appeals to let that plan be carried out pending any appeal and further proceedings?

Mr. Jack Greenberg: Oh!

Certainly Mr. Chief Justice and that has occurred on other occasions and in several cases in this Court at this time.

The case that of Oklahoma City in Denver there are plans in effect pending review.

There is the paragraph from page 37-A of the Court of Appeals order which I think partly answers the question explicitly and partly in the case the Court of Appeals attitude to such a proposition.

That is what shall happen to our own review.

If I may, I would like to read it.

Because of the urgency of formulating and approving plans to be implemented for the 1969-1970 school term, it is ordered as follows.

The mandate of this Court shall issue immediately and will not be stayed pending petitions for rehearing a certiorari, and that's the mandate ordering these studies to be made and the aspect of the case we are talking about.

One might assume the same attitude would carry over the subsequent court's proceeding --

Unknown Speaker: What -- where are you reading counsel?

Mr. Jack Greenberg: Page 37-A, paragraph 8, the mandate of this Court shall issue --

Unknown Speaker: Of what?

Mr. Jack Greenberg: I'm sorry, of the appendix for the petition for writ of certiorari, the printed document.

The mandate of -- because of the urgency as reference heard to be formulating and approving plans to be implemented for the 1969-1970 school term, it is ordered as follows.

The mandate of this Court shall issue immediately and will not be stayed pending motions for rehearing of certiorari.

This Court will not extend the time for filing petitions for rehearing or briefs in support of or in opposition thereto.

Any appeals from orders or decrees of the District Court on remand shall be expedited.

The record on any appeal shall be largely this Court and appellant's brief filed all within 10 days of the date of the order or the decree of the District Court from which the appeal was taken.

Appellees' brief shall be due ten days thereafter.

The Court will determine the time and place for oral argument if allowed.

The Court will determine the time for briefing and for oral argument if allowed.

That's a repetition.

No consideration will be given to the fact of interrupting the school year and the event further relief is indicated.

And I would submit that indicates an attitude of urgency which make exceedingly unlikely for the Court of Appeals which stay any order that might be into desegregating the school.

So it does not address itself specifically to the question that I was asked.

Now the objections that to implementing the plan which were brought out in the testimony in the District Court in the hearing of August 25.

Not link to any district, not link to any educational, administrative or logistical factor.

Not link to any particular time for any of the generalized objections do not even begin to approach the requirements of a showing prescribed by the second Brown decision.

Much less, the attitude of urgency that's been expressed by the Court in recent decisions in which as Mr. Justice Black has said in his opinion in chambers, the Court has expressed the view that the time is now.

The District Court following the hearing recommended that the delay requested by the Secretary be granted and the Court of Appeals merely residing what occurred, what had occurred without comment or explanation, did just that.

Petitioners after having asked Mr. Justice Black to vacate the Court of Appeals Amendment to its earlier order brought the case hereon certiorari and this Court granted review according to an accelerated schedule.

We submit that the order of the Court of Appeals as amended to be vacated and urged that this Court do two things.

First, we submit that the history of Southern School desegregation in certain areas such as these here today calls for a declaration by this Court in the words of Mr. Justice Black that petitioners are entitled to have their constitutional rights vindicated now without postponement for any reason or as he put it otherwise, there are no longer justiciable issues in the question of making effect if not only promptly but at ones.

Now, order sufficient to vindicate the rights of any pupil in the United States who was effectively excluded from a public school on account of his race or color.

No delay should be permitted for administrative or any other reasons.

Second, we think this is perhaps more important because we think the Court has -- well that entirely explicitly fairly explicitly indicated the former that we ask -- the former declaration that we ask.

We ask for the institution of procedures which will make this declaration effective.

The nature of the procedures we suggest derives from the problem presented by maintaining segregation as the status quo pendente lite.

So long as that is the case, there is a premium on litigating ad infinitum.

It used to be a model of segregation forever now it's become litigation forever making thousands of pages of record on such things as the intelligence of Negro children, delaying the setting of hearings in the entry of orders in the effective dates of plans.

We urge that the plans of the Department of Health, Education, and Welfare on file with this Court.

These plans here be put into effect immediately.

We urge therefore that this Court issue its mandate forthwith to the Court of Appeals directing that it will require the District Court to put the HEW plans on the file in this case into effect immediately.

To that, there is one exception, the plans is the Holmes County in meridian in these 14 cases are written to take effect in 1970-1971.

H.E.W. or some other agency designated by the Fifth Circuit should be directed immediately to revise those plans to take effect at ones and not wait until 1970-1971.

All hearing should be held on expedited schedule to be set by the Court of Appeals.

Now, I'd like to say a word as to what we mean by immediately.

Obviously, some time is required to take care of the mechanics of calling children to classrooms and telling them of new assignments, of notifying bus drivers and so forth.

The existing plans called for the Court of Appeals by the Court of -- July 3rd order contemplated a period of eight days from the hearing of August 23 to implementation by September 1st.

The plans were drawn to be implemented with in that period of time that would design with that in mind.

We submit that no more than that amount of time is necessary and probably less.

Moreover, the schedule should be explicitly set forth in the order.

Justice John M. Harlan: What is the term situation at the schools?

Mr. Jack Greenberg: There is no mid semester break.

There is no midyear break.

There is no midyear break, the year continues straight on through.

Justice John M. Harlan: There is Christmas break?

Mr. Jack Greenberg: There is a Christmas vacation, yes.

Justice John M. Harlan: How long?

Mr. Jack Greenberg: But I'm not certain Mr. Justice Harlan.

I would assume it's the typical Christmas vacation of a week or two.

Now I would like point out that --

Justice Potter Stewart: But they are not semesters or trimesters?

Mr. Jack Greenberg: I have made a great deal of inquiry about that and the uniform reply is no.

I would like to point out that we have had some difficulty in formulating this portion of our argument.

That portion to which defines the word immediately in terms of -- as we have put it now, eight days or less and there is a reason for that.

Because we fear that any expression by the Court authorizing even such a limited delay will be exploited by the defendant school boards in these cases and in other cases as theoretical justification for further delay.

A fixed time deadline, we finally conclude is vastly preferable to reiteration of principles about desegregating and as soon as possible which will result in further litigation.

I'd like to elaborate somewhat on the reasons for these two requests --

Unknown Speaker: Before you get there Mr. Greenberg, this would mean that did many children would change schools and teachers I suppose?

Mr. Jack Greenberg: Yes.

Unknown Speaker: And in fact, they would be reassigned?

Mr. Jack Greenberg: In some cases, yes.

Unknown Speaker: What would have --

Mr. Jack Greenberg: If there would be there, yes certainly.

Unknown Speaker: What would it do or how would it say a child is going to a school, one school and then under this plan will be going to another school to different teacher.

What would be the diff -- would that be -- pose any difficulty at all in terms of his completing his work that year or --

Mr. Jack Greenberg: Well, I think it would pose some difficulty, yes.

I think the difficulty however would not be great, it's not more difficult than what occurs in some districts, I can think of three or four right off hand would have been teachers strikes, would have been a hurricane as it had in Mississippi they put their schools back together pretty quickly.

They -- it would be some difficulty.

We say however that that difficulty is preferable to suffer than the difficulty of having the Constitution continue to go.

Unknown Speaker: What percentage of the children now going to the schools in these districts would be changing schools and teachers, more than 50% or 90%?

Mr. Jack Greenberg: I would hesitate, I have not analyzed the figures in those terms however they all are in this book set up in tabular form and some instances more changes, some instances there is less.

I --

Unknown Speaker: With the large number, large percentage --

Mr. Jack Greenberg: There would be substantial number of children changing.

Unknown Speaker: And teachers likewise would be changing the school?

Mr. Jack Greenberg: Well, the districts are relatively small so the number of teachers wouldn't be very great but in -- certainly in proportion it would be typically proportional to the size of the districts.

Now in effort to elaborate on why we have asked for the relief which we've requested.

As to our first request that the rights be declared effective as of now and the purpose is not merely retorable.

They are not in particular satisfaction that plaintiffs or the children in this district whether their lawyers would take out of the declaration by this Court saying, now this Court has indeed said virtually that as Mr. Justice Black has indicated, there perhaps might be some uncertainty about it.

So long as there are administrative reasons for delay recognize certain consequences follow.

First, disruption and threats of disruption, threats of chaos and confusion, to borrow the language of Secretary Finch, are the premium.

Anyone, someone in official capacity or unofficial capacity who believes that his resistance will stimulate an administrative issue which will need resolution in the courts has given an incentive to make or threat in trouble.

While Aaron against Cooper and Buchanan versus Warley in the cases of this Court traditionally have held that resistance and violence are no grounds for delay.

Resistance and violence may be translated into administrative problems and then there's the question, is that the kind of an administrative problem that warrants delay.

We say that kind of issue, that kind of incentive for those who would provoke delay should be removed.

Second, litigation over administration takes time.

