Jurisdictional Statement — Turner v. Fouche

Supreme Court brief1970

Ask Donna

What actually matters in this document.

Text

JOHN F. DAVIS, CLERK

IN THE

Supreme Court of the United States

— Term, 1968 2 9

WD, ailesstbteesss

Carvin Turner, et al.,

Appellants,

—V.—

W. W. Fovucue, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

——————_$—_——

JURISDICTIONAL STATEMENT

j Jack GREENBERG

MicHsEL MELTSNER

10 Columbus Circle

New York, New York

Howarp Moore, Jr.

Peter Rixpskopr

85914 Hunter Street, N. W.

Atlanta, Georgia

Attorneys for Appellants

INDEX

PAGE

I SII tins ceisasserssiiiiceiiianssicininhsnihdnneahcesniidbaniddapaaba 1

RS MIER SENET Le snemc air PE a et as a ee eM 1

(onstitutional and Statutory Provisions Involved ........ 2

ID GUNES ccnjnscnhciastenssisiigusecnsssnibiciebdetabisietasaialbchats 3

STITT -sdcesstovelinesnieectiex napeecasiinia ts hctainsdabdieecebasteinoani 3

The Questions Presented Are Substantial ...................... 11

I. Ga, Code Ann., Tit. 59 §§101, 106 Are Uncon-

stitutionally Vague and Discriminate Against

Negroes by Permitting Their Arbitrary Ex-

clusion From Service as Jury Commissioners

and Jurors in Violation of the Fourteenth

Amendment to the Constitution of the United

Se NRE aR ere tient Moy SNC Aare Pe CT 11

II. Georgia Constitutional and Statutory Provi-

sions for Selection of School Board Members

Operate in Taliaferro County to Exclude Ne-

groes From Participation in the Selection of

Board Members in Violation of the Thirteenth,

Fourteenth, and Fifteenth Amendments to the

Constitution of the United States

a GOEDEL MGI HIP OMAP IEG SAT STNG LG: EAR BA LS LANE UA IRI}

PAGE

III. The State’s Restriction of Membership on

County Boards of Education to Freeholders

Violates the Equal Protection Clause of the

Fourteenth Amendment 200.00...0...0..00ccececccecceceee 24

CIR. dicticichattantiine ete 98

APPENDIX:

Opinion and Order ......... singh demmeetaionecncipennahocsheniiseni: 29

fe ERR Oy ST 38

Constitutional and Statutory Provisions Involved 40

TABLE or CasEs

Abington School District v. Schempp, 374 U. S. 203

LURE \ctcitutacsscsateesinnee ieee ee ie eae 27

Anderson v. Martin, 375 U. S. 399 (1964) wooo... 2

Baggett v. Bullitt, 877 U. S. 360 (1964) ooo 1)

Baxstrom v. Herold, 383 U. S. 107 (1966) 0.00.0. 24

Board of Supervisors v. Ludley, 252 F. 2d 372 (5th

rk SOD paca. alieaiolehiee ttn ect er 16

Bond v. Floyd, 385 U. S. 116 (1966) 20... eceeceecsececccceees 2

Bostick v. South Carolina, 386 U. S. 479 (1967) ........ 13

Brown v. Allen, 344 U. S. 433 (1953) oceans 16

Brown v. Board of Education, 347 U. S. 483 (1954) .... 2

Brunson v. North Carolina, 333 U. S. 851 (1948) ........ li

Cassell v. Texas, 339 U. S. 282 (1950) 0... li

Cline v. Frink Dairy Co., 274 U. S. 445 (1927) _..... 15

Commercial Pictures Corp. v. Regents of University of

New York reported with Superior Films, Inc. v. De-

partment of Education, 346 U. S. 587 (1954) 00000... 15

iii

PAGE

Commissioners of Chatham County v. Savannah Elec-

tric and Power Co., 112 S. E. 2d 665, 215 Ga. 636

TI) arn nnss ness essresnen-negeivnensnsnrnnensernossnanimanenacercnasennesenanenee 27

Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala.)° aff’d

per curiam, 366 U. S. 983 (1949) 02-2 eects 15

Edwards v. South Carolina, 373 U. S. 229 (1963) ........ 15

Giaccio v. Pennsylvania, 383 U. S. 339 (1966) ................ 15

Gideon v. Wainwright, 372 U. S. 335 (1963) -....00........ 25

Gomillion v. Lightfoot, 364 U. S. 339 (1960) ............ 20, 22

Griffin v. Illinois, 351 U. S. 12 (1956) ..............000.. 25

Gulf, Colorado and Santa Fe Ry. v. Ellis, 165 U. S.

SUITED "vse ces:sstoaedpansicigsnannanssiiebitionseblopiivetcuiabinantiioamsanecnkeanbeen 24

Harper v. Virginia Board of Elections, 383 U. S. 663

| Ee a Cone hy

Herndon v. Lowry, 301 U. S. 242 (1937) ...................c000 15

Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S.

IE MINED , pinnso-scdeodebuiseiowtcviiesiiaotcnilinieeibitaoin inthditabibianiitih 2

Joseph Burstyn, Ine. v. Wilson, 348 U. S. 495 (1952) ... 15

Labat v. Bennett, 365 F. 2d 698 (5th Cir. en vane

SITE sine tonivths sniadsdicncamashinuaiinnbbacins ioueaadh tind tthiailancibteaale 12, 16

Landes v. Town of Hempstead, 231 N. FE. 2d 120, 20

GR) | eer. Seen 26, 27

Lane v. Wilson, 307 U. S. 268 (1939) ........................0.. 22

Louisiana v. United States, 380 U. S. 145 (1965) ....15, 16,

17, 22

MacDougall v. Green, 385 U. S. 281 (1948)

Mitchell vy. Johnson, 250 F. Supp. 117 (M. D. Ala. 1966) 11

Neal v. Delaware, 103 U.S. 3870 (1881)... «17

Nixon v. Condon, 286 U. S. BRINE ooactisicrececesieesuscccece 20)

Nixon v. Herndon, 273 U. S. 536 (1927) ..00... 20)

Pierce vy. Ossining, —— F. Supp. ——- No. 68 Civ. 4150

[So mm. 3. Sroeeaed Nov, 1, 1906) ..........00................ 26

Rabinowitz v. United States, 366 IF. 2d 34 (5th Cir.

en banc 1966) .................. BEIGE. FRE RE A at ee 13

Reynolds v. Sims, 377 U.S. 538 (1964) . pay a ame ae 19, 21

Sailors v. Board of Education of Kent County, 387

a cassspamnitnininnsnbooms 19, 21

Shelley v, Krae ner, 384 U.S. 1 (1948) oe 20

Sims v. Baggett, 247 F. Supp. 96 (M. D. Ala, 1965) .... 21

Skinner v. Oklahoma, 316 U.S. 585 (1942) oc. 24

Slaughter House Cases, 88 U.S. 86 (1878) 20000. 22

Smith v. Allwright, 321 y S. 649 (1944) .... ww... 22

Smith v. Bennett, 365 U. 708 (1961) .. ae 25

Smith v. Paris, 257 F. “el 901 (M. D. ‘Ala. N. D.

