Amicus Curiae Brief — Brown v. Board of Education

Supreme Court brief1954

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{HAROLD B. WILLEY, Cler

IN THE

Supreme Court of the United States

Octoser Term, 1954

No... A.

O.iver Brown, ET AL., Dororxy EK. Davis, et aL.,

Appellants, Appellants,

v. v.

Boarp oF EpucaTion oF County ScHoot Boarp oF

Topeka, SHAWNEE CovuNn- Prince Epwarp County,

TY, KANSAS, ET AL. VIRGINIA, ET AL.

Harry Bnriaes, Jk., ET AL., Frances B. GEBHART, ET AL,

Appellants, Petitioners,

v. v.

R. W. Ex.iort, ET Au. EruHE.t Louise BEuTton, ET AL.

AMICUS CURIAE BRIEF OF THE

ATTORNEY GENERAL OF FLORIDA

Ricnarp W. Ervin

Attorney General of the

State of Florida

State Capitol Building

Tallahassee, Florida

Ratpex E. Opum

Assistant Attorney General

State of Florida

IN THE

Supreme Court of the United States

OctosE:i TERM, 1954

Bel icsicetiiinteninee

OLIvER Brown, ET AL., Dororuy E. Davis, ET AL.,

Appellants, Appellants,

v. v.

Boarp oF EpucaTION OF County ScHoo.t Boarp or

Topeka, SHAWNEE CouN- Prince Epwarp County,

ty, Kansas, ET AL. VIRGINIA, ET AL.

Harry Briges, Jk., ET AL., i'kances B, GEBHART, ET AL.,

Appellants, Petitioners,

v. v.

R. W. Exuiort, er au. ETHEL Lovisr BELTON, ET AL.

AMICUS CURIAE BRIEF OF THE

ATTORNEY GENERAL OF FLORIDA

Ricuarp W. Ervin

Attorney General of the

State of Florida

State Capitol Building

Tallahassee, Florida

Rautpy E. Opum

Assistant Attorney General

State of Florida

Subject Matter Index

nt CINE... usieinernenapniyeintonncnieneneennmmionionae: 1

PART ONE

A Discussion of the Reasons for a Period of Gradual

Adjustment to Desegregation to be Permitted in Florida

with Broad Powers of Discretion Vested in Local School

Authorities to Determine Administrative Procedures...... 3

A. The Need for Time in Revising the State Legal

SUTIN Sos capianibicheaiesatebaianditaegipuntasderianaiociniansaaieanneatets 5

I. Examples of Legislative Problems .................... 7

RR SS Seo eR 7

(b) Powers and Duties of County School

IIIT atscestilssesialeneccaiacdcicahisbaeniaianianstbastatiiaietlaaianiasitene 10

SUITED siiheilinsacinceslanmitieetintannnsiiitaniaintandninnehitis 12

II. Discussion of Legislative Attitudes .................0 14

B. The Need for Time in Revising Administrative

NIE sassiatisduvatiididnstniniensctinicsenialeeniinlesitierinatinieiabistinde 17

Bi SITTIN cso casedicriclesisrnceeneeesidesipeesnnindasinadbeciliaaddonianion 18

a sicchlcisisteasldantlepesoneneiniaiy 18

De IIIT sscircindsrccsieestateeiiaiilouanisansiiestician 19

(d) Health and Moral Welfare .............c:ccccceses00e 20

C. The Need for Time in Gaining Public Acceptance.. 23

I. A Survey of Leadership Opinion .............cce:e0000 23

IT. General Conclusions ..............ccccccssssessssssesssssssseeees 24

I IIIIIIIIND sicctilsnbissaiiasnentenselntsionanupiiasantesl 32

A Note on Responses of Legislators .............::+0+ 33

Bee Te OR TIONS svtcteccrncintennmenenmne 34

Se: SEINE | siclestisisasnnsiteneenessibceesinenpdiaiecuteneninoraicedintesutiecin 34

BTID TE IEG secesccteitnincercnisianiccisensentoniscenane 41

a INE I SII -ptcnncsdcinisiamsaneioeiiinssiininidanicennsnnsiniecadiaiicane 43

Sa UII a orsiacleeaiisiaidc nu vniliasennenioneiieasoainiie 53

a aia 55

PART TWO

Specific Suggestions to the Court in Formulating a

ID acaceaiinaniicegeiettsecnenntcictnntnnscctdinseinianinsinanpicemmnmuniiiantinn 57

I asl als ieatcalnigbsiataniiinidimaincs 59

; Se III ssssssresnsissiaptednetathnnentnieteteniednunieciincsdese 61

PART THREE

i Legal Authority of the Court to Permit a Period of

Gradual Adjustment and Broad Powers of Administra-

tive Discretion on the Part of Local School Authorities.. 67

A. Judicial Cases Permitting Time ............cccsceeeeees 69

F I. United States v. American Tobacco Coo. .............. 69

: II. Standard Oil v. United States «cscs 70

3 III. Georgia v. Tennessee Copper Co. ........:c:ccccceseeeeees 72

State of Georgia v. Tennessee Copper Co., etc..... 72

é IV. State of New York v. State of New Jersey, ete... 75

V. Martin Bldg. Co. v. Imperial Laundry ................ 75

B. Administrative Discretion Cases ...........:.ccccceseseeeeesees 77

I. United States v. Paramount Pictures .................. 77

II. Alabama Public Service Commission v. Southern

NIN MPAA siectscrnonsesssisshcaninsniivininisinnensianinsvinneee 78

People of the State of New York v. United

TTIIIIT cusiemscinashdtesiapaituanemmatiaaibdebaienisoipeecvusuainiiienie 79

ee Rs GT GE OR. cetintrtectotscttemiceninaitiietene 80

BLEED THROUGH

Page

IV. Far Eastern Conference, United States Lines

Co., etc. v. United States and Federal Mari-

I BS entecectnctaboniensepnieitonsniannlanevinsinseiinienitinsiin 82

VY. Minersville School District v. Gobitis .................. 82

Fe I Fi Fee Be ccerensonserecrevensserenervenenesionn 83

ie I Oe IID ciipeieprcenesasverenntionnentinesnintiinies 84

VIII. Euclid v. Ambler Realty Co. oc cccceeeesseneeeeeee 84

ie BUI Saiedicaercopncichinsebannnineventisnittinenniesiitdteniniticsinninininsaitinailid 85

PART FOUR

Considerations Involved in Formulating Plans for

IID sitrvncsianienisceisossestiscesubntinanicaeasiniesittiiniasnainthautecstiimiints 87

i I IE sccercetnectnccectitinivicnevemimcntanecsicuminsastibisien 89

PB Eee 91

PART FIVE

SUTIUEUIEITTIIEN siscitsiseascsitudidesitsckeninaceeiabiaacededeiniaisnihbiciabiaibiinintitctadsiainaniaii 97

ili

Rae a eT Wi ies eokes a | 5 r

£5 ee ee Cee eae

Appendix A

Page

RESULTS OF A SURVEY OF FLORIDA LEADER.

SHIP OPINION ON THE EFFECTS OF THE U. §&.

SUPREME COURT DECISION OF MAY 17, 1954,

RELATING TO SEGREGATION IN FLORIDA

EET I A ARR EES. ARE SOOO 99

IID <inscnpcrrenbinmninininediniinnntiiinnnimepienniitenmuneene 101

Attorney General’s Research Advisory Committee for

the Study of Problems of Desegregation in Florida

IIIT: sccistsstictcncicinenseseshecreninedsnitinceuapileriiniitntiatuventmcneninsvstenee 102

THE REPORT AND THE CONCLUSIONS .................... 105

ee IID siernteratinnccichinsenmmnceettiacememnnnicnmin 107

LEADERSHIP OPINION BY QUESTIONNAIRE—

ED setirsetnciniescnsnicnerciieciniencnttininneiiinautiennns 113

LE 115

Questionnaire Returns and Method of —— hvianieaiel 116

IEEE cctnertctccndtipienniinnnementipenemnnmnernnennienete 118

II as seiccnensininialippnanninannnenscentnnmnvnnies 124

ID Gr RN IOD ccncceresenitemeenternennnmnvennenin 126

EEN ET eT ET 127

Oe 129

Ie GRR ccccrcreeecscercentiiprnreremcentinmmncrnmninen 132

Table 1—Questionnaires Sent as Returned,

iF UID ccccsereciteeectenemnarintencntilieontnguscdinitan iddenainincaveneed 135

Table 2—Per Cent Expressing Various Attitudes

Towards Decision, by Groups .......-.....:csseccsseeeeeeees 136, 137

Table 3—Per Cent Agreeing or Disagreeing with

Ge Dettstem, Bey QOGGG cccesneccccenstttipunicmnnnnnnnsvnenenns 138

Table 4—Per Cent Willing or Unwilling to Comply

with Courts and School Officials, by Groups............ 139

BLEED THROUGH

yyy

Page

Table 5—Per Cent of Hach Group Predicting Mob

Violence and Serious Violence ..........cccccsscesseeseeseees 140

Table 6—Per Cent of Each Group Doubting Ability

of Peace Officers to Cope with Serious Violence.......... 141

Table 7—Per Cent of Each Group Who Believe

Peace Officers Could Cope with Minor Violence........ 142

Table 8—Per Cent of Groups Polled Who Believe

Most of Other Specified Groups Disagree with the

IIIT scisincesclhitineisteinlaieinihiiendiabiialns teisinnrtancathiatigtapiviatesiiniinmnentsinn 143

Table 9—Per Cent of Each Group Designating

Various Methods of Ending Segregation as Most

SI ciattiiciimatanernmnemieemnnteninnnnionnnenntn 144

Table 10—Per Cent of Each Group Designating

Specified Grade Levels as Easiest Place to Start De-

IE Sieasetnpcsecietheriicanneinientenrsinanintttonnanieviemenenietie 145

Table 11—Per Cent of Each Group Designating

Various Problems as Being Likely to Arise................ 146

Table 12—Confidence of Peace Officers in Ability

to Cope with Serious Violence, by Attitude Towards

INU: cisidstipuisiiactersenimantaiubsanssiiesimonictinieniiimreniaies 147

Table 13—Confidence of Peace Officers that Police

Would Enforce School Attendance Laws for Mixed

Schools, by Attitude Towards Desegregation............ 147

Table 14—Per Cent of Peace Officers Expressing

Various Attitudes, by Region

Table 15—Per Cent of White Principals and Super-

visors Agreeing or Disagreeing with the Decision,

By SD eectiercnalnteceticeecenentecniadecninrhicienninniniatimmtiiovenetiiies 149

Table 16—Per Cent of White Principals and Super-

visors Willing or Unwilling to Comply, by Region....149

Table 17—Per Cent of Peace Officers Predicting

Co 150

Table 18—Number and Per Cent of Peace Officers

and White Principals and Supervisors Predicting

Serious Violence, by Region ...........cccccseseseseseseseseeeeees 150

Page

Table 19—Number and Per Cent of Peace Officers

and White Principals and Supervisors Doubting

that Peace Officers Could Cope with Serious

IN Hi PIII crradacibincnnsccenisnicsnsesrsisiaitenenecincsiine 151

Table 20—Number and Per Cent of Legislators

: Favoring Each of Five Possible Courses of Legisla-

siceickstrtcencisiccie Sikdapeel dabeitisienletacdiuaenditibanesasina 152

LEADERSHIP OPINION BY PERSONAL INTER.

VIEW—AND CONCLUSIONS .0000.0.....ccccccccceeeeeeeeeees 153

I a hd iaticiicdenstvlnnsbenenscbiinnn 153

I cai ocs aeiaseaes eterno caeomipuaiacceepinceiinnsonies 154

UN diacetate catiariaaseileecchden ted ecautelgie cetdsedbsethdiaauinnasiiios 155

The Personal Interview Schedule ................c:ccccccceeeeeseeees 160

rn a occrciicemnigicoccilenenteanintmeiees 162

Reliability of Judgments in the Analysis of Recorded

Interviews on the Subject of the Supreme Court’s

REET Hib aS Pec aR dBRL TE ERB A so hog

i SUNN INE iio oles denn creccaskacseenooeansinios 164

° Table 1—Per Cent Agreement Between Judges......167

4 Table 2—Frequencies of Ratings of Interviewee

4 PN i GB OE BE cecstseneciesinncsicsncatiasibamenteetenectains 168

4 Table 3—Frequencies of Ratings of Interviewee

3 eerie Wr FE SEE BEY oeccsessiesssececeveeiersnseseerntennsnns 169

4 Table +—Frequencies of Ratings of Interviewee

id NS NF rE OF Bi precisiesircetetceecteensiciennecrtseesienns 170

; Table 5—Frequencies of Ratings of Interviewee

g yo lg eS UE ie 8 ee 171

4 Table 6—Frequencies of Classification of Interviews

3 BN EE farias cs chanta ceca aid beaieaareooneananns 172

5 Table 7—Frequencies of Classification of Interviews

& ee I SII TB ectttceensteicenaninaiscriveansecternneeestiersieee 173

y Table 8—Frequencies of Classification of Interviews

af 8 Fe neeen ee Ome 174

Table 9—Frequencies of Classification of Interviews

ek Be eee eee 175

Page

ANALYSIS OF NEGRO REGISTRATION AND

VOTING IN FLORIDA, 1940-1954... ceeeees 177

Summary Sheet of Attorney General’s

Questionnaire, July 15, 1954.00... ccsesssssssssseseenenees 180-184

EXISTING PUBLIC SCHOOL FACILITIES IN

FLORIDA AND FACTORS OF SCHOOL ADMINIS.

TRATION AND INSTRUCTIONAL SERVICES

AFFECTING SEGREGATION 0.00.0... ccccteceeteeeee 185

IE I IE ciitiieretreretncntetmerntarek 189

Counties with No Negro High Schools..............cccceseeee 191

Examples of Inter-Racial Cooperation ............:cscsse 191

Table 1—Summary of Expenditures—all funds—

RSE NEN RUN RL en Ie eNO 193

Table 2—Significant Trends in the Growth of

Florida Schools under Dual System of Education

Se Te IE ceca senienas eats scchacieooearcebminicaicmnncececdiaeanedes 194

Be ee I recins ccceasiaseicssuipsieunsstiabiniceesatbncaigaaiiase 195

Table 4—Comparison of Percentile Ranks for White

and Negro Examinees in the Florida Statewide

Twelfth-Grade Testing Program Spring 1949

I IN SN pics ncis ctcctectunieceonnaennindionen 196

Table 5—Counties with No Negro High School

SEIU: sencinteseseniteen inlitodcxcisdpehicamakntaanccdsioabntamieveiaigandendnn 197

Table 6—Status of Elementary Principals 1953-54....198

Map—Amount and Per Cent of Nonwhite Popu-

IRIE TI ccincenccscnicesadinibiiaancdinndineiaishcgsabionianpinsieien “akaaniania 199

Map—Proportion of Negro Enrollment to Total

Enrollment by Counties 1952-53 .........scsesceeeeseeeeees 200

AN INTENSIVE STUDY IN DADE COUNTY AND

NEARBY AGRICULTURAL AREAS— AND CON.

REESE SEER CRN TCE RENEE 201

ERIN eae OPE ET ee en ee 201

Factors Indicating a Gradual Approach as the So-

SN id ac ca soreesuetmeanieeaeeareael 204

PN, , RTT 207

“ot Te

Appendix B

Page

EXAMPLES OF FLORIDA’S CONSTITUTIONAL,

STATUTORY AND STATE SCHOOL BOARD

REGULATORY PROVISIONS RELATING TO

SITTIN shishonncsisnicessncvionssinnsinisomenenionliniepeseniainnmmninsiantennane

NEES AS BERGE I Ue 5

a ARMALIE yctage TR SSRs

rag 4 S58 hie esa ce ge

ORME REE 0. ath eaeieie’s & Bx ik

stiae

cS oe et ee tx ae ype we

; i a nate GPa a ley id athe eh tic oe

I A aca ene 213

ASS aE EY TNE 215-218

State School Board Regulations ..............cccseeees 219-243

Table of Authorities

Alabama Public Service Commission v. Southern Rail-

way Company, 341 U.S. 341, 95 L. Ed. 1002, 71 S. Ct. 762

I cacdechtessanseacartoetacireenapoeadaaasesicaaiiacenianaizaiaaagiamn aiaiacatiee

Barbier v. Connolly, 113 U.S. 27, 5 S. Ct. 357, 28 L. Ed.

