# Appellants Brief — Turner v. Fouche > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0140%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellants Brief - **Published:** January 1, 1970 - **Citation:** 396 U.S. 346 ## Text Weds aa a ~UPrY -— a APR 1% 19 i . me P DAVIS, IN THE Supreme Court of the Unite? Ocroser TeRM, 1968 9 No. O62 Q3 ~ & FC ts la or Se ee ee | ili PAGE Cassell v. Texas, 339 U. S. 282 (1950) .................. 37 Cipriano v. City of Houma, 286 F’. Supp. 823 (KE. D. La. 1968), probable jurisdiction noted, 37 U. 8S. L. Week 3275 (Jan. 14, 1969), O. T. 1968, No. 705 ................00-+ 51 Cline v. Frink Dairy Co., 274 U. 8. 445 (1927) ................ 34 Cobb v. Georgia, 389 U. S. 12 (1967) ...2.........:ccccceceereereeeee 25 Colegrove v. Green, 328 U.S. 549 (1946) 00 41 Commercial Pictures Corp. v. Regents of University of New York reported with Superior Films, Inc. v. De- partment of Education, 364 U. S. 587 (1954) ............ 34 Davis v. Mann, 377 U. S. 678 (1964) 41 Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala.), aff'd per ee i eee 34, 42 Dowell v. School Board of Oklahoma City, 244 F. Supp. 971 (W. D. Okla., 1965), aff’d 375 F. 2d 158 (10th Cir. 1967), cert. den., 387 U. S. 931 (1967) 46 Edwards v. South Carolina, 372 U. S. 229 (1963) ........ 34, 52 Giaecio v. Pennsylvania, 383 U. 8S. 339 (1966) ................ 34 Gomillion v. Lightfoot, 364 U. S. 339 (1960) ........ 36, 40, 41, 42, 43, 44 Green v. New Kent County Board of Education, 391 1% 3), ree in oe Griffin v. Illinois, 351 U. S. 12 (1956) .. 49 Griffin v. School Board of Prince Edward County, Ta, “ IE IEE IND xs, ccseseccosevtbiniceninconcbdsendibebsiimasanted 46 Griswold v. Connecticut, 381 U. S. 479 (1965) ............ 52 Hadnott v. Amos, —— U. S. ——, 37 U.S. L. Week 4256 (March 25, 1969) .......-.-c-ceccecececesee 40, 42, 43 Hague v. C. I. 0., 307 U. S. 496 (1939) ..0...-.cccceccsecneecneeeee 26 OS ER EI OTE LOE EE ONAN: 7 iv PAGE Harper v. Virginia Board of Elections, 383 U. 8S. 663 CINE ciceidascsseetehanitictsaenieteas Neddananmeaiiieme 24, 43, 49, 50, 52, 53 Herndon v. Lowry, 301 U. S. 242 (1937) 2200.....:c0.000-0-0-. 34 Hill v. Texas, 316 U. S. 400 (1942) .2000..cccccccccceocsoceorececees 3 Jones v. Georgia, 389 U.S. 24 (1967) 2.0.2... ccceose-ecoceecoeeee ys) Kelly v. Altheimer, 378 F. 2d 483 (8th Cir. 1967) ........ 4) Keyishian v. Board of Regents, 385 U. S. 589 (1967) ... 5: Kramer vy. Union Free School District No. 15, 282 F. OD. Fe Cie Fs. Bee: Be TNOD tetinctrertmieianmnitiaationel 51,54 Landes v. Town of Hempstead, 231 N. E. 2d 120, 20 N. Y. 2d 417, 284 N.Y. S. 2d 417 (1967) oescccccccesesene 51,53 Lane v. Wilson, 307 U. S. 268 (1939) .000000.2-.ccc00e- 42, 43,44 Louisiana v. United States, 380 U. S. 145 (1965) ....26, 30, 34, 35, 37, 4 MacDougall v. Green, 335 U. S, 281 (1948) 00. 39 McLaughlin v. Florida, 379 U. S. 184 (1964) .00220. 53 N.A.A.C.P. v. Alabama, 377 U.S. 288 (1964) 2000000000220... 52 N.A.A.C.P. v. Button, 371 U. S. 415 (1963) 20000000000. 51, 52 Neal v. Delaware, 103 U. S. 370 (1881) ......0:cc.ceccseeeeeeseone -_ Niemotko v. Maryland, 340 U. S. 268 (1951) 200000000... x G Nixon v. Herndon, 273 U.S. 536 (1927) 22000000. teeeeeeseeoee 4) t N. L. R. B. v. Newport News Shipbuilding & Drydock eg _ a aaa Ree ee NE 4 Pierce v. Ossining, 292 F. Supp. 113 (S. D. N. Y. 1968)... 5l Rabinowitz v. United States, 366 F. 2d 34 (5th Cir. en | ee eo EE LI Mier Be SE OTLEY 3) y PAGE Reynolds v. Sims, 377 U. 8. 533 (1964) ............ 24, 39, 40, 41 Rice v. Elmore, 165 F. 2d 387 (4th Cir. 1948) ............... 43 Sailors v. Board of Education of Kent County, 387 oy Ry PRE EK Rn reen enestee mmenmeneeme 39, 40, 42 Schine Chain Theatres v. United States, 334 U. S. RSE ARES PERE on ae edo Oe ee 45 Schneider v. State, 308 U. S. 147 (1939) 00000000 52 Shelley v. Kraemer, 334 U.S. 1 (1948) -...00000020222-. 40, 43 Shelton v. Tucker, 364 U.S. 479 (1960) 00 ee 52 Sherbert v. Verner, 374 U. S. 398 (1963) -...............51, 52 Sims v. Baggett, 247 F. Supp. 96 (M. D. Ala. SE Wi licl i si piaathnes atndlslnieksimadaldiglinedactbamdsnpiacbugnlacnanisets 39, 42, 44 Sims v. Georgia, 389 U. S. 404 (1967) 220000000... cee 25 Slaughter House Cases, 83 U. S. 36 (1873) —......0........... 43 Smith v. Allwright, 321 U. S. 649 (1944) 00. 42,44 Smith v. Bennett, 365 U. S. 708 (1961) 2020 49 Smith v. Paris, 257 F. Supp. 901 (M. D. Ala. N. D. 1966) aff’d 386 F. 2d 979 (Sth Cir. 1967) 002... 42 Smith v. Texas, 311 U. S. 128 (1940) 00. 35 South Carolina v. Katzenbach, 383 U. S. 301 (1966) ... 34 State ex rel. Mitchell v. Heath, 34 Mo. 226, 132 5S. W. eRe Niet aioe cole Oh Ei Ne 53 Staub v. City of Baxley, 355 U. S. 313 (1958) 200000000... 34 Sullivan v, Georgia, 390 U. S. 410 (1968) 2000000... aah 25 Terry v. Adams, 345 U. S. 461 (1953) 2000000000002... 24, 42, 43, 46 Thomas y. Collins, 323 U. S. 516 (1945) ol 52 Turner v. Goolsby, 255 F. Supp. 724 (S. D. Ga. 1965; supp. opinion 1966) 0000000... ae A 1, 9, 11, 12, 47 United States v. Atkins, 323 F. 2d 733 (5th Cir. 1963) .. 34 _ ‘United States v. Classic, 313 U. S. 299 (1943) 00000000... 50 vi PAGE United States v. L. Cohen Grocery Co., 255 U. 8. 81 bE SP eee ce eek Ser erhew Brew Ronee nce De. 8 eee 34 United States v. Logue, 344 F. 2d 290 (5th Cir. 1965) . 4 United States v. Mississippi, 380 U. S. 128 (1965) ........ 30) United States v. National Lead Co., 332 U. S. 319 CED, cscchiiwackinsichnlnlibectermennlibonespsatgieniyididastnmncianuiniankerentnaniie 45 United States v. Searborough, 348 F. 2d 168 (5th Cir. REN NDE OS ARUE NC AES SE ONE eh Se Se EO, Se Oe 46 United States v. Standard Oil Co., 221 U. S. 1 (1910) 4 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. Oe ED wach tecnico ecnpniteiieniientenss 51-52 Wheeler v. Durham City Board of Education, 346 F. Se FE GA Es TN citetactestrcecescsnenicitacintinnnicicnnets 46 Whitus v. Georgia, 385 U. S. 545 (1967) -..........- 15, 25, 26, 27 Winters v. New York, 333 U. S. 507 (1948) .................. 34 Witcher v. Peyton, 405 F. 2d 725 (4th Cir. 1969) ....... 33 WMCA v. Lomenzo, 377 U. S. 633 (1964) -................... 4} Yick Wo v. Hopkins, 118 U. S. 356 (1886) .................... 26 TaBLE OF STATE CONSTITUTIONAL AND STATUTORY PROVISIONS Ga. Code Ann. §2—6801, Art. VIII, §V, para. 1. of Georgia Constitution of 1945 ..........---.----------------- 5, 6, 20, 48 Ga. Code Ann. §2—6802; Art. VIII, $V, para. II of the Georgia Constitution of 1945 ... . 2 Ga. Code Ann, $24—2501 - sed 14 Ga. Code Ann. §32—902 oa 5, 6, 8 Ga. Code Ann. §32—902.1 5, 6, 20, 48 Ga. Code Ann. §32—903 5, 6, 20 Ga. Code Ann. §32—905 5, 6 Ga. Code Ann. §32—1116 .. of a vii PAGE FI Sear I i scssaeramaviendistanronnaominnsiionmeesbiennt 53 eS IR, Ut es suninmnsneennanioasnoniuunn 53 Ga. Code Ann. §59—101 -..0.00.. 5, 6, 14, 26 Ga. Code Ann. $59—106 2.000000... 5, 6, 15, 23, 26, 27, 29, 31 a e 15 I to ca eihesareulsnmnonnioion 15 ES _ EEE Pe RE URN 15 Sm IG TU cs ce eencee 15 i ceuineiimsadiniouaoau 16 cc tacemenbabciinnies 16 I i csesanmtemansioane 16 Sn IIc I ic oceeteeseetiorae 16 SU I, ces 16 Mn UES, UI 15 OTHER AUTHORITIES EF, La 48 API, PMI, iu, RIN ccs enc ceesccrccestncesbetaccenpoucceee 20 ' Cireular No. 6; Educational Research Service (1967) 21 Hearings on S. 1318 before the Subecomm. on Improve- ments in Judicial Machinery of the Senate Comm. on the Judiciary, 90th Cong., Ist Sess. (1967) ........ 30 ' Kuhn, “Jury Discrimination: The Next Phase,” 41 U.S. C. Law Rev. 235 (1968) ................................30, 31, 34 Symposium on the Griswold Case and the Right of Privacy, 64 Mich. L. Rev. 197 (1965) .......................