SD I GU 0, NF isn ccc aweccnsvevnseesseecensesseconenss 9

Smith v. Texas, 311 U. S. 128 (1940) 0. 13, 16

South Carolina v. Katzenbach, 383 U.S. 301 (1966) .... 15

Staub v. City of Baxley, 355 U.S. 313 (1958) 000000... 15

Terry v. Adams, 345 U. S. 461 (1953)... 20, 23

Turner v. Goolsby, 255 F. bak 724 (S. D. Ga. 1965) .... 4

PAGE

United States v. Atkins, 323 F. 2d 733 (Sth € r. 1963) 15

United States v. L. Cohen Grocery Co., 255 U. S. 81

RUD stenrensanceces<sniessaomincinuaenetpesiniskicphoaveciatniindiasaiaaanne 15

United States v. Mississippi, 880 U. S. 128 (1965) ... 16

Whitus v. Georgia, 385 U. S. 545 (1967) 00... 13, 14

Winters v. New York, 333 U.S. 507 (1948) _0000 0. 15

TABLE OF STATUTES

Alabama Code Tit. 30 $21 (2960) .......cccccc..nccccccccccnccessees 12

Arizona Rev. Stat. Ann. $21-201 (1956) -..000000000.. 12

Arkansas Stat. Ann. §39-101 (1962) ....0000000 ul. 12

Arkansas Stat. Ann. §39-206 (1962) 0.0000. 12

Arkansas Stat. Ann. $39-208 (1962) ....00000000002.. see 12

Connecticut Gen, Stat. Ann. $51-217 (Supp. 1965) —...... 12

Florida Stat. Ann. Tit. 5 $40.01 (1961) oo. 12

SS WES es CW REEs DW y WU. xniscsnunncsinacccemasaecuananne 2, 7,8

Ga. Code Ann. Tit. 2 $6801 000... iovshease adel 2, 7, 8, 9, 24

I PONISI oicaccivexcuspaceosinondevntinmmmaea aaa dl 27

SME ARMA, UR, GU GOP oc cnsicinesccssnsckcnschnsnlenenabepenell 2, 8, 24

I RIN, Dec MIR DUE gaincceninenecinncincecnenceaoncebanisounine’ 2

INI MEPIS Me WUE SPIE ansscescneannrosnsnnocnensanonmnennaninaionce 2

IIE UN PUR WEE UMD... ....c.ccconsncaneosoxtenedeapenianecunaiens 2

Sie 5 2, an TC OR Ree 27

I IL, WW QE RAE ooo cocernnsssscnensnctrcharmeinacereneess 26

Rn NO, Us. WE OE OUT... cs sssinsvscrmamsnaseanaammccacancs 26

Ga. Code Ann. Tit. 59 $101 _... see Te iniieiedociniteinieaentaa 2,7, 11,14

Ga. Code Ann. Tit. 59 6106

3 PAGE

5 Illinois Ann. Stat. Tit. 78 §2 (Smith-Hurd Supp. 1966)»

4 Towa Code Ann. §601.1 (1950) ..........sscecccccseeeceecsssesssee i

H Kansas Stat. Ann. §43-102 (1964) 2.0 -----eeeeeceeeene L

: Louisiana Rey. Stat. Ann. §13-3041 (1950) 0.22.0... P

; Maine Rev. Stat. Ann. Tit. 14 §1254 (Supp. 1965) _...... I

3 Maryland Ann. Code Art. 51 §9 (Supp. 1966) ........... I

‘ Michigan Stat. Ann. (274.1202 (Supp. 1965) ............... i

5 Missouri Ann. Stat. §494.010 (Supp. 1966) .................. i

: Nebraska Rev. Stat. (25-1601 (1964) ooo... r

3 New York Judic. Law §504(5) (Supp. 1966) 0.00... 1:

| North Carolina Gen. Stat. §9-1 (1953) 000020. 13

; Oklahoma Stat. Ann. Tit. 38 §28 (Supp. 1966) -.......... li

F South Carolina Code Ann. §38-52 (1962) 00000000000... 1}

: Texas Rev. Civ. Stat. Ann. §2133 (1964) .................... 1

' eR SOPRA laser Mot Re

: SE Gee A AN a Bl AP tet

4 Be i eID csi ccnscnrrasie nemcegptienidanetaedaenais

4 a nN !

‘ i eta a

: RN OT ce a i ee a 1

4 Be oetcs ocean gases ciieralgstiendonecaibcaiinctalaocn ry

ES RR Ee eee

4 Ee pea Spee aN !

i EN ERR ane SINT 1

4 42 U.S. C. $1994 oeccccneeseeceen

; Be 0s ee ass cc ccecciclecnietrncnanele !

‘ TT I encores

SOLER LLORES NET ATION, VLE LER LEIS NED LOE ISGS REESE SD SEE EI ES

ag at ls a : PASE

Vii

West Virginia Code Ann. §52-1-4 (1966) 000.

Wisconsin Stat. Ann. §255.01(5) (1957) 2.

OTHER AUTHORITY

Kuhn, “Jury Discrimination: The Next Phase,” 41

oo ©. Low Bev. 2 (70) .............................

IN THE

Supreme Court of the United States

Octoser Term, 1968

Ta - stgtieninnenes

Cavin Turner, ef al.,

Appellants,

—_—V.—

W. W. Fovucue, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

JURISDICTIONAL STATEMENT

Gpinion Below

The opinion of the court below is as yet unreported and

is set forth in the appendix, p. 29, infra.

Jurisdiction

This is an action for injunctive and declaratory relief

in which the jurisdiction of the district court was invoked

under 28 U. S. C. $§1331(a), 1343(3)(4), 2201, 2202; 42

U. S. C. $§1981, 1983, 1988, 1994, 2000d and 2000e; and

the Fifth, Ninth, Thirteenth, Fourteenth and Fifteenth

Amendments to the Constitution of the United States. The

complaint sought, inter alia, to enjoin the continued en-

| Fe te

Ceca sem Se aT AR se BOP ET Ea a a

ed Say ase

an ie

wale we en

ITE LED LT LMS DPA PLL IL IO ISIE L LOLI TOLLE LES,

forcement and operation of Georgia’s constitutional and

statutory scheme for the selection of jurors and members

of county boards of education, A statutory three-judge

court was convened pursuant to 28 U. S. C. §§2281, 228)

An opinion and order finding “no merit in the three.

judge district court questions presented” (infra, p. 36)

was entered August 5, 1968 and a final judgment and decre

entered on September 19, 1968 (infra, p. 38). Timely no.

tice of appeal to this Court was filed in the court below

on October 14, 1968. On December 2, 1968, Mr. Justice

Black ext aded the time for filing a Juvisdictional State.

ment to and including February 8, 1969.

