Amicus Curiae Brief — Brown v. Board of Education

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INDEX

Preliminary statement ................. ieeeuee seveveveece

ETE oe whwschecdsyeenss

Ob on coos eweeeéeecteevveseeeweus

II. When the children named as complainants should be ad-

mitted into nonsegregated schools ................0000.

III. The elimination of racially segregated schools ..........

A. Normal geographic school districting and choice of

DEC Tso sbeedebereeeeeereddecuteceseceees

Sid ea vedlerreleweuebéekiee

C. Integration of these schools can and will be successfully

CTC e Dl Wicked be woe eed eeaaebeeddeddeeeas 7

D. The law versus lawlessness ...................0000- 11

le ce ce nina’ 11

I. What this Court’s decree should contain ............... 12

II. The principles which should govern any ‘‘gradualism”’

EPPS PSP POP er TTT TLL ETT TELE TELE EEP Tre T rere 13

III. The ‘‘voluntary’’ method of gradual adjustment ........ 14

IV. ‘‘Gradualism’’ by the judiciary is unnecessary ........ 15

TABLE OF AUTHORITIES

CASES:

ey F, DO, BOO DO: BH. BI CIBGE) nos ca cicccicccecvcsvcecccvevs 16

Barrows v. Jackson, 346 U. 8S. 249 (1953) ............ccc cc cecec eens 16

Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28 (1948) .............. 16

Brotherhood of Railroad Trainmen v. Howard, 343 U. S. 768 (1952) .. 16

Buchanan v. Warley, 245 U.S. 60 (1917) ..............cee cence 4,11, 16

Caen T. 2OGNs, Baw O, BW, BOS CIDER) 0. oc cae cccecsvciscscvecennees 16

City of Richmond v. Deans, 281 U.S. 704 (1930) .......... 0. cece eee 16

District of Columbia v. John R. Thompson Co., Inc., 346 U. S. 100

i ee dehuuecsaseoed 9, 16

Ez parte Virginia, 100 U. S. 339 (1880) ............ ccc cece cc ceee 16

Farrington v. Tokushige, 273 U. S. 284 (1927) ........... ccc cee ceee 6

Graham Vv. Brotherhood of Locomotive Firemen § Enginemen, 238 U. 8.

Ce ES Oe ee ee Pe re er ee eee 16

re Wy es PM Ws Ws OO CEI ioioig cece ccoccuscvucsdcecensy 16

ii Index Continued

Se > SE ee ee Oe ee CED eve cecewieexerensenedesbiededave

ee Oo a Se se Ee ED odd cer x02 bb ewsvevs~eserveosesus

ee Be Tre ee Ee Ge GD 8s orn ng cncccunseyerecuacivenes

McCabe v. Atchison, T. §& S. F. Ry. Co., 235 U. S. 151 (1914) ......., 4

McLaurin v. Oklahoma State Regents, 339 U. S. 637 (1950) ........ 2,16

Missouri ex rel. Gaines v. Canada, 305 U. 8. 337 (1938) .............. 4,16

Mitchell v. United States, 313 U. S. 80 (1941) ................0.008, 4,11

Morgan v. Virginia, 328 U. B. 373 (1946) 2... ccc ec ccccccccccccccces 16 ,

Oyama v. California, 332 U. 8. 633 (1948) ........ cc ccccccccccccece 16

Pierce v. Society of Sisters, 268 U. S. 510 (1925) ...............005.. 6

Piossy 7. Fergueon, 168 0. B. GBT (IGD6) «onc ccccssevcssccvecececes 2,3

Railway Mail Ass’n. v. Corsi, 326 U. S. 88 (1945) ...................,

Rice v. Elmore, 165 F. (2d) 387 (C. A. 4, 1947), cert. den. 333 U. 8.

