Earl Warren: -- continue your argument.
A. C. Latimer: Mr. Chief Justice Warren.
Earl Warren: But before you -- before you start, there -- where you in somewhat stated confusion because of the different approaches that you and -- and counsel for the petitioners have -- the -- the basis of your arguments and so I'm going to extend your time for 15 minutes to explore these things and Mrs. Motley, you may have 10 minutes to -- additional to reply and Mr. Marshall, you may have 5. And we'll see if we can get down to a basis where we're all talking about the same things.
A. C. Latimer: Mr. Chief Justice Warren, I wanted to say at the outset that I do not think -- do not contend that Mrs. Motley is in anyway misquoting the record. The difficulty of this in -- in most of these cases isn't this record is what we say is ancient history, it's two years or more older. And that in the meantime, Atlanta has been discharging what it considered to be the requirements of the Brown decision, wherein this Court said that the speed of a plan and how it waits and so forth, is first, addresses itself to the local school authorities and second, to the local district courts. So, I make that statement, I don't know that anybody would consider that Mrs. Motley has misquoted the record and I'm sure she is -- has not and would not. But that these depositions were taken sometime along in June of, I think, 1962 and since that time, we have tried to move forward with our plan.
Earl Warren: But do you have any -- any resolutions of your -- of your Board of Education or -- or any documents of any kind that would establish this new policy that you're talking about but which neither counsel nor ourselves seem to know anything about?
A. C. Latimer: Yes, sir. The official records and minutes of the Board of Education would contain that portion of this argument that we're talking about which concerned those applicants in 1963 who had been turned down on the testing criteria, who were called back in and told that they could go to the school of their choice if they live closer to it.
Earl Warren: But do we have documents that will -- will answer the precise question that -- that Mr. Justice Brennan asked -- asked of you --
A. C. Latimer: I don't --
Earl Warren: -- about the right of -- right of the colored youngster?
A. C. Latimer: No, sir, I do not think we do have precise document. I might suggest this Your Honor that --
Earl Warren: Now, may I ask you this then, do you have any documents that -- that will establish your answer to -- to the question of Justice Goldberg about youngsters who do go to school under those circumstances?
A. C. Latimer: No, sir, I don't think there's anything in the record. Now, we could probably --
Earl Warren: But how can we establish at them to -- to be the fact?
A. C. Latimer: Yes, sir. We can stipulate here and now what the Atlanta plan is as of this time.
Earl Warren: And where has it been enunciated in -- in a public way prior to your statement here?
A. C. Latimer: Well, Mr. Chief Justice, in the summer months of 1963, following Judge Bell's opinion, it was widely publicized the effect of the opinion on the Atlanta plan.
Earl Warren: Well, yeah -- but -- but where was the action of the Board of Education published?
A. C. Latimer: Well, the only --
Earl Warren: Pursuant to that, pursuant to that.
A. C. Latimer: In its official records in minutes.
Earl Warren: Is it thereby resolution or -- or how?
A. C. Latimer: By recommendation of the Superintendent of schools adopted by the School Board.
Earl Warren: And have you the recommendations, the written recommendations of the Board of -- of the Superintendent?
A. C. Latimer: Not with me, sir.
Earl Warren: Well, are they available?
A. C. Latimer: They could be made available. Yes, sir.
Earl Warren: Very well.
A. C. Latimer: And I would say this, if it please the Court, that if it would be helpful in anyway to file a supplemental brief and state positively and in writing what the Atlanta plan is and what -- what they're going to do in September 6, what they're doing now, well, we'll be glad to do so.
Earl Warren: Well, I -- I think that if you're going to argue it, I think it would be rather a good thing to let us know that beforehand so we would have some idea what we were going to have argued here in Court. Did you ever -- did you ever tell counsel for the other side what the plan is?
A. C. Latimer: Well, Your Honor, we have it on our brief in the State of Georgia filed the brief of amicus in which they state that the plan now is choice of a space and proximity. He stated I think --
Earl Warren: Could you read us that portion of your -- of your brief which will -- will give the answer to Justice Brennan's question?
A. C. Latimer: Yes. I'll be looking for them if you will.
Hugo L. Black: This one I'm reading -- you're reading about Mr. Latimer.
A. C. Latimer: I'm reading, Mr. Justice Black, from page 1 of the brief -- of the amicus brief filed by the State of Georgia.
Hugo L. Black: March 28, 1964.
A. C. Latimer: Yes.
Hugo L. Black: (Inaudible)
A. C. Latimer: Yes sir.
Earl Warren: Page 1?
A. C. Latimer: Page 1.
Earl Warren: Yes.