-.. 52 The Congress, The Court and Jury Selection, 52 Va. I elt eld Se nae cassava 30 The Forty-Eight State School Systems (1949) ............ 21 U. S. Code Congressional and Administrative News, 9th Cong., 2nd Sess. 31 IN THE wt of the United States TOBER TrerRM, 1968 No. 842 eae ux Turner, et al., Appellants, a: W. Foucue, et al., Appellees. {E UNITED STATES DISTRICT COURT THERN DISTRICT OF GEORGIA —_—_<>— SLLANTS’ BRIEF pinion Below court below is reported at 290 F. - 968) and is set forth in the appen- lier litigation involving several of _as Turner v. Goolsby, 255 F. Supp. ipp. opinion, 1966). — This is an action for injunctive and declaratory relic! in which jurisdiction of the district court was invoke under 28 U. S. C. §§1331, 1343, 2201-02; 42 U. 8. ¢ §§1981, 1983, 1988, 1994, 2000d and 2000e; and the Fifth, Ninth, Thirteenth, Fourteenth and Fifteenth Amendments. The complaint sought, inter alia, to enjoin enforcement and operation of Georgia’s constitutional and statutory scheme for the selection of jurors and county boards of education as in violation of the Constitution of the United States. A statutory three-judge court was convened pur. suant to 28 U.S. C. §§2281, 2284 (A. 18). Jurisdiction The three-judge court determined that it was properly convenec. but found “no merit in the three-judge District } Court questions presented” (A. 403). A final judgment and decree was entered on September 19, 1968 (A. 406-407). Timely notice of appeal to this Court was filed in the court below on October 14, 1968. On December 2, 1968, Mr. Justice Black extended the time for filing a Jurisdic- tional Statement to, and including, February 8, 1969. On February 24, 1969, this Court noted probable jurisdiction (A. 408). Jurisdiction of this Court is invoked pursuant to 28 U.S. C. $1253. Constitutional and Statutory Provisions Involved This action involves the following Georgia constitutional and statutory Provisions, which are set forth in an ap- pendix infra pp. la-lla: Article VIII, Section V, paragraph I, of the Consti- tution of the State of Georgia of 1945; Ga. Code Ann., §2-6801. Article VIII, Section V, paragraph II, of the Consti- tution of the State of Georgia of 1945; Ga. Code Ann., §2-6802. Ga. Code Ann. §23-802 Ga. Code Ann. §32-901 Ga. Code Ann. §32-902 Ga. Code Ann. §32-902.1 Ga. Code Ann. §32-903 Ga. Code Ann. §32-905 Ga. Code Ann. §32-908 Ga. Code Ann. §32-909 Ga. Code Ann. §32-1101 Ga. Code Ann. §32-1118 Ga. Code Ann. §32-1127 Ga. Code Ann. §59-101 Ga. Code Ann. $59-106 Ga. Code Ann. §59-202 Ga. Code Ann. §59-203 Ga. Code Ann. $59-318 Ga. Code Ann. §59-319 This action also involves the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution of the United States. “— PP ito SPE LK CL LEI IES a i Questions Presented 1. Whether statutory standards which govern Georgia jury selection are unconstitutionally vague and permit the arbitrary exclusion of Negroes from jury service in viola- tion of the Fourteenth Amendment to the Constitution of the United States? 2. Whether the Georgia system of selection of school board members by the county grand jury operates to dilute Negro participation in the selection of the board in viola- tion of the Thirteenth, Fourteenth and Fifteenth Amend. ments? 3. Whether Georgia’s prohibition of service on school boards to non-freeholders violates the Fourteenth Amend- ment? Statement A. Initiation of This Litigation On November 14, 1967, Calvin Turner, a registered — Negro voter residing in Taliaferro County, Georgia, and — his daughter, a student in the public schools of the county, © brought this action against members of the county board of education, jury commission, and representative grand — jurors. A Negro father of six school age children, who is — not a freeholder, was permitted to intervene as a plaintifi (A. 72, 73). The complaint alleged that appellants, and others similarly situated, were denied rights guaranteed by the federal Constitution by the operation of Georgia statutory and constitutional provisions which authorize the selection of school board members and jurors. st aeamotia D Sak Pukey ( 8 I a 4 ¢ ( I t } rr ee ee ae 5 Appellants contended, inter alia, that: (1) they had been denied an opportunity to serve as jury commissioners, grand jurors, and traverse jurors on account of race (com- plaint paras. 11(c), 11(d)); (2) they had been denied on account of race an opportunity to participate in the process of selecting the officials who administer the public schools of Taliaferro County (complaint, para. 11(a), (b)); and (3) they had been denied on account of poverty, and the requirement that school board members be freeholders, the opportunity to actually serve as board members (com- plaint 11(b)) (A. 7-14). The complaint sought injunctive and declaratory relief as to the offending provisions of state law: Ga. Code Ann. §§2-6801; 32-902, 902.1, 903, 905; 59-101, 106; that mem- bership on the board of education and jury commission be declared vacant; that a receiver be appointed to operate the public schools pending selection of a constitutionally acceptable board; that a special master select members of the grand and petit juries; and that ancillary damages _ be awarded (A. 16-17). Because appellants sought injunc- _ tive relief restraining the enforcement of state statutes _ and constitutional provisions, a three judge court was em- _ panelled and the State of Georgia permitted to intervene _ (A.18, 65). | 4 B. District Court Proceedings The district court held two hearings before it rendered ‘ its decision. At the first, January 23, 1968, the court found _ that the evidence indicated and the court announced then and now so finds that Negroes were being systematically excluded from the grand juries through token inclu- 6 sion. ... The grand jury situation was such that Negroes had little chance of appointment to the schoo board (A. 399). Counsel for the appellees were directed “to familiarix defendants with the provisions of law relating to the pro. hibition against systematically excluding Negroes from th jury system” (A. 399). Appellees were also informed by the court that it would be appropriate if two Negroes wer appointed to the school board (A. 252). At the second hearing, Februery 23, 1968, the court was informed that the county jury list had been revised in light of the court’s oral pronouncement that the master list was illegally composed, and that on February 16, 1968, the county grand jury had confirmed one Negro and on white man to fill two school board vacancies (A. 265-69). On August 5, 1968, the district court entered its opinion. stating the issues as follows: The thrust of the complaint is that the Negroes have no voice in school management and affairs in that there are no Negroes on the school board. It is con- tended that Art. VII [sic], §V, I of the Constitution of the State of Georgia of 1945, Ga. Code Am, §2-6801, and Ga. Code Ann., §§32-902, 902.1, 903 and 905, all having to do with the election of county school boards by the grand jury, are unconstitutional under the equal protection and due process clauses of the Fourteenth Amendment and under the Thirteenth Amendment, both facially and as applied by reason of the systematic and long continued exclusion of Ne- groes and non-freeholders as members of the Board of Education of Taliaferro County, Georgia, and o th di 7 the selecting grand juries. The same contention is made with respect to the Georgia laws regarding the appointment of and