Se CGD eiicastseiniciinischevesecsaersssccatiniohiapeiensiaaipitsilsiiiaieasmaiaaceaien

Burford v. Sun Oil Co., 319 U.S. 315, 87 L. Ed. 1424, 63

ee COED inittenecrscinesiectiasaiccicninnnteeineanenenieonniomadiiiaan

Cox v. New Hampshire, 312 U.S. 569, 61 S. Ct. 762, 85

Re Be BO ee eeesinicisctsineutentinntnnicnaaaitainaiiinn

Buclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114,

pe _, RRE ESRC ct norte ARE PTE Ce aS

—— 2 ee

Page

Far Eastern Conference, United States Lines Co., States

Marine Corporation, et al. v. United States and Federal

Maritime Board, 342 U.S. 570, 96 L. Ed. 576, 72 S. Ct.

IE cetaarincinteidinceetednerdstenentemnrsarernenienniteaseteeminicnetenernieanien 82

Georgia v. Tennessee Copper Co., 206 U.S. 230, 51 L. Ed.

a SD netdaisteccstireseeienescsusitinionenserovincinienretniis 73

Martin Bldg. Co. v. Imperial Laundry Co., 220 Ala. 90,

ee I aces eicicinichasenartensentnnipinniniaimiinniciuienstonienavienees 75

Minersville School Distict v. Gobitis, 310 U.S. 586, 60 S.

Ss Ge eG SE, SUE CED ivemeiicsmsnsesisvcnsinnsvisiiesceveeens 56, 82

New York v. United States, 331 U.S. 284, 334-336 (1947).. 79

New Jersey v. New York, 283 U.S. 473, 75 L. Ed. 1176,

51S. Ct. 519 (1931) ; 284 U.S. 585, 75 L. Ed. 506, 52 S. Ct.

120; 289 U.S. 712; 296 U.S. 259, 80 L Ed. 214, 56 S. Ct.

BR Sakata acislieicencieiaieninigienaiiin basciniiniaiicpetapseantensiivmnmtmmminicns 70, 71, 72

People of the State of New York v. State of New Jersey

and Passaic Valley Sewerage Commissioners, 256 U.S.

296, 65 L. Ed. 937, 41 S. Ct. 492 (1921)....c.ccccccscsersssecsesereses 75

Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed.

SM IE SS SE El 6, 55

Benith v. Allwright, S21 U.S. G6D.....0..0.0.s.cossssssssesssossesssevenses 177

Standard Oil Co. v. U.S., 221 U.S. 1, 31 S. Ct. 502, 55

Oe i isciiictietsicsniednisnameniannnneniion 70

State of Georgia v. Tennessee Copper Co. and Ducktown

Sulphur, Copper & Iron Co., Ltd., 237 U.S. 474, 59 L. Ed.

1054, 35 S. Ct. 631 (1915); 237 U.S. 678, 59 L. Ed. 1173,

35 S. Ct. 752 (1915) ; 240 U.S. 650, 60 L. Ed. 846, 36 S. Ct.

Oa scaisnianininatanintiiomnene 73, 74

United States v. American Tobacco Co., 221 U.S. 106, 31

I I I I isc cssesnesnasutnwnvennen 69

United States v. Paramount Pictures, 334 U.S. 131, 92 L.

I aa ceicccinncceiceesmmmnveneeovorenen 77

EDS SUSO, gheies LER iT

Sie at —

UNITED STATES LAW

26 State at L., 209, Ch. 647, USC Title 15, §1

RII IED cea caencbcemmesaisiepmahianiietanananbassnnbignnssitel 70

FLORIDA CONSTITUTION AND STATUTES

Art. 12, Sec. 1, Florida Constitution ..............ceseeeeeeees 213

Art. 12, Sec. 12, Florida Constitution.................. 5, 6, 15, 213

BOC. Z2EUO, Wlorida Btatates .....cccevssesevseesvosessessccsvesveccevesens 215

Oe. FIV.07, Peril BRAtWtes ..<.cccescecsrscecovevsessvcensevereseses 12, 215

OC. BEPUG, PUCTIGR BERG oiccenccenscssesvevsescivesesevarsoveseee 12, 216

Soc. BZ9.1G, Mlowida Btatates .........ccccccccocsceoseessescovssesses 13, 216

BE, Te, Br RUIIE CIID wvcctiiececececesreesvarveeesnninerenevons 13, 217

Sec. 250.23, Florida Statutes ......c..cccsesssevesserceseveseesrseseees 10, 217

Sec. 239.41, Florida Statutes. ......cececcesscccsssesscecovsoees 7, 8, 9, 218

Be, A, Br IIIT CII Soiiectleccicsdiioceininnsinreteseneaticcetenenines 41

STATE SCHOOL BOARD REGULATIONS

The Calculation of Instruction Units and Salary

Allocations from the Foundation Program.................. 13, 219

Administrative and Special Instructional Service......13, 220

Units for Supervisors of Instruction 0.0.0.0... 13, 221

Establishment, Organization and Operation of Small

IIIT ci cs Scares ace atoaceeene strepeceniceteneshisvehbionaeeesiinbbeiastcemsinnnetion 225

School Advisory Committees. .............sscssssssesssssssseeseees 13, 226

Qualifications, Duties and Procedure for Employment

of Supervisors of Instruction ................ccccssssscsssseseneeeess 13, 228

I cicada aihiastaaletenanignenenl 13, 232

The Distribution of General Scholarship..................... 13, 235

I CII osittincectrrcrssesvenisenistinneieciverecerretcinniniaies 240

BLEED THROUGH

Page

Scholarship for Preparation of Teachers and House and

I III cieivestcnicrtervitiniictiiininnsteiniommmncinnncenandh 241

State Supervisory Services..............0scvsvevecseoesesseessseserorsens 13, 242

TREN GE IN os cacivcitcsicisncrimnsininrnimsrecenenennnenniian 243

MISCELLANEOUS

Ashmore, Harry S., ‘‘The Negro and the Schools’’........ 34, 39

Carter, Hodding, Reader’s Digest, September 1954, p. 53.. 20

Clark, Kenneth B., ‘‘Findings,’’ Journal of Social Issues,

Fi es 6 Ca ie cacinetertiicitencconnindintinnntiineita 25, 109

Dietrich, T. Stanton, Statistical Atlas, Florida’s popula-

tion; 1940 and 1950; Research Report No. 3, Florida State

SE ce IIE secciescesietncieenstanersaniaedinetninnsiciniieeniiasianii 189

Emory University Law School, Journal of Public Law,

Fae Be Fe BG Fy Binnecnsnsceicrmarsenncecninnremnnvnininniieent 37, 38, 89

Florida Facts, Florida State University, School of

ee SINE cserrcssasiicmacisnsvcieniciienrnaniensiieniassiessetniieibnit 32, 124

Florida State Board of Health, Annual Report 1953,

Supp. No. 1, Florida Vital Statistics.................csssseseeees 21

Florida State Board of Health, Annual Report 1953,

Supp. No. 2, Florida Morbidity Statistics 1953, Table

BON eke A, i siesintintdaddaecebanetiedeapieteilicsienusisntiaamnanctnnaniadenilaietnainit 21

Katz, Daniel and Hadley Cantril, ‘‘Public Opinion

Polis,’’ Sociometry, I (1937), 155-179 ........cccsscsssseseossessssees 116

Psychol. Bull., 1949, 46, 433-489 ..........ccscccccssccersreesssserssserees 166

Semi-Weekly Floridan, Tallahassee, Florida, April 23,

SE I Be Girvcnitsiaelaaesyicirnabciilsaceahseatsinbiatbaibianbniddliienlaibeibasciine 95

State of Florida, Biennial Report, Superintendent of

BP FemmUr WC BOS ascites cseswicisetsrtesntceonscvsvewcrentnstitins 32

The Antioch Review, VIII (Summer 1948), 193-210........ 128

‘‘The Impending Crisis of the South,’’ New South, VITI,

No. 5, (May 1953) (Atlanta: Southern Regional Coun-

eae <A e LP LE OND TE 105

Preliminary Statement

This amicus brief filed by the Attorney General of the

State of Florida pursuant to permission granted by the

Court in its decision of May 17, 1954, in the above cases, con-

tends that the Court should resolve its implementation de-

cision in favor of the propositions stated in questions 4B

and 5D.

The Court will find from a study of this brief that a sin-

cere and thorough effort has been made by the Attorney

General of Florida to present reasonable and logical an-

swers to questions 4 and 5. These answers are respectfully

submitted by way of assistance to the Court and are based

upon a scientific survey of the factual situation in Florida,

embracing practical, psychological, economic and socio-

logical effects, as well as an exhaustive research of legal

principles.

However, in filing this brief in answer to the hypothetical

questions propounded, the Attorney General is not inter-

vening in the cause nor is he authorized to submit the State

of Florida as a direct party to the instant cases. Neither can

his brief preclude the Florida legislature or the people

of Florida from taking any legislative or constitutional ac-

tion dealing with the segregation problem.

Part One

A discussion of the reasons for a period of

gradual adjustment to desegregation to

be permitted in Florida with broad pow-

ers of discretion vested in local school

authorities to determine administrative

procedures.

tS Stig oy 5: .

A. The Need For Time

In Revising The State

Legal Structure

There is a need for reasonable time and planning by

State and local authorities in any revision of the existing

legal structure of the State of Florida, (which now provides

an administrative framework for the operation of a dual

system of public schools) in order to provide a legal and

administrative structure ir which compliance with the

Brown decision can be accomplished in an orderly manner.

Examples of Florida constitutional, statutory, and state

school board regulatory provisions related directly or in-

directly to segregated public schools are set forth in Ap-

pendix B.

The basic change which must be made if Florida is to

comply with the non-segregation decision is either a repeal

or revision of Article XII, Section 12, of the Florida Con-

stitution, which provides:

“‘White and colored; separate schools ——White and

colored children shall not be taught in the same school,

but impartial provision shall be made for both.’’

This provision in the basic law of Florida has been in

existence since 1885. During the past 69 years it has been

rigidly observed and has provided the foundation for an in-

tricate segregated public school system, in accord with so-

cial customs which cannot be changed overnight without

Wii in eine A aA RN AR AIRE in Tt et tsa eat tng bred Siisnitns

aE Sect a i Meat

IG AEA ROALD DN 8

completely upsetting established school administrative pro-

cedure in school planning, transportation, teacher employ-

ment, capital outlay, districting, scholastic standards, pub-

lic health, school discipline as well as many other facets of

the tremendously complicated school structure in Florida.

Assuming that the basic law of Florida pertaining to a

dual system of schools (Art. XII, Section 12, of the Florida

Constitution) is rendered nugatory by the decision of this

court in the Brown case, the Florida ‘egislature must re-

vise the entire School Code of Florida to the extent that the

present code is predicated upon a dual system of education,

and all administrative procedures which have developed

under said code are grounded on the fundamental principle

of a segregated system. A simple repeal of the various

statutory and administrative procedures now provided for

the operation of the school system (which may prove to be

in conflict with the Brown decision) could only result in the

creation of a vacuum in methods of school administration.

The consequent immediate inrush of turbulent ideas into

this vacuum without legal guidance or administrative regu-

lation might well cause a tornado which would devastate

the entire school system.

This system has grown through the years since the es-

tablishment of the ‘‘separate but equal’’ doctrine by the

Court in the Plessy v. Ferguson case (163 U.S. 537), into

a mammoth and intricate system of public education in

Florida involving the annual expenditure of $138,895,123.15

and the welfare of 650,285 children. We do not believe that

this system, which took over half a century to develop, can

be transformed overnight.

The bare mechanical process of enacting legislation re-

quires reasonable time for study by legislative committees,

the time depending upon the complexity of the problem, and

must conform to the legally established time for convening

the legislature. On a problem of the magnitude of the one at

“eee

issue, the study of legislative committees must be preceded

by exhaustive study on the part of school officials and citi-

zens’ educational committees in order that the legislature

may have the benefit of their recommendations.

I. EXAMPLES OF LEGISLATIVE PROBLEMS

(a) Scholarships

An example of the type of legislative problem which must

be considered by school officials and the legislature is con-

tained in Section 239.41, Florida Statutes.’

This law at present provides for 1,050 scholarships of

$400 each year for students desiring to train for the teach-

ing profession.”

According to the State Department of Education, award-

ing of the scholarships is done on a basis of county repre-

sentation, race, and competitive test scores of psychological

and scholastic aptitude. A compilation of the scores of the

740 white twelfth grade applicants in the Spring of 1954

yielded an average score of 340. Compilation of the 488

Negro twelfth grade applicants yielded an average score

of 237. In the previous year, 1953, 664 white applicants

made an average score of 342 while the Negro applicants

made an average score of 237. This difference is classified as

very significant, and should be interpreted as meaning that

factors other than chance explain the different results be-

tween white and Negro scores.

In view of the wide divergence in achievement levels be-

tween the white and Negro races, as demonstrated by the

scholarship examinations, and desiring to make these schol-

arship opportunities available to students of both races, it

1. See page 218, Appendix B.

2. See page 235, Appendix B.

_ was recognized that provision would have to be made

_ whereby Negro students would not have to compete against

_ white students for these awards. Therefore, the legislature

Geeta. ww aa hr Ree nL eS

of Florida provided that the scholarships should be ap-

portioned to white and Negro applicants according to the

ratio of white and Negro population in the counties. Only

in this way can Negro students in this state be assured of

receiving a proportionate share of state scholarships

awarded on the basis of competitive examinations.

If the Court’s decision in the Brown case is to be inter-

preted that no distinction can be made on the basis of race

in the operation of Florida’s school system, it is apparent

that Section 239.41, Florida Statutes, will have to be re-

vised if the state is to continue its policy of encouraging

Negro as well as white students to enter the teaching field.

It is apparent that the overall problem of teacher short-

ages cannot be solved immediately by law. It can be solved

eventually by provisions such as Section 239.41, Florida

Statutes, which is calculated to sncourage a larger number

of people to qualify themselves as teachers. If Section

239.41, Florida Statutes, is revised, however, to preclude

immediately any recognition of a difference in scholastic

achievement between Negro and white applicants for teach-

er scholarships, such revision would make it virtually im-

possible for the great majority of Negro students in

Florida to receive scholarships, and from an economic stand-

point they form the group of potential teachers who need

such assistance most.

The problem can be solved, however, by time, without

working an undue hardship on Negro students or creating

an even greater shortage of teachers in Florida.

Dr. Gilbert Porter, Executive Secretary of Florida State

Teachers Association had this to say on the subject in

addressing a meeting of Negro teachers in Tallahassee on

August 19, 1954:

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ee i

‘It is of no avail to blind ourselves to the marked

difference in scholastic achievement between white and

Negro students. This difference is not our fault, but it

is there and must be recognized. If the doors to the

state white universities were thrown open to Negro

students today, it would make little difference because

a great majority of Negro students could not pass an

impartial entrance examination. We, as Negro teach-

ers, can provide the only solution to this dilemma if

given a reasonable amount of time, but it will mean an

absolute dedication to his work on the part of every

Negro teacher. Negro teachers can close the gap be-

tween Negro and white students if they will work hard

enough. We have come a long way already in closing

that gap and it can be closed completely within the

foreseeable future if we will work hard enough. Any

Negro teacher who is not willing to dedicate himself to

this purpose should step out of the way because he is

standing in the way of the progress of our race. Either

we must remove this difference in scholastic standing

or admit that we are inferior—and I will die and go

to the hot place before I will ever admit that I am

inferior.”’

Whatever is done by school officials and the Florida

legislature to fit the Florida teacher scholarship act (Sec.

239.41, Florida Statutes) into the framework of the new

concept of a non-segregated school system enunciated by

the Court, should take into consideration the human rights

and legal equities of members of the Negro race who would

like to enter the one professional field which is now open to

them on a large scale, and which they are now not only

invited but urged to enter on a basis of absolute economic

and professional equality. A strict legal application of the

principle that no distinction can be made on the basis of

race in public schools would necessarily have to ignore

practical and human factors as they now exist which are

of fundamental importance to the operation of a public

school system in Florida. One thing is apparent. No equi-

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Ro a

table and workable solution can be found unless sufficient

time is permitted by the Court in the application of its

decree abolishing segregated schools, to allow for an abate-

ment of the problems involved ard an equitable adjustment

by the school system to so drastic a change in its basic

structure.

(b) Powers and Duties of County School Boards

The problems which will necessarily confront the Florida

legislature in revising the provision of Section 230.23,

Florida Statutes,’ alone, are so involved and complicated

if practical questions of school administration are to be

considered, that no immediate solution is feasible.