A. C. Latimer: Question presented whether the Atlanta plan of desegregation of public schools approved both by the District Court and the Court of Appeals below is constitutionally defected, one, in its basic approach to achieving desegregation through application of assignment of pre -- procedures now based solely on consideration of choice, space and proximity on the grade or year basis commencing with the high school grades and proceeding down.
Earl Warren: Well, does asking a question answered?
A. C. Latimer: No, sir, except that the -- the question is so stated. Now, also, Your Honor, in the brief of respondents, page 14, in the brief of the United -- in the brief, United States makes several suggestions with reference to an obvious solution. It suggest as such an immediate reassignment of all students on the basis of proximity alone. Admittedly, Atlanta has recently resorted to proximity as a factor in making transfers but for administrative reasons --
Tom C. Clark: What page was that?
A. C. Latimer: Start -- at the bottom of page 14, sir.
Tom C. Clark: In your brief?
A. C. Latimer: Yes, sir, bottom of page 14, Mr. Justice Clark. Admittedly, Atlanta has recently resorted to proximity as a factor in making transfers. But for administrative reasons, Atlanta has never used either inflexible zones or proximity as the sole criteria either at the first of the high school level. It does not want to resort solely to inflexible zones or proximity now. It based with the choice, would prefer, probably prefer a system of complete freedom of choice conditioned only upon availability of space would resort to proximity to settle priorities between two applicants where facilities were available for only one. Such a choice, obviously, there is no relation to integration or segregation and would be consistent with either.
William J. Brennan, Jr.: (Inaudible)
A. C. Latimer: Well, sir, I don't believe I made myself clear. What we would prefer and what the thrust of our brief is, we'd like to be left alone. I say that in all due respect. But that if we must change, which these cases indicate or constantly change, then, rather than fixed rigid zones that lock people in of either race, we would prefer a system of free choice, assuming the space is available and using then proximity as a limiting factor, not as the sole factor.
Byron R. White: (Inaudible)
A. C. Latimer: No, sir. I -- when I -- I didn't mean exactly what I said apparently. I say we'd like to be left alone. We would like for this plan as we have it now and as we envision our plan to run its normal course.
Byron R. White: (Inaudible)
A. C. Latimer: Yes, sir.
Byron R. White: (Inaudible)
A. C. Latimer: Yes.
Byron R. White: (Inaudible)
A. C. Latimer: Now, let me -- excuse me, sir, that maybe a little bit deceptive and I don't want to be because the schools run -- on a school year --
Byron R. White: (Inaudible)
A. C. Latimer: Yes, in the high school, in those grades that had been desegregated says Judge Bell's opinion, the difference between the transfer and an assignment becomes meaningless.
Byron R. White: (Inaudible)
A. C. Latimer: Yes, sir.
William J. Brennan, Jr.: (Inaudible)
A. C. Latimer: Yes, sir.
William J. Brennan, Jr.: Let's take a (Inaudible)
A. C. Latimer: Alright, sir.
William J. Brennan, Jr.: (Inaudible)
A. C. Latimer: That's so hard. I won't answer. I think, educationally, it would be unsound. But I think if we are going to -- to adopt the philosophy of choice first, availability and then proximity that it may require that result in same instances. I think as a practically matter that it will not.
William J. Brennan, Jr.: I hope not.
A. C. Latimer: I hope not too.
Earl Warren: Well, Mr. Latimer --
A. C. Latimer: Yes, sir.
Earl Warren: -- you read a portion of your brief in the bottom of page 14 and the top of 15 where you said, "And if faced with a choice would probably prefer a system of complete freedom of choice conditioned only upon availability of facilities with the resort to proximity to settle priorities between two applicants where facilities were available for only one. Such a choice obviously bears no relation to integration or segregation would be consistent with either." Then you go on and you say, "But these suggestions are beside the point. Atlanta has an "obvious solution". Once it becomes clear that as the present plan progresses, there will be initial assignments without regard to race. In short, once it appears that the freeze in of existing assignments is purely transitory, petitioners' argument that the Atlanta plan is inherently unfair is -- is eliminated." Now, you filed this brief on March 16th, 1964 and what were you talking about when you said, "In short, once it appears that the freeze in of existing assignments is purely transitory"?
A. C. Latimer: Alright, sir. When the plan started out, the Negro child went back to the Negro school where he had always going whether he or she had always going. And to get out, he or she must apply for transfer. And the first year, there were more hurdles and then -- and -- and they've come down as time went on. As we read Judge Bell's opinion, that grid having been desegregated in the Atlanta high school system, she no longer has to -- to apply through a formal transfer route of procedure to get over to the school of her choice. Now, let's abandon for a moment the word "transfer" or "assignment", let's just say she has to go register. All students must register. You have to follow a certain administrative procedures in order to oddly run a big --
Earl Warren: Yes.
