RICHMOND SCHOOL BOARD v. BOARD OF EDUC.
Argument of William T. Coleman, Jr.
Chief Justice Warren E. Burger: -- this morning on number 72-549 and 72-550, School Board of Richmond against the State Board of Education and Bradley against the State Board of Education.
Mr. Coleman, you may proceed whenever you are ready.
Mr. William T. Coleman, Jr.: Good Morning Mr. Chief Justice and may it please the Court.
The basic issue here is whether 19 years after Brown, State created school division lines which were bamboo curtains in the cause of school segregation in Virginia, lines which were freely and repeatedly crossed and ignored to maintain segregated schools in Virginia, now become iron curtains constituting an absolute bar to the effective desegregation plan before the court below.
For in this case, the District Court found as a fact that Virginia through its spate school officials, its legislature and its school division, including that of Richmond, repeatedly and consistently violated the Black petitioner's constitutional right to attend public schools free from state sponsored racial segregation.
In other words, the question here is whether a District Court is without power to prove a desegregation relief plan, solely because it involves inner division of assignment of pupils among adjacent divisions.
And if this Court determines that that power does exists, was there a gross abuse of discretion to exercise it here when the record includes undisturbed findings that; one, Virginia including the three sub -- the three school divisions here involved, repeatedly ignored the division lines to revert to preserve segregated schools.
Second, that it was no longer possible to achieve effective and complete desegregation within the confines of Virginia -- of Richmond school division itself.
Third, that repeated unconstitutional acts and intentional delays directed by Virginia created this situation.
Fourth, the school division line served no useful administrative or educational purpose and the result of such failure would to be to have black and white schools within walking distance of each other.
In addition, the two adjoining school divisions here involved, Henrico and Chesterfield, were themselves operating non-unitary racial system.
Petitioners in number 72-550 are black school children.
The defendants are the State Board of Education, the State Superintendent of Public Instruction, the three division, school superintendents who under Virginia law incidentally are centrally nominated.
The legislative bodies of Richmond, Henrico and Chesterfield and the school boards of these three divisions, each of which under Virginia law is an administrative subdivision of the state.
Justice Potter Stewart: Id that the School Superintendents, Mr. Coleman, are centrally nominated?
Mr. William T. Coleman, Jr.: Yes.
Justice Potter Stewart: What does that mean?
Mr. William T. Coleman, Jr.: Under Virginia law, it’s provided that the State Board of Education makes up a list of people eligible to be appointed and the school divisions can appoint only from that list.
And in fact, the Virginia law provides that if within 60 days the person is not appointed if there is a vacancy, the State Board itself makes the appointment and incidentally in this case, the school’s superintendent of the division of Chesterfield was appointed in that manner.
He was appointed by the State because Chesterfield within 60 days had not made the appointment.
Now from 1871 until the time of the Brown decision, Virginia’s constitution, its statues and all of it’s policy making authorities compel each school division to operate racially segregated schools.
At the time of the Brown decision, the school population of the Richmond division was 43% black and 57% white.
In Chesterfield, it was 21% black and 79% white.
In Henrico, it was 11% black and 89% white.
For the three divisions together, however, the composite figure was 33.7% black and 66.3% white.
And as I stated before in each division regardless of what the local division would want to do, by state law, black and white had to attend wholly separate schools.
Now unfortunately, Brown brought no change whatsoever.
On pages 18 through 22 of our brief, we recount the very successful state actions by state officials with School Division Cooperation to keep Virginia schools segregated into position, then a statute under which the Governor would takeover any school which voluntarily or by quota admitted blacks, then a Pupil Placement Law and then the State Tuitions Laws.
Now the Pupil Placement Law as this Court knows was particularly effective.
As stated in Bradley, it took out of the hands of the school boards and school superintendent any decision relating to the integration of the school.
And so in 1961, these black petitioners brought a class action on behalf of all black children in Virginia against State officials and quoting the Richmond School Division to be admitted to white schools despite the provision of the Pupil Placement Law.
The District Court granted limited relief, but not class relief.
The Court of Appeals reversed directing class reliefs.
The Commonwealth and the Richmond School Division, then sought to invert the impact of this decision by introducing a freedom of choice plan.
This plan was accepted by the Court of Appeals, but this Court reversed because the plan failed to deal with desegregation of teachers.
It was now 1966, 12 years after Brown, a consent decree was added into involving of freedom of choice plan, placing the affirmative duty on school authorities to modify free choice, if it did not result in effective desegregation.
Unfortunately, segregation continued, but the school officials took no action whatsoever.
For this reason, the Black petitioners on March 10, 1970 filed for further relief pursuant to this Court's ruling in Green.
On that date, even though the composite racial make up of the three divisions had not altered, which you recall I said 33.7% black and 66.3% white, the makeup in Virginia had become 64.2% black and 35.8% white, while Chesterfield had become 9.5% black, 90% white and Henrico, 8.1% black and 91.9% white.
Now at that point, this is 1970 now, just two-and-a-half years ago, the Richmond School Board admitted that it had been and it was in violation of petitioner's constitutional rights.
The schools were still rigidly segregated and I would ask the Court to please turn to pages 167 and 168 of the appendix to the petition for certiorari.
Justice William J. Brennan: What page did you say?
Mr. William T. Coleman, Jr.: 167 A, Mr. Justice Brennan and 168 A and just look at the situation and this is 1970.
Of the seven high schools, three were 100% black, one was 99.26% white.
In other words, six of the seven schools by any test you could make were clearly racially identifiable.
The middle schools, six of the seven were clearly racially identifiable.
The elementary schools, almost all of them were clearly racially identifiable.
The faculty and staff were clearly racially identifiable.
Now I am confident, now this is 16 years after Brown, I am confident that no one can stand up before the Bar of this Court and question the correctness of the District Court's resulting finding at pages 168 A, 169 A pardon me, where the court says that the schools were racially segregated, racially identifiable and violative of petitioner's constitutional rights.
Now frankly we find it impossible to characterize such contemporary facts as “history or original sin” as respondents do at Pages 47 and 73 of that brief.
At that point, the District Court's job was attempt to see that the school board would produce a plan which would effectively desegregate the public school.
The Richmond School Board continued to file inadequate interim plan which were approved only because of time pressure and the schools would have to open at the time.
In each case, the court specifically found that these interim plans did not conform to constitutional requirements.
Then on November 4, 1970, the Richmond School Board stating under oath that it was impossible to desegregate the schools in the context of Richmond, moved to join the adjacent divisions of Henrico and Chesterfield Counties.
The State Board of Education and the State Superintendent of Public Instructions and at that time, the Black petitioners filed a second amended complaint which again asked for relief on behalf of all children throughout Virginia.
They asked that the adjoining school divisions be included in a desegregation plan either by consolidation or by contractual arrangements.
Now after trial, and I wish the Court to follow me through these findings, that I really saying that in this case, unless you can upset these findings that this case has to be decided in favor of the Black petitioners.
That at trial, at the trial, full trial now, the District Court found --
Justice Potter Stewart: The amended complaint was filed, when?
Mr. William T. Coleman, Jr.: This was filed in 1970, Your Honor
Justice Potter Stewart: 1970 still.
Mr. William T. Coleman, Jr.: Yes, in 1970.
Justice Potter Stewart: Was that done in response to an implicit invitation by the District Court?
Mr. William T. Coleman, Jr.: No sir, that was not done, what happened was, Your Honor, that they were trying to come up with an effective plan.
In the course of that Mr. Little who is of the Richmond School Division said that the only way you could have a plan would be that you involve the other counties.
At that point the judge in a letter which appears I think, on about Page 150A of the Appendix to the petition indicated, there are a lot of problems here and we want the lawyers to co-operate.
Then the School Board filed the motion and it's attached to the -- there is a order in which there is a motion to recuse the judge and it's attached to that order, Your Honor.
It's 58 A, is the --
Justice William J. Brennan: 58A of what, this one --
Mr. William T. Coleman, Jr.: This once again of the petition, Your Honor, and it's at page 81.
If you read the letter sir, and once you read that letter, I am confident that you will not conclude that that was an invitation on part of anybody to file a claim.
In other words, the findings were that one, the pupil assignment patterns and then three --
Justice William J. Brennan: So are these formal findings Mr. Coleman?
Mr. William T. Coleman, Jr.: Yes sir.
Justice William J. Brennan: What pages?
Mr. William T. Coleman, Jr.: Well, as I go through, I will give them to you.
The pupil assignment patterns in the three school divisions showed great disparity in 1971 racial composition, making both individual school facilities and the entire three systems racially identifiable.
He said that the Richmond system is identifiable as black and that that of each county is perceived as a white system.
That's on page 201A, 208A.
That a great number of one race schools had recently existed and I repeat some still exist, that's at page 186A, 201A.
He also found that at the time Chesterfield and Henrico were enjoined and at the close of the record, each was operating a non-unitary school system in violation of the constitution and that's at page 524A of the record, 526A of the record with respect to Chesterfield and page 527A of the record and 529A of the record with respect to Henrico.
It further found that past and continuing action by state authorities interfering with desegregation that a constitutional plan for the city and for the counties as well cannot be achieved within current school division boundaries, that findings are at 237A, 207A and 201A.
He concluded that the defendants should not be permitted to profit by self created problems and that's at page 237A.
Finally he found that at the time the record closed each division still operated a school system which was in some respect non-unitary.
The court never found, as respondents would have you believe by pages 8 of their brief that anyone of three divisions had ever achieved a unitary status and I ask you to look at the chart in the appendix to the court opinion which shows that each division operates racially identifiable school and the chart is in Volume II, beginning on page 524 where he takes the schools of Chesterfield county, then Henrico county and Richmond and I assure when you will examine those, you will find that in each instance in this record everyone of these schools were racially identifiable.
The other thing I want to make --
Justice William O. Douglas: I didn't find anything on page 524.
Mr. William T. Coleman, Jr.: It's attached Your Honor to petition -- the appendix to the petition for certiorari.
It's a chart, it is 524, Your Honor.
