MOORE v. BOARD OF EDUCATION
Legal provision: Article 3, Section 2, Paragraph 1: Case or Controversy Requirement
Argument of Whiteford S. Blakeney
Chief Justice Warren E. Burger: 444, Moore against Charlotte -- excuse me, Moore against Charlotte-Mecklenburg and 498.
Mr. Whiteford S. Blakeney: Yes Your Honor.
Chief Justice Warren E. Burger: Mr. Blakeney, you may proceed whenever you're ready.
Mr. Whiteford S. Blakeney: Mr. Chief Justice, may it please the Court.
I believe that this Moore case will furnish to the Court more truly than is to be found elsewhere in the Charlotte-Mecklenburg litigation.
Clarity and certainty and indeed the solution for the problem with which the Court is now wrestling.
These qualities emerged if the Court please, first I think because in this case and only in this case are there individuals before the Court, pleading their constitutional right against the compulsions which have been imposed below.
This Court has often recognized of course that that puts a constitutional questions in its clearest bite.
Furthermore, if the Court please, the compulsions which have been imposed are all opposed by these Moore plaintiffs for whom I appear.
They do not accept some and reject the rest.
They oppose all their compulsions of racial nature which have been fastened upon them below.
By contrast as Your Honors will have noted, the plaintiffs and Swann of course and the District Court below to be sure, support all the compulsions which have been imposed.
On the other hand, the Charlotte-Mecklenburg Board of Education, defendant in this case, acquiesces in some of the compulsions indeed propose some of them, the Solicitor General acquiesces in such as maybe regarded as reasonable.
Pardon me, the Solicitor General more specifically in such as maybe regarded as feasible.
And the Circuit Court below in such as may regarded as reasonable.
Justice Thurgood Marshall: Are you able to draw in a dictionary distinction between those two words?
Mr. Whiteford S. Blakeney: I myself am not able to draw any distinction satisfactory to myself Your Honor.
In any event, we stand against all the racial compulsions and that is our posture in this case.
And from beginning to end, our position may be summarized thus briefly.
We obtained an injunction below which expresses it.
This injunction said to the Charlotte-Mecklenburg Board of Education and who -- any agency imposing these compulsions.
It said, “Do not bar any child from any school in Charlotte-Mecklenburg because of its race, and do not assign children in Charlotte -- to any Charlotte-Mecklenburg School on the basis of race.
This is our theme as I say at all stages.
Justice Potter Stewart: Your clients are -- who is -- Mrs. Moore and others?
Mr. Whiteford S. Blakeney: Yes sir.
Justice Potter Stewart: I don't need to know their names, I'm rather just -- in that, but they are the parents of white public school children as well as of Negro public school children or only white public school children?
Mr. Whiteford S. Blakeney: Both Your Honor.
Justice Potter Stewart: Both.
Mr. Whiteford S. Blakeney: And the minor --
Justice William O. Douglas: What do you do about the problem of disestablishing a jury segregated school system?
Mr. Whiteford S. Blakeney: Your Honor that is of course a central subject that I will come to, but I will --
Justice William O. Douglas: In your own time?
Mr. Whiteford S. Blakeney: I will answer it now if -- but I would prefer if I may because it is indeed of course the heart, the ultimate heart of the problem.
Justice William O. Douglas: Because taking what you said literally then there is no power.
Mr. Whiteford S. Blakeney: There is no power, we say Your Honor.
Justice William O. Douglas: To disestablish?
Mr. Whiteford S. Blakeney: No, there is no power to trample their constitutional right of any citizen in the disestablishing process.
And the constitutional right of these citizens, these plaintiffs is that they shall not be barred on racial grounds and they shall not be assigned or racial grounds and that is what is being done to them.
Justice William O. Douglas: But if a person is -- we assume, he is caught in a ghetto that was established by the state?
Mr. Whiteford S. Blakeney: Yes.
Justice William O. Douglas: And he is too -- he doesn't have the resources to get out.
What is your solution then?
Mr. Whiteford S. Blakeney: The constitution says (Voice Overlap) --
Justice William O. Douglas: That nature take its course?
Mr. Whiteford S. Blakeney: The constitution says to him, the constitution is expanded in Brown.
We say that the constitution seeing his situation says to him, “Every effort is going to be exerted and all zeal and all absolute good faith must be put into effect to see to it that you are given freedom that you shall not be barred anywhere on account of your race and that you shall not be assigned anywhere on account of your race.”
And I think that is what this Court was referring to in the cases it has recently decided.
This court was expressing its sterning patience with the fact that freedom was not truly accorded as this Court considered in many of these cases such as (Inaudible) Carter and Alexander against Holmes.
And we go 100% with all and any who will see to it that the freedom is truly there.
But, once that freedom is truly accorded, that freedom from governmental action based on race, once that freedom is truly accorded, then we say it is not a too big -- said that the constitution then requires that the freedom of any person be taken from him in the process of the dismantling, or to express it otherwise Your Honor that this meddling process shall not itself reconstruct the very thing that is being dismantled or -- use still another analogy, the constitution so Brown commanded this, the constitution says, “You shan't have travel the racial road in the matter of public schools.”
Now Your Honor, our basic theme is you can't travel that same racial road and so to speak remedying the constitutional wrong of the past.
You do not remedy past constitutional wrong of racial nature by imposing present, constitutional wrong of racial nature.
Chief Justice Warren E. Burger: Would you consider that the defendant, the constitution if the School Board not the Court, the School Board closed all of the entirely Negro schools and provided public transportation of the students of those schools into other schools to accomplish the dismantling as they saw it?
Mr. Whiteford S. Blakeney: We think that the constitution Your Honor cannot be said to require that any action be taken which has as its soul objective racial assignment.
Chief Justice Warren E. Burger: Does it prohibit it?
Mr. Whiteford S. Blakeney: It prohibits it.
Chief Justice Warren E. Burger: In other words, your answer --
Mr. Whiteford S. Blakeney: That's what Brown say.
Chief Justice Warren E. Burger: Your answer to my question would be then that the School Board could not close these schools and transport the students out to other schools in the outlining districts?
Mr. Whiteford S. Blakeney: If Your Honor in the operation of the schools on a natural geographic or other, non other -- non-racial basis such action came naturally, came normally, educationally, very well.
But if the School Board's action and purpose was to accomplished assignments on a racial -- on racial basis which otherwise would not be done, but it's being done, the child is pushed.
The child is taken.
The child is compelled solely because of his color, then that runs a file of the constitution right there.
Just as truly as what existed in Brown and we plead the same constitutional right here that the plaintiffs pled in Brown.
Now, quickly if I may Your Honor, since jurisdiction in this case was deferred, I should spend a moment on how we come here, I think.
I'll try not to take too much time on that because it is developed in our brief, a jurisdictional statement and also a typewritten response which we file only a few days ago in answer to a suggestion filed by the Swann plaintiffs, only a few days ago.
We beg the Court's attention to those documents.
But to outline briefly, these plaintiffs upon learning in February of this year, that certain compulsions were about to be imposed upon them went into the State Court of North Carolina.
There they obtained an injunction.
An injunction which we say is in the terms of the essential meaning of Brown and an injunction which is in the terms of a North Carolina statute also.
And those terms simply were what I've already repeated.
Do not assign the child on basis of his race, any other basis, but not his race.
Do not exclude him from a school because of his race.
Now, that injunction was -- our case was removed into the federal court at that point upon valid federal grounds as we understand.
And the defendant Board of Education asked for a three-judge court to determine the constitutionality of the pronouncement of the statute which is I say was – are the very words of the injunction that we had.
Before the three-judge court convened and heard the case, the District Court below set aside our injunction.
The single judge stated aside, saying in expressed terms that he did so pending the rulings of the three-judge court and of this Court.
Now, the three-judge court heard the case and ruled that the words I have already expressed Your Honor are unconstitutional.
That it -- and here came a remarkable inconsistency, an inconsistency that is deep and inherent and afflicts all who seek, I respectfully say, “Rises again and again to plague all who seek to say, “We will obey Brown, which commands operating school on a non-racial basis.
We will obey Brown by the very act of operating them on a racial basis.”
Here is the inconsistency that the Court itself expressed.
It says, “It is constitutional, quite constitutional.
Indeed, it is the essence of Brown that you shall not exclude the child from a public school on ground of his race.”
But it is unconstitutional to say that he may not be assigned to a school on the basis of his race.
Those two things, Your Honor, are absolutely in conflict.
They are inherently so.
Is it not obvious that if there can be no prohibition against assigning the child on basis of his race and if you do, therefore assign him on the base of his race, you are excluding him on basis of race from another school, this school to which he wishes to go or which he may have been attending and to which it is natural, geographically or otherwise that he should attend.
Justice Potter Stewart: Your argument is based entirely on the Fourteenth Amendment of the United States Constitution and not at all on a federal statute, is it?
Mr. Whiteford S. Blakeney: Entirely.
Justice Potter Stewart: Entirely on the constitution?
Mr. Whiteford S. Blakeney: Yes.
We stand their fall of course upon the constitution.
Justice Potter Stewart: And your clients are the parents of school children.
They're no teachers.
You don't represent any teachers in the Charlotte public school system?
Mr. Whiteford S. Blakeney: Parents and children -- the children themselves have by a proper process been made parties.
Justice Potter Stewart: And therefore you are making no claim with respect to the constitutionality vel non of the integration of faculty?
Mr. Whiteford S. Blakeney: No sir.
Now, we present this question Your Honors not in the abstract, we show the factual background and show at Mecklenburg where these children live and go to school.
We show in this record and it is concise, these things quickly, that as far back as 1965, this school system was adjudged by the District Court, the same District Court albeit a judge, was adjudged to be operating on a non-racial basis.
A basis in which there was no gerrymandering of school attendant's zone.
Geographically, they were arranged and on geographical basis children were assigned to attend and there was complete freedom of transfer.
And so it was adjudged non-racial and the Circuit Court upheld that.
And then -- now just within the past year, the same District Court, Albeit now the new judge reaffirmed many of those factual findings.
Adjudged for example that in no other public school system had the Board of Education achieved as much in the way of racial mixing as that no other case that had come before the appellate court had so much been achieved to that nature.
That there was and is now no racial purpose, motive or element in the spending of money, in the providing facilities, faculties, schools, buildings, books, and enumerated numerous others.
Nevertheless, Your Honors, upon that picture, there came orders of unusual severity.
These orders said, “Despite the factors just found, it is also true that in some schools there is not the mixture of the community.”
Therefore, this Court will order that the mixture of the community shall take place in every school.
And the court went on to say, this shall be maintained, henceforth and note these words, almost revealing in its paradox, these words just as was done for decades before Brown and there is the situation Your Honors, non-racial until now they ordered to be racial.
Now furthermore, I have already mentioned that these plaintiffs occupy a posture different from any other parties in the Charlotte-Mecklenburg Litigation and that they plead their own constitutional right none others do.
They also raise opposition on an issue which the Chief Justice concurring in North Cross said was one of the questions that needed attention.
Only these plaintiffs raised that issue.
No other parties do and that issue is uncontested before this Court except and unless as we raise it.
That issue is this; one of the compulsions here, they are of two essential natures, all the compulsions can be categorized under two headings.
Number one, the gerrymandering of the school attendants zones which the school board itself proposed and which of course, all the parties other than ourselves are now accepting.
We oppose that gerrymandering.
It is of racial nature.
The Circuit Court says it's drastic racial gerrymandering at the same moment that it upheld it.
It says, “That's what it is.”
And now all other compulsions here come under the heading of requirement that the child go long distances to school even beyond the gerrymandered boundaries.
