Earl Warren: Number 623, Fred S. Calhoun et al., Petitioner, versus A. C. Latimer et al. Senator Motley.
Constance Baker Motley: Mr. Chief Justice and may it please the Court. This case filed in January 1958 involves Atlanta, Georgia's school desegregation plan before this Court for review upon the granting of a writ of certiorari is the judgment of the United States Court of Appeals for the Fifth Circuit. That judgment affirmed, as modified, in order of the trial court by 2-to-1 decision. Judge Richard T. Rives dissenting on the original hearing and on petition for rehearing. The trial court flatly refused to discard Atlanta's original court-approved plan which became effective in September 1961. Now, before getting to the facts in this case, I would just like to briefly state what we believe to be the issues presented by this case. The first issue here is whether Brown allows a School Board to reassign Negro children on a racial basis and then require them to apply for transfers to white schools. Or whether Brown requires southern school authorities which established separate system, one for Negroes and one for whites to now integrate those systems into a unitary nonracial system by doing away with the dual school zone lines upon which the dual school systems are based. Now, the second issue presented by this case is whether the Court of Appeals' approval of a greater year plan, nine years after this Court's first Brown decision, comports with this Court's present concept of deliberate speed. The third issue involves the teachers. Here, it takes the form of whether Brown precludes the State from maintaining Negro and white schools, by maintaining separate staffs. The plan presently before the Court evolved from a plan approved by the trial court in 1960. The trial court approved the plan which provides for a greater year beginning with the 12th grade and descending a greater year thereafter. Under the plan, Negro children were all reassigned to Negro schools and white children were all reassigned to white school. Then the plan permitted children in the 12th and 11th grade, two grades in which the plan began because the year was skipped by the trial court awaiting action by the Georgia Legislature, children in the grades to which the plan applies are then permitted to apply for transfer. And those transfers were then considered with relation to 17 pupil assigment criteria, which in practice, as the record showed, applied only to Negroes seeking transfers to white schools. Now, this plan, which the trial court approved in 1960, continued the separate school zone lines on the elementary school level. There are separate zones which related to the Negro schools and then there were separate zones which related to the system of white schools on the elementary level. The trial court's plan continued the feeder system which begins when you graduate from elementary school in the 7th grade and you go to high school in the 8th grade. The feeder system feeds three or probably four elementary schools into a previously designated high school, so that the high schools, in effect, do have zone lines consisting of the three or four elementary school zone lines which feed into their high school. So the court-approved plan in the first instance continued that system.
Potter Stewart: I'm not sure, Senator Motley, I completely understand the system in Atlanta. The -- there is no junior high school --
Constance Baker Motley: That's right.
Potter Stewart: -- such as the --
Constance Baker Motley: No junior high school.
Potter Stewart: But high school -- high school, on the other hand, begins not on the 9th grade, that's what --
Constance Baker Motley: But in the 8th.
Potter Stewart: -- I'm familiar with, but in the 8th.
Constance Baker Motley: That's right.
Potter Stewart: For five -- high school is for five years.
Constance Baker Motley: That's right.
Potter Stewart: And these are separate school buildings, the high school, do they?
Constance Baker Motley: Yes, sir.
Potter Stewart: And larger schools than the elementary school.
Constance Baker Motley: Yes. That's right.
Potter Stewart: So that they accommodate generally the pupils from three or four different elementary schools.
Constance Baker Motley: Yes, sir. That's correct. Now, in 1962 after the plan had been in effect a year, we went back into the trial court and tried to get a new plan. And the trial court refused to discard the plan which it had approved. Then when the case got to the Court of Appeals, the Court of Appeals modified the plan to require the application of whatever criteria were being used by the School Board at that point to all students seeking transfer, not just Negro students. The evidence in the trial court showed that Negroes applied for transfer between May 1st and May 15th each year. Then during the rest of the year, when Negroes sought transfer to Negro schools and whites to white schools, they were permitted to transfer on the other criteria or they were called informal transfers. So that the plan operated only as to Negroes seeking transfers to white schools and the Court of Appeals said, "You can't do that. Whatever criteria you use have to apply the old transfers." In addition, the Court of Appeals said, "You should apply with criteria of the plan when children leave the elementary school going to high school. The plan should be applied it said, to all students new to a grade which the plan had reached." And in 1964, which is this year, the plan will reach the 8th grade. So the trial -- the Court of Appeals said, "Now, when those children move from elementary school, apply the criteria of the plan. They are new." And those were the major modifications. But the Court of Appeals' plan permitted the continuance of the dual zones for the elementary school level. This is the foundation of the separate school system, the dual zone. It also --
Potter Stewart: The -- these zones overlapped geographically?
Constance Baker Motley: Yes, the superintendent testified that where the areas are mixed racially --
Potter Stewart: Yes.
Constance Baker Motley: -- with respect to the housing. They will, in effect, overlap. That's in the record. Now, the --
Potter Stewart: You mean they will take in one house and the -- and the house right next door would be in a different zone and then the one next to it will be in the first zone?
Constance Baker Motley: Well, what happens is that Atlanta is such a large school system that it's divided into five administrative areas. Each administrative area has a supervisor. And those -- that supervisor gets together with the principals in his area and they determine the lines. Now, there's one area called "Area 1" and that is the Negro school system and it has a Negro supervisor. And so he gets together with the Negro principals in the Negro elementary schools and they determine the lines for the Negro elementary schools. And these lines are related largely to the problem of capacity of the school. You see, they draw a school zone line not with -- with relation to proximity alone because you may not be able to fill the school. So you draw the line until the school is filled with its capacity. And then when Negroes live in outlying areas, the original trial record show, they will bust in from their white area where they live into a Negro school. Now, that original record isn't before the Court but the School Board appeal in this case. And they didn't go through with their appeal but they printed the record and -- and that will -- that earlier testimony is there. Now, the Court of Appeals also postponed indefinitely, as the trial court did, consideration of the teacher issue. We had urged trial court to require the School Board now to come in with a plan for reassignment of teachers on a nonracial basis because as we pointed out, the Brown case talked about systems, a transition from a segregated system to a system not operated on the basis of race. So the Brown case required disestablishment of the dual systems which meant, as we see it, not only the reassignment of pupils on some reasonable nonracial basis but the reassignment of teachers and the elimination of all other distinctions in the operation of the school system based on race. Now, in their brief in this Court, the respondent's claim that beginning in the school year 1964, there will be one criterion applied with respect to request for transfer and that is proximity. However, their plan will still require students in grades 9 through 12 to apply for transfer that is under the plan, as it has operated so far, there are 150 Negro students, approximately, attending white schools -- white high schools. Now, the other Negro students who are still in Negro schools in grades 9 to 12 still have to apply for desegregation under their plan. Their plan will apply the proximity criterion to those leaving the 7th grade and going to the 8th grade this year. Now, that's proximity criterion, as I have pointed alone, is not sufficient if you live near a school. That's not a good test because you may live in a densely populated area. And you may have a school to accommodate 600 or 800 and there are 2000 in the area, so it's not proximity alone but they propose to assign children on that basis. Now, in Atlanta, most of the Negro high school children live near the Negro high school. And they're overcrowded. Our Exhibit 7 gives all of the figures on the overcrowding in the Negro schools and the superintendent admitted that the problem of overcrowding was greater in the Negro schools because there are fewer Negro schools although Negroes are 45% of the school population, so that, that's an insufficient criterion on which to permit people to transfer. We say that what they should do is to draw a school zone line which relates to the capacity of the school because they have -- I think in the record it shows 13 white high schools un-enrolled whereas every Negro high school, there are only five, now, has overcapacity. The turn -- the high school has -- 1000 more than it was build to hold for example. Now --
Potter Stewart: Would you agree that subject to problems of physical capacity that proximity of home to school is -- is relevant -- a factor as any and --
Constance Baker Motley: Yes, it -- it's a relevant factor, yes. But as I say, proximity alone is not the basis on which they draw these school zone lines or nor could they because the population maybe dense in one area and sparse in another.
Potter Stewart: Yes.
Constance Baker Motley: So that the lines as actually drawn relate to capacity. Now, under the present plan, as set forth in their brief, in grades 1 through 7, the separate school attendant's area line, which the superintendent describes at page 61 to 62 of the record, will remain in effect in grades 1 through 7, the separate school zones. And students in these grades cannot even apply to transfer. Now, when the plan ultimately reaches the first grade in 1971, then they will apply to students entering the 1st grade, the criteria of the plan which as they say now the criterion, which they say is now proximity. So that beginning in 1971, for the first time in Atlanta, we will have the plan commencing in the 1st grade on the criterion of proximity alone and that will move up a greater year until it gets to the 7th grade. So that in 1978, we will, for the first time, have the separate zone system eliminated. In short, Atlanta will finally desegregate their schools 18 years after the plan was first approved. And almost a quarter of a century after this Court held racial segregation in public education unconstitutional. Now as I say the first time --
Potter Stewart: I don't think -- I don't think I follow that. I should think in 1970, we're talking about six years, but I should think in 1971, there would be, as I understand the plan, a -- a complete desegregation.
Constance Baker Motley: No, sir. In 1971, the plan would have allowed everyone in the school system from 12 to 1 to apply for transfer.
