Petition for rehearing denied
How later courts described this case
- Petition for rehearing denied
Written by the judges who cited it.
The opinion
ON PETITION FOR REHEARING IN NO. 13905
PER CURIAM.
In a petition for rehearing the School District of Greenville County insists that this court must have some discretion to consider the consequences of an immediate reassignment of the pupils in the system and to permit their reassignment to be postponed until September 1970, in light of the special conditions of this case.
It is alleged in the petition that approximately thirty-three per cent of the Negroes in the schools are now in integrated situations, and that all of the other Negroes are attending all-Negro schools as a matter of their choice. There is no suggestion in the record that exercise of the freedom-of-choice extended Negro pupils and their parents has been impaired by fears of economic or other retaliation, or by community hostility. It is true, also, that a general reassignment of 58,000 pupils and their teachers at this time of year will occasion great disruption, and that much educational advantage may be lost through the process of readjustment. The court, however, was not unmindful of these things at the time of entry of its order.
At the time of the hearing in this case, a majority of the court was of the opinion that Alexander v. Holmes County Bd. of Educ., 396 U.S. 19 , 90 S.Ct. 29 , did not foreclose this court from postponing the reassignment of children and teachers to September 1970. The majority read Alexander in light of the cases then before the Supreme Court and of the fact that those school districts had the advantage of the Christmas vacation period within which to make the necessary plans and arrangements for the general reorganization of the schools required by the Supreme Court, a very important circumstance which is wanting here. The majority was prepared to file an order authorizing the reorganization to be accomplished by September 1970 and completion of the current school year under the present plan, when the Supreme Court spoke again.
The majority’s reading of Alexander was foreclosed by the Supreme Court’s opinions in Carter v. West Feliciana Parish School Bd., 396 U.S. 290 , 90 S.Ct. 608 , 24 L.Ed.2d 477 (January 14, 1970). In that case the Supreme Court had before it many school districts, which had not been before it in Alexander , and it ordered a general reorganization of all of those districts by February 1, 1970. It is true that those school districts had been ordered in December 'to plan for that contingency, but the final order was not entered until January 14, 1970, and physical rearrangements and readjustments could not have commenced earlier.
More importantly the Supreme Court said emphatically it meant precisely what it said in Alexander that general reorganization of school systems is requisite now, that the requirement is not restricted to the school districts before the Supreme Court in Alexander , and *198 that Courts of Appeals are not to authorize the postponement of general reorganization until September 1970. Specifically, the Court of Appeals for the Fifth Circuit was reversed for doing just that.
The requirement is emphasized by the separate opinion of Mr. Justice Harlan, in which Mr. Justice White concurred, in which it was suggested that every school district should have a maximum of eight weeks within which to effectuate a change to a unitary school system after the necessity for such a change was judicially determined. Their suggestion of an eight-week period was specifically rejected by four of the Justices, and no one of those six intimated the possibility of any allowable exception to the Court’s declaration that the lower courts could not authorize the postponement of reassignments until September 1970. * The Chief Justice and Mr. Justice Stewart in their memorandum expressed the view the lower courts should have the discretion we are now urged to assume, but their view clearly did not carry the day in Carter .
The proper functioning of our judicial system requires that subordinate courts and public officials faithfully execute the orders and directions of the Supreme Court. Any other course would be fraught with consequences, both disastrous and of great magnitude. If there are appropriate exceptions, if the District Courts and the Courts of Appeals are to have some discretion to permit school systems to finish the current 1969-1970 school year under current methods of operation, the Supreme Court may declare them, but no member of this court can read the opinions in Carter as leaving any room for the exercise by this court in this case of any discretion in considering a request for postponement of the reassignment of children and teachers until the opening of the next school year.
For these reasons the petition for rehearing and for a stay of our order must be denied.
Petition denied.
We need not now consider what discretion this court might have in a case which reached it only a few weeks before the end of the current school year. This case was in the bosom of the court when the opinions in Carter were announced. There has been no lapse of time which conceivably could warrant our departure from what we take to be Carter’s explicit direction to us.