And of course --
Justice Hugo L. Black: What is the --
Mr. Whiteford S. Blakeney: I beg -- pardon sir?
Justice Hugo L. Black: What is the longest distance this record shows?
Mr. Whiteford S. Blakeney: There are distances of as much as 15 to 16 miles.
Now, Your Honors, the distances however of course are not our point nor is busing our point as such.
That's a colloquialism.
We oppose the compulsion.
The requirement that we go away from the natural geographic school and near the child's home that he be forced to go away from that whether in a gerrymandered new zone or whether crossing the boundaries of the gerrymandered zone into another zone.
Justice Byron R. White: You don't really say that as a matter of that absolutely a school board never sent the child away from his neighborhood for any reason?
Mr. Whiteford S. Blakeney: No I do not say that.
They may send --
Justice Byron R. White: I suppose that they'd be a lot of good reasons to send the children away from neighbor.
You say they should not -- wherever they send them, they shouldn't do so on account of race?
Mr. Whiteford S. Blakeney: Brown forbids doing so on account of race.
Justice Byron R. White: And you say that gerrymandering, racial gerrymandering, pairing transportation or --
Mr. Whiteford S. Blakeney: (Inaudible)
Justice Byron R. White: -- done on a racial basis are invalid.
Mr. Whiteford S. Blakeney: Invalid.
Justice Byron R. White: And I suppose you would say the majority to minority transfer rule is equally invalid.
Mr. Whiteford S. Blakeney: Indeed.
This Court so held in Goss against the Board of Education.
Justice Potter Stewart: Well, if there is no compulsion involved, would you still say it's invalid.
I thought your --
Mr. Whiteford S. Blakeney: No sir. (Voice Overlap)
Justice Potter Stewart: -- attention were that it was a very compulsory assignments.
Mr. Whiteford S. Blakeney: These elements, governmental action, compulsory upon the child and shaped and based on no grounds, say race.
It is solely that the child has looked at -- his color is observed, that determines where he will go to school.
Justice Byron R. White: Well, if two children applied for a transfer under the majority to minority transfer rule and one of them is White and one of them is Black and the transfer is to a school with a White majority and a Black minority.
The two children transferring will not both be transferred, only one of them?
Mr. Whiteford S. Blakeney: Yes Sir -- but --
Justice Byron R. White: The Black one will get the transfer, the White one won't?
Mr. Whiteford S. Blakeney: Yes, and that is --
Justice Byron R. White: Or the reverse if the transfer from a White school is requested.
Mr. Whiteford S. Blakeney: And that is selectivity on the basis of race.
Justice Byron R. White: You say it's invalid?
Mr. Whiteford S. Blakeney: I do prohibited by the constitution.
And I repeat Your Honor, that specific subject was dealt with by this Court in Goss against Board of Education.
It was in the other direction, but it was held unconstitutional.
Justice William O. Douglas: I see that you told Justice Stewart that you didn't rely on it on any federal statute.
Mr. Whiteford S. Blakeney: No sir.
Justice William O. Douglas: I see you cite the federal statute that it's in the Civil Rights Act of 1964.
Mr. Whiteford S. Blakeney: That is true Your Honor, but only for this purpose of showing that when it comes to the action of the elected representative of the people, this is not a constitutional point, but it is significant to know, no elected representatives of the people have ever enacted any legislation in the direction which we here oppose and which we say the constitution prohibits.
The Congress in the Civil Rights Act specifically twice expressed itself to this effect.
Let it not be thought.
This is the meaning of it, I take it.
Let it not be thought that in this Civil Rights Act, we mean to condone or to provide for or in any way authorize racial balance, racial ratios, compelling anybody to go anywhere just because of his race.
This Act does not mean that.
That's is the sense in which we cited it Your Honor.
But we stand of all on the constitution.
Justice William O. Douglas: Because the statute, do you think is restricted to de facto segregation rather than the jury?
Mr. Whiteford S. Blakeney: No sir.
I think that statute merely meant to say that we, the Congress are not be understood as we enact this Civil Rights Law, we are not to be understood as providing for any kind of --
Justice Byron R. White: Well, it issues a directive to federal judges.
Mr. Whiteford S. Blakeney: Well --
Justice Byron R. White: In the Sections in the 2006 (a).
Mr. Whiteford S. Blakeney: I think in the interpretation and administration of that statute is meant.
But Your Honor, whatever maybe the true interpretation of that statute, I cannot stand upon it against the constitution.
My adversaries say that the constitution requires the racial compulsion which they espouse.
I say the constitution forbids the racial compulsion which they espouse.
Justice Byron R. White: Are you suggesting then that Green was improperly decided in the constitution?
Mr. Whiteford S. Blakeney: No Your Honor.
I can only speak to Green.
I have sought to find the exact facts of Green as merely as I could.
The factual situation in Green is far different from here.
I think that this Court did not mean to say anything in Green contrary to what I am here arguing for.
In Green, for an example, each child was assigned to the District that he formally -- in which he formally attended.
Justice Potter Stewart: That's right.
That was still dual zone.
Mr. Whiteford S. Blakeney: Yes Sir.
And I think -- and furthermore, right of transfer was accorded only after that suit was instituted here.
It's been accorded for five years and here for five years, it has been judicially found nobody has been excluded from any school on account of his race.
Nobody claims that anybody has by governmental action and compulsions.
Now, we must remember I think Your Honors, it must constantly be borne in mind that we here are applying the constitution in its primal elemental provisions.
There's no legislation here in which it might be considered that there is leeway for the policy maker.
Excuse me, that is not the situation.
Here, it is purely a question and the question we propound and we contend for is simply this, that the constitution in the Fourteenth Amendment as Brown declared it rules the case and rules in favor of the pronouncement, injunctive pronouncement and statutory pronouncement that we had below and which has been taken from us.
Now, let me come back for just one moment, and my time draws to close, for just one moment to this basic proposition.
The constitution comes to a condition of separate mess.
What does it do?
I say that the constitution as declared in Brown says with regard to that condition of separateness, every diligence must be exerted, every effort must be put to it in good faith, if the hand of Government is to be found in that separateness causing it, producing it, directly or indirectly by subterfuge or subtly or in any manner, it must be sternly removed.
And that I say, we agree with, we argue for 100%.
Justice Thurgood Marshall: What did Charlotte-Mecklenburg do for the 10-year period after Brown?
Since you say that's what Brown said?
Mr. Whiteford S. Blakeney: Yes sir.
Justice Thurgood Marshall: What did they do for 10 years?
Mr. Whiteford S. Blakeney: They moved gradually in the direction --
Justice Thurgood Marshall: Like what?
What specific was done?
Mr. Whiteford S. Blakeney: The zoning, the attendance districting was made geographic --
Justice Thurgood Marshall: When?
When was that (Voice Overlap) --
Mr. Whiteford S. Blakeney: And -- in about 1963 thereabouts.
Justice Thurgood Marshall: Well, what did they do for the eight years after ‘55
Mr. Whiteford S. Blakeney: After Brown?
Justice Thurgood Marshall: Yes sir.
Mr. Whiteford S. Blakeney: There was state statute in effect which did not fully take the hand of Government out of racial compulsion.
But it did commence in at about ‘65.
Justice Thurgood Marshall: And in ‘65, what you did was to draw boundaries and when you drew those boundaries, how much fixing did you get?
Mr. Whiteford S. Blakeney: A considerable degree of it, Your Honor.
Justice Thurgood Marshall: How much?
Mr. Whiteford S. Blakeney: I cannot say the exact figures?
Justice Thurgood Marshall: You said, it was very clear in the record.
Mr. Whiteford S. Blakeney: But I am saying this Your Honor if I may, --
Justice Thurgood Marshall: That's it.
Mr. Whiteford S. Blakeney: The test is not how much racial mixing occurs.
The test is, did and in any situation today, the test is in good faith, is there governmental compulsion forcing children to be racially separate in the schools or is there not.
Justice Thurgood Marshall: Well, do you recognize that there is a need for Government compulsion to desegregate and setup a unitary system?
Mr. Whiteford S. Blakeney: Yes sir.
I recognize --
Justice Thurgood Marshall: Do you have any quarrel with that?
Mr. Whiteford S. Blakeney: I recognize that there is a constitutional mandate that governmental action shall not bar any children from a school because of his race and shall not assign him to any on the basis of race.
Justice Thurgood Marshall: That's not my question.
Is it not true that you are required to take affirmative action to disestablish the segregated system?
Is it or not?
Mr. Whiteford S. Blakeney: Affirmative action to take the hand of Government out of any racial compelling.
Justice Thurgood Marshall: And just leave it as is?
Mr. Whiteford S. Blakeney: Once that governmental hand is removed and freedom is truly accorded, if it is, then the constitution is of aid.
Justice Thurgood Marshall: My question is, you say just take the governmental hand off and let it stay like it is, is that your position?
Mr. Whiteford S. Blakeney: Yes sir.
The Government cannot go further --
Justice Thurgood Marshall: Would you still have the segregated system?
Mr. Whiteford S. Blakeney: The Government cannot go further and take the children by this “color” and say to them, you must go there and you must go there because of your race.
Justice Thurgood Marshall: What if the Government tell in Section 55.
The Government told them, you've got to go to that White school and you can't go to any school but that school.
Didn't the Government do that?
Mr. Whiteford S. Blakeney: The Charlotte authorities?
Justice Thurgood Marshall: The Government of North Carolina.
Mr. Whiteford S. Blakeney: No sir.
Justice Thurgood Marshall: Well, you didn't have segregated schools?
You had segregated schools.
Mr. Whiteford S. Blakeney: We removed governmental action compelling segregation.
And when that is done, Brown is obeyed.
And when the Government goes further, it reverses Brown.
Justice Thurgood Marshall: You rely so much on Brown, but what about Green?
Mr. Whiteford S. Blakeney: What about -- what?
Justice Thurgood Marshall: Green.
Mr. Whiteford S. Blakeney: The true meaning Green is consistent with Brown.
Green has not reversed Brown.
This Court would not have taken so crucial an action without saying so.
Justice Thurgood Marshall: Well, I don't think this Court reversed Brown, I'm just saying that Brown is a more recent case.
Mr. Whiteford S. Blakeney: Green is more recent.
Justice Thurgood Marshall: Green is?
Mr. Whiteford S. Blakeney: Yes sir.
Justice Thurgood Marshall: And Green said, you can have pupil placement.
Mr. Whiteford S. Blakeney: Green like Brown says, “You must accord true freedom” and that we say has been done here and I'll end with this if I may.
We stand upon this, the individual, constitutional right against governmental action on the basis of race and any individual Your Honors, no matter how little, no matter how alone, he can stand against the powers of all Government, state and federal and stand upon that proposition.
And he can say and no matter when by whom or where, racial compulsion was formerly imposed.
I object to its now being imposed upon me.
And I object to being moved anywhere because of my race.
And that is a rope to which he can cling and it will save him.
And because that is the uniqueness and the transcending power of individual liberty under a constitution and our faith is that this Court will keep it so.
Chief Justice Warren E. Burger: Thank you Mr. Blakeney.
Argument of William J. Waggoner
Mr. William J. Waggoner: Mr. Chief Justice, may it please the Court.
I will speak very briefly to the statute.
Position the board has taken with reference to the statute that it is a re-expression of the statements of Brown, non-racial assignment of students.
Unlike Brown, we say that the statute also carries with it a permission to disestablish a dual system.
A statute should be construed on a constitutional manner where it can without the Court's straining for ridiculous or unwarranted result.
Justice John M. Harlan: That isn't the instruction that the state court gave it though --.