EN uw busWere dor eURe rere eer rer thedeneteRuesreners 16

Scinet ¥. Davis, SIG TD. GB. GES CIGD) osc cccccccscssvssevevseceses 16

Shelley ¥. Kraemer, 334 U. B. 1 (1048) 2.2... cccvccccccccscese 3, 4, 11, 16

Sipuel v. Board of Regents, 332 U. 8. 631 (1948) ...............0008. 4,16

Smith vy. Allwright, 321 U. 8. 649 (1944) ....... cc ccc ee ccc cccccces 16

Sawcatt ¥. Patator, 300 O. B. GED (I0GR) 2. ccccvccscccsccccvcesove 2,5, 16

Takahashi v. Fish & Game Comm., 334 U. S. 410 (1948) ............ 16

Torey t. Mens, BES GT. GB. GE CGE) oo cccccvesccesscsssvvvvewevers 16

United States v. Appalachian Elec. Power Co., 311 U. 8. 377 (1940) .... 15

Vitals ©, Bares, Bee GG Bee CD . ove ccsdvcccwicvesidenecenvvs 16

Vis Wo Vv. Mogktag, 156 UV. GB. BEG (ICCB) .n occ ccvccvcvsvecvcssvevsce 16

MISCELLANEOUS: |

Bustard, Joseph L., The New Jersey Story: The Development of Racially

Integrated Public Schools, 21 J. of Neg. Ed. 275 (Summer 1952) .... 17

D. C. Superintendent of Schools, Report of, to the Board of Education,

RE Oe Oe er et re Oe ee pee 10

Frank, Can Courts Erase the Color Line?, 21 Journ. of Neg. Ed. 304

i dab odoeniueen diweebeeoes Kener Taber baN wenn Ckeee ee ones 11

Hearings, 1954 D. C. Appro. Bill (H.R. 5471), Senate Comm. on Appro.,

ee CB OO hts denies conde cbeveneeneedessatexndtegnses g

Indritz, Phineas, Racigl Ramparts in the Nation’s Capital, 41 George-

Gown: Law Dome. THe Cieaees TOG) ong oon voce cw ccwcavesecvencceens 8

Jans, Ralph T., Racial Integration at Berea College, 1950-1953, 22 J. of

i ee ee ee OD ince kari ares cree den dt ouaeedacnwe 16

Racial Violence and Civil Rights Law Enforcement, 18 U. of Chi. L.

i ae ane bio eisedes Dhiese dd beeerele ates dbinsesesere ee ll

Time Magazine, When the Barriers Fall, p. 40 (Aug. 31, 1953) ........ 16

Wachingten Poot, p. 1 (Mov. 86, 19GB) oc. ccciccccccvcocccecesceue 8

Wertham, Frederic, Psychiatrie Observations on Abolition of School

Segregation, 26 J. of Educ. Soc. 333 (March 1953) ............... » &

a nal a ad - lad ss ee as a

OP RR

Supreme Court of the United States

OCTOBER TERM, 1953

BROWN. et al., Appellants

Vv.

BOARD OF EDUCATION OF TOPEKA. t No. l

SHAWNEE COUNTY. KANSAS. et al..

Appellees

BOLLING. ei? al.. Petitioners

No. 8

v.

SHARPE, et al.. Respondents

GEBHART. et al.. Petitioners

No. 10

v.

BELTON. et al., Respondents

ON RE-ARGUMENT

—————

BRIEF OF

AMERICAN VETERANS COMMITTEE. INC. (A. V. C.)

Amicus Curiae

PRELIMINARY STATEMENT

The American Veterans Committee, Inc., is a nation-

wide organization of veterans who served honorably in the

Armed Forces of the United States during World Wars I

and II, and the Korean Conflict. During the 1952 Term,

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we filed briefs, with consent of the parties, in two of the

five school segregation cases now on reargument before

this Court pursuant to the Court’s order of June &, 1953

(345 U.S. 972). Brown v. Board of Education of Topeka,

No. 8, and Bolling v. Sharpe, No. 413, both in October Term,

1952. In those briefs we urged the following points:

(a) That racial segregation imposed by State law in

public schools violates the equal protection guarantee of

the Fourteenth Amendment even where the discriminatory

effect of the segregation can be described as solely

psychological.

(b) That compulsory racial segregation in public schools

cannot be supported under any proper test.

(c) That even if the Plessy postulate of ‘‘reasonable”’

racial segregation were applicable to public schooling and

had any vitality at present,’ the segregation in these cases

is unreasonable and therefore unconstitutional under the

Plessy rule itself.

(d) That the right guaranteed by the Fourteenth

Amendment to be free from racial discrimination by

governmental authority is so basie to our free society as

to have become a right constitutionally accorded to free

men under the Due Process clause of the Fifth Amendment

to be free from arbitrary racial discrimination by the

Federal Government or agencies acting under its authority,

including the District of Columbia government.