Section 230.23, Florida Statutes, provides the powers and

duties of county school boards and establishes a framework

within which they may authorize schools to be located and

maintained. It provides in part:

‘*Authorize schools to be located and maintained in

those communities in the county where they are needed

to accommodate as far as practicable and without un-

necessary expense all the youth who should be entitled

to the facilities of such schools, separate schools to

be provided for white and Negro children; and approve

the area from which children are to attend each such

schools, such area to be known as the attendance area

for that school... ”’

Bearing in mind that this provision of the law has been

followed throughout the development of the Florida school

system and the location of schools decided in accord with its

intent, a simple repeal of this provision would provide no

systematic guide or formula for local school boards to fol-

low in attempting to redesign and reorganize the dual sys-

1. See page 217, Appendix B.

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tem now in operation, which at present involves real estate

estimated to be valued at $300,000,000 and a current build-

ing program now under way involving from $90,000,000 to

$100,000,000,* into a single non-segregated system.

The conversion of this $300,000,000 school plant into a

non-segregated system will clearly take a great deal of

planning if the old primary factor of racial segregation is

removed in school location, construction and operation.

The State Department of Education reports? that:

‘*Florida provides annua!ly $400 per instruction unit

for Capital Outlay needs which for the 67 counties

totaled $9,451,600 in 1953-54 and has been computed

at $10,199,448 for the 1954-55 estimate. This money is

spent in each county according to the needs recom-

mended by a state-conducted school building survey.

With the help of these individual county surveys it was

estimated as of January, 1954 that $97,000,000 will be

needed to provide facilities for white children and

$50,000,000 will be needed to provide facilities for

Negro children. Since the activation as of the effective

date January 1, 1953 of a Constitutional Amendment

providing for the issuance of revenue certificates by

the State Board of Education against anticipated state

Capital Outlay funds for the next thirty years more

than $43,000,000 in state guaranteed bonds have been

issued to provide additional facilities for both races.

By the fall of 1954 there will have been a total of $70,-

000,000 of these bonds issued and in the foreseeable

future the total will be $$0,000,000 to $100,000,000. At

the present time 2182 classrooms are under construc-

tion as a result of the issuance of these bonds.’’

The planning included in making necessary surveys, ac-

quisition of sites, financing and engineering involved in the

present construction program, although pertormed at top

speed under the compulsion of a critical shortage of school

1. See page 188, Appendix A.

2. See page 187, Appendix A.

5 11

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Biteisiiaweinc. BSPre Rents

buildings in Florida, is a continuing process and requires

several years to carry out successfully.

Much of this school planning with regard to the allocation

and use of existing structures as well as new construction

will have to be re-evaluated and revised in accord with the

entirely new and basic change to a non-segregated system.

These facts, when considered in the light of the over-

crowded conditions now prevailing in many Florida schools,

must be studied by the legislature and school officials in any

effort to provide adequate administrative means of comply-

ing with the Court’s decision. According to the State De-

partment of Education, during the school year 1953-54,

eighty-one schools in 18 Florida counties were forced to

operate double sess‘ons because of the lack of classroom

space and tramed teachers. In many instances to integrate

immediately in particular schools would mean overcrowd-

ing of school facilities resulting in serious administrative

problems too numerous to detail.

When these problems are further complicated by the

drastic change in the legal framework of segregated schools

in Florida, it is apparent that such factors should be rec-

ognized by the Court and sufficient time allowed for their

orderly solution.

A third example of the complex problems which will con-

front school officials and the Florida legislature in re-

vising the framework of laws within which the school sys-

tem can operate efficiently in compliance with the Brown

decision is found in Sections 229.07,! 229.08,? Florida Sta-

tutes, relating to the authority and rule-making powers

1. See page 215, Appendix B.

2. See page 216, Appendix B.

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ra, — a — — — —_ - ———

and duties of the State Board of Education; and Sections

229.16* and 229.17* relating to the duties of the State

Superintendent of Public Instruction.

Although these provisions may not directly relate to seg-

regated schools, they have in each instance been enacted

and administered in accord with the basic provision of

Florida law requiring a dual school system, and some re-

vision will be necessary in the administrative powers

granted therein in order to insure compliance with the

Court’s decree.

Specific problems in this regard are found in State Board

Regulations adopted April 27, 1954 (page 154, State Board

Regulations, page 219, Appendix B) related to the caleu-

lation of instruction units and salary allocations from the

Foundation Program; State Board Regulation adopted

March 21, 1950 (page 164, State Board Regulations, page

220, Appendix B), related to Administrative and Special

Instructional Service; State Board Regulation adopted

March 21, 1950 (page 171, State Board Regulations, page

221, Appendix B), related to units for supervisors of in-

struction; State Board Regulation adopted July 3, 1947

(page 28, State Board Regulations, page 226, Appendix

B), related to School Advisory Committees; State Board

Regulation adopted March 21, 1950 (page 148, State Board

Regulations, page 228, Appendix B), related to the quali-

fications, duties and procedure for employment of super-

visors of instruction; State Board Regulation adopted July

3, 1947 (page 156, State Board Regulations, page 232, Ap-

pendix B), related to isolated schools, State Board Regu-

lation adopted July 21, 1953 (page 225, State Board Regu-

lations, page 235, Appendix B), related to the distribution

of general scholarships; State Board Regulation adopted

July 3, 1947 (page 229, State Board Regulations, page 242,

Appendix B), related to State Supervisory Services.

3. See page 216, Appendix B.

4. See page 217, Appendix B.

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Il. DISCUSSION OF LEGISLATIVE ATTITUDES

In setting out these examples of legislative problems

which will require reasonable time for solution, we do not

intend to imply that the members of the Florida legislature

are at present willing to accept a desegregated school sys-

tem. In fact, from such information as is now available on

this point there is reason to believe that members of the

Florida legislature are to a large extent unsympathetic

to the Court’s decision in the Brown case. A survey of

leadership opinion regarding segregation in Florida con-

ducted by the Attorney General included the following

statement in the survey report (page 126, Appendix A):

‘‘Although the 79 members of the state legislature who

returned questionnaires constitute almost 45% of the

176 legislators and legislative nominees, to whom the

forms were sent, generalizations as to the entire mem-

bership of the le,;islature on the basis of their responses

are entirely unwarranted. Any attempt to predict the

action of the legislature at its next session would be

even more presumptuous. The responses of these legis-

lators to two special questions asked of them are pre-

sented below as a matter of interest, however.

‘*The legislators were asked to indicate which of five

possible courses of action should be followed at the

next session of the legislature. The percentage check-

ing each course, and the details of the five courses of

action, are shown in Table 20 (Appendix A). The legis-

lators were also asked whether they believed that there

is any legal way to continue segregation in Florida

schools indefinitely. Of the 79 respondents, 34.20% re-

plied ‘yes’, 25.31% replied ‘no’ and 39.32% answered

‘Don’t know’ or gave no answer.”’

Table 20, Appendix A, indicates that 40.5% of the mem-

bers of the legislature who responded to the questionnaire

wanted to preserve segregation indefinitely by whatever

means possible.

i 14

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Seiiiecn..

It is even more significant that the Florida legislature in

its 1951 session amended the appropriations act for the

State Universities to provide that in the event Section 12

of Article 12 of the Florida Constitution shall be held un-

constitutional by any court of competent jurisdiction or in

the event the segregation of races as required by Section

12, Article 12 of the Florida Constitution should be dis-

regarded, that no funds under the appropriations act shall

be released to the Universities (page 683, Journal of the

Florida House of Representatives, May 10, 1951). This

amendment contained in Chapter 26859, General Laws of

Florida, 1951, was vetoed by the Governor.

On the other hand, it is not our purpose to imply that the

Florida legislature will refuse to take any action to provide

a framework of laws designed to implement the Court’s

decision, Only the legislature itself under our form of gov-

ernment can determine what course of action it will pursue

and we know of no way it can be coerced in making this

determination except through the will of a majority of the

people voiced through the ballot.

One thing seems apparent, however, under these cir-

cumstances. The Court upon equitable principles ought to

extend to our legislature a reasonable period of forbearance

during which the normal processes of legislative authority

ean be afforded time and opportunity to implement the

Court’s decision. The great multitude of problems the de-

cision has created in the legal structure of our school system

should warrant the Court in granting our legislature full

opportunity to revise our school laws.

Such a period of forbearance is in keeping with the

spirit of confidence which, under our system of democracy,

is essential to maintain among the three branches of gov-

ernment. It is in keeping with the spirit of confidence

which must be maintained between state governments and

the Federation of States which has delegated to this Court

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soe es area Se

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rl iie sitter ons Gt hen

its judicial authority. A fundamental precept in the prac-

tical workings of this spirit of confidence is the use of per-

suasion rather than coercion or compulsion. We believe

that this Court will not attempt to use its powers of coer-

cion precipitately and prematurely against any state whose

legislature has not had time to revise its basic school laws

to meet the requirements of transition.

Our Florida legislature under our Constitution does not

convene again until April, 1955 for its biennial 60- day ses-

sion.

Even at that session there may not be known the terms

of the implementation pattern, since they are dependent

upon whether the Court acts prior to April, 1955. Further-

more, whether the necessary spade-work and drafting of

legislation to adequately provide for the transition can be

accomplished within said session is largely a matter of

conjecture, so multitudinous and complex are the problems.

We reiterate: the State, having so long relied on and lived

under the Plessy doctrine, should have no unseemly haste

visited upon its legislature in trying to meet the needs of

transition, especially when it is considered by many to be,

at best, a ‘‘bitter pill’’ for the legislature to swallow.

Rather, the reasonable, considerate and tempered course

would be to allow our legislature a requisite and ample

period of time to study, debate and enact implementation

legislation. This we believe the court from innate principles

of equity will allow.

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B. The Need For Time In

Revising Administrative

Procedures

In addition to the problem of statutory revision, the

Court should consider the need for time in adjusting the

literally thousands of administrative policies and regula-

tions of local schoo] boards and school superintendents

which have been formulated within the framework of law

to meet local conditions in each of the 67 counties of Florida

which will have to be revised and reorganized to conform

to new legislative enactments resulting from the Brown

decision. It is apparent that considerable time must be al-

lowed before workable administrative policies of this kind

can be evolved. Speaking to a group of Negro leaders in

Jacksonville on July 30, 1954, Florida State School Super-

intendent Thomas D. Bailey, said:

‘‘As I see it, the ultimate problem is to establish a

policy and a program which will preserve the public

school system by having the support of the people. No

system of public education will endure for long without

public support. No program of desegregation in our

public schools can be effective, unless the people in

each community are in agreement in attempting it.’’

School board members, school trustees and school super-

intendents are elective officials in Florida. They are ob-

viously well aware that any administrative policies they

adopt implementing state laws enacted pursuant to the

Brown decision must meet with at least some degree of ac-

ceptance on the part of the people in the community if they

are to prove workable.

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ot a

Brau. sisi dagegatetS

L EXAMPLES

(a) Transportation

Perhaps the best example of this type of problem is the

practical difficulties which will be encountered in convert-

ing the present dual school bus transportation system into

a single system.

During the school year 1953-54 Florida’s school system

operated 2212 buses. These buses traveled 30,910,944 miles

to transport 209,492 pupils at a cost of $4,506,667 (see page

186, Appendix A). These figures may be compared with

Florida Greyhound Lines, the largest motor bus common

carrier in Florida, which operates 175 buses in the state.

A court order merging Florida Greyhound Lines with a

competing line would necessarily allow a considerable pe-

riod of time for revising routes and schedules to avoid dupli-

cation and insure maximum service to the public, but such

a merger would be relatively uncomplicated compared to

the problems involved in merging Florida’s dual school bus

system.

The problems ef merging what amounts to two bus sys-

tems into one system without regard to race are obviously

complicated. Hundreds of bus routes and schedules will

have to be revised in line with the school redistricting which

must take place. In accomplishing such a drastic revision of

bus routes and schedules the paramount factor in school

bus transportation, i.e., safety, must be considered at all

times in the light of the fact that discipline among the pas-

sengers is directly related to safety. Discipline on school

buses is maintained by one person, the driver. The ability

of the driver to maintain discipline and a reasonable degree

of safety while transporting mixed racial groups which

may be antagonistic must clearly be considered in re-

routing and re-scheduling school bus routes. Such consider-

ation on the part of local school boards will require degrees

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_7—_ suum

of time in direct ratio to the complexity of the local situa-

tion in relation to the size and distribution of the Negro

population and the intensity of opposition to desegregated

schools on the part of the citizens.

(b) Redistricting

The redistricting of school attendance areas along normal

geographic lines on the basis of a single school system

rather than a dual system as it now exists is another prob-

lem which will require a great deal of time in proper plan-

ning and execution.

Perhaps an even greater problem which will confront

school officials on both the state and county level is the

maintenance of scholastic standards in the intermingling of

two groups of students so widely divergent on the basis of

achievement levels. According to the State Department of

Education (see page 190, Appendix A):

‘‘A comparison of the performance of white and

Negro high school seniors on a uniform placement-test

battery given each spring in the high schools through-

out the State ot Florida is shown in Table 4, page 196,

Appendix A. The number of participants corresponds

with the total twelfth grade membership during the

five-year period, 1949-1953. This table shows, for ex-

ample, that on all five tests 59% of the Negroes rank

no higher than the iowest 10% of the whites. On the

general ability scale, the fifty percentile or mid-point

on the white scale corresponds with the ninety-five

percentile of the Negro scale. In other words, only 5%

of the Negroes are above the mid-point of the white

general ability level. Studies of grades at the Univer-

sity of Florida indicate that white high school seniors

with placement test percentile ranks below fifty have

less than a 50% likelihood of making satisfactory

grades in college. While factors such as size of high

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school, adequacy of materials, economic level, and home

environment are recognized as being contributing fac-

tors, no attempt is made here to analyze or measure

the controlling factors.”’’

In some large schools it is possible to divide students in

the same age groups into different classes, taking into con-

sideration their achievement level, but smaller schools do

not have sufficient classroom space or teachers to make

such a division possible. In the latter class of schools it is

clear that an immediate and arbitrary intermingling of

students falling into such widely divergent achievement

level groups could only result in lowering the scholastic

standards of the entire school and adding to the problems

of discipline and instructional procedures. The Negro stu-

dents would suffer if compelled to compete against white

students of the same age but whose achievement level was

2 or 3 grades higher and the white students would be

seriously retarded.

This problem is not insoluble and it is not advanced as a

reason for permanent segregation in the schools. It is, how-

ever, a problem which must be taken into consideration by

school officials in any attempt at integration of the races

in the schools and it is a problem which will require careful

planning, new techniques, and a great deal of time if it is

to be solved without doing serious harm to both races and

to the school system.

(d) Health and Moral Welfare

Still another example of school administrative problems

in achieving an integrated school system is related to

health and moral welfare. Writing in the Readers Digest,

September, 1954, page 53, Mr. Hodding Carter, Editor and

Publisher of the Delta Democrat Times, Greenville, Miss-

issippi, said:

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——— shane rar. ee ee eee

‘*If only because of economic inequalities, there is a

wide cultural gap between Negro and white in the

South, and especially in those states where dwell the

most Negroes. These heavily Negro states are also

largely agrarian. Among the rural and small-town Ne-

groes, the rates of near-illiteracy, of communicable

diseases, of minor and major crimes are far higher

than among the whites. The rural Negro’s living stand-

ards, though rising are still low, and he is still easy-

going in his morals, as witness the five to ten times

higher incidence of extramarital households and ille-

gitimacy among Negroes than among whites in the

South. The Southern mother doesn’t see a vision of a

clean scrubbed little Negro child about to embark on a

great adventure. She sees a symbol of the cultural lags

of which she is more than just statistically aware.”’

Specifically, with regard to Florida, the State Board of

Health reports that during the year 1953 there was a total

of 58,262 white births in the state, of which 1,111 were ille-

gitimate. During this same period there was a total of

21,825 Negro births of which 5,249 were illegitimate. Per-

centagewise, this means that 1.9% of white births in Florida

during 1953 were illegitimate and 24% of Negro births

were illegitimate’.

According to the State Board of Health there was a total

of 11,459 cases of gonorrhea reported in Florida during

1953 of which 10,206 were among the Negro population.?

We feel that this cultural gap should be honestly recognized

by both white and Negro leaders as a problem requiring

time for solution rather than an arbitrary and blind refusal

to admit that it exists or that it is related to public school

administration.

1. Annual Report, Florida State Board of Health for 1953, Sup-

plement No. 1, Florida Vital Statisties.