White and -- with respect to Chesterfield county any test you will apply, you would have to say three out of those six schools are identifiable as white.
Now another thing that I would like to clear up in this case, the Judge never found and we don't urge that the absence of a quota gives rise to constitutional violation and I would just ask you to read page 519A of the record, once again in the same opinion, I mean the same, the opinion which is in the Appendix.
Now once he found these massive constitutional violations, he had a constitutional duty to end them and in Charlotte the Swan case, in Davis this Court has said that once there is a violation the court should take all steps necessary to end that violation and to end the effects of it.
Now the only reason and the only thing that makes this case any different from Davis and Swann is something that the my friends tried to raise namely this division line.
And I stand here and say once again, that in order to maintain segregated schools, this line was never observed.
Students freely were taken back and forth across this line.
You will find from this record now for example that the Kennedy School which is under the Richmond Division is actually situated in Henrico county and black children, Kennedy is now about 80% black and if you look at pages, 8 of our brief, we set out a table for you on page eight and here you have a situation where Kennedy High School built in 1967, opened as a Black school now over 80% Black, in fact is 93% Black as of now, that within four miles of that school is a Henrico High School which is 4% Black.
Now that's the problem that the District Judge had here.
He looked at this map and he saw that you had a array in the Richmond School Division of Black schools measured by any test that you want to measure, tight on top of them, outside in the counties, in these counties, there were White schools.
Now certainly in Swann what you did was to approve a plan which said that you should desegregate the schools and that you send students by contiguous zones, by busing to these various places.
Now here the only reason is this line.
Now I assure you, the record will show and will clearly show, this line is an arbitrary line, was never used to -- when there were segregated schools.
The judge found out at page 193A of the record in his opinion.
Also in the record at, this record now sir, at page 912, this testimony that under the State Tuition Law, when a black child would get the right to go to school in Richmond and then if the White parent didn't like it, he under the State Tuition Law as you know Mr. Justice White, would opt out and go some place else.
That the state paid the tuition and the white child went out of the county, that's all in 912A of the record.
Justice Byron R. White: Mr. Coleman as I understand that the busing issue was a separate matter, it is not the --
Mr. William T. Coleman, Jr.: Well, footnote two of the -- footnote two of the Court of Appeals, says this is not busing case.
The record is clear here that the amount of busing involved here is less than it was.
Justice Byron R. White: Well, the question of busing is not in this case?
Mr. William T. Coleman, Jr.: No not in this case, that is correct.
Justice Byron R. White: And whether there is too much or too little or whether there is any at all or not is irrelevant in this case?
Mr. William T. Coleman, Jr.: It's irrelevant.
The sole issue here Your Honor is that when a Judge finds as a fact that these lines have been repeatedly ignored in the course of segregation, can you -- do they then become an iron curtain when you attempt to integrate the school, particularly when there is a finding of fact by the judge, not off set by the Court of Appeals, which says that it is impossible to do it within the context of Richmond only.
Justice William H. Rehnquist: Mr. Coleman you referred to 193A Judge Merhige's opinion about prior practice of crossing these lines.
Does he mean there that crossing had taken place in other counties in Virginia outside the Richmond metropolitan area?
Does he mean that pupils were exchanged previously between Henrico and Chesterfield and Richmond?
Mr. William T. Coleman, Jr.: It means both.
Justice William H. Rehnquist: So there were actual pupils --
Mr. William T. Coleman, Jr.: Yeah there were actual pupils within these three counties and in addition there were, there were cases in other counties where there were regional Black schools and incidentally Mr. Justice Brennan you ought to remember from the Green case that they actually bused Indians across the line too, at one particular time.
Justice William H. Rehnquist: What was the nature of the exchange between Henrico and Richmond or Chesterfield and Richmond?
Mr. William T. Coleman, Jr.: Well the nature was that under the Pupil Placement Law, when a Black person would apply to go to school in Richmond, the White family then had the right to send his child to some other school.
He would then make an application to those schools in Henrico or those schools in Chesterfield and they would have take him, in fact the testimony [Attempt to Laughter] says that if for some reason Richmond would stand up and say no you cannot do that, the State would get back at them by just deducting from the next state grant check, the amount of the tuition.
And so the testimony says we could not do anything about, this was State directed, we had to do it and the fact is that these children would cross these lines, all during that time and that is what the Judge found.
In addition now in these counties there are special schools like the Science schools in one county, the children go across that line and nobody gets upset and it is only when it comes to desegregating the school that this line all of a sudden becomes the most sacrosanct thing in the world and we just do not think that under your cases that that is so.
And we also cited a lot of cases in the District Court on page 78 of our brief and I think it's footnote 121 where the Court of Appeals and the District Courts have repeatedly ordered that there would be an interchange of students if that was the only way.
Mr. Justice White, what I am trying to say [Attempt to Laughter] when you have a line which is this ridiculous, never used, then under those circumstances, we can't say that, that becomes an absolute bar, and this case is just that simple.
Now as I said before that I think that the real issue here is one of whether the discretion was properly exercised and in my opening, I indicated to you the reason why I thought it was properly exercised.
Chief Justice Warren E. Burger: Thank you Mr. Coleman.
Argument of George B. Little
Mr. George B. Little: Mr. Chief Justice and may it please the Court.
I believe the marshal is bringing an exhibit in which you would prefer that I --
Chief Justice Warren E. Burger: Oh you may proceed unless you need it at the out set.
Mr. George B. Little: Alright.
As Mr. Coleman stated, the Richmond School Board an arm of the State of Virgina conceded that its schools were not being operated in accordance with constitutional requirements.
In addition this biracial board, consisting of four Whites and three Blacks, is unanimous in it's belief that there can be no elimination of Black and White schools, absent assignment of pupils across existing lines.
I would like to capsule four aspects of this case underlying this position.
A brief word on the constitutional violation, discussion of the precise issue, a more detailed review of the evidence which shows the lack of sanctity in these school division lines and finally key aspects of the particular relief decree.
Coming to the constitutional violation, the mere fact that a dual school system was still flourishing in Richmond, 16 years after Brown, provides the nexus for the relief decree.
The only question confronting the District Court from the first day of the reopening of this protracted litigation was how to remedy this persistent and deliberately deferred perpetuation of a dual school system.
This is a remedy case.
We do not have to search for a constitutional violation.
This search for an effective remedy provides the lens through which all of the evidence and all of the actions of the District Court must be viewed.
The precise issue is rather narrow.
If the District Court abused its discretion in approving a Richmond School Board desegregation plan, which involved assignments of pupils across these lines.
This concept of inter-divisional assignments constituted the essential ingredient in both of the alternative forms of relief sought, consolidation was not the only relief sought.
The first was a contractual interchange between the existing school divisions fully authorized by State law.
The second was a consolidation of these school divisions in accordance with the provisions of State law.
Our position is that the action of the lower court was dictated on this record by a sound application of the all too familiar remedial guidelines previously established by this Court.
Under these decisions, there is only one test, that's effectiveness, effectiveness is the key.
No one can stand before the Bar of this Court and argue that the Richmond School Board plan is not obviously more effective than the present plans in operation in Richmond or Henrico or Chesterfield.
The respondents and the government has studiously avoided any discussion of effectiveness which we as understand it is the heart of Brown, Green, Swann, Davis and other decisions of this Court.
The District Court, let me go back.
What we analyzed is the position of the respondents' to be and the government apparently is it not withstanding these guidelines which are so clear and explicit, regardless of consequences, regardless of the feasibility of the means to overcome these lines, regardless of the past treatment of these lines by the State of Virgina, these lines impose a geographical limitation on the powers of a Chancellor seeking to remedy an admitted constitutional violation.
The District Court very carefully considered the importance which state authorities, local authorities had attached to these lines.
He concluded that there was no overriding state interest in either restricting the assignment of pupils to the political subdivision in which they reside or in requiring each political subdivision to operate it's own school system.
He also concluded from a review of all of the facts, that these lines did constitute barriers to any effective relief for these plaintiffs.
Now what evidence supports these findings?
It falls into three areas.
First we don't have to look for, we simply only have to go to the Code of Virgina, the state laws.
We next can go to the expressed policies of the State Board of Education, the father, we are a child in Virginia.
The power over schools is in the State, this is a State violation.
Richmond did not of its own initiative set up a dual school system.
We can go to the established policies of the board and finally we can go to the history of past practices.
Let's come to the laws.
Our Code expressly for many years has set out a framework for the operation of a school division consisting of two or more separate and distinct political sub-divisions.
Our State law for years and we have all used it, has expressly provided for the operation of joint schools for any educational need.
Our State law, and we have all engaged in it, not all, but many divisions have specifically provides for the contractual interchange of pupils between separate political sub-divisions.
These, the very existence of these laws totally belongs any overriding State interest in restricting the assignment of pupils to the political sub-division in which they live, but they even do something else under the remedial guidelines of this Court, a fair interpretation of it.
They suggested alternatives which a District Court in the performance of his duty to end segregation and its effects had to consider.
Let's come to State Board policies.
The State Board of Education has encouraged consolidations of separate political sub-divisions into one school division for almost 30 years.
In 1944, it approved and excepted in principle a plan which had as its objective the reduction of the number of school divisions then in existence in Virginia.
At that time, we had a 110 and for the most part each represented a separate political sub-division.
This plan which was endorsed by our own State Board of Education, had as its objective the reduction of the number of school divisions from a 110 to 40 or 50, which would have necessarily involved combining the separate political sub-divisions into a single school division.
As recently as 1969, again in a statement expressing the desire of the State Board statement that consolidation be considered for educational needs, expressly stated that “Political boundary lines do not necessarily conform to educational needs.”
This is not what the plaintiffs in this case have said.
This is what our own State Board of Education has recognized.
Chief Justice Warren E. Burger: Where do we put our finger on that in the record?
Mr. George B. Little: Pardon me sir.
Chief Justice Warren E. Burger: Where do we put our finger on that in the appendix here?
Mr. George B. Little: This is on Richmond School Board exhibit 82.
It's in the exhibit appendix on page 63 and 64.
