NORWOOD v. HARRISON
Legal provision: Equal Protection
Argument of William A. Allain
Chief Justice Warren E. Burger: -- arguments in Number 72-77, Norwood against Harrison.
Mr. William A. Allain: Mr. Chief Justice may it please the Court.
I think we should first realize what we do have in this lawsuit and what we do not have in the lawsuit.
I direct the Court's or invite the Court's attention to the appendix at page 19 which contains the complaint of a lawsuit.
The second paragraph thereof the plaintiff seek a temporary restraining order and preliminary and permanent injunction, enjoining the defendants from providing or permitting the distribution or sale of state purchased or owned textbooks to private, racially segregated schools or academies.
This case is a fine drawn legal question.
It is not a question of whether or not the 170 challenged academies have a racially motivated admission policy.
It is one which deals basically with whether or not the State of Mississippi can lend text books to the pupils attending racially segregated private academies regardless, regardless of how they got that way.
Now if the Court will look at the appendix, at page 22 in which the relief requested is that before textbooks can be allowed to, here they say, “Private schools and all students,” there must first be a showing to the District Court that the private school is racially integrated both as to students and faculty and in a conjunctive, has not have the effect of frustrating or impeding the establishment of racially integrated public schools.
Now that, Your Honors is a burden that no private school in the United States that I believe, I know of could carry which shows a fine line which this particular case takes.
They are saying they won’t relieve to this extent, unless the private schools now can show that they have an open enrollment admission policy, but that they must be racially integrated both in faculty and in students.
Justice Byron R. White: Let me make sure of what your position is.
Let's assume that you do have some schools where -- that do not have an open admission policy, what about that?
Mr. William A. Allain: If the Court please, I do not think that is a question in this lawsuit but if we did have that --
Justice Byron R. White: Why is it not the question in this lawsuit?
Mr. William A. Allain: Because the lawsuit was drafted and framed by the plaintiffs and is shown by the appellants brief, the question before this Court does not deal, does not deal, does not deal with what the race -- what the admission policy of the school is, it is on the theory --
Justice Byron R. White: Well, don’t you think that question fairly subsumes the idea that the -- at the very least the Equal Protection Clause is violated in connection with those schools, if any which do have a closed admission policy?
Mr. William A. Allain: No Your Honor I don’t, except the reason that in the --
Justice Byron R. White: Well let’s assume that we didn’t agree with you and that it does subsume that question?
Mr. William A. Allain: If it will subsume that question I think we would still be on solid ground with the teachings of these Court cases in Allen and the Cochran case.
Justice Byron R. White: So even with respect to schools if any that has a closed admission policy?
Mr. William A. Allain: That is right Your Honor because it is aid to the pupil and not to the school the same rationale of the Allen case, the Cochran case out of Louisiana, 1930 dealing with textbook.
The Allen case by Your Honor you wrote that of -- of that opinion in 1960.
Justice Byron R. White: Do you find anything in the Allen case that indicated the schools there had a closed admission policy?
Mr. William A. Allain: No, we did not Your Honor.
But the rationale there did not deal with the -- whether or not the admission policy was closed or open, the rationale as I understand Allen and I hate to debate with the author of the opinion but that the mere fact that it went to the pupil and not to the student.
Justice Byron R. White: Now, if you read -- if you read the argument further advanced in Lemon against Kurtzman.
Mr. William A. Allain: Yes Your Honor you did.
Justice Byron R. White: About closed admission policy?
Mr. William A. Allain: Right.
But I -- the rationale of the Allen case if we understand, the Cochran case, Mississippi’s Chance case, the -- all the cases that -- the transportation case is that it is aid to the pupil and the student or the parent and not to the school.
Justice Byron R. White: Yes.
Mr. William A. Allain: Now, I say that I do not to believe the issues framed here or is brought as Your Honor addresses himself for the simple reason that there is no proof in this case.
No attempted proof by the plaintiff to show what the particular admission policy was of the 107 academies.
In fact, the proof is just the opposite shown by cross-examination by the defendants that that did have, the 107 have an open enrollment policy.