Jurisdiction of this Court is invoked pursuant to 2%

U.S. C. §1253 to review the judgment of the district court.

That court was properly convened pursuant to 28 U.S. ¢.

§2281 because the action seeks to restrain enforcement of

state statutes and constitutional provisions on the ground

that they violate the Federal Constitution. See e.g., Idle.

wild Bon Voyage Liquor Corporation vy. Epstein, 370 U.S.

713 (1962).

Constitutional and Statutory Provisions Involved

The Georgia constitutional and statutory provisions in-

volved in this litigation are the following: Article VII],

Section V, paragraph I, of the Georgia Constitution of

1945 (Title 2, Section 6801, Georgia Code Annotated) ; See

tions 32-902, 32-902.1, 32-903, 32-905, 59-101, and 59-106 of

Georgia Code Annotated. These enactments are set out

in full in the appendix to this statement at pp. 40-45, infro.

This action also involves the Thirteenth, Fourteenth and

Fifteenth Amendments to the Constitution of the United

States.

Questions Presented

1. Whether Georgia’s restriction of service on juries to

the “upright and intelligent” and on jury commissions to

the “discreet” violates the Fourteenth Amendment where

both provisions provide an “opportunity to discriminate”

racially which has been “resorted to”?

9, Whether the Georgia system of selection of school

board members violates the Thirteenth, Fourteenth and

Fifteenth Amendments where Negroes constitute over sixty

percent of the population, fifty percent of the electorate,

and all of those attending public schools, but only a dis-

proportionate minority of those who appoint board

members ?

t. <cleel fe ¢ i: S

u 3. Whether Georgia’s restriction of service on jwmaes to

if freeholders violates the Fourteenth Amendment?

Statement

J A. Introduction

Despite the fact that approximately 62% of the residents

and 50% of the registered voters in Taliaferro County,

Georgia are Negro (infra, pp. 31, 32)' (II-132)? and all of

‘Citations to the transcript of the first hearing in the district

court are as follows: (I- ). Citations to the second hearing are

F shown as: (II- _).

di * Aecording to Census of Population, 1960, Table 27, pp. 12-130,

. and Table 28, pp. 12-148, the population of the county is:

White - Sao

SUITE cesdiitehedasnishtempecciatiansic 2,096

White (over 21) _. 877

Negro (over 21) _... 979

White (over 18) ......._- 917

Negro (over 18) —......... 1,073

LEIS: BEL, Le Be AE NS SO I

“a

cad

‘a

eu Te: he ato RN MM a hae IED.

ad BR ENS

wae Rn ont

pels iy MAR aN ee ns a

AMS ID LIED POG GL GGA IAL ELE LDAP L AL OD OP OGG IDEN REE EPA D - -

the teachers and children who attend public schools of the

country are Negro (Admissions 8, 11), the five-man county

school board never had a Negro member until one was

appointed as a consequence of this litigation (1-15, 37; IL.

6, 7; Admissions 4, 5, 6). (School board members are

selected by the county grand jury by a process described

infra, p. 7.) The white children of the county fled the

system several years ago to attend private schools or pub.

lie schools in other counties as part of “an effort to avoid

desegregating the school system of Taliaferro County,”

Turner v. Goolsby, 255 F¥. Supp. 724, 731 (S. D. Ga. 1965),

The Turner opinion describes in detail the complicity of

the board of education and school superintendent in “the

expenditure of... public funds for transporting the white

children to adjoining counties” (255 F. Supp. at 729) as

well as their part in an alleged “conspiracy . . . to have

secretly and covertly arranged for all the white children to

leave the county for school in other counties...” (255

F. Supp. at 727-28). The district court in Turner attempted

to halt these practices by taking control from the board

and placing the system in receivership. The receivership,

however, was terminated several months later without any

of the white children returning, and they have still not

returned to the system (Admission 8). None of the defen.

dant board members themselves had children attending the

publie schools (Admission 7): both members with chil.

dren sent them to schools in another county (1-83).

Negro parents believed that they were unable to alter

continued operation of a segregated school system, and that

the white school board was, at worst, hostile and, at best,

unresponsive to the needs and desires of the students

actually attending the schools (1-155). The experience of

abs 1g daboad

Negro parents that the school board would not even listen

to their opinions and grievances strengthened that belief

(1-127). Repeated attempts by appellant Calvin Turner

and members of the Voters League, a civie group, to ap-

pear at school board mectings were unsuccessful. The time

of scheduled meetings could not be determined despite at-

tempts to obtain information from the board chairman

(1-125-6, 143). When reached by phone his attitude was

brusque and unhelpful (1-151, 152). A registered letter

sent to him went unanswered (1-125-6). A change in the

time of regular board meetings went unpublicized, contrary

to law (11-104).

One parent, Mrs. Mary Allen, was invited to visit her

child’s classroom by the Negro principal, After the white

superintendent observed Mrs. Allen in class, the classroom

teacher was told: “Miss Hadden, discontinue this class

until the parents (si¢) leave’-(1-168). Mrs. Allen subse-

quently asked to be allowed to organize a parents-teachers

association in order to “have some kind of communication

with the teacher” (1-173). The principal of the high school

informed her that this could not be done because the super-

intendent had refused permission (1-173). When a group

of parents attempted to appeal that decision, and present

other grievances to the board, the board abruptly adjourned

its meeting without responding to any of the complaints.

The course of the meeting was described at trial (1-177):

“Judge Bell: How long did you stay in there?

The Witness: About ten minutes.

Judge Bell: And then they moved that the meeting

be adjourned?

The Witness: That’s right, and put the heater out.

They had the heater on and a gentleman put the heater

Ae DPA ris ar aa ever Cees: Sem aed bhai ees,

neat Ae eet nn aa ws studs

out and we walked out. He started putting the lights

out too and we walked out and then they closed the

door.

Judge Bell: Did they give you an answer at all as

to your complaints?

The Witness: No answer.

Judge Bell: No answer?

The Witness: No, sir.

Judge Bell: Have you had one since then?

The Witness: No, sir.”

Mrs. Allen stated her opinion of the school system as

follows:

“You can’t even talk with the teacher, and can’t go and

sit in the classroom and can’t talk to the board, can't

talk to anybody, nothing about your problems” (1-173).

Shortly after her experience with the school board she

moved to another county for the benefit of her child. Her

purpose in moving, she said, was “to get communication”

(1-178).