In the second paragraph, the last two sentences, “The State Board therefore has favored in principle the consolidations of school divisions with the view to creating administrative units appropriate to modern educational needs.”
Chief Justice Warren E. Burger: I am not sure I have got the right one.
Mr. George B. Little: I beg your pardon, this is the exhibit appendix.
This is the thin brown appendix.
It's hard to identify these sir.
64, in particular, the language I am quoting.
In the middle of the page, second paragraph, “Has favored in principle consolidation of school divisions with a view to creating administrative units appropriate to modern educational needs.
The Board regrets the current trends to the contrary, pursuant to which some counties and newly formed cities have sought separate divisional status based on political boundary lines which do not necessarily conform to educational needs.”
Not only the State Board but this record contains testimony from some of the more outstanding educational experts of the country which agree with the State Board, that political boundary lines are of no significance in the area of education.
Now so much for the State Board policies, let me pass on -- excuse me sir?
Justice Potter Stewart: How many school divisions are there now in Virginia?
Mr. George B. Little: Approximately, 130.
Justice Potter Stewart: And you say there how many in --
Mr. George B. Little: A 110 --
Justice Potter Stewart: 19 --
Mr. George B. Little: Right sir.
More towns have attained status such as this Court saw and inquired, that is the reason for the increase.
The objectives of that plan were never carried out, but I am urging it to show what the policy of the State Board has been.
Let's come to the past practices of these with respect to these lines.
The District Court quite popularly found that the State officials and local officials had historically used principles of consolidation and inter-divisional assignment of pupils in the establishment and maintenance of regional schools for Blacks, joint schools for Blacks and joint schools for other educational needs.
These regional schools for Blacks consisted of as many as four separate political subdivisions, encompassing an area as large as 1700 square miles, requiring the children to spend the night at these schools because of the extreme travel distances involved.
These schools operated in Virgina and the last one didn't close as this Court might have anticipated in 1955, it closed in 1968.
There is a not a scintilla of evidence in this record that any finance problems arose as a result of one regional school being supported by four, as many as four or five separate political sub-divisions.
Now what about the use of inter-divisional assignments?
There is a statute on our books, it's still on the books, Section 22, 115 found on our brief but also in the petition appendix at 194 which in 1960, the State declared it a matter of public policy of the State to encourage students to participate in programs which would require them to attend schools in political sub-divisions other than the one in which they reside.
The more significant in order to perpetuate segregation, not pre-Brown, but after Brown the 50s, the late 60s, thousands of Blacks were involuntarily shoved across these so-called sacred lines for the sole purpose of perpetuating segregation in defiance of this Court and in defiance of the affirmative duty on school authorities to end discrimination.
Now is this all history, what's happening today?
Let's come to Richmond, if we can.
Mr. Coleman mentioned Kennedy High School.
This Black line irregularly shaped, is the city limit of Richmond.
The only schools shown on the map are those within one to three miles of that line, this one school might be a little more than three miles.
Kennedy High School, the Blacks in Richmond historically and today live in the Eastern portion of the city to South central portion, this is the black part of the city.
The lily white area is in the Western part and part of the Southern. Kennedy High School right here, is a Richmond school opened in 1967.
It is located entirely in Henrico, County.
It opened as an all Black school and everyday since it is opened, 1500 children cross this so-called iron curtain, attend Kennedy, leave that school and cross that line again to go home.
Justice William H. Rehnquist: Do any students from Henrico go to Kennedy who do not live in Henrico?
Mr. George B. Little: Not that we know of sir.
We did discover in one of the schools that this Henrico child by giving a false address had enrolled, I am not sure of this, but it was in Armstrong High School.
On Fairfield court, is another Richmond School, it's an elementary school, historically a black school.
That lies partly in the county and partly in the city.
It enrolls about 560 students.
Each day of their lives they cross the line to go to school, they probably cross the line several times during the day, during the school because the line goes right through the school building.
So far as crossing lines in the past, as recently as 1969, Henrico was operating this school right up here in the extreme northern parts of the county.
They do claim to be lovers of neighborhood schools, have a neighborhood school for this school consisting of the entire Henrico County.
Students from the eastern most portion of Henrico to get to that school, had to go into the city across this great line through the city outside the line again, up here.
That's how sacred the lines were.
At the present time, Henrico, Richmond, Chesterfield, operate joint schools for educational needs.
The location of the Maths Science Center referred to by Mr. Coleman is right here.
The school for -- I beg your pardon this school right here.
In 1970-1971 approximately, it varies within the 1000 or 1500, approximately 10,000 students from Henrico attended some courses there, 10,000 from Chesterfield, 10,000 from Richmond.
So that's what significance the line has for us in Richmond today.
I submit the Richmond School Board in light of its ignoring these lines in the past for educational purposes could not stand up here if it is so desired and interpose this line as a shield to effective relief.
I think that on the basis of the State laws, the State Board policies, of the past treatment of these lines, what else could a chancellor conclude that he was entitled to use certainly at the very least, the same means that were used to violate the constitution.
I fail to see where that is a drastic decision on the part of a person seeking to remedy a constitutional violation.
One other thing on the map I would point out, the Henrico offices are located right in the heart of the city.
The building permit for Kennedy School was issued by Henrico County.
Justice Potter Stewart: Which part of the city was recently annexed, the part of whole school district?
Mr. George B. Little: Right, quite obvious.
Justice Potter Stewart: And that was taken from Chesterfield.
Mr. George B. Little: Chesterfield county, that is right sir.
This is the James river, this line right through here, Henrico envelopes the city, north of the river. Chesterfield envelopes the city south of the river, like a butterfly as one witness testified.
Justice Harry A. Blackmun: Mr. Little, when an annexation takes place is the school district boundary automatically change with it?
Mr. George B. Little: Automatically changed, yes sir.
We -- that boundary shifted some 14 times by virtue of annexations.
May I come to some of the key aspects of the relief decree.
I think it's highly significant, the judge's order of January the 10th on which this appeal was taken, simply requires these school authorities to exercise powers which they presently possess under state law, namely to consolidate these schools.
Secondly I would like to observe is we are not saying that the particular plan, even though the District Court found it to be reasonable, feasible, workable, educationally sound, we do not stand here saying it's the only plan to effectively desegregate these schools.
Justice William J. Brennan: Mr. Little what's the formality by which consolidation is affected?
Mr. George B. Little: All it requires is the consent of the State Board of Education and I would refer the Court to the detailed framework set out, first it's Section 2230 of the Code, found in the petitioner's appendix on page 617.
Then there is this long series of statutes saying how do you bring it about?
How you create the board?
How the representation is determined?
How the finances both for capital outlay and operating funds are handled?
There is a detailed framework set out in State law.
All it requires is a request.
The State Board has to approve the request and the counties have to consent to it, but once the consent is there the machinery is already in our law to set it up.
But coming back to the plan, the only reason it was the only plan before the court, was that despite invitations from the court and from the Richmond School Board, none the respondents would participate in the preparation of a plan even assuming this relief were appropriate.
The lower court in its order of January the 10th expressly provided and gave them an abiding opportunity to come in and make amendments to the plan, modify the plan, even at this stage or they come up with a better plan so long as it eliminates segregation and effects, there will be no problem.
Now, one of the point on the plan.
There is no more racial balance created under this plan, in the plan approved by this Court in Swann and Mecklenburg.
Under the plan in Swann, the variance in black composition range from 8% to 38.
Under the Richmond School Board plan here it ranges from 17-41% black.
It is true that every schools ends up majority white, just like it did in Swann and Mecklenburg, simply because of the historically stable racial composition which has not varied one-tenth of 1% in a decade in Richmond, in the Richmond Metropolitan area, of two-thirds white, one third black.
This Court in McDaniel versus Barresi by approving that plan for the Clark Country, certainly approved to plan which does a lot more toward racial balance than either this plan contemplates or results in or was done in Swann.
Furthermore I call the Court's attention to the caveat of the District Court found on the white petitioner appendix, Volume II, page 519 and 520, where the court itself said, “whereas the racial composition is educationally sound there is no constitutional requirement for it.
It's not to be deemed inflexible.
Greater variations might be unavoidable and giving them the opportunity to make amendments.”
In concluding then, may it please the Court, on this record, the acceptance of inter-divisional assignments is certainly not too broad a remedial device.
It has inherent limitations, namely time and distance.
The only time where inter-divisional assignments would be an appropriate remedial tool would be whereas here the transportation times and distances are remarkably comparable to what is presently being carried out in each of the separate divisions.
In conclusion, I think the bald truth is shown by this map.
We have 67-68, 60% blacks school right now in Richmond.
This is based on 1971, 1972 figures.
Look what's right next door, seven-tenths of 1% black, three-tenths of 1% black, 0% black and the greatest percentage of black in any of the schools shown here is 5%.
That is our problem and if this Court affirms the Fourth Circuit, you have the stark reality of black and white schools in the face of a feasible alternative for eliminating and finally if it affirms the Fourth Circuit, I think it is all too clear from a particular standpoint, that the promises of Brown would be rendered illusory for every black child in the city of Richmond.
Chief Justice Warren E. Burger: Thank you Mr. Little.
Argument of Philip B. Kurland
Mr. Philip B. Kurland: Mr. Chief Justice, may it please the Court.
We respectfully submit that the question on this case is not whether the Richmond School system is desegregated, it is.
There are no children included or excluded from any Richmond School on the basis of race.
The question in this case is not whether the Richmond School system is unitary, it is.
There is no school in the Richmond School that is racially identifiable as white or black, they are just schools in Richmond.
The question in this case is whether the constitution requires that a desegregated unitary city school system which has a substantial black majority, be consolidated with two other independent desegregated unitary county school systems in order to assure a white student majority in the city schools.
The fundamental facts here are just three.
The Richmond School System has a substantial black majority, the county school systems have a substantial white majority and the District Court plan and that is what is in question here, the plan entered by the District Court in this case is under review here.
The District Court plan in question would create a single consolidated system so that students would attend schools with substantial white majorities.
The issue is here then of whether a ratio of seven black students to three white students in the unitary school system is constitutionally forbidden.