Potter Stewart: Right, and -- but also in that year in the first grade, there's no application involved (Voice Overlap).
Constance Baker Motley: That's right. You -- you will then be -- the criteria of the plan which is proximity would then be applied.
Potter Stewart: Yes.
Constance Baker Motley: But everyone in grade 2 will still be in a desegregated school only if they have applied and have met the criterion and has been accepted.
Potter Stewart: If they have applied the previous year, second years from the second grade through the 12 --
Constance Baker Motley: That's right.
Potter Stewart: -- they've applied in previous years, previous to 1971, they will have been and --
Constance Baker Motley: That's right.
Potter Stewart: (Voice Overlap)
Constance Baker Motley: -- if they have applied.
Potter Stewart: And beginning in 1971 in the first grade, everywhere from the first grade and thereafter.
Constance Baker Motley: That's right.
Potter Stewart: Everybody goes to the school in their (Voice Overlap)
Constance Baker Motley: That's right. And then that first grade moves up.
Potter Stewart: Yes.
Constance Baker Motley: In other words, there's no further application --
Potter Stewart: Right.
Constance Baker Motley: -- because you've been assigned on proximity.
Potter Stewart: Right.
Constance Baker Motley: And for the first time, we will have in the elementary school, people in a grade on the same basis, one criteria. Now this also starts in the 8th grade this year.
Potter Stewart: Yes.
Constance Baker Motley: The plan will begin to move not down but -- well, while it's moving down, it'll also move up with the 8th grade having been assigned on that criterion. So they're moving up on the 8th grade and down to the elementary school, then he gets to the first grade, it moves up again on another basis.
Byron R. White: Mrs. Motley, I gather that 1971 would be the first step -- first time that involuntary transfers so to speak would be -- would it be operative at all?
Constance Baker Motley: In --
Potter Stewart: (Inaudible)
Constance Baker Motley: Well, no -- no one will be -- will have been in school.
Byron R. White: For example, in 1971 there is no white child that -- that has to go to a -- to -- to the -- to a school that is closest to his home.
Constance Baker Motley: No, beginning in the 8th grade this year, they will apply that proximity criterion and presumably, there'll be some --
Byron R. White: Just to whites or Negroes alike?
Constance Baker Motley: Yes, in the 8th grade as they move, that is from the elementary school, from the 7th grade to the first year of the high school, the 8th grade, they will apply their single criterion, proximity. Now if it were school zone lines which they were applying related to capacity, you would have some whites going to Negro schools for the first time.
Potter Stewart: So this September, the first time, there will presumably be some Negro children going to integrated schools against their wishes?
Constance Baker Motley: That's right. And other things --
Potter Stewart: And some of the white children go into an integrated school against their wishes and those of their parents?
Constance Baker Motley: That's right. If the criterion, a single criterion is applied and if --
Potter Stewart: Of proximity.
Constance Baker Motley: -- proximity itself results in --
Potter Stewart: Results in that and presumably it will in some cases, will it not?
Constance Baker Motley: In -- in some cases, it might, but the best chance for it to result in integration is to draw those high school lines on the basis of capacity. So that -- those overcrowded Negro schools will shift into the white high school.
Potter Stewart: Are you suggesting or aren't you that there seems to be lurking in your suggestion perhaps that -- are you suggesting that the Constitution requires the Atlanta School Board to affirmatively, to integrate the races in the school?
Constance Baker Motley: I'm suggesting that it requires them to disestablish the separate zone system which they established. In the separate zone system, when they redraw those zones, there can be some all Negro schools and some all white schools resulting from residential segregation. And that's what we say Brown requires you to do to disestablish the separate systems which you established. And they had established a separate system by establishing separate zones in these separate feeder system.
Potter Stewart: That I understand. That's a --
Constance Baker Motley: And that's what we say Brown requires you to do.
Potter Stewart: But the -- but assuming that there were no problem of capacity, would a rule requiring children to go to the school nearest their homes, even though this resulted in de facto, all colored schools or all white schools in some instances, would that be constitutional in your view or not?
Constance Baker Motley: It'll be perm -- that rule, I think, would apply once the school system had redrawn the school zone line or whatever the basis for the segregation is. If they then make the rule, once having disestablished a separate system, if they then make a rule that you go to the school nearest your home and it applies across the board, I think that's alright. And of course, there will always be people who want to transfer for valid educational reasons like somebody in an academic high school may decide he can't do that work once it transferred to a vocational high school. Now the second issue is whether the Court's approval of this 12-year plan, nine years after Brown comports with this Court's present concept of deliberate speed. And I think it's clear that it does not in view of this Court's recent decisions in Watson and Goss. I think that petitioners -- respondents rather, haven't demonstrated that there are presently any administrative problems in Atlanta which prevent them from immediately desegregating all the schools in Atlanta in September, 1964. Now the trial judge specifically asked them to come in with testimony to show that the plan which we had proposed to speed it up could not be speeded up and they never did. And that's on pages 153 to 154 of the record. Now if there were some administrative reasons within the categories enumerated by this Court in the second Brown decision which prevented after decade desegregation in Atlanta, they would have come in and they would have demonstrated that to the Court. And in their brief here they'd only suggest any administrative reason which the Court enumerated in the second Brown case why there can't be immediate desegregation. Now finally on the teacher issue, we say that the State cannot continue under Brown to maintain Negro and white schools. And the way that maintain Negro and white schools under their transfer plan such as we've had here, is by maintaining separate staffs. Now the Superintendent testified that the policy was to assign Negroes to Negro schools and whites to white schools. Teachers apply their contracts approved by the Board but he does the assignment, the superintendent. So that when a school has an all Negro staff or an all white staff, that labels that school as a Negro school or white school as much as they had put a sign over the door saying Negro and white. Now they claimed they've eliminated all labels from their records but this is a far more effective label in the judgment on the community than a label in a -- a record book because everybody knows that that separate system means Negro school, white school. Now we urge this Court to reverse the judgment below and to remand this case with direction to reassign all students in Atlanta in 1964 pursuant to nonracial capacity related school zone lines that each elementary and high school reassign all teachers and assign all future teachers on the basis of qualification and need and without regard to race and remand it with directions through the District Court to enjoin any other distinction in the operation of the school system based wholly on race and color. I'd like to save the remainder of my time for rebuttal.
Earl Warren: You may, Senator. Mr. Marshall.
Burke Marshall: Mr. Chief Justice, may it please the Court. This is the fourth case that this Court has reviewed involving school desegregation since its opinion in the Brown cases in 1954 and 1955. That includes the Prince Edward case which was argued yesterday. The United States has participated in each of these cases as amicus, not only because of the interest of the United States in the constitutional rights of the millions of its citizens, but also because of its interest on the effect on the education of millions of children in at least 11 of our states from the manner and speed with which the Brown decisions are implemented. This is the -- the first of the four cases that presents the Court directly with an opportunity to review the application by School Boards and the lower courts of the deliberate speed concept. The standards of that concept are contained in a very few sentences in the Brown case, Cooper against Aaron, Goss and Watson. The issue is whether those standards were applied by the court below and by the Atlanta School Board. I think that it is relevant in considering that question to look at the implementation of the Brown decisions elsewhere as well. First in terms of the general statistics in the 11 states and secondly, with the respect to the facts showing experience in particular, other cities. The general statistics do not show widespread compliance as yet with the Brown decision. In the 11 states of Texas, Louisiana, Alabama, Mississippi, Georgia, Florida, Arkansas, Tennessee, North Carolina, South Carolina, and Virginia, 82% of the school districts are still segregated. There are 30,000 as of this last fall, Negro children going to school with white children in these States. That's out of a total of three and a half million white children and about a million Negro children, who are technically going to the schools in desegregated districts that is districts where some Negro children are going with white children.
Potter Stewart: How many -- I'm looking at this, how many white children are going to school with Negro children?
Burke Marshall: I don't have --
Potter Stewart: The figure would be much larger, wouldn't it?
Burke Marshall: Yes, it would, Mr. Justice Stewart, much larger.
Potter Stewart: Because I gather in -- in Atlanta and typically elsewhere, it -- when there is desegregation, the Negroes remain a very small minority in white schools rather than vice versa. Isn't that the picture?
Burke Marshall: Yes. The number of -- of white children going to schools which have some Negro children in them --
Potter Stewart: Would be a very much --
Burke Marshall: -- would be much larger, yes.
Potter Stewart: Yes.
Burke Marshall: The figure on the number of white children going in -- to school in school districts where there are some Negro children and some white schools is three and a half million. But how many of those are going to schools in which there are Negro children also attending on is not the statistics I have. In those same districts, there are a million Negro children. This is out of a total school population in this area of about almost 3 million Negro children and almost 8 million white children. The percentage of Negro children going to school with white children is a little over 1%. In part, these statistics simply show no movement at all. But in part and I think this is true as to the 30,000 children that are going to schools with white children, 30,000 Negro children were actually going to schools with white children in desegregated school districts which contained a total of over a million Negro children, that they show so many facts of the application by the School Boards and the District Courts of the deliberate speed concept. That the experience in some cities has been that large school districts can desegregate rapidly and that delay is not necessary or even helpful once the start is made at least as an administrative matter. Now one example of that is here in Washington which was desegregated all at once in 1954 by complete rezoning of a dual school system. That was done of course in the city with a large Negro population and it was done just a year after the restaurants in the cities were desegregated following this Court's decision in Thompson. In Baltimore, it was done in all one year in 1954 that all pupils in the entering school in the first year of elementary school or the first -- or the first year of secondary school, being admitted to the schools of their choice and all other children that were already in the school system being permitted to transfer. The Baltimore Board considered and rejected gradual desegregation approaches. In Louisville, Kentucky, another large city was desegregation was achieved in one year in 1956, all levels of education in the city were redistricted and transfers were permitted thereafter on the grounds of space, convenience, and individual preferences.