A. C. Latimer: -- school system.
Earl Warren: Are you talking about --
A. C. Latimer: So let's use the word "she has to register".
Earl Warren: -- register from -- registering from choice, the school of her choice.
A. C. Latimer: Yes, sir.
Earl Warren: Yes.
A. C. Latimer: And that could be the closest school or it could be for reasons peculiar to her that she wants to go across town to her school. Now, this may do two things. It's probably a -- a two headed sword. It may fill up some of these half empty classrooms. And that's a problem at any school system. But not all of that is bothered about by race, the sum of that is just purely changing neighborhood pattern.
Arthur J. Goldberg: (Inaudible)
A. C. Latimer: No, sir. Now, we are still in our spin-off, Mr. Justice Goldberg. And I don't want to mislead the Court on that, I -- it -- it -- we are saying in those grades which the plan has affected.
Arthur J. Goldberg: (Inaudible)
A. C. Latimer: Yes.
Arthur J. Goldberg: Now, would you describe for us (Inaudible)
A. C. Latimer: Mr. Justice Goldberg, we do not, in the Atlanta school system, have rigid attended zones. Now, we plan to gain awards in the place because -- take the school, the Spring Street School, people referred generally to the Spring Street School area. I want to buy a home in the Spring Street School area. I -- I live in the Spring Street School area. But insofar as the School Board and the Superintendent, drawing hard and fixed in rigid zone lines down here and so forth, we do not have nor have we ever had. Now, there is some testimony of Dr. (Inaudible) that says this, "Where a particular elementary school," and he's referring to elementary school, and then we point out that the plan has not yet reached the elementary grades, "That where a particular elementary school becomes overcrowded," and there's one not too far from there that is not overcrowded, "the principals of those two schools get together and they say, "Look, I'll take them up to Peachtree Street and you take them beyond." But as far as the policy of -- that is actually to a -- an imaginary line to prevent overcrowding. It is not a line to assign children on the basis of race or otherwise.
Earl Warren: Mr. Latimer, may I ask you this. Isn't -- the Spring -- Spring Street School is a White school?
A. C. Latimer: Yes, sir.
Earl Warren: Suppose a little Negro child lives across the street from the Spring Street School --
A. C. Latimer: Yes, sir.
Earl Warren: -- let's say he' in the sixth grade, can he, under your system at the present time, go to that school and register?
A. C. Latimer: No, sir.
Earl Warren: Where must he go?
A. C. Latimer: Back to where he has been going.
Earl Warren: Well, suppose he's an outsider, hadn't been to any school in -- in Atlanta, he comes to -- he comes -- lives across the street from the school.
A. C. Latimer: Then he would be assigned to Spring Street School.
Earl Warren: Why? Would he be entitled to stay there?
A. C. Latimer: Yes, sir.
Earl Warren: Alright. Now, where would he -- where would he have to go -- you say, he'd go back to the original school that he came from if he was in the sixth grade, why would he have to do that?
A. C. Latimer: Because that is what we understood. The courts had approved. They said it's unconstitutional to segregate on the basis of race.
Earl Warren: Yes.
A. C. Latimer: But because of the equity of powers of this Court, this Court in its wisdom says, “We're going to let you do this gradually and we're going to weigh and balance these equities.” Now, we are in the transition period. There'd been few -- few headlines about the trouble in Atlanta because we've tried to maintain law and order and do this in a -- in a fine way, which I think we've done. But we are still in the transition period -- again, I say, starting in 1961, motion for further relief filed in April of 1962 and we are trying the case here in this Court nearly April 1 of 1964 based on 1961 and 1962 facts, that's where the confusion comes in. But, Your Honor, the -- we are in -- still in our spin-off of greater years. We have come down now through the high schools. But it would take another six years to complete that course for the elementary schools. And then at the end of that time, every child entering the elementary grade, the first grade, would receive an initial assignment just as we've outlined, choice, space, proximity.
Tom C. Clark: That means a lot of (Inaudible)
A. C. Latimer: No, sir.
Tom C. Clark: (Voice Overlap) --
A. C. Latimer: It's the -- the -- it's the eighth grader who is the first year of high school.
Tom C. Clark: That's right (Inaudible)
A. C. Latimer: Next, in the fall of September of 1965.
Tom C. Clark: (Inaudible) the seventh grade.
A. C. Latimer: The seventh grade.
Tom C. Clark: Seventh.