B. Initiation of Litigation

On November 15, 1967, appellants, a registered Negro

voter residing in Taliaferro County, his daughter, a stu-

dent in the publie schools of the county, and a Negro resi-

dent of the county who is not a freeholder brought this

action against members of the board of education, jury

commission and grand jury of the county. Appellants al-

leged that they, and others similarly situated, were denied

rights guaranteed by the Thirteenth, Fourteenth, and Fif-

teenth Amendments to the Constitution by the operation

of statutory and constitutional provisions of the State of

Georgia which authorize an intertwined and multi-layered

scheme for the selection of school board members and

jurors. Appellants contended, inter alia, that: (1) they

had been denied an opportunity to serve as grand and trav-

erse jurors on account of race (complaint para. 11(d));

(2) beeause of the power vested in the grand jury to select

school board members, they had been denied on account

of race an opportunity to participate in the process of

selecting the officials who administer the schools of the

county (complaint, para. 11(a), (b)); and (3) they had

heen denied on account of their poverty, and the require-

ment that school board members be freeholders, the oppor-

tunity to actually serve as board members (complaint

Il(b)). Beeause appellants sought injunctive relief re-

straining the enforcement of state statutes and constitu-

tional provisions, a three judge court was empanelled

pursuant to 28 U.S. C. §§2281, 2284.

C. The Selection of Jurors and Board Members

The challenged selection process for the grand jury and

school board members begins when a judge of the Superior

Court, elected by the voters of a six county cireuit, appoints

six jury commissioners from among the “discreet” mem-

bers of the community (11-58; Ga. Code Ann., Tit. 59

§101). These commissioners, who for at least the last

50 years have always been white (Admissions 1, 2 and 3;

1-35, 36), then compile a list from among registered voters

who are “upright and intelligent citizens of the county” to

serve as grand and traverse jurors (Ga. Code Ann. Tit. 59

§106; Art. VIIT, $V, TI, Ga. Constitution; Ga. Code Ann.

hurr aptly IPR EEL LILO BASF COI NAGEL RE. Di

Tit. 2 $6801). The grand jury drawn from this list selects

“from the citizens of their .. . count[y], five freeholders,

who shall coustitute the county board of education” ( Art.

VII, §V, {I, Ga. Constitution; Ga. Code Ann., Tit. 32 9902),

The operation of this system is statewide, except in those

counties altering it “by local or special law conditioned

upon approval by a majority of the qualified voters of the

county voting in a referendum thereon” (Ga. Code Ann,

Tit. 2 §6801).

At the first of two hearings in the district court, evidence

was introduced showing that on the jury list most recently

composed, 56 out of a total of 328 eligible traverse jurors

(or 17%) were Negroes (1-118; Plaintiffs’ Exhibit I) and

11 out of 130 on the grand jury list (or 8.5%) were

Negroes, The district court concluded that systematic ex-

clusion of Negroes was taking place and condemned the

;

RR ARES SE

‘ practice:

: “We all know what systematic exclusion is, and when

$ there is as many registered Negro voters in a county

{ as whites and you have 130 to 11 on the grand jury,

4 why that’s systematic exclusion, and that will have to

4 be corrected” (1-200).

: The court adjourned the hearing after informing defen-

3 dants of the court’s power to enjoin racial discrimination

% if a remedy were not devised (1-200, 203).

At the second hearing defendants submitted a report

describing a recomposition of the jury lists without first

notifying counsel for appellants of its contents (II-9). 113

of the 304° persons said to be on the new traverse jury list

-—_——

* Disqualifications left 608 names on the list. Since fewer were

needed, the jury commission alphabetized the remaining names and

discarded every other one reducing the final list to 304 persons.

ATOR NEN MNRAS ey DEMARCO M AG STINT AR TUNG CEM TEER AOE RD LS

were Negroes (37%) and 44 of 121 persons on the grand

jury list were Negroes (367). 32 persons were initially

selected for the grand jury, of whom 9 (or 28%) were

Negro, Of the 23 persons actually selected to serve on the

grand jury, after 9 persons were excused, 6 (or 26% ) were

Negro (11-6). In composing these jury lists, defendants

claimed they started with a roll of all the registered voters

in the county, eliminated from consideration several classes

of persons found to be ineligible, and finally arrived at a

list of persons they deemed fully eligible to serve as jurors.

178 persons excluded were as not conforming to the statu-

tory requirement that jurors be “upright and intelligent.”

171, or 96%, of those excluded by the commissioners were

Negro. The precise criteria used to define uprightness and

intelligence if any, were undetermined* (11-27-32).

At the first hearing Judge Bell remarked that the ab-

sence of Negroes on the board of education “simply will

not do” and stated pointedly that it would be wise if the

school board filled its vacancies with “two outstanding

Negroes ... if you don’t want to do that we will know that

on the 23rd [of February]” (1-201). Two vacancies existed

on the school board at the time of the hearing. At the new

grand jury’s first meeting it confirmed the school board’s

appointment of one Negro and one white to fill the vacan-

cies.*

‘For example, the Jury Commission Chairman testified that he

did not know whether any persons were found to lack a sufficiently

upright character because of having been convicted of a traffic vio-

lation (II-32).

‘The grand jury is authorized to appoint members to the board

except in the case of vacancies occurring for reasons other than

expiration of a term. Such appointments are to be made by the

remaining school board members subject to ratification by the

grand jury at its next meeting (Ga. Code Ann., Tit. 2 §6801). The

vacancies existing at the time of trial were of the latter type.

Seb SR ES SENET TOR TR COPIERS MAAN

eg a eee.

ac ie Se a Be Ot a Ne

DT vie ee

The revision of the jury list and the filling of the school

board vacancies, were both accomplished without public

notice of any kind being posted and without “any effort to

contact anybody or any parents in Taliaferro County’

(11-24, 108). Appellant Turner testified that the Negro

who had been selected under these conditions was unrepre.

sentative of the Negro community (11-147, 151), and that if

Negroes had been afforded an opportunity to choose, they

would have selected someone far more qualified educa.

tionally, and otherwise, to serve (11-151):

“Mr, Casper Evans was taken from the lower bracket,

the very lowest bracket of those persons who have

attained a education” (II-153).°

D. Opinion of the District Court

On August 5, 1968, the distriet court entered its opinion.

The court stated that “the thrust of the complaint is that

Negroes have no voice in school management and affairs”

(infra, p. 30) and it concluded that the reconstitution of

the grand jury was adequate relief. The court upheld the

validity of all the challenged state statutes and constitu-

tional provisions and denied relief, other than the grant

of a general injunction against the systematic exclusion

of Negroes from grand juries. The court held that nothing

in the contested statutes themselves “contemplates or per-

mits . . .. systematic exclusion from the grand juries” and

it affirmed their constitutionality both on their face and as

applied (infra, p. 35). The Court did refer to appellants’

°“I submit”, said Mr. Turner, of the 72 year old man with a

third grade education who was chosen, “that it is the community

that he represents, and the people in that community .. . knew

nothing about the election of Mr. Evans, and . . . this certainly

wouldn’t be the democratic process” (11-139, 147).

, FLL LLL COGENT ALE DIES NC a

SURG ERNPE TNE VI PEI Ne Se OMe Date er e atee! é

prayer that the system be placed in receivership “pending

the selection of new county school board members on a

constitutionally acceptable basis” (complaint, prayer 9).

Appellants’ contention that their rights to equal protection

of the laws were violated by reason of the total exclusion

of non-freeholders as members of the board of education

of the county was rejected:

“(t]here was no evidence to indicate that such a qualifi-

cation resulted in an invidious discrimination against

any particular segment of the community, based on

race or otherwise” (infra, p. 36).