Whether a ratio of seven white students to three black students is constitutionally compelled.
With Court's permission, I shall address myself first to some of the facts, second to the applicable precedence, third to the question of the existence of a constitutional violation and finally to the problem of a remedy.
This action was not one initiated against the counties of Henrico or Chesterfield, desegregate their school systems because those school systems are and were before they were brought into this case desegregated and unitary.
Justice Potter Stewart: There seems to be some question about that?
Is it been I --
Mr. Philip B. Kurland: By definition Your Honor --
Justice Potter Stewart: You said that now three four times that all three of these systems were desegregated and unitary and were long before this order was entered?
Mr. Philip B. Kurland: Before this order was entered, that is right Your Honor.
Justice Potter Stewart: And I gather that there is some disagreement just as a matter of fact at least to -- that the factual – between you and your brothers on the other side, is there not?
Mr. Philip B. Kurland: I do not think there is disagreement as to the fact if I may say so Mr. Justice.
Justice Potter Stewart: Well, I would like to be know about it --
Mr. Philip B. Kurland: There is disagreement as to conclusion.
There is nothing to suggest that the distribution of students in any of these three systems is raised by race.
There is nothing to suggest that any of the schools in each of these three school systems is identifiable by race and that is what this Court has said is a unitary, desegregated school system.
Justice Potter Stewart: Judge Merhige in his very long opinion and I -- that just wasn't explicitly clear, but I drew from what he said that in his view neither one of these systems was unitary and desegregated, that each one of them showed vestiges of an officially segregated system and I just agree with that, am I wrong about that?
Mr. Philip B. Kurland: No sir, but only factual basis on which Judge Merhige could reach this conclusion was that the percentage, the ratio of whites in the county schools was different from the ratio of whites and blacks in the city schools, the problem that Mr. Little was talking about.
There was in one of the counties, a laboratory school attached to a --
Justice Potter Stewart: The State University --
Mr. Philip B. Kurland: That's right which is HEW asked be desegregated and was separated from the system.
There was a school in one of the counties which over a period of time had turned from white to black as an neighborhood school and that was changed.
Those were the two, on which any notion, besides from this racial proposition which any notion that the county schools were not desegregated could be based.
Chief Justice Warren E. Burger: When you use the term racially identifiable schools, precisely what do you mean, taking Richmond?
Mr. Philip B. Kurland: What I mean is that within the city, there is no – let me change, in accordance with this Court's mandate the distribution of blacks and whites within these schools in Richmond is such that none can be said to be assigned or identifiable as black as others as well.
Everybody one of the schools comes within 50% of the total Richmond ratio.
Justice Byron R. White: What would you say Mr. Kurland if the state legislature suddenly consolidated these three counties for purposes of operating schools, say these three school districts were consolidated suddenly?
Mr. Philip B. Kurland: What would I say?
Justice Byron R. White: With respect to a suit which charged that there was not unitary school system?
Mr. Philip B. Kurland: If this were one system, distribution of students would not be satisfying to the standards of the school.
Our proposition is that it is not one system, but the power of the state legislature to affect such a chance certainly exists, as with the power of this Court is not to do so, does not exist.
Justice Thurgood Marshall: Mr. Kurland, in the Richmond's area I did not see any gray spot?
Mr. Philip B. Kurland: Any sir?
Justice Thurgood Marshall: Gray, according to the chart there and you have a unitary system and not one single gray one?
Mr. Philip B. Kurland: You mean 23-39%?
The distribution in Richmond, Your Honor --
Justice Thurgood Marshall: Was that -- Is that map correct?
Mr. Philip B. Kurland: I cannot tell you whether it is correct.
But I can tell you by looking at the exhibit on page 155E of our exhibit Your Honor, you will see the distribution of schools in Richmond.
There are 59 schools, there none with all black populations.
They are none with 90% black populations, they are nine with 80% black populations and the other 50 are under 80% black populations.
There are five majority white schools.
Bellmead (ph) has 63%, Webster has 56%, others 54-60 and 50.
Justice Thurgood Marshall: That is a unitary system?
Mr. Philip B. Kurland: To the extent -- if it is not Your Honor, if the distribution of whites and blacks within Richmond is not proper then the order of the District Court should be directed to Richmond to improve that.
Justice Potter Stewart: I suppose if you did have a gray spot within – the gray, so called gray school that is 0-19.9% within Richmond that would be evidence of a segregated system within Richmond.
Mr. Philip B. Kurland: You are absolutely right.
You would have a attempt to single out a school as a white school.
Justice Thurgood Marshall: Well, I do not care whether you look at it one way or the other, but as I look at it, frankly all of the gray ones are outside and all the black ones are inside, by sheer accident?
Mr. Philip B. Kurland: Well it is not accident, Your Honor.
There is a demographic distribution of population between the core city, not only here but in every city in the United States I suppose.
Justice Thurgood Marshall: How many of the findings of Judge Merhige were upset with the Court of Appeals?
Mr. Philip B. Kurland: The court found that there was no nexus between the alleged wrong doing in the past and the demographic distribution between the counties and the city here --
Justice Thurgood Marshall: Well, I am correct – oh!
Excuse me sir.
Mr. Philip B. Kurland: -- which is of the essence of the finding of inadequacy of the Trial Court opinion.
Justice Thurgood Marshall: They disagree with opinion, but did they do anything with the findings?
Mr. Philip B. Kurland: Your Honor, the findings did not support the basis for the remedy.
The findings Your Honor are all in terms of what we must conceive are egregious areas in violation of constitutional provisions in the past.
This case came -- this issue came in 1970, after if I may say so.
There has been a great change.
This school system or free school systems were already under audit and were already desegregated and unitary and what the Court of Appeals found Your Honor was that there was an absence of a nexus, what had been done in the past, if we conceive, abominate is not because of the distribution, population distribution which we have here.
As I say this case originated as an action to desegregate the Richmond School system, the respondents were not made parties to the action until after the Richmond School System came under a decree to desegregate in accordance with this Court's mandate in Green and the School Board of New Kent County.
It was only after the District Court decreed and effected a unitary plan for Richmond, that Richmond proposed, the plaintiffs embraced and the Trial Court adopted, consolidation plan called on a respondent counties to provide students of the Richmond school system to assure a substantial white majority in every Richmond school.
The consolidation plan approved by the Trial Court which is the plan under review here would assure that no school in the consolidated system would have a student body of less than 60% or more than 80% white.
This plan has no function or effect other than to assure this specific racial balance which petitioners experts have labeled a “Viable racial mix.”
Each of the three school systems here is already a large well functioning school system.
Each had approximately the same wealth and tax base for pupil for educational financing except that Richmond afforded a slightly larger wealth and tax base than either of the two counties.
Each was an integral part of its respective county or city government and has been so since the origins of public education in Virginia for over a century.
The geographic division of a counties and the city which have always been the geographic divisions of the school systems, have existed since before the founding of the republic, except for annexations in counties by the city.
In order to attain a viable racial mix, the Trial Court ordered segregated busing of about 70% of the combined systems with bus loads of Black school children being exported to Henrico and Chesterfield schools and bus loads of white children being imported to Richmond school.
Justice William O. Douglas: But I thought that busing issue is not in this case?
Mr. Philip B. Kurland: The busing issue sir is -- we know that the contention of busing is not an appropriate means of affecting a unitary system.
We do suggest that they are difficulties with this as a remedy because of the nature that the busing takes here.
It is a segregated nature of the busings in determining whether --
Justice Byron R. White: But you -- am I to understand that you are arguing at a separate ground for sustaining the Court of Appeals' decision is that there is -- it relates to busing?
Mr. Philip B. Kurland: What we have said, Your Honor, is that busing is a perfectly appropriate tool, subject to the limitations expressed by this Court in Swann to effectuate the desegregation of a school system, but we say though that when you measure the remedy that has been offered, the form that this busing takes is a fact that the Court must take into consideration in deciding whether or not the remedies are appropriate --
Justice Byron R. White: And you are not urging -- and you are not urging there is a separate reason for affirming the Court of Appeals that the District Court, not that it was implementing some racial balance idea.
I mean, you are not saying that the District Court was wrong solely for that reason?
Mr. Philip B. Kurland: We are saying that the court was wrong because that was the function and affect of the plan, yes Your Honor.
Justice Byron R. White: Yes, but the the issue that's here is what is the --
Mr. Philip B. Kurland: It's the plan.
Justice Byron R. White: Yeah, the issue here is the plan but the issue as to whether -- is whether or not the Court of Appeal was right in saying that the District Court could not cross these school boundaries?
Mr. Philip B. Kurland: Actually the basic issue is the one I stated, whether it can cross the school boundaries, for the purpose of effectuating a viable racial mix.
If the Court looks at the record created by the City of Richmond and the plaintiffs at the trial level.
Justice Byron R. White: But I thought you said, I want to know if this – if all of these three districts were together, the distribution of Blacks and Whites would not be acceptable?
Mr. Philip B. Kurland: That's right.
You would not have a -- you would have a total system within the three units which would have whites -- identifiable white schools and identifiable blacks schools.
Justice Byron R. White: If the whole -- if the three school districts were together and were one system, would you will be here attacking this plan?
Mr. Philip B. Kurland: Yes, I would be here attacking this plan, Your Honor, for the reason that this was not an attempt to desegregate the unitary system, but to effectuate a specific thesis which is that in order to have a proper school system you need a ratio of between 60% and 80% white and no more than 40 unless it's 100%.
Justice Byron R. White: That is not the question that is presented in the Petition for Certiorari that you are -- you are urging it as a respondent, is that it?
Mr. Philip B. Kurland: That's right and it is our response for Petition for Certiorari.
It's quite true that the petitioners have run away from the factual record on which this case and the judgment was based.
They say the plan ordered the separation of the school systems from their county and city tax basis.
It ordered the evolution of the County in city school boards and their replacement for a court created school board with a consequent dilution of the control of local education by local parents.
It ordered the replacement of an already large fully equipped school system or three already large fully equipped school systems by a single school of system, so large as to be in the top 0.2% of American school systems.