Mr. William J. Waggoner: That state court in a non-adversary proceeding used the language of Brown as I recall in its order.
I might point out circumstances of the --
Justice Hugo L. Black: As I understand your argument is based on the fact that the constitution forbids discrimination on account of race.
Mr. William J. Waggoner: That's correct.
Justice Hugo L. Black: And that it forbids discrimination even when the effort maybe the beneficent one who's trying to prevent discrimination.
Mr. William J. Waggoner: Insofar as assignment of students, that is correct.
Justice Hugo L. Black: Discrimination.
Mr. William J. Waggoner: Yes sir.
Justice Hugo L. Black: That is the key.
Mr. William J. Waggoner: Yes sir.
That is the key and our position would be that it's perfectly possible under the statute.
A system being found dual to be required to undo racial assignments and reassign children to other schools based on proximity and convenience and other non-racial factors of sound school administration.
This would be our position with reference to this.
There's some question about perhaps the legislative intent.
The legislature must make findings, must determine public policies.
And if it finds that the liberties of the children involved, we found that thus far this year, we're transporting an additional 20,000 students.
This is a substantial number of students who are being transported.
I do not say the full 20,000 are assigned involuntarily or by reasons of race.
Some of them would have been assigned to their school by reason of proximity and convenience.
Justice John M. Harlan: Do I understand you are now transporting 20,000 more than you did last term?
Mr. William J. Waggoner: Yes Sir.
Justice John M. Harlan: Where'd you get the buses?
Mr. William J. Waggoner: We are running school from 7:30 in the morning until 9:15 for opening schedules.
We have some buses that we acquired in the past year.
We have received a loan of some 14 to 16 year old buses from the State of North Carolina for the purpose of transporting.
We've also found that the legislative position with reference to safety of children in congested areas was very much warranted.
We're transporting not quite twice as many students.
Our accident rate is up to 440%.
Justice John M. Harlan: But I gather you haven't bought any new buses, is that it?
Mr. William J. Waggoner: We refurnished 28 new buses by the state that were scheduled for replacement of old buses.
Justice Potter Stewart: Mr. Wagoner.
Mr. William J. Waggoner: Yes, Your Honor?
Justice Potter Stewart: Since we are addressing to some factual matters, there would be a considerable amount of busing would there not, under the board's plan in this case, right, intra-zonal busing, would there not be?
Mr. William J. Waggoner: Yes.
Justice Potter Stewart: Because of the size and the odd shape of some of those --
Mr. William J. Waggoner: That is correct.
Justice Potter Stewart: -- gerrymandered zones that the board created?
Mr. William J. Waggoner: Right.
Justice Potter Stewart: There would be necessarily.
Mr. William J. Waggoner: There would be and at one time, we had hoped that we would be able to stretch Brown being intellectually honest to permit a strained concept of gerrymandered lands.
I don't feel that the board plan would be truly constitutional because it does take race too much in account and goes outside the compactness that Brown spoke off.
I don't think that the statute would prohibit a desegregation technique such as the location of a new school.
This would accomplish the assignment of students by locating the school in a border zone where again they would be assigned to school on objective, non-racial criteria.
Now, a great deal of criticism has been directed --
Justice Byron R. White: Of course if they -- the board has a choice consistent with your opposition that if the board has a choice of locating a new school in a Black zone or White zone or on the border, and chooses the border because of racial considerations, would you think that was stretching Brown or not?
Mr. William J. Waggoner: If the nearby schools are overcrowded and a school must be built in this area.
Justice Byron R. White: They built somewhere?
Mr. William J. Waggoner: It must be built somewhere.
I think the board can go the next step and construct the school knowing that the general attendants' lines will lie in this area.
Justice Byron R. White: They would -- that would be on other -- for other reasons.
But what if there was a choice?
Mr. William J. Waggoner: If there is a -- if there was a choice --
Justice Byron R. White: And they decide, “Well, we're going to built where we'll have the -- most Blacks and Whites going to school together?
Mr. William J. Waggoner: Do I assume your question does not contain an overcrowding of nearby school?
Justice Byron R. White: Well, they needed new schools somewhere but it could easily be a half mile this way or half mile that way.
Mr. William J. Waggoner: I think that it would be within the leeway of the board to locate the school on the basis we must build a school, this is an educational reason and as ancillary, we are going to promote desegregation.
Justice Byron R. White: So you would suggest that a school board as part of its educational decision making could say we choose to educate -- if we have a choice we prefer to educate Whites and Blacks together rather than separate.
Mr. William J. Waggoner: That's correct.
Justice Byron R. White: And if we have some legitimate decisions to make, that such as location of the school, drawing of zone lines, we just prefer to get as many applicants as possible.
Do you think that would be permissible even though they are specifically taking race into account?
Mr. William J. Waggoner: I will not agree on zoned lines, redrawing zoned lines.
Justice Byron R. White: What's a --
Mr. William J. Waggoner: You -- you'd --
Justice Byron R. White: Perhaps let's say, (Inaudible) in drawing the zone line in deciding where to go to school?
Mr. William J. Waggoner: Because a student has no right to the location of a school.
There are many cases in North Carolina where a school construction is sought to be restrained.
This is the decision of the Board of Education and unless there is an abuse of discretion, a school will be constructed where the board determines.
Now there's been some suggestion that the -- there was some overreaching on the part of the board, I'd like to clear up one point.
The board was served with an injunction on the 25th of February.
On the 26th we removed it to federal court which was on Thursday.
On Monday morning we presented an order to the District Court for relief from the state court order because it was interfering with our implementation efforts.
We were at that time faced with a District Court order that's directed us to desegregate April first, we have a state court order that says do nothing now and the contempt powers of the court are approximately equal, so we had to take the choice of honoring the one that had (Inaudible).
The legislature may have had in mind the affirmative duty that was first spelled out by Judge Sobeloff in Bradley against Richmond and in his concurring opinion in the Swann case when it was in the Court of Appeals in 1966.
You'll recall that Judge Sobeloff dissented and gave a very strong dissent in our case.
In his concurring end result -- approval of our 1966 plan, he said this, “This is far from suggesting that children are to be uprooted arbitrarily and bused against their will to distant places merely to place them with children of the other race.”
Here Judge Sobeloff was talking about the affirmative duty even before Green fully enunciated.
I thank you.
Chief Justice Warren E. Burger: Mr. Vanore, whenever you're ready.
Argument of Andrew A. Vanore, Jr.
Mr. Andrew A. Vanore, Jr.: Mr. Chief Justice may it please the Court.
I think that some of us have mislabeled the statute which is now before the Court as an anti-busing statute.
In effect, it is an anti-discrimination statute which it embraces in toto, the pronouncements of this Court in Brown versus Board of Education.
In that it says that “No child shall be compelled to attend any school on the basis of race and no child shall be excluded from any school on the basis of race.”
We have long been labeled in North Carolina as have some of the other southern states as having dejure segregation.
The problem as I see it, may it please the court, is when does one remove this label of dejure segregation.
When this Court made its pronouncement in Brown, at that time as a matter of law, segregation was forever outlawed in North Carolina, dejure segregation was outlawed.
I need not remind the Court --
Justice Hugo L. Black: I presume you are saying segregation was outlawed whatever you called it?
Mr. Andrew A. Vanore, Jr.: That is correct Mr. Justice Black.
I think there is no question but that segregation was wrong but of course, we North Carolina are simply until 1954, until this Court reversed its decision in Plessy versus Ferguson, we were doing no more than was allowed by this Court until that time.
Now, I think as the Court has stated in Green, we must -- the Boards of Education have an affirmative duty to do what is necessary to come up with a plan that will realistically work.
We contend that the only realistic plan that will work both for the north and the south and I do think that the dejure de facto distinction is legal fiction.
I think we must recognize that whatever this Court does, this Court must consider that it will be the law of the land not only for the south but also for the north.
The only realistic approach to this is to allow that each child attend the school nearest his home which serves his grade, consistent with school capacity.
Now the statute that is now before this Court provides for that very thing.
The legislature of North Carolina intended as best it could to preserve the neighborhood school concept, a concept which will work both in the north and the south.
It seems that in listening to the arguments that were made yesterday, if this Court is to adopt an approach other from the neighborhood school system of student assignment.
If this Court is to adopt a reasonableness approach or a feasibility approach, we are going to have the same amount of litigation if not more litigation than we have experienced since Brown when the Court said that you must use all due deliberate speed.
At the time the North Carolina, the general assembly enacted this legislation which was in July of 1969.
There were two prominent cases that had been decided by the Supreme Court that it had to go by, that is Brown and Green and also the general assembly was guided by Sections 401 and 407 of the Civil Rights Act of 1964 which we think this statute embraces as it does embrace Brown and Green.
Now in Green as this Court suggested, of course that was a rather simplistic fact situation there where you had only two schools involved and the Court's suggestion as I recall in Footnote 6 that the easiest way to eliminate the dual school system there, was to draw a line down the middle of the county and all of the children in the eastern end of the county would attend the New Kent School and all of the children in the western end of the county would attend the Watkin School.
Now this we say was not necessarily a pronouncement but certainly a suggestion by this Court that a child be assigned or be allowed to attend not on the basis of race, but be allowed to attend a school nearest his home and we say that this is exactly what the statute does.
The statute does not allow any assignments as this Court prohibited on the basis of race.
All the children are allowed to go to the school nearest their home and we think this is the only reasonable way that this Court can approach the problem now before it.
I'd like to save some time for rebuttal.
Chief Justice Warren E. Burger: Very well.
Argument of James M. Nabrit Iii
Mr. James M. Nabrit Iii: Mr. Chief Justice and may it please the Court.
The main theme of my argument is that the three-judge District Court which heard this case below is correct in holding that a portion of the state law, two sentences in it, the last two sentences in the second paragraph were violated -- the constitution by interfering with the school board's duty to desegregate the schools.
That Court held unanimously that this was the effect of the law as well as its purpose.
Let me begin by simply listing the matters, I hope to cover in my allotted time.
First, I would like to state a bit about the procedural history of this case and discuss some of the facts about school busing.
The factual background against which the statute is enacted, not against which it actually functions and in that connection, I should tell the Court that in Number 498, the parties have stipulated and the court below also considered that the entire record in the Swann case, which was argued yesterday was a part to be considered in the three-judge court case.
Third, I hope to discuss briefly the meaning of the statutory provisions and the various interpretations the parties have given of it and fourth, the main point why we think the statute violates the Equal Protection Clause.
Justice Hugo L. Black: Where have you printed these statutes so that I can see the exact part of it which you say is unconstitutional?
Mr. James M. Nabrit Iii: If you will turn Your Honor to the appellees' brief and there's Number 498, the brief for appellees', the first page of the argument which is -- it's quoted there in the footnote.
See the Footnote number eight.
Justice Hugo L. Black: Number what?
Mr. James M. Nabrit Iii: The footnote at page 20.
Justice Hugo L. Black: 20?
Mr. James M. Nabrit Iii: Page 20.
And the part that the court below held was unconstitutional.
Justice Hugo L. Black: And that is the part you are claiming, is that correct?
Mr. James M. Nabrit Iii: And then it's the only part that we attacked -- was the last two sentences in the second paragraph and they appear near -- over on 21 and then continuing in that footnote.
Justice Byron R. White: Beginning those two (Voice Overlap)?
Mr. James M. Nabrit Iii: Those two sentences.
I also hope, if I have time to -- well, in connection with the main argument about the statute violating the Equal Protection Clause, I think the -- particularly interesting, the contradictory positions taken by the parties because if I heard them correctly, Mr. Wagner representing the School Board stated quite clearly that he thought the school board's plan of desegregation as the board has presented to Judge McMillan defended in the Fourth Circuit, defended here by its own petition for certiorari and in its brief that the school board's plan says Mr. Wagner violates the Brown case and it's unconstitutional because he says it accomplishes too much desegregation.