Potter Stewart: Isn't the -- wasn't the entire premise behind the second Brown decision, the proposition that there were -- or might -- there were or might be great variations among communities in terms of their local laws and their -- and very -- many other factors and that -- and that Louisville and Baltimore and Washington might have quite different problems from Birmingham or Augusta or New Orleans?
Burke Marshall: Well, that's correct Mr. Justice.
Potter Stewart: And -- and the big cities quite different problems from rural areas and so on?
Burke Marshall: That's correct, Mr. Justice Stewart and I -- I'm --
Potter Stewart: So -- so what is the experience of Louisville really got to do with the problem here and on the experience of Omaha and Nebraska has to do with the -- that of Birmingham, Alabama?
Burke Marshall: I think this --
Potter Stewart: In view of the basic premise of the second Brown decision.
Burke Marshall: Well --
Potter Stewart: That these were local problems to be worked with -- locally worked out in --
Burke Marshall: I --
Potter Stewart: -- individual variations.
Burke Marshall: I think this, Mr. Justice Stewart. These are large cities. They did have completely segregated school districts when they started, when they first look at the system. The one thing that the Brown decision in Cooper against Aaron -- Cooper against Aaron in all decisions in -- in this field have ruled out as a factor of delay is disagreement with the Brown decision. And so the emphasis is on administrative problems, administrative problems in rezoning, transportation, the assignment of personnel and that kind of thing. Those were the factors that Brown specified. It -- it seemed to me, Mr. Justice Stewart that the experience in these large cities has some bearing, some relevancy at least on -- on the question of whether administrative problems of that sort require a plan which takes until as Senator Motley pointed out 1977 fall to implement completely. The -- the manner in which this was achieved in St. Louis was in three steps. In September 1954, February 1955 and September 1955, involving in a step-by-step plan, the junior college and teacher college, the first time and high schools accept the technical ones the second time and the technical high schools and the elementary schools in the third stage and this again, involved complete rezoning and the creation of new mandatory attendance districts with transfers to deal with the problems of overcrowding. There's also been progress in the cities where there have been severe problems to start with. New Orleans, they're at now 350 Negro children attending 27 schools, Norfolk, 347 in 12 schools, where the schools were closed at first. Little Rock, the School Board announced a complete desegregation this fall. Nashville, the first seven grades have been desegregated with 773 Negro children now in white schools. As I've said, the relevance of these statistics seems to me to show that urban desegregation as an administrative problem which is what Brown talked about can be accomplished rapidly. And of course, the Watson and the Goss case suggest in any event that the passage of time since the Brown decisions in -- in itself has altered the situation because the constitutional doctrines are -- are in effect, are no longer novel, they shouldn't be expected.
Arthur J. Goldberg: (Inaudible)
Burke Marshall: Well, Mr. Justice Goldberg, I -- I think there are two aspects to it. Some of these statistics that I have referred to show just no movement, it's as if we had to sue every taxpayer to make him pay his taxes or no corporation obeyed the Sherman Act until you brought a suit against them. That isn't the problem in this case however, Mr. Justice Goldberg. In this case, Atlanta is under a court order and it's a question of what the court order should be in a city which is already started, which has shown a willingness in fact a determination at first against the good deal of opposition to obey the court orders. And that, I think the question is whether the plan that in Atlanta is leading with deliberate speed to what is required by Brown which is an admission of all pupils into a racially non-segregated system. So I -- I think the other problem, Mr. Justice Goldberg, in a -- in a sense can't be dealt with by this Court, has to be dealt with in some other fashion or its legislation now before Congress which -- which would -- would reach it to some extent, but it isn't -- it -- it isn't a question of what an order -- this order against Atlanta should say if there's no movement at all in a school district that is not a problem that this Court can deal with and the order it corrects against the Atlanta schools district. In our opinion, the Atlanta plan does not comply with the requirements of the Brown decision after this experience in Atlanta and this experience in the contract in three respects. And that it's convenient for me talking about this to separate the problem in the high schools from the problem in the elementary schools system. As Justice Stewart mentioned, there is no junior high school system so that the high schools in Atlanta start with the 8th grade. So first as to the high school system, it is our view that the plan does not conform to the constitutional requirement in the high schools starting this fall despite the fact that some Negro children will be going to school with white in all grades starting this fall including the 8th grade. And the reason for that is that in the 9th, 10th, 11th, and 12th grades this fall, the initial assignment will still be on a racial basis being a continuation of the assignment from this year and only the 8th grade will be desegregated and what we view as a constitutional manner with the initial race -- initial assignment being totally without regard to race.
Byron R. White: Based on proximity?
Burke Marshall: Mr. Justice White, I -- I think that in all urban areas, the problem overcrowded schools is such that you couldn't -- couldn't device a plan for school system which didn't take that into account, so you couldn't just assign people to the school that they live nearest to. But I -- I think that the school system in Atlanta, the high school system in Atlanta is going to have to be reorganized, rezoned. Some sort of attendance be -- have to be set up for the 8th grade anyway as the School Board itself concedes in its brief. So I -- I think it was unclear before that, but I think it's now clear in the brief of the School Board and --
Byron R. White: (Inaudible)
Burke Marshall: That's -- I -- I would accept that, Mr. Justice White. I don't know but I would accept that.
Byron R. White: (Inaudible)
Burke Marshall: Mr. Justice White, it depends on why they're there. The --
Byron R. White: (Inaudible)
Burke Marshall: I accept for the 8th grade next fall is complying with the Constitution. What the School Board in the State of Georgia says is going to be done. They say that the assignments to the 8th grade will be without regard to race, that the feeder system which has been the basis of assignment up until this fall will be discontinued and that there will be a new zoning or new attendances --
Byron R. White: (Inaudible)
Burke Marshall: Well, Mr. Justice White, if it -- I would say that's up to the School Board. If -- if they take -- if they just grew circles around each school and took every child that lived in the circle and sent him to a school then I would say that the schools in the Negro neighborhoods are going to end up being overcrowded. But the Constitution doesn't require them to do that. All the school districts take into account the residential area and the number of people that lives in -- live in it in a population. They -- they deal with that either by changing the school district or permitting a free transfer plan or some other fashion. A school board in Atlanta has shown itself able to deal with these problems. I'm sure it can. The second way in which we believe that the Atlanta plan is unacceptable under the requirements of the Brown decision now, is in the weight of desegregation in the elementary schools. We think that the District Court erred when he refused to reexamine the speed of -- desegregation that's envisaged by the plan and that he erred in fair -- failing to require the School Board to prove what administrative problems if any, prevented a -- an acceleration of desegregation in the elementary schools either to the extent that was requested by the plaintiffs which is to cut it down to two years or even to do it all at once. The third mistake that we believe the courts below made, was in refusing to order the School Board to adopt any plan at all with respect to the integration of faculty and particularly as to that point I think with that -- with respect to the integration of the faculty in the high schools which will otherwise be completely desegregated in the 8th grade and we believe also in -- it should be required in the remaining grades this fall. As to the pupil assignment in the high schools, there's no dispute but that that is the desegregation that has taken place in the high schools, has been by a transferred system. The initial assignment of pupils under the high schools has been by a feeder system. And under that system, since the lower grades are completely segregated still, all Negro students automatically came out of the 7th grade, went into the 8th grade into five Negro high schools except to these Negro high schools by everyone.
Potter Stewart: Let's see, what's the situation elsewhere in the State of Georgia by way of desegregation of the school?
Burke Marshall: There is a -- Atlanta, Mr. Justice Stewart, was the first elementary school district in Georgia to desegregate. At the time they did that as I mentioned briefly before, there was a good deal of opposition, political opposition to it in the State of Georgia. The School Board of Atlanta and the people of Atlanta faced that problem in -- in the very fine fashion determined to resist school opposing which was one of the things that was threatened. That was in 1960. In 1961, they desegregated in accordance with the Court's orders and did it in as far as the Court's orders are concerned, in a fine fashion. The -- since then, there has been -- there was prior to the Atlanta desegregation, there were Negro students admitted in the University of Georgia. And since then, there has been some desegregation in Savannah and there is an order in effect for next fall in Albany, Georgia. There is some desegregation, I believe scheduled for next fall in Columbus, Georgia. And that's all that I know of --
Potter Stewart: So as of now, in the University of Georgia,
Burke Marshall: And Savannah.
Potter Stewart: And Savannah.
Burke Marshall: And Atlanta.
Potter Stewart: And Atlanta.