(e) That this Court’s 1950 decisions in the Sweatt and

McLaurin cases, dealing with racial segregation in educa-

tion at the graduate school level, require the elimination

of racial segregation in public schools at the levels of

1 Our Brief in the Brown case last term (No. 8 then, No. 1 now)

reminded this Court that analyses dissecting the unsound founda-

tions of the majority opinion in Plessy v. Ferguson, 163 U. 8S. 537

(1896) are contained in the Briefs of the American Veterans Com-

mittee and the United States filed in the case of Henderson v.

United States, 339 U. S. 816 (1950), No. 25, Oct. Term, 1949.

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education involved in the present cases (elementary, junior

high, and senior high, school), inasmuch as the racial

segregation at any of these levels produces educational

handicaps for the colored students.

(f) That equality of educational opportunity cannot be

achieved within a racialiy segregated system.

(g) That the people are ready for and will accept racial

integration in the public school systems.

In this brief on the reargument, we shall seek to present

answers only on questions 4 and 5.

We have conducted researches on questions 1 and 2

(relating to the history of the adoption of the Fourteenth

Amendment) which convince us that it was intended to

forbid in every portion of our United States every distine-

tion and difference in treatment by or under govermmental

authority which is based on race or color, and to make our

Constitution, as Mr. Justice Harlan memorably described

it, a Constitution which ‘‘is color-blind, and neither knows

nor tolerates classes among citizens.’’ Plessy v. Ferguson,

163 U. S. 537, 559 (1896).2, But we do not here recite the

evidence or spell out the history—other briefs proffered

to this Court will undoubtedly do so profusely.

As to question 3, we believe that our previous briefs in

these cases adequately present our argument that this

Court has the judicial power, and the duty, in construing

the Fourteenth Amendment and its application to these

cases, either directly or through the Due Process clause

?The late Mr. Chief Justice Vinson stated this understanding

for a unanimous “ourt as follows in Shelley v. Kraemer, 334 U. 8.

1, 23 (1948) :

‘The historical context in which the Fourteenth Amend-

ment became a part of the Constitution should not be forgot-

ten. Whatever else the framers sought to achieve, it is clear

that the matter of primary concern was the establishment

of equality in the enjoyment of basic civil and political rights

and the preservation of those rights from discriminatory ac-

tion on the part of the States based on considerations of race

or color.’’

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of the Fifth Amendment, to abolish racial segregation jy

publie schools.

QUESTION 4

“4. Assuming it is decided that segregation in

schools violates the Fourteenth Raicnbeees —_

(a) would a decree necessarily follow providing that,

within the limits set by normal geographic school dis.

tricting, Negro children should forthwith be admitted to

schools of their choice, or

(b) may this Court, in the exercise of its equity powers,

permit an effective gradual adjustment to be brought about

from existing segregated systems to a system not based on

color distinctions?”

The assumption on which question 4 is based is that this

Court has ruled that racial segregation in publie schools

violates the Constitution and that the Negro children in

these cases are entitled to education in nonsegregated

schools,

I. THE NATURE OF THE RIGHT

This Court has repeatedly held, in cases involving racial

discrimination, that the constitutional rights asserted by

an individual against whom the racial discrimination has

been imposed by governmental authority are ‘‘personal”

rights, not group rights to be merged and averaged with

the rights of all others of his race and then balanced

against the rights of all white persons averaged as a group.

Henderson v. United States, 339 U. S. 816, 825-826 (1950) ;

Shelley v. Kraemer, 334 U. 8. 1, 22 (1948); Mitchell v.

United States, 313 U.S. 80, 97 (1941); Buchanan v. Warley,

245 U. S. 60, 80 (1917) ; McCabe v. Atchison, T. & S. F. Ry.

Co., 235 U. S. 151, 161-162 (1914); Missouri ex rel. Gaines

v. Canada, 305 U. S. 337, 351 (1938). This Court has also

ruled that the education which a State must provide for

a Negro ‘‘in conformity with the equal protection clause

of the Fourteenth Amendment’’ must be provided for him

‘‘as soon as’’ it is provided for any white person. Sipuel

v. Board of Regents, 332 U. 8S. 631 (1948). These rulings

were epitomized when this Court unanimously characterized

the right to secure public education without uncon-

stitutional racial discrimination as ‘‘ personal] and present.’’

Sweatt v. Painter, 339 U. 8S. 629, 635 (1950).

ll. WHEN THE CHILDREN NAMED AS COMPLAINANTS

SHOULD BE ADMITTED INTO NONSEGREGATED

SCHOOLS.