service as jury commissioners. Ga. Code Ann., §§59-101 and 106 (Ga. Laws 1967, p. 251, Vol. 1). Here again unconstitutionality in ap- plication is asserted on the basis of systematic exclu- sion of members of the Negro race from service as jury commissioner. Unconstitutionality is claimed also by reason of the alleged uncertainty, indefiniteness, and vagueness of the standards set forth in each of the statutes (A. 398). The district court concluded that the grand jury list, “as revised”, is not unconstitutional and that state consti- tutional provisions and statutes governing jury and school board selection are not unconstitutional on their face or as applied: “The facts showed systematic exclusion in the administration of the grand jury system prior to the revi- sion but this resulted from the administration of the system and not from the constitutional provision and statutes under attack” (A. 403). The court also concluded that the requirement that mem- bers of the school board be freeholders is not unconstitu- tional : “There was no evidence to indicate that such a quali- fication resulted in an invidious discrimination against any particular segment of the community, based on race or otherwise” (A. 403). On September 19, 1968, the court entered a final judg- ment, in conformance with its opinion, upholding the va- lidity of all the challenged state statutes and constitutional 8 provisions and denied relief,’ other than to enjoin jury commissioners from “systematically excluding Negroes from the grand jury system” (A. 406). C. Background of This Litigation Consideration of appellants’ claims requires some {2- miliarity with general characteristics of Taliaferro County and earlier litigation between several of the parties. According to the 1960 Census county population is:’ Number Percent White 1,273 37.8 Negro 2,096 62.2 White (over 21) 877 47.3 Negro (over 21) 979 52.7 White (over 18)* 917 46.0 Negro (over 18) 1,073 54.0 While the exact number of registered voters of each race in the county was not known it was generally agreed —and the district court found—that Negroes and whites each constituted 50% of those registered (A. 368-69, 300, 399). ? The court declined in its discretion to consider a single- joie claim for ancillary money damages in the amount of $500,000 t compensate plaintiffs for past deprivations and denials of federa rights. A prayer for attorney’s fees was denied. Earlier the cour had dismissed the complaint as to three defendants named indi- vidually as representative grand jurors (A. 71). 51960 Census of population, Table 25, pp. 12-83, Table 27, pp 12-130, and Table 28, pp. 12-148. * Of the 910 persons of school age in the county, 15.2% wer white males; 13.2% white females; 39.6% non-white males an 32.1% non-white females. Ibid. ° aNUSERUGAbioibA nan ualeaeaa sates ae WSs GRR iltiecs Siem eas 9 All of the teachers and children who attend public schools of the county are Negro although the superinten- _ Px Le he — a Ce . NO NRE Seen Cr See noe US le ene co FS CORT Baie dent is white (A. 21, 38-39; 24, 47, 52). The five-man county school board had not had a Negro member in the memory of board members until one was appointed as a - eonsequence of this litigation (A, 23, 46); none of the _ white board members themselves had children attending - the public schools (A. 23, 47, 20, 38). The county jury - commission has been composed of whites for at least the last 50 years (A. 20, 38). In 1965, Negro citizens of Taliaferro County, including appellant Turner, brought an action in the district court against the circuit solicitor, county sheriff, county attorney, - superintendent of schools, and county board of education, alleging, in summary, that by misuse of their offices and by lodging unfounded criminal charges they had conspired to deny the rights of county Negroes to free speech and to a desegregated education. A three-judge court was con- vened and found that a public assembly protesting segre- gation had “set off a chain of events resulting in a flagrant unconstitutional application of the statute proscribing the disturbance of divine worship.” Turner vy. Goolsby, 255 F. Supp. 724, 727 (S. D. Ga. 1965). The court also described the tactics employed by whites to avoid desegregation of the schools : There are only two schools in the county; Murden which is populated by Negroes, and Alexander Steph- ens Institute which was populated by whites during the last school term. It appears without dispute that Alexander Stephens Institute has been closed since the beginning of this school term on or about Sep- tember Ist, and that all white children in Taliaferro 10 County are attending school in adjoining counti« with most being transported on Taliaferro County school buses. The role that the school superintendent and the school board are alleged to have played i: the conspiracy is to have secretly and covertly ar. ranged for all the white children to leave the county for school in other counties so as to eliminate the only white school available to 87 Negro children who sough: transfers to a desegregated school. The transfers were sought pursuant to a plan of desegregation filed with the Health, Education and Welfare Department. The transfer applications of these Negro students hai never, up until the time of hearing, been considered by the superintendent and the school board. Instead, the school superintendent concluded that some of the applications for transfer were not bona fide and there. upon called upon the school board attorney, defendant Richards, to conduct an investigation as to whether some of the applications were forged... . At any rate, Mr. Richards took over the investiga- tion from this point forward. And it must be noted in considering this phase of the case that the form of | application for transfer was illegal in the light of several opinions of this court that notarization of the signature of the applicant or of the parents or guard. ian may not be required [citing cases]. Defendant Richards obtained what he considered to — be sufficient evidence to have Plaintiff Calvin Turner. a former teacher in the Negro school of Taliaferro | County, indicted for forgery. We view that evidence with considerable scepticism in the light of the illegal transfer applications and other evidence submitted a the hearing... — -—_ me em see ee == aS as ef ee — ee — a. |) 11 There was some evidence that the unrest on the part of the Negro plaintiffs stemmed in part from the fact that the superintendent of schools refused their re- quest for a gymnasium or for use of the only school gymnasium in the county which was assigned to the white school. There was some evidence relating to the refusal to rehire several Negro school teachers but this was not developed to the point of showing that this resulted from the alleged conspiracy (255 F. Supp. at 727, 28). The court determined that the white school superin- tendent “with at least the knowledge, if not the help, of the school board” (Jd. at 728) knew that the white schools would be closed. Negroes, however, were not advised. The decision “if not kept secret, was at least not pub- licized” and “The superintendent arranged during the month of August for her own son to transfer” to a school in another county (/bid.). Although Negro transfer appli- cations had been refused, white applications to attend school in adjoining counties were granted and Taliaferro public school buses used to transport them (/bid.). In response to these facts, the court placed the school system in receivership