Burke Marshall: Senator Motley informs me, there's some in Brunswick, Georgia also that there are six Negro students assigned to white schools in that.
Potter Stewart: Which one -- yes, we all -- this is a -- you talk or I talk about Negro students being assigned to white schools where -- where guilty of unconstitutional talk.
Burke Marshall: That's right, Mr. Justice Stewart. I think that -- that is one that -- I think that is one of the problems that has -- has been in existence since the second Brown case in all the Circuits. Now it's been litigated in all the Circuits. Now -- but as -- as the deliberate speed concept started to be applied, the -- there is a tendency on part of the School Board, I think this was true of the Atlanta School Board and on them, the court of the District Courts to think about the problem as if it could be solved by taking individual Negroes that applied in putting them through some series of tests and then assigned them to particular white schools. That's why we have 30,000 out of more than a million Negro children in desegregated districts that are going to white high -- white schools. The Brown case, both Brown cases in Cooper against Aaron talked about a constitutional requirement for non-segregated school systems. And I think, Mr. Justice Stewart, as a fair statement to say that most School Boards and until recently, most District Courts have not been looking at it in those terms. Now in the last couple of years, there's been litigation in all four Circuits that were mainly concerned with this, in the Fifth Circuit, the Fourth Circuit, the 8th Circuit and the Sixth Circuit and the -- all of those Circuits have held and had come up and they have held that the elimination of dual school systems of this overlapping assignment plans that you referred to earlier are -- is unnecessary part of compliance with Brown. But that has not been clear and I think it -- I think a premise of the Atlanta plan as it started at least, was that the law required no more than a transfer plan. But as I understand the school --
Potter Stewart: (Inaudible) which we -- was approved by this Court I suppose in Shuttlesworth case, one of the many Shuttlesworth cases --
Burke Marshall: No, Mr. Justice Stewart. I'd -- I don't believe that the -- this Court did approve that in the Shuttlesworth case. The Shuttlesworth case came --
Potter Stewart: Declined to disapprove it.
Burke Marshall: Sir?
Potter Stewart: We declined to disapprove it as --
Burke Marshall: No, it -- the issue was different. The issue was different. The Shuttlesworth case came up on the face of the statute. That's all you have. That's all this Court had was the statute. If you read that statute, it had nothing to do with transfers. It had to do with the initial assignments. It assumed that you weren't assigning pupils on the grounds of residence alone or -- or residence plus a capacity factor, but that you gave them tests and so forth. And it assumed and you could read the statute on a suit that every pupil, when he first entered school, was going to go through these series of tests and be placed in the school not because of race but because of how we faired on these tests. But this was talking about initial assignment, not that it weighed --
Potter Stewart: I -- I --
Burke Marshall: -- it wasn't superimposed, so I think it was quite different.
Potter Stewart: I see.
Burke Marshall: The courts below referred to this as the Atlanta plan as having been based on Shuttlesworth and -- and some of the factors that they used in judging transfers were but -- but the -- the Shuttlesworth case did not -- did not approve a transfer system. Now, on the question of the rate of desegregation in the elementary schools, the courts below put the burden of proof on the plaintiffs and not on the school districts and held that there was insufficient evidence in the record now to show that the plan was not reasonable now and to show that the -- it was not proceeding at deliberate speed and they put a good deal of weight also as -- and their weight should be put on this, on the good faith of the Atlanta School Board and on their cooperation in maintaining law and order and on the increase and transfers that the Board approved that after the first year and going on to the second and third year.
Potter Stewart: You say, this original criteria have now dropped out, haven't they?
Burke Marshall: That's right, Mr. Justice Stewart. What didn't -- what was not eliminated by the Board itself I think has been eliminated by the opinion on rehearing of the Court of Appeals.
Potter Stewart: So now the only test are what -- if somebody now in the -- in the 10th grade wants to transfer to a different school, what are the -- what are the test?
Burke Marshall: As I understand it, it's just residence, where did they live?
Potter Stewart: Period and if they do live closer, they automatically can transfer, if they don't they automatically are prohibited from it, is that it?
Burke Marshall: I -- as I understand the School Board may enlighten on this and Mr. Justice Stewart, but they reprint in their brief, a letter which is not in the record which sets forth the basis on which they judge transfers. And as I understand that that's it, that the -- they --
Potter Stewart: If they live closer they can, if they don't live closer, they can't and there's no room discretion, is that the one?
Burke Marshall: That's right. That's as I understand it. We think that the burden should've been put on the School Board. For one thing, the Court's opinions in Goss and Watson indicate that that is so, that the time that has passed since Brown, the experience that we've had since Brown, the fact that the constitutional doctrines are no longer new, requires a reevaluation of -- of speed and the justifications for delay in this kind of a case. In addition, we think that the experience in Atlanta itself requires a reexamination that the desegregation that has been taken -- has taken place is taking place without problems, once it was over with, it was over with and it's been accepted in the community and in the State, the Board itself has recognized this by easing requirements to some extent to partly under compulsion, partly voluntarily and what tests they gave to transfer applications. And the court below again realized that to some degree that this should be reevaluated. But they did not reexamine the situation. They did not give the School Board or required the School Board again to show what administrative problems of any justified delay which is, as I again say, ends up with the School Board, the school systems not getting clear -- completely in compliance with the Constitution until fall of 1977. And thirdly, we think that they should have ordered, just reexamined because of the law has become clear. The premise of the plan had been the transfer and that has been knocked out.
Byron R. White: Mr. General, (Inaudible)
Burke Marshall: Mr. Justice White, I think that any system which starts with initial racial assignment and depends upon transfers out of schools after that does not comport with the Brown decision. Now if the -- if the assignment, if it works as it works in Baltimore and the students can go to the -- whatever school they choose --
Byron R. White: (Inaudible)
Burke Marshall: That's right. I think that any system which retains a Negro school district, any Negro school district as such to which pupils are assigned because they're Negroes, not because of where they live or something else, but because they're Negroes is unconstitutional.
Potter Stewart: And you think --
Burke Marshall: And this is transitional, of course and --
Byron R. White: (Inaudible)
Burke Marshall: It's necessarily required? No, I think that transfer system, Mr. Justice White and some transfer system is probably administratively required in any school system because of the problems of the capacity, because of the problems of courses being offered in some schools in --
Byron R. White: (Inaudible)
Burke Marshall: Yes.
Byron R. White: (Inaudible)
Burke Marshall: Yes.
Potter Stewart: I don't understand your position to be as I think. You understand it correctly that regardless of what locality we're talking about and regardless of whether it be only a temporary and transitional phase of a rational plan of gradualism, if it's possible to have such a thing that any system which starts out along a preexisting racial school district is per se unconstitutional. Let's -- let's assume, let me give you a hypothetical case. I think I'm right or maybe wrong in thinking that Birmingham, Alabama, doesn't' have any school integration as so far.
Burke Marshall: Yes --
Potter Stewart: Let's -- let's assume that's correct or X City in Alabama. And let's assume a -- in -- in obedience to a court decree asking the School Board to come out with a plan that they come up with a plan which provides for starting of a long existing line for the school year 1964. But that by the year with -- with free possibility of -- of transfer on permission of the School Board. And that by the year 1966, there will be a complete of obliteration on any racial district.Do you think that would be -- that would be unconstitutional?
Burke Marshall: No, Mr. Justice Stewart. I -- I didn't mean to indicate that. I think that any plan --
Potter Stewart: (Inaudible)
Burke Marshall: Well, I'm sorry, I misstated my position --
Potter Stewart: Perhaps you did (Inaudible)
Burke Marshall: -- because I think that any -- any plan that does not end up and does not point with deliberate speed towards the elimination of the dual systems is unconstitutional.
Potter Stewart: Now this one does end up that way.
Burke Marshall: Yes, but as a transitional --
Earl Warren: (Inaudible) next generation.
Burke Marshall: But that's my -- that's right, Mr. Justice -- Chief Justice. The question is -- the question is, does it end up in the right place and does it get there with --
Potter Stewart: That's not --
Burke Marshall: -- deliberate speed?
Potter Stewart: Yes but what the --
Burke Marshall: Now if it maintains -- if it maintains the dual school system in grades that are being desegregated as this one does, I think it carries in very, very heavy burden to justify that, because why do it? It's necessarily a delay having a problem with the Atlanta plan I suppose, is that it started backwards.
Potter Stewart: It started from the top down?
Burke Marshall: It started from the top down. If you started the plan with the first grade, I can't think there maybe one --
Potter Stewart: You would rather (Voice Overlap) --
Burke Marshall: -- but I can't think of any justification for continuing the dual school system in assignments so that the first grade. Now when it goes backwards and I -- and I myself think there's some question whether going backwards can be justified but if it goes backwards and that's over with in this case and started that way, if it goes backwards there maybe administrative reasons during a transitional period where -- where that could be justified. But as to the high school in Atlanta -- as to the high school, I don't think that there could or any conceivable administrative reasons anymore because they have to reorganize by their own plan.
Potter Stewart: (Voice Overlap)
Burke Marshall: They have to reorganize this year anyway because --
Potter Stewart: Yes.
Burke Marshall: -- they've reached the (Inaudible)
Potter Stewart: Yes.