A. C. Latimer: Yes, sir, seventh grade.
William J. Brennan, Jr.: (Inaudible)
A. C. Latimer: That's right.
Tom C. Clark: (Inaudible)
A. C. Latimer: That's right.
Tom C. Clark: I thought it began in 1964 for the seventh grade (Inaudible)?
A. C. Latimer: Well, that's this -- no, sir, the eighth grader who's moving up from the seventh grade. He's graduated from the seventh grade in elementary school and he's now moving --
Tom C. Clark: (Inaudible)
A. C. Latimer: Yes, sir. Judge Bell goes into that, it may. Now, may it please the Court, on the question of acceleration, as school people, we would prefer that the plan, which takes its biggest boost in September of 1964, be allowed to continue uninterrupted. That is stated because we understand that if we have administrative problems, the Court is often been sympathetic to the fact that the size of the school system makes a great deal of difference is what do you do to them by way of a plan, roughly, 100,000 to 115,000 students in Atlanta. And we think and our educators tell us that it would be chaotic indeed to reassign initially, all at one time, the entire school system on some plan of choice or some plan of proximity or what else. Now, the other reasons unconnected with race, their transportation patterns, their school associations, their academic reasons, extracurricular activity reasons and such, why we think that the process that we are in now would best serve education of the children of both races if allowed to continue to the plan once out.
William J. Brennan, Jr.: (Inaudible)
A. C. Latimer: Yes. I calculated the -- I'll take you on --
William J. Brennan, Jr.: (Inaudible)
A. C. Latimer: Yes, sir.
William J. Brennan, Jr.: On the first grade (Inaudible)
A. C. Latimer: Yes, and also though, the children new to the -- to the school system, as Judge Bell pointed out, must receive an initial assignment on a nonracial basis. He would be put, as Your Honor asked the question, in the school nearest to him or of his choice. Now, and may it please the Court, on the question of faculty desegregation, we recognize that that is something that will ultimately take place in Atlanta. We have started. It is not an extensive program. I'll state to you quite categorically, there are no Negro teachers teaching all white classes. I think maybe there's one in -- in the trade school, I'm not certain but I ask you as to any extensive use of a Negro teachers in White schools that has not come about. As you will recognize, we may require children to go to school but we cannot require teachers to teach. And we have the problem that's universal to every major school system in the country that is the teacher shortage. We actually send our people to recruit teachers. They go into the colleges and the classrooms and try to sell them on coming to Atlanta. We've tried to up our wage scale to attract them there. And for the time being and until this -- until this plan runs its course, we would much prefer, if it please the Court, to differ that as the local District Court did and as the Fifth Circuit did, bearing in mind please that the Fifth Circuit has not been timid about this question. In the Jacksonville case, they ordered on a finding of fact there that the Jacksonville School Board proceed forthwith with the desegregation of the faculty for reasons which they understood. The Fifth Circuit deferred the matter of desegregation of the faculty in Atlanta. Gentlemen, if there are anymore questions, I -- I would be most pleased to answer. I would say this that in all fairness to all concern, record-wise, we could not come here and defend this cold record. We couldn't do it. But we have thought that our obligation was to move, that is to push forward to use the assignment plan which you -- in a preliminary way approved in Shuttles Way as a method of means of getting over some rough places in the road. And we've got some more to go. But we feel that educationally, that we have progressed in the fields of extracurricular activities, there is no distinction. We've eliminated all distinction as to designate schools by race. But in passing, we would say that arbitrarily reassign some 100,000 children would sacrifice some great educational reasons, we think for speed.
Earl Warren: Ms. Motley, you and -- and the Solicitor General may speak in any order that you wish and you could rebuttal just -- just as you -- if you please.
Constance Baker Motley: Well, first, Your Honor, I would like to read from the record to settle once and for all this question of whether there are zone lines on the elementary school level. Now, on page 62 of the record, preceding this on page 61, I went into this matter with the Superintendent as to zone lines. I first went back to 1960 before the plan took effect and asked him how the students were assigned. And then, we finally got to the end of it after several questions. And he -- I asked him this, "And you still have separate lines which relate to the Negro schools and separate lines which would relate to the White elementary schools, is that right?" And he said, "Roughly, yes." Now, prior to that on page 61 at the bottom -- near the bottom, I asked him, "Now, in the areas where the housing is mixed racially," that is the areas where Negroes and Whites live in the same area, "these lines would overlap so to speak, wouldn't they?" And then he said, "Well, formerly, the lines were drawn separately for White and Negro schools," and I said, "And how are they drawn now?" He said, "They're drawn on the basis of the pupil assignment law." And I said, "Do you mean by that the law of the plan," and he said, "The plan," top of page 62. And then we went on and I said, "And you say the lines are drawn pursuant to that?" Answer, "The same lines that were in existence in 1960 aren't existence at the present time". "I see," and then I went on to the question and answer I read before. And Judge Reeves, in his dissenting opinion, points out that the District Court and the majority simply overlooked the record and he put this testimony in a footnote, I think it's Footnote 4, if I'm not mistaken, regarding the fact that there are zone lines. And he's -- he points out in his dissenting opinion, this majority opinion represents a step backward for the Fifth Circuit because they had just said in Augustus and in Bush that you must do away with the dual school zone lines and he says he --
Byron R. White: We don't have a finding of -- of the District Court that there are school zone lines.