and appointed the state superin- tendent of schools as receiver. He was instructed to sub- mit a plan (i) to end the illegal expenditure of public funds use to transport whites to adjoining county schools and (ii) to grant the right of 87 Negro applicants for transfer to adjoining counties where white children had been transferred (Jd. at 730). The solicitor, county sheriff and county attorney were enjoined from prosecuting Negroes including app:llant Turner under “spurious” Seige NED asian is Gas ss % 12 indictments for disturbing divine worship, as well as on per. jury and forgery charges. The court also enjoined plain. tiffs from disturbing schools and interfering with schoo! buses carrying students to adjoining counties (Jbid.): The formerly white school was ultimately reopened as an elementary school and the formerly Negro school as a high school (7d. at 731-34), but white children who had left the public schools of the county, rather than attend then on a desegregated basis, never returned. They either at- tended a newly created private school or continued to attend school in other counties (A. 47-9, 51-2, 354-59, 397); At this time, Negro parents believed that they could not alter continued operation of a segregated school system, and that the white school board, several of whose present [- members were also serving in 1965, was hostile to the needs F and desires of the students actually attending the public schools (A. 214-217). Repeated attempts by appellant Turner and members of the Voters League, a civic group, - to appear at school board meetings were unsuccessful, — The time of scheduled meetings was changed withow public notice, contrary to law (A. 343-47; infra pp. da, 6a) | 5 On May 20, 1966, the court entered a supplementary opinion in which it granted the receiver’s motion for discharge after con- cluding that Negro children who wished to attend school in aé- joining counties did so and that adjoining counties had given notice they would take no children, white or Negro, for the schoo term 1966-67. Administration of the schools was returned to the § Taliaferro board of education. * During the 1966-67 term, there were 458 Negro children in the | s public school system and 72 white children attending a local private | es school. By 7 At the second hearing, appellees admitted that timely notice of the schedule change had not been published but also alleged §- through the introduction of hearsay evidence, that such failur f was inadvertent (A. 345-346). NS So 13 and the time also could not be determined despite attempts - to obtain information from the board chairman (A. 188- 90, 206-07). When reached by phone his attitude sas brusque and unhelpful (A. 210-11). A registered letter sent to him went unanswered (A. 188-89). One parent, Mrs. Mary Allen, told the district court her experience with the school system. She was invited to visit her child’s classroom by the Negro principal. After the white superintendent observed Mrs. Allen in class, _ the classroo1 teacher was told by the principal: “Miss Hadden, discontinue this class until the parents (sic) - leave” (A. 225). Mrs. Allen subsequently asked to be - allowed to organize a parent-teacher association in order _ to “have some kind of communication with the. teacher” | (A, 229). The principal of the high school informed her that this could not be done because the superintendent had refused permission (/bid.). When a group of parents attempted to appeal that decision, and present other griev- ances, the board abruptly adjourned a meeting without responding to any of the complaints. The course of the _ meeting was described at trial: “Judge Bell: How long did you stay in there? The Witness: About ten minutes. Judge Bell: And then they moved that meeting be adjourned? The Witness: That’s right, and put the heater out. They had the heater on and a gentleman put the heater 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? ai a i en ame Eee ome etn eae chee ae rn TTT PMCs Mapa hy tea ecaerta ee ae 14 The Witness: No answer. Judge Bell: No answer? The Witness: No sir. Judge Bell: Have you had one since then? The Witness: No, sir” (A. 233).° Mrs. Allen stated her opinion of the school system a; 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” (A. 234). 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” (A. 234). D. The Selection of Jurors 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 circuit,’ ap- points six jury commissioners from among “discreet per- sons” in the county for a six year term, Ga. Code Ann. §59-101. At least biennially, these commissioners compile from the official registered voter’s list used at the last pre. ceding election a jury list of “intelligent and upright citi- ® At the first hearing Judge Bell stated: “ ... The court com strues that paragraph of the petition to mean, based on the ev: dence, that the First Amendment has been suspended in Taliaferm County to the extent that citizens can’t assemble before thei officials and petition for their grievances. That’s been the ev | dence” (A. 214-215). ® Ga. Code Ann. §24-2501. Es of the registered voters in’ Palinferro County, they long have been virtually exeluded from jury serviee. Even after the distriet court found a blatant and long standing disregard of Negroes’ constitutional rights, the revised jury list) contained disproportionately few Nogroes : 118) Negroes * 37% 191 Whites 5 63% The new grand jury chosen from this list contained even fower: SF, FSET NERS 17 Whites ......... ssibiesiicsascicda deaieiudeiacas a Beeause the grand jury selects the county school board, Negroes have been consistently excluded from board men- bershyr despite the fact that, since 1965, the publie schools havo been attended and staffed solely by Negroes, whites hgéving sent their children to private school or to public Sschools in other counties to avoid desegregation. And while the first Negro was selected to fill a vacaney on the five member board before the second hearing in this case, ~ ees: 2a this Wis done only after the cdlintriet court etronply im plied that the court would net if Neyro exelusion from the hoard continued, 3o Appellants contend in Argument I, supra, that the jury list, ax revined, violates the Mourteenth Amendment be cause it Wax compiled purkuant to unconstiitutionally vague statutory provisions which provide an undue opportunity to diveriminate on the basin of race. Independent of appellants’ contentions in’ thin rempect, however, the use | of the grand jury to Kelect sehool board members in Valin ferro County violates the Thirteenth, Fourteenth and Fifteenth Amendments beenuse Georgian han adopted a method of welection which operates to dilute the politient influence of Negro citizens, liven if equality of represen tation ix not required in’ welecting jurors who have no political function, stricter standards apply here for two reasons: (1) “the theme of the Constitution in equality among citizens in the exercise of their political righte? * and the Georgia grand jury exercises political power by reason of its selection of sehool board members: and (2) The Thirteenth, Fourteenth and Fifteenth Amendments were intended to prohibit diminution of the voting power of Negroes, the very turning of “Negro majorities into minorities” Sims vy. Baggett, 247 F. Supp. 96, 109 OM. D. Ala. 1965) which has oeeurred here. That the system of selection of board members involved , | (oes not provide for direct election does not diminish the » | nights of Negroes to be afforded full and equal participa- } | tion in it. Sailors vy. Board of Education of Kent County, * MacDougall v. Green, 335 U.S. 281, 290 (1945) (Mr. Justice , Douglas dissenting) cited with approval in Reynolds v. Sims, 377 U.S. 533, 564 n. 41 (1964). PR EM PO Rs ei rhea la a Rt a NAN OER TIA cet Oe besaic FANE PE BARE Riss hs IM sahie Siu “7 387 U. S. 105 (1967) illvstrates the principle that the right of states to regulate their political subdivisions may not validate racial discrimination. There selection of school officials was held not subject to “one man, one vote” re- quirements, the latter being subordinate to the right of states to use appointive, non-representative, methods for choosing 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): 40 A State cannot, of course, manipulate its political subdivisions so as to defeat a federally protected right, as for example, by realigning political subdi. visions so as to deny a person his vote because of race. [footnote omitted] Gomillion v. Lightfoot, 364 U. 8. 