Byron R. White: (Inaudible)
Burke Marshall: I'm sorry.
Byron R. White: (Inaudible)
Burke Marshall: Well Mr. Justice White, I did not understand your question. I misunderstood your question because I -- I did not -- I did not have in my mind the transitional aspect of it. If it -- if it happens for one year and the plan on its phase contemplates that it's going to end that year and the year after that, there's going to be a -- an elimination of the initial racial assignment, I don't say that that is necessary.
Byron R. White: (Inaudible)
Burke Marshall: Well, the -- I -- I think that the decisions in the Fifth Circuit in the Bush case and the Escambia case and -- and the Houston case which were cited in our brief except I think, for the Houston case. The Houston case is at 312 F.2d 191. I think that they suggest that -- that it's impermissible even as a transitional manner. However those cases were all concerned with first grade up and -- and this case goes backwards and there are administrative -- potential administrative problems that I can see when you go backwards. Now, when you have to reorganize the high school zones and everything just for the 12th grade that don't -- that aren't -- aren't in the picture at all when you start with the first grade either the first grade of elementary school or the first grade of the secondary school.
Potter Stewart: Then you -- what you pointed there -- there are Fifth Circuit. This case is from the Fifth Circuit?
Burke Marshall: Yes.
Potter Stewart: And you say there are other Fifth Circuit decisions seemingly inconsistent with this.
Burke Marshall: Well, Mr. Justice Stewart, Judge Bell wrote the decision before it points out what I just pointed out that in the first place, that the other decisions are concerned with first grade plans that's to go upwards. And secondly that they didn't -- that they didn't necessarily concentrate on the transitional feature as such. And Judge Bell pointed out that of course this reached his high school, first entering grade of high school next fall. Now, the court below did say that even though that happened, it's alright to continue the initial racial assignments in the 9th, 10th, 11th, and 12th grades which is something that wouldn't end until 1968. I do not think that that can be justified, Mr. Justice Stewart.
Arthur J. Goldberg: (Inaudible)
Burke Marshall: No, I think not, Mr. Justice Goldberg. I think that our position is this, that the high school system should be reorganized so that the initial or racial assignments are eliminated completely this fall. Now that is going to be done as the School Board says as to the 8th grade anyway, we -- we do not see any justification and maybe there is one but I haven't seen any events for not doing that as to the entire high school if you're going to do it as the first grade of high school and there's already some desegregation in the other grades. As to the -- as to the elementary school, we think that the court below should've put a burden on the -- on the School Board to justify not doing -- not accelerating, now maybe they can justify that, they -- they haven't and so I would say that in that respect, with the -- as to the elementary schools that we would go beyond Judge Rives. Judge Rives pointed only to the next two years and he did not under what he suggests as I understand it, achieved complete desegregation in that time. He sort of left it to the future whether it went on two year -- two grades at a time or what. And that thirdly, we think that the -- that the court below should -- should require the School Board to set forth some plan for elimination of segregated faculties.
Earl Warren: Mr. Latimer.
A. C. Latimer: Mr. Chief Justice Warren, may it please the Court. In arguing this case, I find myself in the role of a lawyer who tries his own case. This came about by reason of the fact that when this suit was initially filed, I was a member of the Atlanta Board of Education. I am no longer a member of that Board but its attorney. And I trust that in appearing in this dual capacity that I will not run afoul of the (Inaudible) that a man who represents himself in Court has a full four o'clock. At the threshold of my argument, I would like to try to explain what the Atlanta plan is and I mean by that, what the Atlanta plan is in 1964, now and in September of 1964 and not what the plan was in 1961, in September, when Atlanta started on the desegregation plan. But gentlemen, this is a moving thing. It's an evolutionary process. Because as we understand the rulings of this Court and other courts, you allow us a pupil assignment plan as a vehicle to go from a totally desegregated system since 1874 when our system was found to an integrated or desegregated system. And we view that vehicle as something that you allowed us to use, not as a roadblock, but to smooth the way along and they say one picture is worth 10,000 words. And I saw this cartoon. It showed a road and there were some bumps in it. And they showed a steamroller and on the road was desegregation, the Brown decision. And on the steamroller was pupil assignment plans and it showed the southern city with a steamroller as a roadblock across the road. We've tried to use that vehicle to smooth out some rough spots and to achieve an end which we know we must achieve. In this connection, it had been stated that the Atlanta plan was based upon the plan considered in Birmingham, the Shuttlesworth case. And even in itself, this statement is misleading for the Atlanta plan is initially instituted was almost verbatim, copied from the Birmingham plan which was the only plan that at that time that had received the approval of this Court even in a preliminary way. But as this plan has devolved, as we began with this plan of Shuttlesworth, including all its various criteria, many of these criteria and many of the things contained in that plan, were voluntarily abandoned by the Atlanta School Board as serving no useful purpose and serving no educational purpose. Gentlemen at one time, as a placebo or sugar pill, to make some of these acceptable to our community, there were many things in the plan such a many parents requested that we put in the plan and have the Court approved it, the right to segregate by sexes. Let the girls go to one school and the boys to another. It's never been used. It's not contemplated to be used. It's not even a (Inaudible). But many of these criteria are hurdles that were there, were put there following what we thought Shuttlesworth had said that these criteria could be used as a transfer complaint. Now during the first year, the record shows that only three of the criteria we use, we did the first year. I will admit unconstitutionally test all of the applicants for transfer and that application on his test must make a score which would equal the average of the grade to which he sought transfer. And it was pointed out to us that you have some Negroes do it, though not as well qualified and you also have some white students who possibly wouldn't pass that test. So the second year --
Potter Stewart: Obviously you have many white -- white students, who would be below the average, wouldn't you? Well, you're conceding this anyway.
A. C. Latimer: Yes sir, that's right. Now during the second year, no special tests, I want to show a motion, a movement forward. During the second year, no special tests were given to these children. We simply used a citywide test that all children take. We're constantly testing our children in the school system to determine if the product we are selling or developing is progressive. So we did away that. That shows some motion forward. We did away with that special test. Judge Rives even on his -- in his dissenting opinion, said that we gave the personality test. We did give a personality test the first year of 1961. Now if it please the Court, that test was to try to make the Atlanta plan work. He was to bring these kids in and tell them, "Look, here's what's expected of you. Here's what we're going to do. Here's what we expect of you. And this plan must work because this community devoutly wanted this plan to work." Now, let me say this that generally speaking at Atlanians and Georgians did not want to start on a program of desegregation. But above that desire was a desire to be law abiding and two, under no circumstances with my community ever abandon public education. Our few section that of our community, for what was known as the pupil tuition grants acts, as we thought unconstitutional and not serving any useful purpose to our community and quite expensive. Now in 1962, we infringed, in 1963, we went further. No special tests were given. No personality tests were given. But the tests that were normally and routinely given in the schools was still greater and those who did not meet the average of the medium of the class to which they saw transfer, were denied. Judge Bell's opinion came out and by the way, I think possibly had Judge Bell reversed that case, we might not be here. But in essence, he pointed out to us what our deficiencies were and even on the 63 assignments, all those who had in the sense been tested out or called back in and this criteria was used and this only, do you still want to transfer? Yes. Well now, you must live closer to the school to which you seek transfer, then the school from which you came, which we think is -- is constitutionally acceptable. Now, we exa -- reexamined all of these pending transfers and granted it. Atlanta points with pride to these accomplishments, but in reply, our opponents say that we still operate a dual or biracial system of schools. And that our plan will never accomplish complete desegregation. In addition, they say that in terms of results, we promised an eagle and produced only tomcat. That after three full years, under this Atlanta plan that some 150 Negro students are now attending formally all white schools. Now, viewed in terms of numbers, this argument is a powerful one. Even allowing for the factors of geography and residential patterns which the lower courts recognized taken in prospective however, any argument based on numbers alone is -- is an argument that has got to be -- you've got to take into consideration when you're talking about numbers, the overall plan and it's all like the story of a man who hired an itinerate mathematician to work for him, told him he would pay him one cent a day and double it each day thereafter. And if you recall that story, the -- on the 10th day, he owed him $10.23 I think, it was. At the end of 30 days, the 30th day it was $5 million and some $23 million or $24 million over the whole 30-day period. Now, we bring that story to illustrate this. We don't propose to take 30 years to desegregate the Atlanta system. We don't propose to do it tomorrow if we allowed gradualism. But we do want to show that Atlanta plan and in the mean voluntarily is in motion and has moved forward. Now --
Speaker: (Inaudible)
A. C. Latimer: Yes, sir.
Speaker: (Inaudible)
A. C. Latimer: Yes, sir. But we want to point out this --
Speaker: (Inaudible)
A. C. Latimer: Yes, sir. I agree with you. I would say this that they reassigned 100,000 pupils overnight incidentally, would create many problems. Many problems nothing to do with race but you would disrupt neighborhood patterns, you would disrupt transportation patterns, extracurricular activities and such. But I think when -- let me say here if I may, what is the Atlanta plan today? Now, for and what the Atlanta has done voluntarily, following what Atlanta learned from other District Court and Circuit Court cases and your various rulings and followed after the rather extensive surgery in Judge Bell's opinion. Here's what the Atlanta plan is in 1964, it's first, choice, second, space, third, proximity. Now, let me explain that if I may. Traditionally, Atlanta has been what we call an open city and the reason for that was that boys all and girls all over the city went primarily to Boys High School, which was downtown and Girls High School, which was downtown, and they came from all over the city. And at 2 or 3 o'clock when they went home to (Inaudible) the community because everything merged through the center of town, transportation-wise, so we went back to a community high school and we took our old junior highs and converted them to high schools. Now, that policy of children going pretty much where they want to has still remained in the Atlanta system. Normally and ordinarily, children go to the school nearest to their home. So we would like if we may, be permitted to do so because we think that's best by our community to let children, pretty much have and their parents a choice of where they go to school. Now, you would recognize immediately that administratively, if they all decided to go to the same school, and some schools are just an old school, some a little bit of area than others and such. That the administrator and you've recognized it all through your writings that the local School Board has to run the school system, that the local administrator, the superintendent then, would have to use some way of determining whether that who's -- shall go to the school if more apply for the school than we have facilities. So then you would use proximity as a limiting factor there. That is three children apply for the same seat in the school room, in the same building.Now, how do you go and determine which gets the seat? Well, the one that lived nearest to the schoolhouse.