In view of the rulings mentioned above, when this Court

holds that racial segregation is unconstitutional, the Negro

children who are complainants in these cases have a

constitutional right to enter the schools which, on the basis

of their age, educational level, residence, and other proper

scholastic criteria, they could and would enter if they were

labeled ‘‘white’’ instead of ‘‘colored.”’ If the decision

comes after the beginning of a school term, their right to

equal (unsegregated) education ‘‘as soon as’’ ethers may

have it becomes a right to enter that school not later than

the beginning of the school term immediately following the

entry of this Court’: mandate. Therefore, the minor

Negro complainants in these cases should be allowed to

enter the schools, and at the time, mentioned in this

section.

II. THE ELIMINATION OF RACIALLY

SEGREGATED SCHOOLS.

In the light of the answer in the preceding section, and

since all the cases here involved are class actions, we

interpret questions 4 and 5 as being directed, not to the

admission of the Negro children whose names appear in

the pleadings in these cases, but to the general matter of

eliminating racially segregated publie schools.

A. Normal geographic school districting and choice of

schools.

Question 4(a) seems to imply that a decree ordering

admission of Negro children into schools heretofore

attended solely by white children must necessarily refer

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to normal geographic school districting and/or to

admission of the children into ‘‘schools of their choice.”

The administration of public school systems is not, and

need not by this Court be, thus limited. These cases do not

involve modes of administering the public schools, except

at one point: that the governmental authorities make no

racial distinctions between children in the operation of the

publie school system.

The easiest way to operate a normal public school system

without racial distinctions is by assigning children to

schools according to their residence within normal geo-

graphic school zones. It is a factual, impersonal, and tra-

ditional criterion in administering public schools. It tends to

reflect the normal neighborhood pattern, it permits easier

programming of school and community needs, and it avoids

the imbalance between schools which results from unre-

strained migration of pupils. Nevertheless, we do not con-

tend that the Constitutional guarantee of equal protection

of the laws requires that boards of education be compelled

to admit children into schools solely on geographic bases, or

that the boards be compelled to permit, or be enjoined from

permitting, each child to ‘‘choose’’ which of several public

schools he will attend. Cf. Pierce v. Society of Sisters,

2968 U. S. 510 (1925); Farrington v. Tokushige, 273 U. S.

284, 298 (1927). These are matters of public school

administration which are committed to the sound judgment

of school officials; they are not matters to be regulated by

judicial decree.

We say only that the public school authorities, no matter

what distinctions they draw based on educational factors,

community residence, local circumstances, or _ other

grounds, may not distinguish between children on the basis

of their racial ancestry. Accordingly, we recommend that

this Court’s decree, issued upon the holding that racial

segregation in the public schools is uneonstitutional,

(a) simply forbid the school authorities from making

racial distinctions or differences in treatment on the basis

of race or color, by way of segregation or otherwise, in the

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administration of the public school system, and (b) make

no requirements, one way or the other, with respect to

geographic school zones or choice by children as to which

school they will attend.

B. When is “forthwith.”

Question 4(a) refers to the ‘‘forthwith’’ admission of

Negro children into public schools (presumably schools

previously attended solely by white children). We do not

understand the word ‘‘forthwith’’ as meaning the day after

this Court’s decree is issued. Even the best run school

system will require some time to adjust its records,

facilities and other administrative affairs from the

artificial patterns imposed by the segregated system to an

integrated system which deals with children as children

rather than as colors ranging from Caucasoid pink to

ebony. Presumably, however, this Court will announce

its decisions in these cases during Term time which

generally has been between October and June. We would

suppose that the school authorities in these eases could

make the necessary adjustments during the months pre-

ceding the opening of schools in September.

We have no doubt, if an additional school term is re-

quired to enable the school authorities to change from the

segregated to an integrated system, that the equity power

of our judicial system is sufficiently comprehensive and

flexible to permit such an adjustment. But we urge that

if this Court frames its decree to permit the court of first

instance to allow such additional time, the decree

specifically impose upon the school authorities the burden

of proving, by substantial and probative evidence pre-

sented to that court, the need for such additional time.