Appellants filed timely notice of appeal to this Court on

October 14, 1968.

The Questions Presented Are Substantial

Ga. Code Ann., Tit. 59 §§101, 106 Are Unconstitu-

tionally Vague and Discriminate Against Negroes by

Permitting Their Arbitrary Exclusion From Service as

Jury Commissioners and Jurors in Violation of the

Fourteenth Amendment to the Constitution of the

United States.

Challenges to racial discrimination in the selection of

jurors have usually been mounted by persons indicted and

convicted by juries from which Negroes were excluded. In

recent years, numerous civil suits have been brought to

require jury selection officials to eliminate race from the

process of selection, e.g., Mitchell v. Johnson, 250 F. Supp.

117 (M. D. Ala. 1966). The present action not aly seeks

to enjoin racial jury selection but challenges the vague

selection statutes themselves, for it is plain that until the

unlimited discretion placed in the hands of local officials

by such statutes is confined by objective standards nop.

racial selection is unlikely.’ The Fifth Cireuit has said.

“It is this broad discretion located in a non-judicial office

which provides the source of discrimination in the selection

of juries.”* Labat v. Pennett, 365 F. 2d 698, 713 (th

*See Kuhn, “Jury Discrimination: The Next Phase,” 41 U. 8. ¢.

Law Rev. 235, 266-82 (1968).

* The following state statutes require jurors to be of a certain

moral character:

Alabama Code Tit. 30 §21 (1959): “all male citizens of the

county who are generally reputed to be honest and intelligent

men and are esteemed in the community for their integrity,

good character and sound judgment. .. .”

Arizona Rev. Stat. Ann. (1956) §21-201: “.. . sober and ip.

telligent, of sound mind and good moral character. . . .”

Arkansas Stat. Ann. (1962): §39-101 Grand Juror: “...

temperate and of good character... .” §39-206 Other Jurors:

“persons of good character, of approved integrity, sound

judgment and reasonably informed. . . .” See also §39-208:

same as 206 and applies to grand jurors.

Connecticut Gen. Stat. Ann. (Supp. 1965): §51-217: “

esteemed in their community as persons of good character, ap-

proved integrity, sound judgment and fair education. .. .”

Florida Stat. Ann. (1961) Tit. 5 §40.01: “law abiding citi-

zens of approved integrity, good character, sound judgment

and intelligence. ...”

Illinois Ann. Stat. (Smith-Hurd Supp. 1966) Tit. 78 §2: “of

fair character, of approved integrity, of sound judgment, well-

informed... .”

Towa Code Ann. (1950) §601.1: “of good moral character.

sound judgment. ...”

Kansas Stat. Ann. (1964) §43-102: “possessed of fair char-

acter and approved integrity... .”

Louisiana Rev. Stat. Ann. (1950) §13-3041: “of well

known good character and standing in the community... .”

Maine Rev. Stat. Ann. tit. 14 §1254 (Supp. 1965): “of good

moral character, of approved integrity, of sound judgment

and well-informed. ...”

(footnote continued on next page)

Cir, en banc 1966); see also Smith v. Texas, 311 U. 8. 128

(1940) ; Rabinowitz v. United States, 366 F. 2d 34 (5th

Cir. en bane 1966).

Recently in Whitus v. Georgia, 385 U. S. 545, 552 (1967)

and Bostick v. South Carolina, 386 U. S. 479 (1967) this

Court condemned statutes which injected race into the

selection of jurymen because they provided an “oppor-

tunity to discriminate.” The vague and subjective intelli-

gence and character standards challenged here provide a

similar “opportunity to discriminate,” an opportunity

which was employed by selection officials, both before and

after this litigation was commenced. Although the num-

ber of white and Negro voters in the county were sub-

stantially the same, only 11 of 130 of those on the grand

Maryland Ann. Code Art. 51 (Supp. 1966) §9: “with spe-

cial reference to the intelligence, sobriety and integrity of such

persons.”

Michigan Stat. Ann. (Supp. 1965) §27A.1202: “of good

character, of approved integrity, of sound judgment, well in-

formed.”

Missouri Ann. Stat. (Supp. 1966) §494.010: “sober and in-

telligent, of good reputation”.

Nebraska Rev. Stat. (1964) §25-1601: “intelligent, of fair

character, of approved integrity, well informed”.

New York Judic. Law (Supp. 1966) §504(5): “of good

character, of approved integrity, of sound judgment”.

North Carolina Gen. Stat. (1953) §9-1: “of good moral

character and have sufficient intelligence to serve”.

Oklahoma Stat. Ann. tit. 38 (Supp. 1966) §28: “of sound

mind and discretion, of good moral character”.

South Carolina Code Ann. (1962) §38-52: “of good moral

character”.

Tezas Rev. Civ. Stat. Ann. (1964) §2133: “of sound mind

and good moral character”.

West Virginia Code Ann. (1966) §52-1-4: “of sound judg-

ment, of good moral character”.

Wisconsin Stat. Ann. (1957) §255.01(5): “esteemed in their

communities as of good character and sound judgment”.

jury list were Negro until suit was filed (infra, p. 32),

During the recomposition process, 96% of the persons found

by the jury commissioners not to be “upright and intel.

ligent citizens” were Negro. All the “discreet” persons

selected to be jury commissioners over a period of 5

years have been white. It is apparent that the inherem

vagueness of the provisions involved at the very least serve

as a convenient mask for discrimination.

Georgia law creates two levels at which virtually un.

limited discretion is delegated to persons possessing ap.

pointive powers. First, the discretion of the judge of the

Superior Court is such that he can disqualify from eli.

gibility for the office of jury commissioner anyone he deems

not to be “discreet” (Ga. Code Ann., Tit. 59 §101). Second,

the discretion of the jury commissioners is such that they

may disqualify from eligibility for service as jurors any-

one they find not to be an “upright and intelligent citizen”

(Ga. Code Ann., Tit. 59 $106). Section 106 further pro-

vides that if at any time “it appears to the jury commis.

stoners” that the jury list is not a fairly representative

cross-section of the “upright and intelligent citizens” of

the county, they shall supplement the list by “going out

into the county and personally acquainting themselves with

other citizens of the county, including upright and intelli-

gent citizens of any significantly identifiable group in the

county which may not be fairly represented thereon.”

(Emphasis supplied.) Thus the statute first provides the

jury commissioners with “the opportunity to discriminate,”

then charges the very same persons with the power to

determine subjectively whether in fact the opportunity

“was resorted to” (Whitus, supra, 385 U. S. 552) and

should be remedied.