Potter Stewart: Assuming you only have one seat available.
A. C. Latimer: Yes, sir. But -- and we are -- some 580 classrooms shy and we have --
Potter Stewart: Yes.
A. C. Latimer: -- build it day and night to cure that. Now, as far as the plan is concerned, one of the complaints of the petitioners is, you come down 12, 11, 10, 9, you're down to 8. Nine, eight, where the feed of system takes hold, the Court has told you and this was part of the surgery that you must now reassign those children that go -- formally went -- Negro high -- Negro -- formally all -- Negro all elementary to Negro high, formal white to white high. Now that you must reassign these children with an evenhanded, in an evenhanded manner, without regard to race and that we are going to do. And on that basis, the child can go to the high school of his choice leaving the 7th grade, going to the 8th grade with these factors that I've enumerated, taken in proximity and so forth. Now, that does away certainly with the 8th grade with the duel system, but you say, what about the poor kid in 9, 10, 11 and 12, who didn't make it here on that magic date and get an original assignment or reassignment? Well, it's this simple. Since Judge Bell's surgery, the difference between a transfer and assignment in Atlanta is tweedle-dee, tweedle-dum. Now, let me illustrate. Assume a colored child lives directly across from a formerly white high school and he's in this 9th grade we're talking about, he can get there simply by he and his parents going across the street and going through the ordinary process that any child goes through, to be admitted to a school. We have pre-registration as you do here and everywhere, go there and let it be known that he wants to go there and it will be granted. In other words, since Judge Bell's opinion, we believe that all that is left of the Atlanta plan is a greater year from seven down. Now, it is true, if they charge us with a biracial system there, that is true, but we thought Shuttlesworth -- Shuttlesworth approved that. That is, you fire the gun on opening day, each went back to the schools where they formally attended with a right to transfer out. Now, in most of those cases you read, if it please the Court, you will find that there are method of getting out. They had to jump a lot of hurdles. Did Judge Wright said in the Bush case, they had to stand muster. Some of the judges said, they had to ask for something that'd already been granted to them. Now, we've tried to give a free system of transfers, because in 1963, after Judge Bell's opinion came down, we called in each one of the applicants, asked them if they wanted to be transferred and all who lived nearer to the formally white school who still wanted to go there, were transferred. Now --
Potter Stewart: You said, the initiative came from the Board, you -- you asked them if they wanted to be transferred or did you require them to.
A. C. Latimer: No, sir.
Potter Stewart: Where is the initiative now?
A. C. Latimer: We -- no, sir. We contacted each one and their patents, we asked them to come to City Hall where the --
Potter Stewart: Yes.
A. C. Latimer: -- School Board is.
Potter Stewart: Yes.
A. C. Latimer: Met there and explained to them that we had been operating under one theory but that we have been told we could not do that. That they had a constitutional right and we wanted to give them that right and afford them that right that even though it was late in the day, we would speed up everything in the way of processing their transfer. And some 40, 50, 60, I don't remember how many, said, “Yes, we still want to transfer,” and they were, and they win.
Byron R. White: How many --
Earl Warren: Mr. --
Byron R. White: (Inaudible)
A. C. Latimer: There's a total of about 24, is my recollection, Mr. Justice White.
Byron R. White: High schools?
A. C. Latimer: 24 high schools of which some eight or nine, possibly ten are predominantly Negro high schools.
Byron R. White: (Inaudible)
A. C. Latimer: Not many, not many. We built a new Harper High School, it's right lush, right then, so many want to go to Harper that we've had refused some of the transfers because it's becoming overcrowded but --
Byron R. White: (Inaudible)
A. C. Latimer: On the 1964 plan.
Byron R. White: (Inaudible)
A. C. Latimer: Yes, sir and they go to the nearest high school, they simply by the informal method --
Byron R. White: (Inaudible)
A. C. Latimer: They may, because of choice, space, proximity.
Byron R. White: (Inaudible)
A. C. Latimer: Yes, sir. Well produced -- sometimes that's for good educational reasons. We had a boy that wanted to go to West Point and he couldn't find the particular math course in the high school that was merely across the street from it. For good educational reasons, he went across town. Now, I would not say we would encourage that because I don't -- I think a kid could use his time a whole lot better studying on the athletic field and going way across town and our transportation is --
Byron R. White: (Inaudible)
A. C. Latimer: No, sir.
Byron R. White: (Inaudible)
A. C. Latimer: No, sir.
Byron R. White: (Inaudible)
A. C. Latimer: We have in Atlanta, K 7125 V, as kindergartens, seven years of elementary school, five years of high school, 12, total and V, vocation. Now, we don't have three changing theories. Ordinarily and normally, a child goes to two schools in Atlanta, he goes to an elementary school for seven years. He then leaves elementary schools and goes to high school. Now, without taking up any time to explain those systems which was constitutionally defective, the feeder systems faired into the high schools. Now, the child leaving the 7th grade will receive an initial assignment, a call to transfer, call it anything you want to. When he leaves the 7th grade, that child now has a choice of attending the high school of his choice. Now, if it -- that fills up, then you use proximity as a limiting factor to determine which child gets the seat.
William J. Brennan, Jr.: I gather the exercise of that choice have to be at the 7th grade? You said under some pre-registration system, he goes to whatever is the high school of his choice.
A. C. Latimer: Yes sir, we have pre-registration. They go and let it be known why --
William J. Brennan, Jr.: But mechanically, is that the way he does it?
A. C. Latimer: Yes, sir. That's the way the -- and -- and that's the way he still and has always done except in the past, you --
Earl Warren: Mr. Latimer, I understood Senator Motley to say that as a result of your segregationally organized zones in the city, all of the Negro high schools were overpopulated. One of them to the extent of 1000 overpopulation and that your white high schools were underpopulated, how -- how do you justify that if -- if -- on the basis of -- of proximity and all these other factors that you reviewed, why do you continue to maintain that situation when it deprives students of a fair opportunity for a good education?
A. C. Latimer: Mr. Chief Justice Warren, that is a real good question and it's one we wrestle with for the past 13 years that have had anything to do with Atlanta school system.
Earl Warren: And they won't be --
A. C. Latimer: We've --
Earl Warren: -- cured until 1978 if then.
A. C. Latimer: No, sir. It won't be cured then because of the changing neighborhood patterns of urban remote --
Earl Warren: Yes.
A. C. Latimer: -- renewal, the express way systems and such.
Earl Warren: Yes.
A. C. Latimer: We have in any fine schools, may it please the Court, that because of the -- the neighborhood going to industrial and commercial and nothing to do with race, the patrons have moved out.
Earl Warren: Yes.
A. C. Latimer: There are other areas, white and Negro, this is not peculiar and the record shows, this is not peculiar distantly, but that in many areas that are fast growing, we can't keep up with them. Now, the immigration of the Negro to Atlanta is as largely proportionate as it is to Chicago and other Eastern City, it is tremendous because we have labor market there and we have certain things that we are proud of there. But one reason for the overcrowding of the Negro schools, more so than the white, is because the attendants charts show the white within the city limits, population going down and the Negro population going up and they have met, I think, in last year or so. But --
Earl Warren: But by reason of the fact that you have a larger number of white high schools and a smaller number of Negro schools and approximately, the same number of students of both -- both races through your -- your segregated zoning, you do require colored students to go farther from their home to -- to get to a colored high school. Now -- now, how can you justify, basing that kind of segregation on the fact that you're just trying to evolve this situation when at the same time, you are actually depriving children of a decent education when you have the space there and the facilities for give them -- giving them the -- the opportunity for a good education if it wasn't for your racial segregation by zoning.
A. C. Latimer: Now, let me answer that two-way, if -- if I may please Mr. Chief Justice Warren. One, when are we talking about? Now, if 1961, 1962 --
Earl Warren: I'm talking about from -- from 1954 to 1978 -- from 1954 to 1978 when you say that the segregation will be eliminated.