C. Integration cf these schools can and will be successfully

achieved

We cannot visualize what unusual circumstances may

require delay in integration beyond the opening of the

school term following this Court’s announcement of its

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decisions that segregation in public school education js

unconstitutional. The Delaware’ schools involved jp

No. 10 (Gebhart vy. Belton) are now integrated and operate

without difficulty; and the Attorney General of Delaware

candidly concedes that the Delaware authorities ‘‘do not

anticipate any serious problems of adjustment’’ (Brief for

Petitioners on Reargument in Gebhart v. Belton, No. 10,

p. 44). The Kansas schools involved in No. 1 (Brown y,

Board of Education of Topeka) ean admittedly be in-

tegrated without difficulty; not only did the Assistant

Attorney General of Kansas say so last Term at the Bar

of this Court, but the Board of Education of Topeka has

already integrated some of the schools here involved.

The District of Columbia picture is equally clear. We

are confident, on the basis of close and considerable

analysis of, and experience with, the District of Columbia

milieu, that integration of its dual school system could,

when the legal bars are removed, proceed rapidly, peace-

fully, and suecessfully. Indeed, so rapidly has integration

advanced in the District that public school segregation is

quite out of tune with the rest of the community.®

Intimations that violence beyond the control of the

District of Columbia.authorities would result from de-

segregation of its schools, such as were contained in the

brief filed last Term by the respondents in the Bolling

ease referring (at p. 23) to ‘‘attitudes which are

antipathetical to the co-mingling of the races in schools

or otherwise’’ and stating that ‘‘racial tensions exist and

racial clashes have occurred considerably further north,”’

are simply without substance.

It is significant that this Court’s recent decision ending

racial segregation in the public restaurants of the District

3 Phineas Indritz, Racial Ramparts in the Nation’s Capital, 41

Georgetown Law Journ. 297 (March 1953). Just yesterday (Nov.

25, 1953) the District Commissioners issued an Order forbidding

racial distinctions, in practically all agencies under their direct

control, concerning employees and use of public facilities and

services. Washington Post, p. 1 (Nov. 26, 1953).

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of Columbia was followed by complete acceptance of non-

segregation without any disturbances’ or friction.

District of Columbia v. John R. Thompson Co., Inc., 346

U. S. 100 (June 8, 1953).

The District’s peaceful acceptance of integration in other

equally ‘sensitive’? areas such as swimming pools,

theatres, private and parochial schools, parks, play areas,

department stores, ete., in all public buildings, and in many

other areas of daily living, demonstrates how flimsy is any

intimation of possible violence. See article cited in foot-

note 3.

Indeed, the school officials of the District of Columbia

have already devoted considerable study to the ‘‘plans,

procedures and techniques of transition from’’ the

segregated to a nonsegregated system if and when this

Court decides that racial segregation in public schools is

unconstitutional.4 The Superintendent of D. C. schools

- ‘In our previous Brief (pp. 7-8, in Bolling v. Sharpe, No. 413,

Oct. Term, 1952) we suggested that the District of Columbia

Board of Education ‘‘is striving to mitigate the many racial in-

equalities in the school system.’’

We now confess error as to this statement. We had relied on

the accuracy of the self-serving statements by the Superintendent

of Schools that all possible efforts were being made to eliminate the

shortages of teachers and other inequalities in Division 2 (colored).

Events during the past year make it appear that the Board’s

efforts are simply to relieve the extraordinary pressures of the

most glaring deficiencies in that Division. They are not intended

to ‘‘equalize’’ the facilities between Division 1 and Division 2. This

has been admitted by the Superintendent of Schools. See Hearings

on 1954 D. C. Appropriation bill (11.R. 5471), Subcom. of Senate

Comm. on Appro., 83rd Cong., Ist sess., p. 172. Even if they would,

the District authorities cannot follow in the footsteps of those

State authorities who seek to avoid the legal repudiation of the

Plessy doctrine by promising to spend millions of dollars to pro-

vide ‘‘separate and equal’’ facilities. A charitable view, perhaps,

is that the District Board of Education realizes that equalization

is impossible within the segregated system and therefore is simply

marking time until this Court removes the legal bar to integration.

The result, however, is that the Board has sloughed onto this

Court the burden and responsibility for establishing moral treat-

ment of the District’s school children which the Board itself ought

to carry.

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characterized as ‘‘very helpful’’ and ‘‘thoughtful’’ the

160 written statements submitted by ‘‘the organized

citizenry of Washington’’ when the Board of Education

invited ‘‘statements expressing their ideas on the

mechanics of integration of the schools should the present

system of segregation be abolished by the Supreme Court’s

decision, and also on the methods to be employed to

educate the public for any change which may be required.”