That is indeed an amazing turn of events.
Justice Byron R. White: I heard him the same way except for the because clause.
That's not the reason he said he thought it violated Brown.
Mr. James M. Nabrit Iii: Well, no, but because of the technique that the --
Justice Byron R. White: Because of the compulsion of people to attend certain schools or be a -- based on their race?
Justice Thurgood Marshall: All he said that --
Mr. James M. Nabrit Iii: That's correct.
Justice Thurgood Marshall: -- was that in obeying the Brown decision in his opinion they went a little thing barred, that's all I understood he said.
Mr. James M. Nabrit Iii: Right.
Justice Thurgood Marshall: And I didn't understand you saying the abandonment any of the arguments --.
Mr. James M. Nabrit Iii: Well, I -- let me address that because I think that my point is, that his position is inconsistent and I hope to develop that in that part of my argument.
Justice Hugo L. Black: Well, Mr. Nabrit, I'm looking at the statute and -- so I want to know which part of those sentences you say is unconstitutional?
Mr. James M. Nabrit Iii: The court below held that the both of the sentences were unconstitutional because --
Justice Hugo L. Black: In that entire synopsis, no student --
Mr. James M. Nabrit Iii: Yes.
Justice Hugo L. Black: -- will be assigned or compelled to attend any school on account of race.
Surely it didn't hold that's unconstitutional, did it?
Mr. James M. Nabrit Iii: Yes it did, I think so.
That it --
Justice Hugo L. Black: No student should be compelled to attend or not attend a school on account of race was held unconstitutional?
Mr. James M. Nabrit Iii: Mr. Justice Black, the court below held that that sentence, the whole sentence was unconstitutional including that clause and the next clause.
Justice Hugo L. Black: Do you think that part of it is unconstitutional?
Mr. James M. Nabrit Iii: Yes sir I do because it interferes with the school board's -- it imposes blinders on the school board.
It says you cannot consider race in a context of a segregated --
Justice Hugo L. Black: Well, that's what the constitution says.
Mr. James M. Nabrit Iii: Well, --
Justice Hugo L. Black: And that's what we held.
You can't discriminate on account of race.
Mr. James M. Nabrit Iii: Well, but -- as I -- I understand that to be the argument, however --
Justice Hugo L. Black: We‘re done with that argument, I thought that is what we had held in every case and that's what your client had been insisting on in every case.
Mr. James M. Nabrit Iii: Mr. Justice Black, I understand the Brown case to hold that compulsory school segregation violates the Equal Protection Clause and that the statute, the court below held in North Carolina where they still have school segregation, prevents the school board from doing its duty of abolishing that discriminatory system.
Justice Hugo L. Black: But this --
Mr. James M. Nabrit Iii: It tells the school board --
Justice Hugo L. Black: But this --
Mr. James M. Nabrit Iii: It tells the school board --
Justice Hugo L. Black: This provision of the statute --
Mr. James M. Nabrit Iii: Yes.
Justice Hugo L. Black: -- simply says that there shall be no discrimination.
Mr. James M. Nabrit Iii: Well, the court --
Justice Hugo L. Black: -- the clause I've just read to you.
Mr. James M. Nabrit Iii: Well, the court below didn't understand it that way and that's not the understanding that the state court judges gave it or that --
Justice Hugo L. Black: Well, there's a saying that people can be compelled to go to a school or to refrain from going to a school because of their race.
Mr. James M. Nabrit Iii: Mr. Justice Black, I think we cannot understand that sentence merely on the basis of that first clause, it says --
Justice Hugo L. Black: Well at least that one is something and then if that's -- if the whole clause is held unconstitutional, I don't see any part of it can be based on that clause.
Mr. James M. Nabrit Iii: Well, the statute was on --
Chief Justice Warren E. Burger: Mr. Nabrit, are you distinguishing in the application of the statute between its application and the abstract of that sentence and its application in the context of a remedy for what was stricken in Brown?
Mr. James M. Nabrit Iii: That's right.
The statute was specifically designed to overturn Judge McMillan's order and that's a history and it attempts to do this by saying the state must be colorblind.
It cannot integrate the schools because it cannot take into account race at all in assigning students or in transferring and that it cannot do anything for a racial purpose in connection with assigning students.
If you can't, if you have as -- and if you have an existing system of all Black schools and all White schools, this statute says you can't do anything about it because you must be blind to the race of the students.
And that was the understanding that the three judges below gave to this statute and that was certainly its intent Mr. Justice Black.
Justice Hugo L. Black: Intent of whom?
Mr. James M. Nabrit Iii: The - that --
Chief Justice Warren E. Burger: You mean --
Mr. James M. Nabrit Iii: This is the way it's been applied by the North Carolina judges.
Although this is the way and this is its purpose, it's the way its applied by the North Carolina judge.
Justice Hugo L. Black: You're not I hope relying on -- have probing the mind of the legislature?
Mr. James M. Nabrit Iii: Not at all sir.
Justice Hugo L. Black: I can understand your --.
Mr. James M. Nabrit Iii: May I say Mr. Justice Black that on this issue, the federal courts have been -- below have been entirely consistent that this sort of evasion of Brown cannot be permitted that an artificial assertion of non-discrimination of trapped cannot be permitted to stand in a way of actually accomplishing a reform of the segregated system.
All the federal courts that have considered this argument have rejected it quite uniformly.
Justice Hugo L. Black: Well, I would of course reject to that from the beginning, absolutely.
Mr. James M. Nabrit Iii: And it's important that none of the argument on the other --
Justice Hugo L. Black: (Voice Overlap) by a subterfuge.
What you're saying is, can't be discriminated against by subterfuge.
Mr. James M. Nabrit Iii: And that the statute is a subterfuge and that's what Judge Craven held and the court below held that it was a subterfuge.
Let me state a few facts Mr. Justice Black about busing and let me begin by answering the question that you've asked twice about what is the law in this bus routes.
If you will turn to the petitioner's brief in Number 281, Judge McMillan made a specific finding on this ay appendix page 24 in the brief in Number 281, now the Swann case.
Justice Hugo L. Black: Page number 281?
Mr. James M. Nabrit Iii: At the -- page 24 of the appendix, Judge McMillan states, “The longest bus routes in the entire county are the routes by which four and five-year old kindergarten children are transported to child development centers.”
See, principles monthly bus report, defendant's Exhibit 63, the Pineville Child Development Center has one bus, number 297 which travels over 79 miles a day on one round trip with four and five-year old children, 79 miles round trip with four-year and five-year old children.
Mr. Justice Black, Judge McMillan made a detailed study of this subject of busing.
I have in my hand the exhibits which list every bus route in the county.
The drivers name, all the stops he makes, all the time, Judge McMillan's findings on this were based on an in-depth study of this busing system and of course in that paragraph there are descriptions of other buses.
That one I mentioned, the longest one was a kindergarten bus but of course there are other trips nearly as long involving the regular elementary class.
The same paragraph, he mentions another trip over 70 miles a day, a round trip others, 48 to 60 miles a day with five-year old children.
Bayne Elementary School, bus number 115, a bus over 60 miles a day on one round trip requiring two hours in the morning and two hours in the afternoon.
Justice Hugo L. Black: Did that --
Mr. James M. Nabrit Iii: Now this is last October before the plan.
Chief Justice Warren E. Burger: Did that -- the finding show -- did that finding show how far it would have been to the nearest school, nearer than the 79 miles trip?
Mr. James M. Nabrit Iii: The --
Chief Justice Warren E. Burger: Did it juxtapose those --
Mr. James M. Nabrit Iii: That -- that's the -- those -- the Bayne Elementary finding which is ordinary elementary school, the busing was based on the school board's zones which are not drawn on the basis of proximity but drawn on the basis of discretion, but nevertheless they are the zones.
The school board decides where it shapes its zones for its own purposes.
But in any event, this case has a complete record on the subject of the busing and the transportation system and all of those questions can be answered, the answers to all of those questions can be ascertained by the record.
Let me state just a few general facts about busing.
First it's wide spread.
In this nation 40% of all the children who go to school everyday ride school buses, 18 million of them.
That's documented in the amicus curiae briefs, the ex parte one by National Education Association.
It's also a finding in this record.
In North Carolina, 610,000 children a day, 55% of all the children ride school buses every day.
Justice Potter Stewart: But not --
Mr. James M. Nabrit Iii: They are not merely --
Justice Potter Stewart: But not for the purpose of creating a balance or ratio of race, religion or national origin, you don't claim that do you?
Mr. James M. Nabrit Iii: No, no, no, no.
Justice Byron R. White: That's what this is directed to.
Mr. James M. Nabrit Iii: Well, I was trying to state a few facts upon -- the background upon which this statute is enacted before I discuss its application.
These are not only children in the counties, they include city children.
The way the law is applied in North Carolina, the state up until last year paid for all children who bused in the county areas but also in those areas inside city limits, that had been annexed in the past 13 years, any area annexed since 1957 and these are exhibits I got out of the record room this morning which show that a large part of Charlotte had been annexed and these children are bused at state expense in the red area and of course all those outside it.
In addition, anyone who travels from the center to the outside is bused at state expense and anyone who travels in any direction.
Since Judge McMillan's opinion, the state has changed this regulations and now all children in the state of North Carolina under the current regulations, no matter where they live in, the city or the county are entitled to busing at state expenses they lived more than a mile and a half from school.
Justice Hugo L. Black: As I understood, I want to be sure quite about this, someone has argued as you are saying that the state would be without the power to pass a regulation doing away entirely with busing, the constitution would permit, is that your argument?
Mr. James M. Nabrit Iii: Mr. Justice Black, that argument is not necessary to --
Justice Hugo L. Black: It's our logic in this case --
Mr. James M. Nabrit Iii: It is -- it has not been made because we don't face any such facts.
Justice Hugo L. Black: I didn't see it.
Mr. James M. Nabrit Iii: However, if that were to happen, the inquiry would have to be whether or not, it had a racially discriminatory effect.
It wouldn't seem in neutral circumstances to be discriminatory to say, “Oh!
No one gets a bus ride.”
But just like the school closing in Prince Edward County, it might under some circumstances taking away busing have a discriminatory effect.
Justice Hugo L. Black: Well the reason I asked for it, I had always thought that was within the power of the state to operate schools or not as it so tendered without federal litigations and I would suppose that the State of North Carolina would repeal all its laws providing public schools that no one could insist that the federal constitution --
Mr. James M. Nabrit Iii: All this was --
Justice Hugo L. Black: And I think the same thing about busing.
Mr. James M. Nabrit Iii: The state's power is plenary unless it's the effect is to make a racial discrimination.
At that point the Equal Protection Clause would prohibit it and that requires an examination of a record and facts and we don't have that case but --
Justice Hugo L. Black: Well, I thought the state's power was plenary to determine whether or not it had schools.
Mr. James M. Nabrit Iii: That's --
Justice Hugo L. Black: I didn't think we have any --
Mr. James M. Nabrit Iii: Well, that that was the argument that was made where the -- in the Griffin case Your Honor where the school board abolished, they closed down all the public schools in (Inaudible) County.
Justice Hugo L. Black: But we found there was a discrimination now on account of not closing them all down.
Mr. James M. Nabrit Iii: Well, that's the inquiry I'm suggesting would have to be made whether or not it's discriminatory.
That's the only inquiry I'm suggesting.