Constance Baker Motley: That's right. He says there were none and that's why Judge Reeves quoted this testimony in a footnote.
Byron R. White: I know but under the fact is the District Court didn't find there were some zone lines.
Constance Baker Motley: That -- that's right. He -- he just didn't make any finding at all. He just approved the plan which had been approved in 1960. And we complained of course to the Court of Appeals and pointed that out and Judge Reeves quoted and said, "You're just overlooking the record. Here it is." Now, as to the Negro high school situation, we put in the exhibit, which is plaintiff's Exhibit 7, which came up here in its original form which has every elementary school and beside the names of the elementary schools, I put an end for those schools which are Negro elementary schools. The Superintendent agreed those were right in the record. Then the last page of the record contains the high schools in Atlanta beginning with Archer, Bass and so forth. And the check marks on that exhibit are the Negro high schools and it shows five Negro high schools. Now, as he said, they have built one since that and that's Harper, so that's six Negro high schools. Then they have one Negro vocational school which is Karp. Now, that's in the record as to the number of Negro schools. Now, the problem here is, as you can see, is a case where the facts were always changing. The District Court, we had one set of facts. We had a plan with 12 -- 17 criteria and so forth. As to the Court of Appeals, they had abandoned all the three or four of the criteria. So we had another situation. In their brief, they said the sole criterion is proximity. On this argument for the first time, we hear its free choice. Now, there has never been published, as far as we know, any document by the School Board which says what the plan is going to be in September 1964. We have not seen any. And if the lawyers can't keep up with the changing facts and different plans in this case, you can imagine the situation of the parents at Atlanta. But what is the School Board's plan? And that's why this Court must establish standards based on this record. So that for once and for all, we can have standards to guide the district courts with respect to what kind of desegregation is acceptable at this point.
Hugo L. Black: May I ask you, assuming what he says is correct as to the plan and the way the school will be operated from going back to the time he said, what are your objections with Atlanta plan? What -- what would be your objections with Atlanta --
Constance Baker Motley: Our first --
Hugo L. Black: -- the plan as (Inaudible)
Constance Baker Motley: Yes. Our first objection is that it's a still a 12-year plan which, in fact, is an 18-year old plan before it's entirely desegregated that is until students are assigned throughout the system on a single criterion or the same criterion.
Hugo L. Black: That's the -- that's the basis of just to change the grade each year.
Constance Baker Motley: That's right. We opposed that kind of delay 10 years after Brown. That's our first objection to their plan. They have never abandoned the 12-year featured any point. So that's our first objection. Our second objection is that Negro students have to apply for transfer in grades 9 to 12 or make some request or do something to get out of a Negro school and one that's over crowded particularly.
Hugo L. Black: You said not (Inaudible) --
Constance Baker Motley: Well --
Hugo L. Black: (Inaudible)
Constance Baker Motley: I can only --
Hugo L. Black: That's -- that's why I was asking you to discuss the -- your ideas on the basis of what he said. There's the plan that they intended to carry out now.
Constance Baker Motley: Well, if -- if -- he has now changed what's written on page 14, that is the second paragraph on that page which I read -- read to require some kind of transfer on the part of Negro students in grades 9 to 12. Now, if he has now changed that and you no longer have to apply for transfer in grades 9 to 12, you have this free choice business. We object to that because we think that any free choice business in this situation will not carry out the intent of the Brown decision. This will shift to the Negro community the burden of desegregating the schools which we say Brown has put on the School Board. And you see, what they would then be relying on is the momentum of 100 years of segregation whereby habit and custom, Negroes have traditionally gone to Negro schools and that's the way it will be. And they're saying in effect that if you want the schools desegregated, Negroes will now have to apply for admission to White school. And we say that Brown put on them the duty to reassign everybody on some reasonable nonracial basis to disestablish the segregation which the State established. Now, I want to point out --
Hugo L. Black: Are you saying -- are you saying that we should strike down as unconstitutionally the idea of the freedom of choice on the part of the children and the parents? Is that it?