Litigants and courts with the disposition to delay will explore the issue of administration a very great length even when they don't exists the administrative consideration promoted by hostility.

Indeed when there are no administrative reasons at all.

This avenue should be foreclosed as Mr. Justice Black suggest by making the right effective instantly.

Third and this is less concrete but I think more important.

Any pretense of legality should strip from those who are violating the Constitution by continuing to segregate.

They should not be able to parade respectively under the cloak of complying with the so called deliberate speed doctrine.

It should be indubitably clear that they are law violators and I think in this country, lawfulness counts for something.

But the ingenuity of lawyers and judges knows no limit when the incentive is sufficient.

Administration is not the only thing that can be litigated even if the courts would say the rights must be realized now.

Some parties will litigate on forever particularly if they are spending public funds, public tax funds contributed by Negro and white alike.

In the case at bar there could have been no credible reason to believe that litigation of the intelligence of Negro children could have made the slightest difference in the outcome of this lawsuit.

If there were thousands and thousands and thousands of pages of testimony occupying large cardboard boxes on file on this Court, which has been taken down on that issue.

There is no reason to believe after this Court's decision in Green and the unequivocal declaration by the Court of Appeals in these cases or earlier face of these cases, the freedom of choice plans could be sustained at this.

Tons and tons of litigation on the validity of freedom of choice and no one could have anticipated that the Secretary of Health, Education and Welfare would have injected himself into this case in taking the position that it took.

The profit in delay for those who would maintain segregation is that the status quo pendente lite is one of segregation.

We propose that in this case, this Court reverse that presumption and that the status quo pendente lite be one of integration.

In this case fortunately, that resolution is simple enough for their exist plans more detailed than a normally available in any school desegregation case.

They've been put together with the considerable --

Justice John M. Harlan: Do you compose a different rule for this section in the country or is there -- your proposition go to involve the issue as to the cases no matter what part?

Mr. Jack Greenberg: The rule does not rest on the part of country Mr. Justice Harlan.

I would say it exists in a -- come into play in a variety of circumstances.

The first would be of course where there has been a system of segregation maintained by law.

We must just establish it and I think that's been established in case like Carr and Green and the other case before that.

The second is that where the history of the case demonstrates that protracted and interminable litigation is a means for maintaining racial segregation because it stays in effect if litigation was on and on, forever and forever.

Some sort of relief in the nature of temporary relief must be given.

This is not unknown to the law, that law knows temporary restraining orders and those injunctions pending appeal.

It knows the use of various writs to change the status quo in the situation when the law is absolutely clear and the facts absolutely clear.

We turn out to be wrong which I would submit is solely very doubtful in this case, we can go back.

Justice John M. Harlan: As of 15 years, there's these tangible time all over the country.

Mr. Jack Greenberg: Well Mr. Justice Harlan --

Justice John M. Harlan: It would be worthy of limiting the (Inaudible)?

Mr. Jack Greenberg: The -- if one looks at the report of the United States Commission on Civil Rights on the implementation of the Brown decision, one does not try in this degree of resistance all over the country, one finds it in several states, one finds very considerable compliance in many places and particularly since this Court's decision in Green as the report of the United States Commission on Civil Rights show, there has been a very mark increased in desegregation but not so in districts such as this.

And that's why the normal judicial principles of entering interlocutory relief on a not yet fully litigated case should come into play here.

We have these plans here, they have as much detail as any plans implemented in any case it had.

We don't exist -- insist that they are perfect.

I don't think one could insist that about plans which had indeed been fully litigated but they are better than what exists because what exist is racial segregation contoured at the Constitution of United States.

We urge this Court to direct the Court of Appeals to require the District Courts and as to these plans pendente lite except of the plans from ready in its homes to take effect now and any further litigation including appeals should take place with these plans in effect not over to -- not over a period of years.

This would only place respondent districts at the risk as in the entry of any temporary restraining order that having desegregated later they might prevail on the merits that some Court might hold that segregation is permissible or that freedom of choice such as they propose is permissible.

We say there's a very slight likelihood to the point of insignificance of either of those occurring.

To institute these plans pendente lite, places respondents in a situation which will interrupt the school year as Mr. Justice White suggested in his question.

You know, we don't view that lightly but school years are interrupted for varieties of reasons as I stated in response to his questions.

The National Education Association which knows the thing or two about education has filed the brief as a friend to the Court in this case and said there was no reason why the desegregation should not occur immediately in the respondent school districts.

And indeed there is some considerable educational game to be achieved by showing children that the laws cannot be flooded with approval.

In this case, I was reminded in preparing the argument that the argument of the Solicitor General in the case of Aaron against Cooper at Little Rock School case.

This morning in the library I went and took a look to see whether or not it was indeed apposite and I would like to quote from what I think was one of the great oral arguments in this Court which some members of the bench have heard.

Mr. Rankin said and I think it bears on the question of the interruption of education.

If out of this difficulty and undesired situation, the people of Little Rock and these children who shouldn't be hurt by this problems learn the constitutional rights in this country are precious that they have a duty to this Negro boys and girls in this community to help them get their constitutional rights and this constitutional rights happens to be the right to enter a school.

That isn't segregated but someday they will want other constitutional rights and be able to exercise the freedom of speech and the press and everything else that we consider so wonderful in our form of Government and you cant tear down a part of those rights without losing others in the process and there wasn't any part of this country that doesn't have a tremendous state in maintaining each and all of those rights for all of its people.

I would like to say just a word or two about our view of the Government's position in its brief.

Now the Government's position in this case has changed considerably at this stage of the litigation.

As finally formulated in the brief which is filed in this Court, it makes four main points.

It first says that HEW plans need not be submitted until December 1st because HEW may “perhaps want to correct or refine them on page 5.”

Our position is that's not adequate, we don't see any reason in the world to wait until December 1st that if they know there are any mistakes in those plans, that information should have been provided to the Court with the brief or can be provided today.

Second, they say formulation of a workable plan followed by its implementation necessarily requires several weeks of informed effort and we say there has been plenty of time.

That we think that the people who drew up the HEW plans if you look at them were aware of these needs and their belief was that the need for human relations work and informing people about how to work together in the desirability of following the Constitution could be done simultaneously and best in the context of actually following it.

They say that implementation may be had for example a Christmas recess or mid-semester.

My understanding is there is no mid-semester.

So far as Christmas recess is concerned, I don't see why that's anymore desirable than Thanksgiving recess which is sooner or indeed if the mandate of the mechanical work and the Court's deliberations can be completed before that in advance that no reason why we should wait this long.

Finally and this is the part of their position that we find most distressing.

The school board should bear the burden of justifying below in the context of an appropriately expedited appellate review schedule, any delay beyond Christmas recess or mid-semester.

This to me is an indication once more to more litigation forever.

No one doubts that the school boards in these cases in any event, there are a lot of cases where school boards are not doing this.

We're obeying the law and we're having substantial amount of change now particularly since the Green decision but no one doubts of these school boards given their history our going to litigate whatever order comes out of here, no one doubt that this District Court is going to rule with them and they were going to be in the merry-go-round again, going up and around and around again.

We submit that in these cases, we have plans, those plans should be put into effect that those plans shall be the status quo pendente lite and then they want to litigate forever, they can do it.

I doubt that there will be the inventive.

Mr. Satterfield's position I think, a position of the State of Mississippi in the brief which I have submitted indicated as their disposition.

They claim that Mississippi is in compliance with the Constitution that nothing further need be done that the rule of law is being obeyed.

I think I need make no comment on that.

I should like to reserve the balance of my time.

Chief Justice Warren E. Burger: Mr. Greenberg, just one question if I may, since we are very swiftly approaching November 1st now.

The difference between your position and that of the Solicitor General really comes down into something like 60 days more or less, doesn't it?

Mr. Jack Greenberg: Well, I haven't calculated but there -- well, no because there are a lot of differences between that he says that we can keep on litigating -- he is willing to have us litigate forever during the -- well status quo segregation is maintained.

Chief Justice Warren E. Burger: I did not read his brief that way.

Mr. Jack Greenberg: He doesn't agree with our position on pendente lite I gather and the states various objections to it.

Chief Justice Warren E. Burger: But you --

Unknown Speaker: I'm just going to say I didn't read his brief that way.

Mr. Jack Greenberg: On the other hand, page 7, since we agree that the school board's obligation to desegregate the school systems is a median unqualified.

We believe the court below may properly be authorized to acquire the implementation of the plans commencing at the most practical eminent juncture in the school year as for example Christmas recess or mid-semester.

Moreover, the school board should bear the burden of justifying below in the context of an appropriately expedited appellate review schedule any delay beyond this points but we've had expedited appellate review schedules here.

And those expedited appellate review schedules have brought us here.

Chief Justice Warren E. Burger: But I read just as contemplating and certainly permitting during just what you had suggested earlier namely implementing as his brief says and then litigating against the background of that implementation.

I had thought that you and the Department of Justice whereon collision course here coming very close together.