The state's power is also plenary in determining the boundaries of municipalities but in Gomillion against Lightfoot, the court inquired as to whether or not that kind of power was used to get a discriminatory effect to deprive Blacks of the right to vote.
Justice Hugo L. Black: That was under Equal Protection --
Mr. James M. Nabrit Iii: That's the same kind of --
Justice Hugo L. Black: The equal protection?
Mr. James M. Nabrit Iii: That -- the equal protection, that's the only thing --
Justice Hugo L. Black: Under the state law.
Mr. James M. Nabrit Iii: That's correct.
Justice Hugo L. Black: What I was talking about was absolute abolition of public schools, I wouldn't think it could be any question about that.
A state's power to do that are absolutely to do away with buses.
Mr. James M. Nabrit Iii: In Charlotte-Mecklenburg, the board's own figures and this is at page 619A of the Swann record, the record in number 281 show 10,414 elementary children last year rode buses.
In other words, 42% of the total children bused in Charlotte were elementary children even though the elementary schools are ordinarily closer to home than the high school.
So the system was that we are dealing with as busing as an integral part of the normal educational program for elementary children as well as for high school children.
Now, this record tell -- I think dispels some of the misconceptions about how costly busing gets to be, the average state cost for a pupil for a whole year in the state of North Carolina is $23.40.
The cost in Charlotte-Mecklenburg is about the same, around $20.00 to bus a pupil for the whole year.
What's involved Judge McMillan found was a cost that amounted to about the operating expenses of the school, the Charlotte system for two days out of the year and that's the kind of finances we're dealing with in relation to the overall picture.
It's a 66 million dollar budget school system.
This is just two days a year out of it.
The busing plan that Judge McMillan ordered is as the Court knows in effect, Judge McMillan found that it went into effect and the plan we've been talking about for two days is an operation, it's functioning this morning, it has been for several weeks.
Under this Court's denial of the stay under the pendente lite rule of Alexander against Holmes County.
Judge McMillan found that the board had no need to make any additional capital expenditures in the current year because he found out that the last hearing in July, the board had in effect been hiding buses.
His opinion states and it's -- in that same opinion that I referred to you a moment ago Mr. Justice Black at page 18 of the Appendix to petitioner's brief in Number 281.
This is the August 3rd Memorandum, that the school board had in effect been -- not only been exaggerating its bus needs in all of the argument but had led the court to believe that they actually owned the 107 -- around a hundred less buses than they had.
And he found that their $5 million cost estimates that were banded on all over the nation including the papers filed in this Court last Spring were bordered on fantasy and he referred it to Alice in Wonderland and I was there and we had again in July, five days of testimony about these bus estimates and Judge McMillan's finding and he heard the witnesses and he saw these thousands of names on paper was indeed -- these are opinion statements about the busing were not worthy -- .
Justice John M. Harlan: Were any of those findings on the busing issue disturbed by the Court of Appeals?
Mr. James M. Nabrit Iii: No sir.
The Court of Appeals accepted Judge McMillan's findings based on a study of the record.
Justice Potter Stewart: Well, except the proceedings last summer of last July and August haven't been through the Court of Appeals yet.
Mr. James M. Nabrit Iii: Well, that's correct but his conclusion was that his original findings were essentially still correct based on all these new --
Justice Potter Stewart: But then he found some more facts --
Mr. James M. Nabrit Iii: That's true.
Justice Potter Stewart: -- about the buses that haven't -- and those that hasn't gone to the Court of Appeal.
Mr. James M. Nabrit Iii: That record is here and its printed and it was just filed recently by the school board and it's printed appendix in Number 349, this has the entire transcript.
Justice Potter Stewart: Right.
Mr. James M. Nabrit Iii: And many of the exhibits of the hearing.
Justice Byron R. White: I gather, experiencing the last couple of weeks is to confirm the (Inaudible)
Mr. James M. Nabrit Iii: But Mr. Waggoner's asserting some new facts, brand new facts this morning about accident rates and all that.
Justice Byron R. White: (Inaudible) they've got the buses, they barred the state --
Mr. James M. Nabrit Iii: Entirely correct.
Justice Byron R. White: You have to take in to account the -- .
Mr. James M. Nabrit Iii: That's correct.
Justice Byron R. White: Is that also on the next year?
Mr. James M. Nabrit Iii: Judge McMillan -- no, it does not.
Judge McMillan's finding was that they could establish the needs on the basis of actual practice with the buses that were available free of charge from the State Board of Education.
They'd have to buy them next year.
Of course, what one must understand in relation to that is that the school board -- that Judge McMillan's findings are based on what they needed to do.
But it's always been in the school board's interest to exaggerate this and to devise routes based on inefficient principles -- and all that there estimates based on running a less sufficient bus system than they were actually running and that's why they got all those inflated estimates.
Justice Potter Stewart: Mr. Nabrit --
Mr. James M. Nabrit Iii: That's the judge's finding.
Justice Potter Stewart: Mr. Nabrit, if you permit me to say so, I think this business about busing and whether it is 23 dollars and 40 cents throughout the State of North Carolina and $20.00 of per pupil per year in Charlotte-Mecklenburg, the county buses they have and how old they are and what the mileage is, it's of some interest but so far as I'm concerned, is really collateral and peripheral to the basic question that this case poses.
The first sentence of the statute, the sentence that -- the first sentence that was held on to be unconstitutional doesn't say anything about busing.
It just says no student shall be assigned or compelled to attend any school on account of race, creed, color, or national origin or for the purpose of creating a balance or ratio of race, religion, or national origins.
Now, that involves a fundamental question and that is it seems to me the fundamental question in this case.
And that question exists whether or not the children walk or go by horseback or public transportation or buses.
If you are right of course, buses are going to be needed if it -- where and if the distances are great but that's a rather peripheral to the basic question, isn't it?
Or am I all wrong when we get to the --
Mr. James M. Nabrit Iii: Well, I agree and what I want to talk about is the subject to -- next is the subject you are raising, I think it is not peripheral because of the arguments by the school board and the Solicitor General that in the Fourth Circuit opinion, the reasonableness doctrine depends on assessing all of these factors in some way and adding them up --
Justice Potter Stewart: Well, but that begins with the proposition.
This I appreciate is at least a tripartite controversy but the -- if you begin with the proposition that it's the duty of the school board to maximize compulsory integration to the extent that it is A; feasible or B; reasonable or C; humanly possible.
That's one thing but the question is whether that is the constitutional duty of a school board, isn't that the basic question?
Mr. James M. Nabrit Iii: Well, certainly and then Judge McMillan viewed it that way --
Justice Potter Stewart: (Voice Overlap) it's just a collateral issues.
Mr. James M. Nabrit Iii: Judge McMillan made all these detailed findings about the busing and the cost and all that at the request of the Court of Appeals at the time the stay was granted.
The court stayed this order and said, “Give give us detailed findings about this.”
But let's talk about the central issues in the statute.
The law prohibits assigning or compelling students on the basis of race.
That's the colorblind provision and also in the same purpose, assignment for the purpose of creating a balance or ratio of race.
Now the court below in its opinion held that this wasn't a legislative effort to limit school boards to either freedom of choice plans and other part of the statute or the so-called neighborhood school concept.
This is the basis on which the Attorney General and the court below defended the statute.
The decision below relies on this.
This is from the brief by the Attorney General of North Carolina about what the statute means.
It says the above quoted statute, general statute 115-176.1 is really nothing but the embodiment of the neighborhood school concept.
And as we will attempt to show, the neighborhood school is legitimate in legal school facility and should not be broken up or fragmented to correct racial imbalance.
This statute was designed obviously to eliminate transportation cost and permit the student to remain as near his or her home as possible.
Stated another way, the statute was designed to require that local school administrative units throughout the state operate as nearly as possible under the so called neighborhood assignment system.
Chief Justice Warren E. Burger: Well, standing right there, do you have any quarrel with that as a statement of legislative policy or school board policy?
Laying aside for a moment (Voice Overlap) --
Mr. James M. Nabrit Iii: My call is based on the Equal Protection Clause and only that.
Chief Justice Warren E. Burger: Laying aside for a moment, the situation where it has as its purpose to frustrate the mandate of Brown.
Mr. James M. Nabrit Iii: Well, the -- I agree with the court below.
It says, federal courts don't sit to review school board policies, legislative policies about how they allocate their resources.
Our argument is based only on the claim that this statute denies Equal Protection of the laws because it interferes with school boards in carrying out their obligations, their affirmative duties under the Brown case.
And in the Attorney General's brief -- in this court makes a frontal challenge to Green, it takes a sentence out of Green where this Court said there shall be -- there should be no White schools or Black schools, there should just be schools.
Attorney General's brief here takes a sentence out of Green and says that can never happen.
And that's pointed out in our brief in this case.
Justice Byron R. White: Is the Solicitor General filed an amicus brief in this case?
Mr. James M. Nabrit Iii: He has indeed and --
Justice Byron R. White: And either a -- 444, 498?
Mr. James M. Nabrit Iii: The Solicitor General filed a brief, Memorandum of the United States as amicus curiae in 444 and 498.
And it is my submission and he urges as we do that the court below should be affirmed.
However, it's my view that this position of the Solicitor General in this case is entirely inconsistent with the argument yesterday cause I understood the Solicitor General's argument yesterday to be that the choice before the court was between something called racial balance which he attributed to us.
And something that Solicitor General supported which was called the neighborhood school assignment system.
Now, the holding of the court below in the three-judge court case is that this statute embraces, embodies the neighborhood school assignment system and yet the Solicitor General's memorandum in the three-judge case says this, “In many cases, neither freedom of choice nor racially neutral zoning is adequate to disestablish the former dual system.”
We agree with that exactly.
It goes on to the stay.
Other steps such as pairing or consolidating schools, redrawing boundary lines, restructuring transportation routes or any combination of these may be required.
I cannot understand how someone who adheres to that position can contend that Judge McMillan's decision must be overturned.
I just don't understand how the two arguments fit.
I do understand why the Solicitor General has to adopt that view.
It's because this statute would also invalidate the HEW plan because the plan for Charlotte developed by the Department of Health, Education and Welfare embraces the school boards gerrymandered zones and goes further with them, it combines them into groups of schools, so that if the Solicitor General has not made the argument that Mr. Waggoner made for the school board that is on plan as unconstitutional.
But Mr. Justice White in questioning one of the counsels asked whether or not rezoning to promote integration changing the lines that -- by which the school board defines what a school's neighborhood is for the purpose of integrating the schools whether or not that violates the statute, and I understood counsel say that it did.
Justice Hugo L. Black: That would be a different lawsuit.
Mr. James M. Nabrit Iii: I think not.
I think that is precisely this lawsuit because --
Justice Hugo L. Black: Being with the Court -- we are now compelled in a general case like this.
We look into the question to determine whether if schools in this country have been put at the right places to --
Mr. James M. Nabrit Iii: No.
Not in the general sense but in the particular sense that the -- there is no escaping the fact that those choices, those decisions, those routine every day decisions by a school board about where the school goes, I mean, who -- the size, the grade structure, that is what -- those are the decisions that are used to manipulate these school systems and keep them all Black and all White so it is necessary to look at those techniques in order to stop the segregation, to stop the discrimination.
Justice Hugo L. Black: What would you require us to review the questions with reference to the constitutional validity of the state, wouldn't the school that just had been placed and somewhat -- case other than -- when directly raise that point, that's what I thought.
Mr. James M. Nabrit Iii: Well, I think the case does raise that point because Mr. Blakeney's clients went into the State Superior Court in Mecklenburg County and got an injunction which restrained the school board from carrying out this kind of stuff.
Justice Hugo L. Black: (Voice Overlap) they did not restraint them from building a school, did he?