A. C. Latimer: No, sir. We consider the time it began, September 1961, when we started. And in those three short years, we think, we've taken monumental strides, but to try and answer your question, in the first place, we do not have attended zones. Now, the record, page 61, 62, 77 show that there are some lines in Atlanta but those are administrative lines. We divide the city into four or five administrative areas, where we have an area superintendent and they have under them what we call super teachers, resource people, you see. Now, that has nothing to do with attendants' signs as far as school is concerned. Now, to go on to answer your question --
Arthur J. Goldberg: (Inaudible)
A. C. Latimer: Yes, sir.
Arthur J. Goldberg: (Inaudible)
A. C. Latimer: Yes, sir.
Arthur J. Goldberg: (Inaudible)
A. C. Latimer: Well, now, Mr. Justice Goldberg, we do that for this reason. To view in effect, you -- it is historical, you must go back and put yourself in the situation, the place and the times. Now, under state law and I know under the Cooper ruling that that doesn't give us any comfort but it is a fact, sir, that our funds would be cut off, we were subject to go into jail and all these factors. Judge Hooper, the District Court Judge in his wisdom, said, “I want the people of Georgia to decide that.” So he deferred the due date from September 1960 to September 1961, he said, I will make it catch up two years. Now, that's the reason we consider that we started. Now, I know your writings in Goss or Watson that says that time there has been sharply limited, and I agree. Except for this that we consider that's when we got the show on the road. Now, as far as the Chief Justice's question is concerned, I -- I'd like to try to finish answering that if may. Under the system that will attain in Atlanta on September 1st, 1964, that half empty high school, white, predominantly white or formerly all white, can be filled up with whites or Negroes or students simply by making it known that they want to go there. This may be one way of filing up those empty classrooms, Your Honor.
Earl Warren: Well, why do you transfer them away from their home and make them -- make the request to come back close to their home when you have -- in the school, you're sending them to is overcrowded and the school that's close to their home is under you?
A. C. Latimer: Your Honor, I plead guilty to that as -- but pass but we say so that in all due respect, that that's ancient history, now, that has been abandoned.
Earl Warren: Well, it can't be very ancient history because you only have 150 some Negro students in the whole system now. And how long is it going to take to -- to fill up that unused space and how long is it going to take to -- to take away the overpopulation in the overcrowded Negro schools?
A. C. Latimer: I think it would probably take the rest of my lifetime and the lifetime of my son, who's watching me in the Court today, and I mean that. I don't mean to be --
Earl Warren: I don't think (Voice Overlap) --
A. C. Latimer: -- disrespectful. But I -- I mean that --
Earl Warren: (Voice Overlap)
A. C. Latimer: -- we have such a fast growing system. That in the few years, I've had anything to do with it, we spent some $40 million or $50 million, a bond money to build new classrooms and as soon as we get one school, Collier Heights for instance through, we have to go back and double the size over there.
Earl Warren: And still you have -- still you have vacant space, a lot of it just because you segregate your school system 10 years after the decision of Brown versus Board of Education.
A. C. Latimer: No, sir. Let's take Bass High School, formerly all white. Bass High is in a -- in an area which is going industrial and commercial. Let's say that its capacity is 1500. Let's say, they illustrate its now down to 900.
Earl Warren: But 900 there with a capacity of 1500.
A. C. Latimer: Yes, sir, alright. Now, let's take Howard High School.
Earl Warren: Well, let's take that one, how many Negroes have you put into that school?
A. C. Latimer: We haven't put in any because we were going with this vehicle at that time on an assignment basis. Now, Your Honor, we'd -- we can't do that anymore and we're not going to do it anymore.
Earl Warren: But you do assign Negro students out of the proximity of that school to a Negro school that is farther away from their homes.
A. C. Latimer: We did do that but we don't anymore and we won't in 1964, that's the point I'm trying to make Your Honor.
Earl Warren: Well, you do it as long as those zones continue.
A. C. Latimer: Sir, we don't have zones.
Earl Warren: The zone was based on -- based on race.
A. C. Latimer: We don't have zones.
Earl Warren: Well, I -- then I completely misunderstood what counsel -- counsel said and I thought you -- you yourself said that there were zones that were based upon race.
A. C. Latimer: No, sir. Those are administrative zones.
Earl Warren: Well, whatever they are, you take the -- you take the youngsters, Negro youngsters who live closer to a school that is a white school and move them farther away to a colored school with the result that that -- the colored school is overcrowded and the white school is underused.
A. C. Latimer: Your Honor -- I --
Earl Warren: Isn't that true?
A. C. Latimer: -- plead guilty to that in the past but not in the present or the future.
Earl Warren: Has it been remedied?
A. C. Latimer: Yes, sir.
Earl Warren: Tell -- tell us the specific action that you've taken to remedy it then what the situation is today.
A. C. Latimer: Alright, sir. I state in my place that this is what the Atlanta Board of Education is going to do and we can ensure that, I'm sure by --
Earl Warren: Well, it's not -- not what you're going to --
A. C. Latimer: No sir.
Earl Warren: -- do you told me it had been eliminated.
A. C. Latimer: Yes, sir. We -- we would -- but these changes don't come about until the beginning of a new school year. We think it would be tragic to start this particular thing we're talking about now in the middle of a school term, so I believe that -- that all would agree to that.
Earl Warren: Well, no one --
A. C. Latimer: But --
Earl Warren: -- particular term, you had -- you had 20 terms because you had 10 years and I guess you had two school terms in a year.
A. C. Latimer: No, sir, just one school year.
Earl Warren: Well, let -- let's say 10 terms that you had which to remedy.
A. C. Latimer: Yes, sir. Your Honor, I don't mean to split as we -- because we do consider, we started in 1961 and then we -- we have moved forward to the best of our ability. Now, come 1964, a child in those grades that have been reached by the plan, eight of them. The child moving from the elementary to high school will receive an initial assignment on a non-racial basis. And we think that's constitutional accepted in anyway.
Byron R. White: That's not his choice, isn't it?
A. C. Latimer: On a basis of --
Byron R. White: (Inaudible)
A. C. Latimer: Well, we assigned him to this -- to the school he chooses. I -- I mean where he --
Byron R. White: (Voice Overlap) -- he chooses.
A. C. Latimer: Yes, sir.
Byron R. White: (Inaudible)
A. C. Latimer: Bass High School.
Byron R. White: Bass?
A. C. Latimer: Yes, sir.
Byron R. White: (Inaudible)
A. C. Latimer: Right, right.
William J. Brennan, Jr.: (Inaudible) -- now this -- this last place that you've told us about, if they all want to go there and there aren't enough seats there, then I gather that on a proximity basis --
A. C. Latimer: We use --
William J. Brennan, Jr.: -- those colored children going into the 8th grade who near -- lived nearest Bass High School will be assigned to Bass, isn't that it?
A. C. Latimer: Yes, sir.
Byron R. White: If they chose to --
William J. Brennan, Jr.: No.
A. C. Latimer: No, sir.
William J. Brennan, Jr.: No --
A. C. Latimer: It would then --
William J. Brennan, Jr.: -- they don't.
A. C. Latimer: No, sir. You see, after this machine -- first is choice --
Byron R. White: Yes, but what --
A. C. Latimer: -- and then --
Byron R. White: -- what if the -- what if -- what if a Negro who is closer to -- who -- chose the (Inaudible) that got to build up but he was still closer to Bass or some other school, he decided he wanted to go to a Negro school, he could still do it, couldn't he?
A. C. Latimer: Yes, sir. Yes, sir, that's right, sir. First, his choice, second is whether or not there's available space for the child and if there's not enough available space then you use the fact of proximity there as a limiting factor.
William J. Brennan, Jr.: And that takes care of the 8th grade, is that -- I think -- I think I can understand it now.
A. C. Latimer: Yes, sir. What --
William J. Brennan, Jr.: What about the 9th, 10th, 11th --
A. C. Latimer: Alright.
William J. Brennan, Jr.: -- 12th, let's use the 9th grade youngster now who lives nearest Bass High School.
A. C. Latimer: Yes, sir.
William J. Brennan, Jr.: Alright.
A. C. Latimer: Alright.
William J. Brennan, Jr.: What happens to him?
A. C. Latimer: Alright sir. No longer does he have to go through or jump these hurdles or take test or apply to be transferred. If he will let his -- that fact be known that he lives near Bass or whether he lives near Bass or not, he wants to go to Bass High School.
William J. Brennan, Jr.: Well, that seems -- well, let -- let's suppose now he's at one of these predominantly Negro High Schools (Voice Overlap) --
A. C. Latimer: Or at Howard High, yes.
William J. Brennan, Jr.: -- across town.
A. C. Latimer: Yes sir.
William J. Brennan, Jr.: And he's in the 9th grade and he'd like to attend Bass?
A. C. Latimer: Yes.
William J. Brennan, Jr.: And as a youngster, his sister or brother going in the 8th grade, is now in Bass. Now, what specifically does he have to do in order to get into Bass?
A. C. Latimer: Go to the principal of the school and register.
William J. Brennan, Jr.: Principal of which school?
A. C. Latimer: Bass High School.
William J. Brennan, Jr.: Alright.