339, 345. Certainly this exception to the Sailors rule prohibits stat: action to dilute the influence of Negroes in the class oi citizens choosing, appointing or electing members of a political body.” Cf. Hadnott v. Amos, U. S. — 3 U. S. L. Week 4256 (March 25, 1969). Unconstitutional dilution of the Negro vote in Taliaferro County is established under the standards of Reynolds \. >It can hardly be argued that the policy of the Thirteenth. Fourteenth, and Fifteenth Amendments contemplates permissible exclusions of Negroes from a political process merely because the particular form of selection involved is not a general election The primary purpose of those Amendments, recognized in numer- ous decisions of this Court, see Shelley v. Kraemer, 334 U. 8. 1,2 (1948) and eases cited in footnote 30; Niron v. Herndon, 273 U. S. 536, 540-41 (1927) is to undo the effects of slavery updo 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. | = 41 Sims, 377 U. S. 533 (1964).*° For years, Negroes have accounted for virtually none of the electorate of grand jurors, and they accounted for only 26% of the most recent jury.” In Reynolds, 25.1% of the populativn could elect 50% of the state senate, and 25.7% could elect half the state house of representatives (377 U. S. at 545). Here whites, with 50% of the voters have 74% of the elec- toral strength, almost the same percentage gap as in Reynolds. In Davis v. Mann, 377 U. S. 678, 688-89 (1964), the disparity between population and voting strength was less than 10% with regard to both houses of the state legislature. In WMCA vy. Lomenzo, 377 U. S. 633, 647 (1964) the disparity was 16.39% with regard to one house and 8.2% as to the other. But neither the rights asserted, nor the remedies to which appellants are entitled, need rest on Reynolds v. Sims, supra, and Baker vy. Carr, 369 U. S. 186 (1962).% *° Vote dilutions also appear to be prohibited under §2 of the Voting Rights Act of 1965 which bans any “practice or procedure ... imposed .. . by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color” (emphasis added). See Allen v. State Board of Elections, —— U. S. ——, 37 U. S. L. Week 4168, 73 (March 3, 1969). * Although a random selection system accounted for a drop from an original representation of 37% on the ‘ury lists to the 26% figure on the panel, the latter is determinative. Nothing in Reynolds indicates that states have the right by a random selec- tion process to dilute votes. Even though that same process may at some future time result in a higher proportional representation, Reynolds, does not stand for the proposition that occasional vote dilutions are more constitutional than unvarying ones. **Diminishment of the effectiveness of Negro votes by use of the gerrymander was condemned in Gomillion vy. Lightfoot, 364 U. S. 389 (1960) while Colegrove v. Green, 328 U. S. 549 (1946) still appeared to prohibit judicial intervention in disputes alleging non-racial vote dilutions. Mr. Justice Frankfurter, writing ma- , 4 ao ~J These cases merely extend the long established willingness of the Court to overturn state political processes which discriminate against Negroes to devices which discriminate against persons who are not members of a racial minority, It is possible—indeed, it is exceedingly simple—to burden the franchise in a racially discriminatory manner while insuring that individuals, whether black or white, account for the same fractional share of a representative’s constit. uency as every other voter. Thus, in Sims v. Baggett, the harm done by aggregating Negro and white counties was the diminution “of the Negro voting power” and the turn. ing of “Negro majorities into minorities” 247 F. Supp. at 109; see also Smith v. Paris, 257 F. Supp. 901 (M. D. Ala. N. D. 1966) affirmed 386 F. 2d 979 (5th Cir. 1967) ; Gomil- lion v. Lightfoot, 364 U. S. 339 (1960); Hadnott v. Amos, — U.S. — , 37 U. S. L. Week 4256 (March 25, 1969). The national objective of eradicating voting discrimina- tions against Negroes is an affirmative and specific consti- . tutional pledge which antedates “one man, one vote” and is in no sense limited by it, as demonstrated by the fact that reapportionment law is limited to a defined class of elections, Sailors v. Board of Education of Kent County, ’ 387 U. S. 105 (1967) while constitutional prohibitions of 4 racial discrimination include “any [election] .. . in which ¢ public issues are decided or publie officials selected,” Terry 5. vy. Adams, 345 U. S. 461, 468 (1953) (Mr. Justice Black. 42 jority opinions in beth, found ne mconsstemey between the two results, for it was almost 100 yeeze ays that the Fifteenth Amend. ment established as natiomal pel.cy (he deetrime that the right of F Negroes not to be denied the franchise wold not be “indirectl denied.” Smith v. Allereht, 321 1 B G09 G4 (1944). See al» Lane v. Wilson, 307 TU & * DW’ Bore © Schnell, 336 U8 933 (1949). Bisse ccnakeieucs ~—— ss f concurring) ; Hadnott v. Amos, h | Week 4256 (March 25, 1969). 43 U.S. ——, 37 U.S. L. In Taliaferro County, the method for selection of school board members prevents Negroes from effectively influenc- ing the choice of officials whose decisions critically affect their lives and those of their children. The effect of the system of selection is to render Negroes a minority of le *® All three Civil War Amendments had as their central purpose the eradication of the last vestiges of slavery. See Harper v. Vir- ginta Board of Elections, 383 U. 8S. 663, 682, n. 3 (1966) (dis- n- senting opinion of Mr. Justice Harlan) ; Shelley v. Kraemer, 334 at U.S. 1, 23 (1948) ; Slaughter House Cases, 83 U. S. 36, 81 (1873). Because the “peculiar institution” was ground so firmly in the Negro’s political subordination to whites, constructions of the Fif- |. teenth Amendment have often recognized the right of Negroes to more than abstract voting privileges, and cases such as Gomillion v. Lightfoot, supra; Terry v. Adams, supra; Lane v. Wilson, supra; ), see also Rice v. Elmore, 165 F. 2d 387 (4th Cir. 1948) all stand for the proposition that possession of the right to vote by Negroes is meaningless unless that right can be effectively used to gain a i. share of influence over the administration of vital community affairs. As stated in Rice, supra, at 165 F. 2d at 393 (cited with approval in Terry, supra, at 345 U. S. 466) : no election machinery can be upheld if its purpose or effect of is to deny to the Negro, on account of his race or color, any effective voice in the government of his county or the state or