It is either on the minutes, it is oral, verbal and sometimes it went so far as be advertised in the newspapers.
So I think from the fact that the case in the lower court was not tried on that issue.
There was no attempt to show by the plaintiffs that that was a closed admission policy.
This case is drawn on the same fine lines of the tuition cases in which the courts held that the mere fact that they were racially segregated, not how they got there, but that is a different rationale, a different principle.
For the simple reason in the tuition cases, the Coffey I, Coffey II, the Poindexter cases, Griffin case found that the State of Mississippi and the State of Louisiana and Virginia were operating not necessarily racially discriminatory white academies, but they had in one -- they're still operating a dual school system because in that case, under I guess the under the rationale of Burton case, the sifting of the facts and the circumstances show that they were actually in partnership with the private schools.
The tuition was the basic income of the private schools.
So instead of having an Allen case or instead of even having a Burton case, you had a Brown and Griffin case which did not depend upon a finding by the Court that there was an open or a closed admission policies for -- as the private school were concerned because of the mere fact that they were predominantly white, put the State of Mississippi and Louisiana in operating a dual school system again under the freedom of choice.
Now we say to the Court that we think that this case regardless of how it is taken is controlled by the line of cases of Allen and Cochran, the transportation and textbook cases and the plaintiffs try to get past the rationale and holding in those cases by saying, “Well this is a Fourteenth Amendment case and not a First Amendment.”
I say to the Court that the First Amendment, the establishment clause of the First Amendment, now I know Mr. Chief Justice has spoke in the Tilton about the internal tension between the establishment clause and the exercise clause.
But the establishment clause has been held by this Court as absolute.
The exercise clause is not absolute as to actions of individuals and that’s in the Jacobs case which allowed inoculations and I think the Prince case against Massachusetts was the labor, the child labor.
But you are talking about an absolute in the establishment clause and therefore we submit to the Court that the measuring stick for the establishment clause of the First Amendment is more stringent and more stringent than that of the Fourteenth Amendment whose contours as this Court has said have not been concretely established to allow for flexibility.
The measuring stick apparently in the Fourteenth Amendment cases would be the Burton case where we must sift the facts and look at the circumstances to see whether or not a state has put itself in partnership with the academies.
And counsel and the plaintiffs go further and say “Yes” but you are not controlled by Burton for the simple reason.
Green and Swan say that the State of Mississippi has an affirmative duty.
So it is actually not the Fourteenth Amendment per se which the plaintiffs are riding in this particular case.
It’s the First Amendment with the gloss put up on it by Swan and Green upon any state which has had a dual school system.
Chief Justice Warren E. Burger: You referred to transportation a few moments ago, does the state furnish transportation to the students of these private schools?
Mr. William A. Allain: No Your Honor, there is no, the only benefits given by the state to any individual, enrolled in a private school are the textbooks.
Chief Justice Warren E. Burger: Now, could the state in your view lawfully furnish transportation to the students in this private schools, assuming now, limiting my question to those private schools that had an exclusion policy?
Mr. William A. Allain: I think that they could Your Honor.
Under the rationale of the New Jersey case which held -- of course the Everson case which it held that transportation did not violate the establishment clause in the New Jersey case.
But the affirmative duty doctrine is -- has never been completely defined by this Court.
How far does a state have to go in order to do away with any, anything which interferes as the plaintiffs say that the academies interfere with the unitary school system in Mississippi.
That taken to its logical conclusion and the plaintiff’s are asking and are saying that the state can give no aid.
Now that taken to its illogical logical extension would be that they must cut off water, sewer, electricity.
Now, I know this sounds absurd because Mr. Justice Rehnquist in the Moose Lodge case and Mr. Chief Justice in the Lemon case and Mr. Brennan in the concurring of the Lemon case stated that this were benefits which could flow to private schools, to church schools or anything else.
But if we take this affirmative duty that the plaintiffs are tempting to urge upon the Court, then how far is it necessary for the State of Mississippi or Louisiana or any other state to go to get rid of what they say are the private segregated schools regardless of how they get there which is interfering --
Justice Thurgood Marshall: (Voice Overlap) would your answer be stop giving money for textbooks?