Mr. Jack Greenberg: I had not read that way, I would be quite please if the Department of Justice would take position that we should have a condition of desegregation pendente lite but nevertheless we do disagree on the timing.

I see no point and waiting for Thanksgiving, certainly not for Christmas, certainly the judicial work must be done and no one can say how long it will take the Court to deliberate and come to a conclusion.

But if the Court should come to a conclusion substantially in advance of that, then we say the mandate should go down forthwith and those rights should not be denied one moment longer.

Justice Hugo L. Black: May I ask what kind of order you suggest.

Mr. Jack Greenberg: I suggest an order that the plans for all --

Justice Hugo L. Black: A concrete.

Mr. Jack Greenberg: A concrete order, the order should Mr. Justice Black that for all districts in this litigation with the exception of Meridian and Holmes, the plan --

Justice Hugo L. Black: Why should they be exempted?

Mr. Jack Greenberg: Well because there is some slight revision in those plans necessary which I think would take a matter of several days to work out but in all districts except those plans, except those two districts.

These plans in this book which had prepared by the Department of Health, Education, and Welfare should go into effect instantaneously taking only so much time as is necessary to complete the mechanics of informing the parents and the children and the bus drivers and the teachers and in any event no more than eight days because those plans were drawn up to be implemented.

Justice Hugo L. Black: It's on effect now?

Mr. Jack Greenberg: Yes.

Justice Hugo L. Black: And that is understood, have to be understood that you got to go through certain mechanical steps and you'd say that --

Mr. Jack Greenberg: And I have a -- that's not entirely arbitrary period of time.

That period of time is the time that the Court of Appeals directed the Department of Health, Education, and Welfare to draw a plan for -- within which they could be implemented.

Chief Justice Warren E. Burger: Would you refresh my recollection Mr. Greenberg on the problems of Meridian and Holmes County where there's some building problems there, structural?

Mr. Jack Greenberg: Yes, the department contemplated that in view of the fact that certain building plans were in process.

They would wait for those plans to be completed and consequently desegregation would be completed there in the 1970-1971 school year instead of 1969-1970.

While we would certainly conceive that there might be a much more desirable situation which new buildings and as in 1970-1971, we say they should do the best they can with the existing buildings in 1969-1970 and that all the children, black and white alike share such buildings as they have as at the present time 1970-1971 when they have more buildings, they can then redistribute them again.

Justice Potter Stewart: So what do you suggest that -- what do you urge that our order should be with respect to those two schools?

Mr. Jack Greenberg: That the Department of Health, Education, and Welfare or some other agency selected by the Court of Appeals should be given the directions within a brief time certain to make the necessary revisions and those plans to put them into effect right now.

Justice Potter Stewart: Are you -- you are not suggesting, I gather and I hope Mr. Greenberg that this Court appraise or evaluate these plans, are you?

Mr. Jack Greenberg: No, I think that this Court can appraise and evaluate the quality of the plans on the record that has been made about them without reading the plans themselves.

I confess I have subjected myself to that and they seem like any other plans.

And they certainly come with better credentials than any other plans that I have said.

That the Court of Appeals -- this Court enter an order forthwith directing the Court of Appeals to see that these are implemented, I don't suggest this Court get involved in the details of that.

Justice Hugo L. Black: As I understand it, you are suggesting that the system of your school be ended immediately?

Mr. Jack Greenberg: That's correct Mr. Justice Black.

Justice Hugo L. Black: Would that regard to buildings and as the buildings are unsatisfactory, they do the best they can under such improvements that can be made there perhaps.

Mr. Jack Greenberg: That's correct Mr. Justice Black.

Unknown Speaker: Could I ask you a question.

Do you file that objection with exception to the original part of the deal is to strengthen the plans?

Mr. Jack Greenberg: No.

Unknown Speaker: Why not?

Mr. Jack Greenberg: Not as that the -- we -- there was no opportunity to and just a 4333 to this litigation, I don't know that we would have been disposed to either except for the 1970-1971 plans.

Chief Justice Warren E. Burger: Just to get our focus again, your entire argument is directed to the timing probable now as I get it.

Mr. Jack Greenberg: Yes, except that within that, --

Chief Justice Warren E. Burger: The timing and the status pending in the appeals.

Mr. Jack Greenberg: That's correct.

That's correct.

Chief Justice Warren E. Burger: Those two I regard them as one in my question.

Mr. Jack Greenberg: That's correct.

Chief Justice Warren E. Burger: Thank you Mr. Greenberg.

Mr. Oberdorfer.

Argument of Louis F. Oberdorfer

Mr. Louis F. Oberdorfer: Mr. Chief Justice, may it please the Court.

I appear here today with the lawyers committee for civil rights under a law which has filed a memorandum as amicus curiae by leave of Court and participates and briefly in the oral argument by the consent of the petitioners who have see this some time.

This committee was organized in June 1963 under the co-chairmanship of the late Harrison Tweed and of Bernard Segal of Philadelphia.

They and about 45 other members of the bar, leaders of the bar had formed the nucleus of this committee.

When they joined in a public appeal for peaceful compliance with the Court orders with respect to the desegregation of the University of Alabama, these gentlemen had been concerned about the failure of many leaders of the bar to involve themselves as citizen lawyers at the time of the enforcement of court orders with respect to Little Rock Arkansas and earlier in -- Later in September 1962 at the University of Mississippi.

Their purpose and their interest in this case is because -- is in pursuit of their objective of committing the prestige and skills of private lawyers to creating and preserving an atmosphere which will facilitate prompt and graceful if not cheerful obedience to Court orders on the subject of desegregation.

Since the formation of the committee and since these lawyers have began to speak out as Mr. Greenberg suggest.

There has been less of a vigorous resistance to these orders more graceful compliance.

Schools and such places as Bogalusa, Louisiana had been the subject of orders for reorganization of dual school systems and to unitary school systems which orders have been honored and obeyed.

Recalling the committee's continuing role and interest in this aspect to the administration of justice.

It became concern that the actions of the lower courts and accounts at least of some of the actions of the United States during dependency of these proceedings might tend to cost an unraveling of the atmosphere of respect which has been developed over this recent hard years.

We were heartened by this Court's prompt action on the petition for certiorari and now that the case is here, we have some suggestions as amicus curiae on the merits primarily as respect to remedy.

Our suggestion to the Court in general is that the decision and order of the Court of Appeals of August 1969 should be affirmed insofar as it orders a reorganization of the dual school system in these districts into a unitary school system.

But the August order of the Court of Appeals, unlike the July order of the Court of Appeals, not only set back for 90 days, the period for formulation of plans but it failed to do what the July order had done namely to prescribe in addition to -- to prescribe not only dates for formulation of plan but also precise dates for the commencement of implementation and we would suggest an order or mandate the direct of a further order a precise date for the completion or at least substantial progress toward the completion of the decentralization plan.

Performing dates, an order that prescribes dates not only for formulation of the plan but for performance of the plan.

Unknown Speaker: What date do you suggest?

Mr. Louis F. Oberdorfer: Well Your Honor we are -- we have not been in this litigation.

We haven't been in the crucible of detail about it.

We really can't make a responsible suggestion for particular dates.

We do suggest that as the Court of Appeals had found -- I refer to page 37-A of the appendix to the petition that no consideration should be given that the Court of Appeals should be affirmed in this respect.

No consideration should be given to the fact of interrupting the school year in the event that further relief is indicated.

We wanted to suggest to the Court in appraising the mandate that -- and the United States in its last memorandum concedes as much that there is no reason to worry too much about having this done before summer.

As we -- we would like to suggest from the point of view of the administration of justice, from the point of view of law enforcement if you will, that there are -- nobody is an expert on this I suppose but they are good reasons to believe that the reorganization of the schools can be better accomplished during the school year when the students are in school, when the teachers are in school, when the courts are in daily business, when this Court is in session.

Then would be possible if we had what's happened over and over again in so many school districts.

This is not a decided more or less in rhetoric in the spring as happened in this case, then the summer doldrums set in and then about August when everybody really concern is on holiday, we suddenly -- law enforcement people, court, school administrators, teachers, students are suddenly confronted with the whatever activity goes on to try to delay past opening of school.

And as a matter of fact, they -- the first -- to set these things down for the first day of school is an invitation to whoever would try to interfere, to -- on the theory that if they could just get by that 1st day of September then they are home free for another year.

So --

Chief Justice Warren E. Burger: You suppose Mr. Oberdorfer that that last sentence of the Court of Appeals opinion that you just read --

Mr. Louis F. Oberdorfer: Page 37-A.

Chief Justice Warren E. Burger: Some 37-A--

Mr. Louis F. Oberdorfer: Yes, Your Honor.

Chief Justice Warren E. Burger: -- was directed that the proposition that there is apparently no formal semester at the mid-year or approximately mid-year as in many other places and that they were -- the Court of Appeals were suggesting that if this can't be done until December, let it be done in December.

Do you think that's what they were driving at?

Do you read it that way?