_—

It is settled, however, that when constitutional rights

are involved officials may not exercise a discretion which

consists solely of their own judgment unguided by stat-

utory or other guidelines. In other spheres of govern-

mental activity this Court has declared similar language

permitting public officials to make subjective decisions un-

constitutionally vague: “unreasonable charges” United

States v. L. Cohen Grocery Co., 255 U.S. 81 (1921); “un-

reasonable profits” Cline v. Frink Dairy Co., 274 U.S. 445

(1927) ; “reasonable time” Herndon v. Lowry, 301 U. 8. 242

(1937); “sacrilegious” Joseph Burstyn, Inc. v. Wilson, 343

U. S. 495 (1952); “so massed as to become vehicles for

excitement” (a limiting interpretation of “indecent or ob-

scene”) Winters v. New York, 333 U. S. 507 (1948); “im-

moral” Commercial Pictures Corp. v. Regents of Univer-

sity of New York reported with Superior Films, Ine. v.

Department of Education, 346 U. S. 587 (1954); “an act

likely to produce violence” in Edwards v. South Carolina,

373 U. S. 229 (1963); “subversive person” in Baggett v.

Bullitt, 377 U. S. 360 (1964); “reprehensive in some re-

spect”; “improper”; and outrageous to “morality and jus-

tice” Giaccio v. Pennsylvania, 383 U. S. 339 (1966). See

also Staub v. City of Baaley, 355 U. S. 313 (1958); South

Carolina v. Katzenbach, 383 U. S. 301, 312, 313 (1966) ;’

Louisiana v. United States, 380 U.S. 145, 153 (1965); see

also United States v. Atkins, 323 F. 2d 733, 742-743 (5th

Cir. 1963); Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala.)

* Dealing with voting qualifications imposed by South Carolina

Law similar to those of Sections 101 and 106, the Court declared

in Katzenbach, 383 U. 8. at 312-313:

“

. .. the good morals requirement is so vague and subjective

that it has constituted an open invitation to abuse at the

hands of voting officials.”

LORI AOE RIL BBO FEE CLES LE A OP OEE

aff'd per curiam, 336 U. S. 933 (1949); Board of Super.

visors v. Ludley, 252 F. 2d, 372, 74 (Sth Cir. 1958).

Requirements of specificity are at least as necessary jn

a selection system for jurors because “exclusion from jury

service is at war without basic concepts of a democratic

society.” Smith v. Texas, 311 U.S. 128, 130 (1940) and be-

cause, as is true with racial discrimination in voting" (an

analogy especially pertinent here in light of the dual role

of the grand jury system), excessive discretion in the

hands of local officials thwarts nonracial selection. Smith

v. Texas, supra; Labat y. Bennett, supra, at 365 VF. 24

712, 713. Furthermore, while injunctions against racial

selection methods may be sufficient to prevent blatant acts

of discriminatory exclusion, more subtle forms of the prac.

tice survive and will continue to survive as long as such

tools remain available. At the first hearing of this cause,

the lower court, in effect, ordered recomposition of Talia-

ferro County jury list on a non-diseriminatory basis.

While the result was an increase in Negro selection, an

overwhelming proportion of those excluded as not “up-

right and intelligent citizens” were Negro. Thus, under

the existing statutory scheme it may well be possible to

eliminate the total exclusion but not the racial limitation

of Negroes from the jury rolls. It is not, however, only

exclusion but limitation on the basis of race which the

Constitution prohibits: “Discriminations against a race

by barring or limiting citizens of that race from partici-

pation in jury service are odious to our thought and our

Constitution” (emphasis added). Drown y. Allen, 344

*° Condemnation of discretion in the hands of state voting of-

ficials is the heart of two recent decisions of the Court. See United

States v. Mississippi, 380 U. S. 128 (1965) and Louisiana v. United

States, 380 U.S. 145° (1965).

U.S. 433, 470-471 (1953) citing Brunson v. North Carolina,

333 U. S. 851 (1948); Cassell v. Texas, 339 U. S. 282, 286,

987 (1950)."*

It may well be that the jury commissioners in this

county truly believe that of all the registered voters who

are by reason of faulty intelligence or character ineligible

to serve as jurors, 96% are Negroes. They cannot be

enjoined from that belief. It is possible, however, for

them to be prohibited from bringing such opinions, similar

to those branded a “violent presumption” in Neal vy. Dela-

ware, 103 U. S. 370, 397 (1881), to bear upon decisions

as to who should be selected as jurors. As was true in

Louisiana v. United Siates, “the vice cannot be cured by

an injunction enjoining its unfair application” 380 U. S.

145, 150 n. 9 (1965), but only by prohibiting the use of

a vague and subjective standard.

"That an unconstitutional limitation of Negroes has taken place

in Taliaferro County is shown by the fact that in compiling a new

list of jurors, the jury commissioners had 304 names (113 Negroes

or 37%; 191 whites or 63%) remaining after randomly discard-

ing half the registered voters not disqualified. One of the statutory

standards of disqualification, the character test, in effect, operated

to exclude Negroes only: Of the 178 persons excluded, 171 were

Negro, 7 were white. Thus prior to application of the character

test there was approximately a 50-50 percentage breakdown re-

flected on the lists if we assume, as is likely, that the random num-

ber discarded merely halved the numbers of the whites and Negroes

on the initial list. As of all those disqualified by the test, 96% were

Negro, the result of the test’s application was to reduce the Negro

representation on the revised list from approximately 50% (the

proportion of Negro voters) to 37%.

IL.

Georgia Constitutional and Statutory Provisions for

Selection of School Board Members Operate in Talia.

ferro County to Exclude Negroes From Participation in

the Selection of Board Members in Violation of the

Thirteenth, Fourteenth, and Fifteenth Amendments to

the Constitution of the United States.

Although Negroes constitute about 60% of the residents

and 50% of the registered voters in Taliaferro County,

they long have been virtually excluded from jury service,

Because the county grand jury appoints members of the

school board, Negroes were also excluded from member.

ship although since 1965, the public schools have been at-

tended and staffed solely by Negroes, county whites send-

ing their children to private school or to other counties

to avoid desegregation. After a hearing in the district

court established blatant disregard of Negroes’ constitv-

tional rights, the jury commissioners recomposed the jury

list as follows:

113 Negroes ................ 37%

| kN 63%

A new grand jury was chosen from this list composed of:

6 Negroes ............... 26%

BD I seceiercceniisoiiti 74%

The new grand jury then selected one Negro and one

white to fill two vacancies on the board of education leav-

ing the board with four whites and, for the first time in

at least 50 years, a Negro.

Appellants contend in section I, supra, that the jury list,

as revised, violates the Fourteenth Amendment because it

was revised pursuant to unconstitutionally vague state

constitutional and statutory provisions which provide an

opportunity to discriminate on the basis of race. But re-

gardless of whether appellants’ contentions with respect

to the vagueness of Georgia jury selection statutes are

correct, the system of selecting grand jurors in Taliaferro

County must fall for the reason that the grand jury plays

the essentially political role of selecting school board mem-

bers. In short, even if equality of representation of the

races may not be required in selecting eligible jurors,

stricter requirements of fair representation apply here:

“the theme of the Constitution is equality among citizens

in the exercise of their political rights.” MacDougall v.