2. Annual Report, Florida State Board of Health 1953, Supple-

ment No. 2, Florida Morbidity Statistics 1953, Table No. 5

page 25.

’

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C. The Need For Time

In Gaining Public Acceptance

There is a need for time in gaining public acceptance of

desegregation because of the psychological and sociological

effects of desegregation upon the community.

I. A SURVEY OF LEADERSHIP OPINION

A sincere and exhaustive effort has been made by the

Attorney General of Florida to ascertain, as accurately as

possible, the feelings of the people of Florida with regard

to segregation in public schools. This survey was author-

ized by the Florida Cabinet which allocated $10,000 for the

purpose. This effort was made primarily for the purpose

of obtaining information which would be of use to the

Court in formulating its final decree in the Brown case.

In making the survey and study, every possible precau-

tion was taken to insure its impartiality and scientific ac-

curacy. It was made with the advice and under the supervi-

sion of an interracial advisory committee composed of in-

dividuals chosen on the basis of their professional standing

in the field of education ; specialized knowledge which would

be helpful in making such a study; reputation for civic-

mindedness and impartiality and because they were will-

ing to devote their time without pay in carrying out a task

so enormous in scope in the brief time available. A more

detailed explanation of the scientific methods and tech-

niques employed in making this study is given with the

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Pita cin Peo se

complete survey report itself, which is made a part of this

brief and included as Appendix A. The General Conclusions

of this report are as follows:

Il GENERAL CONCLUSIONS

1. On the basis of data from all relevant sources in-

cluded in this study, it is evident that in Florida white lead-

ership opinion with reference to the Supreme Court’s de-

cision is far from being homogeneous. Approximately

three-fourths of the white leaders polled disagree, in prin-

ciple, with the decision. There are approximately 30% who

violently disagree with the decision to the extent that they

would refuse to cooperate with any move to end segregation

or would actively oppose it. While the majority of white

persons answering opposed the decision, it is also true that

a large majority indicated they were willing to do what

the courts and school officials decided.

2. A large majority of the Negro leaders acclaim the

decision as being right.

3. Only a small minority of leaders of both races advocate

immediate, complete desegregation. White leaders, if they

accept the idea that segregation should be ended eventually,

tend to advocate a very gradual, indefinite transition period,

with a preparatory period of education. Negroes tend to ad-

vocate a gradual transition, but one beginning soon and last-

ing over a much shorter period of time.

4. There are definite variations between regions, coun-

ties, communities and sections of communities as to whether

desegregation can be accomplished, even gradually, with-

cut conflict and publie disorder. The analysis of trends

in Negro registration and voting in primary elections,

shows similar variations in the extent to which Negroes

have availed themselves of the right to register and vote. At

least some of these variations in voting behavior must be ac-

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counted for by white resistance to Negro political participa-

tion. This indicates that there are regional variations not

only in racial attitudes but in overt action.

Regional, county and community variations in responses

to questionnaires and interviews are sufficiently marked to

suggest that in some communities desegregation could be

undertaken now if local leaders so decided, but that in

others widespread social disorder would result from im-

mediate steps to end segregation. There would be prob-

lems, of course, in any area of the state, but these would

be vastly greater in some areas than in others.

3. While a minority of both white and Negro leaders

expect serious violence to occur if desegregation is at-

tempted, there is a widespread lack of confidence in the

ability of peace officers to maintain law and order if serious

violence does start. This is especially true of the peace offi-

cers themselves, except in Dade County. This has im-

portant implications. While it is true that expressed

attitudes are not necessarily predictive of actual behavior,

there seems little doubt that there is a minority of whites

who would actively and violently resist desegregation,

especially immediate desegregation. It has been concluded

from the analysis of experiences with desegregation in

other areas, ‘‘A small minority may precipitate overt re-

sistance or violent opposition to desegregation in spite of

general acceptance or accommodation by the majority.’”

6. Opposition of peace officers to desegregation, lack of

confidence in their ability to maintain law and order in the

face of violent resistance, and the existence of a positive

relationship between these two opinions indicates that less

than firm, positive action to prevent public disorder might

be expected from many of the police, especially in some

communities. Elected officials, county and school, also show

1. Kenneth B. Clark, ‘‘Findings,’’ Journal of Social Issues, IX,

No. 4 (1953), 50.

3 25

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x a

a high degree of opposition. Yet it has been pointed out,

again on the basis of experience in other states, that the

accomplishment of efficient desegregation with a minimum

of social disturbance depends upon:

A. A clear and unequivecal statement of policy by

leaders with prestige and other authorities;

B. Firm enforcement of the changed policy by author-

ities and persistence in the execution of this policy

in the face of initial resistance;

C. A willingness to deal with violations, attempted

violations, and incitement to violations by a resort

to the law and strong enforcement action;

D. A refusal of the authorities to resort to, engage in

or tolerate subterfuges, gerrymandering or other

devices for evading the principles and the fact of

desegregation ;

KE. An appeal to the individuals concerned in terms of

their religious princi»les of brotherhood and their

acceptance of the American traditions of fair play

and equal justice.

It may be concluded that the absence of a firm, enthusi-

astic public policy of making desegregation effective would

create the type of situation in which attitudes would be

most likely to be translated into action.’

7. In view of white feelings that immediate desegregation

would not work and that to require it would constitute a

negation of local autonomy, it may be postulated that the

chances of developing firm official and, perhaps, public sup-

port for any program of desegregation would be maximized

by a decree which would create the feeling that the Court

recognizes local problems and will allow a graduai transi-

tion with some degree of local determination.

8. There is a strong likelihood that many white children

would be withdrawn from public schools by their parents

1. Experience shows that where the steps listed above have been

taken, predictions of serious social disturbances have not been

borne out.

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—— EDEL Ni ONDE LON ahh eth Shas ee He -

SONAR tI RR ae + eg Sarin SERS oh aD A NS = a8

and sent to private schools. It seems logical, however, that

this practice would be confined primarily to families in the

higher income brackets. As a result, a form of socio-

economic class segregation might be substituted for racial

segregation in education.

9. It is evident that a vast area of misunderstanding as

to each other’s feelings about segregation exists between

the races. White leaders believe Negroes to be much more

satisfied with segregation than Negroes are and Negro

leaders believe that whites are much more willing to accept

desegregation gracefully than whites proved to be. Hence

a logical first step towards implementing the principle set

forth by the Court, and one suggested by both whites and

Negroes, would seem to be the taking of positive, coopera-

tive steps to bridge this gap and establish better under-

standing between the two groups.

10. Although relatively few Negro leaders and teachers

show concern about the problem, white answers indicate

that Negro teachers would encounter great difficulty in

obtaining employment in mixed schools. To the extent that

desegregation might proceed without parallel changes in

attitudes towards the employment of Negro teachers in

mixed schools, economic and professional hardships would

be worked on the many Negro teachers of Florida.

11. Since 1940, and particularly since 1947, the State of

Florida has made rapid and steady progress toward the

elimination of disparities between white and Negro edu-

cational facilities as measured by such tangible factors as

teacher salaries, current expenditure per pupil, teacher

qualifications, and capital outlay expenditure per pupil.

12. In spite of the current ambiguity as to the future of

dual, ‘‘separate but equal’’ school facilities the State is pro-

ceeding with an extensive program of construction of new

schoo] facilities for both white and Negro pupils, with a

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or ge aren tae cls

Beatie ri cctnnnix

recommended capital outlay of $370 per Negro pupil and

$210 per white pupil. Both this and the previous finding in-

dicate that, while these steps have been taken within the

framework of a dual educational system, there is a sincere

desire and willingness on the part of the elected officials

and the people of Florida to furnish equal education for all

children.

13. Available achievement test scores of white and Ne-

gro high school seniors in Florida indicate that, at least in

the upper grades, many Negro pupils placed in classrooms

with white pupils would find themselves set apart not only

by color but by the quality of their work. It is not implied

that these differences in scores have an innate racial basis,

but it seems likely that they stem from differences in eco-

nomic and cultural background extending far beyond the

walls of the segregated school, into areas of activity not

covered by this decision.

14. Interracial meetings and cooperative activities al-

ready engaged in by teachers and school administrators in

many counties demonstrate steps that can be, and are being

taken voluntarily and through local choice to contribute to

the development of greater harmony and understanding

between whites and Negroes in Florida communities.

The specifie findings of this survey regarding leadership

opinion as expressed through mailed questionnaires are:

1. White groups differ greatly from each other in

their attitudes towards the Court’s decision, ranging

from nearly unanimous disagreement to a slight pre-

dominance of favorable attitudes. (See Table 2, page

136, Appendix A)

2. White groups also differ from each other in will-

ingness to comply with whatever courts and school

boards decide to do regardless of their personal feel-

ings. (See Table 4, page 139, Appendix A)

3. Peace officers are the white group most opposed

to desegregation. (See Table 3, page 138, Appendix A)

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7 — _

nt ati in ee

4. Almost no whites believe that desegregation

should be attempted immediately. (Table 2, page 136,

Appendix A)

5. A large majority of both Negro groups are in

agreement with the Court’s decision declaring segre-

gation unconstitutional. (Table 3, page 138, Appendix

6. While only a small minority of both Negro groups

believe that desegregation should be attempted imme-

diately, an even smaller minority would oppose at-

tempts to bring about desegregation or refuse to co-

operate. (Table 2, page 136, Appendix A)

7. Only a minority of whites in all groups believe

that opponents of desegregation would resort to mob

violence in trying to stop it. A larger proportion, but

still a minority, believe that serious violence would re-

sult if desegregation were attempted in their commu-

nity in the next few years. (Table 5, page 140, Ap-

pendix A)

8. A yet smaller minority of both of the Negro

groups anticipate mob violence or serious violence as

a result of steps towards desegregation. (Table 5,

page 140, Appendix A)

9. The majority of all white groups are not sure that

peace officers could cope with serious violence if it

did occur in their communities, replying either ‘‘no’’

or ‘‘don’t know”’ to the question. (Table 6, page 141,

Appendix A)

10. A much smaller proportion of both Negro groups

expresses doubt as to the ability of law enforcement

officials to deal with serious violence. (Table 6, page

141, Appendix A)

11. The majority of most of the white groups believe

that peace officers could maintain law and order if

minor violence occurred. (Table 7, Appendix A)

12. The Negro groups did not differ greatly from the

white groups in the proportion believing that police

could cope with minor violence. (Table 7, Appendix A)

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Britis ties

13. Only 13.24 per cent of 1669 peace officers believe

that most of the peace officers they know would en-

force attendance laws for mixed schools.

14. A majority of the members of all white groups

except peace officers, (who were not asked) : radio sta-

tion managers; and ministers, believe that most of the

people of Florida and most of the white people in their

communities disagree with the Court’s decision. (Table

8, Appendix A)

15. In the five white groups asked, from one-fourth to

one-half of the respondents believed that most of the

Negroes in their community were opposed to the de-

segregation ruling. (Table 8, Appendix A)

16. A much smaller proportion of both Negro groups

believe that most of the people of Florida, most of the

whites in their community, and particularly the Negroes

in their communities are in disagreement with the prin-

ciple of desegregation. (Table 8, Appendix A)

17. Only a small minority of all groups, white and

Negro believe that immediate assignment of children

to schools on the basis of geographical location rather

than race would be the most effective way of ending

public school segregation. (Table 9, Appendix A)

18. All groups think a gradual program of desegre-

gation would be most effective. Negroes, however, pre-

fer that the process start within the next year or two

with immediate, limited integration much more fre-

quently than do whites. The whites prefer a very grad-

ual transition with no specified time for action to begin.

(Table 9, Appendix A)

19. Whites who expressed an opinion believe that the

primary grades and the colleges are the levels on which

desegregation could be initiated most easily. On the

other hand, almost as many Negroes believed that

segregation should be ended on most or all grade levels

simultaneously as believed it should be ended first at

the lowest and highest grade levels.

20. The maintenance of discipline in mixed classes by

Negro teachers is regarded as a potential problem by a

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= SEE SUDEP OIE Che At es a Rs Pa

majority of white principals, supervisors and PTA

leaders. A much smaller proportion of Negroes re-

garded this as a problem, with a majority of Negro

principals believing that colored teachers could main-

tain discipline in mixed classes. (Table 11, Appendix

21. A majority of all white groups believe that white

people would resist desegregation by withdrawing

their children from the public schools, but a much

smaller proportion of Negroes, less than a majority

believe that this would happen. (Table 11, Appendix A)

22. Almost two-thirds of white school officials—su-

perintendents, board members, and trustees—believe

that application of Negroes to teach in mixed schools

would be rejected. (Table 11, Appendix A)

It should be noted at this point that this opinion is sup-

ported by the experience of other states where desegrega-

tion of schools has already taken place. The August 27, 1954,

issue of U. S. News and World Report, page 35, states,

“In the north, protests from white parents tend to drive

Negro teachers out of the schools to which their children go.

The same thing is expected in the South when desegregation

comes to the schools there. An illustration of what happens

in the North is shown by the experience of Jeffersonville,

Indiana. The town lies in the southern part of the State,

just across the Ohio River from Kentucky. A great deal of

Southern tradition and many Southern customs have

reached across the river. Jeffersonville is just completing

desegregation of its schools. There have been few un-

happy incidents. But there has been a greater problem with

teachers than with children in the schools. There were 16

Negro teachers in Jeffersonville when desegregation was

started in 1948. By 1951 their number had dwindled to

11 as school enrollments were consolidated. For the school

year starting in autumn, 1951, only three Negro teachers

were retained, They had achieved permanent tenure under

State law, and could be discharged only for cause.’’

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itis insane SP ceasinctet ere

Florida now employs 19,848 persons in instructional po-

sitions not including supervisors. 4,721 of these teachers

are Negroes. (Biennial Report, Superintendent of Public

Instruction, State of Florida, 1950-51)

23. Nearly three-fourths of school officials believe

that it would be difficult to get white teachers for

mixed schools, (Table 11, Appendix A)

24. Almost half of school officials and a little over

40% of white PTA leaders believe that the people of

their communities would not support taxes for desegre-

gated schools, but only about 20% of Negro PTA lead-

ers believe that such support would not be forthcoming.

(Table 11, Appendix A)

25. In the case of all potential problems on which

both Negroes and whites were questioned a smaller

proportion of Negroes than of whites indicate belief

that problems would arise as a result of desegregation.

(Table 11, Appendix A)

26. In the case of peace officers there is a positive

relationship between personal disagreement with the

decision and lack of confidence in the ability of peace

officers to cope with serious violence. There is an even

higher positive relationship between belief that segre-

gation should be kept and belief that peace officers

would not enforce school attendance laws for mixed

schools. (Table 12, Appendix A)

Regional Variations. The responses to certain items of

the two largest groups polled, the peace officers and the

white school principals and supervisors, were analyzed by

region of the state in which the respondents lived. The 67

counties of Florida were grouped into 8 regions defined by

social scientists at the Florida State University in ‘‘ Florida

Facts’’ (Tallahassee, Florida; School of Public Adminis-

tration, The Florida State University).

Clear-cut regional variations in attitudes and opin-

ions are found to exist, as is indicated by the following

findings ;

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OL a Lt AR et LA il, ae Dilan DO

27. Although the majority of peace officers in all

regions feel that segregation should be kept, the per-

centage feeling so varies from 83% in two regions to

100% in one region. (Table 14, Appendix A)

28. The percentage of white principals and super-

visors who are in disagreement with the decision varies

from 20% to 60% in different regions. (Table 15, Ap-

pendix A)

29. A large majority of white principals and super-

visors in all regions indicate that they would comply

with the decision regardless of personal feelings, but

the percentage varies from 76% in Region VII to ap-

proximately 94% in Regions VI and VIII. (Table 16,

Appendix A)

30. The percentage of peace officers predicting mob

violence as a method of resisting desegregation varies

from 20% in Region VIII to nearly 63% in Region

VII (Table 17, Appendix A).

31. Percentages of both peace officers and white

principals and supervisors predicting serious violence

in the event desegregation is attempted vary widely

between some regions (Table 18, Appendix A).

32. The majority of both peace officers and white

principals and supervisors in all regions doubt that the

police could maintain law and order if serious violence

occurred, but there are some regional variations.

(Table 19, Appendix A)

A Note on Responses of Legislators. Although the 79

members of the state legislature and legislative nominees

who returned questionnaires constitute almost 45 per cent

of the 176 legislators to whom the forms were sent, general-

izations as to the entire membership of the legislature on

the basis of their responses are entirely unwarranted. Any

attempt to predict the action of the legislature at its next

session would be even more presumptuous. The responses

of these legislators to two special questions asked of them

are presented below as a matter of interest, however.