Mr. Louis F. Oberdorfer: That's the possible interpretation Your Honor.

I think there was -- I really think they were saying that -- probably not saying anymore that what I was trying to say namely that whenever you do it, don't worry about waiting until June in order to do it.

Don't worry about waiting until September when in the normal course of hopefully expedited litigation, an expedited effort by the administrate -- by the Executive Branch, the matter is ready to go and the plan is completed.

Go ahead with it and if it happens to be the 3rd day of November, go ahead on the 3rd day of November.

Justice Potter Stewart: Probably, no point quibbling about this language (Inaudible) as I understood this opinion of the Court of Appeals in July 3rd.

Its basic thrust was to put a plan of unitary school system, desegregated system and to effect as of September 1st.

Mr. Louis F. Oberdorfer: That's correct Your Honor.

Justice Potter Stewart: Last September 1, 1969 and that this final sentence reversed only to the possibility of further relief, further ancillary which relief that might be very tribune.

Mr. Louis F. Oberdorfer: Well, it's possible that that means that no stay – might mean that no stay of the order effective September 1st will be granted simply because there may be a later interruption of the school year.

In any event, that the government's memorandum of yesterday says and we believe that the courts below my properly be authorized to require the implementation of the plans commencing at the most practical eminent juncture in the school year.

Now, I have two suggestion about that, one is perhaps instead of authorizing the courts below to require implementation of the plans as I read that sometime during the school year that this courts mandate direct the Court of Appeals to enter an order to that effect.

Unknown Speaker: Do I understand, I think I do that you had agreed with what Mr. Greenberg suggested that the thing to do is to say dual system is old and it is to go effect today and that there is no reason for delay by reason of the fact that things will not be perfect the first day and the thing to do is to go at it now, do you agree with his position on that?

Mr. Louis F. Oberdorfer: I agree with that Your Honor without knowing exactly what now is as to now.

Unknown Speaker: I mean when we issue an order if we do.

Mr. Louis F. Oberdorfer: I had thought and I don't mean to [Laughter].

If you do Your Honor, I had thought that that -- that the order could well be an order to the Court of Appeals to direct the District Court to enter an order and that for that length of time for the mandate to get that --

Unknown Speaker: Then?

Mr. Louis F. Oberdorfer: Then, it would be appropriate if that's the decision.

In any event, that there is no reason to wait for the end of the school year --

Unknown Speaker: There is no reason to wait on future is that deliberate speed?

Mr. Louis F. Oberdorfer: Correct and furthermore that --

Unknown Speaker: Is that what you would like to have us act with all deliberate speed?

Mr. Louis F. Oberdorfer: Faster than that Your Honor.

Thank you.[Laughter]

Chief Justice Warren E. Burger: Thank you Mr. Oberdorfer.

Mr. Leonard.

Argument of Jeris Leonard

Mr. Jeris Leonard: Mr. Chief Justice, may it please the Court.

I first of all would respectfully request this Court seriously consider affirming the judgments of the courts below.

And before the questioning of the counsel who previously argued here completely takes over the situation, may I urge this Court not to be too caught up in the frustration that counsel have portrayed to the Court today.

I don't mean by that for a moment to imply but there isn't a great deal of frustration involved or there is.

Let me just for a few moments to set the stage for a very brief argument that I'm going to make today, give you a little background on where we stand with respect to southern school desegregation, because I unfortunately think there are those who take an entirely too pessimistic point of view and I for one would like to be on the side of taking more optimistic point of view and I think those of us who deal daily with the problems of school desegregation can safely say to this Court that we have made some rather substantial breakthroughs in school desegregation and in truth and in fact the end of the road is in sight.

It is in sight admittedly a long way but it is in sight.

First of all, we're now in the error of Green and counsel continued to refer to the Green decision as a -- an important turning point and indeed it was an important turning point but Green was handed down by this Court just 18 months ago.

Prior to Green, the requirements which were laid down by this Court could in the main be met by a school district adopting some sort of a free transfer plan generally put together in the phrase freedom of choice and upon doing this, the school district was generally considered to be in compliance with the mandates of the Court but Green changed all.

And since the time of Green there has been substantial progress, both substantively as well as procedure in school desegregation, whereas in the 14 years from Brown one to Green, only approximately 20% of the Negro children in Southern schools had moved in to desegregated schools.

In the one school year which was affected by the Green decision, at according to the figures supplied by the Department of Health, Education, and Welfare in that one school year after the effective date agreement, that figure almost doubled so that today it's approximately 40% again in the southern states.

Now whether that figure is completely accurate or not, is not the important issue.

Justice Potter Stewart: The 40% accurate or not is 40% of what?

Mr. Jeris Leonard: Of the total number of Negro children involved.

Justice Potter Stewart: Who are in what?

Formerly in white schools?

Mr. Jeris Leonard: Who are in these school districts in these southern states.

In the southern states and I'm talking about now that the jury school districts without reference to what may be the fact in de facto of school situation.

Obviously, it is going to be much less than that when you take those into effect but we are talking today about school districts where segregation of the races was official, was official policy.

But what is material about the green decision and what is important.

Is that it literally opened up a new era for the guarantee of the Fourteenth Amendment rights of these Negro children on the one hand?

Also the educational benefits to white children and they are there of desegregated education.

So we are little genuinely, a little disturbed about those who become frustrated and say it's been 15 years since Brown.

Well, that's true but it's more true to say it's been 18 months since Green because that's when the important turning point we feel came about in substantial progress in -- is coming at.

Now, let me give you specific examples.

In nine Deep South States, there are better than 1100 school districts.

Prior to the Green decision, more than 200 of those were in fact already desegregated, leaving 900 affected by the Green decision.

Since Green, 400 of those 900 are either desegregated or have in the works in implementation satisfactory at least according to the District Courts, satisfactory desegregation plans therein operation.

Another 100 including these 33 are subject to so-called Green motions to improve the status in those Districts leaving 400 in which no effective efforts are at this point being made on behalf of the children in those 400 districts.

Chief Justice Warren E. Burger: And by that, do you mean as to those 400, that there are, there's no pending litigation?

Mr. Jeris Leonard: There's nothing going on here.

And many of those are districts whose federal are substantial number better than 25% are districts whose federal funds have been cut off or just literally their line follow, so to speak.

Justice William O. Douglas: Do you have any figures for say the north of the -- north land, New England midwest?

Mr. Jeris Leonard: Mr. Justice Douglas, I'm frank to say that where our figures for the north are very scarce but I want to point out to the Court that the department has commenced the jury type litigation against northern school districts where it has been found.

And it has commenced litigation or at least investigated segregation of faculties even in de facto, northern school districts.

I do want to point out to the Court that there is a procedural problem at least with respect to the Government and that's the requirements of Title IV of 1964 Civil Rights Act.

The Attorney General must have a written complaint from a parent before he can initiate litigation.

So, that does have an effect on these remaining 400.

We have asked the Congress to remove that and hopefully, that may be done.

Now, let me turn for a moment to Green as it applies to the instant case.

I don't think there's any question in anyone's mind that Green required these school boards to act.

But the fact to the matter is that we must be cognizant that they didn't act.

Whatever the reason is that they didn't act, they didn't act and there are many other districts similarly situated like these 33 and whether we like it or not, it's true.

That fact is true in too many jurisdictions and therefore, the job of drawing the desegregation plan is in fact going to fall to the District Courts.

And the District Courts in many, many cases have called upon the Government.

They've called upon H.E.W. for help and rightly so and I think that that's going to -- it's going to aid the total desegregation process.

The Attorney General himself has said the fact that you can call upon qualified experts.

The courts can at H.E.W to help in this process is going to assist the District Court, assist the school districts themselves if they want to be assisted, if they want to cooperate.

If they don't, then these people are there to assist the District Courts and the Secretary of H.E.W himself has joined in with this idea of using these educational experts to aid the school districts and the District Courts.

But I plead with this Court to remember that these people are professionals.

They are professional educators and their professional judgment must be given some weight.

It must be given some credence or the entire experiment is going to fail and if it fails, we will return to a time where the District Court judge and the lawyers from both sides will be sitting across from each other with the school district map, drawing lines and sticking pins and drawing some arrow lines.

Infringing, in truth, and in -- and I'm not talking about a New Kent County type of case.

I'm not talking about a two school district, one black and one white.

But there are districts in this situation among these cases which are terribly complicated.

Justice Hugo L. Black: Terribly what?

Mr. Jeris Leonard: Complicated Your Honor.

Justice Hugo L. Black: Do you have the brief of the American Educational Association?

Mr. Jeris Leonard: I have Your Honor and I disagree with it.

Justice Hugo L. Black: Do you agree with it or disagree?

Mr. Jeris Leonard: I disagree with it.

I agree however with the two experts who are members of that association, who testified on behalf of the Government, with respect to the complexities and I'm not saying that all the districts are the same.

Some of them, I'm sure are very simple.

Mr. Greenberg said, there's two school house districts.

There are at least one that has only three and that isn't terribly complicated.