A. C. Latimer: Now, they would administratively call back over to the school where he went and now he's applied for a transfer over here, we'd like his records, we have permanent records on every child have to. Let me say this --
Byron R. White: (Inaudible)
A. C. Latimer: -- it's just not going to be a scramble situation --
William J. Brennan, Jr.: I know, I know.
A. C. Latimer: -- entirely, we have certain administrative matters that have to be gone through.
Byron R. White: But couldn't he --
Earl Warren: Can he -- can he walk right over to the high school, the white high school and register there or under your system, doesn't he have to first go to a Negro school and then make his application and be transferred.
A. C. Latimer: No, sir. And I've made a bad job of making that clear, Your Honor. That -- some of this was true in the past. What we are saying since --
Earl Warren: What was the date that it ended, that it has ended, not where you're going to end it but -- but --
A. C. Latimer: In --
Earl Warren: -- what is the date --
A. C. Latimer: -- June --
Earl Warren: -- you have that.
A. C. Latimer: -- June and August, 1963 when Judge Bell wrote his opinion and said that this -- this reassignment from elementary to high had to be done on a non-racial basis. And that a child entering a class -- a child new to a class, meaning transfers in the 8th, 9th, and 10th grade had to be done non-racially too.
Earl Warren: Well, what was the result of that in -- in Negro students being put into white schools? How many --
A. C. Latimer: How many?
Earl Warren: -- out of these 47 -- 48,000 Negro students?
A. C. Latimer: Well, Your Honor, now, the plan is only applicable to about 12,000.
Earl Warren: Well, let's say 12,000.
A. C. Latimer: Alright, sir.
Earl Warren: How many of them -- how many of them were -- were put in those schools?
A. C. Latimer: Not many, something less than 100, Your Honor because unfortunately that decision of Judge Bell's, I think came out in June. They made a motion for rehearing in -- en banc. That was denied in a subsequent clarifying opinion which is in the record, came out, in August, some time. Let me say this, basically, we are down to this. A question of choice, Louisville has tried it, other cities have tried it. There must be a seat or space available, a teacher, cafeteria, the library, the athletic field and if four applied in that school, we'll handle. Then we would say the fairest test I know of is to give the seat to the child who lives nearest to the school.
William J. Brennan, Jr.: Well, Mr. Bass, may I just -- this one other illustration again for having a rather -- using Bass High School. Suppose now we have a -- a colored youngster living across the street from a colored high school, attending that colored high school in the 9th grade.
A. C. Latimer: Yes, sir.
William J. Brennan, Jr.: And even his parents say it's overcrowded.
A. C. Latimer: Yes, sir.
William J. Brennan, Jr.: And he's willing to go all the way across town to Bass.
A. C. Latimer: Yes, sir.
William J. Brennan, Jr.: May in September or whatever your registration trade is, that youngster's parents take him over to Bass and register him in Bass.
A. C. Latimer: Yes, sir.
Arthur J. Goldberg: Suppose we'd have to --
A. C. Latimer: Absolutely, yes sir.
William J. Brennan, Jr.: As long as there are seats there and --
A. C. Latimer: Yes, sir.
Arthur J. Goldberg: (Inaudible)
A. C. Latimer: Well, if he could -- he -- he'd -- he'd exercise his second choice, it maybe all --
Arthur J. Goldberg: (Inaudible)
A. C. Latimer: Yes, sir.
Arthur J. Goldberg: (Inaudible)
A. C. Latimer: Yes sir.
Arthur J. Goldberg: (Inaudible)
A. C. Latimer: Yes sir, as an in-system, yes.
Arthur J. Goldberg: In other words, (Inaudible)
A. C. Latimer: No sir, no sir. We said that proximity would be the test -- the determining factor there. And if the Negro child is closer to that high school he would have the choice -- he would have the proximity factor working in his favor, not against him, sir.
Arthur J. Goldberg: (Inaudible)
A. C. Latimer: Yes, sir. That -- that is true.
Arthur J. Goldberg: (Inaudible)
A. C. Latimer: That's right.
Arthur J. Goldberg: (Inaudible)
A. C. Latimer: Yes, sir. Otherwise, if you -- you would have started out with the bad situation and you perpetuate it, that -- that's the point as I see it, yes sir.
Earl Warren: Mr. Latimer, may I -- may I just restate Mr. Justice Brennan's question and ask another one whether -- where the -- the Negro child lives in close proximity to an extremely overcrowded Negro school and he wants to go to -- to a white school which is under populated --
A. C. Latimer: Yes.
Earl Warren: -- even though he's willing -- his parents are willing to -- to undergo the -- the discomfort of additional travel and he goes over there and applies for admission to that school, what criteria must he meet in making that transfer?
A. C. Latimer: None.
Earl Warren: All he has to do is say, “I want to be there.”
A. C. Latimer: Yes, sir. We've abandoned --
Earl Warren: And --
A. C. Latimer: -- the criteria --
Earl Warren: And if there --
A. C. Latimer: -- of the transfer.
Earl Warren: If there is a seat -- if there is a seat in that school, he's entitled to it?
A. C. Latimer: Yes, sir. What I'm trying to say is and I -- I sort of jumped into this, I had relevant orderly speech --
Earl Warren: But I want to say --
A. C. Latimer: -- I've been working on for months and --
Earl Warren: -- I won't say that I'm mistaken -- I'm mistaken in the -- in a lot of --
A. C. Latimer: I --
Earl Warren: -- the questions that I've asked you --
A. C. Latimer: I think so, I probably --
Earl Warren: -- because I did not understand it with that way.
A. C. Latimer: Yes, I think I probably would have been more effective had I followed this written speech which I wouldn't going to read but referred to and gone into it a little more orderly but this is a --
William J. Brennan, Jr.: Mr. Latimer, may I just make this observation.
A. C. Latimer: Yes.
William J. Brennan, Jr.: I must the picture you've given us if different in (Inaudible) like from the picture that's been given to us by Senator Motley and Mr. Marshall. What -- what's the -- this wants to be resolved in the record somewhere.
A. C. Latimer: Mr. Justice Brennan, if we were trying a damage suit or tax matter or labor case, the record is then ecstatic and it's frozen. This, because of your teachings in Brown, it -- it -- we -- we are moving. It's like a ship out at sea then it sends a radio message to tell us -- give us a -- our bearing and tell us where we are, and the radio operator that receives it is asleep and he doesn't get the message back for to or three hours, the ship's gone home.
Byron R. White: But if it's the matter, then all the things that have -- that make your presentation different from Senator Motley's -- Mr. Marshall of all that happened, since this it's the decision below and that this is the -- this is the -- this thing to me would be the problem.
A. C. Latimer: It is a problem.
Byron R. White: And it's not in the record.
A. C. Latimer: No, sir.
Byron R. White: And you're saying what you think your plan is and there's -- there's never been a -- an official adjudication on what the plan is.
A. C. Latimer: Its official sufficient adjudication, as far as a -- a School Board can officially adjudicate.
Byron R. White: Well, I know but if we have -- we -- we know what you say it is but no lower court --
A. C. Latimer: No, sir.
Byron R. White: -- said what kind of a -- have said what the facts are or what the plan is.
A. C. Latimer: Well, even though -- let -- let me explain this, if I may, Mr. Justice White. This plan took effect September 1, 1961. April 30 of 1962, Mrs. Motley filed a motion for further relief. Now, we've gone on since April through -- 1963 and up to whatever it is, March or April of 1964. Now, if I could convince this Court of the sincerity of the Atlanta School Board in wanting to move forward, I think I would've done a good job and I -- I do say this. That if there's any question about it, put the odd on because make no mistake about it, our philosophy since the first round decision has been compliance, not defiance. Now, it's hard for me to argue why we didn't start in 1958 when we read that decision and we -- and we have always -- it -- can understand that procedure.
Byron R. White: Mr. Latimer, (Inaudible) --
A. C. Latimer: Well we did.
Byron R. White: -- suggesting that the court of equity ought to update itself to bring itself up to the date of -- of its decree apparently?
A. C. Latimer: I think it's the only thing you can do because equity cases, you retain jurisdiction and all the time you say and move forward with this thing because we've tried to use your plans that you -- on the surface approved in Shuttlesworth as a vehicle to go from a total desegregated to -- I mean to segregate it to a desegregated system. We --
Earl Warren: Mr. -- Mr. Latimer, if the -- if the decree recited that no longer should there be anymore racially established districts or zones in the City of Atlanta and that in the future, any -- any child, Negro child who is in an overcrowded school, has the right to be admitted to an underpopulated white school, you would have no objection to it?
A. C. Latimer: No, sir. Because we don't have any attended zones in Atlanta now. So if you ordered us to do away with them, it would have absolutely no effect on the way we're operating our school system.
Potter Stewart: You don't even -- you don't have it even from the 1st to the -- through the 7th grade?
A. C. Latimer: Let me explain this. Dr. Letson had been superintendent over a year less when his depositions were taken. In the record, you will see something about lines. Now, traditionally, I state in my place, we have never had hard and fast zone lines, a square or triangle, rectangle or circle, put a dot inside, every child goes into that school.
Earl Warren: Mr. Latimer, I think you better (Voice Overlap)
A. C. Latimer: I didn't notice the light. Thank you so much.