Constance Baker Motley: Well, in this situation, we're dealing with what a School Board must do to satisfy the requirements of Brown. I say that a free choice system would not satisfy those requirements. It doesn't --
Hugo L. Black: Then you -- then you do say that we should hold that they should not be given freedom of choice by reason of the argument of --
Constance Baker Motley: That -- that's right because --
Hugo L. Black: -- you put us on.
Constance Baker Motley: -- because what we then do by that is to shift the burden of desegregation to the Negro community from the School Board. We understood that Brown put on the School Board a duty to disestablish segregation which the State had set up. Free choice will operate to shift that duty to the Negro community to come forward and to now apply. Now, there's a conflict, as I see it, between the circuits. The Sixth Circuit in the Northcross case, which we cited, dealt with this. And they said that Negro children cannot be made to apply for that which this Court has already said they were entitled to. And in that case, the Sixth Circuit --
Hugo L. Black: Well, did we -- did we pass on whether they could be forced to go to the school they didn't want to?
Constance Baker Motley: No, this is not forcing anyone to go to a school that they don't want to go to.
Hugo L. Black: But did we pass on the question -- maybe we did but I'm not -- I don't understand you're saying with us. Did we pass on the question as to whether or not, a plan which allowed the children and their parents choose between the schools which condemned by our decision? I thought it was an open question maybe it's not.
Tom C. Clark: As a matter of fact --
Constance Baker Motley: Well, I -- yes. I don't think Brown said that you could not have such a plan, that is Brown did not say, "We condemn free choice." Now --
Tom C. Clark: What about the District of Columbia case?
Constance Baker Motley: Pardon me.
Tom C. Clark: What about the District of Columbia case was here the same time as Brown? They had a transfer of provision where the, as I remember, I haven't look at it for sometime but they had a transfer of provision where about a parent chose the school. Are you familiar with that?
Constance Baker Motley: Yes, if I recall.I don't recall that specific fact, Your Honor, in the Brown case. I think they -- somebody mentioned --
Tom C. Clark: No, not in the Brown.
Potter Stewart: Bolling -- Bolling against Sharpe.
Constance Baker Motley: I mean in the Bolling against Sharpe.
Tom C. Clark: Bolling.
Constance Baker Motley: Well, if there's a free transfer system and -- and if there was in the District of Columbia operated within the segregated framework, that is Negroes are free to go to any Negro school and Whites free to go at any White school prior to Bolling against Sharpe.
Tom C. Clark: As I understood it, as I remember it's been a long time ago, they could file an application to transfer the Whites too to any schools of white, don't they?
Constance Baker Motley: After Bolling against Sharpe?
Tom C. Clark: That's right, as we understood it.
Constance Baker Motley: Well, I -- I thought somebody said that there was a school zone line system established after that in the District of Columbia. But I would say that if a School Board has maintained for 100 years segregation and they now say, “free transfer” that that would not make the requirements of Brown because --
William J. Brennan, Jr.: Well, Ms. Motley, was -- what about Baltimore? Isn't free transfer you've label it which seems that --
Constance Baker Motley: Yes.
William J. Brennan, Jr.: Isn't that what Baltimore is saying?
Constance Baker Motley: That's what I understand Baltimore --
William J. Brennan, Jr.: Well, you contested in Baltimore the system there didn't meet the requirements of Brown?
Constance Baker Motley: Yes, because what you have is substantially all Negro schools and all White schools now in Baltimore because what happens is that Negroes continue to go to those Negro schools, that's what I'm saying. This carries with it the momentum of 100 years of segregation.
William J. Brennan, Jr.: You mean it's not free choice?
Constance Baker Motley: It's -- it's free choice and it doesn't operate to do what Brown intended the decision to do and that is to make the school authorities which had established the segregated system. As the Eighth Circuit said, “Disestablish it.” And then you can put free choice or anything else you want on that disestablished system. But you have to undo a century of segregation. And you can't say to the Negro community, “You undo it.” By now coming forward and what happens is a Negro child applies to go to a White school and he is maybe the only one and then he is in an isolated situation. Whereas Brown, we say, guaranteed him not the right to apply for admission to a White school. Brown guaranteed him the right to go to a nonracial school system. And in way you have free choice on top of 100 years of segregation. What you're doing is preserving segregation and giving a Negro child a right to apply for admission to a White school.
William J. Brennan, Jr.: Well, in -- in this line of situation, as Mr. Latimer has described before us, the matters of (Inaudible) within the briefs of the record, as he described for us, what is it that you think we should do?