community where he lives (emphasis added). This Court has recently held that burdens upon the ability of h Negro candidates to be elected violate the Fifteenth Amendment ry because they deprive Negro voters of the right “to cast their votes ’ effectively,” Hadnott v. Amos, 37 LW 4256, 57 (1969). Thus, the k. Civil War Amendments are concerned with more than the simple abstract right to vote. The protection of voting is one means to- ~ — ward the achievement of what is necessarily the larger goal of 0 | preserving the ability of Negroes to engage the political process d- | effectively in the protection and establishment of their freedom. of | Votes alone are insignificant unless they are permitted to work ly toward that objective, and dilutions are to be measured not merely ® | by their effect to diminish the weight of votes, but by their effect Ss to dilute the capacity of those votes to achieve their underlying objective, namely the eradication of the remnants of slavery. EMR NRA SRS RARE MONTY NR PAS OR aed el RA Re GUA ott al anatert 8G lai seaman ve FRR Logis Re RST NS ERAS SITET CRE yA REM Fi Pir nay ~ those who select board members, thus jeopardizing their right to a desegregated school system, and conferring con. trol of the schools on those who have no interest in educa. tional quality, and whose hostility to Negroes in the county is a matter of record. The evil is not diminished because all Negroes have not been precluded from participation in the selection process. “(D)ilution of Negro voting power ...18 Just as discriminatory as complete disfranchisement or total segregation.” Sims v. Baggett, 247 F. Supp. 96, 109 (M. D. Ala. 1965). 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. The evi- dence suggests that this was a token appointment by the grand jury under pressure of this lawsuit. The selection was without public notice, contrary to state law, and there was evidence that the person chosen was infirm, and not representative of the Negro community, see supra pp. 21, 22. In any case, the essence of appellants’ claim is that they, and the class they represent, are limited in their power of choosing board members; that claim is in no way weak- ened 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 v. Lightfoot, 364 U. S. 339 (1960) the inescapable 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 44 members. Where Negroes have been deprived of their political rights the remedy has been invalidation of the discrimina- tory features of the system, e.g., Lane v. Wilson, supra; Smith v. Allwright, supra. Where a vague delegation of 1; of 45 power has been the mechanism involved, the delegation has been abolished, Louisiana vy. U. S., supra. In their complaint, appellants also sought appointment of a re- ceiver to operate the school system until a constitutional system of selecting board members could be instituted. In addition, the district court might have appropriately re- stricted control of the schools to Negro parents until whites dusxcastrated the kind of good faith which would render their participation no longer a danger to Negroes, say by reversing the withdrawal of their children from the system. The district court erred fundamentally, and, misconceived its function, in not adopting one of the available remedies which would eliminate the diminution of the franchise worked by the grand jury selection system. Federal equity courts have broad power to mold their remedies and adapt relief to the circumstances and needs of particular cases. The test of the propriety of such measures is whether remedial action reasonably tends to dissipate the effects of the condemned actions and to pre- vent their continuance, United States v. National Lead Co., 332 U. S. 319 (1947). Where a corporation, for example, has acquired unlawful monopoly power which would con- tinue to operate as long as the corporation retained its present form, effectuation of the Sherman Antitrust Act has been held even to require the complete dissolution of corporate relationships. United States vy. Standard Oa Co., 221 U. S. 1 (1910); Schine Chain Theatres v. United States, 334 U. S. 110 (1948). Compare N. L. R. B. v. New- port News Shipbuilding & Drydock Co., 308 U. S. 241, 250 (1939) ; Louisiana v. United States, 380 U.S. at 154 (1965). Numerous decisions establish that the federal courts con- strue their power and duties in supervising the dis- 7 establishment of racial discrimination to require as ef. fective relief as in the antitrust area.” So in Griffin y. School Board of Prince Edward County, Va., 377 U. 8. 218 (1964) this Court ordered a public school system which had been closed to avoid desegregation to be reopened, See also Green v. New Kent County Board of Education, 391 U. S. 430, 438, n. 4 (1968). 46 In this case the deprivation of political power through the layers of discretion authorized by the statutory selec. tion scheme—from appointment of jury commissioners by a judge elected by voters of six counties to grand jury selection—powerfully affects “matters that intimately touch the daily lives of citizens,” Terry v. Adams, 345 U. §. 461 (1953).** The proper education of their children has * E.g., Carr v. Montgomery County (Ala.) Board of Educa tion, 253 F. Supp. 306 (M. D. Ala. 1966); Dowell v. School Board of Oklahoma City, 244 F. Supp. 971 (W. D. Okla., 1965) aff'd 375 F. 2d 158 (10th Cir., 1967), cert. den. 387 U. S. 931 (1967); United States v. Logue, 344 F. 2d 290 (5th Cir. 1965); Board of Public Instruction of Duval Co., Fla. v. Brarton, 3% F. 2d 616, 630 (5th Cir., 1964); Wheeler v. Durham City Board of Education, 346 F. 2d 768 (4th Cir., 1965); Kelly v. Altheimer, 378 F. 2d 483 (8th Cir., 1967); United States v. Scarborough, 348 F. 2d 168 (5th Cir. 1965). *! Powerlessness to affect the fate of their children was one of the most characteristie—and one of the most destructive—aspeets of Negro slavery. Yet, today in Taliaferro County, not only are Negro children trapped in a school system which keeps them in racial isolation, but the parents of those children are prohibited from influencing the administration of the schools. Negro parents are kept from attending board meetings, they cannot observe their children in class and they cannot even freely form a par- ents-teachers association, see pp. 12-14, supra (A. 188-190, 206- 07, 210-211, 225, 229). Negro children do not enjoy an integrated education in Taliaferro largely because three years ago a scheme was devised enabling white students to avoid attending integrated schools. Sehool board participation in this conspiracy was so well established that in 1965 the district court felt constrained to re- move the school system from board control and place it in re- - arr one 8 eH — i a ba 47 been recognized time and again as of crucial importance to the Negro race since Brown y. Board of Education, 347 U. 8. 