But there are complications because --

Justice Hugo L. Black: Why do you have to have a plan to just say, we're not going to have a delayed session?

Mr. Jeris Leonard: Justice Black, I was going to do it now.

I'm just going to get to that.

Justice Hugo L. Black: What does that do anything except delay?

Mr. Jeris Leonard: Justice Black, what this Court has required in Green is a reorganization of school districts, a reorganization that is really in fact a merger, a merger of two separate and distinct school systems, one black and one white into one.

Now, the testimony in this case clearly shows that in some of these districts, that this is going to include great restructuring, faculty reorganization, realigning of bus routes, readjustment of the --

Justice Hugo L. Black: Why not do it and put it in effect and let the arrangements be made thereafter.

Mr. Jeris Leonard: Well, the “what” is the problem, Justice Black.

Justice Hugo L. Black: The what?

Mr. Jeris Leonard: The “what” is the problem.

You have to do something and that something has to be some kind of a plan.

The “it” is the problem.

Somebody has to --

Justice Hugo L. Black: Start it in each one of these schools and said now we're not going to have any dual system of schools.

There's going to be unity.

And if the buildings don't suit, we'll do the best we can with the buildings we have.

We'll do the best we can with the teachers here.

Why have to draw any other plans but that?

Mr. Jeris Leonard: Justice Black, that is the position of the petitioners in the case.

That's pendente lite argument.

Justice Hugo L. Black: No, I'm asking you why that view is right and whether it's right or not.

Who's ever view it is?

Mr. Jeris Leonard: I think it's wrong.

I think it's terribly wrong.

I think there maybe some other alternatives to this frustration that may be felt.

Justice Hugo L. Black: The frustrations from the 15 years, isn't it?

Mr. Jeris Leonard: My point is that the frustration I think is more properly directed to the 18 months because it was with Green that this Court --

Justice Hugo L. Black: You want to divide it up into segments.

Mr. Jeris Leonard: Pardon?

Justice Hugo L. Black: You want to divide it up into segments.

Mr. Jeris Leonard: No, I really don't.[Laughter]

I really don't Your Honor.

What I'm pleading with this Court is not to do something precipitous like the pendente lite idea.

There are --

Justice Hugo L. Black: Would anything -- would anything be precipitous in this appeal now?

With all the years gone by?

Mr. Jeris Leonard: Mr. Justice Black, let me --

Justice Hugo L. Black: Since our order was given?

Mr. Jeris Leonard: Let me say that many hundreds of thousands of the children that we're talking about are children of very tender age.

Many of these little people are six, and seven, and eight, nine years old and what you do with them can have an affect on their total future life.

We want to, I hope that our point is, we're trying to improve the education of the Negro children.

We know we will improve the education of the white children by desegregation, anyway.

But let's try to do it with some order.

Let's not send children --

Justice Hugo L. Black: Are you arguing -- are you arguing for perpetuation of the term with all deliberate speed?

Mr. Jeris Leonard: I am not.

I don't believe that's a law now, Mr. Justice Black.

I don't think that -- I think that's by the boards.

Justice Thurgood Marshall: Mr. Leonard, can you and I compromise you could say, pay no attention to Brown too, pay attention to Green.

Well, could we compromise and look at Aaron and Cooper.

Mr. Jeris Leonard: Well, I think that Aaron and Cooper is an entirely different situation.

I don't think that there's anyone who wouldn't --

Justice Thurgood Marshall: Green in which this Court have agreed to sign each Justice's name to it which is very seldom done and said that all nine agreed.

Wasn't that a slight warning?

Mr. Jeris Leonard: I think that it was Mr. Justice Marshall but I think it was in Green that this Court articulated the need to have plans.

Plans realistically designed to work now.

That's we believe, that's what the law is.

The question is you got to get the plan.

You got to find the way to get the plan into effect, into a court order in these situations.

Because the districts in too many situations will not voluntarily put these plans into effect and that's the point I made.

Let me --

Justice Potter Stewart: In this case, we have -- we have before us and there have been formulated plans for these 14 school districts.

To be sure, there maybe subject to refinement in some of their details but in this particular case, these are the plans for 14 school districts.

Mr. Jeris Leonard: Well, Mr. Justice Stewart, let me point out to you that I don't think there's any disagreement about that.

There is some clear cut testimony from both of the witnesses and I might point out to this Court it is based on the testimony of people like the two witnesses that the Government presented that the Secretary acted and did what he did.

This wasn't something that he pulled out of the air.

He acted upon the advice of the people who were involved in the drawing of these plans and what they say is really two things.

Number one, there are elements to these plans that need validation.

For instance, there is in one school district, the substantial reorganization of the bus routes but there's no bus routes drawn.

Now, are we to ask six, seven, eight, nine-year-old children who stand out in the street corner waiting for a bus that the bus driver doesn't know where to take.

That can be overcome in a short period of time.

I don't point that out as being any great difficult but the fact to the plans is -- the fact to the matter is that the plans as filed were not as refined, as incomplete as they could've been if these men who worked nights, weekend, I'm talking about the educators, if they had an opportunity to really refine them.

That's problem number one.

Problem number two was that September 1st is the key day because it was September 1st that the Court of Appeals set down as decision day.

Now, the plans would have gone into effect on December 1st.

In the first place, some of the school districts would already have been opened, three or four or five, I'm not sure just how many but some of them would.

Majority of them were opening, I believe on September 2nd the next day because September 1st was Labor Day and the following were opening the following week September 7th.

Now, I plead with this Court that decision day and implementation day and school opening day were all on the same day.

Now, that can't be.

We certainly can't organize our affairs given a reasonable period of time not deliberate speed by any means but some reasonable opportunity given the -- allowing these professionals some reasonable chance to work their professional judgment.

There's no question what the eventual result has to be here and it's got to be soon.

Justice Byron R. White: They've had six or seven weeks since September 1st.

Mr. Jeris Leonard: And they have been meeting with the school districts during that period of time.

Justice Byron R. White: Well, are there any plans that have developed within the last six or seven weeks different from the ones that were originally filed?

Mr. Jeris Leonard: Mr. Justice White, I honestly don't know the answer to that question.

I meet with the people involved regularly.

Justice Byron R. White: Well, apparently, the two witnesses, if you have testified for the United States indicated some dissatisfaction with these plans.

Mr. Jeris Leonard: Not dissatisfaction so much with the total plan as with the lack of ability to validate the plans to conduct uncertain peripherals.

Justice Byron R. White: I'm not sure I know what you mean by that --

Mr. Jeris Leonard: Well, I think --

Justice Byron R. White: Did the two witnesses you had on the stand disagree with these plans?

Mr. Jeris Leonard: Not basically.

No, they did not.

Justice Byron R. White: And as far as you know, they still don't.

Mr. Jeris Leonard: I'm certain that they still do not at least at the last juncture of my talking to --

Justice Byron R. White: The gentleman who propounded these plans and filed them not only said that they were sound substantively but they could be put into effect in a timely manner.

Did your witnesses disagree with that?

Mr. Jeris Leonard: They did.

Justice Byron R. White: Is that -- and do they still?

Mr. Jeris Leonard: They still do.

Justice Byron R. White: So what is their -- what have been -- what they proposed?

Mr. Jeris Leonard: I think, I doubt very much that there was any testimony that related specifically to any period of delay.

It was simply the shock that this was all occurring on the same day.

Justice Byron R. White: The experts -- so your two experts or then some others who were advising the Secretary thought that these plans might be perfectly sound but they just had to make more arrangements to put them into effect, is that it?

Mr. Jeris Leonard: But they had two things, as I indicated it.

They felt the need to validate some parts of the plan.

Justice Byron R. White: Validate?

Mr. Jeris Leonard: That is to conduct some additional studies to determine.

Let me give you an example Mr. Justice White.

For four weeks, the counsel mentioned, Mr. Oberdorfer mentioned Bogalusa.

For four weeks I was in Louisiana during the school openings down there and I went to a school in one parish in which there were 500 children standing outside door because somebody miscounted the number of people, number of youngsters who were inside that particular school zone.

Now, those plans also were prepared in a little longer time frame than these but you will recall that the Louisiana, you may not but the Louisiana appeals were handled just prior to the Mississippi appeals by the Fifth Circuit.

Now, that's what can come about when a validation as Mr. Solons and Mr. Jordan in their testimony indicated is not done.

Chief Justice Warren E. Burger: Just one question if I may.

If there had been no appeal here after the Court of Appeals had acted, can you assure us that the plans would've been submitted on December 1st or is at 15th, December 1st in accordance with the Court of Appeals order?

Do you know any reason why they would not have been submitted on that schedule?

Mr. Jeris Leonard: Mr. Chief Justice, the plans if this Court does nothing with this lawsuit between now and December 1st, the plans will be submitted on December 1st and all of those elements of the plans which can be implemented according to the decision of the Fifth Circuit, all of those which have any reasonable hope of being implemented during this school year.