Mr. William A. Allain: Your Honor, maybe it could stop there, I would not, what I am saying to the Court --
Justice Thurgood Marshall: Is that what's in this case?
Mr. William A. Allain: That is what is in this case, but that is not --
Justice Thurgood Marshall: Doesn’t have anything to do with sewers and water?
Mr. William A. Allain: Your Honor what is requested in this case does because of the rationale and what this case would stand for.
In the affirmative duty --
Justice Thurgood Marshall: You don’t think it could be written narrow enough to be limited to textbooks?
Mr. William A. Allain: No Your Honor I do not because --
Justice Thurgood Marshall: (Voice Overlap)
Mr. William A. Allain: -- then you would get into transportation and then you would get into whether or not private schools should be charted in Mississippi.
You would get into whether or not that the universities of Mississippi should accept the credits from these private schools.
You would get in to all types of aid, if you want to call it aid which is being given to private schools in which they are participating in.
I don’t see any of decision in this case could be so limited.
Justice Thurgood Marshall: I thought you started your argument with saying that this a very narrow case involving a very narrow issue and you read on page 19 about textbooks.
Are you now saying that it’s broader than that?
Mr. William A. Allain: No Your Honor I said it had a fine line drawn as far as a factual situation and because of that fine line as to factual situation, it would make any decision adverse to the state a broad holding.
The fine line of facts makes the holding broader than is the facts were brought up then you might be able to this -- to limit the holding.
For the simple reason that they are asking for an underlining that any aid given to the 107 private schools should be cutoff and when I say any aid, let us take for instance a really absurdity --
Justice Thurgood Marshall: Could you show me that in the complaint, where they say any aid?
Mr. William A. Allain: Your Honor I’m not too sure that it’s in the complaint, but it permeates throughout the --
Justice Thurgood Marshall: Well I thought you started your argument that we were limited to the complaint.
Mr. William A. Allain: No Your Honor I did not intend to say we were limited to the complaint.
I merely intended to say that the factual situation is framed by the state.
Justice Thurgood Marshall: But, well for your benefit it’s limited to the complaint and where is your benefit to go beyond the complaint, you go beyond it.
Mr. William A. Allain: No Your Honor I was -- the relief -- now in the relief, the relief does state.
As you read in the relief it does go further and talks about until racially integrated both as to students and faculty.
That is on page 22 of the appendix.
Justice Thurgood Marshall: Perhaps you would stand not all of the (Inaudible)
Mr. William A. Allain: Your Honor it is speaking here that unless --
Justice Thurgood Marshall: (Inaudible)
Mr. William A. Allain: Your Honor that is the request at this time.
It is not -- is not beyond the scope to see the next lawsuit that would be before this Court citing this case as authority.
Justice Thurgood Marshall: We don't have the next lawsuit, we have this one.
Mr. William A. Allain: Your Honor what I’m saying to the Court is though because of the fine factual situation the decision in this Court would precipitate immediately another lawsuit as to any other aid which was given to these private schools.
Plus the fact that if and I think Mr. Chief -- Mr. Justice Stewart said yesterday that maybe this could go back and what the determination have to be made as to each particular school, it could not be made on this record sir.
Justice Thurgood Marshall: Did you say a minute ago that there was no aid other than textbooks given to private schools in Mississippi, did you say that?
Mr. William A. Allain: I said the only aid that were given to students attending private schools in Mississippi was the textbook.
Justice Thurgood Marshall: So that’s all before us?
Mr. William A. Allain: Sir?
Justice Thurgood Marshall: That is all that’s before us?
Mr. William A. Allain: That is all before you in the --
Justice Thurgood Marshall: (Voice Overlap) advice, your opinion as to what Mississippi can or cannot do in the future, do you?
Mr. William A. Allain: Your Honor I do not think and I do not want to argue with the -- Your Honor only is I do not think that it is an advisory opinion which in it -- it is an opinion in which a later suit, a later case can be built on for the simple reason of what the holding would be in this particular case that regardless of how these 107 academies came about, regardless of whether they had an open enrollment policy or not unless they were racially integrated and I don’t know how you get a private school racially integrated anywhere in America because its a choice by these pupils.