‘“‘The Superintendent and the officers will not be

unprepared in the event that major changes mm the organ-

ization are required.’’ Public Schools of the District of

Columbia, Report of the Superintendent of Schools to the

Board of Education, 1952-1953, pp. iii-iv (emphasis

supplied).

The other two cases here involved, which arise from

Virginia and South Carolina, do not require different

treatment by this Court. Significantly, although the

appellees in the Virginia case (Davis v. County School

Board of Prince Edward County, No. 4) stated that

segregation was designed to prevent violence and reduce

resentment, they frankly admitted that ‘‘The passage of

time has removed violence and substantially removed

resentment in Virginia.’’ Brief for Appellees, No. 191,

Oct. Term, 1952, p. 17. In South Carolina, integration

of the public schools will involve a greater emotional ad-

justment than in the other cases. But we believe the

people of South Carolina can and will make that adjust-

ment. The events of World War II and its aftermaths

have in the past several years brought about a vast

reorientation of the community attitudes which formerly

buttressed racial segregation. More and more, the people

of the South are striving to discard the discriminations

which grew from previous prejudices.“ In ever growing

48 A notable example was the election, in the spring of 1953, of a

Negro (Dr. Rufus E. Clement, President of Atlanta University)

to the Board of Education of Atlanta, Georgia. He carried 8 of

the City’s 9 wards, in an election where the white voters outnum-

bered the colored voters, 92,000 to 18,000.

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degree it is apparent that they would travel even faster

toward that objective were it not for the lag of the law.

South Carolinians respect the Constitution. They will,

under a positive ruling by the highest Court of the land

that racial segregation is unconstitutional, comply with

that ruling in their public schools. The more positive the

ruling, the greater will be its acceptance.

D. The law versus lawlessness.

In any event, the possibility of local incident due to

racial friction, would provide, as this Court has time and

again reiterated, no relevant legal basis for depriving law

abiding persons of their legal rights. Buchanan v. Warley,

245 U. S. 60, 80-81 (1917); Mitchell v. United States, 313

U. S. 80, 97 (1941); Shelley v. Kraemer, 334 U. S. 1, 21

(1948). The Constitution does not surrender to

hooliganism; and there is no need to do so. Racial Violence

and Civil Rights Law Enforcement, 18 U. of Chi. L. Rev.

769 (1951); Frank, Can Courts Erase the Color Line?, 21

Journ. of Negro Edue. 304, 309-310 (1952).

QUESTION 5

“5. On the assumption on which questions 4(a) and (b)

are based, and assuming further that this Court will exer-

cise its equity powers to the end described in question 4(b),

(a) should this Court formulate detailed decrees in

these cases;

(b) if so, what specific issues should the decrees reach:

(c) should this Court appoint a special master to hear

evidence with a view to recommending specific terms for

such decrees;

(d) should this Court remand to the courts of first in-

stance with directions to frame decrees in these cases,

and if so what general directions should the decrees of

this Court include and what procedures should the

courts of first instance follow in arriving at the specific

terms of more detailed decrees?”

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I. WHAT THIS COURT’S DECREE SHOULD CONTAIN

This Court should not undertake, either itself or

vicariously through a special master, a detailed study of

local conditions and educational problems such as would

be necessary to formulate the specific terms of decrees

which will foresee and meet every possible contingency

concerning the many individuals and_ circumstances

involved in the readjustment of school districts, educational

methods, patterns of pupil attendance, ete., to meet the

over-riding requirements of the Constitution. Such

problems, if submitted to the judicial ken at all, are

properly the initial concern of courts of first instance

which, whatever their lack concerning great constitutional

issues, are more appropriate tribunals for dealing with

local problems. But even the courts of first instance ean-

not meet all problems in an identical way. Differences in

facts and unforeseen circumstances may compel variations

in approach, both in substance and procedure. We there-

fore think this Court should remand these cases to the

courts of first instance with only the following directions:

(a) That the courts of first instance order and enjoin

the respective boards of education:

(1) to admit and educate the named minor com-

plainants in these cases, if then qualified in all respects

that a white child would be qualified, and without

regard to his race or color, in such school as a white

child similarly situated would be admitted and

educated; the admission to be made at the beginning

of the school term immediately following the issuance

of this Court’s decision.®

(2) to refrain, in the administration of their

respective school systems, from making any dis-

5 Such a provision would apparently be moot in No. 1 (Brown

v. Board of Education of Topeka) and No. 10 (Gebhari v. Belton),

to the extent that the complainants in those cases have already been

admitted to unsegregated education.