483 (1954). That interest cannot be adequately pro- tected within the context of a structure which is subject to total domination by county whites who have continu- ally and consistently shown themselves antagonistic to the interests and rights of Negroes. Only three years ago white resistance to integration of the schools was so gr at as to necessitate a federal court to order placement of the school system in receivership. Since the termination of that receivership no change in white community sentiment has been manifested. There is no evidence in the record of any significant attempt by that community, or its school board, to reverse the exodus of white students from the public schools. The school board even refuses to listen to the grievances of Negro parents whose children do attend ceivership. That receivership was terminated three months later with the expectation that the board would “resume the operation of a complete school system for 1966-67.” The return of the schools to board control was “so that necessary plans for operating the school system in 1966-67 may be made.” It was further noted that “the dual school system has been abolished for 1966-67.” Turner v. Goolsby, 255 F. Supp. 724, 734 (S. D. Ga. 1965; supp. opinion 1966). The court clearly expected that the board was prepared to administer an integrated system but the board has not fulfilled that expectation. No board member has a child in the public schools (A. 23, 47). Nor has the board made any effective effort to induce a single white teacher or child back into the system (A. 357-59). In short, with regard to the education of their children, Taliaferro Negroes are in a position quite analo- gous to a pre-Civil War characterization of slaves as persons who were considered to be: A subordinate and inferior class of beings, who had been subjugated by the dominant race, and whether emancipated or not, yet remained subject to their authority and had no rights or privileges but such as those who held the power, and the government might choose to grant them. Dred Scott v. Sanford, 19 How. 399, 404-05, 60 U. S. 393, 404-405 (1857). = 48 the schools (supra, pp. 12-14). In such circumstances, the Georgia scheme for selecting school board members oper. ates in this county to deprive appellants of rights guaran. teed by the Constitution. Until the state provides a system of selecting board members which does not unconstitution. ally dilute the votes of Negroes, the district court is obliged to fashion a remedy to ensure that those who con- trol the school system fairly represent the interests of Negroes. Georgia’s Prohibition of Membership on County Boards of Education to Non-Freeholders Violates the Fourteenth Amendment. By statute and constitutional provision, Georgia re. stricts membership on those county boards of education which are selected by a county grand jury to “five free. holders”—persons who hold title real property in the county,’ Ga. Code Ann. §2-6801, Art. VIII, §V, para. 1 of the Constitution of 1945;% Ga. Code Ann. §§32-902, 902.1. The court below rejected appellants’ contention that by prohibiting those who did not own real property from school board membership Georgia had violated the Mqual ** A freehold is a generic term which describes “any estate . . existing in, or arising from” real property, 28 Am. Jur. 2d, Estates §8. As defined in Black’s Law Dictionary a freeholder is “one having title to realty” (4th Ed. 1957) p. 793. **The Georgia Constitution states: The Grand Jury of each county shall select from the citizens of their respective counties five freeholders, who shall con- stitute the County Board of Education. Ga. Code Ann., §2 6801. bn 49 Protection Clause of the Fourteenth Amendment. The court did not decide what valid state interest, if any, this prohibition served. It merely concluded that this unequal treatment to non-freeholders did not amount to invidious discrimination : There was no evidence to indicate that such a qualifi- cation resulted in any invidious discrimination against any particular segment of the community, based on race or otherwise (A. 403). This language should not be understood as a finding by the district court that appellants lack standing, for the court granted, and appellees did not oppose, the inter- vention of a non-freeholder, a father of six schoo] chil- dren, who plainly possessed requisite standing to chal- lenge a statute which prohibited him from serving on the county school board, Bond vy. Vloyd, 385 U. 8S. 116 (1966); Baker vy. Carr, 369 U. S. 186 (1962). The district court permitted intervention (A. 72, 73) for the express purpose of conferring standing and as Judge Bell put it: “.,.to make certain that the Court will reach the merits of the claim that an application based on freeholders is unconstitutional” (A. 370-71). Numerous decisions of this Court, however, stand for the substantive proposition apparently rejected by the district court that the poor form a class protected by the Equal Protection Clause against state legislation which discriminates on the basis of wealth, and Harper vy. Vir- ginia Board of Elections, 383 U. S. 663 (1966) makes plain that the Equal Protection Clause prohibits discrimi- natory treatment of the poor in the political arena. *E.g., Griffin v. Illinois, 351 U. S. 12 (1956); Smith v. Ben- nett, 365 U. S. 708 (1961). — Ar. 50 It is also established that the right to seek office as well as the right to vote may not be infringed on the basis of invidious discrimination. Bond vy. Floyd, 385 U. S. 116 (1966); Anderson v. Martin, 375 U. S. 399, 401-402 (1964). The “right to choose, secured by the Constitution,” United States v. Classic, 313 U. S. 299, 315 (1943) surely encom. passes not only the casting of ballots but the right to appear on those ballots as a candidate, subject only to such rational requirements for candidacy consistent with the qual Protection Clause as the States may prescribe. Par. ticipation in the electoral process necessarily includes the right to seek office. In Bond v. Floyd, supra at 385 U. §. 130, Georgia conceded that “if a State Legislature excluded a legislator on racial or other clearly unconstitutional grounds, the federal (or state) judiciary would be justified in testing the exclusion by federal constitutional stand- ards.” On its face, the Georgia freehold qualification for school board membership operates as an unconstitutional denial of equal protection against the poor and non-landholders: For to repeat, wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned. (Harper, supra, 383 U. 8S. at 670.) In fact, the requirement that one be a freeholder is so much more substantial than the $1.50 poll tax which the Court struck down in Harper that it emphasizes the disfranchise- ment in this case.** That Georgia’s constitutional and °° Decisions in two recent cases construe Harper to compel the demise of financial restraints on enjoyment of political rights. Significantly, both cases dealt with the barrier involved in the in- a | a a ee a ee ee ee ee =e oe ok ee ak ae fee, eee 6 ee Se See ee 2 eee eee eee ee — dl statutory limitation on the right to serve as a school board member to “five freeholders” is in violation of con- stitutional requirements is also supported by the prin- ciple that the standards of the Equal Protection Clause are the more exactingly applied where the franchise is concerned. When the State attempts to restrict a funda- mental right it can do so only on the showing of a “com- pelling interest.” Sherbert v. Verner, 374 U. S. 398, 405 (1963); N. A. A.C. P. v. Button, 371 U.S. 415, 438 (1963) ; West Virginia State Bd. of Educ. v. Barnette, 319 U. S. stant case—the antiquated condition of a right on the ownership of real property. In Pierce v. Ossining, 292 F. Supp. 113 (S. D. N. Y. 1968) the property requirement struck down was a prereq- uisite to voting in a town election. In Landes v. Town of Hemp- stead, 231 N. E. 2d 120, 20 N. Y. 2d 417, 284 N. Y. S. 2d 417 (1967), the New York Court of Appeals overruled a 1937 decision and rejected a property requirement as a limitation on the right to hold office. The New York Court of Appeals found that “it is impossible . . . to find any rational connection