Mr. James M. Nabrit Iii: He restrained them -- well, let's look at the terms of that.
Justice Hugo L. Black: Well, by this Court that if -- it's wrong, it would seems that the pattern probably be wrong all over the United States and we would have to -- our courts would be busy trying cases of whether schools are located at the right spot constitutionally.
Mr. James M. Nabrit Iii: Mr. Justice Black, that is why we submit that the test we urge for -- that the court order adopt is a test based on results, the test based on actually desegregating the system and that these other -- and that no one else in the case, not the Solicitor General, not the school board, none of the amicus curiae supporting their position are answering the questions that they rhetorically asserted it have to be answered as what is the unitary system, but none of them were saying how would -- giving any concrete basis for instructing a school superintendent or District Court how it is, he runs his school system so it won't be discriminatory and it can remove segregation.
Chief Justice Warren E. Burger: Mr. Nabrit, let me try this question out on you.
If this statute that you challenge here today had been adopted by the state on its admission to the union and enforced strictly from the beginning, right down the present time, would you have any -- would you have a quarrel with it?
Mr. James M. Nabrit Iii: If I leave out the whole history of state racial discrimination against Blacks in the country or in the state, --
Chief Justice Warren E. Burger: I said enforced it.
Mr. James M. Nabrit Iii: That the state has --
Chief Justice Warren E. Burger: If the state had adopted it and enforced it, there wouldn't have been any segregation, would there?
And then you would --
Mr. James M. Nabrit Iii: If the states had been colorblind from the beginning and we've never had slavery and we've never have racial segregation then I wouldn't be here.
Chief Justice Warren E. Burger: Then the statute [Laughter] it'd be would be all right, wouldn't it?
Mr. James M. Nabrit Iii: Well --
Chief Justice Warren E. Burger: If the statute was 200 years old strictly enforced right from the beginning?
Mr. James M. Nabrit Iii: That's right.
But the essence of my submission is to look at this statute as they exist in the world we know.
The world where -- the states have done everything they can, including the school board and they have resisted Judge McMillan's orders and everywhere they know how to keep racial segregation and this Court knows that history.
The Solicitor General referred to it yesterday in talking about Little Rock and all that but I disagree that it's all over.
This war against the Brown case is still going on, it's just in a much more subtle form and that's why we have to deal with these details about how school boards run their systems because they're not engaging in more sophisticated types of evasion.
That is what this case is all about.
Justice Byron R. White: Well, if this statute is unconstitutional, it's only because the constitution requires precisely what the statute prevents in the circumstances to this case.
You're saying the constitution of the United States requires assignments based on race in this case.
It requires it because past discrimination that as a matter of remedy, you would say that the constitution absolutely requires it.
Otherwise, I suppose the statute would be constitutional.
Mr. James M. Nabrit Iii: Well, that's correct about my main argument.
Justice Byron R. White: Or would you say or are you saying --
Mr. James M. Nabrit Iii: It's not correct about my other two arguments.
Justice Byron R. White: Or are you saying that the United States Court or any judge has got some or United States Court has got some discretion as to how it affects the remedy.
And that a state statute which purports to interfere with his discretion is invalid?
Mr. James M. Nabrit Iii: Right.
Justice Byron R. White: Which one are you saying?
Mr. James M. Nabrit Iii: Oh, I'm saying that and I am also saying --
Justice Byron R. White: That the constitution requires it.
Mr. James M. Nabrit Iii: I'm also saying -- well, I certainly see that.
But I also submit that the Brown case requires a result.
The Brown case requires an actual reform of the school system, so the constitution does require if that is to be accomplished in fact that the goal be achieved.
And it can be achieved --
Justice Byron R. White: You can say Brown says that racial discriminations in the school assignments are unconstitutional and we should have a remedy to the situation by making some more racial assignment?
Mr. James M. Nabrit Iii: I understood --
Justice Byron R. White: (Voice Overlap) Well, why didn't you answer yes?
Mr. James M. Nabrit Iii: Or maybe I didn't hear the question.
I understood the -- well, the answer is yes, but the Brown case requires something more that that's my only point.
The Brown case requires -- the Brown case held that the separate schools for Blacks were inherently unequal and had to be abolished as -- and it was not simply a decision based on the existence of a racial classification.
Now, this neighborhood school concept in the context of a system like Charlotte insofar as I've been able to tell in the context of all the school segregation cases in the courts now a days.
This neighborhood school concept is really a fiction.
Justice Hugo L. Black: Is what?
Mr. James M. Nabrit Iii: A fiction.
It certainly never existed in Charlotte.
No one in this case in Charlotte, certainly not the school board, not the HEW plan that the United States presented is proposing that pupils be assigned on the simple basis that Mr. Vanore stated, that is, “No one has proposed that the assigned pupils in Charlotte schools to the closest school that can hold them --
Justice Hugo L. Black: But suppose it did, would you think that as unconstitutional?
Mr. James M. Nabrit Iii: I would think that on the facts of Charlotte it's unconstitutional.
Justice Hugo L. Black: Would you think it'd be unconstitutional?
Mr. James M. Nabrit Iii: Yes sir.
Justice Hugo L. Black: But yet the Charlotte problem -- do you think it is unconstitutional to have schools whether the main objective is to have them close to the children in the surrounding community whether they call them neighborhood schools or anything else?
Mr. James M. Nabrit Iii: I have nothing against that policy and that policy is not per se unconstitutional.
But it does produce an unconstitutional result where the neighborhoods are racially defined by the state as in Charlotte or where --
Justice Hugo L. Black: (Voice Overlap) The problem is that the state has been racially defining schools, then that's a different problem to this.
If you are saying that they passed laws that are required people to concentrated in one section rather than another, I think you would admit that's quite a different lawsuit?
Mr. James M. Nabrit Iii: Well, they accomplished precisely that by a series of administrative steps in the small decisions, precisely then they defined the neighborhood racially --
Justice Hugo L. Black: (Voice Overlap) One of the relation is set down by laws of the state?
Well, they aren't?
Mr. James M. Nabrit Iii: Why?
This has really two aspects.
Yes, the --
Justice Hugo L. Black: What law of North Carolina?
Mr. James M. Nabrit Iii: There is no law applicable to Charlotte.
No racial segregation ordinance applicable to Charlotte.
But the same thing has been accomplished in Charlotte by the use of the -- whole record we made on the zoning, on the way that the black neighborhoods were treated differently in the zoning, on the way the public housing was built, the government and the way the urban renewal moved the people around.
Justice Hugo L. Black: (Voice Overlap) pretty big job to assign to us, isn't?
Try to rearrange the areas of all the nation where the people have naturally concentrated at one place because of poverty or because of wealth or because of something else.
Mr. James M. Nabrit Iii: Well, judgment -- Judge --
Justice Hugo L. Black: Isn't that more than a court order have to do it?
Mr. James M. Nabrit Iii: I think the choice is that we -- Judge McMillan made a finding that that's what has been going on in Charlotte so that the choice is, the choice --
Justice Hugo L. Black: But what's what been going on?
Mr. James M. Nabrit Iii: That the Government had been accomplishing residential segregation by these several methods in Charlotte.
So that the choice that gives us --
Justice Hugo L. Black: Well, then your complaint should be against what the Government has been doing there, wouldn't it?
How can you rearrange the whole country in such fashion?
Mr. James M. Nabrit Iii: We don't seek to.
We seek to integrate the schools on the simple thesis that schools, their residents --
Justice Hugo L. Black: Yes.
But do you think its good by challenging the place people live and not letting them have schools in their areas?
Mr. James M. Nabrit Iii: Well, the school board is not proposing to give them schools in their areas and they never have.
So that's not the decision that I have made or that the plaintiffs in the case have made but --
Justice Hugo L. Black: But I understand that you want to hold people miles and miles and miles in order to get an equal percentage of the races in the schools, that they don't.
Mr. James M. Nabrit Iii: Mr. Justice --
Justice Hugo L. Black: Is that right?
Maybe I'm just --
Mr. James M. Nabrit Iii: Well, I don't describe my position that way.
No sir, let's take a concrete example of -- let's look at an example of what Judge McMillan was faced with.
He's faced with something that -- on this piece of cardboard which we showed you yesterday, we just simply made tracings of a proposal about how you treat the pupils in this particular area and the red outline is the Government's proposal for this particular area and the black outline is the one Judge McMillan ordered and let me take it very specifically in an effort to show you not that something particular wrong with this -- not that somebody made a mistake about this particular thing but an effort to illustrate the principle that there really is no difference between this racial balanced idea that we are charged with and then neighborhood school idea that the others say, they are --
Justice Byron R. White: That's the neighborhood schools at the outlining districts that some part of the neighborhood?
Mr. James M. Nabrit Iii: This is the HEW Neighborhood School.
Justice Byron R. White: (Inaudible)
Mr. James M. Nabrit Iii: Oh!
Justice Byron R. White: (Inaudible)
Mr. James M. Nabrit Iii: I understand that.
Justice Byron R. White: (Inaudible)
Mr. James M. Nabrit Iii: I agree with them Mr. Justice White.
I quote the HEW Neighborhood, the HEW Neighborhood Plan.
So, it's what it does.
The one that the Solicitor General supports.
There's a Black school here, down at this part I'm pointing to is called Lincoln Heights and there's a White school here that is called Dorieta (ph) and there's a white school here called Statesville Road and all three of them have grades one through six last year.
The school board constructed some zone lines in there, proposed the integration plan.
It left Lincoln Heights, a 100% black.
So the HEW proposed to cure that by combining all three into one big school zone, combining all three in to one big school zone and saying that children in the first two grades will go to Dorieta (ph) over here, children in grades three and four will go to Statesville Road and the children in grades five and six, even those white children that were here go to the Black school in the ghetto in grades five and six, alright?
Now, that is defended as neighborhood schools and this is a particularly large and non-compact example of this but this is neighborhood schools, HEW style.
Now, the Black --
Justice Potter Stewart: What was the school board's plan, vis-à-vis that that would be --
Mr. James M. Nabrit Iii: School board opposes this.
Justice Potter Stewart: Yes.
Mr. James M. Nabrit Iii: But you can -- I'm not trying to advocate this particular zone.
I'm tying to (Voice Overlap) --
Justice Potter Stewart: Nobody, nobody in this case say there really is advocating the HEW.
Mr. James M. Nabrit Iii: Yes, yes Your Honor.
The brief of the United States --
Justice Potter Stewart: And except the Solicitor General on a very unenthusiastic way as I understood it.[Laughter]
Mr. James M. Nabrit Iii: The Solicitor General's submission to be accurate about it is that the case ought to be remanded and Judge McMillan should understand the correct legal principle that that is a valid plan and the school board ought to be permitted that choice.
Justice Potter Stewart: Now the parties to this litigation until we got here, no court and none of the parties in their brief had very much good to say for the HEW plan.
I'm just trying to put that on you.
Mr. James M. Nabrit Iii: This really isn't just -- this --
Justice Potter Stewart: Nor does that the HEW plan purport to be a neighborhood plan either.
Mr. James M. Nabrit Iii: Let me be clear.
This is very much representative of what the United States Government is requiring all over the South because their principle is, the only way you integrate, its in the Solicitor General's brief, the only way you integrate is you combine -- is you rezone or you combine contiguous zones.
He has the three methods listed their in his brief, its combining contiguous zones and our point is that from the stand point of the actual practical operations of the school system of the actual practical effect on the child, this principle of contiguity doesn't have any meaning.
It's the same to the child whether he's bused across this intervening area or that you can draw a big line around it and he is bused the same distance.