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tinction, or providing any difference in treatment or

education, solely on the basis of race or color, with

respect to any pupil or any child who seeks admission

in any school as a pupil; this injunction to become

effective immediately prior to the beginning of the

school term next following the issuance of this Court’s

decision.

(b) That the court of first instance retain jurisdiction

of the cases, at least duriug the period of transition, to

deal, upon motion by ciher side, with any special

problems which may arise in complying with the provisions

mentioned above.

II. THE PRINCIPLES WHICH SHOULD GOVERN

ANY “GRADUALISM” POLICY.

The suggestions and recommendations we have just

made are based on the thesis that effective adjustment to

a nonsegregated system does not require detailed

administrative supervision by this Court or any special

limitations to slow down the normal functioning of its

decree. But if this Court determines that ‘‘an effective

gradual adjustment . . . to a system not based on color

distinctions’? requires slower implementation of its

decision holding racial segregation in public schools

unconstitutional,® we urge that this Court apply such

‘“‘gradualism’’ policy in a manner (a) that would not

deprive any individual child of its personal and present

rights under our fundamental Charter of Liberties, and

(b) that would not serve local bodies with an. excuse for

interminably dragging their heels.

® As indicated above, we assume that Questions 4 and 5 were

intended to apply to the admission, not of the named complainants,

but only of those members of the class not named as parties in

these cases. In any event, we think that the principles mentioned

in the text of this section require granting to the named com-

plainants the relief urged in section II of our answers to Question

4. To delay the complainants’ enjoyment of their rights after this

ce has announced their rights would be to deny them their

rights.

0. (gate voce

Bivens RT nent nae

14

Ill. THE “VOLUNTARY” METHOD OF

GRADUAL ADJUSTMENT.

One method which may slow down the process of

integration without violating the rights of individual

children, or operating on a 1000 years schedule, is to

permit school boards to operate without readjustment

until such time as children desiring integrated education

apply for admission to schools hitherto attended by

children of another race. In many areas, there may be a

diffdence to voluntary mixing of school children hereto-

fore separately educated which may result in slower

integration than would occur where the compulsory school

attendance laws are invoked to aid integration. When a

child applies for admission to a _ school theretofore

attended by children of other races, the process of re-

adjustment to integration will and should begin. What-

ever problems may arise can and should be dealt with

then. The duty of the school authorities is to maintain

orderly school programs without regard to race or color,

and to refrain from denying admission to any child in any

school, and from treating any child differently, at any

time, on the basis of race or color.

One advantage of this ‘‘voluntary’’ method of achieving

gradual adjustment is that it would lean heavily on the

state of readiness each local community may have for

integration. One of its disadvantages would be the

tendency to substitute the irresponsibility and uncertainty

of ‘‘mores’’ for orderly application of the compulsory

school laws in the context of constitutional requirements.

All other methods of gradual adjustment to racial in-

tegration of the public schools which we have considered

either violate one or both of the principles mentioned in

the preceding section, or are, we think, appropriate only

for administrative or community action. Thus, procedures

such as integrating only a limited and specific number of

schools, or grades, per year, would wholly disregard the

rights and needs of individual children seeking non-

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15

segregated education. Moreover, authorizing such

arbitrary methods would encourage evasiveness and

procrastination in conforming to the requirements of the

Constitution. The techniques of intercultural education,

use of media of mass communication, training of police,

teachers and administrators, etc., are obviously not

appropriate for utilization in judicial decrees.

We repeat and stand firm on our recommendations (a)

that this Court refrain from formulating detailed decrees

in these cases either sua sponte or upon recommendations

by a special master, and (b) that the task of monitoring

‘‘gradual adjustment’’, if it is to be undertaken by the

judiciary, be delegated to courts of first instance with their

larger familiarity with local conditions, subject to appellate

review of any error committed.

This Court’s decrees should, we urge, follow the

principles discussed above, but not attempt beyond that

to cireumscribe narrowly either the terms of the lower

courts’ decrees or their procedures in arriving at specific

terms. We concur with the Attorney General of Delaware

that ‘‘the details’’ of gradual adjustment ‘‘cannot be

worked out in a vacuum; and if this Court, or any lower

Court, should attempt at this time to work out a general

scheme, it would probably create more problems than it

would solve.’’ Brief for Petitioners on Reargument in

Gebhart v. Belton, No. 10, p. 44. The dynamics of integra-

tion require much flexibility; and it is elementary that

‘‘courts deal with concrete legal issues, presented in actual

cases, not abstractions.’?’ United States v. Appalachian

Elec. Power Co., 311 U. S. 377, 423 (1940).