When I say elements, there are various elements in the desegregation plan.

All of those that can be implemented in the 1969-1970 school will be -- school year will be, again, this is dependant upon the decision by the District Court but our urging will be -- let me put it that way.

And if there are any elements in those desegregation plans which cannot be implemented during this school year, we will expect the school boards to come forth and meet the burden and show why that particular element or those particular elements in that plan cannot be met.

Justice Byron R. White: What -- can you give me an example?

Mr. Jeris Leonard: Yes.

Justice Byron R. White: If you think might have --

Mr. Jeris Leonard: You have a --

Justice Byron R. White: -- might not be able to implement this year?

Mr. Jeris Leonard: You have one of the school districts, I think has some 11,000 and there are some others in the package of 33 here that have some fairly good number of students.

Many times, the school reorganization, Mr. Justice White, will call for the building of middle schools, separating a grade structure.

Many, if you look at these plans, you'll find many of these schools are K through 12, K through eight plus a high school.

Their grade school feeding, feeding high schools and please understand I'm not an educational expert by any means but what many times will happen is in a reorganization of a school district, you will adopt an elementary school structure, one through four, one through six, a middle school structure and a senior high school structure.

Now, it can well be that either through the construction of temporary or permanent facility.

Justice Byron R. White: Well, I thought the -- I thought these plans had failed to cover those counties where that sort of a problem would come up at all.

Mr. Jeris Leonard: No, Mr. Justice White.

There's 11 -- there's 11,000 students in one of the districts and there are --

Justice Byron R. White: That does not necessarily follow that this plan is not, can't be feasibly implemented during this year.

Mr. Jeris Leonard: Well, I think Mr. Solon's testimony was that in his opinion, he's the one who worked on the Holmes County, the big district, or Heinz County.

I'm sorry, I'm not sure whether it's Holmes or Heinz, in any event the big one, that he felt that there was not any reason why the plan could not be fully and completely implemented totally by next September.

In other words, even with -- even those elements that might need some delay that they would not go beyond the 1970-1971 school year.

Justice Hugo L. Black: Mr. Leonard, one more year or this year?

Mr. Jeris Leonard: That's only for part of the plan.

Justice Hugo L. Black: But it's another year.

Mr. Jeris Leonard: That is the --

Justice Hugo L. Black: Contemplation, another year.

Mr. Jeris Leonard: For a part of the plan.

Justice Hugo L. Black: Yes.

Mr. Jeris Leonard: That's correct Justice.

Justice Hugo L. Black: But it's all done into parts or segments.

Mr. Jeris Leonard: No, not always.

Green versus New Kent County wasn't --

Justice Hugo L. Black: So, that wasn't the first one that said that they had to do it now.

Why do you mark that as the first case and said they had to do it now.

Why was that such a turning point in the history?

Mr. Jeris Leonard: Well, --

Justice Hugo L. Black: What about the Virginia?

Mr. Jeris Leonard: I may be wrong Mr. Justice Black (Voice Overlap).

Justice Hugo L. Black: What about the Virginia school which had said substantially the same thing.

Mr. Jeris Leonard: The Fourth Circuit --

Justice Hugo L. Black: Two years before this Court.

Mr. Jeris Leonard: Let me say that --

Justice Hugo L. Black: That the time for deliberation was out and the thing to do it, do it now.

Unknown Speaker: The Green throughout the Freedom of Choice was.

Mr. Jeris Leonard: Green throughout Freedom of Choice made it clear that the -- unless they really had worked that and said you needed a plan and that I think is what everyone is struggling for is to get the plan before the Court.

Unknown Speaker: Too many plans, not enough action made.

Mr. Jeris Leonard: Well, -- [Laughter] We hope not Mr. Justice.

Justice Thurgood Marshall: What about the planning of the report that was called (Inaudible) concern, is that report made?

Mr. Jeris Leonard: That report was made, Mr. Justice Marshall and the in service training and the rest of it is going on right now.

Justice Thurgood Marshall: And the report was made.

Mr. Jeris Leonard: The report was made.

Justice Thurgood Marshall: Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Leonard.

Mr. Summer.

Argument of A. F. Summer

Mr. A. F. Summer: Mr. Chief Justice, may it please the Court.

I did not have the opportunity to participate in the trial of these cases below.

I've been the Attorney General of Mississippi for just a few months and therefore have not previously participated in any of these school cases.

So, with the Court's permission, it will be my purpose to take a very few minutes to the remainder of our time and pass the argument then to the Honorable John Satterfield who has participated in these cases from the beginning and who will be better qualified to answer any of your specific question regarding these specific cases and with your permission, I would refer to him for same.

Just a few commentaries in regard to the say the least loose statement made for the counsel that the law has disobeyed and the courts have not required obedience.

That's carrying the -- therefore, I believe the something that does not appear in this record nor in my opinion in any other record of the court below.

He has not -- this record will not show any disobedience of the court or other court orders in this case, nor do I believe that would show that the judge has refused to require the obedience to those.

And further, to counsel's extreme reluctance, to have the same standards applied to all of the schools in the nation that apply to those in the area in which we live.

With the Court's permission, I would like to point out our part of the evidence in these cases below that addresses itself to that point.

The record in these cases contain absolute proof taken from the H.E.W files that there are hundreds of all-Negro and all-white schools in the de facto areas which was being inquired about this moment ago.

They are all-Negro and all-white because of the living patterns and other factors.

We feel we no longer have the issue of segregated schools but de facto, just as those and other parts of the nations just as their schools are.

How much longer can it be fairly said that Chicago with 610 schools can have 208 all-Negro schools, 184 all-white schools and 228 schools with no Negro teachers.

But each of these schools before the court must affirmatively or forcefully in agree to each of their schools summarily without hearing both students and faculty whether it is right for the students or not.

Well, St. Louis with its 164 schools, 83 of which are black and 31 of which are all-white, 81 of which either have or have either all-black or all white teachers, continued except from this new constitutional principle they are advocated.

As a matter of fact, proven in the record of these cases of the 12,497 and the 100 largest school districts in the nation, assuming that a school with less than one percent of the minority race is a in all-Negro or all-white school, 6,137 are 48% are either all-black or all-white.

These are schools that have never had a dual system.

Our record in the hold is no worst than what seems to be the national average.

The advocates here would have these children into -- these children involved in these lawsuits, 135,720 children endure a discriminatory application of a constitutional standard, that is not applied universally in this country.

With that, if the Court please, I would defer to Mr. Satterfield for the balance of the argument.

Argument of John C. Satterfield

Mr. John C. Satterfield: Mr. Chief Justice --

Chief Justice Warren E. Burger: Mr. Satterfield.

Mr. John C. Satterfield: -- and then the Court.

It is a pleasure to appear before you today in this connection because there are quite a number of matters which I believe need to be cleared off for the benefit of the Court, the litigants and of the children here involved.

The first is this that this procedure has been handled by the petitioners in the same way they handled the appearance before the Fifth Circuit (Inaudible) which was purely on a motion consenting a docket setting at which time, the Fifth Circuit had no record before it, no evidence before it, no briefing over the basic merits, briefing only as to timing and at which time, the Fifth Circuit pronounced (Inaudible) which has later been referred to as law of the case.

Secondly, when these cases appeared as Heinz County before the Fifth Circuit, they were heard upon eight days notice.

The record was in four packing boxes and was not available to the Court and the Court in its direction of October 25th found.

It did not intend to review the record but would accept the finding of the District Court on all matters of fact which with deference in whole affair to do.

This proceeding is brought without the record before the Court.

Although it was available to be brought even within the time limited under Rules 20 and 12 of this Court and Rule 11 of the rule of the federal procedures.

And this is again an attempt to make broad statements not supported by the record because there is no record.

For instance, the statement had been made to some 3,000 pages of testimony and most of which was directed toward the allegation there's a difference in the intelligence of Negro and white children.

That statement is absolutely without any foundation is in fact, in fact and contrary to the truth.

The record contains evidence demonstrating compliance by many of these districts with the requirements not only of the cases throughout the years but the Green, Ray, Monroe and Carr.

I will not take the time to go into the illustration.

We had the time to bring before this Court but in the Meridian District, in athletics, in activities, in faculty, in participation of students, it is demonstrated in the record that there is no longer a dual system but there is a unitary system.

And Mrs. Comp (ph) a leader of the NAACP of the Southern Christian Leadership Commerce of the Black Methodist who has been active in all Civil Rights Movements in Meridian for the last 31 years testified the system was unitary, that there was a complete right of attendance of all students to every school and that in whole opinion, it was working and would continue to work.

And there is evidence throughout this record if petitioners were willing for the Court to have the opportunity of saying it, of that nature, applicable to most of these issues.

They differ in many, very different ways.

May I call the Court's particular attention to the fact that as it has been stated to this Court, we did not know until when you read the brief we received Saturday morning after office close as the statement on page approximate 23 thereof, they would be made available to the Court copies of certain plans.