Green, 335 U. S. 281, 290 (1948) (Mr. Justice Douglas

dissenting) cited with approval in Reynolds v. Sims, 377

U. S. 533, 564 fn. 41 (1964).

While the particular system of selection of board mem-

bers involved does not provide for direct election, that

fact does not diminish the rights of Negroes to be afforded

full and equal participation in it. Sailors v. Board of Edu-

cation of Kent County, 387 U. S. 105 (1967) illustrates the

principle that the right of states to regulate their political

subdivisions may in no instance validate racial discrimina-

tion. There a system for selection of school board officials

was held not subject to “one man, one vote” requirements,

the latter being held to be subordinate to the right of

states to use appointive, non-representative methods, for

the choosing of administrative officials. But this Court was

careful to distinguish racial discrimination in the political

process from the Sailors holding (387 U. S. at 108-109) :

TOE, Fax sare dil a

Pee

“A State cannot, of course, manipulate its political

subdivisions so as to defeat a federally protected right,

as for example, by realigning political subdivisions so

as to deny a person his vote because of race. [footnote

omitted] Gomillion v. Lightfoot, 364 U. S. 339, 345.”

Certainly this exception to the Sailors rule prohibits state

action to dilute the influence of Negroes in the class of

citizens choosing, appointing or electing members of a

political body. It can hardly be argued that the poliey

of the Thirteenth, Fourteenth, and Fifteenth Amendments

contemplates permissible exclusions of Negroes from a po-

litical process merely because the particular form of selee.

tion involved is not a general election. The primary pur.

pose of those Amendments, recognized in numerous

decisions of this Court,'* is to undo the effects of slavery

upon the civil rights of the Negro race. That purpose is

subverted by permitting exclusion of Negroes from any

political process, whether or not a regular election. Mr.

Justice Black, concurring, stated the essential nature of

the prohibited evil in Terry vy. Adams, where the scheme

invalidated stripped “Negroes of every vestige of influence

in selecting the officials who control the local county mat-

ters that intimately touch the daily lives of citizens,” 345

U. S. 461, 470 (1953). Terry voided the “pre-primary

endorsement elections of a privately run organization on

the ground that since that endorsement virtually assured

eventual election of the person supported, the state could

not permit the exclusion of Negroes from the endorsement

vote. Such exclusion was disallowed, even though not tak-

'? See Shelley v. Kraemer, 334 U. S. 1. 23 (1948) and cases cited

in footnote 30, Niron v. Condon, 286 U. S. 73, 89 (1932), Nixon

v. Herndon, 273 U. 8S. 536, 540-541 (1927).

ing place at a general or even primary election, simply

because its real effect was that described by Mr. Justice

Black.

In Taliaferro County, the method for selection of board

members prevents the Negro community from effectively

influencing the choice of officials whose decisions critically

affect the lives of themselves and their children. While

constituting one half of the voters of the county, and

all of the school children, the effect of the system of se-

lection is to render them a minority of those who select

board members. In Reynolds v. Sims, supra, this Court

stated that “since the right to franchise in a free and un-

impaired manner is preservative of other basic civil and

political rights, any alleged infringement of the right to

vote must be carefully and meticulously scrutinized.” 377

U. S. at 562 (emphasis added). The “basic civil and

political rights” of Negroes in Taliaferro County, in

particular their right to a school system undiluted by

segregation or control by those who have no interest in

educational quality, are jeopardized by infringement of

their power to select school officials. The evil is not dimin-

ished because all Negroes have not been precluded from

participation in the selection process. “(D)ilution of Ne-

gro voting power... is just as discriminatory as com-

plete disfranchisement or total segregation.” Sims v. Bag-

gett, 247 F. Supp. 96, 109 (M. D. Ala. 1965); to the same

effect see also Smith v. Paris, 257 F. Supp. 901 (M. D. Ala.,

N. D. 1966) aff’d and modified as to collateral matter, 386

F, 2d 979 (Sth Cir. 1967).’

*The Sailors rule does not negate the relevance of all aspects

of reapportionment law for that case implied what Sims v. Baggett,

supra, states explicitly that “the Constitution itself requires a dis-

tinction between .. . political . . . gerrymandering and gerry-

Nor is the injury to appellants lessened by the fact

that a Negro was finally put on the school board after the

first hearing in this cause. There is no evidence that the

person selected was anything but a token appointment by

the grand jury under pressure of this action. Appellant

Turner testified that the individual selected is not rep.

resentative of the Negro community. In any ease, the es.

sence of appellants’ claim is that they, and the class they

represent, are limited in their power of choosing hoard

members; that claim is in no way weakened by the fact

that the school board might have appointed someone who

also might have been chosen if the Negro community had

the electoral power to which it is entitled. To paraphrase

Gomillion vy. Lightfoot, 364 U. S. 339 (1960) the ines.

capable effect of this long established scheme is to despoil

Negro citizens, and only them, of their right to participate

meaningfully in the selection of school board members,

Where Negroes have been deprived of their political

rights the remedy has been invalidation of the diserimina-

tory features of the system, e.g., Lane v. Wilson, 307 U.S.

268 (1939); Smith v. Allwright, 321 U. S. 649 (1944).

Where a vague delegation of power has been the mecha-

nism involved, the delegation has been abolished, Louisiana

v. UL S., supra. In addition to such relief, appellants also

sought appointment of a receiver to operate the school

system .until a constitutional system selecting board mem-

bers cou'd be instituted. The district court erred funda-

mandering for the purpose of racial discrimination” (247 F. Supp.

at 105). For the view that all civil rights of Negroes are in a

distinct position in the protective scheme of the Fourteenth Amend-

ment, see cases cited in footnote 12, supra; Slaughter House Cases,

83 U. S. 36, 81 (1873) ; Harper v. Virginia Board of Elections, 385

U. S. 663, 682 dissenting opinion of Mr. Justice Harlan n. 3 (1966).

mentally in not adopting one of the available remedies

which would eliminate diminution of Negro political rights.

In this case the deprivation of political power through

the layers of discretion authorized hy the statutory selee-

tion scheme powerfully affects “matters that intimately

touch the daily lives of citizens,” Terry, supra. The proper

education of their children has been recognized time and

again as of crucial importance to the Negro race since

Brown v. Board of Education, 347 U.S. 483 (1954). That

interest cannot be adequately protected within the context

of an administrative strueture which is subject to total

domination by the white community, a community which

has continually and consistently shown itself hostile to the

interests and rights of Negroes. Only three years ago

white resistance to integration of the schools was so great

as to necessitate a federal court to order placement of the

system in receivership. Since the termination of that

takeover no change in white community sentiment has been

manifested. There is no evidence in the reeord of any

significant attempt by that community, or its school board,

to reverse the exodus of white students from the publie

schools. The school board refuses to even listen to the

grievances of the Negro parents whose children do attend

the schools. In such circumstances, the Georgia scheme for

selecting school board members operates in this county

to deprive appellants of rights guaranteed by the Con-

stitution.