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The legislators were asked to indicate which of five pos-

sible courses of action should be followed at the next ses-

sion of the legislature. The percentage checking each course,

and the details of the five courses of action, are shown in

Table 20.

The legislators were also asked whether they believed

that there is any legal way to continue segregation in

Florida schools indefinitely. Of the 79 respondents, %4.20

per cent replied ‘‘Yes,’’ 25.31 per cent replied ‘‘No,’’ and

39.32 per cent answered ‘‘ Don’t Know,’’ or gave no answer.

Ill. THE DADE COUNTY REPORT

A separate intensive study was made by the Attorney

General’s Advisory Committee under the immediate super-

vision and direction of a research team from the Depart-

ment of Government of the University of Miami. This study

was made of the greater Miami area and some outlying

sections in neighboring counties in the belief that this part

of Florida might have different problems of integration

from other parts of the state due to its geographic location

and density of population. The results of this study are in-

cluded as a part of the overall project and set out in

Appendix A.

IV. DISCUSSION

The implications found in the Florida survey are many

and varied but it is significant that to a remarkable extent

they verify and coincide with the conclusions and observa-

tions set forth in the book by Mr. Harry S. Ashmore, ‘‘The

Negro and the Schools’’. The book is the result of an

exhaustive research study sponsored by the Ford Foun-

dation for the Advancement of Education of the problem

of segregation in the south as the title implies.

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SOW ES

RRR A Nea i Sha Si STE Set ee

For example, Mr. Ashmore states (page 81, ‘‘The Negro

and the Schools) :

Seay

‘‘The most important factor in integration of the

publie schools in the non-South, finally, is community

attitudes. It ts axiomatic that separate schools can be

merged only with great difficulty, if at all, when a great

majority of the citizens who support them are actively

opposed to the move. (Italics supplied) No other

public activity is so closely identified with local mores.

Interest in the schools is universal, and it is an interest

that directly involves not only the tax-payer but his

family, and therefore his emotions. Those who are in-

different to all other community affairs tend to take a

proprietary interest in the schools their children at-

tend, or will attend, or have attended. State influence

in public education has grown in recent years in pro-

portion to the increase in state aid, but state policies

rarely are so important as local forces in the shaping

of public educational policies and practices. .. .

‘‘The most meticulous house-to-house poll in any

American community with a sizeable Negro population

would doubtless turn up a negative response to a pro-

posal to integrate the separate public schools. In the

case of the whites this might reflect deep-seated race

prejudice, or it might be no more than the normal,

instinctive resistance to any marked change in the ac-

customed patterns of everyday living. In many cases

the basis of objection might be the demonstrable fact

that the great majority of American Negroes are still

slum-dwellers; many a parent who proudly considers

himself wholly tolerant in racial matters will object

to having his child associate with classmates of inferior

economic and social background. It is probable that

some resistance to integration would even be recorded

among Negroes, who might respond negatively out of

simple fear of the unknown, or the desire to protect

their children against possible overt discrimination by

white classmates or teachers. The great problem for

schoolmen who have been moved to consider integration

by their own convictions, or by the prodding of higher

authority, has been to determine whether the passive

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ETAL PN in

PR a SS ae ee

‘nba Ra oD Seely We PON

rR tis tire ee.

resistance which they can readily sense will be trans-

lated into active resistance once the issue is drawn.

‘In any event the superintendent who is called to

take his school system from segregation to integration

must be prepared to function as a ‘social engineer’

(Italics supplied). He will deal on a mass scale with

delicate problems of human relationships involving

not only pupils and teachers but the community at

large.

‘“These case studies demonstrate that wherever there

has been an active and well-planned program to ‘sell’

integration to the community at large it has succeeded

—but here again there is no way to measure just how

difficult the selling job really was. The most notable

examples are to be found in New Jersey, where a well-

staffed state agency made it its business to work closely

with those communities which had long practiced seg-

regation and appeared resistant to the change required

by the new constitution. Although New Jersey’s Divi-

sion Against Discrimination was armed with the power

to withhold state funds and even to bring misdemeanor

charges against school officials who refused to comply,

it accomplished the integration of 40 formerly segre-

gated school districts without invoking these powers

in a single instance...

‘‘At the other end of the scale is Cairo, Illinois,

where the effort of the NAACP to force a reluctant

school board to accept the state ban on segregation

led to violence. Cairo in almost every aspect of its

community life, may be classified as a ‘sick city,’

and there is no indication of anything approximating

an orderly interracial approach to the problem either

before or after integration became an explosive issue.

‘*Between these two extremes lie most of the non-

Southern cities. They are, for the most part, beyond the

reach of any possible decision of the Supreme Court

in the test cases, for segregation in the schools of the

non-South is now rarely bolstered by law, and where

it is it would hardly miss the legal prop if it were struck

down. Desegregation is proceeding there at a rate

determined by the willingness of individual communi-

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re . _—

OEE STE OR SEIN NEE GN 8 5 UNM LTR ANI a a

ties to accept the change—or by the willingness of

community leaders to put the issue to the test.’’

The same recognition of the problems involved in de-

segregation and the obvious need for adequate time to give

_local school administraters an opportunity to devise plans

and means of overcoming the problems is found in the

thinking of almost all authorities who have made a study

of the subject.

In discussing the Problems of Desegregation, Dr. Tru-

man M. Pierce, Professor of Education, George Peabody

College for Teachers, and Director of the Cooperative Pro-

gram in Educational Administration (Southern Region)

had this to say (see page 91 Journal of Public Law, Emory

University Law School, Vol. 3, Spring 1954, Number 1).

‘*People respond well, in general, to the opportunity

of discussing with each other mutual concerns and in-

terests. Controversial subjects discussed in the public

arena under skillful leadership can often be resolved

with a minimum of conflict. Effective public forums on

the community level provide experiences in self-govern-

ment which can hardly be surpassed in satisfactions

which they bring and in progress they stimulate. How-

ever, questions tinged with a high degree of emotion-

alism offer ready-made opportunities for rabble rous-

ers and self-seekers to do serious harm. Consequently,

the calm, sane and relatively objective approach, which

can be expected from most of the substantial citizens

of the average community, is essential in the types of

discussion suggested. It is hardly necessary to point

out that such public forums should avoid emotional

binges and concentrate on the study of facts. The third

principle is that responsible and public spirited citizens

of both races should discuss together the facts con-

cerning their school system and together make plans

for its improvement. This does not imply that the board

of education should be by-passed, for final policy must

be determined by this legally constituted body.

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ce < os

Fa Peg IS ec Ne SES rh co etd 2 oS eR

Betieuwanins

“‘Tll-advised and hasty action, determined without

benefit of a period in which calm deliberation takes

place (Italics supplied) can do more harm than good.

Urgency need never take precedence over wisdom.

Piecemeal and stopgap policies are likely to prove un-

sound and wasteful in the long run. Therefore, the

final principle which is suggested is that extensive

policy setting based on thorough study and eareful

thought should provide the framework for a thorough

and comprehensive program of work extending as far

into the future as is practicai.’’

Dr. Howard W. Odum! in discussing ‘‘An approach to

diagnosis and direction of the problem of Negro segregation

in the public schools of the South’’ says (Journal of Public

Law, Emory University Law School, Vol. 3, Spring 1954,

No. 1, page 34):

‘‘Final assumptions must rest upon continuing ex-

ploration, education, testing grounds for federal and

state programs, and for a working balance between

voluntaristic and coercive action. For, from special

studies, general observations, and recorded experi-

ences, it must be clear that all our exhibits of evidence

appear as a sort of tug of war, now moving this way,

now that. The real definition of the situation comes

back again and again to inferences about issues, cul-

tural values that are characteristic of the region, and to

exploration and survey, projection of trends and pre-

dictions, and potentials that can be identified with

alternatives. In this dilemma it would seem that never

have the old classical, ‘On the one hand and on the

other,’ and ‘but also,’ appeared to carry such a multi-

tude of dichotomies, paired contradictions, major pre-

mises assumed, ‘ands,’ ‘ors,’ and ‘buts,’ in the loom of

interaction processes. And rarely ever have we run

across 80 many generalizations based upon so little

basic research or tested observations. All of this is

1. Professor of Sociology, University of North Carolina; past

president of the American Sociological Society; editor, Social

Forces ; author, American Sociology (1951) and other books.

BLEED THROUGH

e- penenessssesess

relevant not only to the elemental cataloguing of facts

and the appraisal of causal factors, but to the orienta-

tion of value judgments and strategy priorities.’’

Everyone concerned in the State of Florida with the

problems inherent in any attempt to desegregate schools,

whether he be a member of the legislature or a school official

cannot help but be aware that any change which is under-

tal en from the status quo must be made with at least the

passive approval of the people in the community who will be

affected by the change. Mr. Ashmore (The Negro and the

Schools, page 135) states:

‘* Finally, there is the hard fact that integration in a

meaningful sense cannot be achieved by the mere phys-

tical presence of children of two races ina single class-

room. No public school is isolated from the community

that supports it, and tf the very composition of its clas-

ses is subject to deep-seated and sustained public dis-

approval, it is hardly likely to foster the spirit of united

effort essential to learning. Even those who are dedi-

cated to the proposition that the common good demands

the end of segregation in education cannot be unaware

that if the transition produces martyrs they will be the

young children who must bear the brunt of spiritual

conflict.’’

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D. Intangibles

In Education

This Court has recognized the validity and significance of

certain intangibles in education. Quoting from the Brown

decision it said ‘‘In Sweatt v. Painter, supra, in finding that

a segregated law school for Negroes could not provide

them equal educational opportunities, this Court relied in

large part on ‘those qualities which are incapable of ob-

jective measurement but which make for greatness in a

law school’.

‘“‘In McLaurin v. Oklahoma State Regents, supra, the

Court, in requiring that a Negro admitted to a white grad-

uate school be treated like all other students, again resorted

to intangible considerations: ‘ ... his ability to study, to

engage in discussions and exchange views with other stu-

dents, and, in general, to learn his profession.’

‘*Such considerations apply with added force to children

in grade and high schools. To separate them from others

of similar age and qualifications solely because of their

race generates a feeling of inferiority as to their status in

the community that may affect their hearts and minds in a

way unlikely ever to be undone.’’

The legislature of Florida was motivated by the same

consideration of ‘‘intangibles’’ in education when it en-

acted Section 242.46, Florida Statutes. This law prohibits

secret societies including fraternities and sororities in the

public schools, The legislature and school officials recog-

nized that in some instances fraternities generated feelings

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;

‘|

RAS ONS

hee Aa

}

of snobbishness on the part of the members and feelings of

inferiority on the part of those not invited to join. It was

considered that these feelings might in the words of the

court ‘‘affect their hearts and minds in a way unlikely ever

to be undone.’’

We believe that this Court should recognize the validity

and significance in education of other ‘‘intangible consid-

erations’’ which may result from a precipitate attempt to

compel desegregated schools in all areas of Florida. It is

obvious that children reflect in their attitudes much of the

same deep-seated prejudices and antagonisms felt by their

parents. In the many areas of Florida where these feelings

are known to exist no school administrator could compel

an immediate desegregation without the certain knowledge

that he was placing the children in a situation which could

only result in generating feelings of hatred, inferiority and

bias which would ‘‘affect their hearts and minds in a way

unlikely ever to be undone.”’

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26 —

—— AARON Nt 9 EE A he ais OTN ACM AT

E. Reason for Hope

There is some reason to believe that segregated schools

can be ended in Florida in an equitable manner without de-

stroying the school system itself. But there is no reason

to believe that this can be accomplished hurriedly or through

the legal coercion of school officials who would thus find

themselves caught in the impossible dilemma of confronting

on the one hand the irresistible force of a judicial edict

which must be obeyed and on the other hand the immovable

object of public opinion which cannot be altered. The

only hope for a solution is for this Court to restrain the

use of coercive measures where necessary until the hard

core of public opinion has softened to the extent that there

can be at least some measure of acceptance on the part of a

majority of the people.

This recognition of the need for time and tact and wis-

dom in bringing about a true realization of the goal set

by this Court, is shared by leaders of both the white and

Negro races in Florida.

Dr. Mary McLeod Bethune, founder of Bethune-Cook-

man College at Daytona Beach, Florida, and a recognized

leader of the Negro people throughout the nation for many

years, stated in a press release soon after the announcement

of this Court’s decree in the Brown case:

‘¢.,. The High Tribunal has put a legal foundation un-

der a belief many of us have long held and which is

clearly and concisely stated in the most basic Ameri-

can ideal, ‘All men are created equal.’

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fast eee |

;

‘In quietness and patience, people of culture receive

this news, realizing the inevitable has at last come

about. They also realize, however, that the absorption

into our daily life of this new decision—the putting

of it into practice—must represent an organic cul-

tural assimilation which, like all social processes, will

take time. But eventually the wrongs and mistakes of

history are righted and remedied and inhumanities are

rectified. .... Let us enter into this integration calmly,

with good judgment. Let us give and take, working

out together the best possible means we can put into

action so that there may be peace and understanding,

and, may I say, the spirit of brotherhood.

‘‘There is much for the Negro to do as well as the white.

We must use tact and wisdom. It will take conferences,

thinking and planning and working side by side. More

largely than is realized, we are good, loyal, American

citizens. And whether we be north, east, south or west,

we shall put forth every effort to meet the requirements

of our new status.’’

There is reason to believe that given the opportunity for

voluntary local action and sufficient time an effort will be

made on the part of educational leaders of both races in

Florida to work together to achieve the goal set by the

Court.

United States Senator Spessard L. Holland of Florida,

speaking of desegregation, said in a press interview (Tampa

Tribune, August 28, 1954, page 1):

‘We cannot spend ail our time in vain regrets, but

rather time must be spent in trying, as apparently the

State Cabinet has been doing along with officials and

educators of both races at the local level, to learn how

to bring it about.”’’

On July 15 and 16, 1954, the Continuing Educational

Council of Florida met in Tallahassee to consider the prob-

lem of desegregation. This Council is composed of repre-

sentatives from virtually all civic, labor, veteran and edu-

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cational organizations in the state. Seventy members of

the Council were present at the Tallahassee meeting and

the future course of Florida schools in the light of the

Court’s decision in the Brown case was discussed for two

days. At the end of its deliberations the Council adopted

the following motion:

‘‘Based on information and reports at this time, the

Council joins with the request of the State Cabinet,

heretofore made, whereby the Attorney General of

Florida take every step necessary to prepare and file

a brief which Florida and several other states have

been invited to submit when consideration is given this

October to the ‘when’ and ‘how’ provisions of the

Court’s judgment in the recent decision holding segre-

gation unconstitutional. It now appears that this brief

should emphasize among other things the following:

1. The maximum time possible should be granted the

states affected. 2. Compliance with regard to time

should be on a local basis; the time requirement be-

cause of mores and conditions will vary within coun-

ties of each state. 3. Enforcement provisions of the

judgment’s requirements should be left to the Courts

of first instance.’’

Additional agreements which were reached by a large

majority of the Council in discussion of the Supreme Court

decision on segregation were as follows:

1. ‘‘The public school system of Florida should be

maintained and improved. Nothing should be done

which will destroy these schools or cause them to retro-

gress in any way.’’

2. ‘‘The citizens of Florida will wish to abide by the

laws of our nation, but time for necessary adjustments

is essential if serious problems are to be avoided.’’

3. ‘*The problems of adjustment are different in each

county and in various communities within each county.

Responsibility for solution of these problems rests

with the citizens and authorities within these local

areas.’’

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4. “‘A committee from the Continuing Educational

Council, with outside representation as well, is to be

appointed. Its function is to suggest multiple plans

by which desegregation may be implemented. Among

the ideas developed would be the suggestion that local

groups of white and Negro citizens make careful ap-

praisal of existing conditions with the idea of pro-

ceeding gradually and in an orderly manner toward

compliance with our National Constitution.”’

5. ‘‘A committee of nine representatives from the Con-

tinuing Educational Council is to meet with a repre-

sentative group of State Negro leaders for the purpose

of developing a joint statement to serve as a guide to

both races in working out the problems ahead.’’

On July 30th, 1954, fifty representative Florida Negro

leaders met at Edward Waters College in Jacksonville to

study the problem of integration of Florida schools. As a

result of this meeting a committee of nine was selected to

meet with a similar committee of the Continuing Educa-

tional Council of Florida for the purpose of studying ways

and means of implementing the Supreme Court’s decision

in Florida.