We've never seen what was handed to the Court but we've seen plans that were filed.

I assume that may be it.

But it should be noted that in this matter the petitioners bring piece by piece that would say what the Court to see but have asked the Court to pass upon this matter without there being before the Court the record of the Court which was available to them and could be brought.

And what do they ask?

Their prayer appears on pages 30 and 31 of their present brief and that is one that was the most amazing, it frankly may it please the Court, it made both of our state (Inaudible) stand up.

I've never seen anything like it before.

In the first place, it asked this Court to require that they'd be put into effect plans which have been withdrawn.

Withdrawn by whom under own allegations, withdrawn by the Department of Education, Health, and Welfare and the Secretary of Finance extra full consideration thereof.

They have been, as demonstrated by (Inaudible), he found that they were not sufficient.

That was reported by the testimony of Mr. Jordan and of Mr. -- of the other gentleman who testified.

This gentleman, Mr. Solons, one of the top employees of H.E.W testified as found by the District Court and assigned by the Court of Appeals.

The witness was of the opinion and the Court defines that in order to formulate, not implement, to formulate and implement successful and you think that desegregation plans, their additional time will be required.

Now, a record was made to the chaos which might result as if it had to do with community resistance.

That is another matter in which there's an attempt to give an erroneous idea to this Court to put it in a most charitable way.

The statement of the secretary is as follows to which appeared on page 31 (e) of the petitioner, in the letter written by the secretary.

And by the way, that came into the Court as an exhibit to the motion.

There's no attempt to have an indefinite postpone of anything.

The secretary's obligation solely was to file and formulate plans before the action would be taken by the Court with the assistance of the Department of Justice (Inaudible) and when that letter came to Chief Justice John Brown and Chief District Judge Cox.

It came as a part of a motion setting forth timing similar, almost identical to that in the original order of July 3rd and July 25th with the exception of the necessary time to do what?

Not to implement plans but to form proper things.

Now, here's what Mr. Finch say.

He says, “I'm gravely concerned that the time allowed for the development of these terminal plans has been too short for the educators of the Office of Education to develop terminal plans which can be implemented this year.”

The administrative and what is here before right you, is he talking about community as has been stated in the brief erroneously and without any basis whatsoever without the record being before the Court.

He says, the administrative and logistical difficulties, the administrative which must be encountered and made in the terribly short space of time must surely in my judgment produce chaos, confusion and a catastrophic educational set back to the children involved.

The administrative difficulty because the plans have not yet been developed and here is the prayer that is now made in their request.

The first is that there should not be any hearing by the District Court that this Court should overrule or modify Brown one, Brown two, Cooper, Green, Ray, and all the other cases in Court that's above this Court.

And should put into effect plans which have been withdrawn which the evidence of Mr. Finch's secretary, of Mr. Jordan, in charge of that area, of Mr. Sutton's who was his assistant were not sufficiently developed without a hearing by any Court at any time under any circumstances.

The prayer is that the public officials who are charged with a duty of administering the educational system within these states should not be permitted to participate in any matter in the preparation of or collaboration in saying the plans.

It was found by the District Court and defined by the Court of Appeals that when these plans which the system were drawn were presented to the local educational authorities.

They were presented with the statement and I can say this because it is in the record and it's understood that it is or should be before the Court.

I was present when it was done.

The representative as the record shows and now heard with the statement that there was no time to discuss or collaborate concerning them or to work out difficulties which might result and that is the present situation, the only plans now in own file are those which were filed in accordance with the order of the Court by the districts themselves under the renovation that they had not had an opportunity to fully collaborate with the department and to work out plans satisfactory to all parties.

I have not lost my temper in the last 40 years I've been practicing law except twice and that was 35 years ago and did not do so today.

In south, you know, we get upset if we're made (Inaudible).

But come almost outside when I hear and see statements made of constitutional defiance by the public officials of Mississippi in particular of the schools.

The fact is and we have set them out on that brief beginning with 1959, 1962, 1964, 1966 up through January 16, 1966.

The decisions of the Court of Appeals on the Fifth Circuit was that Freedom of Choice plan to work proper, they should be extended year by year and we have set out and quoted in our brief the latter ones which were that since a late start had been made in 13 districts beginning in 1965.

They should be extended to four grades a year and these districts, every district before this Court has complied with those requirements.

They are law abiding citizens and those who are alleged otherwise do so being I hope innocent of the facts to be most charitable to them.

May it please the Court, with reference to the matter of Green, of course, as the Court knows, in that case, freedom of choice was by no means outlawed.

Now, by the way, the Court has problems that noted on page 31 of the last brief filed by the petitioners.

That the prayer that is made there is not with reference to desegregation.

The prayer is as follows concerning action pendente lite that this Court should make the action, pendente lite “requiring that integration and not segregation be the status quo pendente lite”.

Or in other words, that integration and not desegregation be made the status quo pendente lite.

And yet this Court said in Green, reaffirmed in Carr and it is the law of the land as interpreted by this Court as follows, that is we do not hold that freedom of choice can have no place in such a plan.

We do not hold any freedom of choice plan might of itself be unconstitutional or that argument has been urged upon us.

This Court specifically declined so to hold rather all way that said today is that in desegregating a dual system a plan utilizing a freedom of choice is not an end in itself and then yet when he said, there are two words used in many cases including Carr, Green, Monroe, and others.

Thomas (Inaudible) to wait and the word “now.”

The petitioner said the word “now” means yesterday, have already worked on tomorrow morning, at 7:15 eastern daylight saving time.

But in the use of the English language, the word promises really realistically the word now necessarily force to the realism with which it may be reasonably expected to work and not that it has that before done so.

And set this Court in Green where if the freedom of choice plan, compose a real promise of aiding a desegregation program to effectuate conversion of a state-imposed dual system to a unitary, non-racial system.

There will be no objection to allowing such a device to improve itself at operation.

No objection whatsoever by the time and that we have in our briefs presented to you three illustrations that (Inaudible) because the petitioner was not willing for the Court to have the full record report.

But we have both in relation to the cross-petition found under the exhibits to our brief in this case.

Illustrations of the Meridian school district, the Naches school district, and the Enterprise school district demonstrated that the freedom of choice plan is nothing like tomorrow there will be a ball game, football game in Neshoba County at Philadelphia, Mississippi team many, or some years ago in which the team from one of the schools here involved so-called “white schools” will have opponent almost in equal number of Negro players and of white players.

We have shown in the record the picture of the all State Negro back who was a member of the Meridian team of the so-called white school.

Now, I say in closing, may it please that Court that there are two things I do want to call your attention, to which I wish to call your attention.

The first is I'm somewhat embarrass after reading the brief to admit that I'm a charter member of the Lawyers' Committee for Civil Rights under the law.

I was the one who arranged for them to open in August in Jackson, Mississippi.

For a number of years, they did a very fine job, a reason that they had many different situations.

I refer you to my brief for that connection and the connection with their work.

That other is this, that where and if the Court grants the prayer, which is now made and the request which is now before this Court that is that integration shall be the pendente lite shall be the matter of the day.

If the plans that I've never seen those files or what's been found that maybe the ones I saw some months ago.

Most of those call for compulsory assignment.

And it's interesting that in order to have compulsory assignment, it does have to be a Tom and Mary and Jim and Bill by name.

It maybe, it maybe compulsory assignment by pairing all racial grounds only.

Not pairing on educational ground, but pairing what.

You don't call Jim and Bill by name.

You simply say everybody in the class that Jim and Bill is going to shall be assigned over somewhere else to compulsory assignment.

Proper zoning on educational grounds is certainly recognized and there has been by this and over the courts.

But zoning on racial grounds is simply saying, you don't say to assign compulsory John and Bill or to pass Mary and Sally from one school to the other.

You set a draw line over the east side of Mary's house and she is compelled not on educational grounds but on racial ground alone to be passed over to some other school and that is the prayer which is now before us.

Now, if that was to be carried out, that would bring and there would be directed as there is in the Adams dicta a conflict what goes decided by the Sixth Circuit which in our brief.

I will not attempt to read it to you, directly so, in which they decline to fall at Jefferson one or two.

In Mapp and Monroe also decided by the Sixth Circuit indeed on those two (Inaudible) or dual system to sets into one was a de facto system.

There would be a direct conflict with (Inaudible) of the Little Rock System holding that compulsory integration is not required by the Constitution of the United States.

They think there will be a direct conflict during that which is requested to be required of the Fifth Circuit with the First Circuit in Springfield quoted in our brief.

And a direct conflict was Cook County of the First Circuit holding directly to record contrary and to announce of the Tenth Circuit in Kansas City holding directed to the contrary.

We will have a conflict with Sixth Circuits if what she had requested is granted.

May it please the Court, we recognize that time has run out as it is set.

Deliberate speed is no longer the color of the day.

Any plan must promise realistic to work and promise to work now, realistically.

There is no idea of delay.

The request to delay did not come from the school districts.