And it did this and this is my point, it did this all solely for the effect of assuring white majorities in the classrooms of Richmond.
The Court of Appeals for the Fourth Circuit held that this restructuring of local government for this purpose was beyond the power of Federal courts and we respectfully submit that the judgment below should be affirmed by this Court.
The case for the respondents rests on three propositions established by this Court in four of its most recent rulings on the subject of school desegregation.
All of these decisions support the conclusion of the Court of Appeals.
Judgment of affirmance by this Court, may rest on anyone of them.
All of these precedents would have to be rejected, I submit if the judgment of Court of Appeals is to be reversed.
The first of the rules established by this Court on which respondents rely that the function of Judicial school desegregation decrees is to transform a dual system into a unitary school system.
This was a rule established in Green.
It should be noted that the New Kent County school system involved in Green like the Richmond school system is a black majority school system adjacent to a white majority school system and was such at the time this Court ordered the creation of a unitary system within New Kent County.
Command of Green was accomplished by the Trial Court in this case and it approved both of the plans proffered by the Plaintiffs and by Richmond to effect a unitary school system in Richmond.
Under the plans approved by the Trial Court, one of which has been in effect in Richmond for the past two school years, each of the schools in Richmond appropriately reflects the racial composition of the school population of the entire system.
School system of Richmond therefore I submit is unitary in accordance with the requirement of Green and that is what this Court has said in recent cases, that is what the constitution requires.
Until a decision by the Trial Court below, there had not been a single decision that went beyond the requirement of creating a unitary school system out of a dual school system, except where school system boundaries had been drawn with the effect of perpetuating a dual system or preventing its conversion.
The second rule on which respondents rely was established by this Court in Swann and Charlotte-Mecklenburg and it held that the establishment of a racial balance among schools, even within a single system, was not a constitutional duty.
Indeed, the Court said in Swann that the use of a racial balance, other than as a starting point for a plan to restructure a dual system was judicially improper.
And it said that once the unitary system had been established, as is the case here, the Federal Court had fulfilled its constitutional function and should go no further, even in the face of later demographic changes, not attributable to invidious governmental action.
In the instant case, the whole purpose and effect of the consolidation plan is to established a racial balance and need not look only at the allegations of the respondents.
The petitioners summary of their plan is set forth in our brief.
The petitioners testimony in support of the plan is set forth in our brief and if you look pages 18 to 30 of our brief, you will see that a viable racial mix was the objective of this plan.
I call it racial balance, but here the viable racial mix was defined for the District Court as the one in which there are not less than 20%, no more than 40% black students in every school in the system.
I submit that the consolidation plan accomplishes nothing else in the effectuation of this viable racial mix.
The third case on which we right of the the City Council of Employer.
In that case both the majority and the minority were agreed that racial balance was a proper objective of the school desegregation decree.
Majority ruled the school system boundaries could not be redrawn where the effect of such action would be to leave black pupils in inferior schools and inhibit the effectuation of the unitary system theretofore ordered by the Trial Court.
Parenthetically it should be noted that the single school system, that the court left in the Employer case at a racial balance approximately the same as that which exists in Richmond.
It's clear, I submit from Employer that it was the invidious effect of the manipulation of school system boundaries that permitted the Trial Court to enjoin the separation of the newly created city school system from the county system, of which it had been so long required.
In this case there is no possibility of charging a school system boundaries as ancient as these, coterminous as they are with the county and city governments of which they are part and on which they depend, were anyway created or manipulated with the effect of preventing the creation of a unitary system in Richmond.
But it is only when such gerrymandering is occurred that the court has sustained the power of the federal judiciary to interfere with the allocation of functions to municipal governments.
Point underlined by both the majority and dissent in Employer was a constitutional right to local control of educational systems, except only where that allocation of authority was a means to preclude the establishment of the unitary system.
The fourth of the cases, before I leave that point, there is an incident of local control which I think is not irrelevant, which is particularly pointed out by the brief of – the amicus brief that by CORE, that not only will the consolidation remove, destroy local control of the counties and the governments, in effect will dilute the black influence that has become existent in the Richmond area, where they now have three of the seven members of the school board.
The fourth of the cases that I submit is controlling here is Spencer and Kugler, Where this Court affirmed the proposition that school system boundaries that were patterned on the boundaries of local government units, of which the school systems here are an integral part, are not subject to revision by a federal court in order to establish a better racial mix among the separate and distinct school systems.
Here as Spencer there is a demographic pattern that shows a concentration of black population within certain school systems.
Here as in Spencer there is no showing that the demographic pattens are in any way a consequence of governmental actions to effectuate the separation of the races.
The fact is, insofar as the demography of the Richmond area is concerned, the racial pattern is similar to that of all city/suburban areas in the United States, north, south, east and west, except that the immigration of blacks to the city into Richmond, is smaller than most of such areas.
I submit that the decision of the Court of Appeals under review here is consistent with and indeed required by in each of the precedents established by this Court in these cases.
What petitioners seek here is a major departure from this Court's precedents.
If petitioners are to succeed here, it can only be because Black majority school systems are unconstitutional per se, where such a school system is adjacent to a white majority school system, although both school systems are in compliance with the constitutional commands of this Court.
The only alleged deficiency, the only alleged deficiency of the Richmond system is that it has a black majority.
The notion of the intrinsic inferiority of school systems with black majorities as asserted by petitioner's expert witnesses is for the reasons, so cogently set forth in Judge Sobeloff's opinion in the Brunson case basically inconsistent with the ruling of this Court in Brown v. Board of Education.
The other unwarranted innovation which petitioners would bring about is a duty of the federal courts to restructure local government in order to bring the different racial mixes that exists within cities and outside cities under a single governmental unit.
Insofar as petitioner's claim rests on the concentration of blacks within cities and the concentration of whites outside cities, a nationwide phenomenon as a reason for joining the school systems its arguendo is equally valid or invalid with regard to every governmental function performed by local government units.
The general problem in metropolitan government where the existing cities and suburbs can continue to exist as separate jurisdictions or must be combined in some metropolitan unit is a most complicated, political, social and economic problem which has many aspects other than schools, but which is not and cannot be the concern of the judiciary in our system of government.
I'll turn if I may to the question of a existence of a constitutional violation.
As this Court reiterated in Swann, before a federal court may intervene to substitute its authority for that of a local government, there must have been a constitutional violation committed by that local government and the federal court's action must be directed to a cure of that violation.
Respondents here are not guilty of any such constitutional violation, so the necessary predicate for federal court action is lacking.
What the petitioners have shown is only there is a concentration of blacks in the urban population of the Richmond area, the concentration of whites in the surrounding areas, but there is and could be no showing that the respondents are in any way responsible for bringing about that racial distribution.
Justice Potter Stewart: But surely the petitioners have, I mean, the respondents have -- the petitioners have shown more than that.
They've shown that as a matter of state, basic state law, there was officially imposed segregation in the public schools throughout Virginia, until 1954 and that thereafter there was a history of 17 years of resistance to the constitutional rule announced by this Court in Brown against Board of Education --
Mr. Philip B. Kurland: That's right.
Justice Potter Stewart: -- throughout the State of Virginia and including specifically and explicitly these three school districts, isn't that true?
Mr. Philip B. Kurland: That's right, Your Honor.
There are two things that were not shown.
It was not shown that any of this, resulted in a demographic distribution, which is the basis of their charge here.
Justice Thurgood Marshall: You mean that state imposed segregation doesn't bring about segregated housing?
Mr. Philip B. Kurland: There is nothing in this record --
Justice Thurgood Marshall: Isn't that --
Mr. Philip B. Kurland: Yes, what I am saying here.
There is nothing in this record to suggest that the housing patterns here have developed as a result of state action, nothing.
Justice Thurgood Marshall: Well you did have state segregated schools?
Mr. Philip B. Kurland: We did have state segregated schools.
Justice Thurgood Marshall: You did have restrictive covenants?
Mr. Philip B. Kurland: No sir, we have not -- we have restricted covenants which were abolished by this Court way back in 1940 --
Justice Thurgood Marshall: But they were there before?
Mr. Philip B. Kurland: That's right, there is nothing in this record.
Justice Thurgood Marshall: Are you going to imply, to say the State of Virginia has nothing at all to do with it?
Mr. Philip B. Kurland: With this distribution of population?
Justice Thurgood Marshall: Yes.
Mr. Philip B. Kurland: Yes, Your Honor.
But this record does not reveal a single factual basis.
Justice Thurgood Marshall: You said the record doesn't show it?
Mr. Philip B. Kurland: That is what I assume the basis for judgment (Voice Overlap)
Justice Thurgood Marshall: The record does show that despite the decision of this Court, Richmond compelled by the state, defied it for 17 years.
Mr. Philip B. Kurland: That is right, Your Honor and that defiance came to an end, that defiance came to an end before this order was passed upon.
Justice Thurgood Marshall: And not before the suit was filed?
Mr. Philip B. Kurland: No sir the suit was filed 1954, certainly not before that.
The immediate suit that was brought here, the basis on which this, the mandate complaint came after, not only the end of defiance, but the adoption of a equal protection provision in the Virginia constitution and the adoption of an Open Housing Law by the State of Virginia.
There is a difference, I submit, between the State of Virginia, the Commonwealth of Virginia as it is today and has been last several years and the period on which the petitioners have predicated basis for interference with Virginia government action.
I come back to the proposition and I repeat the proposition that there is nothing in this record, which is not a sure record, Your Honor, to suggest that the demographic distribution, which is the basis for the request for relief was in anyway caused by actions of the state or any of the respondents.
Chief Justice Warren E. Burger: What's Judge Merhige's finding on that precise point?
Mr. Philip B. Kurland: I don't know that I can help you, Your Honor.
Chief Justice Warren E. Burger: Well probably you should come back to that later, and not delay now.
Mr. Philip B. Kurland: What we have here is a situation in which the respondents have reached that point spoken off by this Court in Swann.