On September 10, 1954, a committee representing the

Continuing Educational Council, and a committee repre-

senting the Leadership Conference, a recently convened

meeting of Negro leaders, met in Tallahassee to consider

jointly some of the problems posed by the recent Supreme

Court decision that segregation in the public schools is

unconstitutional.

After lengthy consideration and frank discussions of the

various viewpoints of both whites and Negroes, the joint

committees agreed upon the following motion:

**1. THAT, in a democratic society, public education is

of paramount importance;

THAT the State of Florida has made significant gains

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in recent years in the quality of its educational pro-

gram and in the educational opportunities for all the

youth of the State;

THAT the State of Florida cannot afford the educa-

tional or economic loss which would occur if we per-

mitted a disruption of this program;

THEREFORE, we believe that we must maintain and

support a strong system of public education for all the

youths of the State and that the citizens of Florida in

their local contacts, through constant education and

study, should work for the general education of all

the people as prescribed by the laws of our State and

Nation.

2. THAT we endorse the filing of the proposed brief by

the Attorney General for the purpose of preserving the

system of public education in the State of Florida when

a final interpretation has been rendered by the Supreme

Court.

3. THAT we urge this Committee to continue to work

on the processes necessary for ultimate compliance with

the law;

THAT we encourage the organization of similar groups

at the local level, i.e., school community by school com-

munity, to work toward the same objectives.”’

The motion was approved unanimously.

The Lakeland Ledger in an editorial August 29, 1954 said:

‘*In his annual speech to his home folk in Bartow on

Friday, Senator Holland took occasion to talk about

abolition of segregation in public schools...

‘*That attitude is the only one with which the problem

now at hand can be solved, and it is the attitude of all

clear thinking citizens in the South.

‘“‘Tf the process is not rushed, there will be a good

chance of making the adjustment harmoniously over

a period of years.

‘*Tf forces in the North that are unfamiliar with con-

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ditions in the South insist upon rushing matters, there

is certain to be harmful friction.

‘‘The level-headed view such as that expressed by

Senator Holland must prevail.’’

The Tampa Morning Tribune in an editorial August 26,

1954, said:

‘‘In the brief which he is preparing to submit to the

Supreme Court by October 1, Attorney General Ervin

asks the court to go slow in ordering actual compliance

with its edict of May 17 outlawing segregation. Mr.

Ervin said:

‘My purpose in filing the brief is to try to show the

court that Florida, from practical considerations, is

not ready for desegregation immediately, but that if

it must come eventually, it should come only after a

reasonable period of time and then only on a county

to county or local basis pursuant to administrative de-

terminations made by local school authorities. It is en-

tirely possible that if the court will authorize this course

many of the situations will not be too difficult to solve,

given time to work them out.’

‘‘That, in our view, is sound sense and should appeal

to the judgment of the high court. It is apparent that

a change in the existing order can be effected only

through careful and patient effort, on a local basis.

Also it may prove necessary to have action by ihe

Florida Legislature to properly implement the change.

The essential issue is the dividing line between federal

and state authority.”’

The St. Petersburg Times of August 27, 1954, reported

a speech by County School Superintendent Floyd Christian

of Pinellas County to a meeting of Negro school teachers,

as follows:

‘*Pinellas County Negro teachers were urged as leaders

of the community ‘to work patiently, calmly and sen-

sibly’ on the segregation problem so that all can con-

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tinue working together for the growth of the com-

munity...

‘*We live under the law and must follow the law. Riot-

ing, hatred and action would wreck our school system

and is not the answer. Florida must never try to abolish

public education. Turning the schools into private in-

stitutions is certainly not the answer. Any such action

would prove disastrous to the quality of education and

in the end would be judged by the Supreme Court as

being an effort to circumvent the provisions of the

Constitution of the United States.

‘‘What I am saying is in my opinion Florida should

not try to circumvent the law. Any such action would

encourage an attitude of general disregard for law

and in the long run will only increase the difficulties

without contributing anything toward the solution of

the problem...

‘‘There is another reason why this problem will have

to be approached with education and understanding.

I don’t believe that here in the South, where you have

had separate schools for nearly a hundred years, that

an immediate court decision to stop it and integrate the

students can be done successfully. I don’t believe you

can legislate the people into doing this, they will have

to be led by a systematic plan of education and this, of

course, Will take time.’’

The Ft. Myers News-Press in an editorial August 28,

1954, said:

‘‘A number of Fort Myers citizens have received by

mail this week circular letters purporting to come from

the Ku Klux Klan which attempt to fan the flames of

racial intolerance over the school segregation issue and

make a bid for Klan recruits.

‘‘The letters enclose an application blank for mem-

bership in the Klan returnable to an Orlando post office

box. Whether they represent a bona fide recruiting

drive by the Klan or just an effort of some crackpot

or promoter trying to cash in on the current anxiety

over prospective desegregation in the schools, the re-

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cipients have no way of knowing, although Orlando

always has been a hotbed of Ku Kluxism and the appli-

cation blank probably is genuine.

‘There is nothing doubtful, however, about the hate

literature enclosed with the KKK circulars. The fat

envelopes—so bulky that most recipients had to pay an

extra three cents postage due—-were crammed with

highly inflammatory articles against the Negro race

and slanders against various public officials and indi-

viduals fit only for the sewer. In the delicate situation

which now confronts both whites and Negroes arising

from the Supreme Court anti-segregation ruling—a

situation that calls for all the calmness and clear think-

ing that can be mustered—outpourings such as this are

not only unhelpful but dangerous.’’

The Orlando Sentinel in an editorial August 19, 1954,

said:

‘‘As a result of a survey recently completed by an

interracial committee appointed by the attorney gen-

eral, it has been made perfectly clear that even in Flor-

ida many people of both groups are not ready to send

their children to the same school together, and that

law enforcement agencies are not prepared to enforce

such laws or to prevent the violence which would arise

under such circumstances.

‘‘The problem varies from community to community

just as it does from state to state and the difficulty in-

creases in direct ratio to the number of Negroes present.

It would be a relatively simple matter to enforce de-

segregation in a community where there would be only

one or two Negroes in a classroom, as would be the case

in most northern cities. It is not so simple where the

numbers of the two races are more nearly equal.

‘*This happens to be the case in many of our smaller

north and west Florida towns, as well as in most of the

rural areas of South Carolina, Georgia, Alabama and

Mississippi. In some Florida cities, however, particu-

larly in South Florida, there are relatively few Negroes

and the opposition to their admittance to white schools

is not so prevalent.

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—

‘*Clearly it would be unfair to expect public officials

to overcome the problems of integration all at the same

time without regard to the difficulties involved. The

Supreme Court should take cognizance of the inherent

differences among individuals as among communities

and leave the problem of when desegregation can safely

be accomplished to local authorities.’’

The Miami Herald in an editorial of May 24, 1954, said:

‘*Anticipating that the United States Supreme court

might end segregation in the schools, as it did last week,

Florida leaders have been quietly taking stock of the

state’s educational resources.

‘‘They recognized that the change, when it came, would

be the most momentous since the War Between the

States, and no family would escape its effects.

‘“‘What this study showed was that Florida has made

more progress in Negro education, probably, than any

other state with segregation, and is in a better posi-

tion to meet the challenge of the court ruling.’’

These meetiugs and examples of editorial opinion may

appear insignificant but when considered in relation to the

fact that they took place in a State which still has three

counties where no Negroes have registered to vote (see

page 178, Appendix A), and whose peace officers are over-

whelmingly opposed to desegregation in any form (see

Table 3, page 138, Appendix A), they should not be ignored.

We believe that any attempt to compel an immediate de-

segregation in Florida schools would constitute a shock

treatment so drastic that any further efforts on the part

of these and similar groups would be promptly nullified.

Such efforts on the part of citizens’ committees of both

races can only take place as voluntary manifestations of

good citizenship. They cannot take place in an atmosphere

of fear and coercion.

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F. Regional

Variations

One of the most important factors which has emerged

from our study of the segregation problem in Florida is the

clear indication of marked regional variations in the in-

tensity of the feelings of the people.

The State of Florida is unlike other Southern states in

one significant respect. Geographically it is large and

sprawled out over an area of a thousand miles extending

from Pensacola in West Florida to Key West on the south-

ernmost tip.

Between these two extremes can be found startling dif-

ferences in the social customs and traditions of the people

inhabiting the various counties.

Generally speaking, the influx of people from northern

states has tended to settle in South Florida and this has

altered to some extent the social pattern of South Florida

counties, whereas North and West Florida counties have

remained to a large extent populated by people of Florida

or Southern ancestry who cling to Southern traditions and

customs.

It must be emphasized, however, that this type of gen-

eralization is apt to be misleading because counties and

communities may be found in South Florida where the de-

gree of racial differences in feeling may be even more pro-

nounced than -n the northern part of the state.

These variations indicate that there may be communities

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in Florida where conditions are such that local school offi-

cials would feel justified in proceeding within a relatively

short time to integrate the white and Negro schools. On

the other hand, there are many counties, notably those

having a large Negro population, where it is apparent that

any attempt to bring about immediate desegregation would

result in violence and bring the school system to a complete

standstill.

These variations in community attitudes and conditions

preclude the practicability of any overall, statewide de-

tailed plan, time schedule or target date for desegregation

which might be evolved. We believe that whatever plan

and time schedule is adopted in each community must, if

it is to be workable, have been produced through the efforts

of the local school officials who understand the specific prob-

lems involved and who must be willing to undertake to

make the plan work. We do not believe that the courts

should undertake to perform the functions of local school

boards and we do not believe that this Court should insist

on a plan of action which, in its efforts to guard the rights

of some, must necessarily forsake the rights of all others.

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G. Discussion

In suggesting an affirmative answer to question 4B, we

have attempted to take into consideration the wide range

and complexity of the problem. We know that from its

common-sense practical aspects a successful implementation

requires the blending of the best administrative and judicial

techniques over a reasonable period of time which will vary

in each school district or county, dependent upon the cir-

cumstances. Admitted that segregation has been held un-

constitutional as a class discrimination, that does not mean

that transition to the actuality of non-segregated educa-

tion can be accomplished immediately or without planning

and preparation and administrative actions.

The public welfare of the segregated states is involved

in the transition along with administrative details. It would

be unwise not to permit the exercise of reasonable regula-

tions under the police power during the transitional period

in the interest of peace in the community and good order

and safety in the schools. The white people of the segregated

states have too long relied upon the doctrines expressed in

Plessy v. Ferguson, 163 U. 8S. 537, 16 S. Ct. 1138, 41 L. Ed.

256 (1896) to be expected to accept complacently the new

order. Our survey amply bears this out.

Therefore, we most earnestly and sincerely urge the

Court to permit that degree of latitude necessary to the

segregated states and the county school boards therein

to bring about an effective gradual adjustment to inte-

gration so as to soften and ameliorate the transition

and preserve peace and order in the communities and the

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Bikes ne SRNR I eR EFF

schools in the process and that these officials be accorded

the discretion to make the transition successfully and

effectively in good time and good order.

Even though it has been held the Negro child should not

be discriminated against in his public education nor unduly

postponed in his enjoyment of it, surely that right is not so

absolute, so compelling in its nature, that reasonable admin-

istrative procedures necessary for the public welfare can-

not be asserted during the transition period. If there ever

was a condition which needs elasticity in the application

of constitutional guaranties to meet it, certainly it is the

transition period from the segregated school system to the

non-segregated school system in the various schools of the

South.

By a concurrent application of prudent and sensible ad-

ministrative and judicial techniques the problem may even-

tually be solved. But the Court should always allow the

states involved and their officials, both state and local, the

opportunity to first work out the problem and accord to

their determinations a wide degree of discretion and lati-

tude in the integration. The Court has said in Minersville

School District v. Gobitis, 310 U. S. 586, 60 S, Ct. 1010, 84

L. Ed. 1375, (1940), it would not make itself the school board

of the country. That does not mean the Court, beginning

with the court of first instance, would not always reserve

the judicial authority to review and probe. It would ex-

ercise this authority where in proper cases duly brought

it was alleged the county school board had not made the

requisite effort in good faith to desegregate in line with

appropriate criteria or factors which we believe the Court

will outline in its implementation decision. Parenthetically

and most earnestly, we urge the Court to accept the factors

we have outlined, believing them to be essential to suc-

cessful implementation in the light of problems involved.

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-.,

Nha Bi tar aha ok ha

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Part Two

Specific Suggestions

to the Court in

Formulating a Decree

Introductory Note

We do not suggest delay merely for the sake of delay

itself. We do suggest that sufficient time be permitted for

a gradual effective adjustment to desegregated schools to

take place in each community.

The period of time required will vary in each community

dependent upon its administrative problems and the attitude

of its people. The length of this period of transition in each

instance can only be determined by the local school authori-

ties subject to the review of the courts of first instance

when called upon to consider specific suits brought because

of a disagreement with the school authorities over admis-

sion policies.

We do not believe that any court should at any time

attempt to peremptorily compel school officials to integrate

schools in a community when it is apparent that such action

will create hostility and resentment to such a degree that

the schools cannot be operated in an orderly manner.

We believe that any attempt to establish an overall

specific plan for desegregation by the United States Su-

preme Court as a result of recommendations of a special

master would be totally unrealistic and would in effect place

this Court in the position of attempting to function as the

county schoo] board of the counties affected.

We believe that the courts of first instance should also

avoid any attempt to exercise administrative powers nor-

mally delegated to school officials. They should not be

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required to spell out in specific detail the means by which

they would require a school district to comply with the

new requirements of the law. Rather, let them leave to

responsible local school authorities the task of drafting

plans for transition, and then apply to each such plan pre-

sented in the course of litigation the test of good faith.

Widespread white hostility to immediate, enforced inte-

gration of the public schools is a fact of life in Florida, and

is just as real a factor in considering the future of public

education as schoo] finance, school construction or any other.

We ask only this; that school officials not be deprived of

the right to recognize local factors related to the welfare of

public schools and to exercise the same discretion in dealing

with the feelings of the people regarding segregation that

they would exercise in dealing with any other local condition

or problem that directly affected the proper operation of the

public schools.

We urge, therefore, that the Supreme Court remand

these cases to the courts of first instance—in all but one

of these cases federal district courts—and that it vest in

the courts of first instance broad discretionary powers to

determine as findings of fact (1) what should be a reason-

able time for transition in any given case, and (2) whether

or not specific plans for compliance with the Court’s general

directive prepared by responsible local school officials

measure up to the broad test of good faith.

We offer the following specific suggestions for the con-

sideration of the Court in the formulation of its decree:

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y= ee eee

Specific Suggestions

I. It is suggested that the United States Supreme Court

in its implementation decision or decree adopt the pro-

cedure contemplated in questions 4 (b) and 5 (d) as stated

in the footnote in the Brown decision:

‘4 (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?’’

**5 (d) should this Court remand to the courts of

first instance 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?’’

II. It is suggested that the United States Supreme Court

in its implementation decision in the Brown case direct that

the courts of first instance consider all suits brought to gain

admittance to a specific school and claiming discrimina-

tion because of color, in accord with the following general

directions:

A. The petitioner must affirmatively show;

(1) That admission to the school in question was re-

quested by the petitioner within a reasonable time

before the beginning of the school term.

(2) That the petitioner resides within the limits set

by normal geographic school districting of the school

he seeks to enter.

(3) That admission to said school was denied by

the local school authorities and that all other admin-

istrative remedies such as appeal to the State Board

of Education (where provided by law) have been

exhausted.

B. It is suggested that the court of first instance con-

duct hearings, take testimony, determine the merits

of the petition and the answer thereto and the equitable

reasons which may exist which would justify the school

authorities in refusing to approve the petitioner’s ap-

plication for admission to the school in question. In

conducting such proceedings, the court should consider:

(1) Evidence as to whether the state school authori-

ties and legislature have had a reasonable amount

of time to reorganize the legal provisions of the

state schoo] structure to comply with the Brown

decision.

(2) Evidence of good faith on the part of the school

authorities in seeking to comply with the Brown de-

cision and integrate the public schools. Such evi-

dence should include:

(a) Efforts previously made and in progress to

overcome practical, administrative problems en-

countered in integrating schools as proclaimed by

this Court.

(b) Efforts previously made and in progress to

promote citizens’ educational committees and in-

terracial committees for the purpose of improving

racial relations in the community and avoiding

racial antagonisms in the schools.

(3) Evidence and recommendations submitted by in-

terracial citizens’ committees which may be organ-

ized pursuant to law for the purpose of assisting the

local school authorities, or evidence and recommen-

dations submitted by impartial survey and fact-

finding teams which may be created by the State

Board of Education pursuant to its administrative

powers.