Constance Baker Motley: In the Atlanta situation, I think this Court should now require Atlanta to draw a school zone line related to capacity without consideration of race, that is they have so many children to accommodate in the 22 high school. And they should draw a school zone line to accommodate this high school population to fill all those schools to its capacity.
William J. Brennan, Jr.: Thus limiting the children within the particular zone, two of the high school --
Constance Baker Motley: Yes. Once drawn on the basis of capacity not proximity alone. Then if a student wants to transfer for some valid educational reason, of course, he may be able to do so.
Byron R. White: Well, what if he wants --
Constance Baker Motley: But --
Byron R. White: -- to transfer (Inaudible) you could redraw the line as you suggest. There will be, I suppose, some Negro high schools that just going to (Inaudible) area in the neighborhood.
Constance Baker Motley: That's right.
Byron R. White: Now, if a Negro wants to try to that school just because I want to go to desegregated school, you would tell him no.
Constance Baker Motley: I would say he couldn't transfer because of race.
Byron R. White: That's right.
Constance Baker Motley: I understand that. It's already there.
Byron R. White: (Voice Overlap) I want to go a desegregated school.
Constance Baker Motley: He's then in a desegregated system and he cannot --
Byron R. White: (Voice Overlap)
Constance Baker Motley: -- then predicate his transfer on the basis of race. I would say that he can't -- if the School Board commits that kind of transfer, he would have to permit it for Whites. The White person will say, “Well, I don't want to be in this all -- disintegrated school. I want to go back to a White school”, because the Negroes application was predicated on race.
Byron R. White: (Inaudible) see and -- and if (Inaudible) desegregated school and either a White or a Negro want to transfer out of that school to a Negro school or White school (Inaudible)
Constance Baker Motley: If I understand --
Byron R. White: (Inaudible)
Constance Baker Motley: I would say, no, no. Because a Negro doesn't have anymore right to go to a Negro school than a White person has to go to a White school.
William J. Brennan, Jr.: Does the standard you suggest, Mrs. Motley, a standard you're suggesting is the only thing that could comply with the ground?
Constance Baker Motley: Well, I suggest it as the minimum as if -- Sixth Circuit said and as the Fifth Circuit, a minimum for those school systems which have -- had 100 years of segregation. That's the minimum requirement. Now, there maybe something that can be done later to facilitate more integration which we don't have yet in this case. But I think that in this Southern school system, we've got to first get a standard which eliminates the dual school system. Now, once you do that, we may have other problems developing and we may be back another day arguing another phase of this. But we've got to get the Southern school systems to first assign children on a zone basis related to capacity.
Arthur J. Goldberg: (Inaudible)
Constance Baker Motley: That's right.
Arthur J. Goldberg: (Inaudible)
Constance Baker Motley: That's right.
Arthur J. Goldberg: (Inaudible)
Constance Baker Motley: That's right.
Arthur J. Goldberg: (Inaudible)
Constance Baker Motley: That's right. That's correct. That's -- that -- in answer to the question of Mr. Justice White, that is why I should have said it. That once you desegregate the system and you do away with the dual school zone lines, it may be that you have some kind of -- of choice operating if it's there but we don't have to decide that in this case because they haven't --
Arthur J. Goldberg: (Inaudible)
Constance Baker Motley: That's right.
Arthur J. Goldberg: (Inaudible)
Constance Baker Motley: That's right.
Earl Warren: Mr. Marshall.
Burke Marshall: Mr. Chief Justice, I would like to return to a comment that Mr. Justice Brennan made as Mr. Latimer was closing and that is as he understood it, if the plan worked the way that it is working as Mr. Latimer described it that the entire school system would be desegregated by 1971. As I understand this, even accepting the way Mr. Latimer states it, Mr. Justice Brennan, that is not correct, that it would still take until the fall of 1977 for the -- a school system, the school system as such to be desegregated and that is because of the effects and the remnants of the initial racial assignment. Now, as Mr. Latimer described it, it is easy for Negroes who live closer to a White school than to a Negro school to get out of the initial racial assignment which they are in because they went to that school the year before when the -- in the grade that was not desegregated at all. But that's all he said that was -- that it was easy for the Negro student to get out. However, he does it, whatever the physical arrangement is, by going to the near White school or whatever else it does, he has to make a move which shifts him from a school that he has been going to because it was a Negro school to another school because he's closer to it and he meets whatever other requirements the School Board put on top. Now, it seems to me that no matter how easy that transfer system is, that it does not answer the requirement of a desegregated or a nonracial school system. For one thing, it -- it does not in itself answer the point that Mr. Justice Goldberg made earlier which is the question of a White school to which the Negro student is close, which is already fall. In answer to that, the question of Mr. Justice Goldberg, Mr. Latimer said that a Negro student close by that went into that would displace White students already in and they would presumably have to go somewhere else. But that is not a school system working on a -- on a nonracial system necessarily. It -- it has racial facts -- factors to start with. The -- and a related point to that is that it seems to me that in preserving Negro schools as such was -- which it does through this initial racial assignment, it is going to maintain systems of overcrowding, conditions of overcrowding, a Negro schools that a School Board normally were not for racial considerations would cure of itself by rezoning, by changing attendant systems or by whatever means they chose, they would -- it would at least be a situation that a School Board would normally look to and try to cure. And in -- in this -- this period of remnants --
William J. Brennan, Jr.: (Inaudible) I mean one has to register before the school year begins in speaking of high school. Everyone registers and as I understand it, he registers wherever he pleases at that junction and -- except in the incidence where there is overcrowding because of too many application receipts in that particular school, he's going to go to the school of his choice.