That point in time, when the unitary school system has been established, and one of the time for the Federal Courts to abstain with interference with the management of the state school systems unless there is a showing of action as causing various effects.
Excuse me Your Honor?
Justice Thurgood Marshall: What about the one on Page 169, where you say the present pattern is the reflection of the past racial discrimination contributed in part by local, state, and federal government.
Mr. Philip B. Kurland: There is not a doubt that I said that Your Honor.
What I am contesting is if there is any factual basis on the record on which it leads to that conclusion.
I cannot give you record references to the absence of proof.
Justice Thurgood Marshall: Well, do you think you pulled this out of clear blue?
Mr. Philip B. Kurland: I don't know whether it came from the blue, I know it did not come from the record.
I would turn if I may to the last issue.
Even where this Court has found the constitutional violation as with the attempted withdrawal of the Employer of schools in the county system perpetuates segregation, it has made it clear the proprietary of the remedy is one that is dependent on a number of factors to be weighed.
I submit that in this case, all those factors weigh against the remedy here which is the consolidation plan, consolidation plan which is subject to review by this Court.
First, the remedy is not responsive to any constitutional violation.
The second factor of timing as it was termed in Employer shows that here is there -- the new plan, the consolidation plan was not forthcoming from the city until after a unitary plan had been approved and established.
Richmond here, like Employer there, moved to take itself out from the unitary plan that would have resulted in majority of black schools in the city of Richmond.
There is no showing here of any white flight from the city schools to the county schools, to the extent that there has been white flight in the Richmond schools has been somewhere else in the schools of the respondents.
And if white flight from the public schools were a result of the desegregation of the Richmond school system, it maybe be hazarded that, that is not going to be abated with the consolidated plan.
There is here no showing, as there was in Employer, if there are any differences in quality or capacity between the school systems of Richmond and schools systems of counties.
On the contrary, the effect of the consolidation would be to require a school system of inordinate size with the consequent problems in which all oversize metropolitan school systems suffer.
Justice William H. Rehnquist: How about the petitioners contention that there were exchanges of students back and forth across these lines in historical times?
Mr. Philip B. Kurland: There is no doubt, Your Honor, that during the period of obstruction, there were individual students which crossed state lines.
There has never been in the history of the State of Virginia, a consolidation of school systems.
The only consolidation of school systems that exists is where a single superintendent has been appointed as the chief administrative officer for two school systems.
But those school systems, each maintain their own pupil placement, their own teacher employment and indeed (Inaudible) has been suggested.
The selection of the superintendent, although it does come with the approval of the board, state board, it's usually by the local school systems.
Yes, the answer to your question is yes, there was in the past crossing of state lines in order to engage in unconstitutional activities.
Justice Thurgood Marshall: How about Kennedy High School?
They didn't have nay trouble with the line with that?
Mr. Philip B. Kurland: They don't but probably with the line of the City of Richmond.
Justice Thurgood Marshall: Is Kennedy outside of it?
Mr. Philip B. Kurland: Certainly Your Honor, the City of Richmond has the power to place at schools.
Justice Thurgood Marshall: Well, they didn't have any trouble with the county line on that, did they?
Mr. Philip B. Kurland: Nobody has any possibility of interfering with it as I understand Your Honor.
Kennedy is placed in Henrico, because that's what Richmond wants.
They have the power and they suggested even now, any of this area which we are talking about is possibly subject to annexation to the city of Richmond.
Justice Thurgood Marshall: Well, I understand the Richmond school board is in favor of this plan?
Mr. Philip B. Kurland: It's the Richmond School Board's plan, Your Honor.
Justice Thurgood Marshall: Yeah.
Yes, so --
Mr. Philip B. Kurland: But they are not asking to bring this area -- this plan brings in the entire, two counties to be joined with --
Justice Thurgood Marshall: No, my only point is I thought you could make – they stressed on we shouldn't cross this county line?
Mr. Philip B. Kurland: I am saying that we should not separate -- create new school systems, new forms of local government in the city of -- in the state of Virginia or any other state of the union.
Justice Potter Stewart: I suppose with respect to the county high school, the Richmond school district acquired the land with its money and built the school?
Mr. Philip B. Kurland: Yes, sir.
Each of the schools within each of the systems is owned by the school system that operates it.
Justice Thurgood Marshall: Who was the police power over it?
Mr. Philip B. Kurland: Who has the police power?
I mean, it has Attorney General, who has the police power over Kennedy, the area occupied by the Kennedy school system.
Justice Potter Stewart: City of Richmond?
Mr. Philip B. Kurland: City of Richmond.
The fifth factor to be weighed in terms of desirability of appropriateness of this consolidation plan, is the destruction of the local control of the school boards.
In fact both the majority and the minority of in Employer, found such great consequence and the importance of which was underscored by this Court's recent decision in the Texas School Financing cases.
I would submit, that if this plan were to be approved by this Court, the resulting rule would require a reorganization of every urban and suburban school district in the nation.
By changing their boundaries and removing their systems from local control, demographic patterns existent here and that is the basis for the petitioner's case are nationwide and not local.
And if we look only at the areas adjacent to Henrico and Chesterfield County, the map in the back of our brief, you will see that the District Court were to adopt petitioner's thesis, there could be a proper demand on the same two counties, to supply their white students not only to Richmond, but to the counties of Charles City, Dinwiddie, Amelia, Goochland, and New Kent as well as the City of Petersburg.
We submit that such a vast overhauling of the school system of the nation, will not have happy result in the maintenance of public schooling.
I have said Mr. Justice White, that busing is not an appropriate means under the circumstances described in Swann for the effectuation of the unitary system.
It is not irrelevant of the busing involved here, it's totally segregated busing.
It has to be of what you are doing is moving whites into the core and blacks out of other core.
We submit that is not likely to help solve conflict -- the ratio of conflict that's existent.
The children of Richmond, Chesterfield and Henrico would be selected by, addressed like lottery.
The distances to be traversed and the time to be invested are necessarily greater than under the existing programs.
The Richmond school system covered 63 square miles.
The proposed consolidated system would covers 752 square miles and since busing would be to and from the city of Richmond, distances must necessarily be great.
We submit in short that the proposed cure would be far more deleterious than the alleged disease.
As this Court indicated in Employer, It would not support even an intra-system plan whose consequences would be egregious, they certainly are here.
In sum the case presents a simple, but important question whether the constitution requires, that wherever there is a demographic pattern of racial separation, school systems must be restructured by federal courts to assure the presence of white student majorities wherever possible
.This Court has already announced that racial balance within a school system is an objective beyond the scope of the federal judicial function.
A fortiori I submit it is beyond the scope of federal judicial power to impose racial balance among independent unitary school systems.
Teaching of Brown id the Court please, and the judgments that have been founded upon it, is not that there must be a racial balance, but rather that the races should have equal status.
We respectfully submit that the Trial Court's judgment would detract rather than add to this equality of status.
We pray that the judgment of the Court of the Appeals for the Fourth Circuit be affirmed.
Thank you, Your Honors.
Chief Justice Warren E. Burger: Mr. Kurland.
Mr. Solicitor General.
Argument of Erwin Griswold
Mr. Erwin Griswold: May it please the Court, this case is an inevitable sequel to the decisions in Brown I and II that we have got this far is I think a sign of progress.
The only constitutional provision which is applicable here is the clause in the Fourteenth Amendment which says that no state shall deny to any person within its jurisdiction the equal protection of the laws.
There is nothing in the constitution about education, about quality education, about racial balance or racial mix.
The problem in the Brown cases clearly arose because of the maintenance of dual school systems, where children were assigned to one school or another in the same school district because of their race.
That was what was attacked there and no greater relief was there claimed.
Here there is no dual school system in Richmond under Plan III now in operation.
Whether in the absence of a dual school system or it's vestiges in Richmond, the equal protection cause as an any application is the issue now presented here.
Before I proceed further I would like to refer to certain phrases which I used in the brief for the petitioners in 72-550, sometimes taken from the opinion of the District Court below because I believe that they are or can be misleading or an unintentional hindrance to thought.
For example on pages 44 and 46 of the brief, the words “greatest possible degree of desegregation” appear.
Now this is an attractive phrase, but I think that standing alone it has no real meaning.
It takes on meaning only as it is applied to a specific group of students attending schools in a defined area.
It has meaning as applied to the students in the City of Richmond.
It has meaning as applied to students attending schools in a larger area, but it does not help them in the task presented here which is to determine whether the process by which a dual school system is effectively disestablished, can be extended to a larger area not for the purpose of eliminating dual schools, but for the purpose of providing a viable racial mix.
Another phrase which appears several times in the brief to which I have referred and in the District Court opinion is “racially identifiable schools.”
Again I suggest that this phrase has no operational meaning except as it is applied to a particular area.
There are many schools in Vermont and New Hampshire and other states which are a 100% white and thus I suppose they are racially identifiable, but they do not in any sense violate any provision of the constitution.
It is only when a school is racially identifiable with respect to something else that the phrase has any legal significance.
On this record, there are no schools which are racially identifiable with respect to any other school in the City of Richmond.
A school is not racially identifiable for any purpose of legal significance merely because it is 70% white or 70% black or indeed 100% white or 100% black and I doubt that that presents any question under the equal protection clause.
Indeed there is something, somewhat contradictory and unattractive in the proposition that a school is inferior merely because it has a certain percentage of black students.
Unless the proportion of students of one race in a school is the consequence of some sort of invidious discrimination or unless it leads to discrimination through inequality of appropriations, it should be colorless legally.
Here is the place where the constitution should be color blind.
Yet the record shows that it was this sort of reasoning which led the District Courts to its conclusion.
The District Court's order is based on a concept of a viable racial mix, a phrase that is used many times in its order and which comes directly from the testimony in the District Court of Dr Little and Dr. Pettigrove (ph).
This approach has already been judicially answered in one of the characteristically illuminating opinions of Judge Sobeloff in the Brunson case which is quoted at pages 59 and 60 or the respondent's brief, the notion that a good school must have a white majority, thus as Judge Sobeloff said seem to constitute a direct attack on the roots of the Brown decision, yet that is the only basis of the District Court's order.