(4) Evidence of existing administrative problems

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of integration which have not as yet been solved and

which would jeopardize the efficient operation of the

school system if the petitioner’s application for ad-

mission was granted immediately.

(5) Evidence of such a strong degree of sincere op-

position and sustained hostility on the part of the

public to the granting of the petitioner’s applica-

tion, as to give the school authorities reasonable

grounds to believe that immediate approval of the

petitioner’s application would cause a disruption of

the school system or create emotional responses

among the children which would seriously interfere

with their education. Such evidence should be care-

fully analyzed by the court to determine its validity

and all evidence of this nature which might appear

to be simulated or fabricated for the purpose of con-

tinuing segregated schools in the community should

be rejected.

(6) Evidence that the petitioner’s application was

made in good faith and not for capricious reasons.

Such evidence should demonstrate:

(a) That the petitioner personally feels that he

would be handicapped in his education, either be-

eause of lack of school plant facilities or psycho-

logical or sociological reasons if his application for

admission is denied.

(b) That the petitioner is not motivated in his ap-

plication solely by a desire for the advancement

of a racial group on economic, social or political

grounds, as distinguished from his personal legal

right to equality in public school education as

guaranteed by the 14th Amendment. This distine-

tion should be carefully drawn. This Court has

ruled that segregated schools are forbidden by the

14th Amendment because they may deprive the

Negro of an equal opportunity in acquiring an edu-

cation. During the process of desegregating schools

it should always be kept in mind that the sole legal

purpose of public schools is to educate. The

public school system has never been permitted

under Florida law to extend its activities into the

ai pak bets

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SFE PAL LOIS, BLO BL OLE AIRES AE VBARBE LEAL LK ARLE IEVC LE FEA LAD 0 OS, ONC

field of public welfare or related purposes. It is

not the purpose or within the legal authority of

the Florida public school system to provide a di-

rect means of improving the social, political or

economic status of any group or individual except

as such improvement may in time result from edu-

cation itself. Public schools are not intended to

provide experiments in race relations or to use

children as sociological guinea pigs in the solution

of problems in many walks of life which adults

have not been able to solve by other means.

III. It is suggested that based upon the testimony and

evidence submitted, the court of first instance may either:

(A) Order that the petitioner’s application for admis-

sion to the school in question be granted forthwith, if

it appears that the petition was made in good faith

and that there exist no reasonable grounds for delay

on the part of the school board in approving the peti-

tioner’s application for admission.

(B) Dismiss the petition if it appears that it was not

made in good faith and well founded in law according

to the interpretation of the 14th Amendment by this

court in the Brown.case. ~

er’s application in abeyance for a reasonable period of

time to allow for further adjustment to a single school

system if necessary, with directions to the school au-

thorities to proceed to overcome as soon as possible

the practical or psychological and sociological factors

which prevent an immediate approval of the peti-

tioner’s application.

If the latter alternative is found to be necessary by

the court it should include in its order the following:

(1) Fix a time for rehearing of the petitioner’s appli-

cation by the court within a stated reasonable time

at which hearing additional testimony and evidence

will be received and the circumstances justifying

delay in approving the petitioner’s application for

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admission will be re-evaluated by the court in the

light of altered conditions and a supplemental order

entered in the case in accord with the findings of the

court.

(2) Direct the scho ' authorities to formulate and

submit to the court within a reasonable time a plan

designed to overcome the practical and psychological

obstacles which tend to prevent an immediate inte-

gration of the schools under their jurisdiction. The

effectiveness of the plan submitted and the efforts

which the school authorities have made in good faith

to carry it out should be considered by the court on

subsequent rehearing of the case in determining

whether additional delay is justified in granting the

petitioner’s application for admission.

Part Three

Legal Authority of the Court to Per-

mit a Period of Gradual Adjustment

and Broad Powers of Administrative

Discretion on the Part of Local School

Authorities.

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A. Judicial Cases

Permitting Time

Many decisions of the United States Supreme Court and

the State Supreme Courts have recognized the necessity for

granting a reasonable time in which to comply with the

decree of the Court to avoid hardship or injury to public

or private interests.

The present decision requires more consideration of the

problem of time and adjustment than in the earlier cases

since it is apparent that it involves a vast problem of human

engineering, as contrasted to previous delays for adjust-

ment granted in anti-trust cases, nuisance cases, and similar

cases where economic problems of great magnitude con-

fronted the courts.

I. United States v. American Tobacco Co., 221 U. S. 106,

31 S. Ct. 632, 55 L. Ed. 663 (1911). Recognizing the need

for adjustment to its remedies in dealing with the unlawful

combinations under the Sherman Anti-Trust Act, the Court,

in order to avoid and mitigate possible injury to the interest

of the general public, decreed the commercial combination

to be illegal; and directed the Court below to hear the

parties, ascertain, and determine a plan or method of dis-

solution, and to recreate a condition in harmony in law.

To accomplish this, the Court granted a reasonable period

(8 months) to effectuate its decree, while prohibiting any en-

largement of the corporation’s monopoly during this period.

Briefly stated, six months, with a possible extension of

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sixty days, was granted in which to work out a plan for

dissolving a combination found to control the tobacco in-

dustry in violation of the Anti-Trust Act of July 2, 1890

(26 State at L. 209, Ch. 647, USC Title 15, s1), and creating

out of the elements composing it a condition which would

not be repugnant to the prohibitions of the Act.

II. In Standard Oil Co. v. U. S., 221 U.S. 1, 31 8. Ct.

502, 55 L, Ed. 619 (1910), the Court again recognized the

need for time in putting into effect its decision. In this

case Chief Justice White stated that the magnitude of the

interests involved and their complexity required that six

months be given in which to execute a decree for the dis-

solution of a holding company controlling the oil industry

% in violation of the Anti-Trust Act of July 2, 1890, and for

the transfer back to the stockholders of the subsidiary cor-

porations of the stock which had been turned over to the

holding company in exchange for its own stock.

In the area of nuisance litigation, the Supreme Court has

often recognized the need for a period of gradual transition

in order to effectuate decisions. In the Case of New Jersey

v. New York, 283 U.S. 473, 75 L. Ed. 1176, 51 8. Ct. 519,

(1931), the State of New Jersey sued New York City in

the United States Supreme Court for an injunction restrict-

ing the dumping of New York City’s garbage into the ocean

off the New Jersey coast. Injunction was granted in the

opinion by Butler, J., affirming a special master’s report.

A decree was entered, declaring that the plaintiff State of

New Jersey was entitled to an injunction as sought in the

complaint; but that before (italics supplied) an injunc-

tion was issued, a reasonable time would be accorded to the

defendant, within which to carry into effect its proposed

plan for the erection and operation of incinerators to

destroy the waste materials which were being dumped off

the New Jersey coast, or to provide other means to be

approved by the decree for the disposal of such materials.

i BP Pte ee ee ot

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Reasonable time was a question of fact to be decided

upon by the same special master, after hearing and evalu-

ating all witnesses’ testimonies from each party or witnes-

ses which the master may select to be heard. The master was

then to report to the court his findings and a form of decree.

On a rehearing of the case on December 7, 1931, (284 U.S.

585,75 L. Ed. 506, 52 8, Ct. 120) a decree was entered by

the Supreme Court prohibiting any further dumping of

refuse, etc., into the ocean off the coast of New Jersey.

Said decree was to become effective on and after June 1,

1933, and progress reports were to be filed with the clerk

of the Supreme Court on April 1 and October 1 of each

year beginning April 1, 1932, setting forth the progress

made in the construction of incinerator plants, etc., for the

final disposition of garbage and refuse, and also the amount

of material dumped at sea during the periods covered by

such reports.

Provision was also made in the decree that upon the re-

ceipt of said reports, and on due notice to the other party,

either party to the suit could apply to the Court for such

action or relief with respect to the time allowed for the con-

struction, or method of operation of the proposed incinera-

tor plants, or other means of final disposition of garbage,

etc., as may be deemed appropriate. In other words, the

flexibility of the decree permitted frequent re-evaluation to

promote the greatest justice to all parties.

On May 29, 1933 (289 U. 8.712) Mr. Chief Justice Hughes

announced a new order, based on the failure of New York

City to comply with the decree of December 7, 1931. The

defendant asked that the time for taking effect of the in-

junction be extended from June 1, 1933 to April 1, 1934.

It was ordered that these applications be heard on Novem-

ber 6, 1933, that E. K. Cambell be appointed Special Master,

empowered to hear witnesses, issue subpoenas, take evi-

dence offered by interested parties, and also such as he

may deem necessary to show:

(A) What shall have been done by defendant city,

up to September 15, 1933, and the time reasonably re-

quired to enable it to comply with the decree.

(B) The amounts spent by the plaintiff New Jersey

to prevent harm to its beaches, waters, etc., subsequent

to June 1, 1933, and the damages sustained by them as

a result of New York’s failure to comply with the de-

cree.

The Special Master’s findings were subject to considera-

tion, revision, or approval by the Court.

On December 9, 1935 (296 U.S. 259, 80 L. Ed. 214, 56

S. Ct. 188), Mr. Justice Butler announced a new decree

modifying in effect the decree of December 4, 1933. The

latter decree enjoined New York City from dumping refuse

off the New Jersey coast, stipulating a five thousand dollars

($5,000.00) a day penalty for failure to comply. On October

7, 1935, New York City sought a modification of the decree,

and asked for a petition to have New Jersey show cause

why a ruling could not be made to the effect that ten miles

(10) off shore dumping is satisfactory as to non-floating

material, or, in the alternative, why the Court should not

modify its decree so as to permit the defendant to dump

non-floating sewage as aforesaid.

Defendant’s motion for leave to file was granted.

I ee er Cn Ee eee ee

It should be noted that the original decree was handed

down in 1931 and continued modification took place for some

four (4) years in order to effectuate the original decree.

Recognition for additional time was given each time the

case reappeared before the Court.

Ill. The Supreme Court again recognized the need for a

calm period of gradual transition to effectuate its decree,

in the Gaseous Nuisance Cases in which it took some nine

(9) years to implement its decrees.

LIM CO tale Te ee et

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—

The first case was that of Georgia v. Tennessee Copper

Co., 206 U.S. 230, 51 L. Ed. 1038, 27 8S. Ct. 618 (1907).

In this case the State of Georgia sought to enjoin the de-

fendant copper companies from discharging noxious gases

from their works in Tennessee over the plaintiff’s territory.

The State alleged that such discharges were destroying

entire forest, orchard, and crop lands, and that irreparable

injuries were being done and threatened in five counties of

Georgia. A preliminary injunction was denied, but, as there

were grounds to fear that great and irreparable damage

might be done, an early day was fixed for the final hearing,

and the parties were given leave, if so minded, to try the

cases on affidavits. Mr. Justice Holmes held that if the

State of Georgia adhered to its determination, there was

no alternative to issuing an injunction, after allowing a

reasonable time for the defendants to complete the strue-

tures then being built, and efforts the companies were mak-

ing to stop the flow of fumes and gases into Georgia. The

plaintiff Georgia was permitted to submit a form of decree

on the coming in of the Court in the following October.

Eight (8) years later, on May 10, 1915, the Supreme

Court again heard the same case, in the State of Georgia

v. Tennessee Copper Co. and Ducktown Sulphur, Copper,

€ Iron Co., Ltd., 237 U.S. 474, 59 L. Ed. 1054, 35 S. Ct. 631

(1915).

This case is a continuation of the earlier one, supra

(1907), in regard to the nuisance of gaseous fumes harming

the property within the State of Georgia. In the earlier case,

hope was entertained that some practical method of sub-

duing the noxious fumes could be devised and by consent,

the time for entering a final decree was enlarged. Both

companies installed purifying devices. The original de-

fendant, Tennessee Copper and Georgia, entered into a

stipulation whereby the former undertook annually to

supply a fund to compensate those injured by fumes from

its works, to conduct its plant subject to inspection in speci-

fied ways, and between April 10 and October 1, not to

‘‘operate more green ore furnaces than it finds necessary to

permit of operating its sulphuric acid plant at its normal

full capacity.’’ The State of Georgia agreed to refrain

from asking for an injunction prior to October, 1916, if

the stipulation was fully observed. Ducktown Company and

the State were unable to agree, and in February, 1914,

the latter moved for a decree according a perpetual in-

junction. Consideration of the matter was postponed upon

representation that conditions had materially changed since

1907, and leave was granted to present additional testimony

“‘to relate solely to the changed conditions,’’ if any, which

may have arisen since the case was then decided. A decree

was granted restraining the Ducktown Company from con-

tinuing to operaie its plant other than upon the terms and

conditions set out by the Court (Decree set forth in 237 U.S.

678, 59 L. Ed. 1173, 35 S. Ct. 752 (1915) ).

A new decree was issued April 3, 1916 in 240 U.S. 650, 60

L. Ed. 846, 36 S. Ct. 465, (1916). This decree modified the

former decrees as to the escapement of fumes, as to records

to be kept in regard thereto, and also as to expense of in-

spection and division of costs.

The three(3) cases, dealing with the problem of escaping

nuisances, cover a span of nine (9) years (from 1907 to

1916). It illustrates how long a period is required to adjust

to incorporeal changes and strongly suggests that human

changes obviously require greater periods, since human

emotions are not as easily controlled as are gaseous mate-

rials from sulphur and copper plants. Recognition of the

need of calm planning in good faith to reconcile difficult

problems has often been illustrated by the Court in con-

texts of economic and social changes as a result of its

decisions.

PRR SS RR ARIE EG AS I LM CREB ENO OE MOSEL NY SOT me

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IV. In People of the State of New York v. State of New

Jersey and Passaic Valley Sewerage Commissioners, 256

U.S. 296, 65 L, Ed. 937, 41 8. Ct. 492 (1921), at page 313,

Mr. Justice Clarke, in refusing to grant injunction relief

against the operation of sewerage disposal by New Jersey

into New York Harbor, wisely stated:

‘‘We cannot withhold the suggestion, inspired by the

consideration of this case, that the grave problem of

sewage disposal presented by the large and growing

populations living on the shores of New York Bay is

one more likely to be wisely solved by cooperative study

and by conference and mutual concession on the part

of Representatives of the States so vitally interested

in it than by proceedings in any Court however con-

stituted.’’

This quotation strongly suggests the need for time to

work out these difficult intangible relations, in an atmos-

phere of cooperation and reason, rather than a tremendous

disruption of social and economic conditions.

V. In the case of Martin Bldg. Co. v. Imperial Laundry

Co., 220 Ala. 90, 124 So. 82, the Supreme Court of Alabama

recognized the need for time in the use of injunctive

relief. In a suit by the owner of an office building to en-

join a laundry from emitting smoke over the complain-

ant’s premises, the basis of the suit was the discomfort to

the building’s tenants, endangering of their health, and the

resulting loss of tenants. The question of the abatement of

the nuisance by improved technological laundry methods

had to be further considered before the Court would grant

or refuse injunctive relief, in view of suggested means of

reducing amount of smoke by use of stokers. This acted to

delay the force of the injunctive relief sought.

B. Administrative Discretion

Cases

The use of administrative discretion and its limits have

often been spelled out by the Court in the areas of adminis-

trative agencies. The Court has consistently emphasized

that supervision and discretion should lie with the adminis-

trative agencies in the conducting of their functons as

economic and political governing boards. Such emphasis is

closely related to the administrative discretion which should

exist in school boards, also.

I. In United States v. Paramount Pictures, 334 U. S. 131,

92 L. Ed. 1260, 68 8. Ct. 915, (1948), Mr. Justice Douglas

reviewed a decree in an injunction suit by the United States

under the Sherman Act to eliminate or qualify certain busi-

ness practices in the motion picture industry. A provision

in the decree that films be licensed on a competitive bidding

basis was eliminated by the Supreme Court as not likely to

bring about the desired end as involving too much judicial

supervision to make it effective. This elimination was held

to require reconsideration by the district court of its pro-

hibition of the expansion of theatre holdings by distributors

and provisions for divesting existing holdings. The pro-

priety of including in the decree a provision for voluntary

arbitration of questions arising thereunder was indicated,

and denial of applications for leave to intervene by persons

challenging the eliminated provision for competitive bid-

ding was upheld.

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Mr. Justice Douglas was strongly opposed to the judiciary

administrating industry, and favored voluntary arbitration:

At page 163 he stated:

‘*It would involve the judiciary in the administration

of intricate and detailed rules governing priority, per-

iod of clearance, length of run, competitive areas, rea-

sonable return and the like. The system would be apt

to require as close a supervision as a continuous re-

ceivership, unless the defendants were to be entrusted

with vast discretion. The judiciary is unsuited to af-

fairs of business management; and control through the

power of contempt is crude and clumsy and lacking in

the flexibility necessary to make continuous and de-

tailed supervision effective.’’