Justice Hugo L. Black: I think it -- I think -- surely you're not saying, makes no difference to the child?
Mr. James M. Nabrit Iii: Well --
Justice Hugo L. Black: Might be separated from his brothers and sisters, he might be transported 15 miles, they have to go to a school, one of them is two miles away and one of them is 6 miles away.
I think, if there's something to the concept of the neighborhood schools, that's worthy of consideration in this Court, particularly and we have to divide while looking at maps.
Mr. James M. Nabrit Iii: Well, what I would suggest is that Judge McMillan said it precisely right when he said that the Neighborhood School concept whatever may be its value has no standing in the constitution to overwrite the constitutional duty of the school board.
It has no standing to block the board from performing its affirmative duty to change the unitary system.
If you assume that -- if you assume Mr. Justice Black that the neighborhoods are really natural and the people are voluntarily moved there --
Justice Hugo L. Black: Well, aren't they natural?
Mr. James M. Nabrit Iii: -- you still have say -- no they're not.
None on these findings but you still -- even if you make that assumption --
Justice Hugo L. Black: You mean, they find findings that they are artificial, the neighborhoods are artificial?
Mr. James M. Nabrit Iii: No, that the neighborhoods are racial.
That the neighborhood's -- well, that saying neighborhood system is the same as saying racial system.
It's not the same as saying non-racial and neutral system, that is the finding.
Justice Hugo L. Black: Well, now --
Mr. James M. Nabrit Iii: And that is basically --
Justice Hugo L. Black: I'm not saying to you sir that what I -- we understood is, we've been understating from the first case, if this plain discrimination on account of race take on emphasis, I think we should correct under the constitution but I -- it disturbs me, so I had to challenge the whole arrangement of the living practice as in the way of life that the people all over this nation.
Mr. James M. Nabrit Iii: Well, Mr. Justice Black, if we had ever seen in any of these cases a real neighborhood system based on every child going to the closest school system, and “to the closest school” then we might say that the judgment of the court is upsetting some established practice.
But we don't have that in Charlotte.
They've never had that in Mobile.
Justice Hugo L. Black: Don't have any schools or people who moved to places because they are close to a school?
Mr. James M. Nabrit Iii: It certainly happens that sometimes pupils attend the closest school but these city school systems are not operated on any kind of basis of strict proximity that when you got a 103 schools like Charlotte has, if it's -- that -- they're not just wrong that way.
Unknown Speaker: (Inaudible) case to this question (Inaudible) that you considered Judge McMillan's findings as to state action after 1954, after Brown, essential to that sort of a verdict?
Mr. James M. Nabrit Iii: No, Your Honor, not at all.
I take it by that, that you mean do -- you mean state actually refers to housing?
Unknown Speaker: Yes.
Mr. James M. Nabrit Iii: No, no.
The housing discrimination.
We have no --
Justice Potter Stewart: (Voice Overlap) state action imposed in 1954, as you come to this court with the history of racial deseg -- racial seg -- racially segregated schools up to 54, would you be defending this case as you are now, you had -- in the orders you are (Inaudible)?
Mr. James M. Nabrit Iii: Yes, I would provided I --
Justice Hugo L. Black: Certainly you would.
Unknown Speaker: (Inaudible).
Mr. James M. Nabrit Iii: But I -- but its because its not only the housing practices that are racial, the school assignment practice has it been racial ever since Brown.
It's the --
Unknown Speaker: Well, I just wanted -- if you're not taking a little more baggage, you don't have to do it.
Mr. James M. Nabrit Iii: The -- your observation is entirely correct that that is not essential to that.
That Judge McMillan didn't regard it as essential to his decision and we don't believe it so because the school assignment practices are -- the dual zones are using busing to keep the school segregated.
Busing children passed their nearest school to keep them segregated.
All of those practices are -- that -- Mr. Justice Black there is an exhibit in the opinion by Judge McMillan at page 1206A of this third volume of 281 which list the nine schools that the school board would leave all black.
And all of them but one, were either built since Brown or had additions put on them since Brown, or enlarged or improved.
So that -- what we're looking at is institutions constructed on all black segregated basis since Brown when Judge McMillan has dealing with the reality of life in a community where the school board has been engaging in all of these chicanery to keep school board -- the school segregated and it's his job to find a remedy for that and we suggest that the only administrable principle is not some -- you'll never get the schools integrated.
If you tell a district judge as to go -- develop a reasonable plans or operate on one of this verbal formulations that is based on something other than doing the job.
Justice Hugo L. Black: Well if you can show us, in any of these particular things, where the order has been approved which show in the record discrimination against the race, then I'll be interested in but I don't like this whole theory trying to condemn a whole practice and do away with what I considered to be a valuable part of our concise -- I believe its just traditional, of the neighborhood school idea?
Mr. James M. Nabrit Iii: Well.
Judge McMillan proceeded and precisely that kind of common law -- this tradition.
He said he was deciding this case on its facts and on Charlotte.
He wasn't trying to make law for the whole country.
He was deciding a case on the record beforehand.
It is a detailed the record.
It is the -- I'm sure the most detailed record on the subject of busing that in relation to school desegregation that's ever been made and then the suggestion that three ought to have a remand for some further proceedings it seems to me is a suggestion that not that the court clarify the law for the guidance of the school board but a suggestion that we have more confusion and more lack of clarity.
Chief Justice Warren E. Burger: Do you consider that Judge McMillan's findings with reference to the jury segregation arising out of racial covenants, zoning, I'm not speaking out of school zoning ordinances and regulations essential to its inclusions?
Mr. James M. Nabrit Iii: No, that was the question I thought I answered for Mr. Justice Harlan.
I said --
Chief Justice Warren E. Burger: Not --
Mr. James M. Nabrit Iii: Its not --
Chief Justice Warren E. Burger: The transfer could be consistent, why did you offer evidence on the subject and why did he make findings on it if its irrelevant?
Mr. James M. Nabrit Iii: Well, its because the court's traditional approached to this problem as state actions is to look at the whole factual pattern and then in all the background path and we don't rely on anyone factor and we certainly don't rely on anyone novel a -- for a state action approach where we've got all these conventional state action namely, school's run on a compulsory segregated basis right up until July 1969, the school system ran with 25 black schools.
Two thirds of the children on a freedom or transfer plan just like that in the Ray case, the Monroe case from Jackson, Tennessee, that was a companion of Green.
The -- so that the -- there's so much conventional state action.
We don't have to deal with --
Unknown Speaker: Pursuant to the Chief Justice's question, I understood that this post 1954 state action evidence was introduced and considered by Judge McMillan as bearing upon the question of whether these schools in the context of original rule -- an original dual system could still be regarded as racially identifiable?
Mr. James M. Nabrit Iii: Why -- certainly he thought it had some bearing on the matter, I mean, and I think that is correct but I do not believe its correct to say that the decision hinges on it or that it depends on it.
Unknown Speaker: That's the question on what to do first.
Mr. James M. Nabrit Iii: But let me -- if I may take an example, I mean, of the relevance of this kind of evidence, to the concrete one.
The two schools that HEW were going leave black were Oakland and Double Oak.
Double Oaks School is a school built right in the midst of a low income federal housing project.
That's the most dejure neighborhood in town.
Unknown Speaker: (Inaudible)
Mr. James M. Nabrit Iii: And the suggestion that -- that that's the school to be left all black seems to me contradicts the Brown decision.
Chief Justice Warren E. Burger: Counsel we have conserved some little time of yours to process our question and if after lunch there are some points that you wish to make that you feel you haven't covered on your argument in chief, we'll give you some additional time.
Mr. James M. Nabrit Iii: I appreciate --
Chief Justice Warren E. Burger: Five or ten minutes (Voice Overlap) how much you need.
Mr. James M. Nabrit Iii: Please the Court.
I would like to use an additional ten minutes if the Court will allow.
Chief Justice Warren E. Burger: Very well.
Mr. James M. Nabrit Iii: To -- just merely to state two additional arguments which are made in our brief and in the process I think add to my answer to the Chief Justice's question which suppose that this statute was adopted in an entirely neutral atmosphere, perhaps hundreds of years ago outside any context of -- a history of segregation and so forth.
The first of the two arguments is the one we set out in our brief in which the court below relied on based on the supremacy clause.
Now that argument of course would not apply to this hypothetical statute adopted in another environment.
The second argument I will make based on the principle decided in Hunter against Erickson and the lucid opinion by Judge Paul Hays last week involving the New York statute might apply in that other situation and I'm talking about that.
And I'd like to conclude by returning to what we mean by racially identifiable school.
Now, the supremacy clause issue is I think quite simple and quite fundamental.
It is that the statute constitutes a practical interference with the remedial powers of the district judge.
Even if we accept Mr. Waggoner's interpretation of what the statute means, that is true.
Mr. Waggoner says that the statute only applies after you have a unitary system and then when you do, you can no longer use race.
And that the statute forbids -- thus prohibits the school board from using race to go beyond the requirements of Brown.
You can go up to the requirements of Brown but not beyond it.
And practically what does that do?
What did it do in this case?
It put the school board in the position of having a federal judge who would enjoin them to come up to the requirements of Brown do the minimum -- to do at least the minimum necessary to comply with Brown.
And a state judge who would enjoin them and that you can't take a one step beyond it, that you can't go one inch beyond the minimum federal constitutional requirements.
Now, the statute is overbroad in general and vague as this is -- which sets up that kind of collision between the federal power and the state judge's power.
It is a practical interference with the remedial files of the federal courts as the courts below erred.
And the same thing was found in an Alabama case, involved -- which we have requited in the rear at page 29A of the brief of the appellees, a 1970 Alabama statute which the three-judge court in Alabama with Judges Guin, Thomas and Piedmont (ph) held unconstitutional on the same grounds.
It said, the legislature was trying to overturn the decisions of the federal court and under the supremacy -- on constitutional manner were -- they were trying to review the federal courts decisions about constitutional right in this case called Alabama against the United States and that the law was unconstitutional under the supremacy clause as well as under the Green case and the Brown case.
Now, -- so that -- but I don't think by making that argument on Mr. Waggoner's assumption that the statute is just neutral, I don't mean to suggest for a moment that we accept that interpretation of the statute.
The real meaning is the one that the Attorney General of North Carolina urged in the court below and that the three-judge court accepted and that the statute was intended to prohibit school boards from using this ordinary techniques of school administration such as busing, pairing, clustering and rezoning any of them if the purpose was to affect any ration on the basis of race, any kind of racial grounds.
Justice Hugo L. Black: Or perhaps --
Mr. James M. Nabrit Iii: Well, the words of the statute that the second clause of the first sentence we were talking and this-- North Carolina's statute is what I refer to Mr. Justice Black.
It's at page 21 of our brief and its that, no student shall be assigned or compelled to attend any school on account of race, creed, color and national origin.
That was the clause we talked about and it says or for the purpose of creating a balance or ration of race, religion or national origins.
That was understood, this is what the Attorney General and the court below accepted as embodying this limitation on the power of the court to reorganize the system and this is what its involved.
Now, the Hunter against Erickson point, I do not intend to argue at any length but merely to state the -- and the point is simply this, that the statute does make an expressly racial classification.
It says to a school board, you cannot for example bus children in order to racially balance the schools but you can bused them for any other purpose, you can bus children to segregate them by sex, you can bus them to any distance, to any age for any other reasons the school board might want to use it if the -- to save money to build the schools out, this is realistic, to build the schools out where the land is cheap or any of this kind of reason you can bus.
The only reason you can't use is busing for a -- for racial balance and in Judge Hays' opinion, doesn't presuppose any duty to integrate that its merely -- even if -- as he assume, there was no duty to racially balance as a constitutional manner.
