Evening star., 1951-11-08
District Judge
Defends Ruling
On Segregation
Brief to Supreme Court
Explains Jurist's Stand
On School RocioI Issue
By Robert K. Walsh

The Supreme Court was urged
today to hold that District Court
properly followed local law and
the separate-but- -equal-facilities
doctrine in refusing to have a
three Judge panel rule on consti-
tutionality of racial segregation in
public schools here.
In a brief filed In accordance
with a Supreme Court order last
month, counsel for District Court
Judge Matthew F. Mcclure de-
Tended his dismissal of request
for a special three-judge court.
The judge decided last spring that
no substantial constitutional ques-
tion was raised in legal moves
made in behalf of four Negro
lchildren who were denied admis-
sion to the white Sousa Junior
High School.
The group seeking the three
Judge court did not press any
question of inequality of school
facilities for white and Negro
children in the District. It's basic
claim was that separation of the
races in the school system here is
in itself unconstitutional.
Cites Power to Decide.
The Supreme Court, at the start
of its current term. gave Judge
Mcclure 80 days to show cause
why he should not be ordered to
refer the matter to a special three
Judge panel in the lower court.
The judges formal answer, filed
with the Supreme Court by the
District Corporation Counsel's
office at the expiration of the 80
days. rested on these main
grounds:
| /. That District Court Judge
is more than a mere ministerial
officer" He has the duty as well
as power to decide as a judge,
whether request by applicants
for three-judge court involves a
substantial Federal question of the
type which can properly be re-
ferred to such a special panel.
| 2. That the establishment of a
three-judge. court would put a
serious drain upon the Federal
judicial system"
/ 3. That, even if the complaint
| raised an otherwise constitutional
question, it should not be refer
red to special three-judge panel
; because the school segregation
system is based on an act of Con-
! gress which applies only to the
District of Columbia.
Retain Appeal Rights.
4 4. That the petitioners for a
sl three-judge court have not lost
their right of appeal to higher
, courts on the merits of the case.
!, Judge McGuire's answer noted
that Judge Walter M. Bastian last
!, April formally dismissed the suit
/ Itself. An appeal is pending in
/ the United States Court of Ap-
| peals here, and later could be car
/ ried to the Supreme Court.
The pending petition in the
Supreme Court concerns a pos
. sible three judge court from
| which an appeal could be taken
i. directly to the Supreme Court
without going through the Court
of Appeals.
The brief before the Supreme
Court today contended the group
seeking the three-judge court ar
, rangement went beyond the
, purely and simply" procedural
issue in their recent request that
, the Supreme Court overrule Judge
MCGUIRE.
1t asserted that the group was
making "a thinly veiled effort to
obtain an expression from the
Supreme Court on the merits Of
the question raised in their COM
plant in the District Court"
ProceduraI Matter.
, The brief stated that Judge Nc
, Guire or any other District Court
, judge should not be required to
, argue the merits because Supreme
Court consideration at this time
, deals solely with an essentially
procedural matter.
"The question of the constitu-
tional validity of laws requiring
{ separate schools for white and
| Negro children of the District has
; been settled by the United States
: Court of Appeals for the District.
and the Supreme Court has many
} times expressed itself upon validity
Iof separation of the races in wholly
equal facilities" the statement de-
clared.
1t concluded that these express
slons are binding on a District
Court judge in determining wheth-
er a three-judge court should be
:, set up to decide issues of that
+ kind.
> Oral Arguments Undecided.
S The Supreme Court has not in
1 dicated whether it will schedule
oral arguments on the petition to
l compel formation of a three-judge
e court. If the high court decides.
!. with or without further briefs or
: arg uments, that substantial con-
< Istitutional question is involved, It
probably would order the District
= Court to establish the three-judge
!. panel to hear the case and rule
: on any constitutional question.
Three-judge courts of that kind
have been convened in recent
months in South Carolina and
Kansas on school segregation is
sues. Both ruled that segregation
> in public schools is not, in itself,
unconstitutional. Those decisions
have been appealed to the Supreme
> Court The tribunal has not yet
said whether it will review them.
|