It came from those public educators of the United States of America who found that the claims which they had drawn under the pressure that was with him was said that they could no longer recommend and as counsel has stated, asked that they be withdrawn.

Unknown Speaker: Let me get something straight here.

Maybe I misunderstood it.

I do not understand after the proposal of your opponents, of the things and these plans that you have been criticize would be foreclosed from objection and ultimate review by this Court if necessary if their proposal wanted to effect the issue, do I misunderstand it?

Mr. John C. Satterfield: No.

May it please the Court, I believe it would be foreclosed in two ways.

Unknown Speaker: You said it would be foreclosed.

Mr. John C. Satterfield: In my judgment, it would.

But there are two ways.

First is they asked they'd be required to be put into effect pendente lite which is another way of putting them immediately into effect without hearing, without an opportunity of discuss -- of consideration by either this Court or Court of Appeals even and if changes such as those -- broad changes such those which were suggested are made, they would be not irreparable but irretrievable.

Then may it please the Court, I believe that it means, if what they asked is right, it would not be subject to relief.

Because they are asking that the District Court should not be permitted to have any hearing but that their experts be used as special ministers by the Court of Appeals.

And while there might have some time be a later appeal, I believe that it would be more than that was correct.

So, I do believe that our request is say -- is such that it could never be really.

We take the position that one of the distinguished members of this Court took on May the 6th 1955, Mr. Justice Marshall.

When he said in brief filed in Brown two.

The Negro children before the Court in these cases are entitled of public education on a non-segregated basis.

The only way the relief can meaningfully do them can be given to mean to them is to abolish the policy of using race as a criterion for assignment of students.

Thus, the only, the effective decree would be one which will enjoin the use of race in the assignment of any pupils in the school districts involved.

We further agree with the position taken by Mr. Justice Goldberg in his brief in Brown in which he said, “We do not mean to be understood that there is anything in the Fourteenth Amendment where it makes it mandatory that pupils be given a choice of school.”

We mean that the elimination of compulsory segregation is not the same thing as compulsory attendance of whites at Negro schools or Negroes at white schools.

Negroes and whites would no more be compelled to attend the same schools under such regulations then what Negroes and whites compel to live in the same neighborhood when compulsory residential segregation was declared invalid in Buchanan and in Ward.

And may I tell this Court frankly that if and when the Court has the opportunity of reading this record, the Court would find and of having it briefed and having the facts before you, the Court would find that in the majority of these issues, and the great majority, the vested use of the dual school system have been removed and those who have not is realistic to promises the way Comp (ph), one of the leaders of the Civil Rights Movement in Mississippi, so testified as one of these particular issues.

And may I say finally, and in response to question I believe of -- by Mr. Justice Harlan, that the question of the number of years or the question of status of individual schools is a national question, not a local question.

And you will find on page 64 of our brief, a listing of some 20 schools, all of which with exception of one which is in Texas, on a northern, eastern, not in this southern area and in which ever of these found and I give you about three because I believe that my time is about to expire.

In Chicago, out of 610 schools, there are 392 of one race assuming 99% or more is of one race.

In Iowa, there are 36 out of 81 composed of students of one race.

In New Your, there area 27 of 80 composed of students of one race.

In Los Angeles, California, in that district, out of 591 schools, 359 are composed of students of one race.

And finally, in New York, in the New York City public schools out of 853 schools, 158 are composed of students of one race and the faculty is likewise.

Therefore, may it please the Court when the Adams dicta says that if any one of these three things exist, schools of one race, a small portion of white students attending former -- no white students then from Negro school, a small portion of Negro students attending a former white school, or a small number of teachers of the asset races.

Freedom of choice is out the window.

It is a direct violation of the holding of this Court in Green, Monroe and Ray.

In that case, as we put out in the brief, and with this I recall, there were 18 matters involving administration of schools considered by this point in reaching its determination that those particular districts, there was no reasonable probability that the reasonable premise that freedom of choice would work.

And in this case and in others, particularly in this case, where the record is not before the Court and I can see why it is not desired by the petitioners here.

One statistic, I think I haven't looked that up yet.

I've always seen statistics.

But one statistic is said to be the alternative of whether the vestiges of the dual system are being removed.

We feel that we are in the hands of the greatest review in the world.

We know that you will do that which is best under our Constitution.

We feel that the recommendation, here made is one that is worthy of consideration and that the request there be put into effect immediately that the matter pendente lite be integration and not be segregation.

That plans withdrawn be forced in immediately, that no time be allowed for collaboration between H.E.W. and those public officials charged with the administration of schools is a request that if -- well, I would say this, I would hesitate to make such a request myself.

Thank you very much.

Chief Justice Warren E. Burger: Thank you, Mr. Satterfield.

Mr. Greenberg, you have a few moments left.

Rebuttal of Jack Greenberg

Mr. Jack Greenberg: Mr. Chief Justice and may it please the Court.

I have a few moments of rebuttal if I may.

Mr. Satterfield has made regular references to the absence of a record in this Court and I think that's very illuminating because I might say at the outset there is indeed the complete record in this Court and it has been here for some considerable period of time.

It's in Mr. Davis' Office right behind the Court.

It's not before the Court but it's behind the Court.

The problem -- there was problem however in obtaining this record and it teaches us something about this litigation.

When we file this case here, we ask the clerk of the Fifth Circuit to send up the record.

He sent up everything that he had.

However, part of the record was in Judge Cox's Court.

We request that Judge Cox's clerk to send the record up and he refused.

We sent a lawyer to visit the clerk and the clerk said that he wanted 50 cents a page for the record and we said we didn't want it and we could not pay all that money for thousands and thousands of pages of record.

And the lawyer went and visited Judge Cox and Judge Cox said, he would not send the record up and indeed, he thought the price have gone up.[Laughter]

But we then communicated with Mr. Davis of this Court through processes of communication with the federal District Court in Mississippi, was able to obtain the record and it sits in there in eight huge boxes for anyone who cares to read it.

That is the story of the litigation in this case.

Judge Cox doesn't let you have the record and Mr. Satterfield says, you don't belong in this Court because you don't have it.

The fact is however, we do have it.

Now, I would like to make a reference to further response to the question asked by Mr. Justice Harlan about whether the rule we propose here is for only one part of the country.

The pendente lite rule which is what I believe Mr. Justice Harlan had reference to is particularly appropriate in these cases because here we have substantially or fully matured plans which are capable of being put into effect and perhaps completely or certainly almost close to completely carrying out the purposes of this Court's decision in Brown as elucidated in many later decisions.

I think that's what peculiarly appropriate to apply in this particular case and it's not a sectional suggestion but one that adverts to the circumstances here.

Now, this country has made the men strides in eradicating the stigma of slavery since and largely as result to this Court's decision in Brown against Board of Education.

The principle of those cases has been important not only in theory but because of actual implementation which shows that this Court and this nation stands behind the theory.

Conversely, a retreat from the principles of Brown as well as what that retreat would symbolize will tell the country more than many volumes of mere rhetoric about what the country stands.

Plessy against Ferguson symbolized the retreat from the principles of the Fourteenth Amendment.

It was followed by not even a separate but equal doctrine which it professed.

It is crucial, we submit, that if we are to continue in the path of bringing the black and the white citizens of this country together.

Of course, which was resumed by the Brown decision after more than half a century following Plessy versus Ferguson that this Court may clear in this case, in which the real issue is whether we shall continue to go forward or halt that the rights of the Constitution are for the here and now and not merely stuff about which lawyers play charades.

But there is more in this case than the relations of America's black to white citizens crucial as that is.

In one of his great opinions for almost a quarter of century ago, Mr. Justice Rutledge voiced in dissent an admonition that has special application today.

He said, “It is not too early, it is never too early for the nation steadfastly to follow its great constitutional traditions.

It can become too late.”

Every one of the tens of thousands of schoolchildren, black and white in the 14 school districts encompass by this litigation entered the public schools of Mississippi years after the day, May 17, 1954 when this Court announced that segregation and the Constitution cannot co-exist.

Yet no more than a handful of these children, has attended a lawfully constituted school.

Thus far then, out of their life experience, the black and white schoolchildren in these 14 school districts have not learned that the Constitution is to be protected and defended, cherished and lived.

Today, we ask this Court to direct the entry of decrees ordering desegregation now.

With the Constitution to be the rule of decision pendente lite, we asked this not merely because another forth night of a dual schools system is intolerable.

But rather because another forth night upon warranted displacement of the Constitution is intolerable.

The question in these cases is whether the children in these school districts and indeed the children in every school district throughout our beloved land are at last to learn that there was supreme law of the land binding upon children or parents, binding upon school boards, binding upon the states, binding upon the United States and binding upon and enforced by this high Federal Law.

What Mr. Justice Frankfurter wrote in this concurring opinion in Sweezy against New Hampshire, “But in the end, judgment cannot be escaped, the judgment of this Court.”

Chief Justice Warren E. Burger: Thank you, Mr. Greenberg.

Thank you, gentlemen for your submission.

The case is submitted.