It is usually a tuition that they have to pay and the people go there because of their choice.
I do not know how that anyone could carry the burden with this type of decision by the Court would establish.
So we say to the Court that even under the affirmative duty doctrine as the Court addressed itself to in Swan where the courts recognized that even under this we are -- the equity power of the Court is limited in what it can do.
That they cannot ride that doctrine to the extent of saying that these 107 schools regardless, regardless of their policy of admission, regardless of how they became into being, regardless to how they are supported, are not the pupils attending are not entitled to textbooks.
And remember this textbook law came into being in 1940 rather than 1942.
It was amended in 1942 to bring in high schools.
It came during a depression.
It came with the benevolence of the state in order to help not only not just white children in Mississippi, but black and white children who were attending public and private schools.
In fact I dare say that the --
Justice Thurgood Marshall: Were there any black academies in the 1940, in Mississippi?
Mr. William A. Allain: I do not know about that Your Honor, I do know that for the --
Justice Thurgood Marshall: (Inaudible)
Mr. William A. Allain: Your Honor I said as to public, its public education --
Justice Thurgood Marshall: Oh!
Mr. William A. Allain: -- the typically, textbook went to public and private schools and I dare say that the black community, knowing Mississippi as I do that the effect upon the pocketbook was of more value probably at that time to the black parent than it was to the white parent.
Now the inconsistency in the argument made by the plaintiffs is the fact that they want to exclude from this holding, one that catholic schools in Mississippi, why?
Why do they have something like 12,000 students, 10,000 whites and well, two to two-and-half black?
There is no showing that they are integrated.
In fact the record will probably show they're predominantly segregated.
So if this type of academy is what they are oppressing on the Court, what makes any difference whether or not it’s the catholic schools?
They had excluded two, I think, predominant black schools.
Why exclude them, aren't they taking out of the system pupils who should be back into public schools?
They’ve excluded other academies, I think five other academies.
So why is there an inclusion to be consistent with the principle that the plaintiffs are attempting to urge upon this Court?
These academies, these academies are doing the same thing as the 107 academies would say are trying -- they challenge in this particular lawsuit.
We say to the court that the statute was enacted in 1940 without any racial motives.
It in no way established any dual school system and it no way established any racially segregated private schools.
It has been even handedly executed throughout the years.
I would further say to the Court that there is one finding by this Court, by the District Court which we think that unless it's manifestly wrong, this Court should affirm and this Court I think has been on record since the Brown decision in saying the District Court and the trial court is a court that must look at the factual situation.
This Court recently said in the Right case, gave great weight to the findings of fact by the District Court and one of the findings in that case, the third finding I believe said that we look at the timing, when was this new school system created?
There’s no timing problem in this particular case because it was way back in 1940.
The District Court found in its opinion that since the issuance of free textbooks to students attending private schools has failed to defeat the establishment of a statewide unitary school system in Mississippi and since plaintiffs are themselves receiving their free textbook, there is serious question as to whether plaintiffs are threatened with the irreparable injury which is requisite to injunctive relief.
Further the Court found there is no showing that any child enrolled in private schools, is deprived of free textbooks would withdraw from private school and subsequently enroll into public schools now unitary.
Further there is a finding by the Court in the evidence in the lower court, I mean in the depositions that the withdrawal from the pupils of this particular aid would not in anyway which is just $6.00 a year per pupil substantially effect the 107 private schools which are under attack in this particular lawsuit.
We say to the Court in closing that we feel that the opinion of the District Court is bottomed on the facts in that particular case and the law has been the teachings of this Court.
And that even in the two Poindexter cases which this Court affirmed, Judge Wisdom speaking for the District Court in similar situations in Louisiana that had a dual school system in tuition cases, distinguished those particular cases from textbooks and free luncheon and the other benevolent gifts that had been given to charitable and educational institutions throughout the years.
We say to the Court we think this judgment of the District Court should be affirmed.
Justice Lewis F. Powell: Mr. Allain, I think the record shows that there are 534,000 pupils in the public schools in Mississippi.