The implications of Mr. Justice Douglas’s opposition to

; judicial administration of intricate and detailed rules in the

economic field could readily apply to the social relationship

’ and problems created by the recent holding in the Brown

case.

II. Further evidence of the broad discretion that was

permitted by the Supreme Court in administrative agencies

is evidenced in the case cf Alabama Public Service Commis-

sion v. Southern Railway Company, 341 U.S. 341, 95 L. Ed.

1002, 71 S. Ct. 762, (1951). A railroad, prohibited by state

law from discontinuing trains without permission of the

state public service commission was denied such permission

on the ground that though the trains were being operated

at a loss there was a public need for the service. Alleging

3 that irreparable loss would result either from continued

operation of the trains or from incurring the penalty im-

posed by state law for discontinuance without the commis-

sion’s permission, the railroad sought and obtained an in-

junction in a federal district court against the enforcement

of the statute.

anibinechitagtis eran

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The U. 8. Supreme Court, through Chief Justice Vinson,

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reversed the district court, and held that the federal court’s

exercise of such jurisdiction should, on considerations of

comity, be withheld on the ground that the state law pro-

vided for review of the commission’s order in the state

courts and for its stay pending such review.

Some persuasive language in support of state administra-

tive discretion appears at pages 347-348:

‘‘The Alabama Commission, after a hearing held in the

area served, found a public need for the service. The

court below, hearing evidence de novo, found that no

public necessity exists in view of the increased use and

availability of motor transportation. We do not at-

tempt to resolve these inconsistent findings of fact.

We take note, however, of the fact that a federal court

has been asked to intervene in resolving the essentially

local problem of balancing the loss to the railroad from

continued operation of trains . .. with public need for

that service...directly affected....’’ (Italics sup-

plied).

More support to the finality of the discretion of the com-

mission is found on page 348:

‘* .,. and whatever the scope of review of commission

findings when an alleged denial of constitutional rights

is in issue, it is now settled that a utility has no right

to relitigate factual questions on the ground that con-

stitutional rights are involved. New York v. United

States, 331 U.S. 284, 334-336 (1947)....’’ (Italics sup-

plied)

More directly in point, at pages 349-350 is found the

following:

‘ ‘* |, . as adequate state court review of an administra-

tive order based upon predominantly local factors is

available to appellee intervention of a federal court is

not necessary for the protection of federal rights. Equi-

table relief may be granted, only when the District

Court, in its sound discretion exercised with the ‘seru-

pulous regard for the rightful independence of state

SARNIA OE

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governments which should at all times actuate the fed-

eral courts,’ is convinced that the asserted federal right

cannot be preserved except by granting the ‘extraordi-

nary relief of an injunction in the federal courts.’ Con-

sidering that ‘few public interests have a higher claim

upon the discretion of a federal chancellor than the

avoidance of needless friction with state policies,’ the

usual rule of comity must govern the exercise of equi-

table jurisdiction by the District Court in this ease... .”’

(Italics supplied)

And again at page 351, ‘‘It is in the public interest

that federal courts of equity should exercise their

discretionary power to grant or withhold relief so as to

avoid needless obstruction of the domestic policy of

the states....’’

Ill. Further evidence of the broad discretion permitted

by the Supreme Court to state administrative agencies is

found in the case of Burford v. Sun Oil Co., 319 U. S. 315,

87 L. Ed, 1424, 63 S. Ct. 1098 (1943). In this case the Sun Oil

Co. attacked the validity of an order of the Texas Railroad

Commission granting the petitioner Burford a permit to

drill oil wells on a small plot of land in the East Texas oil

fields. The U. S. District Court for the western district of

Texas dismissed the suit by the Company; the Circuit Court

of Appeals reversed the District Court. The Supreme Court

through Mr. Justice Black reversed the Circuit Court of

Appeals, and affirmed the District Court.

The Supreme Court held that a federal equity court may

properly decline to exercise its jurisdiction invoked because

of diversity of citizenship of the parties and alleged in-

fringement of constitutional rights; to determine the valid-

ity of a state commission order, made under the authority

of a conservation statute, granting a permit to drill oil wells

on certain property, adjacent to lands owned by the com-

plainant, where the state has provided a uniform method

for the formation of policy and determination of cases by

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the commission and the state courts; and where the judicial

review of the commission’s decisions in the state courts is

expeditious and adequate; and where intervention by the

lower federal courts is likely to cause delay and conflicting

interpretation of the state law, dangerous to the success of

state domestic policies.

The Court, at page 320, explicitly states:

‘‘The primary task of attempting adjustment of these

diverse interests is delegated to the Railroad Commis-

sion, which Texas has vested with ‘broad discretion’

in administering the law.’’

The Court points out that the Texas courts have the

power of thorough judicial review of the decisions of the

Railroad Commisson; and that the Texas courts are work-

ing partners with the Commission in the business of creating

a regulatory system for the oil industry. The Commission

is charged with principal responsibility for fact finding and

for policy making and the courts expressly disclaim the

administrative responsibility. On the other hand, orders

of the Commission are tested for ‘‘reasonableness’’ by trial

de novo before the state court, and the Court may on oc-

casion make a careful analysis of all the facts of the case

in reversing a Commission order. The state court may even

formulate new standards for the Commission’s adminis-

trative practice, and suggest that the Commission adopt

them.

The Supreme Court recognized that the existence of prob-

lems throughout the oil regulatory field creates a possibility

of serious delay which can injure the conservation program ;

and that it may be necessary to stay federal action pending

authoritative determination of difficult state questions.

It recognized that questions of state regulation of the oil

industry so clearly involve basic problems of Texas policy

that equitable discretion should be exercised to give the

Texas courts the first opportunity to consider them.

Meno

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IV Concrete evidence of the Supreme Court’s adher-

ence to complete administrative discretion is found in the

case of Far Eastern Conference, United States Lines Co.,

States Marine Corporation, et al. v. United States and Fed-

eral Maritime Board, 342, U. S. 570, 96 L. Ed. 576,72 8. Ct.

492 (1952). The suit was brought by the government to en-

join the dual rate system established by an association of

steamship companies known as the Far East Conference.

The companies never submitted the rates to the Federal

Maritime Board for approval, as provided for in §15 of the

Shipping Act (46 USC §814). The defense, that the issues

involved were of such a technical nature calling for the

application of administrative exercise as to make it im-

proper to bypass the Board, was upheld by the Court

through Justice Frankfurter.

It was held that the administrative agencies should not

be bypassed by the Courts in cases raising issues of fact

not within the conventional experiences of judges or in

cases requiring the exercise of administrative discretion,

even though the facts, after they have been appraised by

specialized competence, serve as a premise for legal conse-

quences to be judicially defined. ”

V. ‘‘But the courtroom is not the arena for debating

issues of educational policy. It is not our province to choose

among competing considerations in the subtle process of

securing effective loyalty to the traditional ideals of de-

mocracy, while respecting at the same time individual

idiosyncrasies among a people so diversified in social

origins and religious alliances. So to hold would in effect

make us the school board for the country.’’ Minersville

School District v. Gobitis, 310 U.S. 586, 60 S. Ct. 1010, 84

L. Ed. 1375 (1940), at 310 U. 8. 598 (Italics supplied).

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Parenthetically, the Court, in this case recognizes its

limitations in the abstract sciences, with this language at

page 597:

‘The precise issue, then, for us to decide is whether

the legislatures of tie various states and the authori-

ties in a thousand cc inties and school districts of this

country are barred f::om determining the appropriate-

ness of various means to evoke that unifying sentiment

without which there can ultimately be no liberties, civil

or religious. To stigmatize legislative judgment in pro-

viding for this universal gesture of respect for the sym-

bol of our national life in the setting of the common

school as a lawless inroad on that freedom of conscience

which the Constitution protects, would amount to no

less than the pronouncement of pedagogical and psy-

chological dogma in a field where courts possess no

marked and certainly no controlling competence.”’

Constitutional guarantees of personal liberty are not

always absolutes. Government has the right to maintain

public safety and good order.

Keeping the control of public education close to the local

people is perhaps the strftagest tradition in American edu-

cation. One of the predominant characteristics of American

education is the variation in local policies and procedures

in terms of unique local conditions. This is in sharp con-

trast to the highly centralized national system of education

of other countries.

VI. ‘‘Civil liberties, as guaranteed by the Constitution,

imply the existence of an organized society maintaining

public order without which liberty itself would be lost in

the excesses of unrestrained abuses.’’ Cox v. New Hamp-

shire, 312 U. 8S. 569, 61 S. Ct. 762, 85 L. Ed. 1049

(1941) at 312 U.S. 574.

u- :

preme Court in Barbier v. Connolly, 113 U. 8. 27, 5 S. Ct.

357, 28 L, Ed. 923 (1885), said at page 31:

VII. Speaking of the 14th Amendment, the U. S. S

‘But neither the amendment—broad and compre-

hensive as it is—nor any other amendment, was de-

signed to interfere with the power of the State, some-

times termed its police power, to prescribe regulations

to promote the health, peace, morals, education and

good order of the people...’’ (Italics supplied)

VIIL. In Euclid v. Ambler Realty Co., 272 U. S. 365, 47 8.

Ct. 114, 71 L, Ed. 303 (1926), it said at page 387:

‘*Regulations, the wisdom, necessity, and validity of

which, as applied to existing conditions, are so apparent

that they are now uniformly sustained, a century ago,

or even a half century ago, probably would have been

rejected as arbitrary or oppressive ... while the mean-

ing of constitutional guaranties never varies, the scope

of their application must expand or contract to meet

new and different conditions which are constantly

coming within the field of their operation ... Laws and

regulations must find their justification in some aspect

of the police power, asserted for the public welfare.”’

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C. Remarks

The aforesaid summary shows the wise recognition by the

Supreme Court in the past of the need for time in effecting

certain economic changes in our society in order to allow a

period of healthy adjustment in sensitive areas. The cases

also show a recognition of the need for adequate local dis-

cretion in the same areas. This line of reasoning should be

applied to the even more sensitive area of desegregation

which presents a vast problem of human engineering to re-

solve the social changes sought.

Samuel Gompers, one of Amcrica’s greatest labor leaders

recognized this fact some years ago when he stated:

‘‘One fact stands out in bold relief in history of

men’s attempts for betterment. That is that when com-

pulsion is used, only resentment is aroused, and in the

end nothing is gained. Only through moral suasion and

appeal to men’s reason can a movement succeed.’*

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Part Four

Considerations Involved

in Formulating Plans

For Desegregation

A. Changes

in the Law

Dr. Rupert B. Vance, Professor of Sociology, University

of North Carolina, past president of the American Socio-

logical Society, writing in the Journal of Public Law,

Emory University Law School, Vol. 3, Spring 1954, Number

1, page 42, says:

‘‘National prohibition offers an example of a change

in law which did not carry through to change in the

collective behavior and attitudes of society. In spite of

our respect for the Constitution, resistance increased

and law enforcement was insufficient to bring about

social change. This resistance assumed the form of

violations, as well as evasions, of the law. Under this

situation it can be said that the 18th Amendment was

repealed in order to preserve respect for the law. This

occurred in spite of the fact that the initial change

had the support of public opinion as represented in

the (1) affirmative vote of legislatures of the states,

and was implemented both by (2) federal legislation,

as in the Volstead Act, and (3) supporting legislation

in many states. For students of social change, the con-

trast with a decision of the Supreme Court is impres-

sive.

‘*Thus, while students of law realize that social change

ean be and has been implemented by legal enactment

and judicial decision, it is also realized that resistance

to social change is of many types. Here we can say

that jurisprudence, as a social science, has shared in

the responsibility of determining the extent to which

any desired social change is enforceable by law. Laws

may be violated, and they may be evaded. Evasion

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LILES REBELS BIT BEE OT ID eRe ETL! RE aaiNn ten \ PONE YT PY ARERR STOR hig

—

carries the implication of driving a course through

gaps in the law, if not actually breaking it. Important

to the courts, to public order, and to the profession is

the whole field of conflict of laws. Oftentimes, the

change ordered by legal enactment and judicial decision

is so limited in scope that no actual evasion is drawn

upon to block social change. Some times modes of ad-

justment may exist within the choice of individuals

and groups—alternatives sanctioned in legal codes. It

is in this borderline between public and private spheres

of life that the doctrine of social change is of most im-

portance to students of jurisprudence. It must be re-

membered that issues will be decided, not on the basis

of an assumed code of ethics, but on the basis of what

ts enforceable within the system of legality.’’ (Italics

supplied)

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B. Plans for Integration

The problem involves, among other things, the collective

conscience or mores of our white citizens regarding segre-

gation. That conscience simply stated, although of varying

degrees of intensity, is that our people are not ready for

desegregation. This was demonstrated conclusively by the

survey which was made in Florida. This conscience is in-

grained because it was nurtured and cherished throughout

many generations as a way of life. It is deep-seated and its

roots rest in fears of inter-marriage of the races, racial dif-

ferences, superstitions, history, traditions and customs.

This community conscience until the Brown case had

long years of legal sanction in the field of public education.

Elimination of this legal sanction by no means eradicates

* the underlying collective conscience of the people in this

field. This attribute of the problem simply cannot be suc-

cessfully solved overnight.

This the Court undoubtedly appreciated by not making

its desegregation decision immediately effective. Its ques-

tions and its delay of implementation indicate that it is

conscious of what may be termed the equities of transition.

The Court, we believe, is imbued with the need for gravity

and for prudent concern in dealing with this collective con-

science.

We think it realizes the need for social engineering, time,

patience and community understanding. It senses the need

for conditioning and education if implementation is ever

to be a real success,

Free men are not automatuns capable of being molded

vane

and transformed forthwith by a new and revolutionary

judicial concept which does not square with their collective

conscience.

The enormity of the problem of compliance gives great

pause. We do not deal with implementation of a decree

against a single individual or even a minority. A successful

response to the judgment requires reconciliation to it of a

great majority of our people. The Court on its part needs for

the enforcement of its decree the amelioration of time which

is said to be a great Healer. It needs the rallying of those

who will stand by the law of the land because it is such

whether they agree with it or not and the patience of wise

administration which eschews haste, precipitate action and

premature procedures.

The Court stands not in need of the whip and the scourge

of compulsion to drive our people to obedience, but rather

the rational solution of time in which the loyalty, patience

and understanding of the law-abiding will come forward

and lead the way to peaceful, reasonable and successful

compliance.

Not only to be consjdered is the need of reconciling this

collective conscience to desegregation but others of im-

portance to be considered include the safety of school chil-

dren, the peace of the community, the mutitudinous admin-

istrative problems affected, the impact upon teachers’ jobs,

particularly Negro teachers’, the transportation of school

children, the revisions of laws and regulations, the redis-

tricting of attendance areas, the reallocation of physical

school plant facilities and others involved in the transition

from a segregated school system to a non-segregated system.

All require time, wise administration and patience for their

solution.

Gradual effective adjustment to integration presupposes

that there will be a plan. But because there is a wide variety

of local conditions, no specific plan can be outlined which

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would be acceptable under all conditions and in all com-

munities.

We think integration must proceed in Florida on a county

by county basis because of the fundamental differences in

various areas of the state which we have attempted to

demonstrate in this brief.

A great many plans for integration have been developed

in Florida and other states and all of them have their ad-

herents. A plan of gradual integration starting with the

first grade and working on up through high school over

a 12 year period is believed by some advocates to be the

answer for their community but it is rejected in other places.

Another plan for beginning the integration process at

the college level and gradually working down to the first

grade can be supported by valid arguments, but it too is

rejected by many educational leaders as being unworkable

in some communities.

Other plans which have been advanced include a gradual

reorganization of school attendance areas; designated

schools whose students will be composed of volunteers from

both races during the transition period; a simultaneous in-

tegration of all school grades over a period of time based

on the scholastic level of the students as determined by ex-

aminations. These and many other plans are being consid-

ered by school authorities whose job it will be in the final

analysis to devise a plan which will be accepted and will

work in their particular school districts.

The one factor which all of these plans share in common

is the need for sufficient time to carry them out and the

one point on which agreement can be reached by school

authorities who are willing to undertake a program of in-

tegration is that the plan adopted for their specific area

must be unique in that it will take into consideration the

exact problems of that area and no other.

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Bi...

If this planning and action is permitted by the Court,

we believe that local school authori

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