between qualifica- tions for administering town affairs and ownership of real prop- erty” (20 N. Y. 2d at 421). Two other cases reach a different result. Cipriano v. City of Houma, upheld a restriction that property taxpayers only vote on a resolution authorizing issuance of utility revenue bonds, 286 F. Supp. 823 (E. D. La. 1968) probable jurisdiction noted 37 U.S. L. Week 3275 (Jan. 14, 1969) O. T. 1968, No. 705. Kramer v. Union Free School District No. 15, O. T. 1968, No. 258, argued January 6, 1969, upheld a requirement that voters in a school elec- tion be either real property owners, their spouses, school district lessees (but not their spouses) or parents or guardians of children attending district schools, 282 F. Supp. 70 (E. D. N. Y. 1968) ; see also 259 F. Supp. 164 (E. D. N. Y. 1966). While appellants be- lieve the views of the dissenting judges in these two cases are persuasive, these decisions in no way affect the question before the Court here. In Kramer, instead of the broad restriction to freeholders authorized by Georgia, New York law permitted par- ents, guardians, and lessees to vote, as well as those who own taxable real property and their spouses. In Houma, the vote did not concern public schools but only the relatively narrow ques- tion of whether to issue utility revenue bonds, a decision which also was subject to approval of the generally elected municipal government body. ats 283 ay OE, OE CEU Me per, cope at GS TE 66s ee foo omatiety the requirement of] “oompeltinge piterent’ the state dutit alenmemetoate afl ob the Potbow tage (1) ‘That {lie hesttietiom iipared: tatiomathy celatern: foo Tega tininte yovernmionmtal obpoetiven eampelt, C2) (hit the drenmett to the publie at those objectives oubwerthe Che cirparenient of the cometeQuttenmal caeht= ane that) C4) ta abbermative Hedi tess subwetave of the eometetitronadl eat ane naval nhle. See Amite vo Board of Begenty, 8h TIS) ose CU, Creel vy Conmeetreut, UNE TS de CPG), Vb ECP Maha, YEE ES ONS (CDG) Apthehens Nooretarg ot State, BES EOS GOO CEIGD) Sherbert yy. Verner, ' ' yee MY us aN supra, Bdteds yw South Carola, vee Uy cry NOt a Py Button, supra, wt dy Steelton Tucker SAR TS ATO ASS (E900) s Thomas vo Collis Ses POS Ste bso Cy NSelmenden y State, SON TE ST, LL CLO89) Sa posnen on the Greaeold Case and the Right Of Prreqeu, Gb Maelo dy. Hew Te Crea) The Creeholder Limitation iin ne wiry eaipported: by eueh a oustifien tion. ‘Phe pirpose of the provinion te not ey pressed, but oun the nineteenth eentiury, When at) wae en vetoed, ii owas thousht by many that only owners of real property were suffierently concerned about government to evereise the duties of office, Whatever the validity of this conelusion inthe past, tas plan that today one’s interest in, er -eapaetty for, pubhie affairs does not depend on whether he as oa landlord or a tenant. As Judge Wem stem has put it: Some premises are no longer constitutionally per missible and legal syllogisms whieh embody them must be rejected. One constitutionally unacceptable hypothesis is that people owning rights to real prop- erty are more likely than citizens generally to exercise fit them vote responmbly Thos, a loenl poliey based on fhe neeninplion that owners of property riyhte mre particularly interested on eehool eleetions cannot quetily denying the ight to vote ftocother moratl, snd Mtelleetoatly quiatitiod nelulte who treet residence re quirements Aramer vo Minion Bree Nehool Dil No 1h, VME Bap 70, BOOT DON V V9GH) Cliementingy opinion) In whort, (he iden Chat only persons whe hold real property are enpoble of holding publi offies reflects an oheolete mand repiiinted view of what constitutes equal protection Harper Vo Virgen tate Hoard of Mlectione, eupra, Landen vo Town of Nowth Mempotead, supra, ef MelLaugh lim vy, Mlonida, STOW BWA, 190 01964) Norenn the freeholder requirement be rationally jaetified hy a denire to bint perviee on bonrds whieh wet tag rates to thone who puy taxes, cee Slate on vel Mitchell v Meath, WA Mo. 2G, Tas. Wo eb TOOL, 1004 (1999) even if one maken the dubious aecumption that the puble interest on elucation could be totally displaced by the taxpayer's in terest on the tne of funds that onee were hie’ In Georgina, the county seehool board haw no direet taxing power but may only recommend a tax rate to courty suthorities (Ga Code Ann. {32 011%, 1127) and the property which is potentially subject to taxation for school purpowes i not “Ownership of land has even leas rational relationship ty cual: fications for the office of school board member than other offices ‘town supervisor, county cormistioner, ete) berause the who! hoard in concerned with a delimited wet of concerns none of which has any relation to property holding. "It should be noted that neither of the two state policies whicr Mr. Justice Black, dissenting, found would support the poll tax on Harper, 383.U. 8S. at 674 are available to justify the freeholder re quirement. a — D4 limited to that of individual freeholders, Ga, Code Ann, §82-1116. Moreover, the Taliaferro school system raises but a small proportion of funds raised by ad valoren taxes ($39,000 out of a total budget of $267,611) (A. 49), The overwhelming majority of the budget is received from the state and federal governments, Nor need Georgia limit board membership to five free. holders to achieve even the questionable benefits one might suppose for the freeholder requirement—as witnessed by the fact that a non-freeholder may apparently be appointed to a school board in those counties which have abandoned the grand jury selection device, see mfra pp. taeca, At any rate, other options are available to the state which do not involve needless denial of participation ino organs of government which critically affeet the publie welfare, I! it is the voice of the freeholder which the state wishes to have considered, school boards could be required to seek the written opinion of one or more frecholders concerning anticipated land purchases or transfers prior to making any decision thereon, Or school boards might: be directed by statute to obtain legal counsel concerning any tani transactions. But any claimed benefits of the present free holder requirement are clearly outweighed by the extent to which parents of school children and other non-lande( citizens generally are totally denied access to what may be the most important unit of local government and_ most available outlet for community political expression, Cf. Kramer v. Union Free School Dist. No, 15, swpra, 282 ¥. Supp. at 76-78 (dissenting opinion). 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 cE _— 55 y. Schempp, 374 U.S. 208 (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 in them. Georgia law does not, however, recopnize a proup with a special concern for the schools by limiting board member ship to frecholders; on the contrary, it vests membership ina 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 Mqual Protection Clause by restricting control of its educational establishment to those who own a particular class of property, CONCLUSION Wuekkvone, appellants pray that the judgment of the court below be reversed in so far as it denies declaratory and injunctive relief, Respectfully submitted, Jack GREENBERG Micnann. Mevrsnin 10 Columbus Cirele New York, New York Howany Moore Perer RinosKkove 85914 Hunter Street, N. W. Atlanta, Georgia Attorneys for Appellants Norman J. CHACHKIN Of Counsel --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0140%3A08. Public record. Not legal advice.