Justice Potter Stewart: You understand by the meaning of the word viable in this phrase.
I thought it made a make up of school population that would be stable, that would not have inherent in it, the probability of leading to all black and all white school?
Mr. Erwin Griswold: And that Mr. Justice in the words of the experts is a school population with 28 to no less than 20% black because the blacks feel isolated if there is less than 20%, no more than 40% black, because the white --
Justice Potter Stewart: Surely the white black --
Mr. Erwin Griswold: -- enters into the picture and the consequence is that what it means is there must always be a white majority in every school to have a viable --
Justice Potter Stewart: Well, in the context of the Richmond metropolitan area that's all there is to it.
Mr. Erwin Griswold: No, I think Mr. Justice that the testimony of the experts will the applicable throughout the United States where there is any problem of racial adjustment.
Less than 20% makes the Negro feel isolated and more than 40% means that there is risk of --
Justice Potter Stewart: I had understood the testimony basically to be directed to the facts, the demographic facts of this metropolitan area which is basically two thirds white and one third Negro?
Mr. Erwin Griswold: Mr. Justice I think the testimony of the experts if examined will show that in their opinion in any situation in which there are 2 or 3 or 4% black students that that is undesirable for the black students and that in any situation in which there are 50%, 60%, 70% black students that there is a great potentiality of white flight.
And here the children of Chesterfield and Henrico counties are brought into the picture for the purpose of maintaining this not less that 20 and not more than 40% of the black, and yet why stop there.
As the map of the close of the respondent's brief shows these three areas are completely surrounded by other counties where there is a majority of black.
Now, why shouldn't some of the Chesterfield and Henrico students, perhaps those living close by, be used to liven the mix in the surrounding territories.
Indeed this is just a way to test the District Court's decision below.
This case began in Richmond and the remedy is designed to improve the situation in Richmond.
Let us suppose though that the case had been started in Chesterfield County and complaint had been made that the schools in Chesterfield are racially identifiable, and that a mix of 20% to 40% black students is preferable, according to the expert testimony.
Thus it seemed conceivable that an order would then have been made joining Richmond as a party defended in the Chesterfield case, and then bringing Richmond students into Chesterfield in order to provide there a viable racial mix.
It may be suggested that this is absurd, but I wonder if it is really different from what the District Court undertook to do here.
And in this connection I would like to refer to a few undisputed facts.
The combined area of Richmond, Chesterfield and Henrico is 752 square miles.
That is more 10 times the area of the District of Columbia.
It is 63% of the area of the State of Rhode Island and nearly 37% of the area of the State of Delaware.
The petitioner's arguments here inevitably lead to a large amount of centralization and concentration of control over these schools.
And logically, there is no reason for stopping short of a statewide system.
Indeed, since the due process clause of the Fifth Amendment embraces the concept of the Equal Protection Clause, there is no logical reason for stopping short of a single national school system with a viable racial mix in every school.
This is very close to the problem with which this Court dealt in the San Antonio School District case, where it concluded that the Equal Protection Clause should not be applied so mechanically to produce a type of overall inflexible egalitarianism, which is indeed alien to our history, and to our institutions.
Our position here is not quite as broad as that taken by the respondents.
We do not contend that school district lines are inevitably or inherently inviable.
On the contrary, in the Scotland Neck and in the Emporia cases last term, we contended that district line should be disregarded when they were established, or put into effective use where the purpose of maintaining the consequences of a once combined and segregated school system.
But there are no such facts here, and there is no contention here that these district boundaries were invidiously established.
If there had been specific instances when the lines have been used to maintain segregation, and that effect continues then we would regard the district lines, the District Court as having power to look into that situation and to devise an appropriate remedy.
Justice Byron R. White: Mr. Solicitor General, how do you read the Court of Appeals' opinion?
Did the Court of Appeals in your view say that there was an independent reason for reversal of the District Court in that the District Court attempted to establish a racial quota or establish a racial balance among all the schools?
Mr. Erwin Griswold: Yes, I think Mr. Justice, that that's essentially what the Court of Appeals has meant and that becomes very apparent when the District Court's opinion is read because it is still with this --
Justice Byron R. White: So that --
Mr. Erwin Griswold: -- it's just to achieve a viable racial mix.
Justice Byron R. White: As you read the Court of Appeals, it would have reverse the District Court even if the boundary line question were not a separate issue in itself?
Mr. Erwin Griswold: No, Mr. Justice I think that if this were historically, and always had been a single school district then there would not be – then there would be racially identifiable schools within the school district.
Justice Byron R. White: Yeah, but that isn't the question.
The question was whether or not in proceeding -- if historically this has always been one area, and it had been racially segregated and the problem was to just establish the dual school system.
Would the Court of Appeals then have reversed a District Court because of the way it approached it in terms of racial quotas, or racial mixes?
Mr. Erwin Griswold: I am not sure Mr. Justice that would have been the case very close to the Charlotte's school case --
Justice Byron R. White: So it would be a --
Mr. Erwin Griswold: -- where this Court had said that an absolute racial balance throughout the system was not required, but here there would have been a considerable concentration in one area.
It would have been not unlike the situation in Charlotte before the district Judge there and --
Justice Byron R. White: Well then it must be that the District Court of Appeals didn't use that factor as a separate independent grounds for reversing the District Court.
The boundary line, the boundary line issue has to be -- has to be -- is critical to the Court of Appeals?
Mr. Erwin Griswold: Oh!
Yes Mr. Justice.
It has to.
There isn't any question about that is critical to my position at here.
There is a section in the --
Chief Justice Warren E. Burger: Well, are you saying Mr. Solicitor General that boundary lines might be disregarded to achieve some objectives, but they may not be disregarded to achieve racial balance?
Mr. Erwin Griswold: Mr. Justice, I am saying that they might be disregarded where it is shown that they were established for the purpose of providing or maintaining some sort of discriminatory consequence with respect to the schools.
In this case there is no such evidence and no such claim.
My time seems to have expired, Mr. Chief Justice.
I am --
Chief Justice Warren E. Burger: Yes, if you wish to finish we'll make an adjustment accordingly.
Mr. Erwin Griswold: Well, I have only a little more.
The District Court opinion and the petitioner's brief do rely on the fact that some Richmond schools and some Henrico schools are “Located a very short distance apart” and I would mention that on this chart, the only schools that are shown are those which I thought to be close to the boundary line.
There are many other schools in between which are not shown.
I think though that there is less here that meets the eye.
In the first place, seven of the eleven pairs schools and I would call attention to the tabulation at Page 429 of the Appendix in the District Court's opinion, seven of the eleven pairs of schools are more than three miles apart, and four of them are 4.9 miles apart, and up to 6.2 miles apart.
Now five miles is as far as from the capital out Massachusetts Avenue to the American University.
Now two of the schools are listed as 1.4 miles apart, and there is a notation that this is eight blocks but the distance of 1.4 miles is the entire length of Pennsylvania Avenue from the foot of the capital to the Treasury Building, that's 14 Washington blocks on a diagonal.
If 1.4 miles is 8 blocks, that allows more than 300 yards per block which are rather a large blocks.
Justice Thurgood Marshall: Is there any thing in the record that shows how far they presently bus children in Richmond?
Mr. Erwin Griswold: How far what Mr. Justice?
Justice Thurgood Marshall: They presently bus children in Richmond?
Mr. Erwin Griswold: I believe there is, I am not familiar with what it is, it cannot be as great as the distances involved in busing the children from Henrico into Richmond, then the children from the --
Justice Thurgood Marshall: I understood they used to bus them across Richmond?
Mr. Erwin Griswold: Yes, but that isn't very far.
Justice Thurgood Marshall: Where Richmond is more than five mile, isn't it?
Mr. Erwin Griswold: Yes, Richmond in many places is more than five miles.
I am suggesting that this is not a case of having a black school here right next to a white school which is the impression which is sought to be created by this tabulation.
On this record, there are no invidious local examples of discrimination.
At any rate that is not the basis on which the District Court below undertook to act.
The basis of its decision was the desirability of establishing a viable racial mix, a phrase which it used repeatedly.
That concept we submit is itself invidious, and a denial of Equal Protection to both white and black.
Accordingly the decision of the Court of Appeal should be affirmed.
Chief Justice Warren E. Burger: Thank you Mr. Solicitor General.
Mr. Coleman we will enlarge the time of the rebuttal by three minutes.
So you work that out the way you wish.
Rebuttal of William T. Coleman, Jr.
Mr. William T. Coleman, Jr.: I think it will take me twice as long to move as fast as Mr. Solicitor did?
Justice Harry A. Blackmun: Mr. Coleman?
Mr. William T. Coleman, Jr.: Yes sir.
Justice Harry A. Blackmun: Can I ask one question for you to answer it at any time?
Mr. William T. Coleman, Jr.: Yes sir.
Justice Harry A. Blackmun: Suppose this were not Richmond, Virginia.
Suppose everything else being the same, this were Kansas city and the line between the districts was not a school district line, but was the state line between Missouri and Kansas.
Would there be any difference?M
Mr. William T. Coleman, Jr.: Oh!
Mr. Justice Blackmun, there is a lot of difference.
Federalism is important and no lawyer can stand up here and say that when you are involving two states, the rule is the same as when you are involving school districts.
The constitution specifically provides that anytime the two states get together, there has to be a congressional compact and that's just completely different and with all the due respect it is nowhere into this case and we are not contending that.
Justice Harry A. Blackmun: You disagree with the Solicitor General's comment to that effect?
Mr. William T. Coleman, Jr.: Oh!
I certainly don't.
I really -- well, I do, yes sir.
Now what the Solicitor General --
Unknown Speaker: He is --[Laughter]
Mr. William T. Coleman, Jr.: What the Solicitor General says, this is Charlotte, but for these division line.
Now he did not tell you that in division six there is nothing done under this plan.
Now once you eliminate division six, then you don't have the 752 square miles that they would have you believe, but you have only 400 and somewhat miles.
That is less than what you had in Swann because Swann was over 500 and Mobile was 1200 square miles.