Burke Marshall: Mr. Justice Brennan, as I understand what that means that he -- he will go to the school to which he assigned -- is assigned unless he wants to change.
William J. Brennan, Jr.: But he -- but --
Burke Marshall: And the --
William J. Brennan, Jr.: -- Mr. Latimer told us was that -- that there's no business of assignment, and as I understood him this is all on the premise of -- the way it's going to work as Mr. Latimer described it for us, all bets are off for the past. You start in September 1964 and you go to any school you want to register. There's nothing else you have to do, you don't have to go back to the school you've been attending, there's no application for transfer of that school involved. You merely go to the school and register where you want to.
Earl Warren: That's high school --
William J. Brennan, Jr.: High school alone, yes.
Earl Warren: Yes.
Burke Marshall: Now, Mr. Justice Brennan, as -- as I understood that, Mr. Latimer was describing the way transfers worked. The way they worked, that the way that you worked --
William J. Brennan, Jr.: (Voice Overlap) but he didn't use the term--
Burke Marshall: Well --
William J. Brennan, Jr.: -- he -- did he said he didn't care what they -- what -- what label you put on it, that this is what's going to happen that youngster and his parent go to the particular high school, a youngster wants to go and there, he registered.
Burke Marshall: Well, I think, Mr. Justice Brennan, it would be easiest if I described it in terms of the -- the opinion of the court below. What Mr. Latimer was describing was a change which the School Board was making or was going to make in response to Judge Bell's per curiam opinion after the original opinion of the Fifth Circuit to correct the record. And Judge Bell, at that time, said that the School Board had to eliminate all factors in dealing with transfers that made it more difficult for a Negro who had already in a school because he was a Negro to get out, then it would make it to -- for a White student to transfer from one school to another. And if I can put it this way, Mr. Justice Brennan, the opinion of the Fifth Circuit in approving that is wrong then because they are talking in terms of transfers. They are talking about a school system which is perpetuated by -- in terms of initial racial assignments but in which they have made it easy, as easy as possible for Negro students who are still or put into school or go to a school because they went there last year. And they went there last year because it was a Negro school, no matter where they came from, that's why they went to it, make it easy for them to get out rather than the School Board reorganizing the school system so that no student is in the school because he's a Negro in the first place.
William J. Brennan, Jr.: Do you agree --
Burke Marshall: What -- whatever else you say, the Negroes that are in the Negro high schools now in the 9th grade next fall will be there because they're Negroes.
William J. Brennan, Jr.: Do you join Ms. Motley, the only solution here even on Mr. Latimer's premise, is the one she suggested?
Burke Marshall: Mr. Justice Brennan, I -- I would -- if -- if we were in the District Court and we were suggesting plans for the District Court, I would agree with her but I -- I do not think that I know enough about the Atlanta school system or -- or -- and I don't think that it's a constitutional requirement, Mr. Justice Brennan. It maybe the best plan for Atlanta, I do not know.
Earl Warren: Well, I think it's quite evident -- it must be quite evident to counsel that -- that we are confused about this situation and I think also that there's some confusion among counsel as to -- as to what the facts are. Before we decide this case, we want to know what facts we are deciding the case on. If there is anything outside of this record that we must decide the case on that we would like to -- that we would like to know. If -- so, I -- I think we will ask counsel to or counsel for the School Board to prepare a memorandum for us that is actual in nature, not a brief or an argumentative brief but one that is actual in nature that will demonstrate to us what -- what the basic facts of this case are and what we must reach in order to -- to decide it bearing in mind the questions that have been asked here from the bench. And do you think you could do that for 15 days, Mr. --
A. C. Latimer: I would think so, Your Honor.
Earl Warren: Very well. If you will do that then and counsel for the petitioners may have 15 days to reply.