Does the record show the breakdown as between whites and blacks among that 534,000, what percentage?
Mr. William A. Allain: I don’t recall Your Honor the percentage.
I do recall there was a thousand different schools involved in it and only 35,000 in the private school, but I’m not sure of the particular breakdown of the -- population of Mississippi breakdown is something like 60:40 of the 1970 census or 62:38.
I am not --
Justice Lewis F. Powell: That’s the total population?
Mr. William A. Allain: Total population breakdown white to black.
I would think that the school enrollment maybe somewhat above that.
It might be a 60:40 or 55:45.
Chief Justice Warren E. Burger: Thank you Mr. Allain.
Mr. Leventhal you have about 10 minutes left.
Argument of Melvyn R. Leventhal
Mr. Melvyn R. Leventhal: (Voice Overlap) Your Honor.
Justice Potter Stewart: I have a question.
Mr. Melvyn R. Leventhal: Yes sir?
Justice Potter Stewart: May I ask you, referring to page -- to the complaint which starts on page 19 of the appendix in paragraph two on page 19.
You said I -- what you're seeking which is a temporary restraining order on -- to prevent the sale or distribution to private racially segregated schools on the counties and then over on page 22 when you set down the -- your prayer for relief, you were asked for an injunction against the distribution of textbooks to students in schools unless those schools first established that the private school is racially integrated both as to students and faculty.
Now to me, those mean two separate things.
In other words, I should suppose that a school could in fact have nothing, but Negro children and yet not be a segregated school, but certainly it would not be an integrated school.
A school could in fact have nothing but white children and yet it could -- it might not be a segregated school although clearly it would not be an integrated school.
To me those are two quite, one is different concept from the other and they both appear here in your complaint.
Mr. Melvyn R. Leventhal: Your Honor we agree with that distinction the Court makes.
However, what we’re trying to get out is subterfuge, alleged policies of open admissions.
Now in the Green versus Kennedy case, a three-judge District Court established a series of requirements that private schools would have to satisfy in order to be eligible for tax exempt status.
The record shows, according to Commissioner Thrower that there are five or six academies which have qualified for tax exemption which by -- which only the most naive would consider truly open.
The Indianola Academy for example has satisfied the requirements of Green versus Kennedy.
The Indianola Academy is presently a tax exempt institution.
If you look at our brief, page 18, you will find an analysis of what occurred in the Indianola school district.
The Indianola Academy presently enrolls all white children residing in the municipality of Indianola and that academy’s enrollment tripled in the middle of the school year immediately upon this Court's decision in Alexander versus Holmes County.
Now we submit that what we’re really getting at here in trying to establish a standard for a private academy is to be certain that the standard of proof of open admissions is very, very high that there is no excuse for IRS’ approval of the Indianola Academy as a school with an open admissions policy.
According to IRS data, there are at least ten schools which are clearly segregationists which are presently tax exempt not withstanding Green versus Kennedy.
Justice Potter Stewart: In Mississippi?
Mr. Melvyn R. Leventhal: Yes Your Honor, one of them is Indianola Academy.
Justice Potter Stewart: Well, there's ten but you talked about a 107?
Mr. Melvyn R. Leventhal: I’m saying that as long -- we agree with the Court's distinction that a school can be in fact segregated and not be segregationist.
At the same time, we ask the Court --
Justice Potter Stewart: How could be in fact all Negro or all white and yet have an open permissions policy?
Mr. Melvyn R. Leventhal: Yes Your Honor, we concede that.
Justice Potter Stewart: And what do you understand in the meaning of racially integrated both as to students and faculty, to mean?
Mr. Melvyn R. Leventhal: We view that as the standard of proof that ought to be required of the school like the Indianola Academy.
If the Indianola Academy says it has an -- it says has an open admissions policy, it ought to prove it not with merely the policy but with an integrated student body (Voice Overlap) --
Justice Potter Stewart: As to have what, how many?
Has to have at least some students and some faculty of both races, is that --
Mr. Melvyn R. Leventhal: Yes Your Honor.