So really with all these horribles that you don't have that in this case.
Now I have tried to argue the case based upon the record and Mr. Kurland with all due respects when he was asked about the record, he walked away from the record.
I do think that this case has to be decided on record and contrary to what Mr. Kurland said about findings with respect to residential segregation, there is a finding, at 206A in the appendix to the petition of certiorari, 211A and indeed on 572A it's the one finding that the Court of Appeals accepted and said the District Court was correct and he was not off setting.
Now secondly, they constantly talk about these systems being unitary at the time they were brought on, at the time of the decree, that just is not the fact.
The record findings are to the contrary, the Court of Appeals never mentions rules 52A, it never discusses the evidence, it just says, I assume that these systems are unitary, but the District Judge and I referred you to those places Mr. Justice Brennan, I just ask you to read and that's supported by the record.
Look at that exhibit and you will find that these schools certainly are not unitary.
That there are all black schools, there are white schools measured by any test you wish to make.
Chief Justice Warren E. Burger: Well, let me put it in different terms.
Do you say that within the city of Richmond today they are operating a dual school system in terms that we used Green and paraphrased?
Mr. William T. Coleman, Jr.: The answer affirmatively is yes, as loud and clear I could make it Mr. Chief Justice.
I say the same thing with respect to Henrico.
I say the same thing with respect to Chesterfield, but more important what I said, that's what the District Judge found, and no Court of Appeals has off set that finding and it seems to me that on this record that's the way this case has to be decided in this Court.
Now they talk about this line and about all line.
I think, at some point, somebody should tell you that this line was redrawn in 1971 and if you look at the exhibit book, on page 67A, you will find a memorandum from the State Board of Education saying by official action at this June meeting, the State Board of Education established school divisions as per the attach effective at noon July 1, 1971.
Now the District Judge said, and he found as a fact and every time I see this chart as Mr. Kurland puts in his in his brief I say, I wish I had put it in there because that's what this case is about.
Now here you have a State agency, charged with the responsibility of setting a new line.
It sees Richmond all black, it sees these counties all white.
Now I ask you, can you exercise state power in such a way to keep that black on play there.
This was done in 1971, after this was underway in the final hearing, and it was done at a time when anyone who drew that line knew the result of drawing that line was to create all black schools and all white schools.
Chief Justice Warren E. Burger: We will resume that after lunch.
Mr. William T. Coleman, Jr.: Okay, Mr Chief Justice.
Chief Justice Warren E. Burger: Mr Coleman you may continue.
Mr. William T. Coleman, Jr.: Mr Chief Justice, may it please the Court.
Just at the luncheon break sir, I pointed out that the respondents in 1971, had an opportunity to redraw these lines and they drew them in the same place.
Lest there be any doubt about that, just look at pages 228(a) and 229(a) of the appendix.
Now there was some mentioning about white flight.
Once again we have a finding on it.
The judge found as a fact that between 1970 and 1972, 7,800 whites students or 39% of the entire white student population of Richmond left the school system.
That’s at page 237(a) of the appendix and in the record it's at page 470(a).
Now there was a talk about these schools and I think it's very interesting that when you come to the opposition of the stay or try and grant the stay as the Judge Merhige at page 1347(a) of the record, the lawyers seeking the stay, representing the State Board of Education and the Superintendent of Public Instructions, the Attorney General of this great Commonwealth of Virginia, that so long has segregated blacks, says, “the evidence indicates that Richmond school buildings are old and obsolete in some cases.
While Chesterfield and Henrico have gone forward in the past decade-and-a-half of the aggressive modern building program.”
Now we also heard some mentioning which I really think comes with immigration in the Commonwealth of Virginia, that the blacks having the courage to seek this relief somehow should be criticized because of the question of white control.
But you had pointed out to you that it was a biracial school board that made the determination to seek this relief.
Secondly you had pointed out to you that a black a petitioner asking this relief and I really think it comes with poor grace from the Commonwealth of Virginia that has this tremendous history of segregation and penning black people out to now say that somehow we are criticized for attempting to get schools which comply with the constitution, that's all we want, and not to have schools which are in violation of the constitution.
Chief Justice Warren E. Burger: Suppose the State of Virginia decided that it was awkward to try to have these two counties and the City of Richmond function for administrative purposes only in the field of education and decided to legislate an annexation or however they do it in Virginia.
This would be one way of accomplishing this process, wouldn't it?
Mr. William T. Coleman, Jr.: Yes sir and as Mr Little pointed out to you Mr Chief Justice, that Virginia statue permit the result that the judge are brought about and the only statue which he didn't follow a 100% was the statue that was amended in 1971 while this litigation was pending and the record makes it clear on page 906(a) of the record 942(a) of the record and 944 that the legislature sitting in Richmond knowing that this lawsuit was pending, then sought to change the statue, so that these local counties would have to consent.
Chief Justice Warren E. Burger: Are you suggesting that it follows, that if state law permits something that then -- that's constitutional authority in the courts to reach the same result?
Mr. William T. Coleman, Jr.: Well, Your Honor I am glad you asked that question.
Our position is clearly that once we establish a constitutional violation which I think we have from 1871 until today, then the court can take steps to end the violation and to correct the situation and certainly if the steps they take are those that are consistent with state law, there can't be any criticism particularly when you, Your Honor in the Davis case, indicated that once there is a violation and the only way to end the violation is to ignore a state statute that the Federal Court has the duty and the obligation to ignore that statute.
I am going to recall --
Chief Justice Warren E. Burger: All state statutes aren't fungible --
Mr. William T. Coleman, Jr.: No, no, but state statutes which prevent the ending, but no, state statutes are not fungible, I agree.
I have no problem with that, but I am saying that this state, that any state statute that's involved here, if it has the effect of preventing effective desegregation, you then do what you did in the North Carolina versus Swann and if you indulge me, you know on page 46, well, you said, “just as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy to forbid at this stage all assignments made on the basis for deprived school authorities of the two” and there in North Carolina it was argued, they had a state statute, which specifically said that you can't sent --
Chief Justice Warren E. Burger: Well that state statute would have frozen the statute of the school permanently, would it not?
Mr. William T. Coleman, Jr.: Well, that's exactly the same thing here Your Honor.
Look at this, look at my friend's map, that's what he is attempting to do.
He is attempting to freeze permanently that situation and I just don't think that a Federal District Court is well powered to permit it and particularly Justice Rehnquist when you asked me the question, I stated that they took people across this line to maintain segregation, now when you ask Mr. Kurland that, he agreed with me and I do think that under those circumstances, certainly, to say that you can't do it to get an effective desegregation, is more sophistication that at least I have and I don't.
Chief Justice Warren E. Burger: Mr. Coleman, you answered Justice Blackmun rather vehemently when he put the question to you about state lines, let me try to be hypothetical, perhaps not so hypothetical, nearer home, nearer where we are.
You are familiar with the problems in the District of Columbia over the years.
It has been suggested publicly and privately from time to time that the state lines of Virginia and Maryland should be ignored and that the metropolitan area of Washington, should be treated just as the court has treated a metropolitan area of Richmond.
Would your response to that be the same as Mr. Justice Blackmun's question?
Mr. William T. Coleman, Jr.: Well.
I think that, that is slightly a different situation.
That's not this case, but I would say that after checking, I would find much greater difficulty urging that you can cross the district line to go into Maryland because once again, their constitution provision dealing with how you set up a district and with the (Inaudible) case decided in 19 -- other case, it's a different question, but it's not the question we have here and it's just different, Your Honor.
Now if I had that case, I would then meet the issue and I would be able to answer the question but I think it is a completely different question.
Justice Potter Stewart: The Equal Protection Clause, applies to a single state?
Mr. William T. Coleman, Jr.: That's right.
Well, that's one of it.
Justice Byron R. White: Mr. Coleman can I ask you something.
In your petition of certiorari, you present the single question of whether or not a Federal Court may go beyond the geographic boundaries of a school district in providing a remedy?
Mr. William T. Coleman, Jr.: That's right.
Justice Byron R. White: That's the single question.
Now let's assume we agreed with you and said that it may go beyond.
Would we just say reversed and not reach anything else in this case? is there another --
Mr. William T. Coleman, Jr.: Well, my red light is going on.
Justice Byron R. White: Well, I have asked to do it.
I had asked you a question.
Is there another question in the case, you can --
Mr. William T. Coleman, Jr.: Well, my understanding is that if you make the determination that the Court of Appeals was wrong in saying you could not go beyond that division line, then I think you should affirm Judge Merhige.
If you don't because --
Justice Byron R. White: Well, we don't -- we haven't got Judge Merhige to affirm.
Here we have got the Court of Appeals' judgment.
Mr. William T. Coleman, Jr.: Well you reversed an order then which you do all the time, Your Honor.
You order for the reinstatement – [Attempt to Laughter]
Justice Byron R. White: I know, but is there any other question we must reach before reversing?
Mr. William T. Coleman, Jr.: I think not Your Honor.
Justice William J. Brennan: Well, was there any other questions raised in the Court of Appeals that the Court of Appeals did not reach and decide?
Mr. William T. Coleman, Jr.: To the best of my knowledge, the answer to that is no.
There were not Your Honor and what's happened here, is a very sophisticated way to confuse the situation.
The viable racial mix appears nowhere in the principle opinion of Judge Merhige.
In his entire opinion and that part, which is from Page 164A-263A, thereafter there is an additional part of the opinion, where all he does is to take all of the testimony and discuss it and they find only in that part; you cannot find in what he said his opinion was, and so I think that if you just determine that that line which was a bamboo curtain for purposes of segregation, if that become an iron curtain, you should reverse and reinstate the judgment of Judge Merhige.
If you thought you should send it back, I think at least, under your other cases, you should say when it goes back because I don't think you should think it should go back to the Court of Appeals, at least the Merhgie plan should go into effect the way you did in Swann until such time as relief because after all it's been 20 years and I do hope that the next generation at least will get our constitutional education.
Chief Justice Warren E. Burger: Thank you Mr. Coleman, thank you gentlemen.
The case is submitted.