There were the list, that the statute disables the school board from doing something that the black community is interested in getting, namely advancing the cause of racial integration in the schools.
Now, finally, our definition of the school boards duty under the constitution does not rest on a notion that racial balance is required.
We state them -- our view of the rule that the court order adopt very precisely in our brief in the Mobile which -- as the Solicitor General pointed out, we've adopted it in the Swann case.
It is that every black child is to be free from assignment to a black school in an identifiable racial minority school that every grade of his education and we define identifiable racial minority schools, not in terms of mathematics or percentages or any precise notion of a balance but in this terms.
The racially identifiable black schools are those which by reason of a very considerable disproportion or a very considerable racial concentration are conceived as designed to received black children.
The schools that are set aside for the black children, is what we're talking about.
And it does -- the definition doesn't rest on anything like a mathematical precision.
We recognize that a range of results or ratios which satisfy the definition of a school not identified racially.
The definition embodies both the concept of disproportion which everybody is familiar in the debate and also the concept of a considerable racial concentration.
On the idea of concentration refers to -- at where, even though a race is a very small part, they're all clustered in one school or in a particular school.
But the test depends in the final analysis and you can't get away form -- from it not on application of a mathematical rule but on the court's exercising judgment about whether the school in all the circumstances is one which is conceived as designed for black children as the separate segregated school set up as the institution, the principle institution of the segregated system, the principle vestige of the segregated system.
Thank Mr. Chief Justice.
Chief Justice Warren E. Burger: Thank you Mr. Nabrit.
Rebuttal of Whiteford S. Blakeney
Mr. Whiteford S. Blakeney: Mr. Chief Justice, may it please the Court.
Counsel on our end of the table have agreed that I may speak briefly and the few minutes that remained in the time that we were to divide --
Chief Justice Warren E. Burger: I think you have 13 minutes counsel.
Mr. Whiteford S. Blakeney: Thank you sir.
Chief Justice Warren E. Burger: If you find you'll need a little more, we'd extend that.
Mr. Whiteford S. Blakeney: Thank you sir.
I don't believe I will.
I would like to address my observations at this time if I may Your Honors to what seems to me to have emerged as the main focus of contention, that is this matter of remedy, remedial action to cure or correct or undo or dismantle a situation caused by, let us assume for the moment, caused by wrongful governmental action in the past or indeed wrongful governmental action presently existing, and may I take as my point of departure the question that the Chief Justice asked Mr. Nabrit earlier to this effect, whether he was arguing under Mr. Justice Black's questioning about the constitutionality of this statute on its terms, the Chief Justice put the question to Mr. Nabrit, are you contending that that wording is unconstitutional in its self or are you contending that it won't do.
It is invalid, its unconstitutional in its application to this factual situation.
And I understood Mr. Nabrit reply, it's the letter.
Now, I make bold to take the position, -- disposition Your Honors, I cannot conceive of any situation no matter what the presence of governmental action in the past or in the present may be in which any remedy can be utilized to redress a past constitutional wrong by imposing a new constitutional wrong upon anybody who objects.
Now, I understand upon that and I think that is constitutional gospel.
But let me develop that just a little more if I may, I say that on the question of determining whether or not there is or has been governmental action that is causing, producing a situation of compelled segregation, that is the true issue to be litigated in this respect if it can be found and this is essentially what are argued earlier.
If it can be found through a careful litigation in any case, that freedom is not being truly accorded now to the child, then whatever it takes to remove that governmental action, that is denying that child that true freedom today, that true free- by a true freedom I mean, freedom to go to school on non-racial basis, without regard to his color, without consideration of his race.
If that freedom is not being truly accorded to him, then that's what the litigation should be about in each in every case as it arises and they will of course arise still no matter what the decision here is.
But that should be the inquiry and the result should be sternly to root that out as has been said by this Court, root and branch, extirpated, that freedom genuinely must be accorded but Your Honors, it is not the course to take to say to him, we will now put you back on the road of racial compulsion rather see that he gets freedom, individual freedom.
Now, let me give an illustration to indicate further what I am speaking of.
Shall it be said to a Negro child for example today in a given school, the Negro child, let us say is attending a school that is convenient to his home and that's -- he prefers to go there, his parents prefer him to go there, they say so, they say so in the Moore case, this is where he wants to attend, shall school authorities be allowed to go to that child and say, because your parents were by law or governmental action forced to go here, now therefore, you are going to be forced to leave here for that because of that racial compulsion that was imposed upon them, we now will impose a racial compulsion upon you to go somewhere else that though you do not wish to go and it is only because of your race that we now take you and move you.
Or to the white child, shall governmental authority say to him today, because your parents attended this school, let us say in the past, in the neighborhood of your home, and at that time, Negro children were not allowed to come here.
By law, they weren't, therefore, you, the white child, must now leave here and go to another school you do not wish to attend and we send you away from here because you are white.
There must be a retribution effective here for what was, or let us bring it to the present.
If it be not another of retribution for the past but here is a condition of separateness existing today, we must correct the separateness.
Therefore, we must force you against your will and we will pick you by your color and sends you.
Now this -- it must be starkly called what it is, it is government compelling people, driving people on basis of race.
Justice Byron R. White: Mr. Blakeney, I take the case (Inaudible) no discrimination but it so happens that there are some white schools and some black schools in the city by whatever circumstance caused it, there are black schools and white schools and some black and white school.
Mr. Whiteford S. Blakeney: Yes.
Justice Byron R. White: And the school board says to itself, “We think we'll have a better educational result right across the board, people will come out better citizens if they're educated together.
So we are going to pair some schools.
We're going to make sure that all through -- all the grades education is furnished to blacks and whites together rather than separately.
Not because we're required to, not because there's any -- we have to give a remedy for anything.
We just think as an educational matter, it's going to -- versus the public interest to do it this way.”
So they go to your black child and say, you be -- you have been going to this school, but you're not going to this school anymore.
You're going over here to another school where you can go to school with whites and they have said to the white people the same thing.
I take it you wouldn't say that as prosperity?
Mr. Whiteford S. Blakeney: I would say this to that, Your Honor, that --
Justice Byron R. White: Well, is it -- yes or no?
Is it prescribed or not under -- and since it's the position you took a while ago?
Mr. Whiteford S. Blakeney: I think that the protesting child is entitled to an inquiry as to whether or not the hand that drew the boundaries and they decided where that school should --
Justice Byron R. White: All the school board says that we concede freely that the reason you aren't going here is because we want blacks and whites to go to school together.
Mr. Whiteford S. Blakeney: And --
Justice Byron R. White: And the -- this is a racial -- to that extent it is a racial reason for the change.
We want them to be educated together.
Mr. Whiteford S. Blakeney: Your Honor, if there is anything in the natural geographic situation consistent --
Justice Byron R. White: Nothing whatsoever in the geography that would indicate and they said, this used to be the first sixth grades here but it isn't going to be the first sixth grades anymore, its going to be the junior high school and you're going to have to go to grade school over here with all the rest of the -- with all the other people who are going to those grades.
Mr. Whiteford S. Blakeney: Yes.
And my answer, Your Honor is, that if the school board was formally utilizing or at anytime utilizing natural geography and then left it, departed from it for no reason other than to force people against their will, on basis of race then the objector can --
Justice Byron R. White: Well, the school board says, “We are -- we're going to force you against your will to be educated with members of the opposite race.”
That's our decision, we're going to force you to do that, we think its better for education, would -- you would say that unconstitutional?
Mr. Whiteford S. Blakeney: I would say Your Honor that the sole test is what Brown laid down namely, look to inquire, look to see, is the action of Government here, is it bottom the point, shaped according to race and race alone, race alone --
Justice Byron R. White: Well --
Mr. Whiteford S. Blakeney: -- then it cannot be.
Justice Byron R. White: Well, the only -- the school board had really concedes, the only reason we're making this chain is to make sure that blacks and whites go to school together.
Mr. Whiteford S. Blakeney: Race alone -- then Brown does not permit it, Your Honor.
Justice Byron R. White: Would you say that that's critically your position?
Mr. Whiteford S. Blakeney: In this case?
Justice Byron R. White: Yes.
Mr. Whiteford S. Blakeney: We of course rest upon the exact facts of this case but the proposition generally --
Justice Byron R. White: But what if you are wrong on that, that a school board could do what I just described?
Mr. Whiteford S. Blakeney: Then in this case they have not done so Your Honor.
Here, it is not the situation you've just described.
Justice Byron R. White: But lets assume the school board could do what I have described, consistently with Brown on the Fourteenth Amendment.
Could -- does that make any difference in terms of your argument about the acceptability of this order of the District Court in this case?
Mr. Whiteford S. Blakeney: I would say Your Honor where the facts are as here admitted, namely, we drew these lines for no reason except to include blacks or exclude whites or vice versa, we draw them for no reason than except that, it was not educational purpose that motivated us or move does here.
It was not that, this is conceded here in this Moore record, these lines were drawn, these moves were made, these people who are being sent here and there not for educational reasons but for racial reasons.
Justice Thurgood Marshall: Mr. Blakeney, when was this bill passed, on ‘69?
But no busing (Voice Overlap) --
Mr. Whiteford S. Blakeney: The statute in question?
Justice Thurgood Marshall: Yes, that the no busing bill, what month?
Mr. Whiteford S. Blakeney: Yes.
In the spring of '69, early ‘69.
Justice Thurgood Marshall: Well, suppose that same bill had been passed in ‘55, we wouldn't have this problem, would we?
Mr. Whiteford S. Blakeney: We might indeed still have the same problem, Your Honor.
Justice Thurgood Marshall: Well, isn't there a difference between when you passed this bill or do you admit that this bill was passed for the expressed purpose of upsetting the judgment of the District Court?
Mr. Whiteford S. Blakeney: No sir, the District Court orders were entered a year after this statute was passed.
Justice Thurgood Marshall: Well, why was it passed?
Mr. Whiteford S. Blakeney: This statute was passed to express the policy of the state as being the same as the decision of this Court in Brown.
Justice Thurgood Marshall: Well, it was after the '65 decision of this Court, wasn't it, the District Court?
Mr. Whiteford S. Blakeney: The District Court in ‘65 said that Charlotte-Mecklenburg was a non-racial system.
Justice Thurgood Marshall: If I was --
Mr. Whiteford S. Blakeney: And being operated non-racially.
Justice Thurgood Marshall: Well --
Mr. Whiteford S. Blakeney: And the Circuit Court upheld it.
Justice Thurgood Marshall: Well, yes it's obvious it was after '65 because of the '69.
Mr. Whiteford S. Blakeney: The statute was in 69, yes sir.
Justice Thurgood Marshall: And don't we have to consider it in that context.
Mr. Whiteford S. Blakeney: All I --
Justice Thurgood Marshall: Not just as an ordinary statute that was passed 80 years ago?
Mr. Whiteford S. Blakeney: Well, whatever context it be -- context would be considered in, Your Honor.
The point is this, this statute said, “The State of North Carolina adopts as its policy, this principle specifically from here on namely, children shall not be barred from a school on account of race and they shall not be assigned to a school on account of race.
That's all it said and that's all we ask enforcement of and that's all that our injunction said and the only reason we entitled the enforcement of our injunction is because Judge McMillan has ruled the opposite.
He has said, contrary to Brown, he has said, “Children, you must go because of your race now into the schools where I send you.”
That is what we complain of Your Honor.
Chief Justice Warren E. Burger: Thank you, Mr. Blakeney, Mr. Waggoner, Mr. Vanore.
Thank you Mr. Nabrit.
The case is submitted.