Justice Potter Stewart: At least some, is that your --
Mr. Melvyn R. Leventhal: Yes Your Honor.
Justice Potter Stewart: And is this true about not only on the Indianola Academy but everyone of the private schools in the State of Mississippi, no matter how long they’ve been there and how well established their policy might be?
Mr. Melvyn R. Leventhal: No.
I think we’ve got to read that requirement in conjunction with other historical data.
You see we have a network of private schools in Mississippi which were formed at a critical moment or which expanded enrollment at a critical moment and I’m referring to a standard to be applied to such academies.
Chief Justice Warren E. Burger: Are you using the term in your complaint at page 22, the term integrated as synonymous with desegregated, in pursuing your points with Justice Stewart as I’m not quite sure of your answer.
Mr. Melvyn R. Leventhal: Yes Your Honor.
Chief Justice Warren E. Burger: In other words, if that can be read as though the word integrated were stricken and the word desegregated were inserted, is that the way you want us to read it?
Mr. Melvyn R. Leventhal: Yes Your Honor.
Chief Justice Warren E. Burger: That’s what you intend.
Mr. Melvyn R. Leventhal: That’s what we requested.
Justice Byron R. White: But the District Court held it irrelevant anyway (Voice Overlap) --
Mr. Melvyn R. Leventhal: Yes Your Honor.
Justice Potter Stewart: Yes.
Justice Byron R. White: Isn't that what you're objecting to, let say, the District Court said the – it doesn’t make any difference whether they have an open policy or closed policy, books can go to any school.
Mr. Melvyn R. Leventhal: That’s right.
Justice Byron R. White: That was the holding?
Mr. Melvyn R. Leventhal: Yes, that’s correct and in fact --
Justice Byron R. White: And now, if let’s assume we did not agree with that holding, are you asking us to say that on the other -- there on the other end of the spectrum that it's irrelevant whether any of these schools have an open admission policy?
Mr. Melvyn R. Leventhal: Oh!
No sir, by no means, by no means.
Now we want to make it clear that our objective is to eliminate textbook aid to segregationist academies or segregated academies.
The question of what standard should be applied to determine what is a segregated academy is not essential to our lawsuit by no means.
Chief Justice Warren E. Burger: Do you concede the possibility that some of these schools might be able to make a showing that they had an open admissions policy?
I’m simply saying a possibility.
Mr. Melvyn R. Leventhal: Conceive -- Yes Your Honor, conceivably.
Justice Byron R. White: Are you suggesting that in order that a District Court in order to keep an order, an integration order from being frustrated that order children not to move to a private school even it had an open policy?
Mr. Melvyn R. Leventhal: No Your Honor.
Justice Byron R. White: You’re not?
Mr. Melvyn R. Leventhal: No sir.
We are recognizing in this litigation the right of children to attend segregated schools.
We are challenging their right to attend such schools with state aid.
That’s the thrust of our lawsuit.
Justice Harry A. Blackmun: Mr. Leventhal, am I correct, is there not in the record an intimation that some 41 schools did not participate in this textbook program?
Mr. Melvyn R. Leventhal: Yes, Your Honor.
Justice Harry A. Blackmun: Is that of any significance?
Do you know why were they denominational schools for instance supported something else or what?
Mr. Melvyn R. Leventhal: Your Honor, it’s conjectural.
It’s just as the defendants suggest that it means that they’re not important.
I could suggest one that several academies receive textbooks until recently and in anticipation of this lawsuit decided, it would be best to withdraw from the program to avoid the shock of an adverse decision.
So that -- why these 41 schools don’t participate would be --
Justice Harry A. Blackmun: What kind of a shock, not the financial one certainly?
Mr. Melvyn R. Leventhal: Your Honor the -- a school which grows dependent upon a particular type of aid might be reluctant to wait for a decision of this Court which they believe would be adverse to withdraw from the program.
In fact there’s nothing in this record which would indicate that any private school has stated that the textbooks are unnecessary or undesirable.
There is no evidence one way on the other on why these schools do not receive the textbooks.
Chief Justice Warren E. Burger: Thank you, thank you gentlemen.
The case is submitted.