IV. "GRADUALISM” BY THE JUDICIARY

IS UNNECESSARY.

We desire to emphasize that the above suggestions con-

cerning ‘‘gradual adjustment’’, sincerely made by us to

aid this Court if it chooses to follow such a policy, are not,

in our opinion, indispensable for effective adjustment to

16

integrated education. We think it is unnecessary for this

Court to espouse a formal policy of ‘‘gradualism’’ now,

It was not deemed necessary, and its absence produced

no difficulties, when this Court decreed the end of racial

discrimination, whether by segregation or otherwise,

in voting,’ interstate travel,’ land ownership,’ D. 0,

restaurants,” employment,’ graduate education,” jury

service," ete,

Experience shows that ‘‘wherever segregation has been |

abolished, no blood has flowed.’"* The experience of

public school integration in New Jersey following the

adoption in 1947 of a constitutional provision forbidding

segregated schools is particularly instructive. Desegrega-

tion was by constitutional command. Of many different

methods used in the various communities to integrate the ;

i Oe ee

oAtre

7 Smith v. Allwright, 321 U. 8. 649 (1944); Schnell v. Davis, 336 U. 8. 933

(1949); Terry v. Adams, 345 U. 8. 461 (1953); Lane v. Wilson, 307 U. S. 268 ‘

(1939) ; Rice v. Elmore, 165 F. (2d) 387 (C.A. 4, 1947), cert. den. 333 U. 8. ,

875 (1948).

8 Henderson v. United States, 339 U. S. 816 (1950); Morgan v. Virginia,

328 U. S. 373 (1946) ; Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28 (1948).

9 Shelley v. Kraemer, 334 U. S. 1 (1948); Hurd v. Hodge, 334 U. 8. 24

4 (1948); Buchanan v. Warley, 245 U. S. 60 (1917); Harmon v. Tyler, 273

4 U. S. 668 (1927) ; City of Richmond v. Deans, 281 U. 8S. 704 (1930); Barrows

7 v. Jackson, 346 U. S. 249 (1953) ; Oyama v. California, 332 U. S. 633 (1948).

: 10 District of Columbia v..John R. Thompson Co., Inc., 346 U.S. 100 (1953).

11 Railway Mail Ass’n. v. Corsi, 326 U. S. 88 (1945); Vick Wo v. Hopkins,

118 U. S. 356 (1886) ; Takahashi v. Fish ¢ Game Comm., 334 U. S. 410 (1948) ;

Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U. S. 232

(1949) ; Brotherhood of Railroad Trainmen v. Howard, 343 U. S. 768 (1952).

12 Sweatt v. Painter, 339 U. S. 629 (1950); McLaurin v. Oklahoma State

Regents, 339 U. S. 637 (1950); Sipuel v. Board of Regents, 332 U. S. 631

(1948); Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938).

13 Ex parte Virginia, 100 U. S. 339 (1880); Virginia v. Rives, 100 U. S.

313 (1880); Hill v. Texas, 316 U. 8. 400 (1942); Cassell v. Texas, 339 U. 8.

282 (1950); Avery Vv. Georgia, 345 U. 8. 559 (1953).

14 Time magazine, When the Barriers Fall, p. 40 (Aug. 31, 1953); Frederic

Wertham, Psychiatric Observations on Abolition of School Segregation, 26 J.

of Edue. Soc. 333 (March 1953); Ralph T. Jans, Racial Integration at Berva

College, 1950-19538, 22 J. of Neg. Ed. 26 (Winter 1952).

Ci tt OU ae ote re ope elietas ha

LEELA OTE: BP ALOT I ISEB ALO IE PT ERT CITI EEE 5S MENG TE WT

BLEED THROUGH

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17

public schools, no single formula outranked the others in

effectiveness. What the New Jersey experience proved

was ‘‘that the best way to integrate is to do it.’’*

Respectfully submitted,

AMERICAN VETERANS CommitTTez, Ino.

Amicus Curiae

By Purneas Inprirz

National Counsel

American Veterans Committee

November 30, 1953

Washington, D. C.

15 Joseph L. Bustard, The New Jersey Story: The Development of Racially

Integrated Public Schools, 21 J. of Neg. Ed. 275, 285 (Summer 1952).