Ill.

The State’s Restriction of Membership on County

Boards of Education to Freeholders Violates the Equal

Protection Clause of the Fourteenth Amendment.

The Equal Protection Clause of the Fourteenth Amend-

ment commands that distinctions drawn by a_ state—

whether in the exaction of pains or in the allowance of

benefits—must not be irrelevant, arbitrary, or invidious,

Where a state chooses to grant an advantage to one class

and not to others “[t]he attempted classification . . . must

always rest upon some difference which bears a reasonable

and just relation to the action in respect to which the

classification is proposed, and can never be made arti-

trarily and without any such basis.” Gulf, Colorado and

Santa Fe Ry. v. Ellis, 165 U. S. 150, 155, 159 (1897). See

e.g., Skinner v. Oklahoma, 316 U. S. 535 (1942); Baxstrom

v. Herold, 383 U. S. 107 (1966). Georgia’s constitutional

and statutory limitation on the right to serve as a school

board member to “five freeholders” (Ga. Code Ann. Tit. 2,

§6801; Tit. 32, 4902) is clearly in violation of these require-

ments for such a limitation is palpably arbitrary and

wholly irrelevant to the achievement of any legitimate

state objective. The Georgia property test is as irrational

standard for membership on a county school board as was

the poll tax as a test of voting qualifications, Harper v.

Virginia Board of Elections, 383 U. S. 663 (1966).

The court below did not conclude that the freeholder re-

quirement bore a reasonable relationship to any legitimate

incident of school board membership. In sustaining the

freehold qualification, the court held only that there was

no §

any

no showing tl 25

any particula

1 warty barrier discriminated against

sTe j 3

oe of the community:

cation re

any partice to indicate that such a qualifi-

ent of the community, based on

Appellants infra, p, 36).

able, Nume

Wainwrightsat such a holding is unsupport-

U. 8.12 (ns of this Court, eg., Gideon vy.

stand for th35 (1963); Griffin v. Illinois, 351

tected by thy, Bennett, 365 U. S. 708 (1961)

lation which, that the poor form a class pro-

true those Co tion Clause against state legis-

cused, HarP, on the basis of wealth. While it’s

Clause prokiy, the rights of the criminally ae-

the political... plain that the Equal Protection

Decisionsinatory treatment of the poor in

logically con

= oO yt cases demonstrate that Harper

dealt with

taunted |= of all financial restraints upon

ove rights. Significantly, both cases

“Whatevavolved in the instant case—the

asa finding, ,; ‘

| granted the i * ight on the ownership of real

_ and non-fre: a,

challenge a '8 holding it should not be understood

county schoclack standing, for the district court

| plaintiff father of five school children

Althouginiy possessed requisite standing to

to choose Of ohibited him from serving on the

not be infri

v, Floyd, 3§

399, 401-402 extension applied only to the right

that the right to seek office can also

s of invidious discriminations. Bond

36); Anderson v. Martin, 375 U. §.

property. In Pierce v. Ossining, -—— F. Supp. —— (No. 68

Civ. 4150, 8. D. N. Y., decided Nov. 1, 1968), the property

requirement struck down was a prerequisite to voting ing

town election, and in Landes vy. Town of Hempstead, 2%}

N. FE, 2d 120, 20 N. Y. 2d 417 (1967), the New York Court

of Appeals rejected a property requirement as a limitation

on the right to hold office, These decisions rely upon the

clear import of Harper that statutory burdens on the poor

are facially suspect and to be upheld only when the state

demonstrates a compelling justification:

[LJines drawn on the basis of wealth or property, like

those of race (Korematsu v. United States, 323 U.S.

214, 216, 89 L. ed. 194, 198, 65 S. Ct. 193), are tradi-

tionally disfavored [citing Edwards vy. California, 314

U. S. 160, 184-185 (1941); Griffin, supra; and Douglas

v. California, 372 U. S. 353 (1963) ] (383 U.S. at 668).

Even if distinctions based on wealth may at times be justi-

fied, the freeholder requirement involved here cannot with-

stand constitutional attack for it has no rational relation.

ship to the duties of members of the board of education.

It might, perhaps, be argued that real property owners

have a special interest in, or competence with respect to,

the collection of taxes which support the schools. Assun-

ing, arguendo, that the state might broadly exclude all

non-freeholders from board membership for such a reason,

the Georgia restriction is not thereby sustainable. The

board of education does not itself collect any school taxes,

(Gia. Code Ann. Tit. 32, $1127, or set tax rates. (The board

may only recommend a school tax rate to the responsible

county authorities, Ga. Code Ann. Tit. 32, §1118.) The

property which is potentially subject to the tax is by no

means limited to that of individual freeholders, for the

property of corporations, both real and personal, is sub-

ject to assessment for school purposes, Ga. Code Ann.,

Tit. 32, §1116. Moreover, the budget of the Taliaferro

school system includes but a small proportion of funds

raised by ad valorem taxes ($39,000 out of a total of

$267,611.65). > (Answers of Defendants Cranston Jones

et al. to Interrogatories, answers 26 and 27.) The re-

mainder of the school budget comes from a variety of

state and federal sources. A further indication that school

board members are so limited in their financial levying

power as to make the freehold qualification without rele-

vance to their powers and duties is the limit on school tax

rates to be found in the Georgia Constitution, which re-

stricts a county board to a levy of no greater than 20 mills

_ per dollar of assessed value unless recourse is had to the

voters of the county. Georgia Code Ann., Tit. 2 §7501; Com-

missioncrs of Chatham County v. Savannah Electric and

Power Company, 112 8. I. 2d 665, 215 Ga. 636 (1960).

Appellants contend, therefore, that the court below erred

_ in not finding as the New York Court of Appeals found

for town government that “it is impossible ... to find any

rational connection between qualifications for administer-

ing [school] affairs and ownership of real property”

Landes v. Town of Hempstead, 20 N. Y. 2d at 421. We em-

phasize that nothing appellants urge detracts in the least

from the power of the states to assure that competent

persons administer the public schools. In Abington School

District v. Schempp, 374 U. S. 203 (1963) for example, this

Court recognized the special stake parents have in the

proper administration of their schools by granting them

standing to contest unconstitutional practices taking place

inthem. Georgia law does not, however, recognize a group

with a special concern for the schools by limiting board

members to freeholders; on the contrary, it vests member.

ship in a group with no such special concern. Where an

interest as vital as the operation and management of the

schools is involved, a state violates the Equal Protection

Clause by restricting control of its educational establish.

ment to those who own a particular class of property.

CONCLUSION

For the foregoing reasons probable jurisdiction

should be noted.

Respectfully submitted,

Jack GREENBERG

MicHaEL MELTSNER

10 Columbus Circle

New York, New York 10019

Howarp Moors, Jr.

Peter RiInpskopr

85914 Hunter Street, N. W.

Atlanta, Georgia

Attorneys for Appellants

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.